Opinion
A164885
07-25-2024
THE PEOPLE, Plaintiff and Respondent, v. CASEY MURRAY, Defendant and Appellant.
NOT TO BE PUBLISHED
San Francisco County Super. Ct. Nos. SCN233329, CT19009788
SIMONS, ACTING P. J.
Defendant and appellant Casey Murray (appellant) appeals from the judgment following his conviction of second degree murder and other offenses, following the killing of his girlfriend Alice James (James). We affirm.
PROCEDURAL BACKGROUND
In December 2020, the San Francisco County District Attorney filed an information charging appellant with murder (Pen. Code, § 187, subd. (a); count one) with the allegation that he personally used a deadly weapon (§ 12022, subd. (b)(1)); domestic violence (§ 273.5, subd. (a); count two) with the allegations that he personally used a deadly weapon (§ 12022, subd. (b)(1)) and inflicted great bodily injury (§ 12022.7, subd. (e)); two counts of assault with a deadly weapon (§ 245, subd. (a)(1); counts three and four) with the allegation that he inflicted great bodily injury (§ 12022.7, subd. (e)); assault by force likely to cause great bodily injury (§ 245, subd. (a)(4); count five) with the allegation that he inflicted great bodily injury (§ 12022.7, subd. (e)); and resisting a police officer (§ 148, subd. (a)(1); count six).
All undesignated statutory references are to the Penal Code.
In December 2021, a jury found appellant guilty of second degree murder, as well as guilty of all the remaining charges. The jury also found the associated special allegations true.
In March 2022, the trial court sentenced appellant to 15 years to life in prison. The present appeal followed.
FACTUAL BACKGROUND
In the early morning hours on June 22, 2019, police responded to the home of the victim, James. James was found inside, beaten to death, and the police arrested appellant. At trial, appellant conceded he killed James, his girlfriend, but he argued it was not murder.
The Prosecution Case
Anthony R. had been friends with appellant for decades. At 6:39 a.m. on June 22, 2019, Anthony R. received a text from appellant saying, "Couldn't take her abuse anymore. Killed her. Me next. I love you brother." Anthony R. called appellant, who sounded "very serious, very sad." Appellant said he had "killed her," which Anthony R. understood to be a reference to James. Appellant said he had "started hitting her" and that he hit her "a lot." Eventually, appellant hung up. About 7:30 a.m., Anthony R. went to a police station to report the call.
Appellant's brother, D. Murray, got a text from appellant at 6:40 a.m. on June 22, 2019, saying, "I'm sorry [D.]. I love you." D. Murray responded but never heard back from appellant, and appellant did not answer his phone. The previous night, June 21, at around 11:00 p.m., D. Murray had seen appellant and James near appellant's home "laughing, having a good time." Nothing seemed out of the ordinary.
D. Murray had only met James a handful of times, but he believed her relationship with appellant was a "train wreck," because "they're both volatile, they both like to drink." D. Murray described James as a "wacko," "socially tweaked," and "on the edge." She could be "extreme, . . . super volatile, animated, just frightening." Appellant had "issues with rage" and a "bad temper," and he could go from "zero to sixty in half a second." D. Murray told a police officer "that he would not let his family be near [appellant] because [appellant] was too dangerous to be around." At times, the interactions between James and appellant would be "complete anarchy, shouting, . . . just out of control." D. Murray thought it "would only be a matter of time before an incident occurred," and he described the relationship as "like parking a fireworks factory next to a gun powder factory."
About 8:30 a.m. on June 22, 2019, the police arrived at James's home on Aptos Avenue in San Francisco. Appellant pulled out of the garage in a car, exited the car on orders from the police, and stated "please just kill me" and walked towards the officers. When he failed to comply with orders to get down on the ground, an officer shot him with a "beanbag" round and the police handcuffed him. One officer seated appellant next to a patrol car and stayed with him for about 45 minutes. Appellant was "intoxicated," spoke slowly and slurred his words, and had blood on him. Appellant made a number of unprompted statements, including that he was "going to burn in hell," he was a "good person," and he had "never done anything like this before." Appellant said he wanted to die and asked the officer to "put him out of his misery."
Inside the house, the officers found James dead on a couch. A wine bottle under a coffee table had hair and a lot of blood on it. There were empty bottles of alcohol and champagne flutes, a broken picture frame, and some buttons on the floor. A shirt on the floor was missing buttons and had blood-soaked sleeves. There were "blood spatter patterns" on the wall behind the couch. According to James's daughter, the photo in the broken frame depicted James, James's ex-husband, and herself (their daughter) in Hawaii.
The police also found handwritten notes on the coffee table. One read, "Alice, thought I killed you. You survived. Good for you. I am going to hell." Another read, "Torture for all eternally [sic]. I deserve it. I am garbage, but I love you."
An expert in "bloodstain pattern analysis" opined that, among other things, James had been seated on the sofa when she was attacked.
