Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC620675.
RUSHING, P.J.
I. Statement of the Case
Defendant Oscar Leonel Menjivar appeals from a judgment entered after a jury convicted him of first degree murder and battery causing bodily injury and further found that he personally used a deadly weapon to commit the murder. (Pen. Code, §§ 187, 242, 243, subd. (d), 12022, subd. (b)(1).) The court sentenced him to an aggregate term of 29 years to life.
On appeal from the judgment, defendant claims the court gave erroneous instructions on the provocation necessary to support voluntary manslaughter under the theory of heat of passion. Defendant also claims the prosecutor’s closing argument concerning provocation constituted misconduct.
We affirm the judgment.
At the outset we note that the factual summary is based primarily on the testimony of Isaura Dimas and the information she provided to others about the homicide. Her testimony is at times confusing, inconsistent, and contradictory. Some of the statements she made during preliminary hearing and to police and other investigators that were used to refresh her recollection contradicted her trial testimony, and often she simply did not remember having made the statements.
Around March 2005, defendant met Isaura Dimas, and they started dating. Within two months, they had an exclusive, intimate relationship but did not live together. Later, they started to argue about things, including his former girlfriend, his jealousy, his possessiveness, and his lack of trust. Dimas said that at times, defendant would say he could not visit her but then come by to spy on her in the middle of the night. She said that he reacted poorly when they were out and men looked, for example, in restaurants. He did not like it when her son-in-law’s gay uncle looked at her or when her son-in-law hugged her or even when her son’s teenage friends visited the house. He sometimes called her a prostitute. Once he thought she was looking at a man in a car regularly drove by her house, and he later said that he had slashed the car’s tires.
Defendant was particularly jealous of Toribio Martinez, a former boyfriend of Dimas from a few years before. They had remained friends, and he regularly called her and wanted to see her. According to Dimas, defendant also may have disliked Martinez because Dimas had told him about how Martinez had once left her at a bar, and she was raped; Martinez had once touched her crotch because he wanted to have sex with her; and he had knocked over her mailbox. Defendant also reacted when Martinez would call, and Dimas would tell him she was busy with her boyfriend (defendant) and would call him back later. Dimas tried to assure defendant that she and Martinez were just friends.
In December 2005, the relationship between Dimas and defendant was on again, off again. On December 6, 2005, Martinez and Dimas spoke on the phone. She agreed to go with him to the park for a friendly drink. When she told defendant where she was going, he seemed pleased that she had told him the truth. He was glad to know where she was going and said that he trusted her. Martinez picked her up, and they went to a park and shared something to drink. While they sat watching some children play, defendant appeared and said angrily, “That’s how I wanted to find you.” He then brutally attacked Martinez, breaking his nose and fracturing his jaw and the bones around his eyes, and leaving him with permanent physical problems. When Dimas told defendant to leave Martinez alone, defendant threatened that he would “settle” things with her later. She fled, but he caught her, threw her over his shoulder, and dumped her on his car. He then punctured the tires on Martinez’s car. Dimas said she did not call the police because she was frightened of defendant.
The battery conviction was based on defendant’s attack on Martinez.
After the incident, Dimas feared defendant would become violent toward people she knew because of his jealousy. She avoided him and said they should just be friends. However, defendant proposed to her and wanted to get married at Christmas. She was afraid of disclosing her true feelings and told him to wait until June. She feared defendant because twice he had shown her a machete he kept in his vehicle and threatened to kill someone. The first time she thought he was joking. The second time frightened her, and she told him that when people stop having feelings for each other, they should just move on and not get violent.
In February 2006, Dimas and defendant were speaking only irregularly. She told him she just wanted to be friends. He hit her and warned that he would teach her more forcefully that no old woman could insult him.
On February 14, Valentine’s Day, defendant told Dimas that he was depressed and wanted to die. He said that if he saw her with another man he would break him apart. This made her fearful. She tried to lighten things up and invited him out to the El Rancho Bar with her to celebrate Valentine’s Day. He said he did not feel like going but drove her there and agreed to pick her up around midnight.
At the bar, someone bought flowers from a vendor and sent them to Dimas. Dimas did not see who it was but suspected that it might be defendant because she saw the reflection of someone in a mirror that could have been defendant. However, the man was wearing a sombrero that obscured his face. Later that evening, she met and started drinking with a man named Frank Garcia.
