Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Harvey Giss, Judge, Los Angeles County Super. Ct. No. PA044920.
Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
SUZUKAWA, J.
A jury convicted defendant Tu Luong Hua of two counts of first degree murder with special circumstances and use of a firearm. (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(3) [multiple murders], (15) [lying in wait]; 12022.53, subd. (d).) Defendant received two consecutive sentences of life without parole for the murders and two consecutive terms of 25 years to life for the firearm enhancements. Defendant contends on appeal that his taped confession should have been excluded, the prosecutor committed misconduct, his trial counsel was ineffective, and that numerous CALCRIM instructions are erroneous and misleading. We affirm.
All further undesignated statutory references are to the Penal Code.
BACKGROUND
Defendant, who confessed to both killings, did not dispute his identity as the shooter. At about 2 a.m. on July 20, 2003, defendant shot and killed his brother-in-law, Yu Huynh, at the home that Huynh was sharing with defendant. Huynh had raised defendant and provided for him following the deaths of defendant’s father and sister (Huynh’s wife).
Defendant shot the second victim, Stanley Adamakis, at around 4:40 that morning. After shooting Huynh, defendant walked one mile to Adamakis’s apartment, carrying the assault rifle used in both killings. Ana Cortez, who lived in the same complex, was awakened by a loud banging sound and a male voice saying, “Stan, open the door. I need a ride.” About a minute later, Cortez heard several gunshots and called 911. Cortez found Adamakis outside, “lying face down on the ground.”
Officers from the Los Angeles Police Department responded to the 911 call and recovered the assault rifle from “a little cubbyhole” or “crawl space” near Adamakis’s body. The officers were still at the complex when at 7 a.m., defendant placed a 911 call (which was played for the jury) to report a dead body at his home. Defendant told the 911 operator, “I came home and he was laying there, bloody, ” with a “gunshot wound” to the head.
In response to defendant’s 911 call, Officers Kelley and Dameworth left the apartment complex and arrived within minutes at defendant’s home. Defendant informed them “that his brother-in-law had been shot”; “‘[s]omebody shot him. I don’t know. I think it was a robbery.’” According to Kelley, defendant appeared to be walking, standing, moving, and speaking without difficulty.
Defendant told Kelley that four tenants, “two adults and two children, ” were still inside the house. Kelley informed defendant that he was not under arrest, but that he was going to be handcuffed while the officers secured the area. The officers kept an eye on the residence while defendant remained on the tailgate of a pickup truck parked in the driveway. The tenants, who spoke Vietnamese, did not come out despite being told to do so over a police loudspeaker. After about 30 minutes, backup officers arrived and the tenants were escorted outside. Inside the house, Kelley found Huynh’s body on the floor of his bedroom and rifle casings in the adjacent hallway.
In his taped interview, defendant said, “I was going to smoke, you know, the — the two adults and the kids, too, because they’re, you know, they’re nasty people, ” but [t]he door was locked . . . .” Defendant also stated in the taped interview that he thought the tenants had heard the shooting but did not call the police “[b]ecause — uh, uh, they’re probably scared of me. They’re not scared of me. They just — they just don’t — they don’t understand English.” Earlier, defendant had told Officer Ismail that he did not get along with the tenants “because they were very messy.” According to Ismail, defendant had told him the tenants “might have a different story, and that they’re going to tell me that he was taking potshots at them with a rifle.”
The door to defendant’s bedroom was locked, but defendant gave Dameworth the key and stated that he had .223 (rifle) ammunition in his room. After finding the ammunition, Dameworth asked defendant for the weapon that went with the ammunition. Defendant first said “that he hid it somewhere, ” “but it was no longer there.” “Then he said that he had placed it in a gully to the west of his residence in the street, but that it was no longer there either because someone had taken it.” Dameworth looked in the gully but could not find the rifle. During this time, defendant was “cooperative, ” spoke in a “[s]low, deliberate” manner, displayed “[n]o emotion, ” and had a “flat” affect.
According to expert testimony, the ammunition used in the shootings matched the box of Remington .223 cartridges found in defendant’s room.
At 8 a.m., Officer Ismail transported defendant to the station. Ismail asked defendant for his name, address, date and place of birth, phone number, and Social Security number. Defendant provided the above information without difficulty, speaking in a normal, calm manner and showing no signs of being delusional.
At 9 a.m., Detectives Holmes and Martinez conducted a 90-minute interview of defendant at the station. During the interview, which was secretly taped, defendant waived his Miranda rights and confessed to both shootings. The tape of the interview, as well as defendant’s other extrajudicial statements, were admitted at trial over defendant’s objection that he was not given a proper Miranda warning and did not validly waive his rights.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
During the interview, defendant mentioned some possible motives for the killings, including that he had argued with Huynh on the night before the killings and that Huynh had sent him “to the mental hospital” for “just messing around” and “spraying water.” Defendant also accused Adamakis of having sexually abused him for five years.
Defendant, whose urine sample tested positive for methamphetamine and marijuana, told the officers that he had not slept for two days and that he had used methamphetamine and marijuana before the shootings. He also admitted, however, that he “wasn’t that sedated, ” “wasn’t really messed up, ” “wasn’t too high, ” and was not sleepy.
According to Huynh’s girlfriend Diane Fung, defendant had an unidentified illness that was “[l]ike depression” and had often treated Huynh badly. Fung testified that Huynh had tried to take defendant to a doctor but that defendant had refused.
The defense presented no evidence at trial. Defense counsel argued that the killings were second degree, not first degree, murder because, due to defendant’s mental disease and intoxication, he did not premeditate and deliberate before the shootings.
At the prosecution’s request, the trial court instructed the jury on “Voluntary Intoxication: Effects on Homicide Crimes” (CALCRIM No. 625) and “Mental Impairment: Defense to Specific Intent or Mental State” (CALCRIM No. 3428). The jury returned two first degree murder convictions and found the special circumstance and firearm allegations to be true.
DISCUSSION
I. Defendant’s Confession Was Admissible
A. Additional Facts
Detectives Holmes and Martinez began interviewing defendant at the station by asking a few questions to ascertain whether he was “thinking right.” Defendant, who was 24 years old, stated that after high school, he had attended two years of community college. Defendant responded lucidly to questions regarding his location (“At Devonshire, the police station”), home address and zip code, home telephone number, and date of birth (“8-21-78”).
The officers then advised defendant of his Miranda rights. After stating that he understood each of those rights, defendant agreed to discuss what happened “last night.” As summarized below, defendant gave a detailed account of both shootings, but his account was interspersed with references to spooks, which he blamed for what happened, the house, which he said was pulling him around, spiders, weird neighbors, voices, codes, and events unrelated to the killings.
