Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF148223, Christian F. Thierbach, Judge.
Siri Shetty, 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, Ronald Jakob, and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Codrington, J.
I
INTRODUCTION
Defendant Donyale Naurice George II appeals from judgment entered following a jury conviction for first degree murder (Pen. Code, § 187, subd. (a)). The jury also found true the allegation that defendant personally discharged a firearm in the commission of murder (§ 12022.53, subd. (d)). The court sentenced defendant to 50 years to life in prison.
Unless otherwise noted, all statutory references are to the Penal Code.
Defendant contends the trial court erred in giving a special instruction on verbal provocation. Defendant also argues he received ineffective assistance of counsel because his trial attorney failed to object to prosecutorial misconduct committed during closing argument. In addition, defendant contends there was insufficient evidence to support his murder conviction. We reject defendant’s contentions and affirm the judgment.
II
FACTS
In 1996, when defendant was five years old, his mother (Mrs. Chaney) met Montaque Chaney, known as JC. They were married approximately 10 years, when defendant was about eight years old. Defendant lived with mother and JC until defendant moved out on January 2, 2009. Defendant was 18 years old.
On January 12, 2009, around 11:00 a.m., defendant, his girlfriend, and their child, visited defendant’s mother’s home in Moreno Valley. Shortly after arriving, defendant and Mrs. Chaney got into an argument about taxes. JC entered the room and, according to defendant’s girlfriend, leaned over defendant’s back and talked in his ear. Mrs. Chaney testified that after intervening, JC argued with defendant for a couple of minutes about something other than taxes. JC then grabbed defendant by the shoulder and threw him out of the house. After Mrs. Chaney went to her room, she heard three gunshots and ran down the hall to the front door. Mrs. Chaney found JC lying on the floor near the front door. JC died from his gunshot wounds. According to the pathologist, the gun was fired 18 to 24 inches away from JC.
Mrs. Chaney called the police and her friend, Loretta Jenkins (Jenkins). Mrs. Chaney told Jenkins that defendant had shot JC. Meanwhile, defendant left Mrs. Chaney’s house and arrived at Jenkins’s house shortly after Jenkins received Mrs. Chaney’s call. Defendant told Jenkins, “I am just tired of the bullshit.” When officers arrived at Jenkins’s house, defendant waved at them and told the officers he was the one they were looking for. Defendant was arrested. While being handcuffed, defendant told an officer he had dropped the gun by the front doorstep. The officer retrieved the gun. At the station, four bullets were removed from a sock in defendant’s pocket.
Defendant’s Recorded Statement
That same day, defendant provided a recorded statement in which he stated that about a week before the shooting, his mother told him JC had beaten her. Defendant was living at his grandmother’s house in San Bernardino at the time of the shooting. While visiting his mother on January 12, 2009, JC interrupted an argument between defendant and his mother. JC cursed defendant and told him to leave. After arguing with JC for five minutes, JC dragged defendant outside, went back inside, and shut the door. Defendant was mad. While looking in the front door window, defendant heard JC say, “fuck this.” JC opened the door and defendant shot him. Defendant hoped JC would die from the shooting because he had been hurting defendant’s mother.
When asked why defendant took a gun to his mother’s house, defendant said he did not like JC and “it had been to the point where... something was gonna happen regardless... ‘cause [JC] done beat up [his] mom....” When asked where he got the gun, defendant said he found it in San Bernardino.
Defendant’s Testimony
Defendant testified at trial that, during the morning of January 12, 2009, he and his girlfriend, Margo, and their daughter went to his mother’s house. Defendant was staying at his grandmother’s house because defendant had been fighting with JC. Defendant had lived with JC and mother since he was eight years old. Mother and JC had had marital problems and there had been domestic violence.
While in defendant’s room, defendant and mother began arguing about taxes. Margo and defendant’s daughter were also in the room. JC entered defendant’s room, intervened in the argument, and stood over defendant, taunting defendant and screaming in defendant’s face. Defendant tried “brushing him off” by telling him to move away. JC yelled in defendant’s ear not to talk to his mother the way he was. Defendant told JC not to “be putting your hands on my mom.” Defendant’s mother had told defendant that JC had been beating her. JC replied that he could put his hands on Mrs. Chaney because she was his wife. Defendant told JC “this wasn’t his Mother F’in house and... he couldn’ talk to me like that.” JC grabbed defendant’s arm, “yanked” him to the door, and threw defendant outside. Defendant was 5 feet 11 inches tall and JC was 6 feet 2 inches tall.
