Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. GA059066, Janice Claire Croft, Judge.
Derek K. Kowata, 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, Assistant Attorney General, Scott A. Taryle and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Karen Jean Harding appeals the judgment entered following her conviction by jury of second degree murder in which she personally used a dangerous or deadly weapon. (Pen. Code, §§ 187, 12022, subd. (b)(1).) The conviction arises out of the fatal stabbing of Harding’s cohabitant, John Holder, on October 11, 2004. The trial court instructed the jury on murder and involuntary manslaughter based on voluntary intoxication but refused Harding’s request for instruction on self defense. Harding contends this refusal was error and that the trial court had a sua sponte obligation to instruct on voluntary manslaughter based on sudden quarrel/heat of passion and imperfect self-defense. Harding also claims the trial court committed evidentiary error, the prosecutor committed misconduct and the abstract of judgment must be corrected.
We conclude there was insufficient evidence to support instruction on self-defense or voluntary manslaughter and any error in failing to instruct on these theories was harmless on the facts presented. We further conclude the claims of evidentiary error and prosecutorial misconduct lack merit. We affirm the judgment but order the abstract of judgment corrected to reflect Harding’s conviction of second degree murder, rather than first-degree murder.
FACTS AND PROCEDURAL BACKGROUND
1. Events preceding the homicide.
On October 8, 2004, Arturo Delatorre, a friend of Holder’s, went to Holder’s apartment to install a computer. Holder looked weak and he lacked the strength to plug a power cord or a phone jack into the computer. Holder appeared slower than usual and seemed to be deteriorating physically.
On Sunday, October 10, 2004, Holder attended a family gathering. Steven Holder, Holder’s brother, testified Holder’s health had deteriorated and he looked “very frail and very sleepy.” Holder had lost “quite a bit of weight” and probably was not monitoring his diabetes because his leg was “decayed-looking.” Steven and Holder spent an hour or two talking about Holder’s problems with Harding.
On October 11, 2004, Steven Holder spoke with Holder on the telephone at 1:00 p.m. During the conversation, Holder said Harding was mad and was going to kill him. In the background, Steven Holder heard Harding say, “Why are you telling him that? Who are you talking to?” Harding then got on the telephone and spoke to Steven Holder. Harding said she would not hurt Holder, she loved him and they were supposed to be married. Steven Holder asked Harding, “what are all of these threats all about?” Harding responded it was “about money.” Steven Holder asked how much Harding needed and she responded $2,500. When Steven Holder resumed speaking with Holder, he offered to give Harding the money she needed if Holder would get away from her and move closer to Steve Holder’s residence.
2. Events surrounding the homicide.
a. Harding calls her mother.
At 3:51 p.m. on October 11, 2004, Harding telephoned her mother, Doris Townsend. Harding said “John’s dead.” Harding’s voice was shaky and she sounded very upset. Townsend thought Holder might merely be in a diabetic coma and urged Harding to call 911.
b. Harding calls 911.
At 4:03:44 p.m. Glendale Police Department dispatcher Jeremy Gump received a 911 call from Harding. A tape recording of the telephone call was played for the jury. At the outset of the call, Harding stated: “A man is dead.” After ascertaining Harding’s address, Gump asked what happened. Harding responded: “He stabbed himself.” Harding then became uncooperative. Gump asked Harding to stop screaming and listen to his questions. Harding then stated, “But he’s dead.” After further unresponsive comments, Harding continued to state, “He’s dead, ” in response to many of Gump’s questions. When police officers arrived at the apartment, Gump asked whether the apartment door was open. Harding responded, “They cannot revive him. They accuse me of murder.” When Gump asked Harding to open the door she responded: “Bust it down. I can’t walk.” Harding then repeatedly stated: “He’s dead.”
c. Police officers and paramedics respond.
Glendale Police Detective Marc Mendoza arrived at the scene first. He could hear a female inside the apartment but no one responded when he knocked. Mendoza kicked open the locked front door and found Harding on the floor of the apartment mumbling, excited and talking on the phone to the dispatcher. Mendoza checked Holder for a pulse but found none. Holder had a knife in his left hand which appeared to have been placed there.
Glendale Police Officer James Flores entered after Mendoza and saw Holder slumped in a recliner and Harding lying on the carpet. Harding primarily was unintelligible but Flores made out something to the effect of “he tried to kill me.” Flores asked Harding a number of times who tried to kill her but she did not respond. Flores noticed a knife resting in Holder’s open hand with the blade portion in his palm. Harding had a superficial cut on her chest which appeared to be an inch long. Harding had the odor of alcohol on her breath.
Paramedics Kevin Lasota and Gabriel Vaca arrived at 4:06 p.m. Lasota, who had worked at the coroner’s office, found Holder’s skin was cool to the touch and testified it looked like Holder had been dead for a while. Harding was lying on the floor five to six feet from Holder. Harding was “agitated.” She was wailing, “flailing around” and was not cooperative. Harding told Lasota, “Try and save his life. They accuse me of murder.” Pills, papers and other items were strewn on the floor of the apartment and a large sword was on the floor near Harding. Lasota saw a knife that appeared to have been placed in Holder’s hand in that Holder was holding the blade of the knife. Holder had no wounds on his hands.
Paramedic Vaca testified Harding initially was uncooperative but she responded to her name when Vaca recalled he previously had provided medical assistance to her. Harding smelled of alcohol but was alert and oriented. Harding had an injury on the left side of her chest that was less than an inch long and looked like a stab wound but it “seemed kind of superficial.” Harding had a similar injury to her right thigh.
Glendale Police Detectives Jeff Newton and Keith Soboleski arrived at the apartment at 4:20 p.m. Newton observed a dagger resting unnaturally in Holder’s palm, a Pledge wipe on Holder’s left arm and a container of Pledge wipes on the floor near the recliner. Newton opined the crime scene had been “sanitized” based on the presence of a Pledge wipe which he believed had been used to wipe fingerprints from the blade of the dagger. Newton found blood in a closet in the bedroom where the sword was kept.
It appeared to Detective Soboleski that the knife had been placed on Holder’s left hand. Soboleski recovered blood from a wall. A plaque which would hold a knife was recovered from Harding’s bedroom.
d. Statement of Harding’s neighbor.
When Harding’s neighbor, Venessa Vandecar, returned home on October 11, 2004, she told police officers who were investigating Holder’s death that she heard “a large argument” two or three weeks earlier in the middle of the night involving Holder and Harding. Vandecar heard a female say, “I’m going to fucking kill you.” Holder responded, “Put me out of my fucking misery.”
e. Harding’s statement to the emergency room nurse.
At 6:35 p.m. on October 11, 2004, Sanjuana Molina, R.N., treated Harding in the LA County U.S.C. Medical Center trauma area. When Molina asked Harding why she was in the hospital, Harding responded, “My fiancé stabbed me and then stabbed hi[m]self.” Harding stated she had no pain and Molina noted Harding’s wounds were not bleeding and did not require suturing. Molina stated, “They were small and they were not deep.” Harding indicated concern about Holder and asked where he was.
f. Harding’s statement to Detective McEntarffer.
