P. v. Rucker
Filed 5/21/13 P. v. Rucker CA2/7
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
DARRELL RUCKER,
Defendant and Appellant.
B237359
(Los Angeles
County
Super. Ct.
No. NA070942)
APPEAL from a judgment of the Superior Court of
County, Jesse I. Rodriguez, Judge. Affirmed in part.
Alex Coolman, under appointment by
the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Blythe J. Leszkay, Brendan Sullivan and Carl N.
Henry, Deputy Attorneys General, for Plaintiff and Respondent.
_______________________
Darrell Rucker, Sr. was
convicted of voluntary manslaughter for killing Malcolm Youngblood. He appeals his conviction and sentence,
arguing that the jury was improperly instructed and that the trial court erred
in finding that he had suffered a prior juvenile adjudication. He also seeks review of the court’s ruling in
response to his request to discover personnel records of various police
officers. We find that there was
insufficient evidence to support the court’s finding that he had suffered a
prior juvenile adjudication but otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Darrell Rucker, Sr. shot and killed his nephew Malcolm
Youngblood on July 10, 2006. He was tried and convicted of
In 2009, this court reversed the murder conviction on the grounds that
the trial court had conducted proceedings before the jury that should have
occurred outside the jury’s presence, during which the jury was exposed to
statements that would have led a reasonable juror to believe that the court
believed the defendant was a liar attempting to manipulate the
proceedings. (People v. Rucker (Dec. 15, 2009, B203503) [nonpub.
opn.].)
The matter was retried before a new judge. The bulk of the evidence against Rucker came
from police interviews of his son, Darrell Rucker, Jr. (known as
“Juniorâ€). Junior witnessed the shooting
and spoke with the police that day, giving both recorded and unrecorded
statements. Rucker also testified, and a
police interview he gave shortly after the crime was played for the jury.
The prosecution presented evidence that Rucker shot
Youngblood multiple times without provocation after Youngblood complained about
a malfunctioning car that Rucker had sold him.
Rucker claimed that he acted in self-defense
and to defend his son: that Youngblood
had threatened him and a mechanic friend days before the shooting, and that on
the morning of the shooting Youngblood threatened him again, leading to a
moment when Rucker believed Youngblood was holding or was reaching for a weapon
to shoot Rucker and Junior. The jury was
instructed on first degree murder, second degree murder, manslaughter (heat of
passion and imperfect self-defense), and justifiable homicide in
manslaughter. Rucker appeals.
DISCUSSION
I. CALCRIM
No. 505
Rucker contends that the trial court erred when it
gave CALCRIM No. 505, the instruction on justifiable homicide in self
defense or defense of another, without bracketed language in the instruction
concerning threats to the defendants from others reasonably associated with the
decedent. Rucker contends that the trial
court should have included this language:
“If you find that the defendant received a threat from someone else that
he reasonably associated with Youngblood, you may consider that threat in
deciding whether the defendant was justified in acting in self-defense.â€
The court was the first to raise the question of
which, if any, of the various bracketed passages in CALCRIM No. 505 was
appropriate here. The court specifically
noted, “I have a question mark as to†the language about threats from someone
associated with the victim, and said, “I’ll stand to be corrected, but I can’t
find it in my notes or in my mind that evidence has been presented.†Defense counsel spoke with Rucker, asked to
come back to the issue later, and then said, “I can’t think of anything at this
moment right now. If I do, I’ll let the
court know.†The court said, “I’ll leave
that one in abeyance here just in case.â€
Later, the court reminded counsel, “505 I’m going to
give, but we had not talked about the other two paragraphs. We were waiting, Mr. Na [defense counsel], to
decide on the paragraph, if you found that the defendant received a threat from
someone else that he reasonably associated it with Malcolm Youngblood.†Defense counsel responded, “If the court
considers the possible—the shootout issue that was made in the defendant’s
taped statement. Otherwise, I
submit.†The court said, “No, I do not,â€
and gave the instruction without the additional bracketed language.
Rucker argues this was error because the court edited
CALCRIM No. 505 “in a legally incorrect manner,†and contends that antecedent
threats are a general principle of law upon which the court was required to
instruct the jury.
title="">[1] This argument is contrary to the law, and the
instruction as given was legally correct.
