Opinion
A127216
10-27-2011
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH CALDWELL, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(City & County of San Francisco Super. Ct. No. 203837)
Defendant Joseph Caldwell was convicted by a jury of first degree murder by use of a deadly weapon. The trial court found true an allegation that he had been convicted of a prior felony, and sentenced him to 56 years to life imprisonment. Defendant challenges admission of evidence of a previous crime to prove that this crime was premeditated and the jury instruction defining provocation. We find no merit to these contentions and therefore shall affirm.
BACKGROUND
Defendant was accused of killing his roommate, Rodney Wild, on August 4, 2006. After his arrest defendant waived his Miranda rights and spoke with a police inspector. He told the inspector that he and Wild were friends and that they had lived together for approximately three months. Defendant stated that "we had sex once years ago and we've just been friends ever since then. And he offered to let me stay at his apartment for a few months until I got everything straightened out . . . ." Wild wanted to have a sexual relationship but defendant did not. "I take Ambien to sleep at night and it pretty much knocks me out and I'd wake up all the time with him with a bottle of lube in his hand trying to push his fingers up my ass and trying to suck my dick and everything else and . . . I'd get up and walk out of the bedroom and of course he would come following me around screaming pointing his finger at my face and poking at me and whatever." Defendant stated that the two men shared a bed. "It was convenient but . . . I had constantly told him that it's not going to be that kind of relationship. I said I'm staying here as your friend and that's all it's going to be." He said that Wild "was always drunk by the time he got home and it was always something about his boss at work or this or that or whatever, someone on the TV muttered some word out of place. I don't know he's just a snutty old queen that thinks everybody should speak perfect English. And then he'd go on a rampage about that . . . if I got a telephone call or if I called . . . like who are you calling, what are you doing with them? . . . Just a nagging old bitch, constantly."
Defendant told the police inspector that the evening of the killing, he came home from work around 4:30 in the afternoon. Wild "was passed out on the couch, snoring." Defendant went out and came back around 8:30 or 9:00. Wild "just walked up to me and started bitching at me like where have I . . . been, what were you doing, blah, blah, blah, blah, pointing his bony little finger in my face and poking me and then he slapped me. So I pushed him out of the way, pushed him back down on the couch and told him don't put his fucking queer ass hands on me so he and I went to bed then. But I didn't know it until afterwards but he called the police and told them that I had assaulted him." Defendant continued that around "2:15 [that] morning [Wild] started shaking me and slapping me in the face and woke me up." Wild said, " 'I just came back from Kaiser I've got two cracked ribs, what are your plans mister' and he kept poking me and hitting me. And . . . at that point I got up, I showered, got dressed, and I was just sitting in the living room, all of the lights were off, . . . all the lights came on and he came over to the chair where I was at, slapped me again and he kept poking me. And as I'm trying to get away from him and he's following me from room to room, to the bedroom to the bathroom to the kitchen. Like just this close to me just pushing right up on me and just wasn't really hitting me and he just kept poking me with his finger and he just slapped me in the face one time. And I pushed him away from me and he came back again . . . . I was cutting up . . . lettuce to make a salad . . . and I had a butcher knife in my hand. So I pushed him past the table and he kept coming back and me . . . . " "I called him a nelly queen or a nelly faggot or something." Then Wild "was just poking me with his finger and he kept just, like, getting like this far from my face and just poking me. Then I saw the knife in my hand, I said get the hell away from me, leave me alone. And he said, this is my goddamn house. [H]e said, don't you call me a nelly faggot in my own goddamn house and he started repeating the same thing over and over again. And I don't know, I just snapped." Defendant said, "I stuck him a few times in the stomach[,] I think I stuck him in the chest once and then I think I cut his throat. And I walked out of the apartment then stopped by the front desk . . . I said I think you'd better call the police[.] I think I just killed that faggot up in 1202. And I was outside walking on Eddy Street when all the police cars came and I said, I think you're probably looking for me." Before the police arrived, defendant called his work supervisor to tell her, "I think I just killed somebody and I would not be coming into work today."
Defendant told the inspector that he had drunk three margaritas and "maybe two shots of butterscotch schnapps," and "one vodka-cranberry" that night. However, he said that he was not intoxicated. Before he went to sleep that night he took two Ambien pills although he was supposed to take only one and was not supposed to take the drug when he had been drinking.
