Opinion
C086438
02-11-2020
THE PEOPLE, Plaintiff and Respondent, v. DEAN ALLEN HOLMES, Defendant and Appellant.
ORDER MODIFYING OPINION & DENYING REHEARING
[NO CHANGE IN JUDGMENT] THE COURT:
It is ordered that the opinion filed on February 11, 2020, be modified as follows:
1. Delete the last sentence in the first paragraph on page 27.
2. In the last partial paragraph beginning at the bottom of page 27, on the fourth line, following the closing parenthesis after the citation to People v. Lasko, add the following footnote:
A decision filed by a panel of the First Appellate District, Division Three, concludes such an error is one of federal constitutional dimension, subject to the heightened Chapman standard of review (Chapman v. California, supra, 386 U.S. 18) for harmless error. (People v. Thomas (2013) 218 Cal.App.4th 630, 641, review den. Oct. 30, 2013, S213262.) Until our Supreme Court instructs otherwise, we will apply the Watson standard in such cases. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455; see also People v. McShane (2019) 36 Cal.App.5th 245, 257, review granted on other grounds, Sept. 18, 2019, S257018 [applying Watson standard, finding harmless error on failure to instruct on heat of passion voluntary manslaughter].)
This modification does not change the judgment. The petition for rehearing is denied. BY THE COURT: HULL, Acting P. J. MURRAY, J. KRAUSE, J. NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16FE017115)
Defendant Dean Allen Holmes shot and killed Steven R. (the victim) while the victim was watching two other men fight on the street. On appeal, defendant asserts that the trial court erred by (1) giving a pinpoint initial aggressor instruction; (2) giving the jury additional instructions when it deadlocked; (3) allowing the prosecutor to give supplemental argument; (4) misstating the law regarding verbal provocation and heat of passion; (5) telling the jury that heat of passion and imperfect self-defense operate to negate the intent to kill; (6) instructing the jury with CALCRIM Nos. 3471 (right to self- defense: mutual combat/initial aggressor), 3472 (contrived self-defense), and 361 (failure to explain or deny adverse testimony); (7) failing to instruct on involuntary manslaughter as a lesser included offense; (8) sustaining the prosecutor's objection to defense counsel's argument that the victim was an aider and abettor to the underlying fight; and (9) excluding evidence of the victim's toxicology. Defendant also contends that he suffered cumulative prejudice from these alleged errors. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Instant offense
On September 4, 2016, Charmaine M. was at her boyfriend Gary B.'s garage apartment while she was arguing on the telephone with a man named Greg M. Gary took the phone from Charmaine and asked Greg to leave them out of the issue Greg was raising. Greg became agitated and said he was coming over. Charmaine then went into the main house to visit with Ava H., who was Gary's housemate and the victim's former romantic partner.
A few minutes later, the victim showed up at Gary's place. The victim and Gary were friends, and the two started to talk and drink beer. At the time, the victim had a cast on his left arm.
Greg soon arrived and abruptly entered Ava's house mumbling profanities. He seemed "angry." Charmaine returned to the garage to inform Gary that Greg was there and wanted to see Gary "out front." Gary joined Greg outside, with the victim following. The victim told Charmaine, "Don't worry. I have [Gary's] back." Once outside, Greg appeared "angry" and became "aggressive" and pulled a weapon out of his waistband that resembled a baton or rubber hose. Gary asked whether they could fight without weapons, and Greg dropped the hose and other items in his pockets. The two men moved out into the street and began to fight.
Multiple eyewitnesses testified regarding the victim's behavior during the fight. Gary and another eyewitness named F.R. testified that the victim stayed on the sidewalk, "coaching" Gary and "running his mouth." Gary and F.R. also testified that the victim encouraged Gary but never got involved in the fight. Ava testified at trial that she was concerned because the victim "talks more" when he drinks, and he had a beer in his hand during the fight. Ava testified that the victim tended to "say things that would make people upset."
Greg (who is African-American) testified at trial that the victim and Gary (who are both Caucasian) yelled racial epithets at him during the fight, including the "N" word. At one point during the fight, Greg caused Gary to fall, and Greg thought he saw the victim approach him with a knife. Greg pushed the victim back toward the sidewalk. Greg testified that at some point during the fight he saw the victim swinging a silver chain that was hooked to a wallet. However, Gary testified he did not recall the victim threatening anyone with a "strange knife," a chain, or a lock.
Ava testified that approximately four to five minutes after Gary and Greg started fighting, defendant, who lived across the street, ran toward the fight. Gary testified that defendant yelled at him, "[G]et up out of here." Defendant was "[l]oud and angry." Gary then began to fight both defendant and Greg. The victim remained on the sidewalk and yelled, "Can't he just get a one-on-one?"
Greg testified that he was an acquaintance of defendant.
Charmaine testified that defendant grew angry with the victim and told him, "Get out of here, this ain't your fucking business." Ava testified that the victim "would not shut up" around defendant, and the two appeared to be arguing for one to two minutes. Fearing the victim would get hurt, Ava asked him to come inside her front yard, but he refused.
Gary testified that defendant then left, running across the street and back to his house. Just before leaving, defendant said, "I got something for you." At this point, Gary and Greg had stopped fighting, although they continued to circle each other. Ava testified that she had been watching the fight from inside her house, and then ran outside and begged defendant not to hurt the victim. She also apologized on behalf of the victim, explaining that he "didn't know what he was doing" and he had a "tendency to do that." Defendant shrugged her off and said, "I don't care." He then went inside his house, and Ava ran back to her yard.
Ava testified that defendant returned a short time later. At that point, the fight between Gary and Greg was winding down. Defendant appeared angry as he ran down the sidewalk toward the scene with a semiautomatic firearm in his hand. The victim was still "running his mouth."
Defendant flashed the gun toward the victim, who was now in the street. Gary testified that defendant again said "get the fuck up out of here" in an angry and loud voice, this time directed at the victim. Gary yelled a warning to the victim about the gun; the victim responded, "That's not for me, is it? I'm no threat." Ava testified that the victim was "begging" defendant after he saw the gun. Gary testified that the victim also raised his arm and showed his cast.
Ava testified that the victim started backing up toward the sidewalk, and defendant followed him. Defendant, who still appeared angry, ran toward the victim and put the victim in a headlock with his left arm. The victim did not fight back. With his right hand, defendant pointed the gun at the victim's cheek and shot him. The victim initially fell to the ground but then stood up, bleeding. Defendant said, "How did you like that?" and did nothing to help the victim. Defendant then said something to the effect of, "What's the matter? You dizzy?"
Gary testified that he ran away, but defendant chased him, telling him to get out of there. When Gary injured his leg and fell to the ground, defendant attempted to punch him and fled. Defendant was eventually found and arrested in San Francisco nine days later.
Police arrived soon after the shooting, and the victim was taken to the hospital by ambulance. He suffered a gunshot wound to his left cheek, orbital fractures, and a contusion on his forehead. The victim died three days after the shooting from his injuries. An autopsy revealed that the gunshot had caused "significant fractures" to the victim's eye area, which had "collapsed." The bullet had lodged in the victim's brain, causing "significant injury," swelling, and skull fractures. The forensic pathologist testified at trial that the victim appeared to have a "contact wound," suggesting that the gun muzzle was in contact with, or nearly in contact with, his skin.
Police searched defendant's home and found a semiautomatic handgun hidden between a mattress and a box spring. The gun had a spent casing in the chamber and was loaded with at least one live round in the magazine. In a different room, police found two magazines that were the same size and shape as the one found inside the gun, and three boxes of ammunition in the correct caliber for the gun. The magazines contained live rounds.
The prosecution's DNA testing and analysis expert testified that on the back of the gun she found DNA belonging only to defendant. DNA belonging only to the victim was found on the gun barrel. On a Leatherman multi-tool that was among the victim's belongings at the hospital, only the victim's DNA was found. There was no blood present on the knife blade of the Leatherman. On a chain and lock found on Eva's front porch after the shooting, only the victim's blood and DNA were present.
The victim was treated by medical personnel in the area where the chain and lock were found.
Defendant admitted that he had a 2004 conviction for second degree commercial burglary, a felony. (Pen. Code, § 459.)
Undesignated statutory references are to the Penal Code.
2. Defendant's trial testimony
At trial, defendant testified that he had known Ava for over two years and got along "quite well" with her before the shooting. A year before the shooting, Greg, the victim, and defendant had watched a football game together at a neighbor's home. During the visit, defendant learned that the victim "did not like" African-Americans.
Defendant also testified that he had limited mobility due to a car accident in 2010 and required a cane for "long walks," such as to the store. He received disability insurance money and had a "limited source of income." He regularly took prescription pain medication and drank 24 to 28 cans of beer each day. The medication "[s]ometimes" made him "angry," "moody," and "drowsy." Defendant also testified that he habitually used marijuana and rock cocaine and was doing so in September 2016. The marijuana made him feel "mellow," while the cocaine made him feel "paranoia." Defendant would get frustrated if he ran out of beer or "wraps" for his marijuana, and he would feel "moody" and irritable when the effects of the cocaine wore off. Defendant was not getting along with his wife prior to the shooting, and she moved out about three weeks before the incident.
The day of the incident, defendant took his medication, drank 42 beers, smoked some marijuana, and used crack cocaine. He left the house to go shopping between 1:30 and 5:15. After returning home, he took his pain medication, continued drinking beer, smoked more marijuana and cocaine. Greg called, but defendant did not answer. Thirty minutes later he was feeling "paranoid" and starting to withdraw from the cocaine. He decided to leave the house to go get more cocaine.
As defendant opened the door and stepped onto his porch, he heard someone swearing and using racial epithets. "White boy is going to fucking beat this ['N' word's] ass today," the voice said. Defendant saw Greg in the street with a Caucasian man (who turned out to be Gary), and a Caucasian man on the side near some cars (who turned out to be the victim). Despite the fact that he was not in danger on the porch of his home, defendant "immediately" ran over, fearing the two men were ganging up on Greg. When defendant got close enough, he asked what was going on. He placed himself between Greg and Gary "to break it up." The victim then demanded defendant leave and used racial epithets against defendant (who is African-American). The victim told defendant, "Get the fuck out of here, ['N' word]. It's not your fucking fight."