A trial court must instruct the jury concerning antecedent threats
and/or assaults only when the instruction is specifically requested: “The trial court was obligated to instruct on
the basic principles of self-defense. It
satisfied this duty by giving the
standard . . . instructions on this topic. These instructions are legally correct and
the concept of antecedent assaults is fully consistent with the general
principles that are addressed therein.
[Citation.] The issue of the
effect of antecedent assaults against defendant on the reasonableness of defendant’s
timing and degree of force highlights a particular aspect of this defense and
relates to a particular piece of evidence.
An instruction on the topic of antecedent assaults is analogous to a
clarifying instruction. It is axiomatic
that ‘[a] defendant who believes that an instruction requires clarification
must request it.’ [Citation.] Therefore, we conclude that this is a
‘specific point’ and is not a general principle of law; the trial court was not
obligated to instruct on this issue absent request.†(People
v. Garvin (2003) 110 Cal.App.4th 484, 489 [CALJIC instructions
given].)
As the Supreme Court has written, “[I]f defendant
believed the instructions required clarification or modification, it was
incumbent upon him to request it.†(
1060, 1140.) Here, counsel never
requested that this language be included in the jury instruction. Instead, the court repeatedly asked whether
defense counsel believed the evidence merited the inclusion of the optional language. Counsel first stated that he knew of no
evidentiary basis for the language; then, when the court later invited comment
once more, Rucker’s counsel mentioned some evidence in the defendant’s police
interview but left the determination to the court’s discretion. Counsel neither objected nor argued further
when the court said it did not think that the evidence mentioned supported the
inclusion of the bracketed language in the instruction. As counsel neither requested the clarifying
language nor made an argument from which a request for this language could be
implied, the trial court was not obligated to include the bracketed language in
CALCRIM No. 505.
II. CALCRIM
No. 358
CALCRIM No. 358 concerns evidence of out-of-court
statements of the defendant, and it advises the jury that it is required to
decide whether the defendant made the offered statements. If the jury believes that the defendant made
the statements, the jury is instructed to consider those statements with the
other evidence in reaching a verdict.
(CALCRIM No. 358.) CALCRIM
No. 358 also includes bracketed language:
“Consider with caution any statement made by (the/a) defendant tending
to show (his/her) guilt unless the statement was written or otherwise
recorded.†Although the trial court
ordinarily has a sua sponte duty to give the bracketed language when there is
evidence of an incriminating out-of-court oral statement made by the defendant,
the bracketed language is not necessary if the defendant’s incriminating
statements are recorded and the recording is played for the jury. (People
v. Slaughter (2002) 27 Cal.4th 1187, 1200.)
Here, the trial court advised the parties that it
would not give the bracketed language:
“The last paragraph I’m going to delete because this was tape[]
recorded.†Rucker contends that this was
error because the jury heard a considerable amount of evidence from Junior
concerning unrecorded inculpatory remarks made by Rucker before, during, and
after the shooting, and a review of the record confirms that Junior’s account
of events to the police contained multiple inculpatory statements attributed to
his father. Specifically, Rucker focuses
on four unrecorded statements related by Junior: Rucker telling Junior the morning of the
shooting, while showing him the gun, that he could “take care†of any problems
that Junior had arising from an argument with another person; Rucker screaming,
“You demon,†while shooting Youngblood; Rucker telling Junior after the
shooting that he “had to get rid†of Youngblood because “I’m tired of him
threatening me,†and Rucker telling Junior after the shooting not to tell
anyone about it, that he was never at the scene, and that he would take Junior
out for lunch later.
While some portion of Junior’s interview was recorded,
as the Attorney General notes, it was Junior’s account of his father’s prior
statements that was recorded, not the underlying utterances by Rucker. That Junior was recorded as he asserted that
his father had made specific statements does not relieve the trial court of the
responsibility of giving the cautionary language—this language is necessary
because of “the inability of a person to repeat exactly the words of another
person.†(People v. Gardner (1961) 195 Cal.App.2d 829, 832.) The instruction must be given unless the
defendant made the statement in writing or it was “introduced in evidence by
means of a tape recording of defendant’s own voice.†(Ibid.) As the jury heard evidence of statements made
by Rucker that tended to show his guilt that had not been contemporaneously
recorded or written, the trial court had a sua sponte duty to give the
bracketed language.
