Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. 1215111 of Stanislaus County. Hurl William Johnson III, Judge.
Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Louis M. Vasquez, Lloyd G. Carter and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Levy, Acting P.J.
INTRODUCTION
On the evening of September 11, 2006, appellant Rosa Rapalo Brizendine shot her husband, Alvin Brizendine, in the head. Alvin fled. Appellant followed Alvin and shot him at close range in the chest and abdomen, mortally wounding him. She immediately admitted killing Alvin and expressed remorse.
Solely to enhance readability, some individuals will be referenced by their first names; no disrespect is intended or implied.
Appellant was charged with premeditated murder; a firearm use enhancement was alleged. (Pen. Code, §§ 187; 12022.53, subd. (d).)
Unless otherwise specified all statutory references are to the Penal Code.
The matter proceeded to jury trial. Appellant was found guilty of second-degree murder and the firearm enhancement was found true.
Appellant was sentenced to 15 years to life plus a consecutive term of 25-years-to-life imprisonment.
Appellant argues there is insufficient evidence proving absence of heat of passion. Also, she contends the court prejudicially erred by refusing to give a bracketed portion of CALCRIM No. 505. Finally, she contends the prosecutor committed misconduct during closing arguments and defense counsel was ineffective because he did not object to the prosecutor’s alleged misstatements of law. None of these arguments is persuasive. We will affirm.
FACTS
The Homicide
Alvin was appellant’s fourth husband; she was Alvin’s third wife. All of their prior marriages ended in divorce.
Appellant was born and raised in Honduras.
Appellant admitted her third marriage, which lasted from 1991 to 1996, was fraudulent. She married this man in a staged arrangement to obtain legal residency in the United States.
Appellant and Alvin married in 1997. They lived in a house situated on a large parcel of property. Alvin’s mother, Nancy Shepperd, lived in a trailer situated near the house. Alvin’s son, Shannon, and Shannon’s girlfriend, Dierdre Orio, lived in another trailer on the property.
Appellant worked as a house cleaner for different clients. In 2004, she opened her own bank account and routinely deposited her earnings into it. She also received $450 every month in payment for a parcel of land she sold; appellant deposited this sum into her bank account. The balance in this account was approximately $2,000 on the day of the homicide.
Around 9:00 p.m. on September 11, 2006, Alvin’s mother heard two gunshots, which were at least a minute apart. Soon thereafter, she heard her doorbell ring repeatedly. When she opened the door, appellant was standing outside. Appellant said, “Call the police. I have killed your son. Call the police. I have killed your son.” Then appellant walked away.
Nancy called the police. Stanislaus County Sheriff’s Deputy Jeff Reed found appellant sitting on the steps of the trailer where Alvin’s son and girlfriend lived. The front of appellant’s dress was bloody. Alvin’s body was lying on the ground a short distance away.
A fireman examined appellant and did not find any serious injuries.
A revolver was lying next to Alvin’s head. It had been fired three times. It had a typical 12-pound trigger pull and a loud report. Ballistic analysis indicated the bullets that killed Alvin were fired from this weapon.
Inside the living room of the house, blood droplets were found on the floor near a telephone that was located at the end of a couch. There was a bullet hole in the wall. The telephone’s receiver was off the hook. A cabinet in the southeast bedroom contained a handgun and boxes of nine-millimeter and.22-caliber ammunition.
A trail of blood droplets lead through the kitchen to a back door. The shape of the blood droplets indicated an injured and bleeding person left the house. The droplets continued from the house to the son’s trailer. The distance between the blood droplets increased south of the son’s trailer, which indicated the injured person was moving faster. Blood droplets were found on the steps and deck of the son’s trailer. There was blood transfer on, above and below the front doorknob of the son’s trailer. There was a large pool of blood where Alvin’s body was found.
An autopsy was conducted. Alvin suffered three gunshot wounds. The first bullet entered his scalp and cracked his skull. It was likely a nonlethal wound. The second bullet passed through one of Alvin’s palms into his chest, and traveled through the right lung, the aortic arch and his left lung. This wound was lethal. Gunshot residue indicated that Alvin’s hand was within an inch of the gun’s muzzle when this shot was fired. This is consistent with a defensive wound. The third bullet entered on the left side of Alvin’s abdomen and traveled through the top of his stomach. This wound was potentially survivable with treatment. Gunshot residue indicated the gun’s muzzle was against Alvin’s skin when this shot was fired. Alvin’s cause of death was determined to be shock and hemorrhage due to multiple gunshot wounds.