Glendale Police Detective Darrell McEntarffer interviewed Harding at the hospital at approximately 7:00 p.m. Harding had a superficial cut to her chest and another on her left leg. Harding also appeared to have an injury to her palm or finger. Although Harding appeared to be intoxicated, she responded to McEntarffer’s questions and did not appear to be mentally retarded. McEntarffer tape recorded a 45 minute conversation with Harding which was played for the jury.
In the interview, Harding did not remember being taken to the hospital but recalled getting sick and stated she remembered Holder “getting violent.” When McEntarffer asked Harding what happened, she responded, “I can’t tell you too much about it.” Harding then recalled “cussing and screaming” about whether she “still want[ed] to be with him.” Harding indicated Holder’s brother had been trying to get Holder to break up with her. Harding said “there [were] some swords out.” Harding indicated Holder “said – he’s always saying kill me, kill me, kill me.” Harding then clarified that Holder said, “ ‘I’ll kill you, ’ or ‘you kill me.’ ” “It goes both ways. I don’t remember.” Harding indicated she and Holder had separate bedrooms and Holder kept the swords in his room. After further conversation about swords, McEntarffer indicated a forensic technician was going to photograph Harding’s injuries and then “do something with [Harding’s] fingers.” Harding asked whether the technician was “taking [her] prints.” Harding then stated, “He tried to choke me... two times before.” Harding also stated: “[H]e would come at me with the chair. And, he punched me in the face. And, I didn’t... do anything.” McEntarffer asked if Harding was referring to a case McEntarffer handled several years previously. Harding asked if McEntarffer was referring to the case involving the “Tommy gun” and “silencer.” McEntarffer indicated he was not aware of that case. Harding stated, “He had his sword –... He’s nuts. I didn’t know that I killed him.... He was going to kill me with his big sword He had it in his hand.” At that point, McEntarffer advised Harding she was under arrest and terminated the interview.
3. Psychiatric evaluation of Harding.
On October 12, 2004, at 3:15 a.m., Mohammad Jahangiri, M.D., evaluated Harding at the county jail. Jahangiri detected alcohol on Harding’s breath and noted she was slightly dysphoric, meaning anxious, agitated and depressed. Harding told Jahangiri she got drunk, had a scuffle with her boyfriend and during the scuffle she used her boyfriend’s swords. Harding then went to sleep and, when she awoke, her boyfriend was dead of a chest wound. Harding did not recall the details of the scuffle or how her boyfriend died. Harding indicated she was anxious, confused and remorseful. Harding gave a history of 10 years of psychiatric treatment for posttraumatic stress disorder, depression, anxiety and bipolar disorder. Harding indicated she was on numerous medications including neurontin, Depakote and Restoril. Harding claimed more than 10 psychiatric hospitalizations, the last being a year ago. Harding stated she had used alcohol since her teenage years with a history of daily drunkenness, she had been sober for four days with a relapse the previous day, and she had a history of daily cocaine use but had not used cocaine for six months.
Jahangiri concluded Harding had poor impulse control, lack of insight and poor judgment. Jahangiri diagnosed Harding as having a mood disorder not otherwise specified and poly-substance abuse/dependence. Harding did not appear to be mentally retarded.
4. Forensic evidence.
a. Testimony of the deputy medical examiner.
A deputy medical examiner testified Holder died as the result of a single stab wound to the chest about three inches deep which injured his aorta and caused severe internal bleeding. Holder had small abrasions on the back of both hands that appeared to be blunt force injuries, not sharp force injuries caused by a knife. The injuries could be consistent with defensive wounds. Holder also had a small abrasion on the back of his left forearm that appeared fresh and appeared to have been sustained at the same time as the wounds on Holder’s hands.
b. Other forensic evidence.
A criminalist testified Harding’s blood had a blood-alcohol content of 0.20 percent. The parties stipulated Harding’s blood tested positive for barbiturates, benzodiazepines, Phenobarbital, Xanax and metabolite of Valium. However, it contained no cocaine, opiates, PCP, amphetamines or cannabinoids.
Holder’s blood contained no alcohol, cocaine, opiates, amphetamines, cannabinoids or PCP. However, a coroner’s criminalist testified it did contain pseudoephedrine, Phenobarbital, Librium metabolite, dextromethorphan (cough suppressant), dipenhydramine (antihistamine), nordiazepam (Valium metabolite), Benadryl and doxylamine (antihistamine). This combination of drugs could cause drowsiness, sleepiness and depression.
A criminalist found no blood on the sword but found blood on both sides of the knife, on a 409 bottle and in a stain taken from a closet door. The blood found on the knife blade and on the 409 bottle were a mixture of the blood of at least two people, one of whom was Holder. The blood on the closet door had a single source contributor and Holder was included as a possible contributor. The blood stain on the wall had a single source contributor whose profile matched Harding’s.
Harding’s fingerprints were found on the blade of the knife and on the package of Pledge wipes.
5. Prior similar incident; 1991 stabbing of Felix Reyes.
Felix Reyes testified he was involved in a relationship with Harding for two or three years in the early 1980’s and again in the early 1990’s. On August 31, 1991, at approximately midnight, Harding stabbed Reyes in the back while he was sleeping. Reyes’s brother called the police and Reyes was treated for the injury at the hospital. Reyes and Harding separated after this incident. Reyes admitted Harding’s children sometimes resided with them but denied he ever molested Harding’s daughter.
6. Defense case.
a. Mental health experts.
Annette Ermshar, a clinical psychologist, performed an eight hour assessment of Harding and concluded Harding had borderline intelligence with an IQ in the range of 70. Ermshar found Harding had an organic brain impairment called disexecutive syndrome. Based on this diagnosis, combined with Harding’s borderline intelligence, Ermshar would expect Harding to have behavioral problems and trouble comporting her behavior to socially appropriate standards. Additionally, Harding had a significant and chronic substance abuse history which can cause permanent brain impairment.
Arthur Kowell, M.D., a neurologist, reviewed Harding’s medical records and the police reports in this case. The hospital records indicate Harding had a blood alcohol level of 0.277 percent. Kowell found evidence Harding had a psychiatric disorder characterized by depression. Harding had been diagnosed as having a bipolar disorder, anxiety, panic attacks, borderline personality, self-mutilation, poly-substance-abuse including alcohol and a history of poor impulse control. Harding also had a history of seizure disorder, possibly drug-induced. An individual with such symptoms and a blood-alcohol level of 0.277 would likely lack understanding, engage in irrational behavior and would have seriously deranged cognitive processing, understanding and executive function. Her ability to consider the consequences of her actions would be poor.
b. Prior incident of domestic violence involving Harding and Holder.
In August of 1998, Peter Allen, then a detective for the City of Burbank, investigated a complaint lodged by Harding. Harding had a black and blue mark under her left eye, red marks on her shoulder and bruises on her forearm. Officers surrounded the home and, when Holder exited, he had a.45 caliber handgun in his waistband and was taken into custody.
c. Impeachment of Reyes.
Harding’s daughter testified that, when she was eight or nine years of age, she resided with Harding and Reyes. Reyes molested her on two separate occasions. Harding reported the abuse to the police.
7. The jury instruction conference.
The trial court agreed Harding was entitled to instruction on involuntary manslaughter based on voluntary intoxication and further indicated it believed Harding’s statement to Detective McEntarffer supported instructions on self defense. The trial court noted Harding told the detective: “He was going to kill me with his big sword. He had it in his hand.”