Defendant became angry, believing that the victim's racial epithets were "fighting words." Defendant confronted the victim and began to yell at him to leave; the victim repeated the racial epithets and again warned, "[I]t ain't your fucking fight." The victim began backing up at a "pretty good pace" onto the sidewalk, until he was on the sidewalk and less than five feet away from the fence surrounding Ava's home. The victim then tried to push past defendant. Defendant saw the victim swinging a chain and lock in his left hand. The victim also had "something silver" in his right hand. Defendant reached out to try to hold the victim back, and the victim "slashed" the web of defendant's right hand two times, causing parallel cuts. The jury was shown photographs of two lacerations on defendant's hand taken several weeks after the shooting. Defendant testified that they were "superficial" wounds. An investigator for the prosecution testified that defendant's hand injury could have been caused by the defendant's gun, which during discharge can cut the webbing of the hand between the thumb and index finger.
Defendant testified that the victim did not cut him with the Leatherman multi-tool that was part of the victim's belongings at the hospital. Defendant did not know what happened to the blade he alleged was used by the victim.
Defendant felt angry and "wanted to get even." He said, "This is how we are doing it. We are bringing it with weapons." Fearing for his safety and Greg's, defendant left the sidewalk and asked Greg to leave with him. Defendant put his hand on Greg's shoulder, but Greg still refused, so defendant decided to return home. Defendant did not know where the victim was at the time. As defendant walked home, Ava approached and begged him not to hurt the victim. She said, "He is kind of a psycho, kind of crazy. He just got out of prison." Defendant said nothing and returned home. He was "furious." Ava's comments made defendant think about how the victim did not like African-Americans, and "[e]verything triggered from there." Still, he had no plans as to what he would do next other than go home.
Once defendant got into his house, he started thinking about "Greg still being out there" and decided to go help Greg. He then decided to get his gun, which he knew was loaded. Defendant testified this was the first time he thought of getting his gun. Although he "fear[ed] for [his] life," he decided to "go and help to protect Greg."
Defendant testified that he knew that, as a convicted felon, he was legally prohibited from owning or possessing a firearm.
Only 20 to 30 seconds after going inside, defendant "rushed back out the door" because he feared Greg was still in danger, given that the victim had a knife, a padlock, and "another guy to pounce on [Greg]." Defendant testified that as he left, he was "still withdrawing from [his] cocaine high" and felt "angry" because of that.
As defendant got closer, he told Gary and the victim to just leave. Defendant saw Gary in the street, backing up toward a parked truck. The victim was also backing up in the street near the truck, and Greg remained in the middle of the street. Defendant racked his gun, which was loaded with the safety off. He wanted to "show it off and let everyone know that [he had] a weapon." His goal was to scare people into leaving, not hurt anyone. He again told everyone to leave, but no one complied. Defendant testified that he held the gun in his palm and showed it to the victim, keeping his hand away from the trigger. The victim again told defendant, "It's not even your . . . fight," and defendant again demanded that the victim leave.
Defendant approached the victim, who was backing up and now on the sidewalk. The victim still held the knife and the swinging chain and lock. Defendant continued to yell as he got closer. Defendant was walking "fast" toward the victim. The victim continued backing up. Defendant knew the gun he was holding was loaded with the safety off, and that a bullet was in the firing chamber. Defendant agreed during cross-examination that, at that point, "all of the steps to prohibit a firing of the gun ha[d] been taken away."
Suddenly, the victim tried to push past defendant. At this point, defendant was only five feet from Greg. Fearing the victim was going to injure him or go after Greg, defendant reached out with his left hand and grabbed the victim by the collar. Defendant now had the victim in a "hold" from which the victim could not escape, although he testified it was not a headlock. Defendant was still holding the gun in the palm of his partially open right hand. Defendant then tried to hit the victim in the face "as hard as possible" with his right hand (which was still holding the gun). Defendant testified, "My thing is to hit [the victim] as hard as I could so that [the victim] don't stab me again." Defendant further testified, "Either I get stabbed or I get hit with this lock or I swing and get [the victim] first." As the barrel of the gun made contact with the left side of the victim's face, defendant heard the gun go off. Defendant saw the victim grab his face, with blood pouring out.
Defendant testified it was just a "reaction," and he only wanted to knock the victim out to prevent the victim from stabbing or cutting him again. Defendant further testified that he did not have his finger on the trigger and he "never meant to shoot anyone." Defendant also testified that he only intended to defend himself and Greg.
Defendant testified that after the gun went off he "stood there in shock" for 30 seconds. He testified that he neither said anything to the victim nor chased anyone, but instead returned to his house because he was scared. He put the gun back under his mattress, walked to a local school, and then checked into a local motel under a friend's name. The next morning, a friend drove him to San Francisco, where the police arrested him approximately one week later. Within a day of the shooting, defendant "coincidentally" got rid of his cell phone and the person who drove him to San Francisco purchased a prepaid phone for him, which had no subscriber information. Defendant testified that he walked to the school because he was scared and it would make it harder for law enforcement to find him. He did not take his cane or walker with him when he walked to the school.
Defendant testified that he did not drive his own car to San Francisco because it would have made it easier for law enforcement to find him.
During cross-examination, defendant testified that, the way he was holding the gun, the side of the gun would have hit the victim's face, not the muzzle. The prosecutor asked, "How did the gun turn?" Defendant responded, "The gun didn't turn." The prosecutor asked if the muzzle was pointed toward the victim's cheek, and defendant responded, "No." The prosecutor continued: "Well, somehow that gun bullet entered his cheek." Defendant responded, "Yes," but offered no explanation.
Defendant also testified during cross-examination that Greg and Gary were never close enough to actually injure each other. He also never saw them use any weapons during their fight. In addition, defendant never saw the victim approach Greg. It was "clear" to defendant that the fight was only between Greg and Gary.
Defendant testified that he was six feet one inch tall and weighed 250 pounds; the victim was five feet seven inches tall and only weighed 149 pounds.
3. Charges
In November 2017, defendant was charged with murder (§ 187, subd. (a)) and being a felon in possession of a firearm (§ 29800, subd. (a)(1)). With respect to count one, it was further alleged defendant intentionally and personally discharged a firearm. (§ 12022.53, subd. (d).)
4. Jury instructions
The trial court instructed the jury regarding murder and manslaughter, including self-defense (CALCRIM No. 505), provocation (CALCRIM No. 522), right to self-defense (CALCRIM No. 3470), right to self-defense: mutual combat/initial aggressor (CALCRIM No. 3471), contrived self-defense (CALCRIM No. 3472), voluntary manslaughter/heat of passion (CALCRIM No. 570), voluntary manslaughter/imperfect self-defense (CALCRIM No. 571), and voluntary intoxication (CALCRIM No. 625).
5. Verdict
In December 2017, a jury found defendant guilty of second degree murder and being a felon in possession of a firearm. The jury found the firearm use allegation to be not true.
6. Sentencing
In January 2018, the trial court sentenced defendant to state prison for 15 years to life on the murder conviction, plus a consecutive term of three years on the unlawful possession conviction. The trial court also imposed various fines and fees.
DISCUSSION
I
Defendant contends the trial court erred when the jury stated it was deadlocked in (1) giving a special pinpoint instruction regarding heat of passion, sudden quarrel, or provocation, and (2) allowing additional argument by the parties. He first argues the instruction incorrectly stated the law. He next argues it was an abuse of discretion to give the instruction, which was favorable to the prosecution. According to defendant, it was unfair to allow the prosecutor to argue again that defendant was guilty of murder rather than manslaughter.
In a related argument, defendant contends the prosecutor misstated the law regarding verbal provocation and heat of passion. We find his contentions without merit.
1. Additional background
After deliberating for two days, the jury sent the court the following request: "We are stuck on moving the agreed upon charge down due to provocation or letting the charge stand. This one point is where the majority of [today] has been spent in deliberation. How do we proceed[?]" Counsel were e-mailed the request and asked how they wanted to proceed. The prosecutor requested additional argument or, alternatively, the "firecracker instruction," which is designed to encourage jurors to resume deliberations. (See People v. Moore (2002) 96 Cal.App.4th 1105, 1118-1120, 1122; CALCRIM No. 3551.) Defense counsel argued that additional argument was unnecessary and would not be helpful.
During proceedings held the next day, the court indicated the prosecutor had also requested an instruction pursuant to People v. Hoover (1930) 107 Cal.App. 635 (Hoover) and People v. Johnston (2003) 113 Cal.App.4th 1299 (Johnston). The proposed instruction (including a portion requested by defense counsel in italics) was as follows: "If you find the defendant was the initial aggressor, a person who has instigated a quarrel who is himself the aggressor and who in good faith has failed to desist and withdraw[,] may not resort to the use of deadly force on the theory that it was the result of heat of passion, sudden quarrel or provocation." The proposed instruction was modified at defense counsel's request to include the following preface: "If you find the defendant was the initial aggressor." The prosecutor did not object to the addition, and defense counsel maintained his objection. The court also proposed to give CALCRIM No. 641, regarding deliberations.
Defense counsel objected that the instruction was unhelpful because the jury was debating provocation, not what happens if someone is the initial aggressor. The jury later confirmed that it had a "disagreement" about murder versus manslaughter. The court asked if, with respect to manslaughter, the issue was "manslaughter based upon heat of sudden passion as opposed to manslaughter by way of imperfect self-defense?" The jury foreperson replied, "Provocation."
