Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C152826
Lambden, J.
Defendant Loeun Sa seeks reversal of his conviction for first degree murder on a number of grounds. We affirm the judgment.
BACKGROUND
Defendant was charged in a two-count information with murder in violation of Penal Code section 187, and possession of a firearm by a felon in violation of Penal Code section 12021, subdivision (a)(1). The information also charged that defendant personally discharged a firearm in the commission of the murder, in violation of Penal Code section 12022.53. A jury trial followed, at which various witnesses testified.
Lily Doe
Eleven-year-old Lily Doe testified that she knew the victim, 16-year-old Nancy Nguyen. On the night of Nguyen’s death, Lily was home in Oakland. There was a party at the house next door, and Lily, nine years old at the time, looking through a open window, saw Nguyen get into a white car with a man Lily did not know. She could tell that they were arguing and yelling, both inside and outside the car, but she could not hear what they were saying. Nguyen and the man, whose face Lily could not see, got out of the car. Nguyen was crying. Lily heard only parts of what Nguyen was saying and did not hear her say the words, “I want to go home,” but thought she wanted to do so by her body movements. Nguyen walked away from the man and he ran after her, grabbed her arms, yelled at her, and said that she could not leave. He held Nguyen by both arms and she tried to pull away. Lily did not see Nguyen walk on her own again. The man tried to get her to go back to the car. Lily saw them walk to the corner of East 10th Street and 52nd Avenue and lost sight of them. She heard a gunshot in that same direction three minutes later. She thought between five and ten minutes elapsed between the time she first saw the two arguing and she heard the gunshot.
Earlier that evening, Lily had seen a man pull a gun from his back pocket or waistband. She could not see who it was because it was too dark. Defendant did not look familiar to Lily.
Christine Y.
Christine Y., Lily’s mother, knew Nguyen through her daughter. She testified that on the night in question, August 27, 2005, Christine, her husband, her son, and Lily were watching television in the living room. Around 10:00 p.m., Christine heard arguing outside and saw through a window a group of kids, five or ten, arguing in the street. She went back to watching television, and then heard “probably two” gunshots. She saw an 18- to 20-year-old male wearing what she understood from her son was a gray and white “A’s” jersey, holding a gun. The man tried to put the gun into his back waistband, but it would not fit. Nguyen was standing in front of the man, with her back against him, trying to steer him away from the crowd by walking backwards. Christine went back to watching television.
A few minutes later, Christine looked again and saw Nguyen sitting on the sidewalk, crying. She was in front of a white, two-door vehicle and said, as the man who had the gun stood over her, “Why are you hitting me?” She also said, “It’s over,” three or four times. Christine returned again to watch television, but went back again to look outside.
When Christine looked again, Nguyen was standing with her back against a fence and the man was standing in front of her. Christine saw the man push Nguyen toward 52nd Street. Nguyen was in front of the man and he was pushing her forward. Nguyen was resisting, was trying to walk backward rather than forward, and was crying; the man was pushing her forward with his body, his stomach to her back. Christine stepped away from the window, and a few minutes later, she heard a gunshot coming from the direction of 52nd Avenue. She looked outside and saw that people were running toward 52nd Avenue, and that the white car was gone; she heard it take off right after the gunshot, but before she got to the window. She saw Nguyen’s body lying at the corner of 52nd Avenue. She thought two to five minutes passed from the time she heard the first two gunshots until she heard the one gunshot from the direction of 52nd Avenue.
D.C.
D.C., 16 years old, also testified. He lived on East 10th Street and has two older brothers, P.C. and V.C. Nguyen and V.C. were boyfriend and girlfriend before Nguyen started dating defendant.
On the night Nguyen was killed, there was a party at the house next door, and D.C. went back and forth between his house and the house next door. He first saw Nguyen in front of the house that was having a party, around other young people talking. Nguyen came to the party with defendant, having arrived in a white Honda Civic with defendant, who D.C. knew by his street name, “Buck.”
Some time that night, a verbal fight broke out in the middle of East 10th Street. A person named Mow, who was also known as “Cookie Monster,” had come to fight with V.C., and started the fight. Nguyen appeared to be involved in the fight and was yelling. Defendant was near her, and was not fighting. Someone fired two gunshots that appeared to break up the fight, but D.C. did not know who did so. He saw Nguyen try to take what looked like a black submachine gun from defendant.
After the shots were fired, everyone scattered. D.C fled to the back of a neighbor’s house, where he watched from behind a chain-link fence for two to three minutes as defendant and Nguyen screamed and grabbed at each other. D.C. did not hear what they were saying, but they sounded very mad.
D.C. did not speak Cambodian very well, but understood some of it. As he watched defendant and Nguyen, he saw defendant turn and say something in Cambodian, but understood only one word, which was “die.” He was “50-50” certain he heard that word, and felt about the same certainty about his statement to police the day after the shooting, when he told them he thought defendant had said, “Do you all want to get shot?” Defendant screamed at D.C., P.C., and D.C.’s neighbor, showed his gun to them, and seemed to be threatening them. At the same time, defendant grabbed Nguyen’s arm and Nguyen was crying and looked scared.