“DETECTIVE HOLMES [DH]: . . . I’m going to give you your rights. We’ll sit down and talk about what’s going on here. You have the right to remain silent. Do you understand? [¶] [Defendant]: Yes. [¶] DETECTIVE MARTINEZ [DM]: What does that mean? [¶] [Defendant]: Huh? [¶] [DM]: What does it mean? [¶] [Defendant]: I have the right to say anything I don’t want to say. [¶] [DH]: There you go. Anything you say may be used against you in court. Do you understand? [¶] [Defendant]: Yes. [¶] [DM]: What does that mean? [¶] [Defendant]: Anything I say could be used against me in court. [¶] [DM]: Right. [¶] [DH]: Okay. You have the right to the presence of an attorney before and during any questioning. Do you understand? [¶] [Defendant]: Can you please repeat that? [¶] [DH]: You have the right to the presence of an attorney before and during any questioning. Do you understand? [¶] [Defendant]: Yes. [¶] [DM]: What does that mean? [¶] [Defendant]: I’m sort a messed up right now. [¶] [DM]: Okay. Take your time. You have the — you have the right to the presence of an attorney before and during any questioning. What that means is if you want a lawyer, you can have a lawyer. [¶] [Defendant]: Okay. [¶] [DM]: And that could be after, before we start talking to you, after we start talking to you, or anything. You got it? [¶] [Defendant]: Yeah. [¶] [DM]: Okay. [¶] [DH]: Okay. So do you understand that? [¶] [DM]: Yes? [¶] [DH]: Yes? [¶] [Defendant]: Yes. [¶] [DH]: Okay. And if you cannot afford an attorney, one will be appointed for you free of charge before any questioning, if you want. Do you understand? [¶] [Defendant]: Yes. [¶] [DM]: Okay. What does that mean? [¶] [Defendant]: Can’t really comprehend right now. [¶] [DM]: Take your time. If you want an attorney, one will be appointed to you free —[¶] [Defendant]: Okay. [¶] [DM] — before any questioning, if you want. A free attorney, that you wouldn’t have to pay for. You got it? Okay. [¶] [DH]: Do you understand that? [¶] [Defendant]: Yes. [¶] [DH]: Okay. Do you want to talk to us about what happen? [¶] [DM]: About why you’re here? [¶] [Defendant]: Yeah. [¶] [DM]: Okay. [¶] [DH]: Okay.”
Regarding Huynh’s death, defendant stated that on the night before the shootings, defendant had argued with Huynh “[o]ver nothing.” “It wasn’t nothing to shoot him for. . . . I dropped a bunch of CDs on the ground. He thought, you know, no big deal. He forgot about it. And I took the gun [from the closet in Huynh’s bedroom] into my room.” Defendant used wire cutters to remove the chain lock from the rifle. The rifle was a “Bushmaster XXM-715, semi-automatic, 223, 10-round clip” that defendant had “beg[ged] my brother [to] buy . . . .” Defendant had “two types of ammo” for the rifle, including “Remington black hills.” Defendant loaded the rifle and at “about 2:00 a.m., ” went to Huynh’s bedroom and “called him.” Huynh, who was “in bed . . . watching TV, ” got up and “walk[ed] to the door.” Before he fired, defendant thought “for like a second” “about everything he’s done for me. And I just said, ‘Later.’ Pretty creepy.” Defendant fired “three shots, ” trying to act “as quickly as possible, painless as possible. I don’t know where I hit him. I saw him flew back, so I just run out the door and f------ left.” Once outside the house, defendant “stuck around the neighborhood, waiting for you guys pick me up, cause I had nowhere to go. I went back to the house. You guys didn’t pick it up yet, you didn’t take out your trash. And then I got freaked out, lock the door. Called my — his girlfriend, hoping she’ll call you guys, because I don’t want nothing do with you guys . . . . You guys don’t come to my rescue.”
Fung testified that defendant had left her a voice mail message in Chinese on the morning of the shootings, telling her that her “boyfriend Huynh is dead. Please come by.”
Regarding Adamakis’s death, defendant stated that after shooting Huynh, he had walked “down the street, sweating my ass off. He needed that. He need that licking.” Defendant walked to Adamakis’s apartment, thinking, “What the hell. If I’m going to shoot my brother, I’m going to shoot this ass hole, too.” “I walked up to his window and knocked on his window. I had it figured out before, you know, I was going to do it.” “I came to his window. I told him to get out. And he wouldn’t come out. He went back to sleep. I told him I need a ride home, so he walked out the back door. I put the gun next to the tire. I put the barrel down first so, you know, grab a hold of the handle. He came out the door. He said, you know, he said, you know, he came up to me. I blew him back. Then he twisted. [¶] DETECTIVE HOLMES: So you went down into the carport and kind a had the gun waiting for him to come out to you? [¶] [Defendant]: Yeah, I point it right at his chest. And he flew back. And he landed on his belly or front side.” After shooting Adamakis, defendant left the rifle “in a — like a little drainage, . . . right next to his window. I just left the gun there with my fingerprints, everything. I got nothing to hide, I guess. He’s a freak of nature. Hits on every f------ young guy he — he meets.” “[H]e’s been messing with me like for years, you know, like about five years. I never — I never did anything to provoke him, you know, you know, he — he set himself on me.” Defendant dropped the ammunition clip “in the bush, and just left. And I saw another guy walk out. I just walked away like nothing happen . . . .”
Cortez testified that after another neighbor told her that he “had seen someone leave, we felt safe enough to go and see.”
After shooting Adamakis, defendant walked home. “I got home when the sun came up” and “saw my brother.” Defendant saw Huynh “[j]ust laying on the ground in his bedroom right next to — in front of the desk. Pretty horrific. Couldn’t believe I had to do that. Freaked me out.”
B. The Trial Court’s Ruling
At a pretrial hearing, defense counsel requested that the prosecution establish a foundation for the admission of defendant’s extrajudicial statements, including the taped confession. The trial court, stating that it had already listened to “the tape and read the transcript” of defendant’s interview, heard testimony from the officers who spoke with defendant after the shootings. The prosecutor then argued that defendant, after being properly advised of his Miranda rights, had validly waived his rights by voluntarily answering the officers’ questions. Defense counsel countered that the Miranda warning was insufficient because the officers had failed to read “from the card that is recommended for them to use, ” and had given the warning in “an awkward and unconstitutional fashion.” Defense counsel also argued that the waiver was invalid because, despite defendant’s statement that he “can’t really comprehend right now, ” he was never asked, “do you give up the rights.”
Given that defendant does not challenge the admissibility of his pre-interview statements, we will focus only on the admissibility of the taped confession.
