Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, Super. Ct. No. RIF124965, Helios (Joe) Hernandez, Judge
Carl Fabian, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Gil Gonzalez, James H. Flaherty III, and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
King, J.
I. INTRODUCTION
Defendant Anthony Wayne Brown was convicted of the second degree murder of Bounalom (also known as Den) Ketnouvong, possessing a firearm as a felon, and personally discharging a firearm, causing Den’s death. (Pen. Code, §§ 187, subd. (a), 12021, subd. (a)(1), 12022.53, subd. (d).) Defendant was sentenced to 43 years to life, and appeals.
Defendant’s sentence consisted of three years for the felon-in-possession conviction in count 2, plus a consecutive 15 years to life for the second degree murder conviction in count 1, plus a consecutive 25-year-to-life term for the Penal Code section 12022.53, subdivision (d) firearm enhancement.
Defendant testified at trial and admitted he shot Den, but claimed he was guilty of voluntary manslaughter based on heat of passion, not murder, as the prosecution was claiming. Defendant claims the trial court abused its discretion and deprived him of a fair trial in refusing to admit defense-proffered evidence that Den had a 0.10 percent blood-alcohol content and amphetamines in his system at the time of his death, habitually used drugs, including methamphetamine, was abusive toward his wife, and had a sexual interest in young girls. He argues the evidence was relevant to show his voluntary manslaughter/heat of passion defense, and there is a reasonable probability the jury would have found him guilty of the lesser offense of voluntary manslaughter based on heat of passion had the evidence been admitted.
We conclude the trial court did not err in excluding the evidence. The evidence was not relevant to the objective component of the heat of passion defense. That is, whether a person of average disposition in defendant’s position would have been provoked to shoot Den. And to the extent any of the evidence was relevant to corroborate defendant’s testimony that he actually, subjectively shot Den in a heat of passion, its probative value was clearly outweighed by its tendency to confuse the issues and unduly consume time.
II. BACKGROUND
A. Prosecution Evidence
Around 11:00 p.m. on July 10, 2005, Barrika Thomas, then age 26, was at home in her apartment in San Bernardino when she received a telephone call from her roommate, Candyce Jackson, then age 19. Jackson told Thomas she was locked out of her father’s home in Moreno Valley and needed a ride. Thomas did not drive a car, and at Jackson’s request called Jackson’s boyfriend, defendant. In a three-way telephone conversation between Thomas, Jackson, and defendant, defendant agreed to give Jackson a ride.
Around 1:00 a.m. on July 11, defendant arrived at Thomas’s apartment, and he and Thomas headed toward Moreno Valley, using directions Jackson had given them. Neither defendant nor Thomas knew how to get to Moreno Valley and Jackson’s directions were poor, so they drove around “confused” for the next two hours. According to Thomas, the search left defendant “[m]aybe, a little frustrated.”
Earlier, when Jackson first called Thomas, Jackson said she was calling from the apartment of a man who was asking her for oral sex. Thomas briefly spoke to the man, and told him he should not be requesting sexual acts from Jackson. The man had an Asian accent, and told Thomas he was “a nice guy” and was only offering Jackson “this expensive jacket” and would not demand any sexual favors from her. Jackson was not crying or upset, and Thomas believed she was simply trying to get a ride home.
As Thomas and defendant were driving around trying to find Moreno Valley, Jackson called defendant on his cell phone, and defendant explained to Jackson that he and Thomas were lost. Thomas believed Jackson told defendant that the man whose apartment she was in was making “sexual advances” toward her, because defendant was telling Jackson to “get away from” the man’s apartment. Shortly after defendant concluded the call with Jackson, Thomas and defendant realized they were in Ontario, and defendant decided to call someone to help him find Moreno Valley. By this time, it was early morning, and Thomas was tired of riding in the car and wanted to go home.