The prosecutor responded there was no evidence Harding’s injuries were inflicted by the sword. Further, the sword had no fingerprints or blood on it. However, a mixture of Holder’s blood and possibly Harding’s blood was found on the knife. Further, there was no evidence the sword was used in any fashion and it appeared merely to have been lying on the floor. The prosecutor urged “there is no way that small cut to the chest and the leg... which... were... only cleaned and bandaged were inflicted by that sword.” Furthermore, there was no evidence of provocation and Harding’s brief, self-serving statements did not warrant self-defense instructions.
Defense counsel argued Harding’s statements to the detective were sufficient to warrant instruction on self-defense and whether Harding’s wounds were caused by the sword or something else was for the jury to decide. Defense counsel argued Harding’s perception Holder was going to kill her, combined with her statement to the detective, was sufficient to warrant instruction on self-defense.
The trial court denied the request. It noted no blood or fingerprints were found on the sword and there was no proof the wounds suffered by Harding were caused by the sword. The trial court concluded there was insubstantial evidence to support instructions on self defense.
8. Jury argument.
a. The prosecutor’s argument.
The prosecutor argued Harding attacked Holder while he was asleep and sick with a cold. The prosecutor urged the jury to find deliberation and planning based on the evidence that showed Harding “was asleep in that chair and he was basically defenseless” when Harding went to her bedroom to get the knife from its holder. The prosecutor suggested Harding’s actions on the day of the homicide were not the actions of a person who is mentally impaired with disexecutive function and organic brain disorder. The prosecutor noted Harding told numerous versions of the incident to various individuals and argued Harding inflicted the superficial wounds on herself with the knife to make it look like Holder had attacked her. The prosecutor indicated Harding’s actions, calling her mother, sanitizing the crime scene and placing the knife in Holder’s hand, were not the actions of a mentally retarded individual. Rather, these are the actions of the person who is trying to get away with murder.
b. Defense counsel’s closing argument.
Defense counsel conceded Harding stabbed Holder but asserted the question for the jury was what crime had she committed, if any. Defense counsel read the instruction on involuntary manslaughter based on voluntary intoxication, then argued Harding did not have to be unconscious but mentally absent. Defense counsel noted Holder’s blood was on the closet door and suggested it was possible he had been walking around while he was bleeding and was not asleep.
Defense counsel noted Harding consistently indicated she was fearful of Holder and thought he was going to kill her. Further, Holder previously had been arrested following an incident of domestic violence against Harding. In this case, Holder had abrasions on his arms, hands and head that suggested a struggle. Also, Harding had stab wounds to her chest and leg. Defense counsel noted Harding’s blood was on the knife and conceded Harding might have stabbed herself, noting there was evidence that Harding had self mutilated in the past. Defense counsel asked: “Was she stabbing herself and John Holder in fear tried to take the knife and somehow got stabbed? We don’t know.” Defense counsel argued the bruises on Harding’s neck and legs suggested a struggle or self-defense. Thus, the prosecutor’s claim Harding specifically intended to kill Holder amounted to speculation. Further, although Harding’s wounds were superficial, they were treated at the hospital.
Defense counsel then referred to the 911 call in which Harding states, “He tried to kill me.” Defense counsel claimed there had been a struggle and asked the jury to “[l]isten to the 911 tapes. Listen to her voice. Hear the desperation. There was no [criminal] intent.” Defense counsel concluded the offense was involuntary manslaughter, not murder.
c. The prosecutor’s rebuttal argument.
The prosecutor noted defense counsel had addressed self-defense during argument. However, there had been no jury instruction on self-defense and Harding’s self-serving statements were the only evidence on that issue. The prosecutor assured the jury that “had there been evidence of self-defense you would have been instructed on it.” However, the jury instruction packet did not include instruction on self defense. The prosecutor continued: “You were told that she was defending herself. From whom? The defenseless dead man in the chair?... She had some cuts and bruises. Is there one shred of evidence those were received at the hands of John Holder? It’s just as likely that given her history, her documented history, her capacity for falling and bruising herself and self inflicting wounds, it’s just as logical and rational an explanation that those somehow came to her on her own by her own acts.” “The only reason that the words self-defense were ever uttered was not that they are supported by the evidence. They are not supported by the law in this case. It was to plant seeds of reasonable doubt in your mind.”
After the prosecutor concluded her remarks, the trial court overruled defense counsel’s objection to this argument and denied a motion for mistrial. The trial court stated, “I did not find any evidence of self-defense. [Defense counsel] chose to argue it... anyway.”
CONTENTIONS
Harding contends the trial court erroneously refused to instruct on self-defense, failed to instruct sua sponte on the lesser included offense of voluntary manslaughter and failed to instruct sua sponte on the prosecution’s burden of proving the absence of heat of passion and imperfect self-defense. Harding further contends the trial court improperly admitted evidence of the prior incident of domestic violence and hearsay statements that Harding threatened to kill Holder.
Harding also contends the prosecutor committed misconduct by appealing to the sympathies of the jury and improperly arguing in rebuttal the jury was required to disregard evidence of self defense because the trial court did not instruct on self-defense. Harding concludes the cumulative effect of these errors resulted in a denial of due process.
Harding also requests correction of the abstract of judgment to reflect conviction of second-degree murder rather than first-degree murder.
DISCUSSION
1. Any error in the failure of the trial court to instruct on self-defense was harmless.
Harding contends there was substantial evidence that supported her request for instructions on self-defense. Harding notes the trial court initially indicated it would instruct on self defense based on her statement to Detective McEntarffer. Harding claims the trial court erroneously rejected her request. According to Harding, her statement to Officer Flores that Holder tried to kill her, her statement to nurse Molina that Holder stabbed her, and her statement to Detective McEntarffer that Holder tried to kill her with the sword, combined with the stab wounds to her chest and thigh, the bruises on her legs and the wounds to her hand and finger, supported instructions on self-defense. Harding concludes reversal is required because the instructional error unconstitutionally deprived her of the right to present a defense. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705].)
A trial court in a criminal case has a duty to instruct on general principles of law applicable to the case. (People v. Blair (2005) 36 Cal.4th 686, 745; People v. Valdez (2004) 32 Cal.4th 73, 115; People v. Breverman (1998) 19 Cal.4th 142, 154.) Self-defense arises when the defendant actually and reasonably believes in the need to defend against imminent bodily injury or death. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082; In re Christian S. (1994) 7 Cal.4th 768, 783.) When the trial court refuses a proposed instruction for lack of substantial evidence, we review the record de novo. (People v. Manriquez (2005) 37 Cal.4th 547, 581, 584; People v. Waidla (2000) 22 Cal.4th 690, 733.) In this context, “substantial evidence” means “evidence that a reasonable jury would find persuasive....” (People v. Wilson (2008) 43 Cal.4th 1, 16; People v. Valdez, supra, at p. 116.) “If the evidence is substantial, the trial court is not permitted to determine the credibility of witnesses, which is a task for the jury. [Citations.]” (People v. Lee (2005) 131 Cal.App.4th 1413, 1426.)
Here, viewed against the backdrop of all the evidence presented at trial, Harding’s selective quotation of her numerous statements gives rise to only the “possibility” she stabbed Holder because she actually and reasonably was in imminent fear for her life. (People v. Young (2005) 34 Cal.4th 1149, 1200 [trial court need not give instructions based solely on conjecture and speculation].)