Appellant’s Interview with an Investigating Detective
Appellant was taken to the police station and interviewed by Stanislaus County Sheriff’s Detective Frank Navarro (the detective). The detective is fluent in Spanish. The interview was conducted in Spanish and it lasted one hour and 35 minutes. The interview was recorded on a DVD and played for the jury. The jurors were provided with a printed English translation of the interview. Also, the detective testified about the interview.
At the outset of the interview, appellant said that she is a murderer and needs to atone for this crime. She admitted shooting Alvin twice.
Appellant said that in 2004 she learned Alvin was involved in a lasting sexual relationship with Esperanza Dubon, who lived in Honduras. Esperanza gave birth to twins who were fathered by Alvin. Alvin went to Honduras a few times each year. His last visit to Honduras occurred four months prior to the homicide.
In November 2004, appellant left Alvin and moved in with a friend.
In 2005, she retained an attorney and commenced divorce proceedings.
In October 2005, appellant returned to live with Alvin because he refused to pay court-ordered alimony. Alvin promised to give appellant a parcel of land in Texas and a mobile home but he did not do so.
A week before the murder, appellant went through Alvin’s briefcase and found photos of Esperanza, Alvin, and the twins; she also found the twins’ birth certificates. She made a photocopy of the birth certificates. She also took a photograph depicting Alvin, Esperanza and the twins. She gave these items to a friend for safekeeping. She planned to give them to her attorney.
Appellant said that in the days leading up to the homicide she told Alvin she “had to leave that place, ” because “I’d see him always buying things for -- He was unfaithful to the marriage, he went off to another woman and had daughters.” However, Alvin “wouldn’t give me anything so I’d be able to leave.”
On the morning of the homicide, appellant had a doctor’s appointment. She suffered from depression and her treatment was not working. Also, she took medication for her thyroid. Appellant underwent a number of tests that morning to determine the cause of her depression. Throughout the interview appellant said that she had been depressed for a long time. She said that she attempted suicide in 1987.
Alvin had a business selling camper shells. After visiting the doctor, appellant went to Alvin’s office. He was not there. Appellant found a piece of paper containing Alvin’s flight itinerary for an upcoming trip to and from Honduras. This made her feel “deranged” and “crazed.”
Appellant went home. She called Alvin and told him they should go to see the divorce attorney. Alvin became angry, told her that he did not have the money to help her, and hung up on her.
Appellant opened a suitcase Alvin had packed. It was filled with gifts for Esperanza and the twins. She felt both rage and sadness.
Appellant took a loaded revolver out of a cabinet in the living room and put it under her bed.
Appellant made various statements to the detective about what she planned to do with the gun. She said that she wanted to kill Alvin and then commit suicide. She also said that she planned to kill Alvin and she had the gun ready to kill him if he did not listen to her. At another point, appellant said she was going to commit suicide. Near the end of the interview, the detective asked, “[T]he plan was that you were going to shoot at him, to kill him and then you were possibly going to take your life? That was the plan, yes or no?” Appellant answered, “I think so.”
Alvin arrived home sometime after it got dark. They began arguing. Appellant said she was dying and asked him to kill her because she “could not stand it anymore.” Alvin said, “[I]f you are crazy I am crazier than you.” Alvin challenged appellant to hit him. She slapped him in the face.
Alvin said that he was going to call the police. He grabbed appellant by the neck and pushed her against a door. He did not squeeze her neck. Alvin told appellant that she was going to jail. Alvin sat on a couch, picked up the telephone’s receiver and started talking.
The detective looked for bruising on appellant’s neck and commented that he did not see any injuries. When the detective said, “[Y]ou have no injuries, ” appellant replied, “No.”
Appellant panicked. She retrieved the revolver from her bedroom and fired a shot at Alvin while he was talking on the phone.
After being shot, Alvin ran out of the house, clutching his head and calling out for his mom and his son. Appellant followed after him.