D.C. thought he was being threatened by defendant so he went to the back of his neighbor’s house to avoid any problems. Approximately 10 to 20 minutes later, he heard a gunshot. He ran out and saw Nguyen’s body on the ground and defendant drive away fast in the Honda Civic. He thought “like a couple of hours, like one hour I think,” passed between the first two gunshots and the last one.
P.C.
D.C. ’s brother, P.C., testified that the night Nguyen was killed, there was a party next door. At some point, a fight happened in the middle of the street, and a guy they called “Cookie Monster” hit P.C.’s brother V.C. Nguyen was mad and was trying to help V.C. Defendant shot a gun into the air twice and pulled Nguyen towards him. P.C. went to his neighbor’s backyard, where he watched with others as Nguyen and defendant argued loudly and screamed near a white Honda Civic. Defendant grabbed Nguyen by the head and Nguyen tried to get away. P.C., who spoke a little Cambodian and understood more than he spoke, heard defendant say angrily in Cambodian as he argued with Nguyen, and while looking at the group P.C. was with, “Do you want to see her die?” Although P.C. heard the statement in Cambodian, he did not understand what defendant said other than “do you guys.” Five minutes later, his neighbor Sareth told him what defendant had said. He acknowledged testifying at the preliminary hearing that he understood the words as defendant spoke them.
V.C.
V.C., 19 years old, testified that he met Nguyen in high school and dated her for two years until they broke up seven months before her death. Nguyen started dating defendant, a friend of V.C.’s named Lin, who went by the nickname “Buck.” On the day Nguyen died, she and defendant came by in the afternoon in a white Honda and were hanging out with V.C., drinking beer. At one point, Nguyen took V.C.’s phone from him and began “cussing” at his girlfriend. Defendant told Nguyen to give the phone back. Defendant seemed upset that Nguyen was yelling at the girl on the phone.
Defendant and Nguyen left to get something to eat. Nguyen called V.C. and told him he should leave the area because Mow, also known as “Cookie Monster,” was coming to fight him. By the time Mow showed up, Nguyen and defendant had returned. Mow was trying to fight with different people. Defendant, in the middle of the street, fired a gun into the air, stopping the fighting. Nguyen tried, unsuccessfully, to grab the gun from defendant. V.C. left about 10 minutes later, but saw defendant and Nguyen arguing, as well as kissing and hugging, before he left.
Sophorn Ket
Sophorn Ket, 23 years old, also testified. In August 2005, Ket tended to hang around the area of 53rd Avenue and East 10th Street. Ket was friends with defendant, and knew he was dating Nguyen, who had previously dated V.C. for awhile. The night Nguyen was killed, Ket and her boyfriend pulled up in a car three houses from V.C.’s house, and Ket saw Nguyen and defendant arguing between their car and V.C.’s house. She heard defendant say things indicating that he was mad because Nguyen had defended V.C.
At some point, Ket heard gunshots and saw defendant in the street with a black Mac-10 pistol, which he held over his head. Nguyen tried to stop defendant by grabbing his arms. They argued. A long time passed after the gunshots, probably an hour. Defendant was trying to get Nguyen to go with him and talk by grabbing her, but she kept saying no. Ket speaks and understands Cambodian. She stood about nine feet from the defendant and Nguyen as they argued. Ket was standing by V.C.’s little brothers and others and heard defendant say in a normal voice “Do you want to see her die?” Defendant was looking in Ket’s direction at the time. Ket understood that Nguyen was Vietnamese, and did not speak Cambodian. Ket testified that she could not have misinterpreted defendant’s statement. Ket saw defendant continued trying to get Nguyen to talk to him, and he appeared to be trying to force her to walk “into that little dead-end place” by 52nd Avenue by dragging her. Ket left at that time.
Defendant’s Testimony
Defendant testified that he was 20 years old in August, 2005. On August 27, 2005, he woke up at his parent’s house with his girlfriend Nguyen, with whom he was having a sexual relationship, and had been seeing for about seven months. Later that day, he and Nguyen went to two birthday parties for his relatives. After he and Nguyen left the second party, they went to 53rd Avenue, where there was an argument involving Mow. After five minutes, Nguyen told defendant that he should get his gun, and they left and returned with it. People were arguing and fighting, so defendant got out of the car and shot twice into the air, settling things down. Nguyen tried to grab the gun from defendant, but he would not let her have it. Then Nguyen and Mow’s girlfriend got into an argument.
Defendant testified that after Mow and his girlfriend left, defendant and Nguyen argued, but did not tell each other why they were angry. They got in the car and continued to argue. Nguyen got out and walked up the street after throwing defendant’s watch at him, telling him to give it back to his father. He tried to pull Nguyen back into the car and she tried to walk away, but he would not let her. She said that she wanted to break up with defendant. Nguyen told him that night as they argued that the relationship was “over,” and defendant did not want to break up with her. Defendant grabbed Nguyen’s arms at one point. He walked around the corner into a cul-de-sac after Nguyen with the gun in his waistband and the safety off. He was “kind of drunk,” having had a shot of Remy and a few beers, and did not recall telling police that he was sober. Nguyen told him that his family was “going to die or something,” and defendant, who was very angry, “snapped right there,” and shot her. He did not try to help Nguyen, did not call police, and did not turn himself in. He ran to his car and threw the gun on the ground. He went back to a relative’s birthday party. A few days later, he was arrested at his home.