After drinking a lot, Dimas left the bar with Garcia, and they went to a motel. She was very drunk. She did not remember much of what happened before getting to the motel. She did not remember saying that they stopped to buy a bottle and some cigarettes. She did not remember saying that Garcia had driven her home but did not want to leave her there because she was not well. She did not remember seeing defendant’s car outside her house and telling Garcia they should leave. She did not remember saying that defendant had followed them to the motel or telling Garcia that defendant might know they were together and might be following them.
Inside the motel, Dimas lay down on the bed. They had something to drink. Garcia stripped to his underwear and became very romantic, caressing her face and hair. He kissed her, and she asked why. He said he liked her but would stop if she wanted him to. As this was happening, someone banged on the door. Dimas joked that perhaps Garcia had forgotten to pay for the room. Garcia went to the door, and when he opened it, Dimas heard a familiar voice say, “You son of a bitch, I’m going to kill you.” It was defendant. He pushed or kicked his way through the door and shoved Garcia. He had his machete and attacked Garcia, saying he was going to kill him if he had touched Dimas. He held the machete to Garcia’s neck and then forced Garcia into the bathroom, where he attacked him. They were screaming. Dimas went to the bathroom but could not get in.
Some people outside called the police, who arrived a short time later. Through the window, they saw blood all over. The occupants of another room said someone was going out the bathroom window, and police went around to the back and saw defendant fleeing. They caught and arrested him. He was bloody and breathing hard but seemed calm. He was expressionless and cooperative.
Police found defendant’s machete stashed in a crawl space. Garcia was dead inside the bathroom with over 70 machete wounds. Defendant’s vehicle was parked in the parking lot near Dimas and Garcia’s room. He had backed into the space. Garcia’s car was also there. One of its tires had been slashed.
III. Instruction on Provocation
Defendant contends that the trial court gave erroneous instructions on the provocation necessary to reduce murder to voluntary manslaughter under the theory of heat of passion. He claims the court misdefined provocation and erred in explaining how jurors were to determine the sufficiency of provocation.
The court gave a former version of the CALCRIM No. 570, the standard instruction defining voluntary manslaughter based on heat of passion. As given, the instruction provided as follows. “A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion. [¶] The defendant killed someone because of a sudden quarrel or in the heat of passion, if, one, the defendant was provoked; two, as a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured his reason or judgment; and three, the provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment. Heat of passion doesn’t require anger, rage or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection. [¶] In order for heat of passion to reduce a murder to voluntary manslaughter, the defendant must have acted under the direct and immediate influence of provocation as I have defined it. While no specific type of provocation is required, slight or remote provocation is not sufficient. Sufficient provocation may occur over a short or long period of time. It is not enough that the defendant was simply provoked. [¶] The defendant is not allowed to set up his own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether a person of average disposition would have been provoked and how such a person would react in the same situation knowing the same facts. [¶]... [¶]The People have the burden of proving beyond a reasonable doubt the defendant did not kill as the result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of murder.” (Italics added; see CALCRIM No. 570 (Spring 2008 ed.) pp. 297-298.)
The Definition of Provocation
Defendant notes that in People v. Logan (1917) 175 Cal. 45 (Logan), the court explained that the jury must be instructed that heat of passion is “such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances, and that, consequently, 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. Thus, no man of extremely violent passion could so justify or excuse himself if the exciting cause be not adequate, nor could an excessively cowardly man justify himself unless the circumstances were such as to arouse the fears of the ordinarily courageous man. Still further, while the conduct of the defendant is to be measured by that of the ordinarily reasonable man placed in identical circumstances, the jury is properly to be told that the exciting cause must be such as would naturally tend to arouse the passion of the ordinarily reasonable man. But as to the nature of the passion itself, our law leaves that to the jury, under these proper admonitions from the court. For the fundamental of the inquiry 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.” (Id. at p. 49, italics added.)
Defendant claims that Logan established the sole legal definition of provocation—i.e., provocation that would render a reasonable person liable to act rashly. Accordingly, he argues that the instructional language—i.e., provocation that would have caused a reasonable person to act rashly—is erroneous because it embodies a different and stricter or higher standard.
