Opinion
NOT TO BE PUBLISHED
Superior Court of Santa Barbara County No. 1204448 Brian E. Hill, Judge
Robert Franklin Howell, 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, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Michael R. Johnsen, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, J.
Carlos Soto Varela appeals from the judgment entered following conviction by a jury of the first degree murder of Holly Ann Lake (Pen. Code, §§ 187, subd. (a), 189), and the unlawful driving or taking of a vehicle. (Veh. Code, § 10851, subd. (a).) The jury found true an allegation that, in the commission of the murder, appellant had personally used a deadly weapon. (Pen. Code, § 12022, subd. (b)(1).) Appellant was sentenced to prison for an indeterminate term of 25 years to life for the first degree murder conviction, plus one year for the deadly weapon enhancement. In addition, the court imposed a consecutive determinate term of two years for the unlawful driving or taking of a vehicle.
Appellant contends that the prosecutor committed prejudicial misconduct and that the trial court erroneously instructed the jury. We affirm. However, we direct the trial court to correct clerical errors in the abstract of judgment.
Facts
Appellant and Lake, the murder victim, had an intimate physical relationship and lived together. Lake's former boyfriend was Ryan Peck. On August 12, 2005, the Friday before Lake was killed, she met Peck at a bar. She spent the night with Peck at his home and had sexual relations with him.
That same day, appellant told Clinton Helfrich, a friend of appellant his, that he was having problems with Lake and that he would "like to kill that bitch." Appellant was angry because Lake was not with him.
Early Monday morning (August 15, 2005), appellant killed Lake. He led law enforcement officials to her body. She had been stabbed twice in the neck and once in the right shoulder. She had also suffered "defensive wounds" while trying to protect herself. The neck wounds had caused Lake to bleed to death. They had cut the jugular vein on both sides of the neck.
The defense theory was that appellant was guilty only of voluntary manslaughter because he had acted in a heat of passion aroused by Lake's provocation. Appellant testified as follows:
He and Lake had broken up many times, but they had always reconciled at Lake's insistence. At about 2:00 a.m. on Monday, August 15, 2005, appellant and Lake were arguing inside Lake's Jaguar, which was parked in a garage at Lake's residence. Lake said that she had not loved appellant since the first time he had broken up with her in December 2004. Appellant replied, "So, this whole time this was a lie, this was an act." "[W]hat do you mean you don't love, what is this supposed to mean? Have you been cheating on me?" Lake told appellant to "grow up" and stated, "Yeah, I've been sleeping with Ryan [Peck]. I slept with Ryan this morning." Up until that moment, appellant "didn't know that she was having sex with anybody besides [himself.]"
Appellant "cursed, and said, 'Motherfucker,' . . . 'Fuck you.' " He grabbed a knife from the center console of the vehicle and stabbed Lake three times. Her statements had "really pissed [him] off, and [he] . . . let [his] emotions take over [his] actions."
Appellant drove the Jaguar into the hills and parked on the side of a dirt road. He pulled Lake's body out of the vehicle and pushed it into the bushes. He then drove away, but ran out of gas. He abandoned the Jaguar and took a van that was parked by a garden nursery. He drove the van to the home of his aunt and uncle.
Misconduct
I
During cross-examination of appellant, the prosecutor elicited testimony that a reasonable person would not have stabbed Lake. Appellant complains that, based on this testimony and other evidence, the prosecutor erroneously argued to the jury that appellant did not commit voluntary manslaughter because a reasonable person under similar circumstances would not have stabbed Lake. Appellant contends that the prosecutor's cross-examination and erroneous argument constituted prejudicial misconduct.
Appellant's voluntary manslaughter theory was based on a heat of passion killing. " ' "[T]his heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances," because "no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man." [Citation.]' [Citations.]" (People v. Manriquez (2005) 37 Cal.4th 547, 584, italics added.) The passion must have obscured or disturbed " ' " 'the reason of the accused . . . to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment.' " [Citation.]' [Citation.]" (Ibid., italics added.)