San Francisco Police Sergeant James Miller testified that on August 4, 2006, he and two other officers responded to a report of a stabbing. He obtained a key to apartment 1202 from defendant. When the officers entered the apartment they saw Wild lying on his back on the floor with a large wound, approximately six inches long in his abdomen from which his intestines were protruding. There was blood all around him. The paramedics arrived and removed Wild from the apartment.
Eric Lederer, one of the police officers who accompanied Miller, testified that when he arrived at the building, defendant "was walking down the sidewalk, and he was kind of waving over to me from . . . I'd say about 25 feet or so, 30 feet." Defendant said to Lederer words to the effect of "I think you are looking for me." Lederer is trained in detecting when people are under the influence of controlled substances. He did not notice anything about defendant that suggested he "was too intoxicated to coordinate [his] movement or function normally." When defendant got closer to Lederer he stated, "It's me you're looking for. I did it." He also told Lederer that "he was tired of that faggot always touching him. So he stabbed him, multiple times, the head, the neck, the throat . . . ." He also told Lederer that he had used a knife from the butcher block in the kitchen and that "[t]he knife is still in him." Lederer noticed blood on defendant's hand, which defendant told him was from Wild. Defendant was able to articulate his words and spoke without slurring. He was responsive to Lederer's questions.
The medical examiner testified that Wild had six stab wounds to his torso varying from less than one to eight inches deep. The deepest one punctured the left lung and the aorta. He also had multiple knife wounds on his hands, shoulder and arms. One wound on Wild's abdomen was irregular, "probably related to either multiple overlapping stab wound[s] to the same area or severe movement of the weapon while it was inside the body." The wound was deep enough to have allowed the bowel or intestines to "potentially be outside the body."
The police officer on duty at the police station where defendant was taken after his arrest testified that defendant spontaneously told him, "I'm tired of that faggot always touching me. I hope he dies." The same officer had responded to a call from Wild around 10:40 that night complaining that he was being pushed by defendant. When the officer arrived, defendant was asleep on the bed and Wild was awake but under the influence of alcohol. His speech was slurred, his gait was unsteady and his eyes were bloodshot. Wild did not want defendant arrested.
Over defendant's objection, the prosecution also introduced extensive evidence concerning a 2002 incident involving defendant. Leonard Beales, a bartender at Club Rendezvous, testified that on August 28, 2002, defendant came to the bar. Beales had had trouble with defendant in the past: about a year previously, defendant "had slit his wrist open in the bar one Sunday morning." Beales was "leery of serving him" on August 28 but his manager "assured [him] that after a year he seemed to be okay, that he had been in the bar previously the week before and was behaving fine, just like a regular person, so that it was okay to serve him." Beales served defendant a cocktail and "the first thing he did was drink it all the way down, I mean, from full to empty right away. And I decided not to serve him after that." After telling defendant he would not serve him more alcohol, Beales asked defendant to leave. As defendant was leaving he got in a fight with another patron and hit the other patron in the back of the head with his fists. The fight ended outside the bar and defendant departed, but he returned sometime after midnight, carrying an axe. As Beales went to call 911, defendant made "three or four chop marks" on the bar counter and then "made his way into the bar and up to the bar where I was standing by the phone, and he had the axe in his hand, and he threw it at me." As Beales dove behind the bar he heard the axe strike a cigarette dispenser. When he looked up, defendant threw a knife at him.
Beales's description of the 2002 incident was augmented by two police officers who had responded to the scene. One testified that when he arrived, defendant was holding two knives and threw one at Beales. Another officer who arrived after defendant had been arrested heard defendant say that "he didn't like the bartender, that he had had three drinks and that he came to the bar because he intended to kill the bartender who was working that night. And then he said that he would do the same thing if he were . . . 'stone cold sober.' " A second officer who walked outside with defendant after he had been arrested testified that defendant told him, "I want to kill him."
For the killing of Wild, defendant was charged by felony complaint with murder (Pen. Code, § 187, subd. (a)), with an allegation that he used a deadly weapon in commission of the crime. (§ 12022, subd. (b)(1).) The complaint also alleged that defendant suffered a prior conviction within the meaning of section 667, subdivisions (d) and (e), and section 1170.12, subdivisions (b) and (c).
Further statutory references are to the Penal Code unless otherwise specified.