As the sun came up, Jackson and defendant arrived back in San Bernardino. Once there, defendant drove to a residence, went inside, and returned to the car with a friend of his who knew how to get to Moreno Valley. The three of them then headed toward Moreno Valley, and Jackson called again. By this time, Jackson had left the man’s apartment and said she was at “some store.” Around 30 minutes after they left San Bernardino together, Thomas, defendant, and defendant’s friend found Jackson at a Moreno Valley gas station. Jackson appeared tired but was not crying, her clothing appeared intact, and she did not say she had been sexually assaulted.
According to Thomas, defendant was frustrated and “mad” at Jackson because he had to come and get her. He told her they were not leaving until she “showed him the man” who had made sexual advances toward her. Jackson directed defendant to a large apartment complex where the man lived. Defendant drove into the complex and he, his friend, and Jackson got out of the car and walked away. A short time later, Jackson came back to the car, without defendant and his friend, and told Thomas that defendant and his friend were “talking to him.”
Minutes later, defendant and his friend came back to the car but did not get in, and defendant told Jackson to get into the driver’s seat. Defendant and his friend then walked away from the car a second time, this time without Jackson. As Thomas and Jackson sat silently in the car, Thomas heard a gunshot. A couple of minutes later, defendant and his friend came back to the car and got in. Defendant got in the front passenger seat, his friend got in the backseat where Thomas was sitting, and defendant told Jackson to drive away at a “normal speed.” As the four of them were leaving the parking area, Thomas heard a woman screaming.
Jackson drove to San Bernardino and took defendant’s friend home. There, defendant and his friend talked outside the car for a few minutes. Then defendant began driving again, and took Thomas home to her apartment, but as Jackson was getting out of the car with Thomas, defendant asked her in a loud, sharp voice, “Where do you think you’re going?” Jackson did not get out of the car but left with defendant. Thomas went into her apartment and went to bed.
In July 2005, D.K., then age 11, was living in a Moreno Valley apartment with his mother Allie, his 16-year-old brother J.K., and his father Den. On July 10, Allie was working during the evening, and D.K. was at home with Den, J.K., and their cousin M.S. Late that evening, the doorbell rang and a girl was at the door.
D.K. answered the door, but went back into his room while Den spoke to the girl. J.K. and M.S. were “kind of freaked out” after they saw the girl in the living room, because they had seen her earlier that evening and believed she had followed them home. J.K. testified that, around 10:00 p.m., he saw the girl knocking on another apartment door and “screaming” for her father to let her in. Den allowed the girl to use the telephone, and the girl left the apartment around midnight. D.K. never heard the girl or Den yelling during the time the girl was in the apartment.
D.K. testified that Allie came home from work around 5:00 a.m. and was talking to Den. A short time later the doorbell rang, and Allie asked Den to answer the door. Den answered the door and began talking to whomever was outside. D.K. did not hear anyone yelling or screaming, nor did he hear Den talking. Instead he heard two men talking “in whispers.”
D.K.’s bedroom window looked out onto the stairway leading up to his family’s second floor apartment. D.K. looked out his window and saw the girl who had been in the apartment the night before. Around 15 minutes later, D.K. heard what he thought was a firecracker, and felt the stairs leading up to their apartment “shake a little bit.” D.K. looked out his bedroom window again and saw two men running away. This time, he did not see the girl.
D.K. and Allie ran to the front door. They found Den lying “on the floor” with blood “squirting” from his face, and D.K. knew he was dead. A bullet had transected Den’s brain stem and vertebral artery, causing his death.
Allie testified she arrived home from work shortly after 5:00 a.m. and found Den asleep in the living room, waiting for her to come home. Shortly thereafter the couple went to bed, and several minutes later the doorbell rang. Allied looked through the peephole and saw a Black man she did not recognize. Allie summoned Den who, in response to Allie’s questions in their native Laotian, told Allie he recognized the man but did not owe him any money.