The doctor who conducted a forensic medical examination on James's body opined the cause of death was "multiple blunt and sharp force injuries." James's skull, cheekbone, nose, and jaw had been fractured and she had numerous cuts on her body. The expert was not able to opine with certainty how many distinct impacts occurred to produce James's injuries. James's blood-alcohol level was 0.28 percent.
At trial, the prosecution also presented evidence of prior incidents involving appellant and James. In April 2018, police responded to a 911 call; James reported that appellant had become "weird" after a date and "said he was going to kill me." In August 2018, police responded to another 911 call; James reported that appellant had knocked her onto the floor and told her that he was going to kill her. Appellant was "highly intoxicated, belligerent, and [had a] strong odor of alcohol." In September 2018, police responded to another 911 call; James reported that appellant had damaged her car, grabbed her by her throat, "smacked" her face and forehead, "broke" her keys, and attempted to steal her purse. At the scene, James was "hysterical" and "uncooperative," and she attempted to drive away; an officer noticed the rearview mirror had been broken off.
Finally, in October 2018, police were dispatched to James's home based on a report of a fight. When the police arrived, James yelled, "he's stalking me, he's stalking me." James told an officer she had ended her relationship with appellant "several times" but "he keeps coming back." She told the officers that she and appellant had argued about her ex-husband and that appellant had knocked her down and taken her purse. Appellant was intoxicated and uncooperative.
The Defense Case
A clerk at a market testified appellant bought beer and wine from the store on June 21, 2019. Appellant seemed happy and there was nothing out of the ordinary.
Two of appellant's friends testified to his good character and one of James's neighbors testified she was unfriendly and seemed emotionally unstable. A friend of appellant's testified she once saw James push appellant out of her way during an argument.
James's ex-husband testified he was married to her for 27 years. One of the reasons they divorced was because James had a drinking problem. Sometimes she was verbally abusive when she drank and once she tried to hit him.
Finally, an expert on "the effects of alcohol on the brain and body" testified that alcohol can cause problems with memory and that "blackouts" become more likely with blood-alcohol levels over 0.2. At blood-alcohol levels of 0.25 to 0.3, a person can "act without fully comprehending what they [are] doing or [the] consequences of it." Alcohol also effects judgment; a person who is substantially intoxicated "may engage in behaviors that they wouldn't otherwise."
Prosecution Rebuttal
Appellant sent text messages to Anthony R. referring to committing two thefts. Another text to Anthony R. said he was "angry and sad and very volatile." And in texts to James he used profanity against her and described their relationship as a "war."
DISCUSSION
I. There is No Reasonable Likelihood the Trial Court's CALCRIM No. 252 Instruction Confused the Jury
Appellant contends the trial court's" 'concurrence instruction'" (People v. Martinez (2007) 154 Cal.App.4th 314, 334 (Martinez)) on the union of act and intent was erroneous and prejudicial. We reject the claim.
A. Legal Background
"California statutes have long separated criminal homicide into two classes, the greater offense of murder and the lesser included offense of manslaughter. The distinguishing feature is that murder includes, but manslaughter lacks, the element of malice. [Citations.] [¶] Malice exists, if at all, only when an unlawful homicide was committed with the 'intention unlawfully to take away the life of a fellow creature' (§ 188), or with awareness of the danger and a conscious disregard for life [citations] [Fn. omitted]. In certain circumstances, however, a finding of malice may be precluded, and the offense limited to manslaughter, even when an unlawful homicide was committed with intent to kill. In such a case, the homicide, though not murder, can be no less than voluntary manslaughter." (People v. Rios (2000) 23 Cal.4th 450, 460 (Rios); accord, Martinez, supra, 154 Cal.App.4th at p. 335.) In particular,"' "a defendant who intentionally and unlawfully kills [nonetheless] lacks malice . . . when [he] acts in a 'sudden quarrel or heat of passion' (§ 192, subd. (a)), or . . . kills in 'unreasonable self-defense'-the unreasonable but good faith belief in having to act in self-defense [citations]."' [¶] . . . These mitigating circumstances reduce an intentional, unlawful killing from murder to voluntary manslaughter 'by negating the element of malice that otherwise inheres in such a homicide [citation].'" (Rios, at pp. 460-461; see also People v. Bryant (2013) 56 Cal.4th 959, 968 (Bryant) ["A defendant commits voluntary manslaughter when a homicide that is committed either with intent to kill or with conscious disregard for life-and therefore would normally constitute murder-is nevertheless reduced or mitigated to manslaughter."].)
The heat of passion theory of voluntary manslaughter is at issue in the present case." 'An intentional, unlawful homicide is "upon a sudden quarrel or heat of passion" (§ 192(a)), and is thus voluntary manslaughter (ibid.), if the killer's reason was 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 judgment.'"' [Citation.] No specific type of provocation is required, and 'the passion aroused need not be anger or rage, but can be any"' "[v]iolent, intense, high-wrought or enthusiastic emotion" '" [citations] other than revenge [citation].' [Citation.] Thus, a person who intentionally kills as a result of provocation, that is, 'upon a sudden quarrel or heat of passion,' lacks malice and is guilty not of murder but of the lesser offense of voluntary manslaughter." (People v. Lasko (2000) 23 Cal.4th 101, 108 (Lasko).)