The court responded by outlining voluntary manslaughter based on provocation, heat of passion, and imperfect self-defense: "There's two theories that are possible for . . . voluntary manslaughter. [¶] . . . [¶] Both of them involve something that takes away the intent to kill. [¶] . . . [¶] One of those is imperfect self-defense meaning there's an issue going to self-defense, but it's not perfect self-defense and you might find that it's imperfect because some honestly-held belief by the defendant was unreasonable. [¶] The other way you can get to voluntary manslaughter is that there was no intent to kill, because at the time of the action the defendant was acting under the heat of sudden passion. There's a jury instruction that deals with what heat of sudden passion is about, okay? [¶] In order to get to heat of sudden passion, there has to be some type of issue that triggers that heat of sudden passion, and that issue we refer to as provocation. [¶] . . . [¶] Okay. And so I gave you an instruction on what provocation is and what type of provocation qualifies for heat of sudden passion and what type of provocation does not qualify. And I think you might recall I repeated for you paragraph three of that instruction which talks about it has to be sufficient to cause an average person to act without deliberation and reflection. . . . [¶] . . . [¶] [T]here is no crime based upon, quote, 'provocation.' [¶] . . . [¶] The crime is based upon heat of sudden passion and the route to get there is triggered by provocation."
The court asked if its explanation helped the jury resolve its disagreement, and the jury foreperson responded, "Looking around I would say no." The court asked if there was "anything else or any instruction" that might assist the jurors, and encouraged them to retire to the jury room to discuss the matter. The jury foreperson agreed to have the jury retire, but stated that he feared they would "still have an issue." The jury retired to discuss the matter, with the court encouraging them to "see if it resolves the issues that allows you to come to a verdict." They returned 11 minutes later, and the jury foreperson confirmed that their issues remained.
The court gave the additional instructions (including the firecracker and special initial aggressor instructions) and permitted the parties to give supplemental arguments to the jury. Defense counsel did not object to the instructions.
In granting additional argument, the court reasoned that the jury's disagreement did not appear to involve a "legal issue." "They've clarified that the issue is between murder and voluntary manslaughter. They've clarified that the issue on voluntary manslaughter is heat of sudden passion versus imperfect self-defense. And the issue with heat of sudden passion is whether the jury finds that the provocation is sufficient to cause . . . ordinary, reasonable people to act without due reflection and act rashly." Although words and name calling alone "generally are not sufficient to [rise] to the level of heat of sudden passion," under certain circumstances, they could qualify. Whether the victim's words met the standard here was a "factual determination for the jury," making additional argument potentially "beneficial" for the jurors.
During supplemental argument, the prosecutor restated the initial aggressor instruction and explained, "[I]f you are the one who initiates a quarrel, you can't use that defense of heat of passion, sudden quarrel, or provocation." She argued defendant was "not part of the fight between Gary and Greg," but he "inserted himself into it." The defense "does not apply" if the defendant takes a momentary break, such as going to the bathroom during a bar fight. Here, although defendant may have been upset by the victim using racial epithets and slashing defendant's hand, defendant took a break and went home. Defendant was no longer acting in the heat of passion when he decided to get his gun and go back outside to protect Greg. According to the prosecutor, defendant was "reasoning," and therefore the defense of heat of passion, sudden quarrel, or provocation did not apply.
Defense counsel argued the new instruction did not apply because the victim initially provoked defendant by using racial epithets, meaning that defendant was not the initial aggressor. Moreover, the victim's racial epithet was the "meanest" and "most demeaning word" that could be used against an African-American, and is the "clearest example of a fighting word." In using such a word, the victim "inserted race into" the fight. According to defense counsel, there was "no time to cool off" because defendant went to his home quickly and spoke with Ava along the way.
During rebuttal, the prosecutor argued that an average person would not have been provoked by the victim's use of the racial epithet. The prosecutor noted that Greg, for example, told police he was not "bother[ed]" by the victim's words. According to the prosecutor, defendant was the initial aggressor because he approached the victim with a loaded and racked gun, especially since he walked away and had a chance to calm down. In addition, she argued, it should not be the law that a murder can be reduced due to name calling, even if the words used are ugly: "[W]hat [defense counsel] wants you to do is say name calling gives somebody the pass to say they were so under the influence of that emotion they get away with murder. That is not where we're at. He was not under that undue influence and passion, no. He walked away."
At one point during rebuttal, the prosecutor argued, "[W]hen the law talks about verbal words or conduct, they're talking about like threats, I'm gonna kill you, I'm gonna kill your mother, your kids, whatever." Defense counsel objected that this was a misstatement of the law. The trial court agreed, telling the jury, "I'll just remind you of the instruction that you must follow my instructions on the law, and if the lawyers' comments disagree with that, you must follow my instructions."
The jury resumed deliberations at 11:35 a.m. and were provided with copies of the new instructions at 12:00 p.m. Although the court minutes note that the jury took a lunch break from 12:00 to 1:00 p.m., the court orally stated that, at approximately 1:18 p.m., the jury announced they had a verdict but were going to lunch and would return at 2:00 p.m.
2. The special instruction correctly stated the law regarding heat of passion
Even though it was defendant who requested to modify the special instruction's preface to read: "If you find the defendant was the initial aggressor," he now contends the special instruction misstated the law because the initial aggressor rule only applies to deny an initial aggressor the right to claim self-defense. According to defendant, the "predictable conduct rule" "determines whether an initial wrongdoer can claim heat of passion." Defendant further argues the special instruction was "instrumental" in the jury's murder verdict, given the jury's quick verdict after receiving the instruction.
The People respond that defendant forfeited the issue on appeal because he failed to object in the trial court. We disagree and will proceed to the merits, especially given defendant's contentions. (See People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012 [the rule of forfeiture does not apply if an instruction was an incorrect statement of the law].)
We review de novo whether a jury instruction correctly states the law. (People v. Posey (2004) 32 Cal.4th 193, 218.) "In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole. We must also assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given. [Citation.]" (People v. Romo (1975) 47 Cal.App.3d 976, 990, disapproved on other grounds in People v. Bolton (1979) 23 Cal.3d 208, 213-214.)
Murder is the "unlawful killing of a human being . . . with malice aforethought." (§ 187, subd. (a).) "[M]alice may be express or implied." (§ 188.) Malice is express when the defendant has manifested a "deliberate intention to unlawfully take away the life of a fellow creature." (§ 188, subd. (a)(1).) Malice is implied " 'when the killing results from an intentional act, the natural consequences of which are dangerous to life,' " performed by a person who knows that his conduct " 'endangers the life of another and who acts with conscious disregard for life.' " (People v. Blakeley (2000) 23 Cal.4th 82, 87.)
Voluntary manslaughter, a lesser included offense of murder, is an intentional, unlawful killing "upon a sudden quarrel or heat of passion." (§ 192, subd. (a); People v. Beltran (2013) 56 Cal.4th 935, 943 (Beltran).) To negate malice and reduce a murder to manslaughter, the defendant's reason must have been "actually obscured as the result of a strong passion aroused by a 'provocation' sufficient to cause an ' "ordinary [person] of average disposition . . . to act rashly or without due deliberation and reflection, and from this passion rather than from judgment." ' " (People v. Breverman (1998) 19 Cal.4th 142, 163 (Breverman); People v. Gutierrez (2002) 28 Cal.4th 1083, 1143; see § 188, subd. (a)(2) [malice required for murder "is implied when no considerable provocation appears"].) Heat of passion may be generated by a "sudden quarrel or a series of provocative acts over a long period of time." (People v. Wright (2015) 242 Cal.App.4th 1461, 1481.) The provocation may be physical or verbal, and it "must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim." (People v. Lee (1999) 20 Cal.4th 47, 59.) The passion aroused may be any violent, intense, highly wrought or enthusiastic emotion, except revenge. (Breverman, supra, at p. 163.)
The special instruction was based on Johnston and Hoover. In Johnston, the defendant went to his ex-girlfriend's house at 5:00 a.m., "bang[ed] on the walls, windows, and doors," and threatened to kill the entire family. (Johnston, supra, 113 Cal.App.4th at p. 1304.) Although the ex-girlfriend's family members repeatedly asked the defendant to leave, he stayed and repeatedly challenged the ex-girlfriend's brothers to fight. (Ibid.) When one brother finally emerged and started fighting with the defendant, the defendant pulled out a knife and killed the brother. (Id. at p. 1305.)
Johnston is cited in the "related issues" section of the bench notes for CALCRIM No. 570, under the heading "Heat of Passion: Defendant Initial Aggressor."
The jury in Johnston convicted the defendant of second degree murder, but the trial court reduced the conviction to voluntary manslaughter, based on sudden quarrel/heat of passion. (Johnston, supra, 113 Cal.App.4th at p. 1303.) The trial court found that although the defendant had used provocative words, he had not acted aggressively toward the victim until the victim came " 'bursting out of the house' " and used physical force. (Id. at pp. 1308-1309.)
The Court of Appeal reversed, reasoning that even if the defendant did not go over to his ex-girlfriend's house to kill someone, he "instigated the fight" with the victim by creating a loud disturbance, yelling at the family members, and challenging the victim to a fight. (Johnston, supra, 113 Cal.App.4th at p. 1313.) Under such circumstances, the defendant could not claim that he was provoked into killing his opponent. (Ibid.)
Similarly, in Hoover, the defendant verbally argued with a man, threatened him with an axe, and then struck him. (Hoover, supra, 107 Cal.App. at p. 636.) A bystander said the defendant's physical attack was uncalled for, and defendant replied, " 'You want some of it too.' " (Id. at pp. 636-637.) The defendant then struck the bystander; the two began fighting, and the defendant eventually stabbed the bystander to death. (Id. at p. 637.)
The Hoover court rejected the defendant's argument that the evidence only supported voluntary manslaughter: "It may not be reasonably contended, however, that one who has instigated a quarrel, who is himself the aggressor and who in good faith has failed to desist and withdraw from the fistic encounter, may resort to the use of a deadly weapon and then escape from the penalty of murder on the theory that it was the result of a sudden quarrel or that the fatal act was the result of mere heat of passion." (Hoover, at pp. 638, 639.)