Den stepped outside and spoke to the man. Allie heard Den say, “Go get your brother, ” but she could not hear what the other man was saying. Allie was not concerned because the tone of the conversation sounded “normal.” Den came back into the apartment, went outside a second time, and continued talking to whomever was outside.
Allie went back to bed at some point while Den was outside, and less than 10 minutes after she went to bed she heard a gunshot. She looked out the window and saw two men running away. D.K. grabbed her and told her not to go outside. She called 911. When officers arrived, one of them told Allie he had been to her apartment earlier that morning because “someone had reported something stolen.” Allie later discovered that her diamond pendant necklace was missing.
Defendant had four telephone conversations with his older sister while he was in jail on unrelated charges in late July 2005. At the time of the jail calls, which were recorded and played to the jury, a homicide investigator had interviewed defendant and told him he was a suspect in the July 11 murder. Defendant also knew that Jackson was in custody and had been charged with the murder.
During the jail calls, defendant said he had “fucked up” and wanted to die because he could not serve life in prison. He also asked his sister whether she had gotten “them clothes out [of] the cleaners” for him, and suggested that “if anything goes bad” then Jackson (Baby) and his friend (Old Green Eyes) would have to be killed.
B. Defense Evidence
Defendant testified in his own defense. He was released from prison on parole on June 2, 2005, and began a relationship with Jackson several days later. By early July, they were dating each other “exclusive[ly], ” and defendant was in love with Jackson.
Around 1:00 a.m. on July 11, 2005, defendant received call from Jackson at his home in San Bernardino. Jackson had locked herself out of her father’s apartment in Moreno Valley and wanted defendant to come and get her. The call was a three-way call facilitated by Jackson’s roommate, Thomas. Defendant agreed to get Jackson, and arranged to pick up Thomas so she could direct him to Moreno Valley.
Around 2:00 a.m., Jackson called again and told defendant she was “at some dude’s house using the phone, ” and the guy was making sexual advances toward her. Jackson sounded worried, and defendant was worried that something was going to happen to her. Around 3:00 a.m., Jackson called again and told defendant “[t]he dude” was telling her to “suck his dick” and had threatened her by saying “that” was why “stupid bitches get killed, or, shot.” Jackson also told defendant that the “dude had a gun.”
At that point, defendant told Jackson to leave the man’s apartment immediately. Defendant admitted he had a gun with him on the drive to Moreno Valley because he always carried a gun.
As he was driving, defendant kept trying to call Jackson at the number she was calling from, but some of his calls would not go through and he was becoming increasingly worried. During one call from Jackson after 3:00 a.m., the “dude” told defendant to “come get your bitch” but did not provide directions to his apartment. Jackson told defendant she did not want to leave the apartment because she would not be able to communicate with defendant. Defendant finally told Jackson to leave and find a store or a park.
Around the same time, defendant decided to return to San Bernardino to pick up his friend, Clifford McCrary, who knew how to get to Moreno Valley. McCrary went by the name of “Green Eyes” because he had green eyes. Thomas and defendant picked up McCrary, and around 5:30 a.m. they found Jackson at a convenience store in Moreno Valley. By that time it was getting light outside.
Defendant was relieved to find Jackson, ran over to her, and asked her whether she was all right. Jackson said she was all right, but felt cold. Then, when defendant asked Jackson what had happened to her, she said she did not want to talk about it. That made defendant believe Jackson had been sexually assaulted. Defendant was also frustrated because Jackson would not tell him what had happened, and he was tired after looking for Jackson all night.
After defendant and Jackson got into the car, defendant asked Jackson whether she had been raped. Jackson denied that she had been raped but said “the dude” was “touching on” her and wanted her to “suck his dick.” After Jackson would not provide further details, defendant told her to tell him where this “dude” was. Jackson directed defendant to the apartment complex, but after they drove into the complex she was reluctant to tell defendant where the apartment was. At that point, defendant told Jackson: “[Y]ou need to tell me where this dude live[s] or I’m going to just leave you right here.”