Defendant testified that he was a felon, and knew it was illegal for him to have a gun in his possession. A “guy” had sold it to him on the street two months before, and he never loaded it or figured out how to actually pull the trigger. It had the letters “Mac-12” or “M-12” on it.
Defendant testified further that the only arguments he had with Nguyen were because defendant did not “want her talking to anybody else” and that those arguments occurred a few times each week. He denied turning to the crowd of people standing by Sareth’s house and saying in Cambodian, “Do you want to see her die?”
Testimony Regarding Physical Evidence
According to a forensic pathologist who performed an autopsy on Nguyen’s body, it had a gunshot wound to the lower right eyelid area. Stippling around the gunshot wound indicated a shot had been fired from close range. The bullet passed through Nguyen’s brain on the right side, then crossed over and passed through the left side of the brain, stopping at the back of the skull. The cause of death was a gunshot wound to the head. A bruise on the right eye may have been due to the gunshot wound and there was a broken bone behind the bruising; a bruise on the left eye was consistent with being hit. There was a three-eights of an inch bruise on the right upper arm and a three-eights of an inch bruise on the outside of the left forearm, both consistent with being grabbed.
A police department evidence technician recovered a bullet casing next to the body and two casings in the roadway.
A criminalist examined three fired cartridge casings and one fired bullet. The casings were all fired from a Cobray Model M-12 pistol, and the bullets and casings were 380-automatic caliber and were chambered in the same firearm.
The jury found defendant guilty of first degree murder and illegal possession of a firearm, and found that he had personally used and discharged a firearm in the commission of the murder. The court imposed an indeterminate sentence of 25 years to life for the first degree murder conviction, and a consecutive term of 25 years to life for the personal use of a firearm causing death. The court also sentenced defendant to 20 years to life for violation of Penal Code section 12022.53, subdivision (c), and 10 years for violation of Penal Code section 12022.53, subdivision (b), regarding the discharge and personal use of a firearm respectively, and stayed both pursuant to Penal Code section 12022.53, subdivision (f). The court further imposed a concurrent two-year term for the illegal possession of a firearm.
Defendant subsequently filed a timely notice of appeal.
DISCUSSION
I. Substantial Evidence of First Degree Murder
Defendant argues that the evidence was insufficient to sustain his conviction for first degree murder because it did not establish that he acted with premeditation and deliberation. We find substantial evidence supports his first degree murder conviction.
We review defendant’s conviction pursuant to a substantial evidence standard of review. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We view the record as a whole, reviewing the evidence in the light most favorable to the People and presume every fact which the trial that could reasonably deduce from the evidence in favor of the judgment. (Ibid.) We “must begin with the presumption that the evidence... was sufficient, and the defendant bears the burden of convincing [the court] otherwise.” (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) We may not reverse for insufficiency of evidence “unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ ” (People v. Bolin (1998) 18 Cal.4th 297, 331.) The standard of review is the same when the People rely on circumstantial evidence to prove a defendant’s guilt. (People v. Bradford (1997) 15 Cal.4th 1229, 1329.)
Also, generally it is the exclusive province of the jury or trial court to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) If the verdict is supported by substantial evidence, we must give due deference to the fact finder, and not substitute our own evaluation of a witness’s credibility for that of the fact finder. (Ibid.)
Murder is the unlawful killing of a human being with malice aforethought. (Pen. Code, § 187, subd. (a).) Such malice may be express or implied. It is express when there is manifested a deliberate intent to unlawfully take away the life. It is implied, where no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart. (Pen. Code, § 188.)
Premeditated murder is murder in the first degree. (Pen. Code, § 189.) “ ‘ “Generally, there are three categories of evidence that are sufficient to sustain a premeditated and deliberate murder: evidence of planning, motive, and method. [Citations.] When evidence of all three categories is not present, ‘we require either very strong evidence of planning, or some evidence of motive in conjunction with planning for a deliberate manner of killing.’ [Citation.] But these categories of evidence... are simply an ‘aid [for] reviewing courts in assessing whether the evidence is supportive of an inference that the killing was the result of preexisting reflection and weighing of considerations rather than mere unconsidered or rash impulse.’ ” ’ ” (People v. Prince (2007) 40 Cal.4th 1179, 1253.) “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.’ ” (People v. Tafoya (2007) 42 Cal.4th 147, 172, quoting People v. Lennart (2004) 32 Cal.4th 1107, 1127.)
“A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill.... ‘Deliberation’ refers to careful weighing of considerations in forming a course of action; ‘premeditation’ means thought over in advance. [Citations.] ‘The process of premeditation and deliberation does not require any extended period of time. “The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly....” ’ ” (People v. Koontz (2002) 27 Cal.4th 1041, 1080.)