Harding made numerous vague and inconsistent statements regarding what transpired in the apartment. In a telephone call placed at 3:51 p.m., Harding told her mother Holder was dead but did not explain the circumstances of his death and did not claim self-defense. This left Harding’s mother with the impression Holder may have fallen into a diabetic coma and she urged Harding to call 911.
When Harding did call 911 twelve minutes later, she told the dispatcher Holder stabbed himself, he was dead and “they cannot revive him. They accuse me of murder.” She did not say Holder attacked her. Harding told Officer Flores that Holder tried to kill her but refused to respond to Flores’s questions about the incident.
At the hospital, Harding told nurse Molina that Harding stabbed her then stabbed himself. In the interview with Detective McEntarffer, Harding stated Holder got violent and he was “always saying kill me, kill me, kill me.” Harding said Holder tried to choke her and threatened to kill her. As the trial court noted at the jury instruction conference, Harding said, “He was going to kill me with his big sword.... He had it in his hand.” However, Harding did not connect these statements to the stabbing and did not tell McEntarffer that she stabbed Holder because he was about to stab her.
Harding told Dr. Jahangiri there was a scuffle involving swords, she went to sleep and when she awoke, Holder was dead.
Thus, the statements Harding relies upon were inconsistent with numerous other statements she made about the incident. Harding concedes as much but argues the jury should have been permitted to determine the relative weight and credibility of her statements in light of the testimony of the defense experts. Harding notes one defense expert explained that a person with Harding’s psychological and organic problems, together with a 0.277 blood alcohol level and barbiturates in her system, would have deranged cognitive processing, understanding, executive function and judgment. A second defense expert found Harding had borderline intelligence and an organic brain impairment consistent with disexecutive syndrome and that such a person would have difficulty with relationships and poor problem solving skills.
However, this expert testimony was not offered by Harding to explain her statements but to support the defense theory of involuntary manslaughter based on voluntary intoxication.
In addition to the inconsistency of her statements, Harding’s claim of self-defense was inconsistent with the evidence that indicated Holder was so weak and debilitated that a week before the homicide he lacked the strength to plug a phone line into a computer. Holder’s brother testified Holder appeared to be tired and weak the day before the homicide, Holder’s health had gravely deteriorated and he had never looked worse. Further, at the time of his death, Holder’s blood contained a combination of drugs and cold remedies which would have left him drowsy, not combative. This evidence indicated Holder was not capable of mounting an imminent threat against Harding on the day he was stabbed.
Further, the crime scene evidence did not suggest Harding had been subjected to imminent harm. Holder was found seated in a recliner, indicating he had been asleep or at rest at the time of the fatal wound, not fallen on the floor as would be expected had he been stabbed during a struggle. Also, it appeared Harding had taken steps not only to sanitize the crime scene but also to make it appear a struggle had taken place. The presence of Pledge wipes indicated the crime scene had been cleaned of fingerprints or blood stains. The blade portion of the murder weapon had been placed in Holder’s open palm after he died.
Harding notes that when the police arrived, she was flailing on the floor with pills and trash strewn about the living room, suggesting there had been a struggle. A large sword was on the ground next to Harding and Harding had a one inch cut on her chest and thigh. However, Holder had been dead for some time before paramedic Lasota pronounced him dead. Thus, Harding had an opportunity to move the sword into the crime area and place the home in disorder to make it appear there had been a struggle. The presence of Holder’s blood on the door to Holder’s closet indicated the sword was brought to the crime scene after the fatal wound had been inflicted. Further, there was no evidence Harding’s small cuts had been inflicted by the sword.
Harding argues instruction on self defense was supported by the evidence that she and Holder had a tumultuous relationship. She notes that in a prior domestic violence incident, Harding had bruises and a black eye and Holder was arrested when he exited the home with a handgun in his waistband. On another occasion, the police came to the residence and found Holder in possession of a gun and a silencer. Harding also relies on her neighbor’s report of loud arguments two to three times a week, the last of which occurred a few weeks before Holder’s death.
Although this evidence indicated Holder had been involved in domestic violence against Harding years earlier, in October of 2004 his health was too poor to pose a viable threat to Harding. Regarding the argument overheard by the neighbor, the neighbor heard Harding threaten Holder and heard Holder respond not with a like threat but a request to be put out of his misery. This was consistent with Harding’s statement to Detective McEntarffer that Holder frequently asked Harding to kill him.
Finally, Harding previously had attacked a boyfriend with a knife while he slept.
In sum, given the totality of the circumstances, the evidence of self defense was minimal and insubstantial. Harding’s inconsistent statements about the homicide, her failure to state that she stabbed Holder to avoid imminent harm, the evidence that indicated Holder could not have posed a physical threat to Harding, the absence of any physical evidence suggesting self-defense, and Harding’s history of stabbing another boyfriend in his sleep all combined to permit the trial court to conclude the evidence of self-defense was so minimal and insubstantial that a jury of reasonable persons could not conclude Harding acted in self-defense. (See People v. Blair, supra, 36 Cal.4th at p. 745; People v. Oropeza (2007) 151 Cal.App.4th 73, 78 [“The trial court is not required to present theories the jury could not reasonably find to exist.”].) Because no jury composed of reasonable people could have found the facts underlying a self-defense instruction existed, the trial court did not err in refusing to instruct on self-defense.
Harding claims the instructional error was compounded by the prosecutor’s rebuttal argument which told the jury the trial court did not instruct on self-defense because there was no evidence to support such a defense. We reject Harding’s claim of prosecutorial misconduct in a separate discussion section. Nothing related to our consideration of that error impacts our consideration of Harding’s instructional claim.
Moreover, even assuming the refusal to instruct on self-defense was error, it was harmless. The California Supreme Court has not determined which standard applies to a trial court’s failure to instruct on an affirmative defense. (People v. Salas (2006) 37 Cal.4th 967, 984.) However, even assuming the more rigorous Chapman test applies, the refusal to instruct on self-defense does not require reversal in that it is clear beyond a reasonable doubt the jury would have reached the same result had it been instructed on self-defense. (Chapman v. California, supra, 386 U.S. at p. 24.)
The evidence summarized above demonstrates that Harding’s only viable defense was involuntary manslaughter based on voluntary intoxication and mental defect, which was the defense Harding espoused at trial. The defense conceded Harding stabbed Holder but presented evidence that Harding had a brain impairment, a blood alcohol content of 0.277 percent and that such an individual would lack understanding of the consequences of her actions. The trial court instructed the jury on this lesser included offense thereby placing Harding’s theory of the case before the jury.
Indeed, in opening statement, defense counsel told the jury Harding stabbed Holder but she lacked the capacity to form the required mental state. Defense counsel told the jury the same thing at the end of closing argument and asked the jury to find Harding guilty of involuntary manslaughter. The failure of the jury to credit Harding’s theory of involuntary manslaughter demonstrates the jury would not have credited the even more tenuous theory of self-defense. In sum, any error in failing to instruct on self-defense does not require reversal of Harding’s conviction of second degree murder.