Defendant, McCrary, and Jackson began walking through the apartment complex, and McCrary eventually knocked on Den’s apartment door. Defendant told Jackson he only wanted to find out what had happened in the apartment. Defendant was still armed with a.38 special, and believed the “dude” also had a gun. McCrary was unarmed.
After McCrary knocked on the apartment door, he descended the stairs and he and defendant stayed at the bottom of the stairs, while Jackson walked up the stairs to the apartment. Den stepped out of his apartment, recognized Jackson, and asked her, “Where’s my chain?” At that point, defendant asked Jackson, “Is that the dude?, ” and she said “[y]eah.” He then asked Jackson whether she had the man’s chain, and she said “[n]o.” Defendant told Jackson to go back to the car, and she complied.
Defendant believed Den was acting “erratic, ” “fidgety, ” and “agitated, ” like a person who is on cocaine or methamphetamine. Defendant walked halfway up the stairs and asked Den whether he had made sexual advances toward his girlfriend. Den ignored defendant’s question and again mentioned the chain. Den continued to evade defendant’s question, which made defendant believe Den had sexually assaulted Jackson.
This “verbal confrontation” between defendant and Den continued for about 10 minutes. Defendant told Den he needed to calm down and he was “just trying to find out what took place with my girl.” At one point, defendant told Den he was going to get his brother, by whom he meant McCrary, in order to show Den there were “two of us, ” and began walking down the stairs. Den said, “go get your brother.” Defendant then told Den that if he did something to Jackson he needed to just say so. Den said, “the little [nigger] bitch took my... chain, ” and either, “She sucked my dick” or “She’s supposed to suck my dick.”
At that point, defendant said he “just flashed out” and “lost it.” He admitted he shot Den because he thought Den had probably raped Jackson. He was halfway down the stairs with his back turned to Den when he pulled his gun out of his waistband, turned, looked, and pulled the trigger. The incident happened in a “split second.” Defendant and McCrary then ran to the car.
C. The Defense-proffered Victim Character Evidence
During defendant’s testimony, and after defendant testified concerning what had happened when he confronted and shot Den outside Den’s apartment, defense counsel sought to introduce evidence of Den’s character. The proffered evidence included “what changes were going on in [Den’s] life” during the 18 months before his death; “how he was starting to act differently, erratically, using methamphetamine”; that he had been drinking the day he was shot and killed; and he was a “very violent and abusive person” who had been “beating on” his wife Allie for months or years. Defense counsel proposed to call Allie and at least one of Den’s two sons, D.K. and J.K., to testify to this evidence.
Counsel also proposed to call Jackson’s father to testify that Den had a sexual interest in young girls, was “very sexually motivated, ” and was “kind of a pervert.” The offer of proof was that Den had invited Jackson’s father into his apartment to watch pornography, and Jackson’s father had seen Den driving around with young girls “all the time” and had invited Jackson’s father to “party” with them. Counsel also proposed to present toxicology test results showing that Den had amphetamines in his system and a blood-alcohol content of 0.08 percent at the time of his death.
Counsel argued all of the evidence would corroborate defendant’s impression that Den had sexually assaulted Jackson, had been “up all night” abusing Jackson, and was behaving erratically before defendant shot and killed him. Counsel maintained it did not matter that defendant did not know about Den’s propensity for violence, past or present drug use, or sexual interest in young women when he shot Den. The evidence was relevant to defendant’s heat of passion defense, counsel argued, because it was consistent with and corroborated defendant’s version of what happened at the time he shot and killed Den.
The prosecutor argued that none of the evidence, including Jackson’s father’s opinion of Den, Den’s propensity for violence against women, and drug use, was relevant to show “what happened” the morning Den was shot and killed. The prosecutor pointed out there was no evidence that Den was behaving violently just before defendant shot him, and the evidence would only serve to “dirty” and “sully” Den.