In this case, defendant does not dispute his responsibility for Nguyen’s murder, but contends that there was no evidence of a plan or motive, and nothing in the manner of killing that reflects premeditation or deliberation. We do not agree. Substantial evidence supports the conclusion that he planned to kill Nguyen with a particular method, and had a motive for doing so; in essence, substantial evidence indicates he committed an execution-style killing in a calculated fashion because Nguyen wanted to end their relationship, demonstrating sufficient premeditation and deliberation to support the jury’s verdict. Armed with a semi-automatic gun, defendant argued and fought with Nguyen, first in a parked car and then on the street. Defendant himself testified that she was trying to leave him, and that he did not want the relationship to end. Lily, Christine, and Ket saw defendant grab a resisting, unarmed Nguyen and force her towards 52nd Avenue, a cul-de-sac. Ket was certain that before defendant forced Nguyen towards 52nd Avenue, she heard defendant say in Cambodian, “Do you want to see her die?” P.C. testified that, although he did not understand all the words defendant said in Cambodian to the crowd as he argued with Nguyen, he understood, “do you guys,” and that the neighbor Sareth told him what defendant had said a few minutes later, which was, “Do you want to see her die?” This evidence indicated premeditation.
D.C. was “50-50” certain that he thought he heard defendant say “die,” and that he thought he heard defendant say, “Do you all want to get shot?” Defendant characterizes this testimony as inconsistent with Ket’s and P.C.’s testimony, but this was not necessarily so. His recollection was relatively uncertain and does not establish inconsistency.
Defendant would not allow Nguyen to go, grabbing her by her arms, and forcing her down East 10th Street and onto 52nd Avenue’s cul-de-sac, indicating that he was at this point seeking a relatively isolated area where he could shoot her without interference. Shortly after going into the cul-de-sac, he shot Nguyen once in the head from close range, a further indication of an already formed plan to kill her there, and immediately left. (See People v. Halvorsen (2007) 42 Cal.4th 379, 422 [shooting a person within a few feet in a vital body part is sufficiently “ ‘ “particular and exacting” ’ ” to permit the inference that the defendant was acting pursuant to a preconceived plan]; accord, People v. Thomas (1992) 2 Cal.4th 489, 517-518; People v. Bolin, supra, 18 Cal.4th at pp. 332-333 [even when an assailant does not initially plan to kill a victim, the use of a firearm against a defenseless person may show sufficient deliberation to support a first degree murder verdict].)
There was substantial evidence of alternative motive for defendant’s actions as well, which can be inferred from the relationship between Nguyen and her ex-boyfriend V.C. Defendant admitted that he fought with Nguyen regularly because he did not want her talking to anyone else. Nguyen and V.C. had been involved for two years, breaking up earlier in the year. After Nguyen and defendant arrived on 53rd Avenue, Nguyen became involved in V.C.’s affairs, grabbing his phone to yell at his girlfriend before defendant told her to return the phone, calling V.C. to tell him that Mow was coming to fight with him, and becoming involved in the fight. Ket testified that she heard defendant say things to Nguyen indicating that he was mad that she had defended V.C. This evidence suggests that defendant argued with Nguyen, and decided to kill her, at least in part as a result of these events.
Defendant argues that “there was no substantial evidence from which a reasonable jury could have found that [defendant] acted with premeditation and deliberation.” He contends that the evidence at best proves second degree murder, as defendant’s forcing Nguyen around the corner did not isolate her, given that they could be seen and heard by people at the party, and that the statement, “Do you want to see her die,” assuming it was made, created only the “reasonable inference... that [defendant] was preventing an intoxicated [Nguyen] from confronting Mow and his girlfriend.” Defendant does not support these contentions with citations to evidence in the record; in any event they amount to a rearguing of the evidence, rather than establishing a lack of substantial evidence for his first degree murder conviction.
In short, a reasonable jury could conclude that defendant killed Nguyen as a result of a preexisting reflection and the weighing of considerations, rather than mere rash impulse. Therefore, defendant’s argument that there was insufficient evidence to support his first degree murder conviction is without merit.
II. Jury Instructions
Defendant next argues that the trial court committed reversible error by failing to instruct the jury sua sponte pursuant to CALJIC Nos. 2.71 and 2.71.7 that defendant’s alleged statement to witnesses in Cambodian—“Do you want to see her die?”—must be viewed with caution. He claims prejudice because the testimony about what defendant said were purportedly inconsistent, and the jury would have viewed defendant’s statement differently with proper instructions. We agree with the People that any error in failing to give these instructions was harmless.
The trial court instructed the jury pursuant to CALJIC No. 2.71 as follows:
“An admission is a statement made by [the] defendant which does not by itself acknowledge [his] guilt of the crime[s] for which the defendant is on trial, but which statement tends to prove [his] guilt when considered with the rest of the evidence.
“You are the exclusive judges as to whether any defendant made the admission, and if so, whether that statement is true in whole or in part.”
The court did not provide the last paragraph of the instruction, which states in brackets: “Evidence of an oral admission of [a] [the] defendant not made in court should be viewed with caution.” (CALJIC No. 2.71.) The court also did not give the jury the instruction contained in CALJIC No. 2.71.7, which provides:
“Evidence has been received from which you may find that an oral statement of [intent] [plan] [motive] [design] was made by the defendant before the offense with which [he] [she] is charged was committed.
“It is for you to decide whether the statement was made by [a] [the] defendant.
“Evidence of an oral statement ought to be viewed with caution.” (CALJIC No. 2.71.7.)
Defendant did not request any alteration of the instruction given by the trial court, or that the court give CALJIC No. 2.71.7.
