Opinion
NOT TO BE PUBLISHED
Ventura County Super. Ct. No. 2006037249, Charles W. Campbell, Jr., Judge
(Retired judge of the Ventura S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Robert Franklin Howell, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Ryan M. Smith, Deputy Attorney General, for Plaintiff and Respondent.
PERREN, J.
Pablo Chavez Garcia appeals the judgment following his conviction for first degree murder. (Pen. Code, §§ 187/189.) He received a prison sentence of 25 years to life, plus a consecutive one-year term for use of a deadly weapon. (§ 12022, subd. (b)(1).) Garcia contends the trial court erroneously instructed the jury on the provocation necessary to reduce murder to voluntary manslaughter, and on the provocation necessary to reduce first degree murder to second degree murder. He also claims prosecutorial misconduct and ineffective assistance of counsel. We affirm.
All statutory references are to the Penal Code unless otherwise stated.
FACTS
Garcia and his girlfriend Leticia Reyes lived in a condominium with their children. During the night of September 29, 2006, Garcia heard noises outside his house. At approximately noon the next day, Reyes saw a sleeping bag and empty beer cans a few feet from the front door of the house. She also smelled urine. She told Garcia that she thought someone was camping out on their front yard. Garcia did not respond.
Garcia and Reyes married after Garcia was arrested.
At 7:00 or 8:00 p.m. that evening, Garcia and Reyes left their children with his parents, and went to a wedding reception. At the reception, Garcia drank several beers and two mixed drinks. He also had a few beers at home earlier in the day.
Reyes drove the couple home at approximately 11:00 p.m. As they walked towards their door, Garcia lit a cigarette lighter and looked in the bushes to see if anyone was there. Garcia saw Pedro Ortiz sleeping near the door to Garcia's house, and began cursing him and yelling at him to leave. Garcia told Reyes to go inside and call the police. Reyes did so. Reyes told Garcia to leave Ortiz alone, and that the police dispatcher said he should get inside the house. Garcia continued to yell and curse at Ortiz, telling Ortiz to "get up" and "get out of here" and that, unlike Ortiz, he worked for a living and paid his bills. Reyes told Garcia to stop and leave the man alone.
Garcia went into his house and came out with a baseball bat. After again yelling at Ortiz to get up and leave, Garcia hit Ortiz repeatedly with the bat. There were witnesses in the area and, seeing that Garcia had a cigarette lighter for illumination, one witness mentioned gasoline. Garcia told Reyes to "get me some matches so I could burn this son of a...." Neither Reyes nor Garcia acted on this comment.
Garcia went back into his house and told Reyes that Ortiz was still underneath their house. Reyes and Garcia drove to his parents' home before the police arrived.
The police arrived at approximately 11:20 p.m. Ortiz was unresponsive and there was blood on the walls of the house and underneath Ortiz. Ortiz died at the hospital that night. He died from blunt force trauma to his head resulting in two skull fractures and a laceration to his brain. There also were approximately 120 fresh bruises on his body. Garcia was not injured.
Police arrived at the home of Garcia's parents at approximately 3:00 a.m. Garcia's pickup truck was parked outside. Police knocked on the door but no one answered. When a tow truck arrived to impound Garcia's pickup, Garcia's parents came to the door. Garcia's mother told police she had not seen Garcia for a week. The police entered the house and found Garcia in a bathroom.
Garcia testified that he had consumed five or six beers, a Vicodin, and some marijuana during the day of the wedding reception. He testified that, at the reception, he drank several mixed drinks and beers, snorted three lines of cocaine, and smoked marijuana. He could only remember "bits and pieces" of the incident with Ortiz, but remembered that, when he first confronted Ortiz, Ortiz made a movement with his arm that might have been an attempt to grasp something near his waist. Garcia testified that the movement caused Garcia to fear for himself and his family. He remembered grabbing a baseball bat but did not remember hitting Ortiz with the bat.
DISCUSSION
Heat of Passion Instruction
Garcia contends the trial court erroneously instructed the jury concerning the nature of the provocation necessary to reduce murder to voluntary manslaughter under the theory that the killing occurred in the heat of passion. He argues that the instruction incorrectly implied that his conduct in killing Ortiz had to be a reasonable response to provocation and that the error was prejudicial. We disagree.