The failure to give this language in the instruction
requires reversal only if it is reasonably probable that the jury would have
reached a result more favorable to the defendant had the instruction been
given. (People v. Carpenter (1997) 15 Cal.4th 312, 393, superseded on other
grounds by statute as recognized in Verdin
v. Superior Court (2008) 43 Cal.4th 1096, 1106-1107.) Rucker argues that it is reasonably probable
that the jury would have reached a more favorable result had the instructional
language been given because the statements attributed to Rucker by Junior were
the most powerful evidence of Rucker’s state of mind at and near the time of
the shooting.
Rucker has not established that he was
prejudiced. All of the statements
appeared to be related to the intent elements of the charged crimes. Rucker, however, was acquitted of the first
and second degree murder charges, and convicted only of voluntary
manslaughter. Based on the jury
instructions, the jury may have concluded that he committed manslaughter based
on heat of passion, imperfect self-defense, or imperfect defense of others. For him to have been prejudiced by the
failure to include the bracketed portion of the instruction, therefore, the
unrecorded statements could only pertain to the choice between manslaughter and
justifiable homicide. These comments do
not do so. As Rucker notes, his
statement to Junior that he “had to get rid†of Youngblood because “I’m tired
of him threatening me,†tended to prove that Rucker had carried out the
shooting in a calculated way simply because he was tired of Youngblood
threatening him. The jury, however,
rejected the theory that Rucker calculatedly shot Youngblood when it convicted
Rucker of manslaughter rather than murder:
the jury’s verdict demonstrates that it found either that Rucker killed
Youngblood in the heat of passion or in the actual but unreasonable belief that
he needed to defend himself or another.
Rucker has not explained, nor can we identify, any respect in which this
statement could have led the jury to convict him of manslaughter rather than
reaching the more favorable conclusion that the homicide was justified by self-defense
or the need to defend others.
The same is true for Rucker’s post-shooting statement
to his son that his son had never been there and that they would meet
later. Rucker contends that these
statements “suggested an awareness of guilt, a callousness, and a degree of
calculation†that was inconsistent with self-defense, but a father’s attempt to
keep his teenage son out of the aftermath of a shooting and his plan to see him
later in the day do not tend to demonstrate anything about whether Rucker had
acted out of a reasonable need to defend himself, and they do not tend to
demonstrate that Rucker’s actual belief in the need to defend himself was
unreasonable.
With respect to Rucker’s statement to Junior the
morning of the shooting that he could “take care†of any of Junior’s problems,
made while holding the handgun he later used to kill Youngblood, Rucker
contends that this statement suggested that he would be quick to resort to the
use of deadly force whether or not he had a reasonable belief in the need for
such force. If the jury based its
manslaughter verdict on heat of passion, then the jury necessarily found that
Rucker was provoked in such a manner that would have caused a person of average
disposition to act rashly and without due deliberation, and thus whether he
might have a tendency to resort to force was irrelevant given that his use of
force was objectively reasonable. If the
jury based its manslaughter verdict on imperfect self-defense/defense of others
as opposed to heat of passion, then the jury necessarily found that the
conditions set forth in CALCRIM No. 571 were present here: that Rucker “actually believed that [he] was
in imminent danger of being killed or suffering great bodily injury,†and that
he “actually believed that the immediate use of deadly force was necessary to
defend against the imminent danger.â€
Rucker’s tendency to resort to force does not tend to demonstrate
anything about the reasonableness of his belief later that morning that he or
Junior was in imminent danger of being killed, or his belief that the immediate
use of deadly force was necessary to defend against the danger. The reasonableness of Rucker’s beliefs
pertains to the circumstances rather than to his tendencies. Accordingly, this statement was not reasonably
likely to have prompted the jury to conclude that Rucker’s belief that the use
of deadly force was necessary, or his belief that he or his son was in imminent
danger of death, was unreasonable rather than reasonable, and he has not been
prejudiced by the error here.
name="_ftnref2" title="">[2]
Finally, Rucker argues that he was prejudiced because
the prosecutor relied on the unrecorded statements in her closing argument as
“trustworthy†and sufficient to convict and because she used those statements
to present the shooting as “the product of a mind that was incredibly
callous.†The prosecutor relied on those
statements and other evidence as proof of malice, premeditation, and
deliberation and used Junior’s statement to urge the jury to convict Rucker of
first degree murder. The jury, however,
acquitted Rucker of first and second degree murder, demonstrating that it
either disregarded Rucker’s statements that would have supported the mental
state necessary for a murder conviction or that it considered the statements
with the caution that the omitted language would have instructed the jury to
do. Rucker has not demonstrated that he
was prejudiced by the failure to give the full text of CALCRIM No. 358.