A trial court must sua sponte instruct the jury to view the oral admissions of a defendant with caution. (People v. Wilson (2008) 43 Cal.4th 1, 19.) “The purpose of the cautionary instruction is to assist the jury in determining if the statement was in fact made” (People v. Beagle (1972) 6 Cal.3d 441, 456), whether the statement was made before, during, or after the crime. (People v. Carpenter (1997) 15 Cal.4th 312, 393.)
The parties do not dispute that the trial court should have given the “caution” instructions. Our task, therefore, is to determine whether a trial court’s failure to do so was prejudicial. (People v. Bunyard (1988) 45 Cal.3d 1189, 1224 (Bunyard).) We must determine “whether it is reasonably probable the jury would have reached a result more favorable to defendant had the instruction been given.” (People v. Carpenter, supra, 15 Cal.4th at p. 393.) In doing so, we consider whether there was “evidence that the statement was not made, was fabricated, or was inaccurately remembered or reported.” (People v. Stankewitz (1990) 51 Cal.3d 72, 94.) We also bear in mind that a defendant’s “simple denials about making statements, along with uncontradicted testimony about his statements, may support the conclusion that the instructional error was harmless.” (People v. Wilson, supra, 43 Cal.4th at p. 19.)
Bunyard, supra,45 Cal.3d 1189, is particularly instructive here. Two witnesses testified that the defendant had offered to pay them to kill his wife and unborn child, which defendant denied. (Id. at p. 1224.) Hence, the jury had to decide whether the witnesses were credible or had fabricated their testimony. (Ibid.) The trial court failed to instruct the jury to view the oral admission evidence with caution. (Id. at p. 1225.) The appellate court held that there was no resulting prejudice because the trial court had instructed the jury properly regarding witness credibility. (Ibid.)
As we have discussed, the jury heard evidence from both Ket and P.C. that shortly before defendant shot Nguyen, he spoke in Cambodian to a group of witnesses, “Do you want to see her die?” Nothing submitted into evidence, other than defendant’s own denial, suggests that the testimony about defendant’s statement to the crowd was fabricated or inaccurately remembered or reported. As we have already indicated, D.C.’s testimony was uncertain, and he may have heard the word “die” in any event. Ket, who included defendant among her friends, was certain that defendant said, “Do you want to see her die?” P.C. testified that he heard the statement without immediately ascertaining its meaning, which a neighbor told him five minutes later. Although P.C. had indicated in his preliminary hearing testimony that he understood the phrase at the time it was made, his slightly different trial testimony does little to call his veracity into question. Defendant’s denial aside, he did not offer any viable explanation as to how or why the witnesses somehow fabricated their testimony, or misunderstood what they heard.
This oral admission evidence may have created a credibility question regarding the witnesses’ motives to fabricate evidence, but it did not raise a question about their recollection of the statement, given the lack of inconsistencies in this testimony. The trial court properly instructed the jury on how to resolve witness credibility questions pursuant to CALJIC Nos. 1.01 (instructions to be considered as a whole), 2.13 (prior inconsistent statements), 2.20 (believability of witnesses), 2.21.1 (discrepancies in testimony), 2.21.2 (witnesses willfully false), 2.22 (weighing conflicting testimony), and 2.27 (sufficiency of testimony of one witness). (See People v. Carpenter, supra, 15 Cal.4th at p. 393 [“the court fully instructed the jury on judging the credibility of a witness, thus providing guidance on how to determine whether to credit the testimony”]; Bunyard, supra, 45 Cal.3d at p. 1225 [the court’s instructions adequately alerted the jury about its duty to determine the believability of witnesses, and the weight to be given to their testimony].) Thus, the court’s instructions to the jury as a whole, within the context of the evidence and facts of the case, provided sufficient instruction, even in the absence of specific instructions to treat admissions with caution.
Furthermore, the jury did not need to rely upon defendant’s statement to witnesses to find him guilty of first degree murder in light of the ample testimony of his physical actions in the period before the shooting. Multiple witnesses testified that after the two had argued for a time and Nguyen had indicated she wanted to break up with him, defendant (who was indisputably armed with a loaded, semi-automatic pistol) grabbed a distraught, unarmed Nguyen as she attempted to get away from him and forced her down the street against her will to a relatively isolated cul-de-sac, where he soon after shot her one time in the head and fled. This is evidence alone of a premeditated murder committed after deliberation, and of a motive for doing so.
In light of these instructions and the evidence, there was not a reasonable probability that defendant could have obtained a more favorable result if the subject instructions had been given. Accordingly, we find no basis for the claim that the court’s failure to instruct, as defendant urges on appeal was a basis for any prejudicial error.
III. Prosecutorial Misconduct
Defendant next argues that the prosecutor committed misconduct by suggesting during closing argument that the jurors could only find that there was sufficient “provocation” to reduce a conviction from murder to manslaughter if they agreed it was “reasonable” for defendant to kill Nguyen under the circumstances, which defendant argues was a misstatement of law. Defendant argues that this led to a fundamentally unfair trial in violation of federal constitutional and state law. Defendant has waived his appellant claim by his failure to sufficiently object to and seek admonishments regarding the prosecutor’s remarks in the court below. Regardless, any misconduct was harmless.