Defendant’s claim fails because the Logan court’s articulation of provocation, while regularly cited, has never been expressly codified by the Legislature or deemed by the Supreme Court to be the sole and exclusive legal standard. On the contrary, as defendant acknowledges, the California Supreme Court has articulated the proper standard in different ways and has implicitly and explicitly endorsed the language that the court used in this case and which is also found in CALJIC No. 8.42, an alternative standard instruction on voluntary manslaughter. (E.g., People v. Bridgehouse (1956) 47 Cal.2d 406, 414, overruled on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 92 [“would render” a reasonable person “likely” to act rashly]; People v. Brubaker (1959) 53 Cal.2d 37, 44 [same]; People v. Barton (1995) 12 Cal.4th 186, 201 [“would cause” a reasonable person to act rashly]; People v. Breverman (1998) 19 Cal.4th 142, 163 [same]; People v. Lee (1999) 20 Cal.4th 47, 59-60 [same]; People v. Cole (2004) 33 Cal.4th 1158, 1211 [same]; People v. Manriquez (2005) 37 Cal.4th 547, 583-584 [same]; People v. Cruz (2008) 44 Cal.4th 636, 664 [same]; People v. Moye (2009) 47 Cal.4th 537, 550 [same]; cf. People v. Mills (2010) 48 Cal.4th 158, 200 [CALJIC No. 8.42].)
Indeed, in some cases, the Supreme Court has cited Logan and cases that have quoted the Logan articulation as support for the alternative formulation in the standard instructions. (E.g., People v. Breverman, supra, 19 Cal.4th at p. 163; People v. Manriquez, supra, 37 Cal.4th at pp. 583-584; People v. Cruz, supra, 44 Cal.4th at p. 664; People v. Moye, supra, 47 Cal.4th at p. 549; see also People v. Rich (1988) 45 Cal.3d 1036, 1112; People v. Gutierrez (2008) 28 Cal.4th 1083, 1144.)
As we read these cases, the Supreme Court’s primary concern is that the adequacy of provocation be measured against an objective standard, which all of the various articulations embody. Moreover, although there are arguable distinctions among the court’s formulations of the standard, one could reasonably infer that the Supreme Court considers the differences in nuance to be insignificant and the formulations to be functionally equivalent.
In any event, given the Supreme Court’s repeated endorsement of the language in former CALJIC No. 570, especially cases filed in the last few years, we must decline to condemn it as legally erroneous. (See Auto Equity Sales, Inc. v.Superior Court (1962) 57 Cal.2d 450, 455.) For the same reason, we reject defendant claim that the court’s various formulations have rendered the meaning of provocation ambiguous; and, therefore, under the rule of lenity, we must resolve the alleged ambiguity in favor defendant and the Logan articulation and conclude that the instructional language here was defective.
Defendant’s reliance on the disagreement among the members of the panel in People v. Coad (1986) 181 Cal.App.3d 1094 on the unrelated issue of whether voluntary manslaughter is a crime involving moral turpitude, rendering a conviction therefor admissible for impeachment, does little to persuade us that the Logan formulation is imbedded in the statutory language defining voluntary manslaughter or that the instructional language at issue here, reiterated by the Supreme Court, is erroneous.
How to Determine the Sufficiency of Provocation
Former CALCRIM No. 570 advises jurors to consider “how” an average person “would react in the same situation knowing the same facts” in determining whether there was sufficient provocation.
Citing People v. Najera (2006) 138 Cal.App.4th 212 (Najera), defendant argues that the instructional language is erroneous and renders the instruction defective.
In Najera, supra, 138 Cal.App.4th 212, the trial court instructed the jury on voluntary manslaughter using a former version of CALJIC No. 8.42 that contained essentially the same language that defendant now challenges in former CALCRIM No. 570. During final argument, the prosecutor focused on “how” the killer responded to the provocation and then expressly argued that the provocation would not cause an average person to kill. (Najera, supra, 138 Cal.App.4th at p. 223.) Later, the prosecutor stated, “ ‘[T]he reasonable, prudent person standard... [is] based on conduct, what a reasonable person would do in a similar circumstance. Pull out a knife and stab him? I hope that’s not a reasonable person standard.’ ” (Ibid.) On appeal, the court found such argument to be improper. The court explained, “The focus [of a heat of passion defense] is on the provocation—the surrounding circumstances—and whether it was sufficient to cause a reasonable person to act rashly. How the killer responded to the provocation and the reasonableness of the response is not relevant to sudden quarrel or heat of passion.” (Id. at p. 223.)
