Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County Super. Ct. No. 04WF0673, William R. Froeberg, Judge.
Frederick L. McBride for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., Stephanie H. Chow and Scott Taylor, Deputy Attorneys General, and Suzanne Nicholls, certified law clerk, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
The People charged defendant Luong Nguyen with the murder of Bang Bui. His first trial resulted in an acquittal as to first degree murder, but the court declared a mistrial when the jury deadlocked on whether he was guilty of second degree murder or manslaughter. During deliberations at defendant’s second trial, the jury advised the court it was having difficulty reaching a verdict. After the trial court discussed the matter with the jurors in open court, they returned a verdict finding defendant guilty of second degree murder. Defendant appeals, contending the trial court’s comments to the jury violated his right to due process. Finding no error, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Trial Evidence
Defendant and Bui were acquaintances. On the day before Bui’s death, defendant had been drinking and that evening attended a party at an apartment near where Bui and his fiancée, Kelly Nguyen (Kelly), lived. At the party, defendant quarreled with a man named Lan Tran, striking him. Tran telephoned Bui.
Around 11:30 p.m., defendant, Tran, and several other persons left the apartment. Witnesses testified to seeing a street fight outside the apartment complex where defendant, while lying on the ground, was struck by others, including Tran and Bui. One witness saw defendant struck with fists and a beer bottle, while a second witness claimed several persons stepped on him.
Defendant was taken to a nearby apartment, bleeding from a head injury and, as one witness described him, “really mad.” While washing off the blood in the apartment’s kitchen, defendant took a knife and tucked it into his pants, claiming he was “very scared” and wanted it for “self-defense.” After resting for awhile, defendant and others left the apartment to look for his missing cell phone. Failing to locate it, they returned to the apartment. Around 1:00 a.m., defendant left again, purportedly to continue searching for the phone. A friend described him as still drunk and angry.
Defendant claimed that, after a second failed attempt to locate the missing cell phone, he “got so mad” that he went to Bui’s apartment “to confront him and ask . . . why he had . . . beat me up.” Kelly testified she heard pounding on the apartment door. When Bui opened it, she saw defendant, holding a knife, push his way into the apartment without saying anything. Defendant claimed he exchanged words with Bui and Bui pushed him. Bui ran towards the kitchen followed by defendant where the latter stabbed Bui once in the chest. Defendant claimed he thrust the knife at Bui at the front door, but conceded being “so drunk” he could not clearly recall the sequence of events.
Defendant left the apartment. Kelly testified he returned and stood outside a patio door asking, “is B[ui] dead yet?” Defendant claimed he drove away from the apartment complex, but after speaking with a friend’s father by telephone, returned. Stopped by a police officer, defendant identified himself and said, “I’m the guy you’re looking for. I did it.”
2. Jury Instruction and Closing Arguments
The court instructed the jury on the charged crime of murder and the lesser offense of voluntary manslaughter resulting from a sudden quarrel or in the heat of passion employing the applicable Judicial Council of California Criminal Jury Instructions (CALCRIM Nos. 520 & 570). The prosecution argued for a second degree murder verdict, claiming defendant’s surreptitious acquisition of the knife, appearance at Bui’s apartment, and stabbing Bui in the chest established he committed the killing with malice. Defense counsel argued the “brawl in the street” “was a significant event” that provoked and enraged defendant and that, after he decided to confront Bui, the “decision to thrust that knife [at Bui] was a rash act.”
3. Jury Deliberations
The jury commenced deliberations shortly before noon on Thursday, May 4. That afternoon it sent two requests to the court, one of which asked, “[p]lease clarify (if possible) ‘dangerous to human life.’” The court responded, stating: “There is no legal definition of ‘dangerous to human life’ – use the ordinary meaning of those words. However, as a point of reference, you may consider ‘dangerous to human life’ as synonymous with ‘a high probability of death.’”
Jury deliberations resumed on Monday, May 8. The next morning, the jury asked the following question: “On . . . manslaughter – If the person is not of average disposition and acts rashly when an average person would not, does that move the verdict back to 2nd degree murder[?]” The court provided the following written response to this question: “Please refer to Instruction [CALCRIM No.] 570. As stated in that instruction, a murder is reduced to a manslaughter if all three of the conditions are present. The portion of the instruction that deal[s] with a person of average disposition begins with – ‘It is not enough that the defendant simply was provoked.’” That afternoon, the jury sent the court the following note: “Judge we are dead locked [sic] and need instructions to proceed.”