The trial court deemed all of defendant’s extrajudicial statements admissible. The trial court noted that although defendant had expressed an initial inability to comprehend some of his rights, he later answered that he understood the additional explanations that were given. The trial court stated that it was accepting defendant’s final “answer as he gave it, ” noting that defendant “didn’t again say ‘I can’t comprehend’ or ‘don’t understand, ’ which he had no problem stating before.” As for defendant’s use of methamphetamine and marijuana, the trial court found, based on the totality of the circumstances, that “his condition was not an impediment to his waiving his constitutional rights, ” because he “had the wherewithal[] to be able to try to hide the incident” and “hide[] the weapon, showing knowledge.”
C. The Confession Was Properly Admitted
Defendant challenges on appeal the admissibility of his taped confession, arguing that he was not given a proper Miranda warning and did not make a voluntary, knowing, and intelligent waiver. We disagree.
1. Standard of Review
“In considering a claim that a statement or confession is inadmissible because it was obtained in violation of a defendant’s rights under Miranda v. Arizona (1966) 384 U.S. 436, the scope of our review is well established. ‘“We must accept the trial court’s resolution of disputed facts and inferences, and its evaluations of credibility, if they are substantially supported. [Citations.] However, we must independently determine from the undisputed facts, and those properly found by the trial court, whether the challenged statement was illegally obtained.”’ (People v. Bradford [(1997)] 14 Cal.4th [1005, ] at p. 1033.) ‘We apply federal standards in reviewing defendant’s claim that the challenged statements were elicited from him in violation of Miranda.’ (Ibid.)
“Once a suspect receives Miranda warnings, he ‘is free to exercise his own volition in deciding whether or not to make a statement to the authorities.’ (Oregon v. Elstad (1985) 470 U.S. 298, 308.) If he thereafter requests counsel, ‘“the interrogation must cease until an attorney is present.”’ (Edwards v. Arizona (1981) 451 U.S. 477, 482, quoting Miranda v. Arizona, supra, 384 U.S. at p. 474.) If a suspect’s request for counsel or invocation of the right to remain silent is ambiguous, the police may ‘continue talking with him for the limited purpose of clarifying whether he is waiving or invoking those rights.’ (People v. Johnson (1993) 6 Cal.4th 1, 27; see Davis v. United States (1994) 512 U.S. 452, 461 [police may seek to clarify suspect’s ambiguous reference to counsel].) ‘The state must demonstrate the voluntariness of a confession by a preponderance of the evidence.’ (People v. Bradford, supra, 14 Cal.4th at p. 1033; see Colorado v. Connelly (1986) 479 U.S. 157, 168; [citation omitted].)” (People v. Box (2000) 23 Cal.4th 1153, 1194-1195.)
2. The Advisement Was Sufficient
On appeal, defendant challenges the sufficiency of his Miranda warning, but only with regard to the right to appointed counsel. Defendant was advised that he had the “right to the presence of an attorney before and during any questioning, ” and that he could request an attorney “before we start talking to you, after we start talking to you, or anything.” In relevant part, defendant was told, “if you cannot afford an attorney, one will be appointed for you free of charge before any questioning, if you want.” (Italics added.) Defendant contends that the latter advisement was insufficient because it failed to inform him of his right to an appointed attorney during questioning. We are not persuaded.
Under Miranda, an advisement of the right to counsel is sufficient if the defendant is informed that he has “the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.” (Miranda, supra, 384 U.S. at p. 479, italics added.) According to Duckworth v. Eagan (1989) 492 U.S. 195, 202, a Miranda warning need not “be given in the exact form described in” Miranda, and the reviewing court “need not examine Miranda warnings as if construing a will or defining the terms of an easement.” (Id. at p. 203.) In this case, the advisement of the right to counsel closely mirrored the language approved in Miranda, supra, 384 U.S. at page 479, and Duckworth, supra, 492 U.S. at page 202, footnote 4. We therefore reject the contention that it was insufficient.
3. The Waiver Was Valid
According to Moran v. Burbine (1986) 475 U.S. 412, a Miranda waiver is valid if it was made: (1) voluntarily and without coercion; and (2) knowingly and intelligently, “with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” (Id. at p. 421.) In deciding whether a waiver is valid, we consider the totality of the circumstances surrounding the interrogation. (Ibid.) An express waiver is not necessary. We may find an accused has waived his Miranda rights if the facts and circumstances surrounding the case show that the accused understood his or her rights and proceeded to speak with the officers. (North Carolina v. Butler (1979) 441 U.S. 369, 374-375.)
The transcript shows that defendant, after being explained each aspect of his Miranda rights, stated that he understood each provision. Defendant points out, however, that after being advised regarding the right to remain silent and being asked to explain what that means, his response, “I have the right to say anything I don’t want to say, ” was “the opposite of what that directive means.” Defendant further points out that after being advised concerning the right to counsel and being asked to explain what that means, his response, “I’m sort a messed up right now, ” failed to indicate an understanding of that right. Defendant contends that “it seems more probable than not” that he was “merely mimicking the officers” when he subsequently stated that he understood each right. Defendant argues that his mental impairment precluded him from knowingly and intelligently waiving his Miranda rights.
The transcript shows, however, that defendant had both a clear recollection of his actions and a clear understanding of the incriminating nature of his statements. He not only accurately gave the details of both shootings with an accurate timeline, which was corroborated by the physical evidence and testimony, but he also admitted that he “wasn’t that sedated, ” “wasn’t really messed up, ” “wasn’t too high, ” and was not sleepy. He expressed an awareness of the incriminating nature of his confession by stating, “I just admitted everything to you, ” “I’m going to jail for a long time, ” and “Am I going to fry in the chair?” The record, accordingly, amply demonstrates that defendant understood his rights and freely chose to speak to the detectives.
Defendant also contends that his waiver was invalid because he was so incapacitated by drugs, mental illness, and lack of sleep that his confession was not voluntary. In the absence of evidence of police coercion, however, a defendant’s mental incapacity, whether natural or induced, does not in itself render a defendant incapable of voluntarily waiving his rights. (People v. Cox (1990) 221 Cal.App.3d 980, 985-986 [waiver was voluntary despite the defendant’s intoxication].) Given the lack of any evidence of police coercion in this case, the contention lacks merit.
The People argue that defendant waived any objection to the voluntariness of his waiver by failing to raise it below. The record shows otherwise.
4. The Confession Was Reliable
Defendant contends that his confession should have been excluded as unreliable because he was precluded by his mental incapacity from giving appropriate responses to the officers’ questions. He argues that his answers “were inappropriate to time and space and he expressed an inability to maintain linear thought and expressiveness.”