We review de novo defendant's claim of instructional error. (People v. Waidla (2000) 22 Cal.4th 690, 733.)"' "[N]ot every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation. The question is' "whether the ailing instruction . . . so infected the entire trial that the resulting conviction violates due process."' [Citation.]' "[A] single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge."' [Citation.] If the charge as a whole is ambiguous, the question is whether there is a' "reasonable likelihood that the jury has applied the challenged instruction in a way" that violates the Constitution.'" '" (People v. Letner &Tobin (2010) 50 Cal.4th 99, 182; see also People v. Nelson (2016) 1 Cal.5th 513, 544 (Nelson) ["' "For ambiguous instructions, the test is whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction."' "].) Jurors are presumed to have followed the trial court's instructions. (People v. Sandoval (2015) 62 Cal.4th 394, 422.)
B. CALCRIM No. 252
The trial court instructed the jury with a modified version of CALCRIM No. 252, as follows:
"The crimes and lesser included offenses charged in Counts 1-6 require proof of the union, or joint operation, of act and wrongful intent ....
"The following crimes and lesser included offenses require a specific intent or mental state:
"(1) first degree murder, a violation of Penal Code section 187(a), as charged in Count 1;
"(2) second degree murder, a violation of Penal Code section 187(a), a lesser included offense to Count 1; and
"(3) voluntary manslaughter, a violation of Penal Code section 192(a), a lesser included offense to Count 1.
"For you to find a person guilty of these crimes, that person must not only intentionally commit the prohibited act but must do so with a specific intent and/or mental state. The act and the specific intent and/or mental state required are explained in the instruction for that crime.
"The specific intent required for the crime of first degree murder, a violation of Penal Code section 187(a), as charged in Count 1, is that the defendant had the intent to kill Alice James.
"The mental state required for the crime of first degree murder, a violation of Penal Code section 187(a), as charged in Count 1, is that the defendant acted willfully, deliberately, and with premeditated malice aforethought.
"The specific intent required for the crime of second degree murder, a violation of Penal Code section 187(a), a lesser included offense to Count 1, is that the defendant had the intent to kill Alice James.
"The specific intent for the crime of voluntary manslaughter, a violation of Penal Code section 192(a), a lesser included offense to Count 1, is that the defendant had the intent to kill Alice James, or that the defendant acted with conscious disregard for the life of Alice James knowing his conduct endangered her life.
"The mental state required for the crime of voluntary manslaughter, a violation of Penal Code section 192(a), a lesser offense to Count 1, is that the defendant acted rashly and under the influence of intense emotion that obscured his reasoning or judgment."
C. Analysis
Appellant argues the instruction "distorted the jury's analysis of the central defense theory by telling the jury that voluntary manslaughter requires the 'specific intent' of intent to kill or implied malice." We disagree.
When viewed as a whole, the instructions very clearly explained to the jury how it was to proceed in its deliberations in analyzing the murder and voluntary manslaughter offenses. The trial court explained the elements of murder to the jury using CALCRIM No. 520, including the requirement of malice aforethought, which could be either express or implied. The instruction explained that appellant "had express malice if he unlawfully intended to kill" and that he had implied malice if he "deliberately acted with conscious disregard for human life." Almost immediately thereafter, the trial court instructed the jury on the effect of provocation using CALCRIM No. 522, explaining, "Provocation may reduce a murder to manslaughter.... If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder. Also, consider the provocation in deciding whether the defendant committed murder or manslaughter." (Italics added.)
Furthermore, as explained above, CALCRIM No. 252 directed the jury to refer to the instruction on voluntary manslaughter for an explanation of "[t]he act and the specific intent and/or mental state required . . . for that crime." (See Nelson, supra, 1 Cal.5th at p. 544 [relying on similar instruction in finding no likelihood of jury confusion].) CALCRIM No. 570 explained to the jury that "[a] killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion." The remainder of the instruction explained the findings necessary to find such provocation, but there is no language in the instruction requiring a finding of intent to kill or conscious disregard of life. In addition, the jury was instructed that "The People have the burden of proving beyond a reasonable doubt that the defendant did not kill as the result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of murder."