This was the first time defendant had confronted JC. Defendant was nervous and scared. He looked in the house through the window at the top of the front door. Defendant feared that JC might mistreat his mother, girlfriend and daughter. About a minute or 30 seconds later, while defendant was looking through the door window, JC said, “fuck this” to defendant and opened the door. JC started reaching for something. Defendant did not know what JC was reaching for but knew JC carried a pocketknife and a gun.
Defendant pulled a gun out of his pocket and fired at JC. He had the gun for protection because he had been shot at a couple of times in San Bernardino. After defendant shot JC three times, defendant fled to Jenkins’s house. He went there because he was scared. This was the first time he had fired a gun. Defendant did not know what to do. He was not thinking when he fired the gun. When defendant went to his mother’s house on January 12, 2009, he did not intend to confront JC or shoot and kill him. Defendant also did not intend to argue with his mother about taxes. He only intended to retrieve his belongings and take a shower.
When defendant arrived at Jenkins’s house, she told him he could not stay there because the police were coming and she feared she might go to jail if he stayed. As defendant was leaving, he saw an officer and waved at him to get his attention. Defendant dropped his gun by Jenkins’s front door and laid down on the ground with his arms behind his back. Defendant was arrested and transported to the police station.
At the police station, Investigator Masson interviewed defendant a few hours after the shooting. Defendant acknowledged that what he told Masson was different from his trial testimony. During his police interview, defendant did not say JC was reaching for something when defendant shot JC. Defendant also did not say that he was nervous while outside, after JC threw him out of the house. Defendant said he was mad. Defendant acknowledged that when Masson asked him during his interview if he was sorry that day, defendant said he was not.
Defendant further testified that he could have fought JC when JC grabbed defendant and yanked him out the door but that, if he had, JC would have beaten him up. Defendant acknowledged that defendant had played football in high school as a defensive back and receiver. Also, JC did not have a gun and did not know defendant had a gun in his pocket. When defendant was looking through the door window, he was mad at JC because JC had beaten up defendant’s mother. When JC opened the door and said, “Fuck this,” JC did not touch defendant. Defendant immediately shot JC three times in the chest. Defendant estimated that JC was three to five feet away.
Defendant acknowledged he could have walked away after being thrown out of the house but did not leave because he was mad. Defendant testified he had to shoot JC because he said, “Fuck this,” and was reaching for something. Defendant could not have run away because defendant was mad at JC and was standing up for his mother, whom JC had been beating. When defendant saw his mother on January 12, 2009, he noticed she had a “knot” on her head that was from JC beating her. Defendant did not see JC beat his mother that day. Around a week before the shooting, he was told JC had been beating her.
III
INSTRUCTIONAL ERROR
Defendant contends the trial court erred in giving the following special pinpoint instruction on verbal provocation: “Words or gestures, no matter how grievous or insulting, are not sufficient provocation to reduce an intentional homicide with a deadly weapon to manslaughter.” Defendant argues the instruction precluded consideration of verbal statements as provocation sufficient to sustain a voluntary manslaughter conviction based on the heat of passion defense.
The People argue that, although verbal provocation may establish heat of passion in some cases, in the instant case the instruction was proper because there was insufficient evidence of verbal provocation as a matter of law. We agree.
A. Procedural and Factual Background
Citing People v. Dixon (1961) 192 Cal.App.2d 88 , the prosecutor requested that the trial court give a special pinpoint instruction that words or gestures are not sufficient provocation to reduce a homicide with a deadly weapon to manslaughter. Defense counsel objected on the ground the proposed instruction was unsupported by the evidence. The court stated that defendant told the police he shot JC because JC had been beating up defendant’s mother. If defendant testified that this was his motive, then the instruction was appropriate. The court added that there was evidence supporting the defendant’s theory of heat of passion or sudden quarrel, based on JC grabbing defendant and throwing him out of the house. There was also evidence of JC taunting defendant. Due to uncertainty as to whether defendant would testify and as to what he would testify to, the court deferred ruling on whether to give the verbal provocation instruction until after defendant presented his defense.
After defendant testified and the defense rested, the court stated that it would give the prosecution’s pinpoint instruction, and instructed the jury that, “Words or gestures, no matter how grievous or insulting, are not sufficient provocation to reduce an intentional homicide with a deadly weapon to manslaughter.”
B. Analysis
The special pinpoint instruction on verbal provocation indicated that words alone were not a defense to murder. Although, generally, verbal provocation may be sufficient to reduce murder to manslaughter (People v. Moye (2009) 47 Cal.4th 537, 550; People v. Le (2007) 158 Cal.App.4th 516, 526, citing People v. Valentine (1946) 28 Cal.2d 121), in the instant case, JC’s words were insufficient to constitute verbal provocation as a matter of law.