The above passage from Hoover was also quoted by the Johnston court, and is the sole use of the term "aggressor" in the Johnston decision. (Johnston, supra, 113 Cal.App.4th at p. 1312.) In context, both Johnston and Hoover used the term to refer to someone who instigates a quarrel, not the person who first uses physical force. This is consistent with the dictionary definition of "aggressor," namely someone who "attacks or assails another, esp[ecially] one who makes the first attack or takes the first step in provoking conflict." (Oxford English Dict., <https://www.oed.com/view/Entry/3955?redirectedFrom=aggressor#eid> [as of Feb. 10, 2020], archived at <https://perma.cc/ZL2F-YHVS>.) The special instruction given in this case begins with the phrase "initial aggressor," but the subsequent language clarifies that the term is referring to "a person who has instigated a quarrel who is himself the aggressor." The instruction next makes clear that such a person may not use deadly force and then claim that it resulted from heat of passion, sudden quarrel, or provocation. (See Johnston, supra, 113 Cal.App.4th at p. 1312.) We conclude the instruction accurately described the law with respect to heat of passion.
3. The trial court did not abuse its discretion in giving the special instruction or allowing additional argument
Defendant next contends the trial court abused its discretion by giving the special instruction and allowing the prosecutor additional argument. According to defendant, the instruction was favorable to the prosecution because its use of the term "initial aggressor" highlighted for the jury the prosecutor's argument that defendant was not entitled to claim heat of passion because he was the initial aggressor. Defendant further argues the additional argument was unfair because it allowed the prosecutor to focus in on the precise issue in controversy for the jury.
When a jury is deadlocked, a trial court should " 'consider how it can best aid the jury.' " (People v. Young (2007) 156 Cal.App.4th 1165, 1171.) Pursuant to California Rules of Court, rule 2.1036, a trial court should ask the jury about any specific concerns and may "(1) Give additional instructions; [¶] (2) Clarify previous instructions; [¶] (3) Permit attorneys to make additional closing arguments; or [¶] (4) Employ any combination of these measures." The trial court "must proceed carefully, lest its actions be viewed as coercive." (Young, at p. 1171 [also noting that § 1094 grants the trial court "broad discretion" to deviate from the standard order of trial procedure set forth in § 1093].) We review a trial court's actions in such circumstances for abuse of discretion. (People v. Salazar (2014) 227 Cal.App.4th 1078, 1088.)
Here, the jury stated it was deadlocked regarding the issue of voluntary manslaughter and heat of passion, and the court's initial attempt to clarify the issue did not help the jury. As such, the trial court did not act coercively when it gave an additional instruction that correctly stated the law.
In addition, the court exercised its discretion within the bounds of reason in permitting each side to give additional argument. The foreperson was not clear about what might help clarify heat of passion for the jury. It was not unreasonable for the court to find that additional argument about the application of heat of passion and murder in this case might help the jury resolve its impasse. Given that the jury foreperson never revealed the jury's specific debate about the issue and that defense counsel had the same additional opportunity to argue in favor of heat of passion, we find no abuse of the trial court's discretion.
4. Defendant was not prejudiced by the prosecutor's supplemental argument
Defendant contends he was prejudiced by the prosecutor's improper comments during supplemental argument regarding provocation and voluntary manslaughter, citing the following comment by the prosecutor: "[W]hen the law talks about verbal words or conduct, they're talking about like threats, I'm gonna kill you, I'm gonna kill your mother, your kids, whatever." Defendant also cites the prosecutor's argument that it is "human nature to want to give a free pass to somebody you like" and that the law should not be that "name calling gives somebody the pass to say they were so under the influence of that emotion they get away with murder."
" '[I]t is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its . . . obligation to overcome reasonable doubt on all elements [citation].' " (People v. Centeno (2014) 60 Cal.4th 659, 666.) Improper comments are misconduct if they "involve use of deceptive or reprehensible methods to attempt to persuade either the court or the jury." (People v. Cortez (2016) 63 Cal.4th 101, 130 (Cortez).) To establish misconduct, a defendant must show " 'that, "[i]n the context of the whole argument and the instructions" [citation], there was "a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner." [Citation.] If the challenged comments, viewed in context, 'would have been taken by a juror to state or imply nothing harmful, [then] they obviously cannot be deemed objectionable.' " (Ibid.) " 'In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements. [Citation.]' [Citation.]" (People v. Brown (2003) 31 Cal.4th 518, 553-554.)
Although defendant objected to the prosecutor's erroneous explanation that a verbal provocation could only be sufficient if it involved threats to kill (see People v. Le (2007) 158 Cal.App.4th 516, 526 ["words of abuse, insult or reproach . . . may constitute sufficient provocation to reduce the offense of intentional homicide from murder to manslaughter"]), defendant failed to properly preserve his contentions regarding the prosecutor's "free pass" comments. (People v. Cunningham (2001) 25 Cal.4th 926, 1000 [a defendant generally forfeits a claim of prosecutorial misconduct involving comments before the jury unless he both timely objects and " ' " 'request[s] that the jury be admonished to disregard the impropriety' " ' "].) Regardless, we reject defendant's contentions because he was not prejudiced.
Immediately after the prosecutor suggested that only death threats qualified as sufficient verbal provocation for purposes of heat of passion, defense counsel objected that this statement "misstates the instruction." The court then reminded the jury that it was to "follow [the court's] instructions on the law, and if the lawyers' comments disagree with that, you must follow [the court's] instructions." This exchange would have indicated that the prosecutor had misstated the law, especially since the jury had already been instructed pursuant to CALCRIM No. 522 that "[t]he provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation or reflection." In addition, the jury was instructed pursuant to CALCRIM No. 570 that "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. [¶] . . . [¶] 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." Under the circumstances, it is not reasonably likely that the jury understood or applied the prosecutor's comments regarding the legal standard for a sufficient verbal provocation in an improper or erroneous manner.
It is also not reasonably likely that the jury erroneously understood or misapplied the prosecutor's use of the term "pass." The prosecutor's additional argument as a whole was focused on whether defendant's charge of murder should be reduced to voluntary manslaughter based on the victim's use of racial epithets, especially since defendant walked away from the fight, only to return with a gun. Her arguments did not convey to the jury that it should simply disregard the doctrine of voluntary manslaughter based on heat of passion, and it was unlikely that any juror believed defendant could go free if he was only convicted of voluntary manslaughter. (See People v. Peau (2015) 236 Cal.App.4th 823, 834 [finding harmless a prosecutor's reference to imperfect self-defense as a " 'loophole,' " where the prosecutor "acknowledged the doctrine's existence and argued against its applicability," making it unlikely that any jury member would have believed a conviction of voluntary manslaughter would result in the defendant's freedom, and the court had instructed the jury to follow the law as explained by the court, not by counsel].) In sum, we find without merit defendant's contentions of prosecutorial misconduct during additional argument.
II
Defendant next contends that the trial court erred in talking to the jury after it announced it was deadlocked by using the phrase "heat of sudden passion." In addition, defendant argues the trial court erroneously stated that heat of passion and imperfect self-defense negate the intent to kill. Because neither of the court's comments prejudiced defendant, we reject defendant's contentions.
1. Defendant was not prejudiced by the trial court's use of the phrase "heat of sudden passion"
Defendant takes issue with the court's use of the phrase "heat of sudden passion" when asking the jury how it could help resolve the jury's deadlock, and explaining to the deadlocked jury the law regarding provocation and heat of passion. According to defendant, the description suggested that his passion could cool during the time he went home to retrieve his gun. Defendant argues the prosecutor "exploited" this error by arguing during supplemental argument that defendant's passions had cooled before he returned to the fight scene and shot the victim.
The People contend defendant forfeited the issue by failing to object in the trial court. Given that defendant is arguing the trial court improperly stated the law in its instructions, we shall proceed to the merits. (People v. Hudson, supra, 38 Cal.4th at pp. 1011-1012 [the rule of forfeiture does not apply if an instruction was an incorrect statement of the law].)
To the extent the court's comments can be considered as instructing the jury regarding heat of passion, they were an incomplete description of the law. As previously discussed, heat of passion may arise from a "sudden quarrel or a series of provocative acts over a long period of time." (People v. Wright, supra, 242 Cal.App.4th at p. 1481, italics added.) However, defendant was not prejudiced under either the Chapman or the Watson standard because there was no evidence that the victim had provoked defendant prior to the incident. (See Chapman v. California (1967) 386 U.S. 18, 23-24 [17 L.Ed.2d 705, 710-711] and People v. Watson (1956) 46 Cal.2d 818, 836.) Defendant testified that he had only met the victim one other time, and that was approximately one year before the shooting. There was no evidence that the victim provoked defendant during that visit or at any other point before the day of the shooting.
Despite defendant's contentions, we do not conclude that the jury would have misapplied the instruction based on the prosecutor's argument that defendant had cooled down when he decided to return home, obtain his gun, and then return to the fight. Assuming the jury agreed with this argument, it would have determined that heat of passion was inapplicable because defendant had regained his reason, not because it was confused about whether a series of acts constituted sufficient provocation. We further note that the jury had already been properly instructed pursuant to CALCRIM No. 570 regarding the definition of a cooling off period. Under the circumstances, we find the trial court's error harmless.
The relevant portion of the instruction reads: "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."
2. Defendant was not prejudiced by the trial court's erroneous explanation that heat of passion and imperfect self-defense operate to negate the intent to kill
Defendant next argues the trial court erred in telling jurors that heat of passion and imperfect self-defense operate to "take[ ] away the intent to kill." As discussed ante, during deliberations the jury sent the court a noted stating: "We are stuck on moving the agreed upon charge down due to provocation or letting the change stand. This one point is where the majority of [today] has been spent in deliberation. How do we proceed[?]"
The court addressed the jury the following morning. With counsel present, the court confirmed with the jury that the issue it was struggling with was heat of passion and not imperfect self-defense. The court then explained there are two possible theories for voluntary manslaughter and stated, "Both of them involve something that takes away the intent to kill." (Italics added.) The court went on to explain imperfect self-defense, and thereafter stated: "The other way you can get to voluntary manslaughter is that there was no intent to kill, because at the time of the action the defendant was acting under the heat of sudden passion." (Italics added.) After the supplemental instruction on initial aggressor, discussed ante, and supplemental argument by counsel, the jury resumed deliberations and returned their verdict later that day.