The trial court did not allow the defense to present the evidence, reasoning it had no probative value on the question of what was said between defendant and Den, and how Den was behaving when defendant confronted and shot him. The issue, the court said, was what was in defendant’s mind, not what was in Den’s mind, and defendant’s version of what was said and what occurred when defendant confronted and shot Den was uncontradicted. Accordingly, the court concluded that the defense-proffered evidence had “no probative value at all” because it was irrelevant to what was in defendant’s mind, and would unduly consume court time. (Evid. Code, §§ 210, 352.)
All further statutory references are to the Evidence Code unless otherwise indicated.
D. The Second Degree Murder Verdict
The jury was instructed on the elements of first and second degree murder, and on the lesser offense of voluntary manslaughter based on a sudden quarrel or heat of passion. The prosecutor argued defendant was guilty of the first degree murder of Den, because he acted with premeditation and deliberation when he shot and killed Den. Defense counsel argued defendant was not guilty of first or second degree murder, but voluntary manslaughter based on a sudden quarrel or heat of passion. As indicated, the jury found defendant guilty of the second degree murder of Den.
III. DISCUSSION
Defendant claims the court prejudicially erred in excluding his proffered evidence that Den had alcohol and amphetamines in his system at the time of his death, that Den habitually used drugs and alcohol, had a propensity for violence against women, and had a sexual interest in young girls. As he did in the trial court, defendant argues the evidence was relevant to show he was being truthful when he testified that Den was behaving like a person on methamphetamine, and would have corroborated his testimony that he reasonably believed Den had sexually assaulted Jackson, thereby bolstering his “lone defense” that he shot Den in a heat of passion.
We conclude that the proffered evidence was not relevant to the objective prong of defendant’s voluntary manslaughter/heat of passion defense, that is, whether defendant was reasonably provoked to shoot Den in a heat of passion. Its sole probative value was to corroborate defendant’s claim that he “actually, subjectively” killed Den in a heat of passion. More specifically, the evidence would have corroborated defendant’s uncontradicted, but perhaps not credible, testimony that Den was behaving erratically and called Jackson a “[n]igger bitch” moments before the shooting, even though Den did not know at the time of the shooting that Den habitually used, had been using drugs that night, had a propensity for violence against women, or a sexual interest in young girls. The probative value of the evidence to corroborate Den’s version of events was, however, far outweighed by the probability that its admission would have confused and distracted the jury, and unduly consumed court time.
The heat of passion required for voluntary manslaughter has both a subjective and an objective component. (People v. Cole (2004) 33 Cal.4th 1158, 1215.) The defendant must “actually, subjectively, kill under the heat of passion, ” but the circumstances giving rise to the heat of passion are viewed objectively. (Ibid.) “Such heat of passion exists only where ‘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 from judgment.’”’” (People v. Carasi (2008) 44 Cal.4th 1263, 1306.)
In other words, the 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.]” (People v. Cole, supra, 33 Cal.4th at pp. 1215-1216.) Also, the victim “must taunt the defendant or otherwise initiate the provocation.” (People v. Carasi, supra, 44 Cal.4th at p. 1306.) The jury was instructed accordingly.
Judicial Council of California Criminal Jury Instructions, CALCRIM No. 570 (Voluntary Manslaughter: Heat of Passion—Lesser Included Offense (Pen. Code, § 192, subd. (a))) told the jury: “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 defendant killed someone because of a sudden quarrel or in the heat of passion if: [¶] 1. The defendant was provoked; [¶] 2. As a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured his reasoning or judgment; [¶] AND [¶] 3. The provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment. [¶] 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. [¶] In order for heat of passion to reduce a murder to voluntary manslaughter, the defendant must have acted under the direct and immediate influence of provocation as I have defined it. While no specific type of provocation is required, slight or remote provocation is not sufficient. Sufficient provocation may occur over a short or long period of time. [¶] It is not enough that the defendant simply was provoked. The defendant is not allowed to set up his own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether a person of average disposition, in the same situation and knowing the same facts, would have reacted from passion rather than from judgment. [¶] If enough time passed between the provocation and the killing for a person of average disposition to ‘cool off’ and regain his or her clear reasoning and judgment, then the killing is not reduced to voluntary manslaughter on this basis. [¶] 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.”