Alvin went to his son’s trailer. He was knocking on the trailer’s door when he saw appellant. He came toward her. She fired the gun. Alvin fell on top of her. Appellant “was able to feel when he stopped breathing.” Then she stood up and went to tell his mother that she killed him. She left the revolver by Alvin’s body.
Appellant said Alvin didn’t do anything else to her before she shot him other than putting his hand on her neck and pushing her against the wall. The detective asked, “But if he never hits you [w]hy did you do that …?” She answered, “Do you know what it’s like to be a jealous woman?” After acknowledging that “it hurts a lot, ” the detective asked, “But [Alvin] didn’t used to hit you, right?” Appellant replied, “Just once.” The incident occurred two or three years ago. Alvin did not like a joke she made and spanked her “[r]eally hard” one time on her posterior.
Appellant said she fired the gun “[o]nly two times. I did not fire three times.” When pressed on this point, appellant eventually said that she might have fired the gun three times.
The detective asked appellant why she fired the second shot at Alvin. Appellant replied, “[B]ecause at any rate, he would always be able to do something to me.… [¶] … [¶] … He could kill me or who knows what.”
Then the detective asked, “Did you want to kill him?” Appellant answered, “I think so.” Appellant continued, “Yes, I was hurting so much.” Appellant said that she felt rage and pain. She had experienced “two years of nothing but suffering” because of Alvin’s relationship with Esperanza.
Appellant also said, “I shot him because I loved him so much and wanted to give him an opportunity to get things right and all he ever did was break my heart over and over.”
The detective asked appellant what was “the major reason” why she shot Alvin. She replied, “I was jealous.”
The detective asked, “When did you plan to do this to Alvin? Because you had it already planned.” Appellant replied, “This very afternoon, I think. After I saw that he ha[d] his tickets ready.” He also asked, “What time was it that you planned his killing. Just like more or less, it doesn’t have to be an exact time.” Appellant replied, “About an hour before.” The detective asked if she had the gun ready “to kill him if he didn’t listen, yes or no?” Appellant answered, “It’s like that, more or less.” The detective asked if she “resolved to do it, ” when appellant did not listen to her? Appellant replied, “Yes because I couldn’t stand it.”
At the conclusion of the interview the detective asked appellant if she was afraid that Alvin “was going to hurt you … or kill you or something?” She replied, “Look I know he wouldn’t kill me because he’s a coward but he was killing me psychologically.” The detective asked, “… [B]ut you weren’t afraid that …, I mean you weren’t the type of lady that’d say, ‘oh he’s almost home and he’s going to beat me’. Like other ladies that are beaten.” Appellant interrupted, “Oh no no.” The detective continued, “You weren’t afraid of that, right?” Appellant responded, “No.”
Additional Prosecution Evidence
After the interview, the detective met with appellant’s friend, Fedelina Contreras. He collected the photographs and copies of birth certificates that appellant had given to her for safekeeping.
A green car located on the property was searched shortly before the trial. A document from the Department of Motor Vehicles was found on the inside of the rear window. The ink was very faded but careful examination revealed that it stated the car had been sold to appellant.
Alvin’s sister in law, Joan Brizendine, testified that she frequently visited and conversed with appellant. Appellant never complained that Alvin abused her. Joan did not observe any unexplained injuries or marks on appellant. Alvin’s former wives did not complain about any abuse.
Dierdre Orio lived with Alvin’s son for three years before the homicide. She saw appellant frequently. Appellant never had any unexplained marks or injuries and she never complained about any abuse. Once, appellant said she loved Alvin and could not leave him because he would not give her any money. She saw appellant drive several times each week in many different vehicles. She and Alvin’s son were away from the property when the homicide occurred.
Appellant’s Testimony
Appellant testified on her own behalf. During her childhood, she was physically abused by her father, who was drunk every weekend. At age 16, she was raped. Shortly thereafter, she attempted to commit suicide for the first time. She has struggled with depression and suicidal thoughts for many years. She attempted to commit suicide on other occasions.
One of appellant’s sisters, Mirna Gomez, testified their father drank too much and sometimes chased them with a machete when he was drunk. When appellant was aged 16, she became very depressed.
