Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F04486
HULL, J.A jury convicted defendant of second degree murder (Pen. Code, § 187; unspecified section references that follow are to the Penal Code) and being a felon in possession of a firearm (§ 12021, sub d. (a)(1)), and found true charged weapons enhancements (§ 12022.53, sub d. (b), (c), (d)). The trial court found two charged priors to be true, and sentenced defendant to a prison term of 40 years to life, consecutive to a determinate two-year term.
On appeal, defendant contends that (1) a statement he made was admitted into evidence in violation of Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda),(2) the court erred in instructing the jury on heat of passion, and (3) his attorney was ineffective in failing to request an instruction on antecedent threats. None of these claims has merit, and we therefore affirm the judgment.
Facts and Proceedings
We review the facts in light of the jury’s verdicts acquitting defendant of first degree murder but convicting him of murder in the second degree.
The victim, William Hill, Jr., was known by the nickname “Insane.” He was a bully who threatened people, robbed them, and beat them. He and defendant had had several altercations in the past.
Early one evening, a patrolling police officer saw Insane attack a man on a bicycle. The officer detained Insane, but ultimately let the parties go. Afterward, the officer discovered a baggie containing rock cocaine on the ground.
Later that evening, Insane approached a group of people who had congregated outside a liquor store. Defendant was among those present. Insane was frustrated because he had “lost a package.” Insane began to argue with defendant, and essentially tried to pick a fight with him. When Insane made a movement toward defendant, defendant jumped back and pulled out a knife, but then walked away from the scene.
At approximately 10:00 p.m., Insane was killed behind a nearby bar. He was shot twice in the head. A third wound to his arm might have been caused by one of these bullets. This last wound had stippling indicating the shot had been fired from a few inches to three feet away.
Witnesses implicated defendant in the shooting. When defendant was initially apprehended, he tried to hide his identity. The officers released defendant after an interview, but arranged a surveillance videotape of a meeting between defendant and a friend. In this meeting, defendant said he had gotten the gun from another friend to “solve a mutual problem,” and said the gun was now “on a freight train headed elsewhere.” Defendant said he had jumped a fence and approached Insane. Insane put down his drink, took off his shirt, and prepared to fight. As they neared each other, defendant pulled out a gun at the last moment and shot him twice. Defendant told his friend that Insane had “crossed the line for the last time.”
Defendant was charged with first degree murder and being a felon in possession of a firearm. At trial, he argued that there was no evidence of premeditation or deliberation, and he proffered a claim of imperfect self-defense, asserting that a conviction for voluntary manslaughter was the appropriate verdict.
The jury acquitted defendant of first degree murder but found him guilty of second degree murder and being a felon in possession of a firearm. The jury also found true charged firearm enhancements, and the court found two charged priors to be true as well. This appeal followed.
Discussion
I
Alleged Miranda Violation
Defendant contends that police officers violated his constitutional rights during their interrogation by inducing a false sense of security that led defendant to make incriminating statements. Defendant asserts his Miranda waiver was therefore invalid and his statements should have been suppressed. We disagree.
Detectives interviewed defendant after observing the meeting between defendant and his friend in which defendant admitted shooting Insane. A detective began the interview by saying, “[W]e’re still investigating the case,” “still trying to figure out who did it,” “and all that, and so, um, we’re Mirandizing people” “to be safe. Okay? We don’t know. Okay?” The detective then gave the Miranda advisements and defendant agreed to talk.
Defendant sought to suppress his subsequent statements as the product of an involuntary waiver, asserting that the detective’s comments were “trickery because they knew who did it.” He argued that the detective “was minimizing the importance of Miranda” to induce defendant to talk.
The prosecutor responded that while investigators knew of defendant’s claims that he had shot Insane, “[t]hey did not necessarily know if those were truthful admissions or perhaps bragging on the defendant’s part, trying to inflate his reputation on the street for acknowledging his part in committing the murder. [¶] And the detectives made an accurate statement to the defendant as to what their job was. They were investigating this homicide, and they were trying to determine who did it. That’s their job. And that they were interviewing people, which is their job, including the defendant and including other individuals that they interviewed even after the defendant admitted to them [in the interview] that he was the person who did the shooting. So there was nothing inaccurate about what the detectives said. Furthermore, there really was no way that they minimized Miranda warnings when they gave it to the defendant [in the interview].”
The trial court denied defendant’s suppression motion. It acknowledged that under certain circumstances, the trivializing of Miranda advisements might reflect a type of prohibited trickery and weigh against a finding of a knowing, informed and intelligent waiver. Having reviewed the videotapes, the court found that this was not such a case. It concluded: “The defendant did knowingly, intelligently and voluntarily waive his rights. The court does not find that his statement was coerced, improperly induced or was based on any trickery. Although the law enforcement officers may have felt that he was a suspect and that’s why they advised him of his Miranda rights, they certainly had an obligation to determine whether, for example, the statements made by the defendant were a false confession simply to enhance his reputation or for many other appropriate law enforcement purposes.”
On appeal, defendant renews his claim that the interrogating detective created a false sense of security and tricked defendant into waiving his Miranda rights. We disagree.