Defendant testified he shot Den in a heat of passion because, moments before the shooting, he observed that Den was behaving erratically like a person on cocaine or methamphetamine, and Den said to defendant, “the little [n]igger bitch took my... chain” and “[s]he’s supposed to suck my dick.” According to defendant, Den’s erratic behavior and vulgar comments about Jackson caused him to believe that Den had sexually assaulted Jackson, and this belief caused defendant to “flash out” and shoot Den in a heat of passion.
Defendant’s testimony showed that defendant “actually, subjectively” shot Den in a heat of passion. But it did nothing to bolster the objective component of defendant’s heat of passion defense—that is, that a person of average disposition in defendant’s position would have been provoked to shoot Den. We believe that the defense-proffered evidence was, broadly speaking, relevant to the subjective component of defendant’s heat of passion defense, but, like defendant’s testimony itself, had no probative value to whether a person of average disposition would have been provoked to shoot Den.
The prosecution presented the testimony of Den’s wife and two children. Based on their testimony, Den appeared to be a law-abiding citizen, at home with his children the night before he was killed, who was not the kind of person who would make sexual advances toward Jackson and would not make the vulgar comments about Jackson that defendant claimed he made. Defendant’s testimony that Den was behaving erratically, like a person on drugs, called Jackson a “[n]igger bitch” and said she was supposed to such his dick, directly challenged the law-abiding, nice-guy impression of Den that the jury probably gleaned from the testimony of Den’s family members.
Although defendant did not know, at the moment he shot Den, that Den had been using drugs or alcohol that night, habitually used drugs and alcohol, had a propensity for violence against women, or was sexually interested in young girls, the defense-proffered evidence that Den was a drug user, a wife-beater, and chased young girls, would have had at least some tendency to corroborate defendant’s claim that Den was, in fact, behaving erratically and made vulgar comments about Jackson, and also would have tended to corroborate defendant’s subjective belief that Den sexually assaulted Jackson.
Still, the proffered evidence had little probative value on the subjective component of the heat of passion defense, particularly in view of the probability its admission would have confused and distracted the jury from the central issue at hand, which was whether a person of average disposition would have been provoked to shoot Den. (§ 352.) The evidence also would have unduly consumed court time. (Ibid.)
A trial court may exclude relevant evidence under section 352 if its probative value is substantially outweighed by the probability its admission would unduly consume court time, or create a substantial danger of confusing the issues. The exclusion of evidence under section 352 may not be disturbed on appeal absent an abuse of discretion. (People v. Minifie (1996) 13 Cal.4th 1055, 1070.)
We are mindful that section 352 must “yield to a defendant’s due process right to a fair trial and to the right to present all relevant evidence of significant probative value to his or her defense.” (People v. Cunningham (2001) 25 Cal.4th 926, 999.) As our state Supreme Court has cautioned, “‘trial judges in criminal cases should give a defendant the benefit of any reasonable doubt when passing on the admissibility of evidence as well as in determining its weight.’” (People v. Wright (1985) 39 Cal.3d 576, 584-585.)
Here, however, the proffered evidence did not have significant probative value to defendant’s heat of passion defense. As discussed, the evidence had no probative value on the objective component of the defense, and little probative value on the subjective component. As the trial court pointed out, defendant’s testimony that Den was behaving like a person on cocaine or methamphetamine was uncontradicted. In addition, Thomas corroborated defendant’s testimony that he believed Den sexually assaulted Jackson in testifying that Jackson was saying Den wanted sexual favors from her.
