Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC513942
Duffy, J.
A jury convicted Anthony Marcus Owens, the defendant herein, of first degree murder (Pen. Code, §§ 187, 189). It had the options of finding him guilty of second degree murder, voluntary manslaughter, or excusable homicide committed in self-defense, but did not exercise them. It found true an enhancement allegation that he intentionally fired a gun and thereby caused death (§ 12022.53, subd. (d)). The trial court sentenced him to 50 years to life imprisonment in state prison.
Further statutory references are to the Penal Code unless otherwise indicated.
No error under state law or federal constitutional violation occurred, and we will affirm the judgment.
FACTS
I. Defendant’s Killing of Vasquez
Defendant shot the victim, Daniel Vasquez, five times at close range, inflicting fatal wounds, on December 12, 2005. Vasquez, a drug dealer, was that day arranging to sell methamphetamine to defendant’s mother, who had a serious drug-addiction problem.
II. Prosecution Case
The prosecution theory was that defendant calculatedly elected, albeit perhaps on the spur of the moment, to kill Vasquez because he knew that Vasquez was contributing to his mother’s addiction and resented it. Defendant was furious with Vasquez on the day of the killing for arranging to supply methamphetamine to his mother. He said he wanted to beat up Vasquez. Instead, he carried out a plan to end Vasquez’s harmful behavior by firing multiple shots into him.
A. Defendant’s Behavior Before the Killing
To advance its theory that defendant committed premeditated and deliberate first degree murder, the prosecution introduced evidence of his menacing behavior toward the victim before the killing.
Defendant became angry when he saw his mother talking with Vasquez and told her to stop using drugs and, in an order laced with obscenities, get back inside the house. Vasquez began to leave but said he would be back. Defendant later went to a party at which, perhaps not for the first time, he showed off a handgun that he had been carrying. As defendant and his brother, Alan Owens, were taking a smoking break outside the premises, defendant saw Vasquez and, again in an obscenity-laced fashion, told his brother that Vasquez was the individual “giving mom dope.”
B. The Circumstances of the Killing
No commotion preceded Vasquez’s killing. There was a conversation that included defendant and Vasquez and lasted less than a minute, but there was no yelling or fighting. The killing happened as defendant, his brother Alan Owens, and Ely Barragan had left the party and saw Vasquez on the street. They approached him and some people who were standing with him. A conversation about Vasquez’s furnishing methamphetamine to defendant’s mother ensued. Barragan threw a bottle at Vasquez and defendant shot him five times and killed him. Vasquez was struck in the arm, back, face, neck, and left flank. It was not possible to detect the order in which defendant fired the shots. One of them was into Vasquez’s face and was fired from three feet away or less. Another went through his arm and lodged in his neck. Neither of these shots, however, was fatal. Vasquez could have been killed by the third gunshot, which struck his back. It went through his spinal cord and was paralyzing, and the shot itself could have caused death. The fourth shot, also to Vasquez’s back, could later have caused death by sepsis or peritonitis, but did not inflict immediately fatal trauma. The fifth shot, the one that entered his left flank, was a fatal wound. It perforated his aorta and lungs.
C. Defendant’s Behavior After the Killing
Defendant told his brother Alan Owens to get his “ass over here,” meaning away from where Vasquez was lying. Owens wanted to help Vasquez but when defendant summoned him again he complied and moved. Defendant and Barragan returned to the party and defendant said, according to a witness’s statement, that “some fool just got blasted.” Defendant, displaying a sense of urgency but not panic, asked for car keys belonging to one of the residents, and he and others who had been present at the shooting departed in the resident’s car. Once in the car defendant said to Owens that he was sorry that he had shot Vasquez in Owens’s presence, but he did not express remorse about shooting Vasquez.
Interrogated by police following his arrest, defendant initially denied knowing Vasquez or anything about his death, but later admitted shooting him. He provided an account that might have supported a self-defense claim: Vasquez had annoyed defendant by trying to sell drugs to defendant’s mother. But Vasquez “really didn’t make me mad.” Vasquez was acting disrespectfully and threateningly toward defendant. He was reaching for something in his pocket and defendant was scared of being attacked, particularly because he had possessed the gun for less than one hour and had never fired a gun before. He fired wildly and initially intending only to scare Vasquez. Defendant showed no remorse or emotional agitation during the interview.