Under People v. Cox, supra, 221 Cal.App.3d at page 986, footnote 3, an objection could have been raised under Evidence Code section 352 to exclude the confession as unreliable. As in Cox, however, the objection was waived because it was not raised below. “The failure to object to evidence ordinarily waives the right to claim error from its admission. (People v. Karis (1988) 46 Cal.3d 612, 634 at fn. 16.)” (Ibid.)
In any event, the contention lacks merit. Although defendant talked about spooks, spiders, weird neighbors, voices, and codes, we conclude that his actions (including his ability to cut the lock, load, and fire the rifle, to walk a mile each way between the apartment and his home, to persuade Adamakis to come outside at 4:40 a.m. under false pretenses, to place the 911 call and misleadingly describe the shooting as an apparent robbery, to leave Fung a message about Huynh’s death in order to compel her to phone the police, to describe accurately the details of the shootings and the location of the rifle, to recite his Social Security number, telephone number, and other identifying information) showed that he was not incapacitated and was able to provide reliable information. Given the strength of the evidence on this point, any objection under Evidence Code section 352 would have been futile.
5. Detective Martinez’s Remarks
After waiving his Miranda rights, defendant admitted taking the rifle from Huynh’s bedroom on the night of the shooting and cutting off the lock. When asked to describe what happened next, defendant replied, “Uh, do I have to say?” Martinez responded, “You should (Inaudible), ” and defendant inquired, “You sure?” Martinez then replied, “Yeah, it may — talking about it may help you get over it a little bit sooner. I know it’s tough. It’s difficult. This is probably the most difficult thing you’ll ever do in your whole life, okay?”
Based on the above exchange, defendant contends on appeal that he invoked his right to remain silent during the interview but that Martinez misled him to continue answering questions. Defendant argues that “[e]ven if there were doubt about that exchange, all doubt was laid to rest by the follow-up. When appellant asked the detective if the detective was sure that appellant ‘should’ speak, the detective responded, ‘Yeah.’” Defendant maintains that his Fifth Amendment rights were violated.
Defendant’s argument exceeds, however, what is supported by the record, which is unclear. Defendant’s question, “do I have to say[, ]” was ambiguous and did not constitute either an unequivocal request for counsel or an unequivocal invocation of the right to remain silent. “If a suspect’s request for counsel or invocation of the right to remain silent is ambiguous, the police may ‘continue talking with him for the limited purpose of clarifying whether he is waiving or invoking those rights.’ (People v. Johnson (1993) 6 Cal.4th 1, 27; see Davis v. United States (1994) 512 U.S. 452, 461 [police may seek to clarify suspect’s ambiguous reference to counsel].)” (People v. Box, supra, 23 Cal.4th at p. 1194.) Moreover, because Martinez’s response to defendant’s question, “do I have to say[, ]” was unintelligible, we disagree that Martinez’s “follow-up” response of “Yeah, ” was intended to override defendant’s Miranda rights. Had an objection on this point been raised and litigated below, Martinez could have testified about what was said and the trial court could have resolved any factual disputes and made the necessary findings. We conclude, therefore, that the issue was waived by defendant’s failure to raise it below. (See People v. Gurule (2002) 28 Cal.4th 557, 602.)
In any event, the contention lacks merit because, not only was there no clear invocation of the right to counsel or to remain silent, there was no coercive or improper behavior on the part of the officers. In this regard, the cases relied upon by defendant are distinguishable. (Citing People v. Honeycutt (1977) 20 Cal.3d 150 [Miranda waiver invalid because it was preceded by a half-hour conversation designed to elicit the waiver]; Collazo v. Estelle (9th Cir. 1991) 940 F.2d 411 [Miranda waiver invalid because, after the defendant had invoked his right to counsel, he was threatened that things would not go well if he exercised his constitutional rights]; People v. Montano (1991) 226 Cal.App.3d 914 [confessiondeemed involuntary because the defendant’s repeated requests to halt the questioning were ignored]; In re Gilbert E. (1995) 32 Cal.App.4th 1598 [same].)
In light of our resolution of this issue, we reject defendant’s related contention that the prosecutor committed misconduct during argument by referring to the above quoted exchange between Officer Martinez and defendant.
II. Prosecutorial Misconduct
Defendant contends for the first time on appeal that the prosecutor committed misconduct during closing rebuttal argument. The first alleged misconduct occurred when the prosecutor stated that the victims did not deserve to be executed. The second alleged misconduct occurred when the prosecutor asked the jury to think about the difficulties that Huynh “probably went through escaping from wherever he came from and coming to this country and making a living.”
The prosecutor argued: “You can’t throw the defense a bone. You can’t throw the defense something and say let’s give you something because this fine representative here that you see is here. Let’s give him something because you know maybe these things happened to him as a child. Maybe, maybe not; but if you look at the evidence in this case, did either one of these men deserve to be executed this way? Die this way? See the last memory? Think about what Mr. Huynh probably went through escaping from wherever he came from and coming to this country and making a living or trying to make a living here, and the last thing he saw was a firearm.”
The Attorney General argues that defendant forfeited his claim of misconduct by failing to make a timely objection and request an admonition. We agree. (People v. Cook (2006) 39 Cal.4th 566, 606.)
In any event, based on our review of the record, we conclude that the prosecutor’s first remark was not misconduct. Defense counsel previously had argued to the jury that although “[n]obody deserves to be shot like that, ” the jury should return second degree murder verdicts because defendant, as “[a] man with [an] impairment who had been sexually abused, ” was not “thinking properly” when he walked “up Van Nuys Boulevard carrying this Bushmaster rifle.” In rebuttal, the prosecutor argued that the killings were nevertheless intentional, deliberate, and premeditated first degree murders, and urged the jury not to “throw the defense a bone” by returning second degree verdicts. In this context, the prosecutor stated that notwithstanding any sexual abuse that defendant might have suffered, the victims did not deserve to be shot and executed. The prosecutor’s argument was a proper response to defense counsel’s request for leniency. Moreover, the prosecutor’s remark was not intended to inflame the jury’s passion, but to urge the correct application of the law to the facts of the case.
Regarding the prosecutor’s second remark concerning the difficulties that Huynh “probably went through escaping from wherever he came from and coming to this country and making a living, ” the Attorney General contends the prosecutor was simply drawing a reasonable inference from the evidence. In his taped interview, defendant described being born in Saigon to a Chinese mother who had died while giving birth, escaping from Vietnam by boat in 1980 during the persecution of the Chinese, and fearing “Thai pirates” who had boarded boats to steal valuables and commit rape. Given that Huynh, who was approximately 58 years old, had raised defendant, who was 24 years old, after the deaths of defendant’s father and sister, the Attorney General argues that it was reasonable to infer that Huynh, as part of defendant’s family, had also escaped to this country, where he worked hard to provide for defendant.