The heat of passion "reasonable person" standard does not require that the killing be reasonable. "No matter what the avenue for reducing murder to the intentional killing called voluntary manslaughter, there is moral depravity in the act. A jury presented with the question of adequate provocation is asked to decide whether a reasonable person in the circumstances would have acted out of passion rather than judgment. [Citation.] It is not asked to determine that a reasonable person's responsive act would have been an intentional killing. [Citation.] The law finds mitigation in the motivation for the act but by no means forgives or condones as reasonable the act chosen." (People v. Coad (1986) 181 Cal.App.3d 1094, 1107.)
Here the prosecutor misstated the law by indicating that the test was whether a reasonable person under similar circumstances would have stabbed Lake. For example, during closing argument the prosecutor told the jury: "Provocation has to be sufficient provocation such that, what I call the reasonable person standard, an average, ordinary person . . . under the circumstances would have butchered his girlfriend. That's the question you have to answer." "[Appellant], himself, told you a reasonable person wouldn't have done it. In my way of looking at the law, . . . I think [that] ends the issue . . . ." "[A] reasonable person wouldn't have done what he did under the circumstances. [¶] Legally speaking, I would argue that ends it."
Appellant's misconduct claim is waived because he did not object and request an admonition. An objection would not have been futile, and an admonition would have cured any harm caused by the misconduct. (See People v. Gutierrez (2002) 28 Cal.4th 1083, 1146.)
Appellant claims that, because counsel did not object and request an admonition, he was denied the effective assistance of counsel. "The burden of proving ineffective assistance of counsel is on the defendant. [Citation.]" (People v. Babbitt (1988) 45 Cal.3d 660, 707.) "First, the defendant must show that counsel's performance was deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defense." (Strickland v. Washington (1984) 466 U.S. 668, 687.) In determining whether counsel was deficient, we measure counsel's performance "against the standard of a reasonably competent attorney . . . ." (People v. Kipp (1998) 18 Cal.4th 349, 366.) "A defendant must prove prejudice that is a ' "demonstrable reality," not simply speculation.' [Citations.]" (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.) "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." (Strickland v. Washington, supra, 466 U.S. at p. 694.)
"[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed." (Strickland v. Washington, supra, 466 U.S. at p. 697.)
We need not consider whether counsel was deficient in not objecting and requesting an admonition. Appellant has failed to "show that there is a reasonable probability that, but for counsel's [allegedly] unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington, supra, 466 U.S. at p. 694.) The prosecutor's misstatement of the law was cured by the court's correct instructions on voluntary manslaughter. "[W]e presume that the jury relied on the instructions, not the arguments, in convicting [appellant]." (People v. Morales (2001) 25 Cal.4th 34, 47; see also People v. Pigage (2003) 112 Cal.App.4th 1359, 1369-1370.) Furthermore, the court instructed the jury that, if an "attorneys' comments on the law" conflict with its instructions, the jury must follow its instructions. " 'Jurors are presumed to be intelligent, capable of understanding instructions and applying them to the facts of the case.' [Citation.]" (People v. Lewis (2001) 26 Cal.4th 334, 390.)
II
Appellant contends that the prosecutor committed misconduct by eliciting inadmissible hearsay and character evidence in the form of Lake's out-of-court statements. " 'Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a), italics added.) Lake's out-of-court statements concerned threats made and acts of violence committed by appellant against her. For example, one witness testified that, a few days before her death, Lake had told him that appellant had thrown her down the stairs. According to a second witness, Lake said that appellant had held her by the neck "[l]ike he was strangling her" and had threatened to kill her. A third witness testified that Lake had said that appellant had "told [her] he'd kill [her] if he ever caught [her] cheating on him." Because of these threats and acts of violence, Lake feared appellant. When a friend suggested that she go to the police and get a restraining order against appellant, Lake replied "that if she did that . . . [appellant] would kill her." Lake told another friend that appellant would kill her if he saw her conversing with another man.
"[W]e question whether this issue is properly considered one of misconduct. 'Although it is misconduct for a prosecutor intentionally to elicit inadmissible testimony [citation], merely eliciting evidence is not misconduct. [Appellant's] real argument is that the evidence was inadmissible.' [Citation.] Although the prosecutor in this case certainly asked the questions intentionally, nothing in the record suggests he sought to present evidence he knew was inadmissible . . . . But whether we label the issue misconduct or the erroneous admission of evidence does not greatly matter, for [appellant's] argument is essentially identical under either characterization. Because the cases generally discuss the issue under the rubric of misconduct, we will do so also." (People v. Chatman (2006) 38 Cal.4th 344, 379-380.)