2. Instruction on voluntary manslaughter not supported by substantial evidence.
Based on the same evidence cited in support of her claim of error in refusing to instruct on self defense, Harding contends the trial court had a sua sponte obligation to instruct on the lesser included offense of voluntary manslaughter on the theory the killing was committed upon a sudden quarrel or heat of passion, or in the actual but unreasonable belief in the necessity to defend against imminent peril (imperfect self-defense). Harding asserts that, as a result of the instructional error, the conviction of second degree murder must be reversed. (People v. Breverman, supra, 19 Cal.4th at pp. 162, 178; People v. Cameron (1994) 30 Cal.App.4th 591, 602.)
A trial court has a sua sponte duty to instruct on lesser included offenses when the evidence raises a question regarding whether all the elements of the charged offense were present and the evidence would justify a conviction on the lesser offense. (People v. Hughes (2002) 27 Cal.4th 287, 365; People v. Lewis (2001) 25 Cal.4th 610, 645; People v. Breverman, supra, 19 Cal.4th at p. 154.) “On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support.” (Id. at p. 162.) Whether the evidence provides the necessary support for giving an instruction on a particular defense is a question of law. (People v. Barnett (1998) 17 Cal.4th 1044, 1145.) We independently determine whether the evidence gave rise to an obligation to instruct on lesser included offenses. (People v. Manriquez, supra, 37 Cal.4th at p. 584; People v. Waidla, supra, 22 Cal.4th at p. 733.)
Voluntary manslaughter is a lesser included offense of murder. (People v. Cole (2004) 33 Cal.4th 1158, 1215.) Voluntary manslaughter “upon a sudden quarrel or heat of passion” (Pen. Code, § 192, subd. (a)) arises where “the killer’s reason was actually obscured as the result of 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.” ’ [Citations.] ‘ “[N]o specific type of provocation [is] required....” ’ [Citations.] Moreover, the passion aroused need not be anger or rage, but can be any ‘ “ ‘[v]iolent, intense, high-wrought or enthusiastic emotion’ ” ’ [citations] other than revenge [citation].” (People v. Breverman, supra, 19 Cal.4th at p. 163; People v. Lasko (2000) 23 Cal.4th 101, 108; People v. Ochoa (1998) 19 Cal.4th 353, 422-423.) Both provocation and heat of passion must be affirmatively demonstrated. (People v. Steele (2002) 27 Cal.4th 1230, 1252.)
A defendant also commits voluntary manslaughter and not murder when she acts under the unreasonable belief in the need to defend, referred to as “ ‘imperfect self-defense.’ ” (People v. Humphrey, supra, 13 Cal.4th at p. 1082.) To warrant instructions on imperfect self-defense there must be substantial evidence the defendant actually believed she needed to use deadly force to defend against “imminent danger to life or great bodily injury.” (In re Christian S., supra, 7 Cal.4th at p. 783.)
Here, there was no substantial evidence supporting an instruction on either theory of voluntary manslaughter. The evidence did not show provocation or heat of passion or an unreasonable belief in the need to defend. Harding’s statements and her injuries, at best, permit speculation Harding might have killed Holder out of anger or in imperfect self defense.
However, this speculation was inconsistent with the evidence that showed Holder was killed as he rested in a recliner, not in a struggle, and he was too weak to pose a threat to Harding. Harding never explained how Holder died and either stated he committed suicide or made vague statements about the sword and previous threats Holder had issued. Given Harding’s inconsistent statements, the absence of evidence of mutual combat or a struggle, and Harding’s history of stabbing boyfriends as they slept, the evidence of voluntary manslaughter in this case was minimal and insubstantial. Thus, the trial court had no sua sponte obligation to instruct on voluntary manslaughter. (People v. Breverman, supra, 19 Cal.4th at p. 162.)
Moreover, even were we to conclude the trial court erred in failing to instruct on voluntary manslaughter based on sudden quarrel/heat of passion or imperfect self-defense, the error was plainly harmless. The failure to instruct on a lesser included offense “is not a structural defect in the proceedings, but mere misdirection of the jury....” (People v. Breverman, supra, 19 Cal.4th at p. 149.) As such, reversal is not required unless an examination of the entire cause, including the evidence, discloses that the error resulted in a miscarriage of justice. (Ibid.) “This test is not met unless it appears ‘reasonably probable’ the defendant would have achieved a more favorable result had the error not occurred. (People v. Watson (1956) 46 Cal.2d 818, 836....)” (Ibid.)
Here, the trial court instructed the jury on the only defense theory supported by substantial evidence, namely, involuntary manslaughter based on voluntary intoxication. The failure to instruct on voluntary manslaughter, an even more unconvincing theory than the involuntary manslaughter theory espoused by the defense, does not warrant reversal of Harding’s conviction.
3. Instruction on the People’s burden to prove the absence of heat of passion not required.
Harding contends the trial court erred in failing to give that portion of CALJIC No. 8.50 which advises the jury the prosecution has the burden of proving beyond a reasonable doubt the defendant did not act in the heat of passion or in imperfect self-defense. Harding contends the absence of this instruction violated the constitutional guarantee to a jury determination of every element of a criminal charge. (Mullaney v. Wilbur (1975) 421 U.S. 684 [44 L.Ed.2d 508].)
Mullaney v. Wilbur held “the prosecution [is required] to prove beyond a reasonable doubt the absence of heat of passion on sudden provocation when the issue is properly presented in a homicide case.” (Mullaney v. Wilbur, supra, 421 U.S. at p. 704, italics added.) Mullaney does not require the prosecution to prove the absence of heat of passion in every homicide case. The prosecution is required to do so only when the issue is “ ‘properly presented.’ ” (People v. Rios (2000) 23 Cal.4th 450, 461-462.)
In this case, the trial court properly refrained from instructing the jury on voluntary manslaughter because there was no substantial evidence of sudden quarrel, heat of passion, provocation or imperfect self-defense. Therefore, no Mullaney error occurred.
4. Evidence of a prior incident of domestic violence properly admitted.
a. Additional facts.
Prior to trial, the People sought permission to introduce evidence of the 1991 stabbing of Reyes and evidence of a 1997 incident in which Harding assaulted a former boyfriend with a handgun after the former boyfriend failed to provide Harding drugs. The trial court conducted a hearing and concluded evidence of the 1997 incident was too dissimilar from the charged offense. However, the trial court found the 1991 incident was “very similar” to the charged offense in that Harding was in a relationship with both victims and, after an argument, Harding stabbed the victim. The trial court contrasted the 1991 incident with the 1997 incident in which Harding “apparently... was looking for drugs....” The trial court found the stabbing of Reyes in 1991 was remote in time but had “a lot of probative value” on the issues of intent, lack of accident and to negate a claim of self-defense.
b. Harding’s argument.
Harding contends the trial court erred under Evidence Code sections 1109 and 352 in admitting evidence of the 1991 stabbing of Reyes for the improper purpose of proving Harding’s propensity to commit murder in the instant case. Harding argues the prior incident was remote in time, 13 years old at the time of the current offense, and the prejudice of admitting the prior incident far outweighed any probative value it had. Further, admission of the prior incident required a minitrial.
Harding claims the trial court did not conduct the careful weighing process mandated by Evidence Code section 352. (People v. Holt (1984) 37 Cal.3d 436, 451.) Harding also contends the evidence should have been excluded under Evidence Code section 1109, subdivision (e), which states: “Evidence of acts occurring more than 10 years before the charged offense is inadmissible under this section, unless the court determines that the admission of this evidence is in the interest of justice.” Harding argues this provision constitutes a statutory presumption of inadmissibility and notes Evidence Code section 1108, dealing with prior sexual assaults, does not contain a similar provision.