While we address imperfect self-defense post, we focus our analysis primarily upon heat of passion because the jury expressly informed the trial court that it was this theory upon which it was deadlocked.
Defendant argues the jury would have understood the trial court's explanation as instructing that only express malice could be negated by heat of passion or imperfect self-defense. He reasons that it is likely the jury found the shooting to be accidental, since it found the firearm discharge allegation to be not true. He argues that the trial court's comments likely misled the jury into believing that heat of passion and imperfect self-defense could not negate implied malice because intent to kill is not required for that form of malice. Defendant argues the court's comments indicated that heat of passion operates only when there is an intent to kill and that there would be no reason for the jury to believe the People had the burden of proving an unintentional killing was not done in the heat of passion.
At oral argument, the Attorney General conceded that the jury's finding on the enhancement meant that the jury "believed appellant's testimony that the shooting was not intentional."
The People concede the error but argue defendant forfeited his arguments by failing to object during trial and, in any event, the court's error was harmless. As we will explain, we conclude the error was harmless.
Under section 1259, an appellate court may "review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby." An instructional error affects a defendant's substantial rights only if it is reasonably probable that the defendant would have obtained a more favorable outcome absent the error. (People v. Elsey (2000) 81 Cal.App.4th 948, 953, fn. 2; see People v. Shoals (1992) 8 Cal.App.4th 475, 490-491 [claim of instructional error pertaining to the elements of the crime is not forfeited by the failure to raise the issue in the trial court].)
The court's explanation that heat of passion and imperfect self-defense "take away" the intent to kill was incorrect. Those theories do not take away or negate intent to kill. "Either an intent to kill or a conscious disregard for life is an essential requirement of voluntary manslaughter . . . . [Citations.]" (People v. Genovese (2008) 168 Cal.App.4th 817, 831.) However, heat of passion and imperfect self-defense negate malice, both express and implied. (People v. Lasko (2000) 23 Cal.4th 101, 104 [sudden quarrel/heat of passion]; People v. Blakeley, supra, 23 Cal.4th at p. 85 [imperfect self-defense].) Regarding heat of passion, our high court made clear: "When a killer intentionally but unlawfully kills in a sudden quarrel or heat of passion, the killer lacks malice and is guilty only of voluntary manslaughter. We hold here that this is also true of a killer who, acting with conscious disregard for life and knowing that the conduct endangers the life of another, unintentionally but unlawfully kills in a sudden quarrel or heat of passion." (Lasko, at p. 104, some italics added.)
A trial court that seeks to clarify instructions or explain the law must do so correctly. (See People v. King (2010) 183 Cal.App.4th 1281, 1316 ["A court may only instruct as to correct statements of the law"].) Here, if the trial court was going to explain how heat of passion or imperfect self-defense operate to reduce murder to voluntary manslaughter, the trial court should have told the jury that those circumstances negate both express and implied malice and that voluntary manslaughter could be based on intent to kill or conscious disregard for human life. By instructing the jury that heat of passion and imperfect self-defense take away intent to kill, the trial court effectively took the option of voluntary manslaughter based on conscious disregard for human life off the table.
The People argue the error was harmless because "the jury was properly instructed on both theories of voluntary manslaughter, and it is not reasonably probable the jury would have interpreted the court's statements in the manner [defendant] suggests." Looking to the instructions as a whole, the People argue "the jury would have properly understood that murder can be reduced to voluntary manslaughter regardless of whether the killing was committed with express or implied malice." The People point out that CALCRIM Nos. 570 (heat of passion) and 571 (imperfect self-defense) indicate that murder is reduced to voluntary manslaughter if the defendant killed in the heat of passion or if he killed while acting in imperfect self-defense and neither of these instructions "distinguished between whether the killing was intentional or whether it was committed with express or implied malice."
We conclude the instructional error was harmless for other reasons. We review the trial court's error concerning the instructions for voluntary manslaughter under the Watson standard. (See Beltran, supra, 56 Cal.4th at p. 955; People v. Lasko, supra, 23 Cal.4th at p. 111.) Under that standard, " 'a defendant must show it is reasonably probable a more favorable result would have been obtained absent the error.' " (Beltran, at p. 955.) "[T]he Watson test for harmless error 'focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.' " (Beltran, at p. 956; People v. Moye (2009) 47 Cal.4th 537, 556 (Moye).)
As for heat of passion, we conclude that the evidence does not show defendant actually acted because of heat of passion and thus it is not likely a reasonable jury would have convicted him of voluntary manslaughter under this theory. The heat of passion theory for voluntary manslaughter has both an objective and a subjective component. (Moye, supra, 47 Cal.4th at p. 549.) To satisfy the objective component, the defendant's heat of passion must be due to sufficient provocation. (Ibid.) However, to reduce a killing that would otherwise be murder to voluntary manslaughter, the killer must also " 'actually, subjectively, kill under the heat of passion.' " (People v. Rountree (2013) 56 Cal.4th 823, 855; Moye, at p. 550; People v. Manriquez (2005) 37 Cal.4th 547, 584; see also People v. Enraca (2012) 53 Cal.4th 735, 759 [" 'the accused must be shown to have killed while under "the actual influence of a strong passion" induced by such provocation' "].) On this issue, we look to defendant's testimony because his voluntary manslaughter claim is based primarily, if not exclusively, on his testimony.
Defendant testified that as he was leaving his house to buy more cocaine, he opened his front door and heard someone say, "Fuck that ['N' word]. Get that ['N' word]. White boy is going to fucking beat this ['N' word's] ass today." Under the circumstances here, these words could not be sufficient provocation for heat of passion because they were not directed toward defendant. Indeed, defendant never actually said he heard the victim utter this set of epithets. And according to defendant's own testimony, his reaction to these words was merely to rush out and ask, "Hey, what the fuck is going on?"
Defendant testified on direct examination that upon leaving his house and observing three men in the street, he believed a two-on-one fight was taking place. However, on cross-examination, he testified that it was clear at that point the fight was between Greg and Gary. Either way, defendant was not part of it. According to defendant, all he did at that point was attempt to break up the fight. He said he was trying to be a mediator. Thus, nothing provoked defendant as of this point.
Defendant testified that he got between Gary and Greg. It was at that point that the asserted provocation took place. According to defendant, the victim told defendant, "Get the fuck out of here, ['N' word]. It's not your fucking fight." Defendant testified that at that moment he became angry because he considered the statement the victim made to be "fighting words." Defendant testified he immediately responded, "What the fuck? Say it again. Are you talking to me?" Defendant testified that the victim was backing up at the time. Defendant then stepped up to the victim and said, "Well, tell me that to my face." He testified that the victim responded, "You fucking ['N' word], it ain't your fucking fight," and the victim then tried to push by him, swinging a chain with a lock in one hand and holding "something silver" that was "sharp" in the other. Defendant tried to hold the victim back, and the victim slashed him twice, causing two lacerations to the web of defendant's right hand. Thereafter, the victim moved back and defendant moved with him.
Defendant testified that being slashed by the victim made him angry. He wanted to "get even." After being cut, defendant said, "This is how we are doing it. We are bringing it with weapons." However, instead of getting even, defendant testified that he told Greg, "Come on, let's go," and, "Let's just get out of here," because he feared for their safety. Defendant testified, "Greg shrugs me off" and then he left the scene to return to his home. Defendant testified he was angry at that point. He further testified that as he walked to his house, Ava joined him and asked him not to hurt the victim, and it was then that he thought back to the time 15 months earlier when he "first heard them talking about [the victim] not liking African-Americans," and "[e]verything triggered from there, from that point." However, defendant did not explain what was triggered or how that thought affected him. In fact, he testified that when he walked into his house, he had no plans on what he would do next.
Defendant testified that after he entered his house, he thought of Greg still being outside. Defendant testified that he then "made a conscious decision to grab something and go and help to protect Greg," so he grabbed his pistol. Thus, according to defendant, he went back outside because he thought Greg was in danger. Defendant did not testify that when he entered the house or while he was inside he was angry about the victim's racial epithets. And he did not testify that he went back outside to get even for the injury allegedly inflicted to his hand or because of the victim's racial epithets. Rather, his testimony established that he went back outside to protect Gary, not because he was acting under the heat of passion provoked by the victim's alleged assault or racial epithets.
As defendant approached, he told Gary and the victim to leave. Both Gary and the victim backed up, the victim backing up further. Defendant explained his "sole purpose" in coming out with the gun was to get everyone to leave. Thus, defendant's self-proclaimed sole purpose established that he was acting at this point because of something other than heat of passion provoked by the victim's alleged assault or racial epithets.
Defendant testified that as he walked up, he racked the weapon to show everyone he had a gun because he wanted them to leave, not because he wanted to hurt anybody. As he walked up to the victim, defendant held the gun so the victim could see it. The victim said, "It's not even your fucking fight," and defendant replied, "Get the fuck out of here." Again, defendant's conduct here, according to his own testimony, indicates his motive was to get them to disperse. He did not say he was angry at the victim. He did not say he approached the victim to get even. While he chambered a round, he said he did not want to hurt anybody. According to defendant, he simply wanted everyone to leave.
Defendant testified that after the victim said, "It's not even your fucking fight," and defendant replied, "Get the fuck out of here," the victim tried to push past defendant so defendant grabbed him to prevent him from going toward Greg. Defendant testified that, at that moment, it dawned on him that the victim could stab him, so defendant hit the victim in the face "as hard as possible" with the hand holding the gun. Defendant testified, "My thing is to hit him as hard as I could so that he don't stab me again." He further testified, "Either I get stabbed or I get hit with this lock or I swing and get him first." He testified he did not intend to shoot the victim. Defendant was asked, "What did you mean to happen when you swung your right hand?" Defendant responded, "To knock him out." When asked why he wanted to knock the victim out, defendant responded, "Because I didn't want him to cut me." Thus, defendant did not testify that he hit the victim out of anger. He did not testify that he hit the victim because of the racial epithets or the alleged earlier assault with a sharp object.