Manslaughter is an unlawful killing without malice and is a lesser included offense of murder. (People v. Koontz (2002) 27 Cal.4th 1041, 1086; § 192.) When a defendant intentionally and unlawfully kills in "a sudden quarrel or heat of passion, " malice is negated and the crime is reduced from murder to voluntary manslaughter. (People v. Moye (2009) 47 Cal.4th 537, 549; § 192, subd. (a).) The critical factor in determining whether a killing is committed in the heat of passion is the existence of both objective and subjective provocation. (Moye, at p. 549.) To satisfy the objective component, the defendant's passion must result from provocation sufficient to cause an ordinary person of average disposition to act rashly and without due deliberation and reflection. (Id. at pp. 549-550.) To satisfy the subjective component, the defendant must kill while actually under a strong passion induced by the provocation. (Id. at p. 550.)
The court instructed the jury on heat of passion with a former version of CALCRIM No. 570. The instruction given by the court states: "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 would have been provoked and how such a person would react in the same situation knowing the same facts. [¶] If enough time passed between the provocation and the killing for a person of average disposition to 'cool off' and regain his 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." (Italics added.)
Garcia claims the italicized sentence of the instruction erroneously permits the jury to consider the reasonableness of his conduct as well as the reasonableness of his mental state in determining the sufficiency of the provocation. He argues that the sentence suggests that, to reduce the killing to voluntary manslaughter, the jury must find not only that he was reasonably provoked into a heat of passion, but also that reacting to the provocation with lethal violence was reasonable.
We agree that objectively sufficient provocation turns on the defendant's resulting mental state, not the particular conduct that occurs as a result of that mental state. What reduces an unlawful killing in the heat of passion from murder to voluntary manslaughter is a state of mind obscured by passion sufficient to negate the malice required for murder. (People v. Carasi (2008) 44 Cal.4th 1263, 1306.) "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." (People v. Najera (2006) 138 Cal.App.4th 212, 223.)
The challenged sentence in CALCRIM No. 570 directing jurors to consider how an average person would "react in the same situation" is not contrary to the proper standard set forth earlier in the instruction which focuses on whether an average person would "act rashly... from passion rather than from judgment." (Italics added.) Nevertheless, we conclude that the instruction as a whole is ambiguous.
Directing jurors to consider how an average person would "react in the same situation" could invite jurors to consider both whether an average person would have been provoked, and whether an average person would have reacted to the provocation with lethal force. Whether an average person would be provoked to kill is not a proper consideration in determining the sufficiency of the provocation necessary to cause an average person to act rashly from passion. (People v. Najera, supra, 138 Cal.App.4th at p. 223.)
Moreover, CALCRIM No. 570 was revised in December 2008 for the purpose of eliminating this ambiguity. The revised instruction replaces the sentence challenged by Garcia with the following sentence: "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." (Italics added.)
Although the instruction given in this case is ambiguous, an ambiguity in a jury instruction, standing alone, does not establish an instructional error. The test is not whether a reasonable juror could have misapplied the instruction. "For ambiguous instructions, the test is whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction." (People v. Mayfield (1997) 14 Cal.4th 668, 777; People v. Dieguez (2001) 89 Cal.App.4th 266, 276-277.)
It is not reasonably likely that the jury in this case misunderstood or misapplied the challenged instruction to mean that the heat of passion form of attempted voluntary manslaughter required that an average person be provoked to commit a homicide. In the context of the instruction as a whole, it is clear that the jurors must decide whether the evidence is sufficient to prove that "[t]he provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment." (CALCRIM No. 570.)
The determination of whether there is a "reasonable likelihood" an instructional ambiguity caused the jury to misconstrue or misapply the law, however, cannot be made solely on the basis of the instruction. We must also consider the entire record of trial, including the arguments of counsel. (People v. Cain (1995) 10 Cal.4th 1, 36; People v. Dieguez, supra, 89 Cal.App.4th at p. 276.)