Appellant's misconduct claim is waived because he did not object and request an admonition in the trial court. (People v. Gutierrez, supra, 28 Cal.4th at p. 1146.) Appellant contends that his counsel was ineffective. This contention lacks merit because appellant has failed to show that counsel was deficient. A reasonably competent attorney could have concluded that Lake's out-of-court statements were admissible not to prove the truth of the matters stated or a trait of appellant's character, but to show Lake's fear of appellant.
Such fear was a relevant issue. According to appellant, he killed Lake in a heat of passion triggered by her declarations that she no longer loved him and that she had been sleeping with another man. But in view of Lake's fear of appellant as evidenced by her out-of-court statements, it was reasonable to infer that she would never have made the declarations attributed to her by appellant, especially when she was alone with him and vulnerable. Appellant told her that he would kill her if he discovered that she had been cheating on him. A murder victim's "fear may also be in issue when, according to the defendant, the victim has behaved in a manner inconsistent with that fear (see, e.g., People v. Lew (1968) 68 Cal.2d 774, 778-780 . . . [decedent's fear relevant to disprove the defendant's claim that she was sitting on his lap and examining his gun when it accidentally discharged])." (People v. Hernandez (2003) 30 Cal.4th 835, 872-873.)
Respondent contends that Lake's statements "were properly admitted under Evidence Code section 1109, subdivision (a)(1), which permits evidence of prior domestic violence in a domestic violence case, notwithstanding the hearsay rule." (RB 17) We disagree. Section 1109, subdivision (a)(1), has nothing to do with the hearsay rule. It permits the admission of evidence of prior domestic violence notwithstanding Evidence Code section 1101, which excludes character evidence when offered to prove a person's conduct on a specified occasion. Section 1109, subdivision (a)(1), provides in relevant part: "[I]n a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352."
III
Appellant contends that the prosecutor committed misconduct by eliciting "inadmissible speculation without foundation [citation] and lay opinions [citation]," which also constituted inadmissible character evidence. The evidence in question consisted of testimony by Ralph Lake, Jr. and Michael Dickman. Ralph Lake, Jr. testified that he knew appellant was verbally abusing Lake because "on a handful of times" he saw her "come out of the bathroom in tears." Dickman testified that he "started to be concerned that [Lake's] life-style was changing that maybe [appellant's] association [with her] had brought that down and she was deteriorating . . . ." Dickman "expressed concern" to Lake that appellant "might be dangerous . . . and that maybe she should consider terminating the relationship."
Appellant's misconduct claim is waived because he did not object and request an admonition in the trial court. (People v. Gutierrez, supra, 28 Cal.4th at p. 1146.) Appellant contends that his counsel was ineffective. We need not consider whether counsel was deficient because appellant has failed to "show that there is a reasonable probability that, but for counsel's [allegedly] unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington, supra, 466 U.S. at p. 694.)
IV
Finally, appellant contends that the "prosecutor committed misconduct by eliciting expert opinions of appellant's intent and mental state at the time of the stabbing." The opinions were given by Dr. Robert Anthony, a forensic pathologist who performed an autopsy on Lake's body. Dr. Anthony opined that the stabbings were not "overkill" because they had not been delivered with "a great deal of force" and because Lake had not been repeatedly stabbed. Dr. Anthony noted that "the situation we're dealing with, basically, [is] three wounds to the neck and everything else is a defensive injury." As to the neck wounds, the knife had stopped "on the surface of bones." Dr. Anthony explained: "[I]n my training and experience, we do not have the kinds of injuries that are indicative of either extreme rage or something of this nature, something very personal where the head can be sometimes severed completely. A knife like this is capable of being utilized and doing that. [¶] To have an injury that goes through bone is, again, a sort of thing that I associate with a great deal of force, and when you're questioning whether there was a great deal of force then usually that indicates a great deal of rage on the part of the killer."
Appellant's misconduct claim is without merit because Dr. Anthony's opinion that there was no "overkill" was not given in response to a question asked by the prosecutor. Instead, it was given in response to the following question asked by appellant's counsel during cross-examination: "Based upon your examination of the wounds did they appear to be inflicted with a great deal of force?" Furthermore, the misconduct claim is waived to the extent that the prosecutor questioned Dr. Anthony on this issue during redirect examination, since appellant did not object or request an admonition.