The first two years of the marriage to Alvin were happy. But when she was depressed, Alvin was not sympathetic. He urged her to take natural medication instead of seeing doctors. She had to buy her own food and when she asked for something, Alvin would tell her she did not need it. Alvin discontinued long distance telephone service. He told appellant it cost too much because she spent an excessive amount of time talking to her family. Although Alvin allowed her to drive a number of cars, none of them were legally hers. She did not know if the green car she was driving on the day of the murder legally belonged to her.
Beginning in 2004, appellant maintained her own bank account into which she deposited her earnings from cleaning houses. She had numerous customers including Joanna Raffoni and Norma Bailey. Appellant also received $450 each month in payment for a parcel of land she sold; she deposited this sum into her personal account.
Alvin was blatantly unfaithful but he denied the infidelity to her.
He was sweet to her in public but in private he criticized her.
Alvin physically abused her. On one occasion, he swatted her rear end hard because he did not like a joke she made. Another time, Alvin wanted her to go to work and she did not do so. Alvin grabbed her by the neck, pinned her down on the bed and shook her. Sometimes Alvin pulled her hair in the morning when she did not get out of bed and other times he grabbed her by the throat and shook her.
Once, tenants did not leave a trailer that Alvin owned. Alvin put their belongings in the street and fired a revolver into the air to scare them.
Alvin’s mother testified that when she heard the gunshots on the night of the homicide, she thought Alvin had fired the gun because she heard him “shoot other times.”
Alvin killed a cat and some kittens because they were ruining the wiring on an air conditioning unit. On another occasion, he killed a dog.
Alvin sometimes committed crimes such as shoplifting.
Alvin forced appellant to steal gasoline.
Appellant knew Alvin was involved in a sexual relationship with Esperanza, although appellant did not have any proof and Alvin denied it.
Appellant acknowledged that when she filed for divorce in 2005, she did not seek a restraining order against Alvin.
Appellant returned to Alvin when he said he would help her by letting her live with him; he had not been paying court-ordered spousal support.
Appellant halted the divorce proceedings in December 2005 because Alvin falsely led her to believe he wanted to repair their marriage.
Alvin became more violent toward her after she filed for divorce. He forced her to have oral and anal sex against her will. He told her that Esperanza was a better sexual partner. When appellant did not want to have sex with Alvin, he told her she was good for nothing and should sleep in the dog house. Sometimes he locked her out of the house.
About a week before the homicide, appellant found the twins’ birth certificates and some photographs. She photocopied the birth certificates and took a couple of the photographs. She gave them to Fedelina Contreras for safekeeping; appellant planned to give these items to her attorney.
On the morning of the homicide, appellant saw a doctor for depression.
Norma Bailey and Joanna Raffoni testified that during the time appellant worked for them, she became less and less hopeful. Norma testified that on the last day appellant worked for her, it appeared as though “she had no hope.”
Then she went to Alvin’s office where she saw Alvin’s handwritten notes about his flights to and from Honduras.
At this point, appellant wanted to commit suicide. She went home and got a revolver out of the cabinet and took it to her bedroom. She put the gun to her head but decided to talk to Alvin first to see if they could reach an agreement.
She called her brother and told him she was depressed.
Then she went back to Alvin’s office to talk to him. He said that he would be home soon and they could talk.
Appellant returned home. She found legal papers indicating Alvin and Esperanza “had a legal corporation.” She also found more photographs of Alvin with the twins. Then she found many presents for Esperanza and the twins.
When Alvin came home, he discovered some of his photographs were missing. He became very angry with appellant and told her to return the photographs.
Appellant told him she could not stand living in the house any longer. They called each other names. Alvin said he did not have any money to give her. He said, “If you are crazy, I’m crazier than you are.”
Alvin grabbed her by the throat and pushed her against the wall. He said, “I’m going to kill you. I’m going to kill you.”
Appellant struck Alvin in the face and he released her. Alvin said, “Hit me again. Do it again right here and you’ll see.” Appellant struck Alvin on the other side of his face. Alvin told her that she was going to go to jail.
Appellant felt “crazed.” She went into the bedroom, got the gun and fired one shot at Alvin while he was talking on the telephone.