In this case, Garcia claims the instructional error was amplified by improper argument to the jury by the prosecutor. Garcia argues that the prosecutor informed the jury that it was required to find that Garcia acted reasonably in beating Ortiz to death in order to convict him of voluntary manslaughter instead of murder.
Garcia has forfeited any claim for prosecutorial misconduct by failing to object in the trial court. (People v. Brown (2003) 31 Cal.4th 518, 553; People v. Najera, supra, 138 Cal.App.4th at p. 224.) We address the claim on its merits both because the argument is relevant to the effect of the challenged jury instruction apart from its consideration as prosecutorial misconduct, and because Garcia claims that his trial counsel's failure to object constituted ineffective assistance of counsel.
On the merits, we conclude that it was not reasonably likely that the jury misconstrued or misapplied the challenged jury instruction based on the prosecutor's argument. The prosecutor's argument focused on whether finding a man sleeping near his or her house was sufficient to provoke an average person to act in the heat of passion, not whether an average person who was provoked would have committed a homicide. The prosecutor argued that it was not sufficient that Garcia "was unhinged" by the sleeping man, but rather whether a reasonable person would have become "unhinged." The prosecutor argued that "you have to ask yourself... was the defendant provoked at the time he picked up the bat... ? Was he sufficiently provoked by something that Mr. Ortiz did at that very moment? And was that provocation sufficient to kill?" The portion of the statement which asked "was that provocation sufficient to kill?" appears to relate to the reasonableness of Garcia's conduct rather than its effect on his mental state, but it was an isolated comment in an otherwise proper argument and was not reasonably likely to have led the jury to misapply the jury instruction.
In any event, any instructional error was harmless. Garcia claims that the federal "harmless beyond a reasonable doubt" standard applies because the instructional error violated his federal constitutional rights. (Chapman v. California (1967) 386 U.S. 18.) Although any error was harmless on either the federal or state standard, the state standard applies. Heat of passion voluntary manslaughter is a lesser included offense of second degree murder, and it is settled that failing to give adequate instructions or giving erroneous instructions on a lesser included offense constitutes errors of state, not federal, law. (People v. Blakeley (2000) 23 Cal.4th 82, 93; People v. Lee (1999) 20 Cal.4th 47, 62.) It is not reasonably probable that Garcia would have obtained a more favorable result in the absence of the instructional error. (People v. Watson (1956) 46 Cal.2d 818.)
The evidence was overwhelming that Garcia killed Ortiz with malice and without provocation. The evidence shows that Garcia was angered by a presumably homeless man sleeping near his house, berated the man, went into his house to obtain a baseball bat, came back outside, and bludgeoned the man to death with the bat. There is no evidence that Ortiz ever got up from the ground and no substantial evidence that Ortiz provoked Garcia in any manner other than by his presence. The provocation was so minimal that it is unclear whether an instruction on heat of passion voluntary manslaughter was even required. Where the provocation is so slight that reasonable jurors could not differ on the issue of adequacy, the court may resolve the question as a matter of law. (People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1705; see also People v. Gutierrez (2009) 45 Cal.4th 789, 827.)
In addition, instructional error is not prejudicial if "the jury necessarily resolved the factual question adversely to the defendant under other instructions...." (People v. Mincey (1992) 2 Cal.4th 408, 438.) In convicting Garcia of first degree murder, the jury necessarily found he acted willfully, deliberately, and with premeditation. Such state of mind is manifestly inconsistent with having acted under the heat of passion. (People v. Carasi, supra, 44 Cal.4th at p. 1306; People v. Wharton (1991) 53 Cal.3d 522, 572.)
No Prosecutorial Misconduct
Garcia separately contends that there were multiple and prejudicial acts of prosecutorial misconduct during argument to the jury. We disagree.
"Under California law, a prosecutor commits reversible misconduct if he or she makes use of 'deceptive or reprehensible methods' when attempting to persuade either the trial court or the jury, and it is reasonably probable that without such misconduct, an outcome more favorable to the defendant would have resulted." (People v. Riggs (2008) 44 Cal.4th 248, 298.) Under the federal Constitution, conduct by a prosecutor is not a constitutional violation unless the challenged action so infected the trial with unfairness as to make the resulting conviction a denial of due process. (Ibid.)