Defendant's own testimony establishes that at every key moment, defendant was either acting out of concern for Greg's safety or his own safety or to get everyone to leave the area. The evidence does not support a finding that at the moment he hit the victim, he was acting out of heat of passion caused by any provoking conduct by the victim. (See Moye, supra, 47 Cal.4th at pp. 553-554, 556-558 [trial court did not err in rejecting heat of passion instruction where the defendant's own testimony established he did not act under the heat of passion, but used bat defensively to allegedly fend off the victim's attack; assuming arguendo the failure to give the instruction was error, the error was harmless under Watson for the same reason and because having rejected the defendant's imperfect self-defense claim, it was not reasonably probable the jury would have found the requisite objective component of a heat of passion defense either].)
Having considered whether the evidence supporting the existing judgment is "so relatively strong," and "the evidence supporting a different outcome is comparatively weak," we do not believe there is a reasonable probability that defendant would have achieved a more favorable result in the absence of the trial court's erroneous comments relative to heat of passion. (See generally Beltran, supra, 56 Cal.4th at pp. 955-956; Moye, supra, 47 Cal.4th at p. 556.)
With respect to imperfect self-defense, it is also not reasonably probable that the jury was influenced by the court's erroneous comments because, as we have noted, the jury indicated in its initial note to the court that it was "stuck on . . . provocation," rather than imperfect self-defense. When the court subsequently asked the jury foreperson to clarify whether the jury's issue was "manslaughter based upon heat of sudden passion as opposed to manslaughter by way of imperfect self-defense," the jury foreperson confirmed the issue was "[p]rovocation." Based on this, it is clear the jury had already rejected imperfect self-defense. Moreover, the evidence did not support defendant's contention he had been assaulted with a sharp object by the victim. No such object was found and an investigator testified that defendant's hand injury could have been caused by the defendant's gun during discharge. The victim did have a Leatherman multi-tool on his person, but it did not have defendant's DNA on it, and defendant testified it was not the instrument with which he was slashed. More importantly, defendant was not under any imminent threat when he went back into his house. To the extent that it is believable the victim had some other sharp instrument, when defendant left his house and returned to the victim, he put himself in a position where that instrument could be used against him. Thus, because the foreperson's communication with the court indicated the jury was not hung on imperfect self-defense, and because the evidence reflected by defendant's own testimony did not support imperfect self-defense, we conclude the trial court's instructional error was harmless as to that theory of voluntary manslaughter as well.
III
During her original rebuttal argument, the prosecutor illustrated heat of passion by describing a prior case she had tried, involving a father coming home from work who realized that his young daughter had been killed by a suspected drunk driver while she was riding her tricycle near their home. Defense counsel initially objected to this illustration, but the trial court allowed it. The prosecutor explained that the father had "lost it" and broke the driver's neck. The prosecutor continued: "When you look at what that man went through and when the law gives you the defense of heat of passion and provocation, that is the scenario where provocation and heat of passion fits. [¶] When the law talks about you are under the influence of that intense emotion, that all judgment is gone, and you act rashly. Because of that intense emotion, that is when heat of passion and provocation fits. [¶] This is not the case. The Defendant --"
Defense counsel interjected: "I object on grounds that this is not the only possible way to get heat of passion." The trial court overruled the objection. The prosecutor resumed her argument: "The Defendant's own testimony was that he told Greg, 'Let's go.' He walked away. He walked away, walked back to his house. He is not under the influence of that intense emotion taking away all judgment and acting rashly. That is not the case. [¶] As offensive as that word is, this is not a case where heat of passion and provocation fits. You must be so encompassed by that intense emotion that all judgment is gone. And it is the average person's standard. The law is consistent."
According to defendant, the prosecutor misstated the law during this description by telling jurors that heat of passion only exists when "intense emotion 'tak[es] away all judgment' such that 'all judgment is gone.' " Defendant further argues the prosecutor improperly used an "extreme hypothetical" to make her argument. Defendant claims the prosecutor then improperly argued that defendant could not claim that he was acting under the heat of passion when he killed the victim because he "displayed some judgment" during the incident, including when he told Greg to leave as he was walking away from the fight. The People contend defendant failed to object to this description and preserve the issue on appeal. Regardless, we reject defendant's contentions.
When a defendant claims prosecutorial misconduct based on the prosecutor's comments before the jury, " ' "the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." ' " (People v. Friend (2009) 47 Cal.4th 1, 29.)
As previously discussed, heat of passion applies when, at the time of the killing, the defendant's reason was so obscured by passion or emotion that an ordinarily reasonable person in the defendant's position would have acted " ' "rashly or without due deliberation and reflection, and from this passion rather than from judgment." ' " (Breverman, supra, 19 Cal.4th at p. 163.) This language is included in CALCRIM No. 570, which was given to the jury by the court and also discussed by defense counsel during supplemental argument. The jury was also instructed regarding sufficient provocation pursuant to CALCRIM No. 522. Moreover, the jury was instructed that it had to follow the law as explained by the court, even if the attorney's comments were in conflict. (CALCRIM No. 200.) In the absence of any evidence of confusion on the part of the jury, "[j]urors are presumed able to understand and correlate instructions and are further presumed to have followed the court's instructions." (People v. Sanchez (2001) 26 Cal.4th 834, 852; People v. Osband (1996) 13 Cal.4th 622, 717 [" '[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' "].) Thus, while the prosecutor's description did not include the exact phrasing from CALCRIM No. 570, it is not reasonably likely that the jury understood her remarks as defendant contends. Under the circumstances, we find defendant's contentions without merit.
IV
Defendant next argues the trial court erred in instructing the jury with CALCRIM No. 3471 (right to self-defense: mutual combat/initial aggressor) and 3472 (contrived self-defense).
The jury was instructed with CALCRIM No. 3471 as follows: "A person who engages in mutual combat or starts a fight has a right to self-defense only if: [¶] One, he actually, in good faith, tried to stop fighting; [¶] And, two, he indicated by word or by conduct to his opponent in a way that a reasonable person would understand that he wanted to stop fighting and that he had stopped fighting. [¶] If the Defendant met these requirements, then he had a right to self-defense if the opponent continued to fight. [¶] However, if the Defendant used only nondeadly force and the opponent responded with such sudden and deadly force that Defendant [] could not have withdrawn from the fight, then the Defendant had the right to defend himself with deadly force and was not required to stop fighting or to communicate the desire to stop to the opponent. [¶] A fight is mutual combat when it began or continued by mutual consent or agreement. That agreement may be expressly stated or implied and must occur before the claim to self-defense arose."
CALCRIM No. 3472 was given as follows: "A person does not have the right to self-defense if he or she provoked a fight or quarrel with the intent to create an excuse to use force."
1. CALCRIM No. 3471
According to defendant, CALCRIM No. 3471's phrase a "person who . . . starts a fight" is vague and overbroad and fails to convey the idea that the initial assailant cannot claim self-defense. Despite the fact that the jury was instructed pursuant to CALCRIM No. 3471 that a person who starts a nondeadly fight has a right to self-defense, defendant argues the instruction denies the right to self-defense to someone who merely causes the underlying dispute or initiates hostilities. According to defendant, such an interpretation is contrary to section 197 because self-defense is only unavailable to an "assailant," i.e., someone who commits a felonious assault. Defendant further argues the jury was more likely to misapply CALCRIM No. 3471 because the prosecutor said during closing argument, "[I]f [defendant] provokes a fight and he create[s] that situation, no self-defense is available to him."
During closing argument, the prosecutor also argued that defendant had no right of self-defense because defendant "went to the victim, not once but twice. . . . [¶] . . . [¶] Where the Defendant creates a situation -- there's actually a law on that -- creates this need to use force, self-defense is not available. Again, common sense. When you go up to somebody who he says cut him a minute before, you are creating a situation. All right? All of these have to be present for self-defense or defense of others to apply. [¶] . . . [¶] Now, this is what I was telling you about if the Defendant is the one who starts the fight, if he provokes somebody into the creation -- he creates a situation where he has to use lethal force, self-defense does not apply. Again, that's just common sense. If you create the situation, if you go towards somebody in an aggressive manner, you are creating a situation, and self-defense does not apply. [¶] If Defendant started a fight, this is what we call an 'initial aggressor' or 'mutual combat.' If you start a fight or you are in mutual combat -- you are like Greg and Gary -- if you both are involved in the fight and you are withdrawing, you are stopping the fight, you have to, by word or conduct, let your opponent know that you are stopping the fight, like saying, 'Hey, it's over' or 'Back it up," whatever. If you are the initial aggressor, unless you do something like that, no self-defense. Again, that obviously is just common sense. [¶] If he provoked the fight or quarrel with the intent to create an excuse to use force, he provoked it. He went to [the victim]. He said he had the gun. If he is so afraid of that knife, got cut again, as he said, why would he go towards the victim? So if he provokes a fight and he create[s] that situation, no self-defense is available to him."
The prosecutor continued: "The law also provides for imperfect self-defense and defense of others, and what the law says is he actually believed or feared that Greg was in imminent danger of being killed or great bodily injury. He actually believed that the immediate use of force was necessary to defend against that danger, but at least one of those beliefs was unreasonable. [¶] Again, the defense does not apply if the Defendant, through his own wrongful conduct, has created circumstances that justify his adversary's use of force. Again, if you create the situation wherein your adversary has to use force, you do not get this defense."
Because defendant objected to giving CALCRIM No. 3471 and now contends the instruction was vague and misstated the law, we reject the People's argument that defendant has forfeited the issue on appeal. Regardless, we find defendant's contentions without merit.