In the presence of defendant and counsel for both parties, the court addressed the jury’s last request. It began the discussion by stating, “the questions that you’ve sent out – I don’t wish to demean anyone – but are kind of basic things. It’s ordinary English language concepts. That it almost seems that somebody’s trying to overanalyze things. . . . You kind of get hung up. . . . [¶] I see a lot of nodding of heads. Is that kind of where we are at?” The jury’s foreperson responded, “I would agree,” explaining the last note “was precipitated by, first of all, the frustration over not being able to come to a decision and perhaps . . . by trying to overanalyze everything, as you said. I think that’s a good estimate of what we’ve been doing.”
The court inquired, “Is there any particular area of the law that is causing conflicts or concerns[,]” and the foreperson mentioned “the third and fourth section[s] of . . . implied malice[,]” in particular the . . . requirement that “[a]t the time [defendant] acted, he knew his act was dangerous to human life.” (CALCRIM No. 520.) The foreperson noted “part of the jury feel[] strongly that he knew, . . . part of the jury feel[] strongly he didn’t know.” “[Foreperson]: . . . We felt he might not have known because of the – [¶] Juror Number 9: State of mind. [¶] [Foreperson]: The state of mind or the passion. What’s the other word we were talking about? [¶] Juror Number 5: The rage.”
In response, the court gave the following explanation: “There are basically three theories at work here. . . . The first is express malice, that is where someone intentionally kills someone . . . [w]ith the specific intent to kill. . . . [¶] The second concept is implied malice, where someone does something that is inherently dangerous to human life that you can imply there is an intent to kill just because of the nature of the act . . . . [¶] The third concept is voluntary manslaughter. This is kind of a tricky concept. But what it basically means is that yes, there is an intent to kill, but the law assumes that there is no malice because someone was acting in a heat of passion . . . .” The foreperson repeated “[s]ome people feel strongly that . . . all four of the elements of implied malice were met[,]” while “[s]ome people feel that they were not met. . . .”
The court mentioned the jury’s earlier “note . . . asking about the provocation [that] would have caused a person of average disposition to act rashly and without due deliberation[,]” and inquired “[w]as that answered sufficiently . . . ? One juror asked the court to “further clarify that[.]” The court provided the following explanation: “What you . . . are called upon to do is determine whether or not a particular individual’s reaction to a situation was reasonable . . . using a reasonable person standard . . . . [¶] We don’t let actors make up what is reasonable in their mind. So you apply a reasonable person standard. Is that a normal or reasonable reaction to a stimulus . . . ? Then you follow the instruction and determine if enough time has passed between the provocation and the killing for a person of average disposition to cool off and regain his or her clear reasoning and judgment . . . . [¶] So there’s basically two concepts. Is the provocation sufficient to push a reasonable person to act as they did? And if so, was there a reasonable amount of time to cool off so that a normal person would cool off?”
The foreperson asked, “[s]o, if either one of those are . . . not met or don’t apply, this kicks it . . . up to . . . murder . . . ?” The court responded, “In order to reduce a murder to a voluntary manslaughter, there has to be provocation. If there’s too much time that passes that a normal person would cool off and wouldn’t react in that situation, then yes.” The foreperson explained, “That’s where we are. Some people think that there was enough time and that it was not an average person’s act, and then other people feel that it could be, that . . . rage kept on going all the way through the whole thing.” The court observed “there’s as much of a disagreement as to [the] facts as there is to the law . . . . One of the problems is we’re asking 12 jurors to apply average, ordinary, reasonable standards, and that is hard to really define. I can’t tell you X, Y, and Z equals three.”
After the jurors indicated they had no further questions, the court stated, “What I’m going to ask you to do is go home and sleep on it. Come back tomorrow and see if there’s going to be any change. . . . I’m not advocating that anybody change their position. I am going to ask that you try to gain a consensus. . . . I’m not going to force you into something that you don’t believe in or agree to, but after considering what I have had to say, perhaps there is an overanalysis going on. [¶] Think about it and see where you are tomorrow. If you still feel the same . . ., then we’ll deal with it. If not, we’ll see where we go.”