Accordingly, the instructions as a whole directed the jury to consider intent to kill or conscious disregard for life only in the context of the malice determination relevant to the murder charge, and thereafter to consider whether provocation negated that malice. We agree that, in isolation, the version of CALCRIM No. 252 given by the trial court was potentially misleading in stating that the voluntary manslaughter offense requires intent to kill or conscious disregard for life-technically the jury only considers those questions in the context of the murder charge. But, contrary to appellant's argument on appeal, CALCRIM No. 252 did not require the jury to make any additional specific intent finding to convict appellant of voluntary manslaughter rather than of murder. Instead, at most, the instruction misleadingly referred to the prior findings the jury would necessarily need to make in the context of the murder charge before the jury would even consider the issue of provocation. That is, although intent to kill or conscious disregard for life are not findings required under the voluntary manslaughter instruction per se, a defendant convicted of the lesser offense acted with intent to kill or conscious disregard for life-otherwise, there would be no need to consider the possibility that provocation negated such express or implied malice. (Rios, supra, 23 Cal.4th at p. 465 [referring to "the long-established principle that the role of provocation is simply to negate malice and thereby reduce a homicide from murder to voluntary manslaughter"]; see also Martinez, supra, 154 Cal.App.4th at p. 337 [addressing claim regarding CALCRIM No. 252 and concluding that potential for juror "confusion" was "minimal" where "the trial court properly instructed the jury on the elements of murder, including the elements of express and implied malice, and on the elements of voluntary manslaughter"].)
As explained by the Supreme Court in Bryant, supra, 56 Cal.4th 959, "the offenses that constitute voluntary manslaughter-a killing upon a sudden quarrel or heat of passion (§ 192, subd. (a)), a killing in unreasonable self-defense [citation] . . .-are united by the principle that when a defendant acts with an intent to kill or a conscious disregard for life (i.e., the mental state ordinarily sufficient to constitute malice aforethought), other circumstances relating to the defendant's mental state may preclude the jury from finding that the defendant acted with malice aforethought. But in all of these circumstances, a defendant convicted of voluntary manslaughter has acted either with an intent to kill or with conscious disregard for life." (Id. at pp. 969-970; see also Martinez, supra, 154 Cal.App.4th at p. 336 ["voluntary manslaughter can be committed either with an intent to kill or with conscious disregard for human life"].) Thus, an initial showing of malice, albeit then negated by provocation or imperfect self-defense, is essentially a necessary precondition for any conviction of voluntary manslaughter.
Furthermore, as appellant acknowledges, the parties' closing arguments focused on the provocation aspect of voluntary manslaughter and did not suggest the offense required any additional showing of specific intent. (See Nelson, supra, 1 Cal.5th at p. 545 ["both the prosecutor and defense counsel emphasized in argument the correct interpretation of the instructions"].) The prosecutor only discussed malice in the context of the murder charge.
In conclusion, "[e]ven if we assume the language cited by" appellant "was potentially misleading, we cannot agree that this ambiguity posed a substantial risk of misleading the jury into believing" a conviction for voluntary manslaughter required an additional finding of specific intent not required for a conviction of murder. (Nelson, supra, 1 Cal.5th at p. 544.)
Because we reject appellant's claim on the merits, we need not address whether appellant forfeited the claim by failing to object below.
II. No Error in Refusal to Give Unconsciousness Instruction
In People v. Ochoa (1998) 19 Cal.4th 353, 423-424 (Ochoa), the Supreme Court explained," 'Unconsciousness is ordinarily a complete defense to a charge of criminal homicide. [Citation.] If the state of unconsciousness results from intoxication voluntarily induced, however, it is not a complete defense. [Citations.] . . . [T]he requisite element of criminal negligence is deemed to exist irrespective of unconsciousness, and a defendant stands guilty of involuntary manslaughter if he voluntarily procured his own intoxication.' [Citation.] Unconsciousness for this purpose need not mean that the actor lies still and unresponsive: . . . unconsciousness' "can exist . . . where the subject physically acts in fact but is not, at the time, conscious of acting."' "
The trial court must instruct the jury on unconsciousness where there is "substantial evidence [a defendant] was unconscious when he committed the offenses." (People v. Halvorsen (2007) 42 Cal.4th 379, 418 (Halvorsen).) While" '[s]ubstantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence[,]' . . . '[a] reasonable inference may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guesswork; a finding of fact must be an inference drawn from evidence rather than a mere speculation as to probabilities without evidence.'" (People v. Grant (2020) 57 Cal.App.5th 323, 330.) On appeal, "we review the evidentiary support for [the] instruction 'in the light most favorable to [appellant].'" (People v. Wright (2015) 242 Cal.App.4th 1461, 1483.)
Appellant's counsel asked that the jury be instructed on voluntary intoxication resulting in unconsciousness in the language of CALCRIM No. 626. Counsel pointed to the expert testimony that at high levels of blood-alcohol concentration a person may be unaware of their actions. He then pointed to evidence that James had a blood-alcohol level of 0.28 at the time of death, and that appellant was intoxicated the following morning. The prosecutor argued there was no actual evidence of unconsciousness, so giving the instruction would "be a request to have the jury speculate" as to appellant's state. The trial court declined to give the instruction, reasoning that appellant's evidence "maybe are signs that the defendant . . . may have been slightly under the influence, may have been heavily under the influence, but it is not a reasonable inference to infer that he was unconscious for purposes of CALCRIM [No.] 626."