III. Response
to Jury Question
During deliberations, the jury sent out a note to the
court that stated, “The jury knows the burden of proof is on the
prosecutor. However, [i]f the defendant
makes a claim or allegation, does the defendant have to prove his
claim/allegation true—or—does prosecutor must prove [sic] that the defendant’s claim/allegation is false?â€
The court and counsel conferred extensively about the
appropriate response to the jury’s question.
Defense counsel wished the jury to be directed to the instructions
addressing the burden of proof. The
court found the jury’s question problematic:
“I don’t know what claim that they are talking about. This could be ad infinitum. It could be anything that the defendant said
in his testimony. It could be anything
he said on the tape. I don’t believe
that I have to pinpoint that. They
already know. They begin with the
premise[,] ‘The jury knows the burden of proof is on the prosecution.’ ‘If the defendant makes a claim’—what
claim? What claim? Is it a claim that there were people knocking
on the door, and I was afraid even before I shot Mr. Youngblood; that there
were other gang members ready to come in here and kill me? What claim?
Is it a claim that he had the gun when his son says he didn’t have a
gun, and he didn’t see the gun, but he believes or perceived that he had a
gun? I don’t know what claim it is. The claims are from here to China upside
down.â€
Defense counsel suggested directing the jurors to the
burden of proof language in CALCRIM Nos. 505, 570, and 571, but the court
responded, “[W]hen I look at ‘claim/allegation,’ what allegation is that? We got 12 jurors in there. They’re not telling me is it the claim of
self-defense, the claim of imperfect self-defense, is it the claim of emotions,
heat of passion or an allegation? You
know, there are so many things in this case in terms of what the defense is
proposing—not the defense per se, but the statements of Mr. Rucker on the stand
that I cannot—I don’t think I could be able to pinpoint.†Ultimately, the court concluded, “I am going
to tell them that I refer them to the instructions given to you by the court,
read to you, and that’s it.†Defense
counsel began to argue further, but the court interjected, “I understand your
pain. I understand your request, Mr. Na
[defense counsel]. But I think I shouldn’t
pinpoint any instruction because you have to look at the instructions in the
totality of the circumstances in light of this request.†The court advised the jury, “I refer you to
the Court’s instructions read to you and provided to you.â€
On appeal, Rucker contends that the court abused its
discretion because it “provided no assistance to the jury in dealing with the
most critical legal concept in the trial despite the confusing nature of the
law and the obvious risk that the jury would assign an unfair burden to
[Rucker].†He further contends that the
error deprived him of his rights to due
process and a jury trial because it permitted the jury to convict him
without the prosecution proving each element of the offense beyond a reasonable
doubt.
The trial court has a primary duty to help the jury
understand the legal principles it is asked to apply. (People
v. Beardslee (1991) 53 Cal.3d 68, 97.)
When a jury inquires further during deliberations, elaborating on the
standard instructions is not always necessary:
“Where the original instructions are themselves full and complete, the
court has discretion under [Penal Code] section 1138 to determine what
additional explanations are sufficient to satisfy the jury’s request for
information.†(Ibid.) The court must
consider how it can best aid the jury, and “decide as to each jury question
whether further explanation is desirable, or whether it should merely reiterate
the instructions already given.†(
Rucker has not demonstrated any abuse of discretion
here. The trial court fully considered
the jury’s question, pondered what the question said and what the question’s
terms revealed about the precise area of difficulty for the jury, and it also
consulted extensively with counsel about the best response. The court concluded that a pinpoint
instruction was not appropriate because the jury’s question did not specify
which particular or claim it was considering, and that a general reference back
to the instructions as a whole, with their multiple statements of the burden of
proof, was the best way to respond to the jury’s question. This was reasonable, as the jury had been
properly instructed on the burden of proof in general and as it related to each
theory of homicide presented to the jury:
CALCRIM No. 220 stated the general burden of proof and the presumption
of innocence. CALCRIM No. 570 instructed
the jury that the prosecution had the burden of proving beyond a reasonable
doubt that the defendant did not kill as a result of a sudden quarrel or heat
of passion. CALCRIM No. 571 stated that
the prosecution had the burden of proving beyond a reasonable doubt that the
defendant was not acting in imperfect self-defense or imperfect defense of
others. CALCRIM No. 505 told the jury
that the prosecution had the burden of proving beyond a reasonable doubt that
the killing was not justified. The court
did not misdirect the jury or fail to provide a responsive answer to the
inquiry.