The next day, defendant moved for a mistrial. He cited the court’s reference to “certain persons . . . overanalyzing the case,” claimed the jurors “asking these questions” “w[ere] those . . . favoring the defense,” and argued the court’s comments “g[ave] strength [to] and lessen[ed] the willingness of those persons who believe it’s a murder case to change their opinion.” The court denied the motion.
DISCUSSION
1. Standard of Review
Before discussing the merits of this appeal, conspicuous deficiencies in defendant’s opening brief compel us to again note the scope of our review as an appellate court.
First, without any citation to the appellate record, the opening brief asks this court to “assume” certain facts about the jury’s numerical division and how the jurors interpreted trial court’s comments on both their deliberations and the law. This approach violates the basic principles of appellate review. “Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant’s burden to affirmatively demonstrate error. [Citation.]” (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) “‘Such error . . . must be affirmatively shown, and the burden is upon the appellant to present a record showing it, any uncertainty in the record in that respect being resolved against him.’” (People v. Clifton (1969) 270 Cal.App.2d 860, 862.) Furthermore, “‘Appellate jurisdiction is limited to the four corners of the record on appeal . . . .’ [Citation.]” (People v. Waidla (2000) 22 Cal.4th 690, 743.) Consequently, “‘[s]tatements of counsel in briefs are not part of the record on appeal.’ . . . ” (People v. Schulze (1959) 169 Cal.App.2d 430, 431), and “[m]atters not presented by the record cannot be considered on the suggestion of counsel in the briefs. [Citations.]” (People v. Hernandez (1957) 150 Cal.App.2d 398, 402.)
Second, the opening brief contains numerous case citations, many of which precede or follow a quote from the cited case, without an internal page reference. California Rules of Court, rule 8.204(a)(1)(B)’s requirement that a party’s brief “support each point by . . . citation of authority” includes the obligation that case citations contain references to the internal page where the applicable point of law is located. (In re S.C. (2006) 138 Cal.App.4th 396, 411 [“Equally unhelpful . . . is the string of case citations that contains . . . no jump cites to the pages of those cases where pertinent holdings purportedly exist[]”]; Evans v. Centerstone Development Co. (2005) 134 Cal.App.4th 151, 166 [“facts and arguments must be supported by required record references, including ‘providing exact page citation’”].) In addition to this defect, one case quotation appearing in the opening brief, that taken from People v. Keenan (1988) 46 Cal.3d 478 is misleading since the quoted passage is taken from the dissenting opinion without any mention of its source. (Id. at p. 548 (conc & dis opn. of Kaufman, J.)
With these introductory comments, we now proceed to consider the merits of this appeal.
2. The Trial Court’s Comments to the Jury
a. The Jury Coercion Claim
Defendant first contends the trial court’s comments to the jury after it learned it was deadlocked violated his constitutional due process right “to have his case decided by a jury.” Specifically, he contends the court’s comments amounted to an effort to coerce the jury to reach a verdict or, alternatively, to encourage a compromise verdict.
These contentions lack merit. “Except as provided by law, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict and rendered it in open court, unless . . . at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree.” (Pen. Code, § 1140.) Since the trial court “bears the statutory responsibility of assuring that a verdict is rendered,” if reasonably probable, “the court . . . may, generally speaking, undertake certain measures calculated to encourage agreement. . . . [Citations.]” (People v. Carter (1968) 68 Cal.2d 810, 815.) But the trial court must avoid coercing the jury to reach a verdict. (Id. at p. 816.) “The basic question, . . . is whether the remarks of the court, viewed in the totality of applicable circumstances, operate to displace the independent judgment of the jury in favor of considerations of compromise and expediency.” (Id. at p. 817.) “Whether statements of a trial judge amount to coercion of a verdict is peculiarly dependent upon the facts of each case.” (People v. Burton (1961) 55 Cal.2d 328, 356; see also People v. Carter, supra, 68 Cal.2d at p. 815.)
The jury informed the court that its “numerical split” was “seven to five,” but did not indicate what result the majority favored. Thus, this case does not involve a situation where a court urges the jury to reach agreement on a verdict after learning how a majority of its members stand on the issues. (People v. Carter, supra, 68 Cal.2d at p. 816.) Nor did the court seek “to exert . . . pressure upon [a] lonely dissenting juror” (Id. at p. 819), or threaten to lock up the jury until it reached a verdict. (Id. at pp. 813-814, 820, fn. 1; People v. Crowley (1950) 101 Cal.App.2d 71, 78-79.) Rather, after responding to the jury’s questions, the trial judge said he was not advocating anyone change his or her vote, but simply “try to gain a consensus,” and then sent them home for the evening.