Even if the inference is not entirely warranted, the remark was not prejudicial. Although it is misconduct to ask the jury to view the crime through the eyes of the victims and refer to facts not warranted by the evidence (see People v. Stansbury (1993) 4 Cal.4th 1017, 1057, revd. on other grounds in Stansbury v. California (1994) 511 U.S. 318; People v. Talle (1952) 111 Cal.App.2d 650, 676-677), in the context of this case, the prosecutor’s brief references to Huynh’s background were not so reprehensible or inflammatory as to deprive defendant of a fair trial or influence the verdict. Given the ample evidence of defendant’s guilt, including his confession to both shootings, it is inconceivable that the jury would have reached a different verdict in the absence of the prosecutor’s remark.
Given our rejection of defendant’s misconduct claim, we similarly reject his contention that his trial counsel was ineffective in failing to object to the prosecutor’s remarks.
III. Ineffective Assistance of Counsel
During the prosecution’s case-in-chief, the jury was informed that a urinalysis had detected the presence of both methamphetamine and marijuana, but was not told the level of either substance. The jury heard defendant’s taped statement regarding his use of methamphetamine and marijuana before the shootings, as well as his statements that he “wasn’t that sedated, ” “wasn’t really messed up, ” “wasn’t too high, ” and was not sleepy. The jury heard Fung’s testimony that defendant had an unidentified illness that was “[l]ike depression, ” but that defendant had refused to go to the doctor. The jury also heard defendant’s taped statement that Huynh had sent him “to the mental hospital” for “just messing around” and “spraying water.”
The jury heard no expert testimony, however, on the issues of mental disease or drug use. The jury was not informed that defendant had been examined by two psychiatrists, Dr. Markman and Dr. Sharma, regarding a possible insanity defense. The jury was unaware that both psychiatrists had concluded that defendant was sane at the time of the crimes.
Defendant contends on appeal that his trial counsel was ineffective in failing to present evidence of his specific level of intoxication and mental illness, despite being “fully apprised” of his “history of mental illness and the strength of the intoxication.” He also argues that the investigation was inadequate because his attorney failed to “seek the assistance of a mental state expert or an expert in the effects of narcotic use[, ] and thereby [failed to] learn the significance of appellant’s condition and its implication and importance to substantiate a defense.” In support of his contention, defendant relies upon the expert psychiatric reports of Dr. Markman and Dr. Sharma. Both reports, he claims, contained “significant information, ” “which if properly developed may have warranted
findings by the jury of sufficient intoxication or mental disease to negate the required mental state for first degree murder.”
Defendant points out that Dr. Markman’s report contained information regarding: (1) defendant’s urinalysis, which showed “extremely high levels of amphetamine and methamphetamine, as well as marijuana metabolite, indicating use of those drugs within the previous 36-72 hours”; (2) defendant’s lengthy history of drug use, including LSD, mushrooms, marijuana, and methamphetamines; and (3) defendant’s use of prescription drugs for treatment of schizophrenia, depression, and other mental disabilities. Defendant notes that according to Dr. Markman, “as a result of the substance abuse superimposed on his mental disorder, [defendant] likely lacked the ability to deliberate as he was motivated by a combination of delusional thinking and perceived mistreatment at the hands of his alleged victims. However, he was capable of premeditating and forming the intent to kill. I again reiterate that his use of methamphetamine appears to have been the primary and direct cause of his actions.”
A. The Diminished Actuality Defense
The prosecution’s theory was that both murders were of the first degree because they were willful, deliberate, and premeditated, and that Adamakis’s murder was also of the first degree because it was committed by lying in wait. The jury was instructed that the period of lying in wait need not “continue for any particular period of time, but its duration must show a state of mind equivalent to deliberation and premeditation.” (CALCRIM No. 521.)
The jury was instructed that “[t]he defendant acted willfully if he intended to kill. The defendant acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if he decided to kill before committing the act that caused death. [¶] The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time.” (CALCRIM No. 521.)
Defendant contends that his trial counsel was ineffective in failing to investigate and introduce evidence of his diminished mental state, which he contends may have led to two second degree murder verdicts. “‘The essence of a showing of diminished capacity is a “showing that the defendant’s mental capacity was reduced by mental illness, mental defect or intoxication.”’ (People v. Berry [(1976)] 18 Cal.3d [509, ] 517.) However, the Legislature abolished the defense of diminished capacity before defendant committed this crime. (People v. Castillo (1997) 16 Cal.4th 1009, 1013-1014; People v. Saille (1991) 54 Cal.3d 1103, 1114.) Only diminished actuality survives, i.e., the jury may generally consider evidence of voluntary intoxication or mental condition in deciding whether defendant actually had the required mental states for the crime. (People v. Saille, supra, 54 Cal.3d at p. 1116; but see current § 22, subd. (b); People v. Castillo, supra, 16 Cal.4th at p. 1014 & fn. 1.)” (People v. Steele (2002) 27 Cal.4th 1230, 1253.)
“Evidence of voluntary intoxication, formerly admissible on the issue of diminished capacity (see generally People v. Mendoza (1998) 18 Cal.4th 1114, 1125), now is ‘admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought.’ (§ 22, subd. (b); People v. Mendoza, supra, at p. 1126.) Accordingly, a defendant is entitled to an instruction on voluntary intoxication ‘only when there is substantial evidence of the defendant’s voluntary intoxication and the intoxication affected the defendant’s “actual formation of specific intent.”’ (People v. Williams (1997) 16 Cal.4th 635, 677.)” (People v. Roldan (2005) 35 Cal.4th 646, 715.)
In this case, the trial court instructed the jury on “Voluntary Intoxication: Effects on Homicide Crimes” (CALCRIM No. 625) and “Mental Impairment: Defense to Specific Intent or Mental State” (CALCRIM No. 3428). CALCRIM No. 625, as modified in this case, provides: “You may consider evidence, if any, of the defendant’s voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with an intent to kill, or the defendant acted with deliberation and premeditation. [¶] A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect, or willingly assuming the risk of that effect. [¶] You may not consider evidence of voluntary intoxication for any other purpose.” CALCRIM No. 3428, as modified in this case, provides: “You have heard evidence that the defendant may have suffered from a mental disease, or defect, or disorder. You may consider this evidence only for the limited purpose of deciding whether, at the time of the charged crime, the defendant acted or failed to act with the intent or mental state required for that crime. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant acted with the required intent or mental state, specifically: ‘malice aforethought.’ If the People have not met this burden, you must find the defendant not guilty of murder in each count.”