As alluded to above, defendant’s statements leaned toward an explanation that he had acted in self-defense. He told police that Vasquez “came back... trying to confront us. But like walking, too like slow. Then he put his hands in his pocket and said, how do you want to get down to the bottom of it?... I don’t know what he was thinking when he put his hands in his pocket.” “[W]hen he came back, then he was asking... what was the problem that we had... with dope and stuff like that. But like he; but, but he wasn’t just asking, wasn’t just asking; he was saying it in a way like, like he’s mad and he’s gonna fight us or whatever.” “[H]e put his hands in his pockets, saying like, ‘[Ese], how do you want to get to the bottom of this?...’ Started walking too close. And then, I don’t know. But like he was just doing it too fast for like... like he, I felt like he was gonna pull something out of his pocket or start swinging on me or something or start stabbing me or something.” “I was feeling kind of scared cuz I didn’t know what he had in his pocket.” After the interview, defendant placed a telephone call in which he told his interlocutor: “I’m going to try um, (inaudible) hopefully it will be ah, self defense.”
III. Defense Case
The defense theory was that the killing amounted to voluntary manslaughter.
The defense produced evidence suggesting that Vasquez was a dangerous and volatile man. A few weeks before he was killed, Vasquez attacked a former girlfriend, a woman he had abused on several prior occasions. In 2000, he joined in another person’s unprovoked attack on a man and robbed him. Vasquez’s propensity for violence could have been made worse by methamphetamine and alcohol intoxication at the time he was killed. In addition, a prosecution witness had testified that a small black flashlight was recovered from a front pocket in the sweatshirt Vasquez was wearing when killed. At closing argument, defense counsel argued that defendant might have seen the outline of the flashlight against defendant’s clothing and mistaken it for a gun barrel.
At closing argument, defense counsel also argued that the killing could have been the result of a sudden quarrel or provocation by Vasquez causing defendant to kill in the heat of passion.
Under any of these scenarios, counsel argued, defendant would be guilty only of voluntary manslaughter.
The defense also presented testimony that in the days before Vasquez’s killing defendant had been carrying the gun that fired the fatal shots for purposes of self-protection.
DISCUSSION
I. Evidentiary Claims
A. Sufficiency of the Evidence That the Murder was of the First Degree
Defendant claims that there was constitutionally insufficient evidence that his murder of Vasquez was of the first degree. He argues that the evidence shows only that if he killed Vasquez, he did so in a suddenly formed rage and lacked the premeditation and deliberation required for first degree murder.
The jury found that the murder was in the first degree. In order to do so, under the facts of this case, it had to find that defendant premeditated and deliberated the killing. (§ 189.)
“ ‘An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse.’ [Citation.]” (People v. Jurado (2006) 38 Cal.4th 72, 118.) “ ‘ “The true test is not the duration of time as much as it is the extent of the reflection....” ’ ” (People v. Bolin (1998) 18 Cal.4th 297, 332.) The time needed to reflect on the pending killing may be short. “First degree willful, deliberate, and premeditated murder involves a cold, calculated judgment, including one arrived at quickly.” (People v. Carasi (2008) 44 Cal.4th 1263, 1306.) On the other hand, “the legislative classification of murder into two degrees would be meaningless if ‘deliberation’ and ‘premeditation’ were construed as requiring no more reflection than may be involved in the mere formation of a specific intent to kill.” (People v. Anderson (1968) 70 Cal.2d 15, 26.)
In People v. Anderson, supra, 70 Cal.2d 15, the court set forth a test for sufficiency of the evidence of premeditation and deliberation. Under that test, three main kinds of circumstances give evidentiary support to a murder conviction based on premeditation and deliberation, namely planning activity, motive, and manner of killing. “[T]o sustain a verdict of premeditated and deliberate murder, [Anderson] required (1) extremely strong evidence of planning, (2) evidence of motive in conjunction with evidence of planning or of a calculated manner of killing, or (3) evidence of all three indicia of premeditation and deliberation.” (People v. Memro (1995) 11 Cal.4th 786, 863; see Anderson, supra, at p. 27.)