“The applicable federal and state standards regarding prosecutorial misconduct are well established. ‘ “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.] As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [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.” (People v. Samayoa (1997) 15 Cal.4th 795, 841.) “ ‘Simply to object or make an assignment of misconduct without seeking a curative admonition is generally not enough. [Citation.] “The reason for this rule, of course, is that ‘the trial court should be given an opportunity to correct the abuse and thus, if possible, prevent by suitable instructions the harmful effect upon the minds of the jury.’ ” ’ ” (People v. Pitts (1990) 223 Cal.App.3d 606, 692.)
In his closing statement, the prosecutor argued: “The type of manslaughter which you will consider in this case is heat of passion. And the instruction will tell you that the heat of passion which will reduce a homicide to a manslaughter must be such a passion as naturally would be aroused in the mind of an ordinarily reasonable person in the same circumstances.
“The question to be answered is whether or not at the time of the killing the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection and from passion rather than judgment.
“Ladies and gentlemen, a sudden quarrel or heat of passion really is murder with a really good excuse. And what it requires is sufficient provocation by the victim such that a reasonable person would do the same thing in the same circumstances.
“The same thing in the same circumstances. That means in order to give this man a manslaughter, you have to decide that when a person is breaking up with another, that it is a reasonable response to shoot them in the face. That is it. If you believe that that’s reasonable and anyone of you would have done the same thing, then call it a manslaughter.”
Defendant did not object to this argument. Subsequently, the prosecutor described the classic examples of heat of passion as a person coming home to find a spouse in bed with someone else, or the parent to discover someone molesting a child. The prosecutor then stated: “If this provocation is insufficient, then it is not a manslaughter. It’s a murder. And that is where the issue in this case lies. Was her saying it’s over, I want to break up, I want to walk away, I do not want anything more to do with it, is that sufficient
provocation to allow him to shoot her in the face? The answer to that question, ladies and gentlemen, is undoubtedly no.”
The prosecutor then summarized her argument: “So if you find, when you find that he thought about life and he thought about death and he chose death, there is no second degree lesser. It is a first. There’s no voluntary manslaughter if there’s inadequate provocation. And so unless the 12 of you would have done the same thing in the same situation, there is no voluntary manslaughter.”
Defense counsel stated at this point, “Your Honor, that is a misstatement.” The trial court responded, “I will give the instruction and they will see what it is. It is a reasonable person standard.” Defense counsel did not request a curative admonition at this point.
The prosecutor continued: “Ladies and gentlemen, you have all been teenagers. You have all been young, dating adults. You’ve known teenagers. You’ve known young, dating adults. If this conduct were reasonable, every other week you would have heard of someone shooting another person in the face because they were breaking up with them.
“Relationships end. Breakups happen. And young people, young teenagers in high school break up every other week. It makes someone angry, it makes someone hurt, but it does not make them respond with an execution style headshot.”
In closing argument, defense counsel told the jury: “To reduce an unlawful killing from murder to manslaughter upon the ground of sudden quarrel or heat of passion, the provocation must be of the character and degree as naturally would excite and arouse the passion, and the assailant must act upon the influence of that sudden quarrel or heat of passion.
“What is the trigger here? We’re done. I don’t love you anymore. We’re finished. And here’s your dad’s watch.
“Any of you want to tell me that couldn’t raise to a heat of passion.”
Defense counsel continued: “The heat of passion which will reduce the homicide to a manslaughter must be such a passion as naturally would arouse the mind of an ordinary reasonable person in the same circumstance. Doesn’t say that [you] would do the same thing in the same circumstance. Just says would arouse the mind of an ordinary person.
“This is an instruction that you are going to be read. Even has a No. 8.42. And it will be in the little packet of instructions that you get. That is important because you can’t just be angry. You do have to follow the law.
“The question to be answered is whether or not, at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause an ordinarily reasonable person of average disposition to act rashly, not to commit murder, but to act rashly and without deliberation and reflection, and from passion rather than judgment.
“That’s what you’re going to be read. That is the test.
“And I do agree with the district attorney that some of these tests tend to get lost in the legalese. And you have to go look at the instructions very closely before you really realize what they are saying.”
The prosecutor then stated during rebuttal: “The question you have to answer regarding whether this is a murder or a manslaughter is not a difficult one. It is actually a very simple one. Was his conduct reasonable?”
The defense did not object to this rebuttal statement. Defense counsel’s failure to object to all but one of the prosecutor’s statements to the jury, his vague, cursory objection to the one statement (merely referring to the prosecutor’s argument as a “misstatement” without further explanation), and his failure to seek any curative admonition from the court, results in waiver of defendant’s appellate claim of prosecutorial misconduct based on the prosecutor’s closing argument to the jury. (People v. Samayoa, supra, 15 Cal.4th at p. 841; People v. Hill (1998) 17 Cal.4th 800, 820 (Hill); People v. Pitts, supra, 223 Cal.App.3d at p. 692.) Instead, defense counsel told the jury a correct statement of the law of manslaughter in closing argument, and the court properly instructed the jury as well, which was a reasonable response to any prejudice caused by the prosecutor’s misstatement.