B. Ineffective Assistance of Counsel
“A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” (Strickland v. Washington (1984) 466 U.S. 668, 687.) “The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Id. at p. 694; People v. Wright (1990) 52 Cal.3d 367, 404.) Moreover, where the record is silent regarding why trial counsel failed to act as demanded on appeal, “‘“unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, ” the claim on appeal must be rejected.’ [Citations.]” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)
“Our Supreme Court recently reiterated the obligations of appellate courts in reviewing claims of ineffective assistance of counsel: ‘“‘Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a “strong presumption that counsel’s conduct falls within the wide range of professional assistance.”’ [Citation.] ‘[W]e accord great deference to counsel’s tactical decisions’ [citation], and we have explained that ‘courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight’ [citation]. ‘Tactical errors are generally not deemed reversible, and counsel’s decisionmaking must be evaluated in the context of the available facts.’ [Citation.]”’ (People v. Stanley (2006) 39 Cal.4th 913, 954, citing People v. Weaver (2001) 26 Cal.4th 876, 925-926.) [¶] ‘Competent counsel . . . should realistically examine the case, the evidence, and the issues, and pursue those avenues of defense that, to their best and reasonable professional judgment, seem appropriate under the circumstances. [Citation.]’ (People v. Freeman (1994) 8 Cal.4th 450, 509.) [¶] Defendant’s burden is difficult to carry on direct appeal. We reverse on the ground of inadequate assistance on appeal only if the record affirmatively discloses no rational tactical purpose for counsel’s act or omission. [Citations.]” (People v. Montoya (2007) 149 Cal.App.4th 1139, 1147-1148.)
C. Counsel’s Performance Was Not Deficient
In this case, reversal for ineffective assistance of counsel is not warranted because the available facts, including the expert reports of Drs. Markman and Sharma, compel only one reasonable conclusion: that defendant did not behave like a person so impaired by mental disease or intoxication that he lacked the requisite mental state for first degree murder. Not only did defendant cut the lock, load, and fire the rifle, but he also walked a mile each way between the apartment and his home, persuaded Adamakis to come outside at 4:40 a.m. under false pretenses, placed the 911 call in a manner designed to conceal his guilt, made misleading statements to the officers to hide his involvement, left Fung a message about Huynh’s death in an attempt to compel her to call the police, correctly recited his Social Security number, telephone number, and other identifying information, and eventually gave an accurate description and timeline of the shootings and the location of the rifle.
Significantly, defendant admitted just hours after the killings that he “wasn’t that sedated, ” “wasn’t really messed up, ” and “wasn’t too high.” He also admitted thinking for just “a second” before shooting Huynh “about everything he’s done for me. And I just said, ‘Later.’ Pretty creepy.” He then described thinking, just before shooting Adamakis, “What the hell. If I’m going to shoot my brother, I’m going to shoot this ass hole, too.” “I walked up to his window and knocked on his window. I had it figured out before, you know, I was going to do it.” “I came to his window. I told him to get out. And he wouldn’t come out. He went back to sleep. I told him I need a ride home, so he walked out the back door. I put the gun next to the tire. I put the barrel down first so, you know, grab a hold of the handle. He came out the door. He said, you know, he said, you know, he came up to me. I blew him back.”
We conclude that the methodical and deliberate manner in which the crimes were committed, coupled with defendant’s description of his deliberative thoughts before each shooting, demonstrated the requisite mental state for first degree murder, thereby precluding a viable diminished actuality defense. It was therefore not irrational for defense counsel to refrain from presenting expert testimony regarding defendant’s mental illness or intoxication, because such opinion testimony would have been directly refuted by the physical evidence, testimony, and defendant’s own statements.
In any event, given the uncontroverted evidence of the manner of the killings, defendant’s stated reasons for the killings, and his description of his deliberative process, we cannot conclude that but for counsel’s perceived errors, there is a reasonable probability that the result of the trial would have been different.
IV. Instructional Error
Defendant challenges numerous CALCRIM instructions as erroneous, misleading, and prejudicial. He also contends that if these instructional issues were not preserved for appellate review, his trial counsel was ineffective in failing to object below. We treat the issues as cognizable on appeal because they implicate defendant’s substantial rights. (§ 1259; People v. Guerra (2006) 37 Cal.4th 1067, 1134.) Given our rejection on the merits of defendant’s arguments, we necessarily reject the claim of ineffective assistance of counsel.
In reviewing the challenged instructions, we are guided by the established principles that “‘[j]ury instructions must be read together and understood in context as presented to the jury. Whether a jury has been correctly instructed depends upon the entire charge of the court. [Citations.]’ (People v. Tatman (1993) 20 Cal.App.4th 1, 10.) Jurors are presumed to be intelligent persons capable of understanding and correlating jury instructions. (People v. Yoder (1979) 100 Cal.App.3d 333, 338.) An erroneous instruction requires reversal only when it appears that the error was likely to have misled the jury. (Cal. Const., art. VI, § 13; Tatman, at p. 10.)” (People v. Brock (2006) 143 Cal.App.4th 1266, 1277.)
A. CALCRIM No. 200
Defendant challenges the portion of CALCRIM No. 200 that provides, “I will now instruct you on the law that applies to this case, ” contending that it “improperly invaded the province of the jury and was improperly coercive.” This contention fails because it ignores the portions of CALCRIM No. 200, which provide: “Do not assume just because I give a particular instruction that I am suggesting anything about the facts”; “After you have decided what the facts are, follow the instructions that do apply to the facts as you find them”; and “It is up to you, exclusively, to decide what happened, based only on the evidence that has been presented to you in this trial.” Given that the jury was informed that it was the exclusive arbiter of the facts, the contention that the CALCRIM No. 200 invaded the province of the jury is meritless. (See People v. Brock, supra, 14 Cal.App.4th at p. 1277.)
B. CALCRIM No. 220
Defendant challenges the portion of CALCRIM No. 220 that provides, “You must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial, ” contending that the instruction erroneously implies that bias is permissible for reasons other than the three prohibited by the instruction. This contention fails because it ignores CALCRIM No. 200, which provides, “Do not let bias, sympathy, prejudice, or public opinion influence your decision.” (See People v. Reyes (2007) 151 Cal.App.4th 1491, 1496 [rejecting a similar argument concerning CALCRIM No. 103].) It also ignores the presumption of innocence discussed in CALCRIM No. 220, which states, “A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime and special allegation beyond a reasonable doubt.”
Given that CALCRIM No. 200 prohibits all forms of bias, we reject the contention that CALCRIM No. 220 implicitly permits the jury to harbor biases not mentioned in the instruction. (See People v. Brock, supra, 14 Cal.App.4th at p. 1277.)