CALCRIM No. 626 provides: "Voluntary intoxication may cause a person to be unconscious of his or her actions. A very intoxicated person may still be capable of physical movement but may not be aware of his or her actions or the nature of those actions. "A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using an intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect, or willingly assuming the risk of that effect. "When a person voluntarily causes his or her own intoxication to the point of unconsciousness, the person assumes the risk that while unconscious he or she will commit acts inherently dangerous to human life. If someone dies as a result of the actions of a person who was unconscious due to voluntary intoxication, then the killing is involuntary manslaughter. "Involuntary manslaughter has been proved if you find beyond a reasonable doubt that: [¶] 1. The defendant killed without legal justification or excuse; [¶] 2. The defendant did not act with the intent to kill; [¶] 3. The defendant did not act with a conscious disregard for human life; [¶] AND [¶] 4. As a result of voluntary intoxication, the defendant was not conscious of (his/her) actions or the nature of those actions. "The People have the burden of proving beyond a reasonable doubt that the defendant was not unconscious. If the People have not met this burden, you must find the defendant not guilty of (murder/[or] voluntary manslaughter)."
Defense counsel also mistakenly asserted that appellant's brother D. Murray testified that appellant and James were drunk when he saw them at 11:00 p.m., prior to the murder. But D. Murray was asked, "Did it sound like they were drunk?" and he responded, "Not really." On appeal, appellant does not claim D. Murray testified he saw appellant drunk the night before the killing.
The trial court did not err. Appellant cites to no evidence that he was severely intoxicated before the killing; instead, he cites to evidence that he and James often drank, that he bought beer and wine the evening before the killing, that there were empty bottles found at the crime scene, and that James had a high blood-alcohol level. Appellant also emphasizes his "extreme intoxication" when he was contacted by the police the next morning. We believe the evidence supported an inference that appellant consumed an unknown quantity of alcohol prior to the killing, and appellant's behavior at the time of his arrest and the odd note he wrote at some point after the killing ("Alice, thought I killed you. You survived") supported an inference that appellant became heavily intoxicated at some unknown point following the killing. But none of that evidence permitted a reasonable inference of unconsciousness at the time of the killing. (People v. Rangel (2016) 62 Cal.4th 1192, 1227 ["although there was evidence defendant had been drinking, there is no evidence he was unconscious or otherwise unaware of his actions"]; People v. Abilez (2007) 41 Cal.4th 472, 516 ["The evidence here shows defendant had consumed some unknown amount of alcohol, but there was no evidence he was so intoxicated that he could be considered unconscious."]; People v. Turk (2008) 164 Cal.App.4th 1361, 1379 (Turk) [testimony that the defendant" 'reeked of alcohol'" "on the day after the killing" "has little or no evidentiary value in determining [the defendant's] level of intoxication at the time of the killing"]; id. at p. 1380 [emphasizing absence of "evidence of the amount of alcohol [the defendant] ingested prior to the killing, or of his blood-alcohol level at the time of the killing"].)
Appellant relies on People v. Wilson (1967) 66 Cal.2d 749, 762, but there the defendant testified he did not recall shooting the victims, as he told the police at the time of his arrest. Similarly, in the second case appellant cites, People v. Bridgehouse (1956) 47 Cal.2d 406, 410, disapproved on another ground in Lasko, supra, 23 Cal.4th at p. 110, the defendant testified he had only a "very hazy" recollection of speaking with the victim prior to the shooting, he had only a "very vague memory" of the victim springing at him, and he did not recall the shooting itself, which was "distorted by a haze of mental void." The Supreme Court subsequently distinguished those cases in finding no error in denying an unconsciousness instruction, stating, "in both Wilson and Bridgehouse, the defendants testified to a mental state consistent with unconsciousness and with prior statements to police." (Halvorsen, supra, 42 Cal.4th at p. 418.) In the present case, there was no testimony from appellant, and appellant cites to no statements to others that suggest he did not remember the killing. (See Turk, supra, 164 Cal.App.4th at p. 1379 [the defendant "did not testify at trial and there is no statement from him therefore that he lacked a recollection of the events preceding the killing"].)
Indeed, the only relevant statements from appellant in the record actually weighed against a finding of unconsciousness. In particular, the morning after the killing appellant admitted to his friend Anthony R. that he had hit James "a lot." He also told Anthony R. that he had attacked James because he "couldn't take her abuse anymore." Although those statements are not so detailed as to negate the possibility of unconsciousness, they tend to undermine rather than support that possibility.
Finally, appellant argues "the bizarre and excessive nature of the force used against James" supported an inference of unconsciousness. It is true that the brutal nature of the killing did not negate the possibility of unconsciousness. (Cf. Halvorsen, supra, 42 Cal.4th at p. 418 [referring to the "complicated and purposive nature" of the defendant's conduct]; Ochoa, supra, 19 Cal.4th at p. 424 [referring to the "methodical, calculated approach to the crimes"].) But just because the manner of the killing was consistent with unconsciousness did not permit the jury to make a reasonable inference that was appellant's state of mind, when the killing was also consistent with a furious killing not performed in an unconscious state.