Alvin yelled, “I’m bleeding, I’m bleeding.” Then he ran outside.
After appellant shot Alvin, she saw flashing lights and the room appeared foggy. A voice told her to follow Alvin, and so she did.
Alvin went to his son’s residence.
Appellant “saw a black figure that was coming at me on top of me” and she fired the gun again.
Alvin fell on top of her. After Alvin stopped breathing, she pushed him off of her. She calmed down and walked to the trailer where Alvin’s mother lived.
Testimony of Alvin’s Former Wives
Alvin’s former wives testified about incidents in which Alvin was physically abusive toward them.
Expert Testimony
Dr. Ray Jackman is a psychiatrist. He interviewed appellant and reviewed various records. He concluded appellant suffered from posttraumatic stress disorder, major depressive disorder and generalized anxiety disorder. Also, appellant was a battered woman. Appellant’s posttraumatic stress syndrome activated on the day of the homicide.
Dr. Linda Bernard is a marriage and family therapist who specializes in treating trauma survivors. She assessed appellant to determine if she was a battered woman. She interviewed appellant and reviewed police reports, medical records and a psychological evaluation by Dr. Ray Jackman. Dr. Bernard described the cycle of domestic violence. Traumatic stress is cumulative. Alvin isolated, intimidated and abused appellant. Appellant was not malingering. When given a hypothetical corresponding to appellant’s testimony, Bernard opined the woman would have a heightened sense of danger when her partner grabbed her throat and pushed her against a wall. It was impossible to say if the perception of danger would dissipate when the partner ran outside.
DISCUSSION
I. There is sufficient evidence proving absence of heat of passion.
Appellant contends the People did not adequately prove the absence of heat of passion. We are not convinced.
When reviewing a challenge to the sufficiency of the evidence, we assess the entire record in the light most favorable to the judgment below to determine whether it contains substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) “The standard is the same, regardless of whether the prosecution relies mainly on direct or circumstantial evidence. [Citation.]” (People v. Vazquez (2009) 178 Cal.App.4th 347, 352 (Vazquez).)
In applying the substantial evidence standard of review, the appellate court adopts all reasonable inferences and presumes in support of the judgment the existence of every fact that a jury reasonably could have deduced from the evidence. Generally, the testimony of a single witness is sufficient to prove a disputed fact. (People v. Young (2005) 34 Cal.4th 1149, 1181.) The trier of fact makes credibility determinations and resolves factual disputes. An appellate court will not substitute its evaluation of a witness’s credibility for that of the fact-finder. The appellate court will not reverse a jury’s verdict, solely because it would have reached a different result if it had been the fact-finder. (Vazquez, supra, 178 Cal.App.4th at p. 352.)
At the outset, it is important to recognize that appellant knew about Alvin’s sexual relationship with Esperanza for two years prior to the homicide. She also knew that he fathered twins by Esperanza. Appellant knew Alvin’s infidelity was continuous. Alvin traveled to Honduras a few times every year. He compared her sexuality unfavorably to Esperanza. The week before the murder appellant took photos and birth certificates from Alvin’s office and gave them to a friend for safekeeping until she could give them to her lawyer. Also, there was evidence from which the jury could conclude that when appellant found the flight itinerary and the suitcase full of gifts for Esperanza and the twins, appellant was not surprised. Appellant told the detective that in the days leading up to the homicide she told Alvin that she had to leave because “I’d see him always buying things for -- He was unfaithful to the marriage, he went off to another woman and had daughters.”
After finding the suitcase of gifts, appellant took a loaded gun out of a cabinet and hid it in her bedroom, where she would have easy access to it. The detective asked appellant when she formulated a plan to kill Alvin and appellant replied that she made this decision about an hour before she shot him. Although appellant made other statements to the detective about what she planned to do with the gun, a jury could reasonably have decided that her statement to the detective that she planned to kill Alvin and then probably commit suicide were the most credible. She also spoke to the detective of her jealousy, anger and terrible sadness. Murder and then suicide is consistent with these emotional states, especially since appellant has previously attempted to kill herself.