Defendant argues that any objection or request for an admonition would have been futile in light of the court’s response to his one objection. Defendant is correct that futility may be a grounds to prevent waiver in the proper circumstances but, to paraphrase one of the cases he cites, we reject the premise that the court’s treatment of his sole, vague, cursory objection shows that the court understood the argument he now makes on appeal, or that all objections and requests for admonitions to the prosecutor’s closing argument statements would have been futile. (See People v. Arias (1996) 13 Cal.4th 92, 159-160 [finding waiver in part because of it “reject[ed] the premise that the court’s treatment of unrelated objections shows that all objections would have been futile”]; see also People v. Noguera (1992) 4 Cal.4th 599, 638 [also cited by defendant, finding waiver].)
In any event, while the prosecutor committed misconduct by stating that manslaughter required a determination as to whether or not the person’s actions in response to provocation was “reasonable,” even if inadvertent (see Hill, supra, 17 Cal.4th at pp. 822, 829), it was not prejudicial. Even though the trial court did not provide a curative instruction at the time, both the prosecutor and defense counsel also stated the law properly to the jury in the course of closing argument, significantly diluting the impact of the prosecutor’s incorrect characterization of the law.
Furthermore, the trial court correctly instructed the jury to follow the court’s instructions, not the attorney’s description of the law, to the extent there was a conflict, stating: “You must accept and follow the law as I state it to you.... If anything concerning the law said by the attorneys in their arguments or at any other time during the trial conflicts with my instructions on the law, you must follow my instructions.”
We presume that the jury followed the court’s instruction. (People v. Najera (2006) 138 Cal.App.4th 212, 224; see also People v. Bradford, supra, 15 Cal.4th at p. 1337 [court can presume the jury followed the court’s instructions rather than counsel’s argument].)
The court also instructed the jury correctly regarding voluntary manslaughter and heat of passion. Again, we presume that the jury followed the instructions of the trial court, and not what the prosecutor argued. (People v. Najera, supra, 138 Cal.App.4th at p. 224, citing People v. Boyette (2002) 29 Cal.4th 381, 436.)
Defendant compares the prosecutor’s argument to the argument made in People v. Najera, supra, 138 Cal.App.4th 212. In that case, the victim called the defendant a “faggot” during an argument and the men were separated. The defendant went inside his house for five to ten minutes and returned with a knife, which he used to stab the victim in the stomach three times. (Id. at p. 216.) There, similar to the prosecutor’s statements in the present case, the prosecutor interspersed correct statements of law with incorrect statements regarding provocation and reasonableness, and told the jury during closing argument that sudden quarrel or heat of passion was limited to the situation in which the defendant’s conduct was a reasonable response to the circumstances. (Id. at p. 220.) However, the appellate court held that the prosecutor’s argument was incorrect, that the error was harmless, because it was presumed that the jury followed the trial court’s correct instructions. (Id. at p. 224.) Therefore, Bradford does not support defendant’s argument.
Defendant also argues that we should not necessarily presume that the jury followed the court’s instructions, in part because he argues the instructions themselves were confusing, citing United States Supreme Court case law and People v. Aranda (1965) 63 Cal.2d 518, 526. However, defendant does not explain why this case law applies to the circumstances in the present case. People v. Aranda, for example, involved whether or not in a joint trial the improper admission into evidence of an extrajudicial confession by a codefendant implicating Aranda was cured by the court’s jury instruction that the confession be considered against the codefendant only. (Id. at pp. 522-527.) These facts are inapposite to the present case. Furthermore, the Aranda court did not preclude the possibility that instructions could in the right circumstances prevent the erroneous admission of such a confession from being prejudicial. (Id. at pp. 526-527.) (Also, its ruling about the admissibility of the evidence was later abrogated in part, as discussed in People v. Fletcher (1996) 13 Cal.4th 451, 465.) Thus, defendant’s argument is unpersuasive.
In short, we find no merit in defendant’s argument that the prosecutor’s closing argument statements mischaracterizing the law regarding manslaughter require reversal in this case.
IV. CALJIC No. 8.42
Defendant also argues that the definition of passion and provocation contained in CALJIC No. 8.42 inadequately explains whether the “reasonable person” test is the standard for becoming aroused, or the standard for acting after becoming aroused. We find that the instruction given in this case adequately informed the jury of the law.
An intentional killing may be reduced to voluntary manslaughter if other evidence negates malice. Malice is absent when the defendant acts upon a sudden quarrel or heat of passion on sufficient provocation, or kills in the unreasonable, but good faith belief that deadly force is necessary in self-defense. (Pen. Code, § 192, subd. (a); In re Christian S. (1994) 7 Cal.4th 768, 773; People v. Blakeley (2000) 23 Cal.4th 82, 87-88.) “The heat of passion requirement for manslaughter has both an objective and a subjective component. [Citation.] The defendant must actually, subjectively, kill under the heat of passion. [Citation.] But the circumstances giving rise to the heat of passion are also viewed objectively.... ‘[T]his heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances,’ because ‘no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man.’ ” (People v. Steele (2002) 27 Cal.4th 1230, 1252-1253.) The defendant may not set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless the jury also finds that the facts and circumstances are sufficient to arouse the passions of an ordinarily reasonable person. (Ibid.)