In sum, the evidence in the record at most suggested it was possible that appellant was unconscious due to extreme intoxication at the time of the killing, but the record provided no basis for a reasonable inference that he actually was. "An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action." (Evid. Code, § 600, subd. (b).)"' "[A] reasonable inference . . . 'may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work.'" '" (People v. Ware (2022) 14 Cal.5th 151, 167.) In the present case, viewing the evidence in the light most favorable to appellant, any jury finding that appellant was unconscious at the time of the killing, despite his statements showing some awareness of the crime, would have been the product of guess work and speculation, not a logical inference from the evidence. The trial court did not err.
Appellant also argues his counsel provided ineffective assistance of counsel in arguing for the unconsciousness instruction by failing to emphasize appellant's "incoherent and irrational behavior when he was detained." But, as explained above, appellant's behavior when he was arrested the morning after the killing had little or no probative value on the question of whether he was unconscious when he killed James.
III. Appellant's Prosecutorial Misconduct Claim Fails
Appellant argues, "The prosecutor's closing argument and rebuttal repeatedly shifted the burden to [appellant] in a manner that was inappropriate, both because it incorrectly implied that the defense bore a burden of proof and because it alluded to evidence that could only have been presented via the testimony of [appellant] himself, in violation of Griffin v. California (1965) 380 U.S. 609 (Griffin). Additionally, this argument improperly implied that provocation sufficient to justify a manslaughter verdict does not exist unless a regular person would be driven to kill." We reject appellant's claim.
"The law governing prosecutorial misconduct is well established. 'Conduct by a prosecutor that does not violate a court ruling is misconduct only if it amounts to "the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury" [citations] or "is so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process" [citation].'" (People v. Kennedy (2005) 36 Cal.4th 595, 617-618 (Kennedy), disapproved on another ground in People v. Williams (2010) 49 Cal.4th 405, 459.)" '"' "[A] prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom...." . . .'"' 'To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner.'" (People v. Gamache (2010) 48 Cal.4th 347, 371.)" '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.'" (People v. Centeno (2014) 60 Cal.4th 659, 667.)
First, appellant complains about a portion of the prosecutor's argument during which the prosecutor asserted that appellant had never expressed remorse for killing James. The prosecutor argued, "Not once during this time period did [appellant] ever express any remorse for Alice James." Defense counsel unsuccessfully objected on the ground that the argument violated Griffin, supra, 380 U.S. 609, under which" 'it is error for a prosecutor to state that certain evidence is uncontradicted or unrefuted when that evidence could not be contradicted or refuted by anyone other than the defendant testifying on his or her own behalf.'" (People v. Harrison (2005) 35 Cal.4th 208, 257 (Harrison).) After the trial court overruled the objection, the prosecutor continued, "And again, during this time, he's been at her house, he's killed her, he's gone to the fridge, he's gone to the bathroom, taken his Motrin, he said goodbye to his friend, he has not expressed any remorse for the woman that he killed."
On appeal, appellant argues that, because appellant did express remorse the night of the killing (by saying he deserved to go "to hell," etc.), the prosecutor's argument was necessarily a reference to his failure "to take the stand and describe his remorse directly to the jury." Appellant has not shown" 'a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.'" (Harrison, supra, 35 Cal.4th at p. 257.) The prosecutor's comments emphasizing appellant's behavior after the killing suggested he was talking about appellant's behavior that night, not his failure to take the stand. (See ibid. ["the prosecutor's remark that defendant 'should be on his knees apologizing' was not a reference to defendant's failure to testify"].) The existence of evidence that appellant did express remorse the night of the killing only demonstrates a factual dispute as to the support in the record for the prosecutor's argument. Although the prosecutor's statement that appellant "has not shown any bit of accountability" can reasonably be understood to refer to appellant's conduct and statements after the killing, it is not reasonably likely the jury understood it as a reference to appellant's decision not to testify.
Next, appellant argues the prosecutor committed misconduct in rebutting defense counsel's assertion that "in a sense it is presumed that what occurred was voluntary manslaughter." The prosecutor responded, "We need evidence that this defendant was provoked." Appellant's counsel objected on the ground that the argument shifted the burden of proof, and the trial court admonished the jury, "the burden is on to the People to establish beyond a reasonable doubt the defendant's guilt. The defense doesn't need to present any evidence." The prosecutor continued, "And there is no evidence that this defendant was provoked in such a manner that he is going to bludgeo[n] to death Alice James."
On appeal, appellant argues the argument improperly suggested appellant had a burden to produce evidence or prove his innocence. (See People v. Bradford (1997) 15 Cal.4th 1229, 1340 (Bradford).) However, appellant cites to no authority that a prosecutor's argument that there is no evidence on a central disputed issue-here, the existence and sufficiency of any provocation-improperly shifts the burden. "A prosecutor may make fair comment on the state of the evidence," and the court's immediate admonishment clarified that the prosecutor's argument about the lack of evidence of provocation did not mean that appellant had any obligation to present evidence. (People v. Cook (2006) 39 Cal.4th 566, 608 [prosecutor's argument about absence of evidence to support defense theory constituted "fair comment" and the trial court properly admonished the jury regarding the prosecution's burden]; see also Bradford, at pp. 1339-1340 ["A distinction clearly exists between the permissible comment that a defendant has not produced any evidence, and on the other hand an improper statement that a defendant has a duty or burden to produce evidence, or a duty or burden to prove his or her innocence."]; accord, People v. Young (2005) 34 Cal.4th 1149, 1195-1196 (Young).)