The version of CALJIC No. 8.42 given in Najera was later revised, and the instruction now provides, in relevant part, “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.” (CALJIC No. 8.42 (Fall 2010 ed.).)
In directing jurors to consider “how” an average person would react to the provocation shown by the evidence, former CALCRIM No. 570 is consistent with the correct standard in that it maintains a proper focus on whether an average person “would react rashly and without due deliberation” as the instruction elsewhere expressly informs the jury. (Former CALCRIM No. 570.) However, the instruction does not limit the jurors’ consideration to whether an average person would simply be provoked to act rashly; it also would allow juror to think about what an average person would and would not do, and even whether the provocation would cause an average person to kill. However, as Najera correctly explained, whether an average person would be provoked to kill is not a proper consideration in determining whether provocation was sufficient. Thus, because the instructional language at issue arguably permits the jury to determine the sufficiency of provocation based on whether it would cause a reasonable person to kill another person, it is ambiguous.
Former CALCRIM No. 570 was revised in 2008, and its ambiguity eliminated. It now provides, in relevant part, “It is not enough that the defendant simply was provoked. The defendant is not allowed to set up (his/her) own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether a person of average disposition, in the same situation and knowing the same facts, would have reacted from passion rather than judgment.” (CALCRIM No. 570 (2011 ed.), italics added.) Indeed, the Bench Notes to the revised instruction cites Najera and advises that provocation need not be such as would cause an average person to kill but only to act rashly. (Id. at p. 354.)
The fact that this language is ambiguous does not, standing alone, establish instructional error. “ ‘If a jury instruction is ambiguous, we inquire whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction.’ [Citations] ‘ “ ‘ “[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.” ’ ” ’ [Citations.] The reviewing court also must consider the arguments of counsel in assessing the probable impact of the instruction on the jury. [Citations.]” (People v. Young (2005) 34 Cal.4th 1149, 1202.)
The pertinent question here is whether there is a reasonable likelihood that jurors misunderstood the whole instruction on voluntary manslaughter; and, in determining the sufficiency of provocation, jurors considered whether an average person would kill, as opposed to whether he or she would simply act rashly.
Before trial, defense counsel conceded that former CALCRIM No. 570 was not facially erroneous in directing jurors to consider “how” an average person would react. However, citing Najera, supra, 138 Cal.App.4th 212, counsel argued that the instruction was potentially dangerous because it allowed argument that the provocation had to be such as would cause an average person to kill. Counsel sought an order prohibiting any argument that might cause the jury to consider whether an average person might kill.
The prosecutor stated that he intended to confine his argument to the language of the instruction. The court warned both counsel not to misstate the law and ordered them to confine their argument to language of its instruction. Thereafter, in his opening argument, the prosecutor read the instruction to the jury.
In response, defense counsel brought up defendant’s conduct, arguing that the instruction did not require provocation that would have caused an average person to kill Garcia. “That’s not what [the instruction is] stating. It’s stating that a person of average disposition, seeing his lover in a room having sex with somebody else, would basically be provoked and would act in a rash manner and without due deliberation. It doesn’t have to be to the extent of killing somebody, but just basically the provocation being sufficient to make that person act rashly and without due deliberation.”
Later, defense counsel returned to the subject, telling jurors that “you have to ask yourself what an average person of average disposition would have done in Oscar’s situation. And what you have to ask yourself, again, is not, would that person have done what Mr. Menjivar did. You don’t ask yourself would that have—would that person have killed. You ask yourself exactly as the instruction says; would that person act without due deliberation from passion rather than from judgment.”
Counsel continued, “[Y]ou have to ask yourself, if a person [or] Oscar—an average person, a person of average disposition, in Oscar’s situation, looking through the window and seeing Ms. Dimas having sex with another man, if that person would act without due deliberation. And clearly, seeing another individual having sex with a person you love. That’s—it’s textbook that’s what makes people act without due deliberation. Anybody that has to witness that is going to act without due deliberation and they’re going to act from passion. That’s basically what the law books teach. It’s text book heat of passion. You catch the person you love, find the person you love in bed with somebody else, that’s heat of passion.”
Counsel closed by again emphasizing that the prosecution had to prove that a person of average disposition would not have been provoked and acted in a rash manner. “It does not have to be proven that that person would not [sic] have killed. That’s not the law. It’s whether or not that person would have acted rashly without due deliberation. That’s what the law is. And that’s the law you are to apply when you are in deliberations.”