The jury found defendant guilty of first degree murder and found the allegation that he used a deadly weapon to be true. The court found the allegation of a prior conviction to be true. Defendant was sentenced to 25 years to life for the murder, doubled to 50 years for the prior conviction under sections 667, subdivisions (d) and (e) and 1170.12, subdivision (b) and (e), plus an additional one year for the weapons enhancement pursuant to section 12022, subdivision (b)(1), and an additional five years for the prior offense under section 667, subdivision (a)(1). The court imposed but stayed an additional term of one year for defendant's prior prison commitment under section 667.5, subdivision (b). Defendant timely noticed an appeal.
DISCUSSION
Admission of evidence of prior assault
Defendant objected to the admission of the evidence concerning the 2002 assault at Club Rendezvous and argues that the trial court erred in admitting that evidence. He argues that the evidence was not properly admitted under Evidence Code section 1101, that it was irrelevant, and that it should have been excluded under Evidence Code section 352 because the prejudicial effect outweighed the probative value.
"We review for abuse of discretion a trial court's rulings on relevance and admission or exclusion of evidence under Evidence Code sections 1101 and 352." (People v. Cole (2004) 33 Cal.4th 1158, 1195.) We conclude that the trial court did not abuse its discretion in admitting the evidence concerning the 2002 incident as tending to show defendant's state of mind when he committed the offense for which he was being tried.
"Evidence Code section 1101, subdivision (a) generally prohibits the admission of a prior criminal act against a criminal defendant 'when offered to prove his or her conduct on a specified occasion.' Subdivision (b) of the statute, however, provides that such evidence is admissible 'when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge . . .).' To be admissible to show intent, 'the prior conduct and the charged offense need only be sufficiently similar to support the inference that defendant probably harbored the same intent in each instance.' [Citations.] Moreover, to be admissible, such evidence ' " 'must not contravene other policies limiting admission, such as those contained in Evidence Code section 352.' " ' [Citations.] Under Evidence Code section 352, the probative value of the proffered evidence must not be substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (People v. Cole, supra, 33 Cal.4th at pp. 1194-1195.) "The admissibility of other crimes evidence depends on (1) the materiality of the facts sought to be proved, (2) the tendency of the uncharged crimes to prove those facts, and (3) the existence of any rule or policy requiring exclusion of the evidence." (People v. Carpenter (1997) 15 Cal.4th 312, 378-379, superseded by statute on other grounds as stated in People v. Friend (2009) 47 Cal.4th 1, 87.)
Murder is the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) "Manslaughter is 'the unlawful killing of a human being without malice.' (§ 192.) A defendant lacks malice and is guilty of voluntary manslaughter in 'limited, explicitly defined circumstances: either when the defendant acts in a "sudden quarrel or heat of passion" (§ 192, subd. (a)), or when the defendant kills in "unreasonable self-defense"—the unreasonable but good faith belief in having to act in self-defense.' " (People v. Blakely (2000) 23 Cal.4th 82, 87-88.) Murder committed with premeditation and deliberation is of the first degree. (§ 189, subd.(h).)
In People v. Steele (2002) 27 Cal.4th 1230, the defendant was convicted of first degree murder for killing Lee Ann Thurman. Immediately after killing her, he appeared in a casino and told a security officer, "I just killed a girl. I need a drink." (Id. at p. 1239.) At the trial, the prosecutor introduced evidence that defendant had killed another woman 17 years earlier by similar means for the purpose of proving defendant's state of mind. (Id. at p. 1243.) The court observed that "the facts of intent to kill, premeditation, and deliberation were material. Defendant's not guilty plea put in issue all of the elements of the offenses. [Citation.] Defendant argues that he conceded at trial the issue of intent to kill. Even if this is so, the prosecution is still entitled to prove its case and especially to prove a fact so central to the basic question of guilt as intent. [Citation.] Moreover, the issues of premeditation and deliberation were disputed at trial and, indeed, remain disputed even in this appeal." (Id. at pp. 1243-1244, italics added.) The court held that the evidence of the earlier killing was relevant, reasoning that "[t]he two killings were similar enough to make the earlier one relevant to the mental state with which defendant committed the later one. The least degree of similarity between the crimes is needed to prove intent. [Citation.] . . . [T]he doctrine of chances teaches that the more often one does something, the more likely that something was intended, and even premeditated, rather than accidental or spontaneous. Specifically, the more often one kills, especially under similar circumstances, the more reasonable the inference the killing was intended and premeditated." (Id. at p. 1244.)