Harding argues it is likely the error had an injurious effect on the credibility of her claim she committed manslaughter at worst. Harding argues that, apart from the 1991 stabbing incident and a 1997 arrest for assault with a deadly weapon, she was involved only in misdemeanor offenses that were unrelated to her predisposition to commit violent crime. Thus, the 1991 conviction is the only blemish on an otherwise blameless life. (See People v. Burns (1987) 189 Cal.App.3d 734, 738-739.)
Harding concludes admission of the 1991 stabbing incident amounted to a denial of due process and requires reversal of her conviction.
c. General principles.
Evidence of prior acts generally is inadmissible to prove the defendant’s propensity to commit the charged act. (Evid. Code, § 1101, subd. (a).) However, the Legislature has created exceptions to this rule in cases involving sexual offenses (Evid. Code, § 1108) and domestic violence (Evid. Code, § 1109). (People v. Reyes (2008) 160 Cal.App.4th 246, 251.)
Evidence Code section 1109 permits the introduction of evidence of the defendant’s commission of other acts of domestic violence in a criminal action in which the defendant is accused of an offense involving domestic violence, “if the evidence is not inadmissible pursuant to Section 352.” (Evid. Code, § 1109, subd. (a)(1); People v. Jennings (2000) 81 Cal.App.4th 1301, 1313-1314.) Thus, the evidence may not be admitted under Evidence Code section 1109 if its probative value is substantially outweighed by the probability it will consume an undue amount of time or create a substantial danger of undue prejudice, confusion of issues, or misleading the jury. (People v. Hoover (2000) 77 Cal.App.4th 1020, 1028-1029.)
Evidence Code section 1109 reflects the Legislature’s determination that evidence of prior acts of domestic violence is highly relevant, despite its potential prejudicial impact, and is admissible in new prosecutions for domestic violence. (People v. Garcia (2001) 89 Cal.App.4th 1321, 1335; People v. Hoover, supra, 77 Cal.App.4th at pp. 1027-1028; People v. Johnson (2000) 77 Cal.App.4th 410, 419.) The statute, in effect, “permits the admission of defendant’s other acts of domestic violence for the purpose of showing a propensity to commit such crimes. [Citation.]” (People v. Hoover, supra, at p. 1024.)
The trial court’s exercise of discretion under Evidence Code section 352 to admit evidence of other acts of domestic violence is subject to its sound discretion, and its ruling will not be disturbed on appeal absent a showing of abuse of that discretion. (People v. Branch (2001) 91 Cal.App.4th 274, 282; People v. Poplar (1999) 70 Cal.App.4th 1129, 1138.)
“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.... ‘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. In applying section 352, “prejudicial” is not synonymous with “damaging.” ’ [Citation.]” (People v. Karis (1988) 46 Cal.3d 612, 638.)
Evidence of domestic violence occurring within 10 years of the charged offense is presumptively admissible; older incidents of domestic violence are admissible if the court finds their admission to be in the interest of justice. (Evid. Code, § 1109, subd. (e).)
In determining whether the probative value of evidence outweighs the prejudice, a trial court uses a balancing test and may consider such factors as “whether the prior acts of domestic violence were more inflammatory than the charged conduct, the possibility the jury might confuse the prior acts with the charged acts, how recent were the prior acts, and whether the defendant had already been convicted and punished for the prior offense(s). [Citations.]” (People v. Rucker (2005) 126 Cal.App.4th 1107, 1119.) Also relevant is the amount of time involved in introducing and refuting the evidence of uncharged offenses. (People v. Branch, supra, 91 Cal.App.4th at p. 282.)
d. Application.
Initially, we note the record does not support Harding’s claim the trial court failed to make a closely reasoned analysis of the probative value of the prior incident and its potential for prejudice. The trial court found the 1991 stabbing incident involving Reyes was “very similar” to the charged offense in that Harding was in a relationship with both victims and, after an argument, Harding stabbed the victim. The trial court contrasted the 1991 incident with the 1997 incident in which Harding “apparently... was looking for drugs....” “ ‘The principal factor affecting the probative value of an uncharged act is its similarity to the charged offense.’ ” (People v. Hollie (2010) 180 Cal.App.4th 1262, 1274.) Here, the trial court found this factor weighed in favor of admissibility of the 1991 incident. We agree with the trial court’s assessment.
Harding argues the 1991 incident was completely dissimilar from the charged incident. She notes the incidents involved different victims and, in the 1991 incident, Harding stabbed Reyes who abused drugs and had been molesting her daughter. In the instant case, Harding admitted stabbing Holder but claimed she was defending herself from a violent attack with a sword.
Contrary to Harding’s assertions, the 1991 incident was strikingly similar to the charged offense. In both instances, Harding argued with a cohabitant and thereafter stabbed the cohabitant with a knife while the cohabitant slept or rested. The fact the incidents had separate victims does not dissipate the probative value of the prior incident. Indeed, because the evidence of the prior assault came from an independent source, the danger of fabrication was reduced. (See People v. Ewoldt (1994) 7 Cal.4th 380, 404-405.)
In addition, Harding was convicted of the prior offense. Although the jury was not so informed, the fact the prior misconduct resulted in a conviction reduced the likelihood Harding could have produced evidence to rebut Reyes’s testimony. Therefore, the unfairness of forcing a defendant to mount a defense against evidence of a long-past incident was not a legitimate consideration in this case. (See People v. Falsetta (1999)21 Cal.4th 903, 915-916.)
Because Evidence Code sections 1108 and 1109 are “virtually identical, ” cases interpreting one have been relied upon to resolve similar issues involving the other. (People v. Johnson (2008) 164 Cal.App.4th 731, 739; People v. Johnson, supra, 77 Cal.App.4th at p. 417; People v. Brown (2000) 77 Cal.App.4th 1324, 1333.)
With respect to the amount of time between the uncharged act and the charged offense, the trial court found the stabbing of Reyes in 1991 was remote in time but had “a lot of probative value” on the issues of intent, lack of accident and to negate a claim of self-defense. We are unable to fault the trial court’s reasoning. The 1991 incident was highly relevant and probative because it demonstrated Harding’s disposition to commit an assaultive act on a cohabitant following an argument and was admissible under Evidence Code section 1109 because the current prosecution was for an offense involving domestic violence. (People v. Hoover, supra, 77 Cal.App.4th at p. 1024; People v. Poplar, supra, 70 Cal.App.4th at p. 1139.)
Moreover, “[n]o specific time limits have been established for determining when an uncharged offense is so remote as to be inadmissible.” (People v. Branch, supra, 91 Cal.App.4th at p. 284.) In People v. Ewoldt, supra, 7 Cal.4th at page 405, the Supreme Court found the passage of twelve years since a prior incident of child molestation did not “significantly lessen the probative value of [the] evidence....” People v. Waples (2000) 79 Cal.App.4th 1389, 1395, held a prior act from 20 years earlier or more was not “too remote” to be admitted under Evidence Code section 1108 and in People v. Branch, supra, 91 Cal.App.4th at p. 285, a similar 30-year-old sexual offense was found to be admissible in a current sex offense prosecution. People v. Johnson, supra, 77 Cal.App.4th at pages 414-415, allowed evidence of prior domestic violence that occurred approximately 10 years before the current offense. Thus, the 1991 stabbing of Reyes, which occurred 13 years before the charged offense, cannot be seen as too remote to be admissible.