In his closing argument, the prosecutor correctly stated, “Even assuming that there was some provocation, in deciding whether the provocation was sufficient, consider whether a person of average disposition would have been provoked, number one, and number two, how such a person of average disposition would react to that provocation in the same situation knowing the same facts.”
The prosecutor continued, “We all know what the defendant did here in response to provocation. Now you need to consider whether a person of average disposition would have reacted in the same way the defendant did.” (Italics added.) Defense counsel objected, but the objective was overruled. The prosecutor said that he was simply reading the instruction and urged jurors to read it. “It’s going to say the same thing. It says here, you need to ask yourselves whether a person of average disposition would have been provoked, okay, and how such a person of average disposition would react in the same situation knowing the same facts. [¶] Ask yourselves how you would react. I submit to you it would not be the way the defendant reacted. And if you answer it that way, this is not heat of passion plain and simple, it’s just not.” Again defense counsel objected, and the objection was overruled.
Later, the prosecutor argued, “The evidence just doesn’t point to the heat of passion. Doesn’t point, even if there was some provocation. It’s not the provocation that rises to the level of what a reasonable person would wind up doing what this defendant did. And you can look right there. It doesn’t. An average person of average disposition would have been provoked and how such a person of average disposition would react in the same situation. It doesn’t rise to that level.” (Italics added.) The prosecutor closed, “And again, in deciding whether that provocation was sufficient, you have to consider whether a person of average disposition just like any of you would have been provoked, and how such a person like any of you would have reacted in the same situation, knowing the same facts. [¶] Again, we all know how this defendant reacted, and I don’t think any of you would have reacted in that manner.” (Italics added.)
For the most part, the prosecutor’s stayed within the confines of the instructional language, focusing on “how” an average person would have reacted under the same circumstances and arguing that an average person would not have been provoked in the same way. Nevertheless, the comments italicized above do focus on what defendant did in response to the provocation rather than on how he reacted. However, unlike the prosecutor in Najera, the prosecutor did not expressly argue that the provocation would not have caused an average person to hack another person to death with a machete or even cause an average person to kill. Nor did the prosecutor expressly argue that to find defendant guilty of only voluntary manslaughter, the provocation had to be sufficient to cause an average person to kill
Moreover, defense counsel expressly argued that that was not the standard or the proper analysis. Rather, the instruction required them to consider how an average person would react and whether the provocation would cause an average person to act rashly. Defense counsel’s argument more closely reflected the court’s instruction.
In this regard, the ambiguous part of that instruction must be understood in light of the whole instruction, which expressly and unequivocally states that a killing is manslaughter, and not murder, if the defendant was provoked; as a result of the provocation, defendant acted rashly; and “[t]he provocation would have caused a person of average disposition to act rashly and without due deliberation[, ][t]hat is, from passion rather than from judgment.” (Italics added.) Nothing in the instruction suggested that to return a verdict of voluntary manslaughter, the jury had to find that an average person would have been provoked to kill.
Last, we note that the court instructed jurors that the statements of counsel were not evidence. The court also advised jurors that they must follow the law as reflected in the court’s instructions and if there was any conflict between what the attorneys argued and what the instructions said, they were required to follow the court’s instructions.
We recognize that the court overruled defense counsel’s objection to some of the prosecutor’s comments. However, in our view, the court’s ruling did not, in this instance, communicate an endorsement of the view that provocation had to be such as would cause an average person to kill. Again, the prosecutor never expressly argued that it had to be sufficient to cause a person to kill. Moreover, although the court overruled an objection to the comment that an average person would not have been provoked to do what defendant did, the prosecutor immediately, in effect, self-corrected by focusing attention on the instruction and paraphrased its language, which spoke not of what an average person would do but of how an average person would react.
In sum, although part of former CALCRIM No. 570 is ambiguous, the instruction taken as a whole properly directs the jury’s consideration of how an average person would react to whether the provocation would cause an average person to act rashly. Defense counsel’s argument reiterated this instructional direction and expressly warned jurors that they were not to ask whether an average person would have been provoked to kill. The prosecutor quoted the instruction, urging the jurors to consider whether an average person would have been provoked and how an average person would have reacted. And although the prosecutor did allude to what defendant did, rather than how he was provoked, the court, in essence, directed jurors to disregard argument that conflicted with the court’s instruction and follow the instructions.