Rucker’s contentions of
court’s response all rest on the premise that the jury’s question demonstrated
that the jury misunderstood the burden of proof and the speculation that this
presumed misunderstanding may have meant that the jury believed Rucker had to
prove the reasonableness of his use of self-defense or prove that his mental
state justified a manslaughter verdict.
He claims that the court “did nothing to dispel this confusion and
thereby implicitly endorsed the jury’s misunderstanding.†The record does not support this
contention. To the contrary, the jury
prefaced its question with an acknowledgment that the prosecutor bore the
burden of proof, indicating that the jury was well aware that it was required
to determine whether the prosecution had proven the charged offenses beyond a
reasonable doubt. Moreover, the court
directed the jury that the answer to its question about the burden of proof
would be found within the instructions that it had been given. Contrary to Rucker’s argument, the record
does not reveal confusion, a misunderstanding of the burden of proof, a court
misinstructing the jury or endorsing jury confusion, a court failing to assist
the jury in response to its question, or any actions that permitted a
conviction without requiring the prosecutor to prove the elements of the
offense beyond a reasonable doubt.
Rucker has not shown an abuse of discretion here.
IV. Cumulative
Error
Rucker contends that even if the instructional errors
presented above do not individually require reversal, their cumulative effect
deprived him of a fair trial. As we have
identified only one error, there is no showing of cumulative error here.
V. Use
of a Police Report to Establish Age for a Strike Prior
The prosecution alleged that Rucker had suffered a
prior sustained juvenile adjudication for robbery in 1984. In order for this juvenile adjudication to be
used as a strike prior to enhance Rucker’s sentence, the prosecution was
required to prove that Rucker was 16 years of age or older at the time of the
offense. (Pen. Code, § 667, subd.
(d)(3)(A).) Limited documentation was
available to prove the details of the juvenile adjudication. The prosecutor presented evidence that Rucker
had been committed to the California Youth Authority (CYA) on either February
16, 1984, or March 15, 1984, for robbery, but the documentation did not state
the date of the offense. For the date of
the offense, the prosecutor relied upon a police report from January 1984 in
which Rucker had been arrested in conjunction with a robbery. Over defense objection, the court permitted
the prosecutor to use the police report to prove the date of the offense.
The prosecution bears the burden of proving beyond a
reasonable doubt all the elements of a sentence enhancement. (People
v. Miles (2008) 43 Cal.4th 1074, 1082.)
Rucker appeals the court’s determination that the prosecutor proved this
strike prior beyond a reasonable doubt.
He argues that the police report was inadmissible hearsay; that the
admission of the report into evidence violated his
36; and that there was insufficient evidence to support the court’s
determination that he was 16 years old at the time of the juvenile
offense. We agree with Rucker that the
evidence was insufficient to establish that he was 16 years old at the time of
the juvenile offense.
The evidence submitted by the prosecutor demonstrated
that Rucker had a juvenile adjudication for robbery dating to February or March
of 1984. One set of records, Exhibit 54,
listed a case number, described the offenses as “211P.C.—Robbery/Un-Enhancedâ€
and “496.1 PC Rec Stolen Property.†This
document listed a commitment date of “2-16-84†but did not state the date of
the offense. The Division of Juvenile
Justice stated in writing that this was the date of confinement but reported
that the records relating to the case had been destroyed. Rucker’s California Law Enforcement
Telecommunications System (CLETS) printout listed him in CYA custody for
robbery with a date of March 15, 1984.