The circumstances in this case are much the same. Defendant admitted killing Wild, but argued that he should be convicted only of manslaughter because he acted in the heat of passion, rather than with premeditation. The prosecutor argued to the jury that the 2002 incident was relevant to prove that the killing of Wild was premeditated. He pointed out that in the earlier incident, defendant left the bar and came "back hours later, comes back after thinking about killing Leonard Beales, after reflecting on it, after carefully considering it in those hours, he makes the effort to go arm himself with a hatchet and knives. He comes back to the bar to carry out his plan to kill Leonard Beales." The prosecutor continued, "the time required for premeditation and deliberation varies from person to person. Why? Because we are all made up of our experiences. The defendant has been in the place in his mind where he has thought about killing someone, created a plan to kill someone, armed himself with weapons designed to kill someone, and carried out a plan to kill someone. The defendant, having been to that place before, I submit to you . . . it makes it faster in the defendant's mind, the formulation of intent to kill, that reflection on the consequences. And what is also important to consider, just by virtue of common sense, . . . the more that somebody does something, the more likely that what was done was intended, the more likely that it is premeditated rather than something that was accidental or spontaneous. The 2002 incident offers you particular insight into the workings of the defendant's mind for you to infer that he premeditated, deliberated on and intended to kill Rodney Wild."
Defense counsel told the jury, "I told you from the beginning that I was going to argue manslaughter in this case. And manslaughter, in a nutshell, is an unlawful killing with provocation enough so that somebody would act rashly." He proceeded to detail all the ways in which Wild had harassed defendant on the night of the killing, and then argued, "we are not saying that Mr. Caldwell is not guilty of everything. There was an unlawful killing here, ladies and gentlemen. This wasn't an act of self defense. We are conceding that." He continued that if defendant "had premeditated and deliberated to kill Mr. Wild, he wouldn't have left the apartment while Mr. Wild was still alive, conscious, . . . and very much able to make a phone call. If you premeditated and had this plan, this is what I am going to do, you would finish the job. You don't premeditate and do half the job. No. The facts and the evidence suggest that was an act of rage, blind rage." Defense counsel concluded his argument by saying, "Is it okay that he snapped? No. It's sad. But the level of provocation was there for somebody to act rashly, and I am going to ask you, ladies and gentlemen, to come back with a verdict for manslaughter."
Thus, premeditation was the sole issue for the jury to decide. As in Steele, the fact that defendant had in 2002 become angry, left Club Rendezvous and returned with a knife and an axe with which he assaulted the bartender lends weight to the prosecution's theory that this killing was premeditated. In both instances, defendant took umbrage to something his victim had done and, after a lapse of hours, assaulted each with a knife. On the prior occasion, defendant admitted his intention to kill the victim, tending to support the contention that he bore a similar intention here.
Defendant cites People v. Balcom (1994) 7 Cal.4th 414, for the proposition that evidence of other assaults is not relevant to prove intent. In that case, the victim testified that the defendant raped her at gunpoint. The defendant testified that the two engaged in consensual intercourse. (Id. at p. 420.) The prosecution presented evidence that six weeks after the charged incident, the defendant raped another woman at gunpoint. (Id. at p. 421.) The court held that evidence of the subsequent rape at gunpoint should not have been admitted to prove defendant's intent in the charged offense because the "wholly divergent accounts create no middle ground from which the jury could conclude that defendant committed the proscribed act of engaging in sexual intercourse with the victim against her will by holding a gun to her head, but lacked criminal intent because, for example, he honestly and reasonably, but mistakenly, believed she voluntarily had consented. [Citation.] On the evidence presented, the primary issue for the jury to determine was whether defendant forced the complaining witness to engage in sexual intercourse by placing a gun to her head. No reasonable juror considering this evidence could have concluded that defendant committed the acts alleged by the complaining witness, but lacked the requisite intent to commit rape." (Id. at p. 422.) The court continued, "Defendant's plea of not guilty put in issue all of the elements of the offenses, including his intent [citation], and evidence that defendant committed uncharged similar offenses would have some relevance regarding defendant's intent in the present case. But, because the victim's testimony that defendant placed a gun to her head, if believed, constitutes compelling evidence of defendant's intent, evidence of defendant's uncharged similar offenses would be merely cumulative on this issue. [Citation.] Accordingly, we conclude that the limited probative value of the evidence of uncharged offenses, to prove intent, is outweighed by the substantial prejudicial effect of such evidence." (Id. at pp. 422-423.)