C. CALCRIM Nos. 223 and 224
Defendant challenges the portion of CALCRIM No. 223 that states, “Both direct and circumstantial evidence are acceptable types of evidence to prove or disprove the elements of a charge, including intent and mental state and acts necessary to a conviction, and neither is necessarily more reliable than the other. Neither is entitled to any greater weight than the other. You must decide whether a fact in issue has been proved based on all the evidence.”
Defendant contends that this language “usurps the function of the jury” by erroneously creating the “impression they are not free to give specific circumstantial evidence greater weight than other specific direct evidence or vice versa.” The contention lacks merit because the challenged portion of the instruction correctly states that “circumstantial evidence is as adequate to convict as direct evidence. [Citation.]” (People v. Goldstein (1956) 139 Cal.App.2d 146, 155.)
Defendant also challenges CALCRIM No. 223, which applies the reasonable doubt standard to circumstantial evidence. Defendant argues that the instruction is misleading because, by applying the reasonable doubt standard only to circumstantial evidence, it implies by omission that the reasonable doubt standard does not apply to direct evidence. This contention is not persuasive because CALCRIM No. 220 requires the jury to apply the reasonable doubt standard to “all the evidence that was received throughout the entire trial, ” whether direct or circumstantial. (Italics added.)
CALCRIM No. 223 provides: “Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.”
Defendant also contends that CALCRIM No. 224 lessened the prosecution’s burden of proof by stating that the jury must be convinced of the defendant’s guilt beyond a reasonable doubt, rather than required to find, based on the evidence, that the defendant was proven guilty beyond a reasonable doubt. Defendant objects that “a juror can be ‘convinced’ or ‘satisfied’ in his or her own mind that the defendant is guilty beyond a reasonable doubt even if the evidence has fallen short of so proving.” We reject this contention because CALCRIM No. 220 requires the jury to “compare and consider all the evidence that was received throughout the entire trial.” (CALCRIM No. 220.) Read together, CALCRIM Nos. 220 and 224 require the jury to apply the reasonable doubt standard to all of the evidence and do not allow the jury to apply the standard randomly to select portions of the evidence. (See People v. Yoder, supra, 100 Cal.App.3d at p. 338 [jurors are presumed to be intelligent persons capable of understanding and correlating jury instructions].)
D. CALCRIM No. 226
Defendant challenges the portion of CALCRIM No. 226 that provides: “Do not automatically reject testimony just because of inconsistencies or conflicts. Consider whether the differences are important or not. People sometimes honestly forget things or make mistakes about what they remember. Also, two people may witness the same event yet see or hear it differently.” (Italics added.) Defendant asserts that CALJIC No. 2.21.1, which states that “[i]nnocent misrecollection is not uncommon, ” more accurately conveys the greater frequency with which people often or commonly forget things. Defendant argues that by downplaying the frequency with which people “sometimes” forget, CALCRIM No. 226 gives “eyewitnesses a false aura of credibility by implying that more often tha[n] not the identification provided by the purported eyewitness is accurate.”
Notwithstanding that defendant’s identity was not contested at trial, we disagree that CALCRIM No. 226 lends a false aura of credibility to eyewitness testimony. On the contrary, CALCRIM No. 226: (1) recites numerous factors to be considered by the jury in evaluating a witness’s testimony; (2) requires the jury to decide “whether testimony is true and accurate” based on its “common sense and experience”; (3) allows the jury to “believe all, part, or none of any witness’s testimony”; and (4) permits the jury to “consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony.”
The factors to be considered include: “how well could the witness see, hear, or otherwise perceive the things about which the witness testified; how well was the witness able to remember and describe what happened; what was the witness’s behavior while testifying; did the witness understand the questions and answer them directly; was the witness’s testimony influenced by a factor such as bias or prejudice, a personal relationship with someone involved in the case, or a personal interest in how the case is decided; what was the witness’s attitude about the case or about testifying; did the witness make a statement in the past that is consistent or inconsistent with his or her testimony; how reasonable is the testimony when you consider all the other evidence in the case; did other evidence prove or disprove any fact about which the witness testified.” (CALCRIM No. 226.)
E. CALCRIM No. 251
CALCRIM No. 251, as given in this case, provides that “[e]very crime or other allegation charged in this case requires proof of the union, or joint operation, of act and wrongful intent. [¶] In order to be guilty of the crimes of first or second degree murder, a person must not only intentionally commit the prohibited act but must do so with a specific intent or mental state.” In comparison, CALJIC No. 3.31 requires the jury to find “a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator.” (Italics added.) Defendant contends that CALCRIM No. 251’s omission of the words “or conduct” erroneously “removed from the jury’s consideration” “the concept of union of intent and conduct.”
“When reviewing a supposedly ambiguous jury instruction, ‘“we inquire ‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution.”’ (People v. Frye [(1998)] 18 Cal.4th [894, ] 957.)” (People v. Welch (1999) 20 Cal.4th 701, 766.) In this case, there is no reasonable likelihood that the jury was misled by the omission of the words “or conduct” to apply CALCRIM No. 251 in an unconstitutional manner. With regard to the murder and special circumstance allegations, the jury was correctly instructed that the defendant’s acts had to be tied to a specific intent or mental state. The jury was instructed: (1) that in order to find defendant guilty of murder, it must find that the defendant acted with malice aforethought, which “is a mental state that must be formed before the act that causes death is committed”; (2) that first degree murder requires a finding that the defendant acted willfully, deliberately, and with premeditation, which means that the defendant “decided to kill before committing the act that caused death”; and (3) that “[i]n order to prove the special circumstances of multiple murders and lying in wait, the People must prove not only that the defendant did the acts charged, but also that he acted with a particular intent or mental state.”
F. CALCRIM No. 300
CALCRIM No. 300 provides that “[n]either side is required to call all witnesses who may have information about the case or to produce all physical evidence that might be relevant.” (Italics added.) Defendant contends that the use of the word “all” erroneously suggests that he must produce “some” witnesses and evidence, in violation of the constitutional presumption that he is innocent until proven guilty. We disagree. CALCRIM No. 300 is similar to CALJIC No. 2.11, which was approved as a correct statement of the law in People v. Simms (1970) 10 Cal.App.3d 299, 313.
With respect to the burden of proof, the jury was given CALCRIM No. 220, which states that: (1) criminal defendants are presumed to be innocent; (2) the prosecution must “prove each element of a crime and special allegation beyond a reasonable doubt”; and (3) the jury must acquit the defendant “[u]nless the evidence proves the defendant guilty beyond a reasonable doubt.” (CALCRIM No. 220.) In addition, the jury was given CALCRIM No. 355, which states that the defendant “may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt.” Taken together, the instructions did not erroneously suggest that the defendant bears any burden of proof.