The court prefaced its “overanalysis” comments by recognizing the instructions may not have been entirely clear and stating it did not intend to “demean anyone.” The appellate record does not support defendant’s assertion the court’s comments suggested the case was a simple one, nor is there any support for his claim these comments were directed towards the jurors favoring a manslaughter verdict.
Near the end of its colloquy with the jury, the court stated that when they returned, “I want you to go in and deliberate . . ., and see if you can reach a verdict. If you come to the conclusion after further deliberation that . . . there’s absolutely no grounds for compromise or modification, then let [the] [d]eputy . . . know, and we’ll deal with it then.” Citing the reference to “compromise,” defendant claims the court encouraged the jury to reach a compromise verdict. Not so. The court’s reference to “compromise” was in relation to achieving a consensus on whether defendant was guilty of murder or manslaughter. Indeed, given the facts and the relevant law, there was no basis for a jury to reach a compromise verdict in this case. The question presented was did defendant commit murder or manslaughter with the difference being whether they found he stabbed Bui with malice or under a sudden heat of passion.
b. The Erroneous Instruction Claim
Defendant’s final attack on the court’s comments is that it misstated the law, first by telling the jury his conduct must be evaluated using a reasonable person standard, and second by suggesting the act of stabbing Bui had to be reasonable to reduce the offense to manslaughter. We disagree with this analysis of the record.
Under Penal Code section 1138, “After the jury have retired for deliberation, . . . if they desire to be informed on any point of law arising in the case, . . . the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.” (Pen. Code, § 1138.) “Section 1138 imposes upon the court a duty to provide the jury with information the jury desires on points of law. [Citation.]” (People v. Smithey (1999) 20 Cal.4th 936, 985, fn. omitted.) While “[t]his does not mean the court must always elaborate on the standard instructions[]” (People v. Beardslee (1991) 53 Cal.3d 68, 97), “a court must do more than figuratively throw up its hands and tell the jury it cannot help. It must at least consider how it can best aid the jury. It should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given.” (Ibid.) “An appellate court applies the abuse of discretion standard of review to any decision by a trial court to instruct, or not to instruct, in its exercise of its supervision over a deliberating jury. [Citation.]” (People v. Waidla, supra, 22 Cal.4th at pp. 745-746.)
Contrary to defendant’s assertion, the court’s reference to the reasonable person standard, as opposed to CALCRIM No. 570’s phrase “person of average disposition,” was not erroneous. California courts have long declared “The jury is . . . to be admonished . . . by the court that th[e] heat of passion must be such . . . 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 . . ., unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man.” (People v. Logan (1917) 175 Cal. 45, 49.) As defendant acknowledges, in People v. Cole (2004) 33 Cal.4th 1158, the Supreme Court recently reiterated an objective standard applies in this context. “‘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.’” (Id. at p. 1215; see also People v. Manriquez (2005) 37 Cal.4th 547, 584 [same]; People v. Najera (2006) 138 Cal.App.4th 212, 225 [“The test for adequate provocation is objective”].)
The reasonable person standard also appeared in the formerly applicable CALJIC standard instruction. (CALJIC No. 8.42 [“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. . . . [¶] The question to be answered is whether . . ., 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”].)
Nor does the record support defendant’s assertion the jury understood the court’s comments on reasonableness to refer to his stabbing of Bui. The trial court told the jury, “What you . . . are called upon to do is determine whether or not a particular individual’s reaction to a situation was reasonable . . . . [¶] . . . Then you follow the instruction and determine if enough time has passed between the provocation and the killing for a person of average disposition to cool off and regain his or her clear reasoning and judgment . . . .” The reference to a delay between the provocation and killing suggests the court intended, and the jury understood, that the reasonableness standard applied to the beating defendant suffered, not the stabbing. Nothing in the court’s comments reflect it directed the jury to determine the reasonableness of the stabbing.
DISPOSITION
The judgment is affirmed.
WE CONCUR: ARONSON, J., IKOLA, J.