The present case is distinguishable. Defendant's not guilty plea put all of the element of the charged crime—intent to kill, premeditation and deliberation—at issue. (People v. Steele, supra, 27 Cal.4th at p. 1243.) The evidence was admitted for the purpose of proving premeditation. Unlike the situation in Balcom, the victim in this case did not testify, nor was consent at issue. Unlike the situation in Balcom, finding that defendant killed the victim with his knife did not necessarily resolve the issue of intent and premeditation. Thus the evidence of defendant's prior assault was not cumulative. "The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. '[All] evidence which tends to prove guilt is prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is "prejudicial." The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues." (People v. Karis (1988) 46 Cal.3d 612, 638.) The evidence of the 2002 assault was relevant, probative of defendant's mental state, and not unduly prejudicial. Instruction on provocation
Defendant argues that the jury was instructed improperly on the standard for provocation sufficient to reduce murder to manslaughter. The jury was instructed on voluntary manslaughter with CALCRIM No. 570 as it read at the time of defendant's trial. The instruction provided in part: "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. [¶] . . . [¶] 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 would have been provoked and how such a person would react in the same situation knowing the same facts."
Defendant objected to this instruction, arguing that the test for sufficient provocation should have been stated as "whether a person in the same situation would act rashly," rather than "how such a person [of average disposition] would react in the same situation knowing the same facts." He argues that the instruction, emphasized by the prosecutor's argument, denied him a fair trial because in order to find the provocation sufficient to support a verdict of voluntary manslaughter, the jury was required to find that the provocation would have caused a reasonable person to kill.
Defendant's position is supported by dictum in People v. Najera (2006) 138 Cal.App.4th 212, 223, in which the court stated: "An unlawful homicide is upon 'a sudden quarrel or heat of passion' if the killer's reason was obscured by a ' "provocation" ' sufficient to cause an ordinary person of average disposition to act rashly and without deliberation. [Citation.] The focus is on the provocation—the surrounding circumstances—and whether it was sufficient to cause a reasonable person to act rashly. How the killer responded to the provocation and the reasonableness of the response is not relevant to sudden quarrel or heat of passion." The court there held that the prosecutor had misstated the law in arguing: " 'would a reasonable person be so aroused as to kill somebody? That's the standard.'" (Id. at p. 224; see also People v. Lee (1999) 20 Cal.4th 47, 60.) In response to the decision in Najera, and after the trial in the present case, CALCRIM No. 570 was amended and now provides that "[i]n 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." (Rev. Dec. 2008.)
The Attorney General nonetheless disputes the inaccuracy of the instruction that was given in this case, citing authorities that assertedly indicate that to reduce a murder to voluntary manslaughter, a "homicidal rage or passion" is necessary. (E.g., People v. Carasi (2008) 44 Cal.4th 1263, 1307, citing People v. Pride (1992) 3 Cal.4th 195, 250.) The proper articulation of the provocation standard is currently under review by our Supreme Court in People v. Beltran, review granted June 15, 2011, S192644. However, we do not believe that the outcome of this appeal is dependent on the resolution of this issue.
As can be seen from the portions of the instruction given in this case italicized above, the jury was instructed somewhat inconsistently in this respect. The instruction refers both to provocation that "would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment," and to how a person of average disposition "would react in the same situation knowing the same facts." The prosecutor likewise argued inconsistently. Reflecting defendant's contention that the prosecutor misstated the standard, the prosecutor quoted the challenged portion of the instruction and argued that "[c]onfronted with what the defendant claims . . . a reasonable person, a person of average disposition, may have been annoyed, may have gotten angry, may have yelled back, may have walked away. A person of average disposition may even have pushed back or even slapped. What a person of average disposition confronted with the same facts in the same situation would not have done, would not have been provoked, would not have been driven to act so rashly." In rebuttal he argued that "[w]hat the defendant was confronted . . . with does not amount to any provocation that would cause a person of average disposition to act so rash as to kill another person."
However, in the course of his argument the prosecutor also articulated the test numerous times in the manner that defendant asserts correctly states the law. "The objective component requires you to find that the provocation that the defendant claimed would have caused a person of average disposition to act from passion rather than judgment. [¶] . . . [¶] I don't think I am going out on a limb by saying that every murder ever committed is probably the product of some poor or bad judgment. The requirement of this instruction requires you to find that when confronted with the provocation that the defendant claimed from an average person of average disposition's point of view with that person's reasoning and logic have been so obscured that that person would be acting from passion rather than from judgment." (Italics added.) He also argued that "It is not enough that the defendant was simply 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. [¶] What does that mean? . . . Just because someone is irritable, just because somebody may have a violent temperament, . . . just because someone, as the defendant admitted in the interview, has anger issues, does not play any role in the analysis of whether or not a person of average disposition would have been driven under the circumstances, under the claimed provocation, to act rashly without the benefit of logical reasoning." (Italics added.) And further, "It will be up to you, as 12 reasonable people assembled, as a collective conscience, to evaluate whether a person of average disposition would have been driven to act so rashly, would have been driven to the point of acting without any logic or reason."