G. CALCRIM No. 302
CALCRIM No. 302 provides that in evaluating conflicting evidence, the jury “must decide what evidence, if any, to believe. Do not simply count the number of witnesses who agree or disagree on a point and accept the testimony of the greater number of witnesses. On the other hand, do not disregard the testimony of the greater number of witnesses, or any witness, without a reason or because of prejudice or a desire to favor one side or the other. What is important is whether the testimony or any other evidence convinces you, not just the number of witnesses who testify about a certain point.”
Notwithstanding the absence of any defense witnesses in this case, defendant contends that CALCRIM No. 302 erroneously implies that the jury’s disbelief of defense witnesses means that the prosecution’s burden has been met. The instruction does not support such an inference. CALCRIM No. 302 is impartial and does not align prosecution witnesses against defense witnesses. The first sentence, “you must decide what evidence, if any, to believe, ” allows the jury to believe or disbelieve some, all, or none of the witnesses on any given point, regardless of the party that called them as witnesses. Moreover, CALCRIM No. 302 was recently approved in People v. Reyes, supra, 151 Cal.App.4th at page 1497, and is similar to CALJIC No. 2.20, which was approved in People v. Rincon-Pineda (1975) 14 Cal.3d 864, 884-885. The contention, accordingly, lacks merit.
H. CALCRIM No. 355
CALCRIM No. 355, which explains a defendant’s right not to testify, states that a defendant “may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt.” (Italics added.) Defendant contends that the word “argue” erroneously suggests that the defense has a “burden to ‘argue’ that the case wasn’t proven.”
“When reviewing a supposedly ambiguous jury instruction, ‘“we inquire ‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution.”’ (People v. Frye, supra, 18 Cal.4th at p. 957.)” (People v. Welch, supra, 20 Cal.4th at p. 766.) There is no reasonable likelihood that CALCRIM No. 355 will be applied in the manner suggested by defendant. As we previously stated, the jury was correctly instructed that the prosecution must prove the defendant guilty beyond a reasonable doubt. (CALCRIM No. 220.) In any event, CALCRIM No. 355 is a cautionary instruction that benefits the defendant and any error in giving it was harmless. (People v. Frye, supra, 18 Cal.4th at p. 959.)
I. CALCRIM No. 370
CALCRIM No. 370 provides: “The People are not required to prove that the defendant had a motive to commit any of the crimes charged. In reaching your verdict you may, however, consider whether the defendant had a motive. [¶] Having a motive may be a factor tending to show that the defendant is guilty. Not having a motive may be a factor tending to show the defendant is not guilty.” Defendant contends that the instruction: (1) coercively implies the jury is obligated to reach a verdict; (2) improperly permits the jury to consider “any free-floating or untethered motive which has nothing to do with the charged crimes”; (3) erroneously shifts the burden of proof to the defense to prove the defendant is not guilty; and (4) improperly allows the jury to convict on evidence of motive alone. We disagree.
CALJIC No. 2.51, which is almost identical to CALCRIM No. 370, provides: “Motive is not an element of the crime charged and need not be shown. However, you may consider motive or lack of motive as a circumstance in this case. Presence of motive may tend to establish the defendant is guilty. Absence of motive may tend to show the defendant is not guilty.” The Supreme Court approved CALJIC No. 2.51 in People v. Guerra, supra, 37 Cal.4th 1067, and rejected arguments that the instruction permits improper burden shifting and convictions based on evidence of motive alone. (Id. at pp. 1134-1135.)
Given the similarity of the two instructions, we reject defendant’s contentions for the reasons stated in Guerra. To paraphrase Guerra, we conclude that no reasonable jury would consider CALCRIM No. 370 to be a standard of proof instruction distinct from the reasonable doubt instruction set forth in CALCRIM No. 220. (Id. at p. 1134.) Moreover, there is “no reasonable likelihood the jury would interpret the instruction as stating that motive alone was sufficient to prove defendant’s guilt. [Citation.]” (Ibid.)
J. CALCRIM No. 500
CALCRIM No. 500 defines an unlawful killing as the killing of a person with “no legally valid excuse or justification.” Defendant contends that the instruction erroneously implies that, even if all the elements of a given crime have not been established, the jurors must find the defendant guilty of murder if there is “no legally valid excuse or justification.” Defendant further argues that the term “excuse or justification” erroneously implies that the defense bears the burden of establishing an excuse or justification. Defendant also maintains that the instruction is confusing and misleading because the jury does not have “to understand the theoretical underpinnings of excuse and justification” in order to decide whether the elements of a crime have been proven beyond a reasonable doubt.
The contentions lack merit because there is no reasonable likelihood that a jury would interpret the instruction as stating that the absence of a legally valid excuse or justification alone is sufficient to prove the defendant’s guilt.
The relationship between the legal concepts described in CALCRIM No. 500 and murder is that murder is the unlawful killing of a human being with malice aforethought (§ 187), and “[m]alice is express when there is manifest a deliberate intention to unlawfully kill and implied when no considerable justification appears or when the circumstances attending the killing show an abandoned or malignant heart. When it is shown that the killing resulted from the intentional doing of an act with express or implied malice as defined in the section, no other mental state need be shown to establish malice aforethought. (§ 188 . . . .)” (People v. Stress (1988) 205 Cal.App.3d 1259, 1267, fn. omitted.) CALCRIM No. 500 correctly states the law in this regard. Moreover, similar CALJIC instructions were approved in People v. Thomas (2007) 150 Cal.App.4th 461, 466.
K. Addressing the Jurors Collectively as “You”
Throughout the CALCRIM instructions, jurors are collectively referred to as “you.” Defendant contends that jurors should be referred to individually in order to reflect their individual responsibilities as jurors. He argues that the use of the collective “you” deprived him of the individual consideration of each juror by failing to establish each juror’s obligation to fully and fairly deliberate while adhering to his or her own conscientiously-held beliefs. We are not persuaded. The use of the collective “you” does not create a reasonable likelihood that individual jurors would fail to honor their individual responsibilities as jurors.
V. Cumulative Errors
Given our rejection of defendant’s contentions, we necessarily reject his final contention that a reversal is warranted because of the prejudicial effect of cumulative errors.
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J. WILLHITE, J.
Defendant also notes in Dr. Sharma’s opinion, his voluntary intoxication at the time of the crimes was the main cause of his mental impairment during the killings. Although Dr. Sharma believed that defendant’s impairment did not amount to insanity because it “was not of the kind and degree to negate the defendant’s mental state of knowing right from wrong or understanding the nature and quality of his act, ” Dr. Sharma believed that defendant “was probably mentally ill at the time of the crime” and that his “behavior and intoxication and impairment may be a possible factor in mitigation.”