Appellant also contends the prosecutor's argument about the lack of evidence of provocation was Griffin error, because "what the jury had not heard was [appellant] himself taking the stand and testifying to his own state of mind in the moment the killing took place." However, the Griffin rule" 'does not extend to comments on the state of the evidence.'" (People v. Hovey (1988) 44 Cal.3d 543, 572 (Hovey).) The Supreme Court's decision in People v. Hughes (2002) 27 Cal.4th 287, is instructive. There, the defendant relied on an unconsciousness defense, "the prosecution made various references to the absence of defense evidence concerning events that took place inside the victim's apartment," and the defendant argued "that because defendant was the only person who could have provided the information that the prosecution asserted was missing, the prosecutor's comments improperly highlighted defendant's failure to testify." (Id. at p. 372.) For example, the prosecutor argued there was no evidence of the degree of the defendant's intoxication and" 'Where is there a single piece of evidence that [defendant] somehow killed-something snapped because they were surprised at [seeing] each other [in the apartment]?'" (Id. at p. 373.) The Supreme Court concluded the prosecutor's comments were "nothing more than proper fair comment on the state of the evidence." (Ibid.) The same is true in the present case. Furthermore, the prosecutor's argument did not necessarily refer to an absence of testimony from appellant, because evidence of provocation could have been in the form of evidence of events before the night of the killing, physical evidence in the victim's home, or evidence of statements made by appellant when he was arrested. (Bradford, supra, 15 Cal.4th at p. 1340 [prosecutor referred "to the lack of evidence, which might have been presented in the form of physical evidence or testimony other than that of defendant"]; accord, Young, supra, 34 Cal.4th at p. 1196.)
In any event, "indirect, brief and mild references to a defendant's failure to testify, without any suggestion that an inference of guilt be drawn therefrom, are uniformly held to constitute harmless error." (Hovey, supra, 44 Cal.3d at p. 572.) Even if the prosecutor's comments can be read to refer to lack of testimony from appellant as to why he was provoked, the prosecutor did not suggest the jury should infer his guilt from his decision not to testify-the prosecutor's focus was on the lack of evidence of provocation.
Finally, appellant argues he received ineffective assistance of counsel because defense counsel failed to object to argument that James' ex-husband "never killed Alice. He never felt in fear from her. He never felt that he was physically threatened." Assuming the argument was improper because it implied that the standard for provocation is whether a reasonable person would have done what appellant did (see People v. Forrest (2017) 7 Cal.App.5th 1074, 1085), appellant has not shown a "reasonable probability" that the argument made in passing was prejudicial. (People v. Ledesma (2006) 39 Cal.4th 641, 746.) In Forrest, the alleged misconduct was far more problematic because the prosecutor directly asserted several times that the legal standard was what a "reasonable person" would have done-for example, "You have to find that this is what a reasonable person would do to find manslaughter in this case." (Forrest, at p. 1084.) Nevertheless, the Court of Appeal concluded there was "no reasonable likelihood that the jury relied on the prosecutor's remarks to appellant's detriment. The trial court instructed the jury with CALCRIM No. 570, voluntary manslaughter based on heat of passion. And . . . we presume the jury followed the court's instructions over any misstatements of law by the prosecutor." (Ibid.) The jury in the present case received the same instruction, and there is even less possibility the jury failed to follow the trial court's clear instruction due to the prosecutor's passing and, at most, indirectly misleading argument.
Appellant also references a portion of the argument during which the prosecutor asserted there was no provocation that would "justify the defendant's response." He argues on appeal that the argument was improper, but the argument has been forfeited because defense counsel did not object below.
Appellant has not demonstrated prosecutorial misconduct.
IV. No Error in Denial of Mistrial Due to Spectator Misconduct
Appellant contends that the trial court erred by denying appellant's motion for a mistrial due to spectator misconduct.
A. Background
During the opening statements, a victim witness coordinator for the prosecutor's office led a group of 20 to 30 spectators into the courtroom. According to the trial court's description, they were wearing buttons, three inches in diameter, that had a photo of James and said "Justice for Alice." Appellant's counsel moved for a mistrial, describing the entry of the buttonwearing spectators as "quite a spectacle" and a "deliberate kind of show of solidarity." Counsel argued, "It is misconduct to have a prosecution employee, basically, usher in these independent spectators with this button in the middle of opening statement." In the alternative, appellant's counsel requested an evidentiary hearing, arguing that it would be appropriate to ask the victim witness coordinator what he knew about the buttons.