We reject appellant's contention that counsel's conduct denied him the effective assistance of counsel. Appellant has failed to show that a reasonably competent attorney would not have questioned Dr. Anthony on the amount of force used. Nor has he shown that, having "opened the door" by asking such a question, a reasonably competent attorney would have objected to the prosecutor's pursuit of this line of questioning on redirect.
In any event, appellant has failed to show "that there is a reasonable probability that, but for counsel's [allegedly] unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington, supra, 466 U.S. at p. 694.) Dr. Anthony did not opine that the nature of the stabbings indicated an absence of heat of passion. Rather, he opined that the stabbings were not indicative of "extreme rage" because there were only three serious wounds that had not been inflicted with a great deal of force. Pursuant to CALCRIM No. 570, the jury was instructed that rage is not required for a heat of passion killing: "Heat of passion does not require anger, rage, or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection." Thus, if the jury had credited Dr. Anthony's testimony, it still could have found appellant guilty of voluntary manslaughter on a heat of passion theory.
Jury Instructions
At appellant's request, the trial court gave CALCRIM No. 5.22, which provides as follows: "Provocation may reduce a murder from first degree to second degree and may reduce a murder to manslaughter. The weight and significance of the provocation, if any, are for you to decide. [¶] 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."
Appellant contends that CALCRIM No. 5.22 is incomplete and misleading when, as here, it is given together with the voluntary manslaughter instruction, CALCRIM No. 570. The problem allegedly is due to its failure to instruct that a provocation may reduce a homicide from first degree to second degree murder even if the provocation would not have caused an ordinarily reasonable person "to act rashly and without due deliberation, that is from passion rather than from judgment." (CALCRIM No. 570.) Appellant argues that the trial court had a duty to instruct sua sponte to this effect.
CALCRIM No. 5.22 and its predecessor, CALJIC No. 8.73, are pinpoint instructions that are not required to be given sua sponte. (People v. Rogers (2006) 39 Cal.4th 826, 878-880.) Because appellant did not ask the trial court to amplify or clarify CALCRIM No. 5.22, he may not complain on appeal that the instruction was incomplete and misleading. (People v. Mayfield (1997) 14 Cal.4th 668, 778-779.)
In People v. Rogers, supra, 39 Cal.4th at p. 879, our Supreme Court characterized CALCRIM No. 5.22 as the "CALCRIM analogue to CALJIC No. 8.73." CALJIC No. 8.73 provided: "If the evidence establishes that there was provocation which played a part in inducing an unlawful killing of a human being, but the provocation was not sufficient to reduce the homicide to manslaughter, you should consider the provocation for the bearing it may have on whether the defendant killed with or without deliberation and premeditation."
Abstract of Judgment
Appellant was sentenced to prison for an indeterminate term of 25 years to life for the first degree murder conviction, plus one year for the deadly weapon enhancement. In addition, the court imposed a consecutive determinate term of two years for the unlawful driving or taking of a vehicle.
The abstract of judgment does not accurately reflect the sentence pronounced by the trial court. The court used Judicial Council Form CR-292 to show both the indeterminate and determinate terms without indicating the length of the determinate term. Form CR-292 is to be used only for indeterminate terms and accompanying enhancements. To reflect the two-year consecutive determinate term for the unlawful driving or taking of a vehicle, the clerk should have prepared a separate abstract of judgment on form CR-290.1.
"Courts may correct clerical errors at any time, and appellate courts . . . that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts. [Citations.]" (People v. Mitchell (2001) 26 Cal.4th 181, 185.) We therefore order the trial court to correct the abstract of judgment as set forth below.
Disposition
The judgment is affirmed. The trial court is ordered to prepare an amended abstract of judgment on form CR-292. The reference to appellant's consecutive determinate term in item 1 shall be deleted, and the box in item 7 entitled, "Additional determinate term (See CR-290)," shall be checked. In addition, the trial court is ordered to: (1) prepare a separate abstract of judgment on form CR-290.1 showing appellant's consecutive determinate two-year prison term for the unlawful driving or taking of a vehicle, and (2) forward certified copies of the abstracts of judgment to the Department of Corrections and Rehabilitation.
We concur: GILBERT, P.J., COFFEE, J.