Homicide is justifiable when committed in lawful self-defense, but if the defendant "was the assailant or engaged in mutual combat, [he] must really and in good faith have endeavored to decline any further struggle before the homicide was committed." (§ 197, subd. (3).) As courts have further explained, imperfect self-defense is available to a defendant " 'when the victim's use of force against the defendant is unlawful, even when the defendant set in motion the chain of events that led the victim to attack the defendant.' " (People v. Ramirez (2015) 233 Cal.App.4th 940, 947.) However, a defendant has no right to claim self-defense if he contrives a deadly assault, because the victim is entitled to use deadly force in response. (Ibid.)
We find no reasonable likelihood that jurors understood the instructions regarding mutual combat/initial aggressor in the way defendant asserts. The jury was instructed pursuant to CALCRIM No. 3471 that, if the jury found that "Defendant used only nondeadly force and the opponent responded with such sudden and deadly force that Defendant [] could not have withdrawn from the fight, then the Defendant had the right to defend himself with deadly force and was not required to try to stop fighting or to communicate the desire to stop to the opponent." (See People v. Carey (2007) 41 Cal.4th 109, 130 [we presume the jurors understood, correlated, and correctly applied the instructions].)
We are similarly not persuaded that the jury was reasonably more likely to misapply the instruction based on the prosecutor's closing argument. Although the prosecutor may not have explained every nuance of self-defense and its application to initial aggressors, she made her comments in the context of her factual argument that defendant had created the situation when he returned to the scene with his gun: "He went to [the victim]. He said he had the gun. If he is so afraid of that knife, got cut again, as he said, why would he go towards the victim? So if he provokes a fight and he create[s] that situation, no self-defense is available to him."
Moreover, the prosecutor acknowledged that defendant would have had the right to "use some level of force," if the victim had actually cut him during their first encounter. But, argued the prosecutor, defendant could not claim self-defense because he left the scene and returned, despite there being no evidence of further danger, especially since the victim did not chase after him.
Finally, we note that the jury was further instructed pursuant to CALCRIM No. 200 that it had to follow the law as explained by the court, even if the attorney's comments were in conflict. (See also People v. Osband, supra, 13 Cal.4th at p. 717 ["[w]hen argument runs counter to instructions given [to] a jury, we will ordinarily conclude that the jury followed the latter and disregarded the former"].) Under the circumstances, we find no error.
2. CALCRIM No. 3472
Defendant argues there was no factual basis for instructing the jury with CALCRIM No. 3472, which was given at the prosecutor's request and over defense counsel's objection. According to defendant, he was "responding lawfully to the scene of an unlawful public disturbance to demand that the participants cease and disperse." He further argues there was no evidence that he "provoked a fight or quarrel with the 'intent' to create an 'excuse' to harm anyone."
During defendant's first attempt to intervene in the fight between Greg and Gary, defendant was angry as he walked over to the victim to confront him about the racial epithets. The victim, who was smaller than defendant, began backing up. When the victim tried to get past defendant, defendant reached out to hold the victim back. The jury could reasonably have interpreted defendant's actions as starting a physical altercation by assaulting the victim.
The jury also could reasonably have interpreted defendant's actions when he returned with a gun as starting a physical and potentially lethal altercation with the victim. As defendant was backing up, defendant racked his gun and "show[ed] it off." Defendant walked "fast" toward the victim and yelled at him, even though the victim was still backing up. Defendant grabbed the victim as he again tried to pass by, and then shot him. As there was sufficient evidence to support giving the instruction, the court did not err in giving it. (See People v. Ross (2007) 155 Cal.App.4th 1033, 1049-1050 ["[a] party is entitled to a requested instruction if it is supported by substantial evidence"].)
V
Defendant next argues that the trial court erred in instructing the jury with CALCRIM No. 361 (failure to explain or deny adverse testimony), as follows: "If the Defendant failed in his testimony to explain or deny evidence against him and if he could reasonably be expected to have done so based upon what he knew, you may consider his failure to explain or deny in evaluating that evidence. [¶] Any such failure is not enough by itself to prove guilt. The People must still prove the Defendant guilty beyond a reasonable doubt. [¶] If the Defendant failed to explain or deny, it's up to you to decide the meaning and importance of that failure." According to defendant, the evidence was not sufficient to support the instruction.
1. Additional background
During the hearing on jury instructions, defense counsel objected to giving CALCRIM No. 361, arguing defendant had not failed to explain or deny anything. The prosecutor argued the instruction should be given based on the following issues that defendant failed to explain: (1) defendant left the scene, though he allegedly did nothing wrong; (2) defendant testified he cradled the gun in his palm, but carried it across the street, racked it, and fired it without it falling out of his hand; (3) he testified he had trouble walking, yet after the shooting he walked all the way to the high school without his cane or walker; (4) he hid at the high school for several hours, stayed at a motel, and then went to San Francisco, though he asserted that he had done nothing wrong; (5) he discarded his phone and obtained a new one that could not be tracked, even though he had done nothing wrong. The trial court agreed that defendant never explained how he fled to the high school without using a walker or a cane, despite testifying that he needed one of them to walk distances, and decided to give the instruction. The trial court further reasoned that "[t]here is a jury instruction that tells the jury that not all of the jury instructions are necessarily applicable, depending upon their finding of the facts. It would be up to them to find whether or not the Defendant failed in his testimony to explain or deny evidence against him."
2. Analysis
The trial court may instruct the jury with CALCRIM No. 361 "only when a defendant completely fails to explain or deny incriminating evidence, or claims to lack knowledge and it appears from the evidence that the defendant could reasonably be expected to have that knowledge." (Cortez, supra, 63 Cal.4th at p. 117.) Testimony that "conflicts with other evidence or may be characterized as improbable, incredible, unbelievable, or bizarre" does not alone warrant giving the instruction, because it is "not . . . 'the functional equivalent of no explanation at all.' " (Ibid.) When reviewing the correctness of the ruling, we are not limited to the reasons the court gave during trial. (People v. Zapien (1993) 4 Cal.4th 929, 976 [we must uphold a decision that is correct under the law applicable to the case, even if the trial court gave a wrong reason].)
In Cortez, the defendant was charged with murder and attempted murder for her role in driving a car used by the shooter and his companion in a gang encounter. (Cortez, supra, 63 Cal.4th at p. 105.) The defendant testified that she was an innocent participant. (Id. at p. 109.) However, she also said she did not know why the shooter got out of the car, what had happened, where the gunfire came from, how a bullet ended up on the floorboard of her car, and whether the shooting was related to gang activity. (Id. at p. 121.) Reasoning that "there was ample evidence that [the] defendant 'could reasonably be expected to know' these facts or circumstances," the court upheld the trial court's use of CALCRIM No. 361. (Id. at pp. 121-122.) "The instruction acknowledges to the jury the 'reasonable inferences that may flow from silence' when the defendant 'fail[s] to explain or deny evidence against him' and 'the facts are peculiarly within his knowledge.' [Citation.]" (Id. at p. 117.)
Similarly here, in addition to failing to explain why he left his cane and walker at home when he fled to the high school, defendant failed to explain key details about what happened during the shooting. He testified that he slapped the victim's face with the side of the gun, with the muzzle turned away from the victim. He denied that the gun turned, but he failed, in response to a series of questions, to explain how the victim was shot in the left cheek. Given that defendant was holding onto both the gun and the victim, it is reasonable to expect him to know this fact. Defendant's failure to offer an explanation on these key points was sufficient to warrant giving CALCRIM No. 361.
VI
Defendant next contends the trial court erred in failing to instruct on involuntary manslaughter as a lesser included offense to murder. According to defendant, the evidence supported a finding that the gun discharged accidentally when he (1) brandished it or, in the alternative, (2) used it to hit the victim. Defendant argues it is reasonably likely the jury would have settled on involuntary manslaughter. Defendant points to the jury's rejection of the firearm discharge allegation as evidence that the jury found the shooting was unintentional.
1. Additional background
Defense counsel requested an instruction on involuntary manslaughter based on the theory that defendant used the gun as a blunt force object to assault the victim. Defense counsel further argued this was a noninherently dangerous felony. The court disagreed, noting that defendant had loaded the firearm and chambered a round.
2. Analysis
A trial court must instruct on "all lesser necessarily included offenses supported by the evidence." (Breverman, supra, 19 Cal.4th at pp. 148-149.) The sua sponte duty arises when there is substantial evidence that the defendant committed the lesser offense instead of the greater offense. (Id. at p. 162.) " 'Substantial evidence' in this context is ' "evidence from which a jury composed of reasonable [persons] could . . . conclude[ ]" ' that the lesser offense, but not the greater, was committed." (Ibid.) Courts considering whether there is substantial evidence of a lesser offense must avoid weighing the evidence evaluating the credibility of witnesses. (Id. at pp. 162, 177.) A reviewing court must resolve doubts regarding the sufficiency of the evidence to warrant an instruction in a defendant's favor. (People v. Tufunga (1999) 21 Cal.4th 935, 944.) We review de novo a trial court's refusal to instruct on a lesser included offense. (People v. Manriquez, supra, 37 Cal.4th at p. 584.)
Involuntary manslaughter is a lesser included offense of murder and can include a killing without malice "in the commission of an unlawful act, not amounting to a felony." (§ 192, subd. (b); People v. Thomas (2012) 53 Cal.4th 771, 813 (Thomas).) The misdemeanor of brandishing a weapon is committed when a person draws or exhibits any firearm, in the presence of another person, "in a rude, angry, or threatening manner." (§ 417, subd. (a)(2).) Courts have held that an "accidental shooting that occurs while the defendant is brandishing a firearm in violation of section 417 could be involuntary manslaughter." (Thomas, at p. 814.)
Involuntary manslaughter also can be established by an unlawful killing in the course of an inherently dangerous assaultive felony without malice. (People v. Brothers (2015) 236 Cal.App.4th 24, 33-34.) Accordingly, a trial court must instruct on involuntary manslaughter when a "rational jury could entertain a reasonable doubt that an unlawful killing was accomplished with implied malice during the course of an inherently dangerous assaultive felony." (Id. at p. 34; see also People v. Vasquez (2018) 30 Cal.App.5th 786, 794 ["an instruction on involuntary manslaughter is required whenever there is substantial evidence indicating the defendant acted without conscious disregard for human life and did not form the intent to kill"].)