There was no evidence that JC said anything that would constitute objectively adequate provocation. According to defendant’s testimony, JC said “Fuck this,” when JC opened the front door. JC also told defendant that JC could touch mother whenever he wanted to since she was his wife. In addition, defendant testified that, when JC intervened in defendant’s argument with mother over taxes, JC stood over him “like, kind of taunting me, screaming in my face,” and defendant brushed him off. This evidence was insufficient to support a finding of verbal provocation. (See, e.g., People v. Gutierrez (2009) 45 Cal.4th 789, 826-827 [victim’s cursing, scratching and kicking defendant not sufficient provocation]; People v. Lee (1999) 20 Cal.4th 47, 59 [mere fact of argument not sufficient provocation]; People v. Manriquez (2005) 37 Cal.4th 547, 586 [calling defendant a “motherfucker” and challenging him to use a weapon not sufficient provocation].) Furthermore, defendant testified that he shot JC, not because of what JC said, but because JC had been beating his mother. Defendant was also mad at JC because JC threw defendant out of the house.
Where the evidence was insufficient as a matter of law to support a finding of verbal provocation, there was no error in instructing the jury that JC’s words were not sufficient provocation to reduce intentional homicide to manslaughter. “Generally, it is a question of fact for the jury whether the circumstances were sufficient to arouse the passions of the ordinarily reasonable person. [Citations.] However, where the provocation is so slight or so severe that reasonable jurors could not differ on the issue of adequacy, then the court may resolve the question. [Citations.]” (People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1705.) Here, the evidence of verbal provocation was so slight that reasonable jurors could not differ on the issue of adequacy. (Ibid.) Therefore, the court properly resolved the question by giving the instruction on verbal provocation.
Even if the trial court erred in giving the instruction on verbal provocation, such error was harmless under Chapman v. California (1967) 386 U.S. 18, 24 and People v. Watson (1956) 46 Cal.2d 818, 836. It is not reasonably probable that any error in giving the instruction contributed to the verdict against defendant or that there would have been a more favorable result had the instruction not been given. There was no evidence that JC said anything that resulted in obscuring defendant’s reason “‘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,...’”’” (People v. Lasko (2000) 23 Cal.4th 101, 108; People v. Moye (2009) 47 Cal.4th 537, 550.) It is highly unlikely that, had the instruction not been given, the jury would have found that JC’s words constituted adequate provocation to reduce murder to voluntary manslaughter.
IV
PROSECUTORIAL MISCONDUCT
Defendant argues that the prosecutor committed misconduct by incorrectly arguing that the jury should not find defendant guilty of manslaughter, as opposed to murder, since JC’s alleged provocation would not have caused an average person to kill.
Defendant forfeited his objection to prosecutorial misconduct by not raising it in the trial court. (People v. Guerra (2006) 37 Cal.4th 1067, 1124.) A defendant is excused from not objecting if it would have been futile. (People v. Najera (2006) 138 Cal.App.4th 212, 224 (Najera).) In the instant case, objecting and requesting an admonition would not have been futile. The trial court immediately could have corrected any inaccurate statements of the law. Defense counsel’s failure to object and request an admonition bars defendant from challenging the prosecutor’s comments on appeal.
Defendant argues his trial attorney’s failure to object to the prosecutorial misconduct constituted ineffective assistance of counsel (IAC). A finding of IAC requires that (1) defendant’s counsel’s performance was deficient when measured against the standard of a reasonably competent attorney, and (2) even if deficient, it so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. (People v. Lewis (2001) 25 Cal.4th 610, 674; People v. Coddington (2000) 23 Cal.4th 529, 595.) “Prejudice means a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ [Citation.]” (Najera, supra, 138 Cal.App.4th at p. 225, quoting Strickland v. Washington (1984) 466 U.S. 668, 694.)
Under federal law, a prosecutor commits misconduct if it “‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’” (Darden v. Wainwright (1986) 477 U.S. 168, 181.) Under state law, we look to whether the prosecutor’s conduct involves “‘“the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.”’” (People v. Espinoza (1992) 3 Cal.4th 806, 820.) When the alleged misconduct involves comments made to the jury, the test is whether there is a reasonable likelihood the jury interpreted the prosecutor’s remarks in an objectionable fashion. (People v. Samayoa (1997) 15 Cal.4th 795, 841.)