In this context, we turn to Harding’s claim under Evidence Code section 1109, subdivision (e), which provides prior conduct occurring more than 10 years before the charged offense is presumptively inadmissible unless the trial court finds admission of evidence of the prior act would be in the interests of justice. Harding argues this provision constitutes a statutory presumption of inadmissibility. Nonetheless, the provision “clearly anticipates that some remote prior incidents will be deemed admissible and vests the courts with substantial discretion in setting an ‘interest of justice’ standard.” (People v. Johnson (2010) 185 Cal.App.4th 520, 539.) People v. Johnson, supra, 185 Cal.App.4th 520, reasoned the “more rigorous standard of admissibility for remote priors... [does not] necessitate[] an inquiry different in kind from that involved in a determination under section 352.” (Id. at p. 539.) Johnson concluded a section 352 analysis, balancing the probative value against the prejudicial effect, also was appropriate for the “ ‘interest of justice’ ” exception under Evidence Code section 1109, subdivision (e). (People v. Johnson, supra, p. 539.) Johnson concluded the “ ‘interest of justice’ ” exception is met where the trial court engages in a balancing of factors for and against admission under section 352 and concludes, as the trial court did here, that the evidence was “ ‘more probative than prejudicial.’ ” (People v. Johnson, supra, at pp. 539-540.)
We agree with this reasoning and find no abuse of the trial court’s discretion here.
Harding’s prior act of domestic violence was less inflammatory than the charged offense, which resulted in Holder’s death. (People v. Ewoldt, supra, 7 Cal.4th at p. 405; People v. Hollie, supra, 180 Cal.App.4th at p. 1274; People v. Zepeda (2001) 87 Cal.App.4th 1183, 1211; People v. Jennings, supra, 81 Cal.App.4th at pp. 1314-1315.) Thus, this factor also weighed in favor of admission. Also, the presentation of evidence related to the 1991 incident was not confusing or time-consuming. (People v. Ewoldt, supra, at pp. 404-405.) It required the testimony of one witness in the People’s case and one witness during Harding’s defense.
Harding claims the 1991 incident was the only blemish on an otherwise blameless life. (See People v. Burns, supra, 189 Cal.App.3d at pp. 738-739.) This factor has been found applicable where a trial court determines whether a defendant may be impeached with a prior conviction. (See People v. Harris (1998) 60 Cal.App.4th 727, 736-738.) To the extent it is a relevant consideration under Evidence Code section 1109, the record showed Harding had not led a legally blameless life in the interim between the 1991 incident and the charged offense as demonstrated by the 1997 assault with a firearm the trial court did not permit the People to use in this case.
In sum, no reversible error appears in the admission of evidence of the 1991 stabbing of Reyes.
5. Hearsay statements that Harding threatened to kill Holder properly admitted.
Harding contends the trial court erroneously admitted into evidence Steven Holder’s double hearsay statement that, during his conversation with Holder on the day Holder was killed, Holder said Harding threatened to kill him.
This testimony was admitted over Harding’s hearsay objection. Harding complains this statement did not come within any exception to the hearsay rule and was not introduced to show Holder’s state of mind but to prove Harding made death threats and thereafter carried them out. Harding argues admission of the double hearsay supported the prosecutor’s theory the stabbing was intentional and premeditated, and that Harding attempted to cover up the murder. Harding concludes this testimony was inadmissible and it is reasonably probable she would have obtained a more favorable result had the statement been excluded. (People v. Noquera (1992) 4 Cal.4th 599, 620-622 [hearsay statements of victims concerning threats against them by the accused, when offered to prove the conduct of the accused, are not within the exception to the hearsay rule embodied in Evidence Code section 1250].)
Evidence Code section 1250 provides: “(a) Subject to Section 1252, evidence of a statement of the declarant's then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when: [¶] (1) The evidence is offered to prove the declarant's state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or [¶] (2) The evidence is offered to prove or explain acts or conduct of the declarant.”
No reversible error appears in the admission of this evidence. Harding’s overheard threat properly was admitted to explain Harding’s voice in the background asking Holder whom he was talking to and why Holder was saying that. Further, Holder’s repetition of Harding’s threat explained Holder’s subsequent statement to Harding that he was speaking with his brother. Harding thereafter spoke to Steven Holder on the telephone and said she loved Holder, she would not hurt him and “they were supposed to get married.” When Steven Holder asked about Harding’s threats, Harding stated it was about money. Steven Holder then resumed speaking to Holder and encouraged his brother to get away from Harding and offered to give Harding the money she needed if Holder would get away from Harding and move closer to Steven Holder.
Based on these circumstances, Harding’s threatening statement properly was admitted to explain the portion of the conversation Steven Holder could not hear and to explain what Harding later stated to Steven Holder, namely, that Harding would not harm Holder, she loved him and they were supposed to be married. Considered in this context, Harding’s statement was offered to show Harding’s state of mind and was not hearsay.
Additionally, the threatening statement was adopted by Harding in her subsequent conversation with Steven Holder such that it was admissible as an adoptive admission. This exception to the hearsay rule arises where the evidence supports a reasonable inference an accusatory statement was made under circumstances affording a fair opportunity to deny the accusation. (People v. Edelbacher (1989) 47 Cal.3d 983, 1011.) Here, Harding overheard Holder tell Steven Holder that Harding had threatened to kill him. Harding then spoke to Steven Holder and explained that it had involved money.
In any event, any error was harmless in that Harding essentially conceded in her conversation with Steven Holder that she had threatened Holder regarding money. Thus, even without Steven Holder’s testimony that Holder said Harding threatened him, the jury was aware she had threatened Holder. In sum, even had Steven Holder’s testimony on this point been excluded, no different result would have obtained.
6. Prosecutorial misconduct.
Harding contends the prosecutor committed misconduct (1) by appealing to the sympathies of the jury; and, (2) by arguing that, because the trial court did not instruct on self-defense, there was no evidence of self-defense and the jury must disregard such evidence. We address these points in turn.
a. Appealing to the sympathy of the jury.
During closing argument, the prosecutor gestured to Holder’s family and friends who were in the front row of the courtroom and argued Holder was “surrounded by a loving family and many friends.” In objecting to the prosecutor’s comment, defense counsel noted, “The family is sitting there crying as she speaks....” The trial court did not rule on the objection but instructed the prosecutor to move on.
Harding contends the prosecutor’s conduct constituted an improper appeal to the jury’s sympathy for the victim and his grieving family. (People v. Salcido (2008) 44 Cal.4th 93, 151; People v. Kipp (2001) 26 Cal.4th 1100, 1130.) Harding argues the prosecutor’s comments were calculated to persuade the jury Holder was an innocent victim of a loving and supportive family and Harding’s attempt to fabricate a defense should not be tolerated. Harding asserts the trial court’s failure to sustain the objection or admonish the jury left the jury with the impression it properly could be influenced by pity for Holder’s family. Harding claims this was a close case and the prosecutor’s argument encouraged the jury to reach a verdict based on emotion.