When the issue focuses on comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood the jury construed or applied any of the comments in an objectionable fashion. (People v. Cole (2004) 33 Cal.4th 1158, 1202-1203.) To do so, we must view the statements in the context of the argument as a whole. (People v. Dennis (1998) 17 Cal.4th 468, 522.) A prosecutor is given wide latitude during argument and may vigorously argue his case as long as it amounts to fair comment on the evidence. (People v. Hill (1998) 17 Cal.4th 800, 819.)
Garcia has forfeited his claim by not objecting and requesting a curative admonition. (People v. Stanley (2006) 39 Cal.4th 913, 959; People v. Dykes (2009) 46 Cal.4th 731, 760.) To preserve a claim of prosecutorial misconduct for appeal, a defendant must make a timely objection, and ask the trial court to admonish the jury. (People v. Brown, supra, 31 Cal.4th at p. 553.) The record does not show that the failure to object and request an admonition was excused. (People v. Panah (2005) 35 Cal.4th 395, 462.)
On the merits, there was no prejudicial prosecutorial misconduct. Garcia cites a few statements by the prosecutor included in an extensive and detailed argument covering the charged offense, lesser included offenses, and various defenses and mitigating factors raised by the defense. The cited excerpts, viewed in context, did not misstate the law, were generally not inflammatory or deceptive, and did not otherwise constitute misconduct. The prosecutor's argument was vigorous, but did not so infect the trial with unfairness as to make Garcia's conviction a denial of due process. (People v. Zurinaga (2007) 148 Cal.App.4th 1248, 1251.)
Garcia asserts that the prosecutor committed misconduct by arguing that voluntary manslaughter is also known as "killing with an excuse." The record as a whole shows that the phrase was used while the prosecutor was accurately arguing the elements of the complete and partial defenses to murder raised by Garcia including self-defense and imperfect self-defense. There is no basis in the record to conclude that the word "excuse" misled or confused the jury and the appeal does not raise an issue regarding complete or imperfect self-defense.
The prosecutor also stated that certain of Garcia's defenses asked the jury to "basically walk" Garcia and that a conviction for anything less than murder would be a "failure" by the prosecution. The prosecutor told the jury that the defense "is going to ask you to basically walk Mr. Garcia" by either acquitting him on a self-defense theory, or "give him this imperfect or involuntary manslaughter on this theory that he was unconscious at the time that he killed." The prosecutor also stated that "I have failed you" if you bring back a voluntary manslaughter verdict.
The comments regarding "failure" and "I have failed you" were improper because they draw attention to the prosecutor as if she had a personal stake in the outcome. But, there is nothing in the comments to indicate that the prosecutor was telling the jury that Garcia had the burden of proof regarding any of his defenses and no basis to conclude that Garcia was prejudiced in any other manner.
Garcia also repeats his arguments that the prosecutor misstated the law regarding provocation which we have discussed previously in this opinion.
Garcia also argues that his trial counsel's failure to object constituted ineffective assistance of counsel. Because we conclude that there was no prosecutorial misconduct, this claim fails.
No Error in Instructions Regarding First and Second Degree Murder
Garcia contends the jury was not fully instructed on second degree murder because the jury was not told that "subjective" provocation was sufficient to reduce the offense from first degree murder to second degree murder. He claims that CALCRIM No. 522 fails to draw a distinction between the subjective provocation necessary to reduce first degree murder to second degree murder, and the objective provocation necessary to reduce murder to voluntary manslaughter. We disagree.
Provocation sufficient to reduce a first degree murder to second degree murder requires that defendant's mental state was such that he did not deliberate and premeditate the killing. (People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1295-1296; People v. Padilla (2002) 103 Cal.App.4th 675, 677-678.) Such a subjective mental state exists when a defendant "formed the intent to kill as a direct response to... provocation and... acted immediately." (People v. Wickersham (1982) 32 Cal.3d 307, 329, disapproved on other grounds in People v. Barton (1995) 12 Cal.4th 186, 200-201.) A defendant who does not deliberate and premeditate due to provocation is guilty of second degree murder even if the provocation would not have prevented a reasonable person from deliberation or premeditation. (Fitzpatrick, at pp. 1294-1296.) In other words, the provocation concerning the reduction of first degree to second degree concerns the defendant's subjective mental state. (Ibid.)