Defendant complains the following statements made by the prosecutor constituted misconduct because the prosecutor misstated the law as applied to reducing murder to manslaughter based on a finding of provocation: “[T]he provocation standard isn’t what [defendant] wanted it to be. It’s what an average person wants it to be, right? And we’re all average people here. Ask yourself, is it reasonable for JC to be killed for defending his wife? An average person in the same situation knowing the same facts would have done the same thing? [¶] If you can say an average person knowing the same things and the same facts would do the same thing, then he’s guilty of voluntary manslaughter. But... average people don’t kill. Average people don’t kill for JC defending his wife.” (Italics added.)
Defendant also complains that the prosecutor argued that a verdict of voluntary manslaughter meant that the jury agreed that it was reasonable for the defendant to kill the victim, after the victim told defendant to leave following an argument with the victim. The prosecutor stated: “A verdict of voluntary manslaughter means that you agree that our society thinks this is reasonable. [¶] This is not reasonable. People get mad at one another all day long, but they don’t kill.”
Defendant argues this was an incorrect statement of the law since the provocation need only induce a reasonable person to react out of passion rather than judgment. The provocation need not induce an average person to respond lethally. (People v. Rich (1988) 45 Cal.3d 1036, 1112.) As stated in Rich at page 1112, the test in determining whether provocation negates malice “‘is whether or not the defendant’s reason was, at the time of his act, so disturbed or obscured by some passion... to such an extent as would render ordinary men of average disposition liable to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.’” (Ibid.) In other words, “[t]he focus is on the provocation—the surrounding circumstances—and whether it was sufficient to cause a reasonable person to act rashly.” (Najera, supra, 138 Cal.App.4th at p. 223.)
Defendant asserts that defendant’s response of killing JC, and whether it was reasonable, was thus not relevant to the determination of whether provocation negated malice. (Najera, supra, 138 Cal.App.4th at p. 223 .) All that was required was a finding that the provocation would trigger a passionate state of mind in a reasonable person. Although misstating the law during closing argument constitutes misconduct (People v. Boyette (2002) 29 Cal.4th 381, 435), it is not reversible error unless the misstatement is also prejudicial and rendered the trial fundamentally unfair. (People v. Coddington, supra, 23 Cal.4th at pp. 599-600.) “When the issue ‘focuses on comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.’ [Citations.]” (People v. Harrison (2005) 35 Cal.4th 208, 244.)
Assuming the prosecutor misstated the law as applied to provocation, the error and defense counsel’s failure to object were not prejudicial. There is not a reasonable probability that had the error not been made or had defense counsel objected, the outcome would have been different. The trial court properly instructed the jury on voluntarily manslaughter based on heat of passion or quarrel. The court explained that a killing that would otherwise be murder is reduced to voluntary manslaughter when the killing is induced by a sudden quarrel or in the heat of passion. The court further instructed the jury as to provocation, explaining that “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.”
The trial court also instructed the jury that the attorneys’ statements and argument were not evidence, and the jury was to follow the court’s instructions, not the attorneys’ description of the law, to the extent there was a conflict. We presume the jury followed these instructions. (Najera, supra, 138 Cal.App.4th at p. 224.) Had defense counsel objected to the prosecutor’s argument regarding provocation, the court most likely would have told the jury that provocation did not require a finding that a reasonable person would have shot JC. The court also would have admonished the jury to follow the instructions on provocation. Even in the absence of these admonitions, we must presume the jury followed the instructions which correctly instructed the jury on provocation. (Ibid.)
Furthermore, there was substantial evidence that JC’s acts and words were insufficient to support a finding of self-defense or imperfect self-defense. In convicting defendant of first degree murder, the jury found defendant acted with deliberation and premeditation, and thus must have rejected the theory that the murder was of any lesser degree due to provocation or an unreasonable belief in the need for self-defense. If there was prosecutorial misconduct in suggesting that voluntary manslaughter required provocation that would induce a reasonable person to kill JC, it was harmless error. Likewise, there was no prejudice in defense counsel failing to object and, in turn, no IAC.
V
SUFFICIENCY OF THE EVIDENCE
Defendant contends there was insufficient evidence to support his conviction for first degree, premeditated and deliberate murder. We disagree.
Upon a challenge to the sufficiency of the evidence, we examine the whole record in the light most favorable to the judgment below and determine whether or not the record discloses substantial evidence upon which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; People v. Ceja (1993) 4 Cal.4th 1134, 1138.) “In making this determination, we ‘“must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”’” (People v. Rayford (1994) 9 Cal.4th 1, 23.)