In People v. Mussel white (1998) 17 Cal.4th 1216, a defendant raised similar claims when officers did not let on that they had evidence that implicated defendant in a murder. (Id. at pp. 1234-1235.) The court noted that although this evidence was suggestive, it did not conclusively establish that defendant had committed a first degree murder, and there was therefore no reason not to accept the officers’ representation that they were in the midst of the investigation. (Id. at p. 1235.) The court concluded, “The detectives never affirmatively represented to defendant that he was free of suspicion or that someone else was the focus of the investigation. A waiver of Miranda required no more to be valid.” (Ibid.)
The same is true here. There was no trickery that rendered defendant’s waiver of his Miranda rights involuntary. Defendant’s claim to the contrary is meritless.
II
Instructions on Heat of Passion
The court instructed the jury in accordance with CALCRIM No. 570 that “[a] killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion.” This instruction further explained: “Heat of passion does not require anger, rage, or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection. Heat of passion may not be based on revenge.” (Italics added.)
On appeal, defendant asserts that this italicized sentence should not have been given because it misstates the law and reduces the prosecutor’s burden of proof. We do not agree.
The challenged sentence is a correct statement of law. The California Supreme Court has “long recognized that ‘the fundamental of the inquiry [into whether provocation has negated malice] is whether or not the defendant’s reason was, at the time of his act, so disturbed or obscured by some passion--not necessarily fear and never, of course, the passion for revenge--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.’” (People v. Rich (1988) 45 Cal.3d 1036, 1112, quoting People v. Logan (1917) 175 Cal. 45, 49, italics omitted and added.)
As courts have uniformly held, and precisely as the challenged instruction provided, “[h]eat of passion may not be based upon revenge.” (People v. Burnett (1993) 12 Cal. App.4th 469, 478; see, e.g., People v. Gutierrez (2002) 28 Cal.4th 1083, 1144; People v. Fenenbock (1996) 46 Cal. App.4th 1688, 1704; People v. Williams (1995) 40 Cal. App.4th 446, 453.)
In arguing otherwise, defendant contends that People v. Logan has been misinterpreted, and that revenge may nonetheless reduce a murder charge to voluntary manslaughter if there was no deliberation and reflection. Defendant posits an impossibility: there is no such thing as non deliberative, non reflective revenge. Revenge necessarily implicates some measure of deliberation and reflection, and is not the type of spontaneous passion that is contemplated by voluntary manslaughter. “The essence of the sudden quarrel/heat of passion voluntary manslaughter is that the killer is so provoked by acts of the victim that he strikes out in the heat of passion, an emotion that obliterates reason that would prevail in the mind of a reasonable person.” (People v. Johnston (2003) 113 Cal. App.4th 1299, 1311.)
By adding the challenged sentence, the trial court clarified that revenge, even if passionately felt, is not the type of passion encompassed by voluntary manslaughter. The instruction was proper, provided clarification, and did not reduce the prosecutor’s burden of proof.
III
Ineffective Assistance of Counsel
Defendant contends that his attorney’s failure to request instructions on the effect of antecedent threats on a claim of self-defense demonstrated that he did not receive the effective assistance of counsel. We disagree.
CALCRIM No. 505 outlines principles relating to self-defense and includes the following optional language: “[If you find that _____<insert name of decedent/victim> threatened or harmed the defendant [or others] in the past, you may consider that information in deciding whether the defendant’s conduct and beliefs were reasonable.] [¶] [If you find that the defendant knew that ______ <insert name of decedent/victim> had threatened or harmed others in the past, you may consider that information in deciding whether the defendant’s conduct and beliefs were reasonable.] [¶] [Someone who has been threatened or harmed by a person in the past, is justified in acting more quickly or taking great self-defense measures against that person.]”
The trial court instructed the jury on self-defense, but did not include these sentences. A trial court has no obligation to instruct on the effect of antecedent threats absent a request by defendant. (People v. Garvin (2003) 110 Cal. App.4th 484, 489.) Defendant contends that his attorney’s failure to request these instructions constitutes ineffective assistance of counsel. We do not agree.
“In order to demonstrate ineffective assistance of counsel, a defendant must first show counsel’s performance was ‘deficient’ because his ‘representation fell below an objective standard of reasonableness . . . under prevailing professional norms.’ [Citations.] Second, he must also show prejudice flowing from counsel’s performance or lack thereof. [Citations.] Prejudice is shown when there is a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citations.]” (People v. Jennings (1991) 53 Cal.3d 334, 357.)
Defendant’s claim of ineffective assistance of counsel is predicated on a faulty assumption: defendant did not rely on a claim of self-defense. Instead, he urged the jury to acquit him of murder and find him guilty of voluntary manslaughter based on imperfect self-defense. The instruction given on voluntary manslaughter and imperfect self-defense explicitly told the jury that it could consider the victim’s prior threats and defendant’s knowledge of those threats in evaluating defendant’s beliefs.
Because defendant was not relying on a theory of self-defense, counsel had no tactical reason to ask for instructions relating to the effect of antecedent threats on such a claim. Moreover, the jury’s conviction for murder rather than voluntary manslaughter demonstrates that the jury found defendant’s claims relating antecedent threats unconvincing. Under these circumstances, defendant cannot demonstrate that a more favorable verdict would have resulted had the omitted language been given to the jury. There was no ineffective assistance of counsel.
Disposition
The judgment is affirmed.
We concur: BLEASE, Acting P.J., DAVIS, J.