However, we note that "[a]n unintentional shooting resulting from the brandishing of a weapon can be murder if the jury concludes that the act was dangerous to human life and the defendant acted in conscious disregard of life." (Thomas, supra, 53 Cal.4th at pp. 814-815.) We conclude that to the extent the evidence was sufficient to require an instruction on involuntary manslaughter under either the brandishing or dangerous assaultive felony theories, any error in failing to give that instruction was harmless. "The failure to instruct on a lesser included offense in a noncapital case does not require reversal 'unless an examination of the entire record establishes a reasonable probability that the error affected the outcome.' " (Thomas, at p. 814.) Again, " '[s]uch posttrial review focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.' [Citation.]" (Ibid.)
Here, the evidence supporting the jury's verdict of second degree murder was compelling. It is reasonable to conclude the jury did not believe Ava's testimony that defendant pointed the gun at the victim's cheek and shot him. But even if the jury credited defendant's testimony that he only hit the victim in the face with the gun and did not intend to shoot him, the evidence strongly supported a conclusion that defendant acted with implied malice. Defendant knew the gun was loaded with the safety off and a round in the chamber when he used it to hit the victim in the face, a particularly vulnerable part of the body. (See People v. Park (2003) 112 Cal.App.4th 61, 69 [a person's head is an "extremely vulnerable" part of the body].) Defendant, who was over six feet tall and weighed 250 pounds, testified he hit the victim "as hard as possible," with the goal of knocking him out. He also testified on direct examination that the barrel of the gun hit the left side of the victim's face (though defendant's testimony changed on cross-examination). Based on the evidence, a reasonable jury would likely have inferred that defendant acted in conscious disregard of human life, especially since defendant acknowledged that, at that point, "all of the steps to prohibit a firing of the gun ha[d] been taken away."
VII
Defendant contends the trial court erred in sustaining the prosecutor's objection to defense counsel's description of the victim as an aider and abettor to the fight. According to defendant, his counsel properly stated the law, and the trial court's decision prevented defendant from refuting the prosecutor's inaccurate description of the victim as an "uninvolved" and "innocent" person.
1. Additional background
During closing argument, the prosecutor argued defendant had inserted himself into a fight that was already "simmering down." Defendant got angry and shot a man who was nowhere near Greg or otherwise involved in the fight, except to the extent he was "running his mouth." At one point, the prosecutor described the victim as "innocent man" entitled to self-defense. The prosecutor acknowledged the victim had used "offensive" words, but reminded the jury that the law "applies equally" to everyone, whether he is a "good guy or not."
Defense counsel argued: "[T]here's a debate about 'involved.' How is [the victim] involved? [¶] Some people say the only way to be involved in a fight is to be physically involved. So instead of it being a one-on-one, Greg and Gary, it would be a two-on-one against Greg. [¶] Other people would say, 'Well, "involved" is the person who is doing the egging on.' [¶] If somebody says, 'Go do this, punch him, hit him, shoot him,' that's aiding and abetting. That's encouraging somebody to do something. [¶] So [the victim] is involved if he is on the sidelines, egging --"
The prosecutor objected, arguing defense counsel had misstated the law, and the trial court agreed. Defense counsel continued: "[The victim], while he is on the sidewalk or as some people put him into the street, can be involved either physically or he can be involved by saying words of encouragement, telling Gary to 'Rush him' or 'Get that ["N" word].' Any of these things is being involved in the fight. [¶] So [the victim's] ugly words turned this from an ordinary incident into a racial incident. It takes it from an ordinary man versus man and brings in a whole new thing. It's basically white-on-black at this point in time."
2. Analysis
Defense counsel's statement to the jury that someone who says, " 'Go do this, punch him, hit him, shoot him,' " is an aider and abettor, in effect provided the jury with a legal definition of the phrase. Arguments that involve legal questions such as alleged misstatements of the law are subject to de novo review. (People v. McDonald (2013) 214 Cal.App.4th 1367, 1379.)
"[U]nder the general principles of aiding and abetting, 'an aider and abettor [must] act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.' [Citation.]" (People v. Prettyman (1996) 14 Cal.4th 248, 262.) A person who "aids and abets the commission of a crime is a 'principal' in the crime, and thus shares the guilt of the actual perpetrator." (Id. at p. 259.)
Defense counsel's description omitted the knowledge and intent components of aiding and abetting, rendering the statement incomplete and incorrect. (See People v. Beeman (1984) 35 Cal.3d 547, 559 [a jury may not be instructed that the law "conclusively presumes the intention of the accused solely from his or her voluntary acts," such as yelling encouraging words at someone committing a criminal act, because such an instruction would " ' "effectively eliminate intent as an ingredient of the offense" ' "].) By presenting an incomplete definition, defense counsel misstated the law. Accordingly, we conclude the trial court did not err by sustaining the prosecutor's objection.
VIII
Defendant contends the trial court abused its discretion in excluding evidence regarding a toxicology report indicating the victim had methamphetamine and Valium in his system at the time of the shooting. According to defendant, the evidence was relevant to support his theory that the victim was the aggressor. We agree with the People that the evidence was properly excluded because it had little probative value and a high potential to confuse and mislead the jury.
1. Additional background
Prior to trial, defendant moved to admit the results from an antemortem blood draw from the victim showing he had methamphetamine, amphetamine, and Valium (diazepam and benzodiazepines) in his system prior to his death. Defendant also sought to admit expert testimony regarding the effects of those substances on a person's thinking and behavior. Defendant argued the evidence was relevant because at least three prosecution witnesses (Ava, Gary, and Greg) would testify regarding the victim's behavior and demeanor. The prosecution objected, reasoning the evidence was irrelevant and unhelpful, especially since there was no evidence regarding the victim's prior drug use and his tolerance, or whether the victim had been given the substances at the hospital. The prosecutor further argued the evidence would merely taint the victim due to his methamphetamine use.
During the hearing, the court expressed concern that the expert would only testify as to the general effects of the substances found in the victim's blood based on the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, rather than as to the effects from the specific amounts in the victim's blood. In other words, the opinion would not be based on the specific facts of this case.
The court ultimately excluded the evidence, reasoning that there were already three witnesses who could testify as to the victim's demeanor and behavior during the incident. Defendant's proposed expert would not be able to testify about the meaning and significance of the specific levels of drugs in the victim's blood. The issue here was "what actually happened on the street, not what could happen to someone who had certain drugs in their system."
The court found that the potential for the toxicology evidence to confuse or mislead the jury was "astronomically high," and the probative value was "very, very low." The court explained: "[I]f [the expert] were to testify that someone who took methamphetamine would be overly aggressive but the witnesses show that [the victim] was not overly aggressive, that evidence would not be relevant and it would tend to confuse or mislead the jury. It would also be prejudicial because it would taint him as a drug addict who might be worthy of less protection than someone who is not a drug addict. [¶] In the similar vain [sic], if it appears that someone who took Valium might be inclined to be a more relaxed, calm person, but it turns out that [the victim] actually acted irrationally and acted aggressively based upon the witnesses who would testify as to what he did or did not do on the scene, that testimony that a person would be expected to be calm and cool and collected is directly contrary to what would be in that circumstance directly contrary to the evidence and would tend to confuse or mislead the jury, and, again, serve to taint [the victim] as a person who abuses drugs and may be subject to less protection." For the same reasons, the court found the toxicology report was irrelevant, especially since there would be no expert testimony to explain it.
The issue arose again during trial, when defense counsel asked a prosecution witness whether Ava's house was a place where people would use methamphetamine. The prosecutor objected. Outside the presence of the jury, defense counsel asked the court to reconsider its prior ruling, arguing that the victim's drug use was relevant in considering his behavior. The court reiterated that the victim's actions were relevant, but his intoxication was not because "what caused his words, actions, and demeanor" was not relevant. The court again reasoned that the victim's drug use would not necessarily show whether he was acting aggressively.
Later in the trial, defendant sought to introduce a photo showing that the victim was in possession of pills, again arguing that evidence of the victim's drug use was relevant. The trial court excluded the photograph, reasoning that the victim's pills had a "very small" probative value (especially since it was impossible to tell what kind of pills they were), and a "high" potential for prejudice.
2. Analysis
A trial court may exclude evidence under Evidence Code section 352 where its "probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." We review such rulings for abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 214-215.) The trial court is not required to admit evidence of drug use " 'that merely makes the victim of a crime look bad.' " (People v. Hillhouse (2002) 27 Cal.4th 469, 496.) As courts have explained, "these basic rules of evidence do not violate a defendant's constitutional right to present a defense." (Ibid.)
The trial court did not abuse its discretion in refusing to admit evidence of the victim's toxicology on the day of the shooting and possible side effects because such evidence had minimal probative value. Any such evidence might have explained why the victim was yelling racial epithets and encouraging Gary during the fight. But defendant never claimed that he feared the victim might become violent because he knew or suspected the victim was under the influence. Moreover, evidence of the victim's toxicology would have been cumulative to multiple eyewitnesses who had already testified regarding the victim's behavior throughout the incident. Given that the minimal probative value of the proposed evidence was substantially outweighed by the probability that its admission would unduly consume time, confuse the issues, and mislead the jury, we reject defendant's contentions.
IX
Finally, defendant claims cumulative error. "In examining a claim of cumulative error, the critical question is whether [the] defendant received due process and a fair trial." (People v. Sedillo (2015) 235 Cal.App.4th 1037, 1068.) We find defendant's contentions to be without merit because, whether considered separately or together, the few errors that occurred during trial were inconsequential. (See People v. Hines (1997) 15 Cal.4th 997, 1075.)
DISPOSITION
The judgment is affirmed.
KRAUSE, J. We concur: HULL, Acting P. J. MURRAY, J.