On review, we examine the jury instructions as a whole to determine whether it is reasonably likely the jury understood the challenged instruction in a way that tended to relieve the prosecution of the burden to prove defendant's guilt beyond a reasonable doubt. (People v. Paysinger (2009) 174 Cal.App.4th 26, 30.) As given in this case, the jury instructions, taken together, inform the jury of the necessary mental state for first and second degree murder, and adequately explain that subjective provocation that can mitigate first degree murder to second degree murder. There was no instructional error.
The jury was instructed with CALCRIM Nos. 521 and 522. CALCRIM No. 521 correctly instructs the jury on the difference between first and second degree murder. It states that first degree murder requires a finding of deliberation and premeditation, and that "[a]ll other murders are of the second degree." The instruction states that, in order to determine that the defendant premeditated and deliberated, the jury must find that the defendant "carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill." It further explains that "[a] decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated."
CALCRIM No. 522 correctly informs the jury that provocation can reduce first degree murder to second degree, or murder to manslaughter. "Provocation may reduce a murder from first degree to second degree and may reduce a murder to manslaughter. The weight and significance of the provocation, if any, are for you to decide. [¶] If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder. Also, consider the provocation in deciding whether the defendant committed murder or manslaughter." (CALCRIM No. 522.)
Arguably, CALCRIM No. 522 could have provided a better explanation of the possible effect of provocation on the determination of the degree of a murder, but it adequately conveys the basic legal principle, particularly when read in conjunction with CALCRIM No. 521. If Garcia felt that amplification was necessary, it was incumbent on him to request it. (See People v. Parson (2008) 44 Cal.4th 332, 352.) He did not.
"Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court's instructions. [Citations.]" (People v. Scott (1988) 200 Cal.App.3d 1090, 1095.) The jury was told that provocation could negate the subjective mental state of premeditation and deliberation, but in order to reduce murder to manslaughter, the provocation must be reasonable. "Jurors do not sit in solitary isolation booths parsing instructions for subtle shades of meaning in the same way that lawyers might. Differences among them in interpretation of instructions may be thrashed out in the deliberative process, with commonsense understanding of the instructions in the light of all that has taken place at the trial likely to prevail over technical hairsplitting." (Boyde v. California (1990) 494 U.S. 370, 380-381.)
Even if the instructions were erroneous, the error would be harmless beyond a reasonable doubt. (People v. Lamas (2007) 42 Cal.4th 516, 526 [instructional error on an element of an offense subject to the beyond a reasonable doubt standard of harmless error].) There was compelling evidence of premeditation and deliberation. Overwhelming evidence shows that Garcia did not form the intent to kill "as a direct response to" provocation and did not kill "immediately" after initially confronting Ortiz. (See People v. Wickersham, supra, 32 Cal.3d at p. 329.) Despite entreaties by Reyes and the police dispatcher, Garcia did not break off the confrontation with Ortiz. Instead, he went into his house, got a baseball bat, went back outside, and repeatedly hit Ortiz with the bat. There was no evidence that Garcia killed Ortiz in the immediacy of any provocation from Ortiz. There is no evidence that Garcia feared Ortiz and no evidence that Garcia considered Ortiz to be an immediate threat. We are convinced beyond a reasonable doubt that an instruction more explicitly applying a subjective standard would not have influenced the jury's verdict.
Garcia also contends that his trial counsel's failure to request a modification of CALCRIM No. 522 constituted ineffective assistance of counsel. Because we conclude that there was no instructional error, this claim fails.
No Cumulative Error
Garcia contends that the cumulative effect of the instructional errors and prosecutorial misconduct requires reversal. We reject this contention. (People v. Seaton (2001) 26 Cal.4th 598, 691-692.)
The judgment is affirmed.
We concur: YEGAN, Acting P.J., COFFEE, J.