The well established federal and state standards regarding prosecutorial misconductweresummarized in People v. Samayoa (1997) 15 Cal.4th 795, 841. “ ‘ “A prosecutor’s... intemperate behavior violates the federal Constitution when it comprises a pattern of conduct ‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.’ ” ’ [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ‘ “ ‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’ ” ’ [Citation.]... [Citation.] Additionally, when the claim focuses upon 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. [Citation.]” (Ibid.)
“[W]e review a ruling on a motion for mistrial for an abuse of discretion, and such a motion should be granted only when a party’s chances of receiving a fair trial have been irreparably damaged.” (People v. Ayala (2000) 23 Cal.4th 225, 283.)
Here, the prosecutor’s argument did not constitute an egregious pattern of misconduct and did not infect the trial with unfairness. (People v. Samayoa, supra, 15 Cal.4th at p. 841.) We therefore address the matter under state law and determine whether the prosecutor used reprehensible methods and whether there was a reasonable probability of a more favorable result absent the prosecutor’s conduct.
We note the prosecutor did not express sympathy for the victim, ask the jury to avenge Holder’s death or appeal to the passion and sympathy of the jury by asking the jury to think about their family members as victims. (See People v. Pensinger (1991) 52 Cal.3d 1210, 1250.) Further, the jury was aware of the presence of Holder’s grieving family in the courtroom as defense counsel noted at the side bar the family was “crying” as the prosecutor spoke. Thus, the prosecutor did little more than note the obvious, that Holder left behind a family. This brief reference to Holder’s family, which was not repeated, does not require reversal of Harding’s conviction. The trial court instructed the jury not to be “influenced by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling.”
In sum, no reversible prejudice arises from the prosecutor’s remark.
b. Argument to disregard evidence of self defense.
In rebuttal, the prosecutor responded to defense counsel’s suggestion the case involved self defense. The prosecutor argued there had been no evidence of self-defense and asked the jury, “Did you hear one jury instruction on self-defense? Other than the defendant’s self-serving and manipulative two statements on the issue[, ] did you hear any evidence of self-defense?” The prosecutor “assured” the jury the trial court would have instructed on the defense if “there [had] been evidence of self-defense.... So it begs the question, ladies and gentlemen, why is this even being argued to you if not to try to plant the seed of reasonable doubt? Because when you look in that [instruction] pack and I challenge you and urge you to look through there and see where you find a self-defense instruction. Because you won’t find ‘em. [¶]... [¶]... The only reason that the words self-defense were ever uttered was not that they are supported by the evidence. They are not supported by the law in this case. It was to plant seeds of reasonable doubt in your mind.”
At the close of the prosecutor’s argument, defense counsel objected to the prosecutor’s references to the absence of instructions on self-defense and requested a mistrial. The trial court overruled defense counsel’s objection and denied counsel’s motion for mistrial. The trial court stated, “I did not find any evidence of self-defense. [Defense counsel] chose to argue it... anyway.”
Harding contends the prosecutor’s argument infringed her right to have the jury determine the facts and apply the law to the facts as found. (United States v. Gaudin (1995) 515 U.S. 506, 513 [132 L.Ed.2d 444].) The argument also violated the right to have the jury determine the existence of every element of the charged offense. (Sullivan v. Louisiana (1993) 508 U.S. 275, 277-278 [124 L.Ed.2d 182].) Harding argues the jury was free to determine the facts based on the evidence presented at trial even though the trial court did not instruct on self-defense. Thus, the prosecutor’s argument unfairly undercut Harding’s claim of self-defense. Further, although the trial court found there was insubstantial evidence of self defense to warrant instruction on that theory, the prosecutor told the jury the trial court found no evidence of self-defense. This overstepped the role of the prosecutor as an advocate and interfered with the jury’s function as finder of fact. Harding concludes she was deprived of a fair trial and, under any standard of review, reversal is required.
Initially, we note Harding failed to interpose a timely objection to these remarks. To preserve a claim of prosecutorial misconduct, the defense must make a timely objection and request an admonition to cure any harm. (People v. Hill (1998) 17 Cal.4th 800, 820.) Although Harding objected to the prosecutor’s argument, she did so only after the prosecutor had fully developed the argument and the prosecutor had concluded her remarks. Had Harding interposed a timely objection, the trial court could have terminated or limited the prosecutor’s comments on the subject. By waiting until the end of argument, Harding forfeited the issue on appeal. (People v. Tafoya (2007) 42 Cal.4th 147, 176.)
In any event, the challenged comments did not infuse the trial with such unfairness that Harding’s conviction was a denial of due process. Consequently, we review the claim of misconduct under state law to determine whether the prosecutor engaged in deceptive or reprehensible conduct to attempt to persuade the jury and whether it is reasonably probable the jury would have reached a different result in the absence of the prosecutor’s misconduct. (People v. Samayoa, supra, 15 Cal.4th at p. 841.)
We are unable to conclude that the prosecutor’s statements involved the use of deceptive or reprehensible methods. Rather, the prosecutor’s comments were made in response to defense counsel’s argument. A prosecutor may make otherwise improper comments in rebuttal that are fairly responsive to defense counsel’s argument and are based on the record. (People v. Daya (1994) 29 Cal.App.4th 697, 715; People v. Roberts (1975) 51 Cal.App.3d 125, 136-137.)
Further, given the insubstantial evidence of self-defense, previously discussed in connection with Harding’s claim of instructional error, we cannot say it is reasonably probable the jury would have reached a result more favorable to the defendant had the misconduct not occurred. (People v. Crew (2003) 31 Cal.4th 822, 839.)
In sum, we find there was no prosecutorial misconduct, and even if there were, absent a showing of prejudice, the trial court did not abuse its discretion in denying Harding’s motion for a mistrial.
7. Cumulative error.
Harding contends the cumulative effect of the foregoing errors resulted in a denial of due process. She claims the multiple errors so infected the trial with unfairness as to create a de facto directed verdict for the prosecution.
Although we have rejected each of Harding’s claims of error, in analyzing a claim of cumulative error, we ask whether a series of trial errors, though independently harmless, rise by accretion to the level of reversible and prejudicial error. (People v. Cunningham (2001) 25 Cal.4th 926, 1009; People v. Hill, supra, 17 Cal.4th 844.) We conclude the harmless errors previously noted, combined with the other assignments of error, did not render the trial unfair. The trial court instructed the jury on Harding’s most viable claim, involuntary manslaughter, but the jury rejected it. The 1991 stabbing incident was so strikingly similar to the charged offense that it had great probative value that was not overcome by its remoteness in time, admission of Harding’s statements was proper and the prosecutor’s argument was vigorous but not unfair. In sum, we are not left with the impression Harding was tried unfairly. We therefore reject the claim of cumulative error.
8. The abstract of judgment must be corrected.
Harding requests correction of the abstract of judgment to reflect conviction of second-degree murder rather than first-degree murder. The People concede the point and it appears the concession is well taken. We therefore order the abstract modified to conform to the verdict.
DISPOSITION
The judgment is ordered modified to reflect conviction of second degree murder rather than first degree murder and, as so modified, affirmed. The trial court shall prepare and forward to the Department of Corrections and Rehabilitation a corrected abstract of judgment.
We concur: CROSKEY, J., KITCHING, J.