The prosecutor could not establish the date of the
offense from these records. To do that,
she relied upon a police report showing that Rucker was arrested for robbery on
January 10, 1984. The text of the report
indicated that Rucker was arrested immediately after the robbery, and the
prosecutor argued that the offense date was January 10, 1984. This police report was not a certified
document from the record of conviction.
(See Evid. Code, § 1280.)
The police report was inadmissible hearsay offered to prove the facts
recited in it, and no exception to the hearsay rule permitted the use of the
report to establish the date of the robbery.
Even if we were to conclude, as the People argue, that the public
records exception to the hearsay rule permitted the introduction of the report,
admitting the police report under that exception would permit the court only to
consider the date of the report. (Evid.
Code, § 1280 [public records exception makes admissible “[e]vidence of a
writing made as a record of an act, condition or eventâ€].) The remaining information in that report,
such as the location of the offense, the date of the incident, the name of the
suspect and other details about him, is further hearsay recounted within the
police report; and, as double hearsay, would not be rendered admissible by the
public records exception.
Not only was the police report not properly admitted,
it did not establish the date of the offense for the robbery and receipt of
stolen property offenses that were the subject of the alleged juvenile
adjudication. While both the police
report and the offense for which Rucker was committed to the CYA involved a
robbery, the prosecution presented no evidence that the police report described
the same robbery for which Rucker was committed to the CYA later in 1984. The prosecutor argued that it was “the reasonable
conclusion†that the date of the crime corresponding to the later adjudication
was January 10, 1984, but a reasonable conclusion is not proof beyond a
reasonable doubt. Moreover, drawing that
conclusion required the court to consider inadmissible evidence, for no
factfinder could reasonably conclude that the offenses were one and the same
without relying on the double hearsay in the police report: the name of the suspect, the location of the
offense, and the date of the incident.
As the prosecution did not present admissible evidence from which the
court could properly conclude that Rucker suffered a juvenile adjudication for
robbery when he was 16 years of age or older, we conclude that the evidence was
insufficient to support the court’s finding that Rucker suffered a prior juvenile
adjudication within the meaning of the Three Strikes Law (Pen. Code,
§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). We reverse the finding on the strike prior
and remand the matter to the trial court.
VI. Pitchess
Rucker requested in his
trial court’s decisions at the in camera hearing on his motion under
Cal.3d 531. Specifically, Rucker
contends that the record does not make clear what records were turned over by
the custodian of records of evaluated by the court, requiring remand or
independent review of the records.
The trial court granted
Rucker’s motion for discovery of the personnel records of four police officers
with respect to issues of false reporting and the removal of evidence during
the time period from five years before the incident to December 31, 2010, and
Rucker requests that we review these proceedings for any error. We have reviewed the sealed record of
the proceedings. At the in camera
proceedings the custodian of records testified under oath that she had brought
all existing files regarding the four officers, regardless of the nature of the
allegation and the time frame. The trial
court described thoroughly the documents produced by the custodian of records
and reviewed by the court. We conclude
the trial court appropriately exercised its discretion in determining that none
of the documents were relevant to Rucker case and that no disclosure of
material from the officers’ personnel files was appropriate. (People
v. Mooc (2001) 26 Cal.4th 1216, 1229.)
DISPOSITION
The finding that Rucker suffered a
prior juvenile adjudication within the meaning of Penal Code sections 667,
subdivisions (b)-(i) and 1170.12, subdivisions (a)-(d), is reversed for
insufficient evidence. The matter is
remanded to the trial court for further proceedings. The clerk of the superior court is
then directed to prepare a corrected abstract of judgment and to forward a
certified copy of the abstract of judgment to the
ZELON,
J.
We
concur:
PERLUSS, P. J.
WOODS, J.
cites People v. Minifee (1996) 13
Cal.4th 1055, at page 1060, to support his claim that “[w]here self-defense is
at issue, the jury must be instructed that it may consider threats by
individuals reasonably associated with the victim,†but Minifee concerns the admissibility of third-party threats, not jury
instructions. (Ibid.)
does not make any argument as to why he was prejudiced by the introduction of
the evidence that he shouted, “You demon,†as he shot Youngblood. This utterance is entirely consistent with
justifiable homicide or manslaughter and we identify no prejudice from the
admission of this statement without the cautionary language of CALCRIM No. 358.