The prosecutor stated that the spectators in question were friends and family of James and that he did not have prior knowledge that they would be wearing the buttons. He explained that the job of the victim witness coordinator was to bring the spectators "up to our lounge in the morning, keep them separated from the jurors, then escort them to the courtroom, if necessary, if they need help."
The trial court denied the motion for mistrial. The court commented that it could not read the writing on the buttons from the bench and noted that the jurors, with the exception of the alternate jurors, had the same vantage point as the court. The court also pointed out that there was no dispute "as to whether Alice James is a victim" and that, according to appellant's opening statement, the issue at trial was whether the killing was murder or voluntary manslaughter. The court "instructed the District Attorney in this case to inform the spectators . . . to no longer wear the buttons." And the court admonished the jury as follows: "Members [of the public] that come and watch the Court proceedings . . ., they are allowed to come in and watch an open, fair, and public viewing of a public jury trial. But if they wear something or items -- if they wear anything on their person or do anything inside the courtroom or outside of the courtroom, that is not evidence and you may not consider that for any reason. [¶] Some members of the public yesterday were wearing a button, you are not to consider that button for any reason; it is not evidence. [¶] You must not let bias, sympathy, prejudice, or public opinion influence your assessment of the evidence in this case or your decision or your deliberations in any way."
B. Analysis
" 'The right to a fair trial is a fundamental liberty secured by the Fourteenth Amendment.' [Citations.] Because the presumption that a defendant is innocent until proved guilty is a 'basic component of a fair trial under our system of criminal justice,' 'courts must be alert to factors that may undermine the fairness of the fact-finding process' and 'must carefully guard against dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt.'" (People v. Zielesch (2009) 179 Cal.App.4th 731, 744 (Zielesch).)
" 'Spectator misconduct is a ground for mistrial if it is "of such a character as to prejudice the defendant or influence the verdict,"' and the trial court has broad discretion in making this determination." (People v. Carrasco (2014) 59 Cal.4th 924, 965 (Carrasco).) In exercising its discretion, it is appropriate for the court to consider" 'whether what the jury saw was so inherently prejudicial as to pose an unacceptable threat to defendant's right to a fair trial.'" (People v. Chatman (2006) 38 Cal.4th 344, 369 (Chatman).) Prejudice due to misconduct"' "is not presumed. Indeed, it is generally assumed that such errors are cured by admonition, unless the record demonstrates the misconduct resulted in a miscarriage of justice." '" (Ibid.)
Appellant has not shown an abuse of discretion. There was no dispute that James was appellant's victim, the buttons were small and the text was not visible to the jurors other than the alternates, the spectators only wore the buttons once, the court provided a prompt and clear admonishment, and there is no evidence the incident impacted any of the jurors. (See Carrasco, supra, 59 Cal.4th at p. 965 ["Defendant fails to demonstrate that this response by the court was inadequate or that the sounds prejudiced defendant."].) Appellant argues the trial court should have questioned the jurors about the buttons, but he cites no authority requiring such inquiry, which would have brought more attention to the incident with little likelihood of establishing a basis for a mistrial.
The decision in Zielesch, supra, 179 Cal.App.4th 731, is directly on point. There, the Court of Appeal affirmed in a case where spectators wore buttons bearing a photograph of a slain California Highway Patrol officer for the first six days of the trial. (Id. at p. 744.) The court reasoned, "jurors were instructed by the court to disregard the buttons, to not allow sympathy for [the officer] to play a role in their decision regarding the guilt or innocence of either defendant, and to base their verdict solely on evidence presented during the trial. We presume that the jury followed this admonition." (Id. at p. 745.) The court concluded, "the wearing of the buttons presented no 'probability of deleterious effects' on the defendant's right to a fair trial." (Ibid.) The same reasoning applies in the present case.
Finally, appellant argues the analysis is different here because the incident allegedly involved prosecutorial misconduct. But he points to nothing in the record suggesting jurors would have believed the prosecutor coordinated the spectators' actions. Furthermore, given that James's victimhood and appellant's responsibility for the killing were not in question, and given the trial court's very clear admonishment, there was no probability of prejudice under any standard. For the same reason, appellant's counsel did not provide ineffective assistance of counsel in failing to renew his request for an evidentiary hearing. Given the circumstances, there is no reasonable probability such an inquiry would have uncovered prejudice that could not be cured by an admonition.
We follow the well-established authority that a clear and timely admonishment is adequate to address the type of spectator misconduct involved in the present case. (Chatman, supra, 38 Cal.4th at p. 369; see also Zielesch, supra, 179 Cal.App.4th at p. 745.)
V. Cumulative Error
Appellant argues that the cumulative impact of the alleged errors at trial requires reversal. (See In re Reno (2012) 55 Cal.4th 428, 483.) However, we have not found multiple errors occurred below. Appellant's claim of cumulative error fails.
DISPOSITION
The trial court's judgment is affirmed.
We concur. BURNS, J. CHOU, J.