Alvin did not return home that evening until it was dark. The jury could have determined that a person would have had sufficient time to cool off after finding the flight information and gifts prior to Alvin’s return home. It also could have determined that finding the flight itinerary and gifts was not sufficient to cause provocation in a person with the same prior knowledge appellant possessed about Alvin’s continuing relationship with Esperanza.
When Alvin came home, appellant said that they argued and she slapped him either once or twice. Alvin told her that he was going to call the police and that she was going to jail. The telephone’s receiver was found off the hook and there was blood in this area. The jury could have reached various conclusions from the evidence, all of which are reasonable and consistent with the absence of heat of passion.
As previously mentioned, appellant admitted to the detective that she intended to kill Alvin and that she planned the killing about an hour before Alvin came home. The jury could have concluded she hid the gun in her bedroom, retrieved it and intentionally shot Alvin three times with the intent to kill him because of his blatant infidelity and attempt to call the police. The jury could have determined appellant instigated the fight with Alvin in order to be able to present a self-defense claim after killing him (if she did not commit suicide). Alternatively, it could have decided that the argument was not staged but that the dispute was not sufficient to cause a reasonable person in her circumstances with her knowledge to become so provoked that she would act rashly and without due deliberation.
The evidence also supports a conclusion that even if appellant was provoked when she fired the first shot, she had enough time to cool off after Alvin fled from the house. Appellant’s decision to chase after Alvin and shoot him twice more at close range proved intent to kill and malice aforethought. Just as it can take only a few moments to be provoked and act under the heat of passion, it also can take only a few moments to cool off. The jury reasonably could have determined that appellant’s act of following Alvin, who was unarmed and wounded, demonstrated that appellant had not acted in the heat of passion. Rather, she had made a deliberate, calculated decision to kill him and was following through on this decision. When appellant found Alvin, she shot him twice at close range in vital organs before he could summon help from a family member. There was testimony that the second shot was fatal and the third shot was potentially survivable with treatment. The jury reasonably could have decided that these shots were not fired in the heat of passion.
We recognize that appellant testified Alvin was physically, sexually, financially and emotionally abusive. Yet, there was evidence contradicting this testimony.
During her interview with the detective a few hours after the homicide, she denied that Alvin abused her in such a manner. She told the detective that he hit her on only one occasion a few years prior to the murder and had never done so again. The defense attempted to explain this discrepancy by presenting expert testimony that minimizing abuse was a recognized phenomenon by battered women. The jury was not required to accept this explanation. Also, there were not any prior police reports or medical records bolstering appellant’s testimony about the abuse she allegedly suffered at Alvin’s hands.
Appellant’s contention that she was financially dependent on Alvin and therefore could not leave him was contradicted by other evidence. Appellant had a personal bank account with approximately $2,000 in it, a regular source of income as a house cleaner, $450 monthly from the sale of property, and there was a vehicle on the property with a form indicating it had been sold to appellant.
The jury reasonably could have found that appellant’s trial testimony was not credible. In addition to the evidence discussed above contradicting her abuse claims, appellant admitted that her third marriage was a fraud committed to obtain legal residency in the United States. If the jury did not find appellant’s testimony credible, it reasonably could have rejected the defense experts’ opinions because they were based in substantial part on interviews they conducted with appellant. An expert’s opinion is only as credible as the evidence on which it is based. (People v. Gardeley (1996) 14 Cal.4th 605, 618). In this case, the two defense experts relied on appellant’s statements to them in formulating their opinions. If the jury did not find appellant’s testimony to be credible, it would have been reasonable for the jury to reject the expert’s opinions.
The jury could have determined appellant’s interview with the detective shortly after the shooting was the most reliable account of the way Alvin treated her during their marriage and of appellant’s state of mind and intent. During this interview, appellant denied abuse, acknowledged that she wanted to kill Alvin, admitted planning to kill Alvin about an hour before he came home, and hid a revolver under her bed where it could easily be retrieved. Having examined the entire record, we conclude that it contains substantial evidence proving absence of heat of passion. Further, there is sufficient proof that appellant intended to kill Alvin and was guilty of second degree murder. Therefore, we reject appellant’s challenge to the sufficiency of the evidence and uphold the conviction.