Moreover, the proffered evidence would very likely have confused and distracted the jury. At the very least, the evidence would have required testimony from the toxicologist, Jackson’s father, Allie, and either D.K. or J.K., or both of them. As the trial court indicated, presenting the testimony of all of these witnesses would have unduly consumed court time. Worse, presenting all of this evidence would have focused the jury’s attention on Den’s past drug use, spousal abuse, and interest in young women. This would have distracted the jury from the key issue it had to determine, which was whether a person of average disposition would have shot Den. Accordingly, the trial court properly excluded the evidence under section 352.
Furthermore, the exclusion of the evidence did not impermissibly infringe on defendant’s due process right to present a defense, precisely because the evidence was of very little probative value on the subjective component of the heat of passion defense. (See, e.g., People v. Humphrey (1996) 13 Cal.4th 1073, 1089 [excluding some defense evidence on one element of a defense does not impair due process right to present a defense].) Thus, even if the trial court erred in excluding the evidence under section 352, the proper standard of review of this state law evidentiary error is that announced in People v. Watson (1956) 46 Cal.2d 818, 836, not the stricter beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24. (People v. Fudge (1994) 7 Cal.4th 1075, 1103.)
Under the Watson standard for reviewing state law evidentiary error, reversal is required only if there is a reasonable probability the error affected the verdict adversely to the defendant. (People v. Cudjo (1993) 6 Cal.4th 585, 611.) Here, there is no such reasonable probability. At most, the proffered evidence would have tended to corroborate defendant’s claim that Den called Jackson a “[n]igger bitch” and sexually assaulted her. But even if the jury believed that Den said and did these things, it is not reasonably probable, or even reasonably possible, that the jury would have concluded that a person of average disposition in defendant’s position would have been provoked to shoot Den in a heat of passion. (See People v. Manriquez (2005) 37 Cal.4th 547, 585-586 [victim’s taunting defendant to use his weapon, and calling defendant a “mother fucker, ” were insufficient, as a matter of law, to cause an average reasonable person to become so inflamed as to lose reason and judgment].)
Defendant sought out Den at his apartment in order to confront him about what he had done to Jackson. Den was not the aggressor. (People v. Carasi, supra, 44 Cal.4th at p. 1306 [reasonable provocation requires that victim taunt the defendant or otherwise initiate the provocation].) In contrast to defendant’s claim that he actually, subjectively shot Den in a heat of passion, defendant’s claim that he was reasonably provoked to shoot Den based on what Den said and did to Jackson is simply contrary to law. (People v. Cole, supra, 33 Cal.4th at pp. 1215-1216 [defendant cannot set up his own standard of conduct to justify or excuse the fact his passions were aroused].)
Nor, as defendant argues, did the prosecutor’s closing argument “tip the scales” in favor of a finding of prejudice. (People v. Minifie, supra, 13 Cal.4th at p. 1071.) In arguing that defendant killed Den with premeditation and deliberation and was therefore guilty of first degree murder, the prosecutor urged the jury to reject defendant’s claim that he actually and reasonably believed Jackson had been raped, and that Den made the final “vulgar” comment to him. The prosecutor argued defendant was “willing to lie when it serves his purposes” and it was unreasonable to believe Den would make such a vulgar comment to defendant when Allie was nearby.
The prosecutor could have made the same argument, and with equal force, even if all or some of the proffered evidence had been admitted. In addition, the prosecutor undoubtedly would have told the jury, as she did in urging the court to exclude the proffered evidence, that defendant knew nothing of Den’s past or present drug use, spousal abuse, or sexual interest in young women when he “flashed out” and shot Den. For all these reasons, it is not reasonably possible that any of the proffered evidence would have helped defendant convince the jury that he was reasonably or sufficiently provoked to shoot and kill Den.
IV. DISPOSITION
The judgment is affirmed.
We concur: Ramirez P.J., McKinster J.