Defendant argues that the instruction was erroneous because there was a reasonable likelihood that it misled the jury. Defendant points to the prosecutor’s misstatements and the court’s “failure” to correct the prosecutor’s misstatements as indicating the instruction is confusing. Defendant also points to the trial court’s statement, in response to defense counsel’s one objection during the prosecutor’s closing argument, that “it’s a reasonable person standard” as somehow “reinforcing” the prosecutor’s misstatement. We do not see the merit of these arguments regarding the actual instruction. CALJIC No. 8.42 correctly and clearly stated the law on voluntary manslaughter, and the court correctly provided it to the jury. Therefore, we reject defendant's argument.
The court provided the jury with CALJIC No. 8.42, which states in relevant part:
V. Ineffective Assistance of Counsel
As an alternative argument, defendant contends that he received ineffective assistance of counsel because his counsel did not request CALJIC No. 2.71.7, and failed to object to the prosecutor’s misconduct in closing argument. We reject this argument as well.
An ineffective assistance of counsel claim requires that a defendant show that counsel’s performance was deficient in that it “fell below an objective standard of reasonableness” “under prevailing norms,” and that he was prejudiced by counsel’s deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694; People v. Ledesma (1987) 43 Cal.3d 171, 216, 218.) In evaluating counsel’s performance, a reviewing court must eliminate the distorting effects of hindsight and assess the performance from counsel’s perspective at the time of the claimed errors in light of all the circumstances. (Strickland v. Washington, at p. 689; People v. Davenport (1995) 11 Cal.4th 1171, 1235-1236.) The prejudice component is demonstrated by showing a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different. (Strickland v. Washington, at p. 694.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Ibid.)
To establish deficient performance on direct appeal where, as here, the record does not disclose trial counsel’s reasons for the challenged act or omission, a defendant must demonstrate that there could be no possible satisfactory explanation or that counsel was asked on the record to explain his or her reasons and failed to do so. (People v. Pope (1979) 23 Cal.3d 412, 426-427, fn. 17, overruled on other grounds in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10, overruled on other grounds in Hill, supra, 17 Cal.4th at p. 823, fn. 1.)
Defendant does not establish ineffective assistance of counsel. His trial counsel may have withheld objection to the court’s failure to give CALJIC No. 2.71.7 because he preferred not to highlight defendant’s oral admission, which defendant denied making, or because he thought the issue was adequately addressed by other instructions, including those on the credibility and believability of the witnesses.
Counsel may have withheld objection to the claimed prosecutorial misconduct in the closing argument because he believed them to be relatively minor errors that were corrected by proper jury instructions, and/or that his own closing argument statements regarding the laws on manslaughter were sufficient to cure any misconceptions. All of these would have been reasonable bases for declining to object. Therefore, defendant’s ineffective assistance claim fails.
In any event, as we have already discussed, the asserted instances of misconduct did not affect the outcome of the trial. Accordingly defendant cannot show prejudice, and his argument must be rejected.
VI. Cumulative Prejudice
Finally, defendant argues that the cumulative effect of the various errors he alleges deprived him of a fair trial, requiring reversal. To the extent that there may have been errors, there was no cumulative prejudice to warrant reversal.
In a close case, the cumulative effect of multiple errors may constitute reversible error. (See Hill, supra, 17 Cal.4th at p. 815.) We review each allegation and assess “the cumulative effect of any errors to see if it is reasonably probable the jury would have reached a result more favorable to defendant in their absence.” (People v. Kronemeyer (1987) 189 Cal.App.3d 314, 349.)
As we have already discussed, any errors were harmless in light of the evidence of premeditation and deliberation and because the jury plainly did not believe defendant’s testimony. This was not a close case. The only possible errors were harmless. Accordingly, there was no cumulative prejudice to warrant reversal. (See Bunyard, supra, 45 Cal.3d at p. 1236 [errors that were harmless when considered individually did not add up to prejudice requiring reversal].)
DISPOSITION
The judgment is affirmed.
We concur: Haerle, Acting P. J., Richman, J.
“To reduce an unlawful killing from murder to manslaughter upon the ground of sudden quarrel or heat of passion, the provocation must be of the character and degree as naturally would excite and arouse the passion, and the assailant must act under the influence of that sudden quarrel or heat of passion.
“The heat of passion which will reduce a homicide to manslaughter must be such a passion as naturally would be aroused in the mind of an ordinarily reasonable person in the same circumstances. A defendant is not permitted to set up [his] [her] own standard of conduct and to justify or excuse [himself] [herself] because [his] [her] passions were aroused unless the circumstances in which the defendant was placed and the facts that confronted [him] [her] were such as also would have aroused the passion of the ordinarily reasonable person faced with the same situation. Legally adequate provocation may occur in a short, or over a considerable, period of time.
“The question to be answered is whether or not, at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from passion rather than from judgment.
“If there was provocation, whether of short or long duration, but of a nature not normally sufficient to arouse passion, or if sufficient time elapsed between the provocation and the fatal blow for passion to subside and reason to return, and if unlawful killing of a human being followed the provocation and had all the elements of murder, as I have defined it, the mere fact of slight or remote provocation will not reduce the offense to manslaughter.”