We have examined the authorities cited by appellant. They do not compel a different conclusion. Appellant’s reliance on People v. Borchers (1958) 50 Cal.2d 321 (Borchers) is misplaced. There, a trial court reduced the jury’s verdict from second degree murder to voluntary manslaughter and this decision was upheld on appeal. However, the trial court is required to reweigh the evidence in ruling on a new trial motion. (Id. at p. 328.) The appellate court applies a different standard. We do not reweigh the evidence or make credibility determinations. (Vazquez, supra, 178 Cal.App.4th at p. 352.) Therefore, Borchers is legally and factually inapposite. The remainder of the cases on which appellant primarily relies were not decided by California courts (see, e.g., State v. Thornton (Tenn. 1987) 730 S.W.2d 309 and Scroggs v. State (Ga.App. 1965) 93 S.E.2d 583 and, therefore, are not binding authority. (U.S. Ecology v. State (2005) 129 Cal.App.4th 887, 905).
II. Refusal to give a bracketed portion of CALCRIM No. 505 was harmless error.
Appellant requested CALCRIM No. 505, which sets forth the law on self-defense, to be given in its entirety. The court refused to give a bracketed portion of this instruction stating that if the defendant knew the decedent threatened or harmed others in the past, the jury could consider that information in deciding whether the defendant’s conduct and beliefs were reasonable. The court reasoned that the instruction was unsupported because there was no evidence that appellant was aware of Alvin’s violence toward his former wives.
The excluded portion of CALCRIM No. 505 provided: “If you find that the defendant knew that _____ <insert name of decedent/victim> had threatened or harmed others in the past, you may consider that information in deciding whether the defendant’s conduct and beliefs were reasonable.”
As given, CALCRIM No. 505 provided, in relevant parts, that in determining whether the defendant’s beliefs were reasonable, the jury must “consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed….” Also, if the jurors found Alvin “threatened or harmed the defendant in the past, ” they were entitled to “consider that information in deciding whether the defendant’s conduct and beliefs were reasonable.” “If the defendant’s beliefs were reasonable, the danger does not need to have actually existed.” Further, “[s]omeone who has been threatened or harmed by a person in the past is justified in acting more quickly or taking greater self-defense measures against that person.”
Appellant contends the trial court committed prejudicial error. While we agree the bracketed portion of CALCRIM No. 505 was warranted, the omission was harmless.
Appellant testified that Alvin threw a tenant’s belongings in the street and fired a gun to scare them. This testimony was sufficient to warrant giving the instruction.
Therefore, it is unnecessary to address appellant’s claim that Alvin’s violence toward animals is sufficient to necessitate giving this portion of the instruction or her assertion it should be given even if the accused was not aware of the decedent’s acts of violence toward others.
This instructional error is evaluated under the Watson standard of a reasonable probability of a more favorable verdict. (People v. Watson (1956) 36 Cal.2d 818, 836; People v. Spencer (1996) 51 Cal.App.4th 1208, 1220-1221 (Spencer).) Having considered the totality of the circumstances, we do not find it reasonably probable that the jury would have returned a more favorable verdict if the bracketed portion of CALCRIM No. 505 had been given.
The jury was not precluded from considering testimony by appellant’s former wives about Alvin’s acts of violence toward them. Their testimony enhanced the credibility of appellant’s testimony about the alleged spousal abuse she endured and bolstered the self-defense claim.
There was also ample evidence proving appellant intended to kill Alvin because of jealousy and rage caused by his infidelity. Had appellant not followed Alvin, who was wounded and unarmed, outside the house and shot him twice at close range while he was trying to seek refuge and obtain assistance, her self-defense claim would have been more tenable. The physical evidence and appellant’s interview with the detective are compelling proof that she intended to kill Alvin and did not act in self-defense.
In Spencer, supra, 51 Cal.app.4th 1208, the appellate court found harmless the trial court’s erroneous refusal to instruct the jury that it could consider the defendant’s knowledge of the decedent’s prior violence toward others when determining whether he reasonably believed he was in imminent danger. (Id. at pp. 1919-1921.)
Having carefully examined the entirety of the evidence, we conclude it is not reasonably probable that the jury would have rendered a more favorable verdict if the bracketed portion of CALCRIM No. 505 had been given. Therefore, the instructional omission was harmless.