Given the totality of the circumstances, we do not find a reasonable likelihood that the jury misunderstood former CALJIC No. 570 and applied the wrong standard in determining the sufficiency of provocation. Accordingly, we find no instructional error.
However, even if we assume some instructional error for purposes of argument, it would not compel reversal.
Concerning first degree murder, the court instructed the jury on two theories: killing with premeditation and deliberation and lying in wait. The jury found beyond a reasonable doubt that defendant acted with premeditation and deliberation in killing Garcia, and there was compelling evidence to support that finding.
Defendant was jealous and possessive of Dimas, spied on her, and took calculated and deliberate action against those to whom she might be paying attention. When she said something about a man in a car, defendant later slashed the car’s tires. Despite Dimas’s assurances that Martinez was just a friend, defendant tracked them to a park and viciously attacked Martinez while she and Dimas were just sitting there watching children play. He also slashed or punctured Martinez’s tires. Defendant had also shown Dimas his machete and threatened to use it against people.
On the day of the killing, defendant said he would fall apart if he saw Dimas with another man. She met Garcia at the bar and had drinks with him. Later they left and drove to a motel. Defendant followed them to the motel. Defendant concedes that he had to follow them to the motel in order to perceive the allegedly provocative scene that caused him to act rashly. At the motel, defendant backed his car into a space, which would have enabled him to make a faster exit. One of the tires on Garcia’s car was punctured. Defendant knew what room they were in. After they had been there for a short time, he banged on the door. When Garcia opened it, he burst in and commenced what became a fatal attack.
These circumstances constitute overwhelming evidence that defendant had purposefully stalked Dimas and the man she left the bar with and then deliberately killed him in accordance with his preexisting jealousy; his longstanding intolerance for the attention that any man showed Dimas, including her own relatives; and his previously stated intention to kill anyone he found with her.
Next, we note that jurors were also instructed on second degree murder. In connection with first and second degree murder, the court instructed that determining the degree of murder, they could consider evidence of provocation. (See CALCRIM No. 522.) That instruction, however, did not define provocation or direct jurors to consider how a reasonable person would have reacted. It simply allowed jurors to conclude that if defendant was provoked, he may not have acted with premeditation and deliberation. Thus, this instruction allowed jurors to consider evidence of provocation but without regard to how an average person would have reacted. The jury found beyond a reasonable doubt that defendant acted with deliberation and premeditation. In other words, the jury did not find any significant provocation to suggest that defendant did not act with premeditation and deliberation.
Under the circumstances, we conclude that any alleged instructional error concerning heat of passion and voluntary manslaughter was harmless because we do not find it reasonably probable the jury would have returned a more favorable verdict had it been told only that in determining the sufficiency of provocation, it should consider whether an average person would have been provoked to act rashly. (See People v. Watson (1956) 46 Cal.2d 818, 836.)
We reject defendant’s claim that the alleged instructional error violated defendant’s federal constitutional rights to present a defense and thus must be reviewed under a harmless-beyond-a-reasonable-doubt standard.
IV. Prosecutorial Misconduct
Defendant contends that the prosecutor’s comments, noted above, during closing argument misstated the law and thus constituted misconduct akin to that condemned in Najera.
We have discussed the prosecutor’s comments. Although the prosecutor did not expressly urge the jury to find that the provocation was insufficient because it would not have caused an average person to kill another person with a machete, the prosecutor did refer to what defendant had done and did not just focus on whether the provocation would cause a person to react rashly. Nevertheless, because we do not find it reasonably probable the jury would have reached a more favorable verdict in the absence of the alleged instructional error, we reach the same conclusion concerning the prosecutor’s few objectionable statements during closing argument. (People v. Watson, supra, 46 Cal.2d at p. 836.)
V. Disposition
The judgment is affirmed.
WE CONCUR: PREMO, J., ELIA, J.
Heat of passion voluntary manslaughter is a lesser included offense of second degree murder, and it is settled that failing to instruct, failing to give adequate instructions, and giving erroneous instructions on a lesser included offense constitute errors of state, not federal, law. (People v. Lasko (2000) 23 Cal.4th 101, 111-113; People v. Blakeley (2000) 23 Cal.4th 82, 93.) Moreover, the allegedly erroneous instruction did not deny defendant a meaningful opportunity to present his exculpation defense of voluntary manslaughter. (See Crane v. Kentucky (1986) 476 U.S. 683, 689-690.)