The Attorney General argues that considering the instructions and the prosecutor's arguments as a whole, the jury was not instructed incorrectly. There is some force to this argument. " ' "[W]e must consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given. [Citation.]" ' [Citation.] 'Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.' " (People v. Martin (2000) 78 Cal.App.4th 1107, 1111-1112.) Nonetheless, in view of the inconsistency in both the instruction and the prosecutor's argument, we would be reluctant to rest an affirmance on the presumption that the jury observed one rather than the other of the conflicting statements.
The Attorney General also argues that the instruction was not prejudicial because the evidence of provocation was insufficient as a matter of law to support an instruction on voluntary manslaughter in any event. In People v. Manriquez (2005) 37 Cal.4th 547 the court found mere verbal provocation insufficient to meet the objective test for voluntary manslaughter. There, the record "contained no indication that defendant's actions reflected any sign of heat of passion at the time he commenced firing his handgun at the victim. There was no showing that defendant exhibited anger, fury, or rage; thus, there was no evidence that defendant 'actually, subjectively, kill[ed] under the heat of passion.' " (Id. at p. 585.) Here, by contrast, defendant told the police after the incident that Wild had followed him around the apartment poking him and yelling at him, and that defendant had "snapped" as a result of these actions. Therefore the record supported instructing the jury on voluntary manslaughter.
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There is another and more compelling reason, however, for which the conviction must be affirmed. Even if the jury was instructed in error and the prosecutor engaged in improper argument, defendant suffered no prejudice. In assessing whether the error was prejudicial, we apply the Watson test (People v. Watson (1956) 46 Cal.2d 818, 836), and consider whether it is reasonably probable that appellant would have obtained a more favorable result in the absence of the error. (See People v. Breverman (1998) 19 Cal.4th 142, 164-179 [error in instructions on lesser included offense is assessed under Watson test].)
The jury was instructed on first degree murder, second degree murder, and voluntary manslaughter. In arguing that the killing was premeditated, the prosecutor pointed to the fact that defendant told police that Wild had been making unwanted sexual advances on him for some time, and that Wild threatened to call the police and have defendant arrested for pushing him earlier in the evening. The prosecutor pointed out that although defendant said he "snapped" while in the kitchen cutting lettuce, there was no blood in the kitchen, arguing, "the fact that the defendant carried this knife from the kitchen into the living room gave the defendant an opportunity to think about what he was doing, weigh the considerations for and against killing Rodney Wild, and decided to go forward nevertheless." The prosecutor also argued that "each swing of the knife . . . is a separate act that caused the death of Rodney Wild. . . . Every time the defendant stabbed this knife . . . into the flesh of Rodney Wild, he intended to kill Rodney Wild. Carrying this knife into the living room shows he thought about it, reflected on it and decided to proceed forward anyway. . . . This is different than a situation where someone just completely loses it when confronted with tremendous provocation and has a gun handy, pulls out the gun and fires one shot that kills another person. This is a killing that took time. . . . [¶] Remember Rodney Wild . . . was conscious for all of this. He was still conscious when the paramedics arrived. . . . Every time the defendant took this knife, plunged it into Rodney Wild, pulled it out, he was confronted with a choice. Do I stop at this point and call for help, or do I continue by committing another act that was designed to cause death?"
The jury found defendant guilty of first degree murder. There is no contention that the evidence was insufficient to support this finding or that the jury was incorrectly instructed on the elements of first degree murder. Thus, the jury necessarily found beyond a reasonable doubt that defendant premeditated and deliberated before stabbing Wild, as the prosecutor argued. In light of this determination, the jury could not possibly have concluded that defendant killed Wild because of a sudden quarrel or in the heat of passion, regardless of the degree of provocation that is necessary to reduce the crime to voluntary manslaughter. Given the jury's finding, it is not reasonably probable that if the voluntary manslaughter instruction had been given as requested, the outcome would have been any more favorable to defendant.
DISPOSITION
The judgment is affirmed.
Pollak, Acting P. J.
We concur:
Siggins, J.
Jenkins, J.