“Murder is the unlawful killing of a human being... with malice aforethought.” (§ 187, subd. (a).) “Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.” (§ 188.) Premeditated murder is murder in the first degree. (§ 189.)
“‘[G]enerally first degree murder convictions are affirmed when (1) there is evidence of planning, motive, and a method of killing that tends to establish a preconceived design; (2) extremely strong evidence of planning; or (3) evidence of motive in conjunction with either planning or a method of killing that indicates a preconceived design to kill.’ [Citation.] These factors are not the exclusive means, however, to establish premeditation and deliberation; for instance, ‘an execution-style killing may be committed with such calculation that the manner of killing will support a jury finding of premeditation and deliberation, despite little or no evidence of planning and motive.’ [Citation.]” (People v. Tafoya (2007) 42 Cal.4th 147, 172.) “Intent is rarely susceptible of direct proof and usually must be inferred from the facts and circumstances surrounding the offense.” (People v. Pre (2004) 117 Cal.App.4th 413, 420.)
Defendant argues the record shows that the murder occurred without premeditation or deliberation, right after defendant had a heated verbal and physical confrontation with JC. Defendant claims he was a young, rash, immature teenager, who was angry at his stepfather. In effect, defendant argues the evidence could have been interpreted to support a more favorable conclusion that he shot the victim during a heated argument based on rash impulse without premeditation and deliberation.
We conclude there was sufficient evidence of planning and deliberation, as well as motive. As to evidence of motive, defendant moved out of Mrs. Chaney’s and JC’s home 10 days before JC’s death because defendant had been fighting with JC. Defendant acknowledged at trial that when he shot JC, defendant was angry at JC because JC had been beating Mrs. Chaney. While living with JC and Mrs. Chaney, defendant had seen JC beat his mother. In addition, within a week before JC’s demise, defendant learned that JC once again had beaten Mrs. Chaney. When defendant came over to her house on the day of the shooting, he noticed she had a bump on her head, which defendant believed was from JC beating Mrs. Chaney. Defendant hoped JC would die when defendant shot JC because JC had been hurting his mother. In addition, defendant was mad at JC for throwing him out of the house on January 12, 2009.
There was also evidence of planning. Defendant arrived at Mrs. Chaney’s house with a loaded gun and extra ammunition in his pocket. Defendant claimed he carried a gun for protection when in San Bernardino because he had previously been accosted there. But his mother’s house was not in San Bernardino. It was in Moreno Valley. Defendant acknowledged at trial that he did not feel unsafe at his mother’s house.
In addition, after JC threw defendant out of the house, defendant did not leave. He had a moment to reflect on the situation and could have walked away. Instead, defendant peered inside the house through the front door window. His gun was readily accessible to fire at JC the minute JC opened the front door. Defendant watched JC through the front door window as JC approached the door and opened it. The moment JC opened the door, defendant fired three shots into JC’s chest. Defendant acknowledged JC was a big man who could beat up defendant. A reasonable inference could be made that, with premeditation and deliberation, defendant made sure that, when he confronted JC at the door, he killed JC.
Defendant acknowledged at trial that, during his interview at the police station a few hours after the shooting, defendant had said that, while he was standing outside the front door, defendant was not nervous; he was mad. Defendant also said he knew “something was gonna happen” when he went to his mother’s house that day because JC had been abusing defendant’s mother. When defendant was asked during his interview, “What did you think was gonna happen when you shot him?,” defendant responded, “Hopefully, that he dies.” Defendant acknowledged that, when the investigator asked him if he was sorry, defendant said he was not.
Regardless of whether the deliberation and premeditation occurred before defendant arrived at his mother’s home or after JC threw defendant out of the house, there was sufficient evidence of planning, motive, and a method of killing to establish that defendant had a preconceived design to kill JC. (People v. Tafoya, supra, 42 Cal.4th at p. 172.)
Defendant has not shown an absence of evidence of premeditation and deliberation. Rather, defendant merely cites conflicts in the evidence which made it possible for the jury to interpret the evidence in his favor on these issues. However, under the relevant standard of review, circumstantial evidence is not insufficient simply because it is “‘“susceptible of two interpretations, one of which suggests guilt and the other innocence.”’” (People v. Snow (2003) 30 Cal.4th 43, 66.) We conclude the jury’s findings on the issues of premeditation and deliberation are well supported by the evidence in the record. The evidence was thus sufficient to sustain defendant’s first degree murder conviction.
VI
DISPOSITION
The judgment is affirmed.
We concur: McKinster, Acting P.J., King, J.