III. The prosecutorial misconduct claim was forfeited.
During the portion of the prosecutor’s closing arguments concerning voluntary manslaughter, he urged the jury to consider whether an average person of ordinary disposition would have been so upset she would have killed. He argued that the standard is an ordinary person of average disposition and “[n]ot an ordinary person affected by spousal abuse syndrome, post-traumatic stress syndrome.” He also argued the phrase “ordinary person of average disposition” means “an ordinary person that is confronted with a cheating spouse or a cheating boyfriend or a cheating girlfriend, would they have acted in that fashion? Would they have been so upset, so heated that they would kill?” The prosecutor also stated “And we just don’t have that many homicides as a result of infidelity. There [are] some, but there [are] just not that many. It’s not a standard that we’re going to accept from a reasonable person.” Defense counsel did not object to any of these remarks.
Appellant argues the prosecutor committed misconduct by misstating the law. Respondent argues the issue was not preserved for appellant review due to the absence of a contemporaneous objection. Although appellant summarily claims the issue remains cognizable despite defense counsel’s failure to object, she did not provide a cogent or discernible legal theory supporting this assertion. As will be explained, respondent is correct: the prosecutorial misconduct claim was forfeited.
To preserve a claim of prosecutorial misconduct, defense counsel must object and request judicial admonition, unless an objection would have been futile or could not be cured by judicial admonition. (People v. Hill (1998) 17 Cal.4th 800, 820; People v. Fosselman (1983) 33 Cal.3d 572, 581 (Fosselman).)
We have examined the record. It does not contain any indication that the court would not have fairly entertained an objection by defense counsel or that the jury would not have followed an admonition. The court did not exhibit preference in favor of the prosecutor or demonstrate animus against defense counsel. Defense objections were met with appropriate response. The trial court did not direct counsel to refrain from interruption during closing remarks. Further, the challenged remarks do not fall in the narrow category of comments that are so inflammatory or outrageous that judicial admonishment would have been ineffective. Any confusion or harm caused by the prosecutor’s alleged misstatement of law could have been effectively ameliorated by judicial admonishment. Thus, objection would not have been futile.
Accordingly, we conclude this prosecutorial misconduct claim was not preserved for appellate review. (People v. Montiel (1993) 5 Cal.4th 877, 914 (Montiel); People v. Najera (2006) 138 Cal.App.4th 212, 224.)
IV. Ineffective assistance of counsel has not been established.
Appellant also argues defense counsel was ineffective because he did not object to the alleged misstatements of law contained in the prosecutor’s closing arguments. This contention fails because the appellate record does not eliminate the possibility that defense counsel’s failure to object to these remarks was a reasonable tactical decision. (Montiel, supra, 5 Cal.4th at p. 914-915.)
To establish ineffectiveness on direct appeal, the appellant must affirmatively demonstrate that defense counsel did not have a rational tactical purpose for the challenged act or omission. In all other cases, the conviction will be affirmed on appeal and the defendant relegated to a habeas corpus proceeding at which evidence may be taken to determine the basis, if any, for counsel’s challenged act or omission. (Fosselman, supra, 33 Cal.3d at pp. 581-582.)
Appellant did not satisfy this burden. “An attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel. [Citation.]” (People v. Kelly (1992) 1 Cal.4th 495, 540.) In this case, defense counsel primarily focused on self-defense during his closing argument. He might have decided that an objection and admonishment during the portion of the prosecutor’s arguments devoted to voluntary manslaughter would only have highlighted them in the minds of the jurors. Alternatively, he reasonably could have concluded that objection might have been poorly received by the jury or that it would have called undue attention to an otherwise forgettable argument. In the heated atmosphere of trial, defense counsel is in the best position to determine appropriate tactical choices based on his assessment of the jury’s reaction to the proceedings. (See, e.g., People v. Jackson (1980) 28 Cal.3d 264, 291-292.) In light of all the circumstances, we find the absence of objection could have been a reasonable tactical decision and reject the ineffective assistance claim on this basis.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Dawson, J., Poochigian, J.
Another sister, Martha Gonzalez, testified appellant lived with her in 1988. Appellant was very depressed. On one occasion, appellant was taken to the hospital after being discovered with foam in her mouth.