As early as People v. Perez (1992) 2 Cal.4th 1117, our Supreme Court was cautioning that “[t]he Anderson guidelines are descriptive, not normative” (id. at p. 1125); they are not “exhaustive” (ibid.). Since Perez, the court has stated that the Anderson factors “ ‘need not be present in any particular combination to find substantial evidence of premeditation and deliberation.’ [Citations.]” (People v. Jurado, supra, 38 Cal.4th at pp. 118-119.) Our Supreme Court has shown signs of moving well away from the strict Anderson formula in some cases, while in others it continues to adhere to it. (Compare People v. Hovarter (2008) 44 Cal.4th 983, 1019, with People v. Carasi, supra, 44 Cal.4th at p. 1306, and People v. San Nicolas (2004) 34 Cal.4th 614, 658.) Naturally, under the most malleable test—i.e., if the current test consists of whether a reasonable jury could infer from the circumstances of the crime generally that a criminal defendant committed premeditated and deliberate first degree murder (see Hovarter, supra, at pp. 1019-1020)—the killing here would meet that test because, as we will explain, it meets the strict Anderson test.
Under the federal Constitution’s due process clause, there is sufficient evidence to support defendant’s conviction if, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319.) The same standard applies under article I, section 15, of the California Constitution. (People v. Berryman (1993) 6 Cal.4th 1048, 1083, overruled on another ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) This test “does not require a court to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ [Citation.] Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Jackson v. Virginia, supra, 443 U.S. at pp. 318-319.) “[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) “The court does not, however, limit its review to the evidence favorable to the respondent.... ‘[O]ur task... is twofold. First, we must resolve the issue in the light of the whole record—i.e., the entire picture of the defendant put before the jury—and may not limit our appraisal to isolated bits of evidence selected by the respondent. Second, we must judge whether the evidence of each of the essential elements... is substantial; it is not enough for the respondent simply to point to “some” evidence supporting the finding, for “Not every surface conflict of evidence remains substantial in the light of other facts.” ’ ” (Id. at p. 577.)
Contrary to defendant’s view, there was sufficient evidence before the jury to sustain its first degree murder verdict under one prong of the Anderson test—the prong referring to evidence of motive combined with evidence of the manner of killing.
For good reason, defendant had been angry with Vasquez prior to the killing. The evidence the jury received of a motive to kill Vasquez supports the verdict. (People v. Perez, supra, 2 Cal.4th at p. 1125.)
There was no fight or argument preceding the killing; rather, defendant gunned down the helpless Vasquez. He could have stopped firing after one shot but continued until he efficiently completed the task. The evidence the jury received of the manner of killing also supports the verdict. (See People v. Hawkins (1995)10 Cal.4th 920, 956-957, disapproved on other grounds in People v. Lasko (2000) 23 Cal.4th 101, 110.) To be sure, multiple shots could also lead a jury to conclude that defendant engaged in rage-filled overkill. But the evidence was susceptible of either premeditation and deliberation or an impulsive killing, and the jury was entitled to rely on the former interpretation in reaching a first degree murder verdict.
Afterward defendant did not show signs of shock, extreme agitation, or disbelief at what had happened, but was methodical in planning an escape, and he was rather cold in describing Vasquez’s death. Regarding the latter, he returned to the party and described, using language that the jury could regard as off-handed or contemptuous, that “some fool just got blasted.” He regretted only that his brother had had to witness the killing. This evidence could, in the jurors’ eyes, belie any theory of a rage killing or a killing in self-defense. It, too, supports their finding that the murder was premeditated and deliberate.
We agree with defendant that there is no evidence of a well thought out plan, extending over hours or days, to kill Vasquez, otherwise defendant would have been unlikely to show off the eventual murder weapon at a party; moreover, he did not lie in wait for him and their final and fateful encounter was arrived at by chance. Nevertheless, planning activity is not required. (People v. Memro, supra, 11 Cal.4th at pp. 863-864; People v. Anderson, supra, 70 Cal.2d at p. 27.) In addition, the planning need not resemble the preparation needed to carry out, for example, an elaborate bombing plot; to repeat, it suffices that the evidence permitted a rational jury to find that defendant exercised “cold, calculated judgment, including one arrived at quickly.” (People v. Carasi, supra, 44 Cal.4th at p. 1306.) A rational jury could conclude that defendant saw Vasquez, decided to kill him, spent a minute conversing with him, and carried out his quickly devised plan. That would suffice to mark this killing as one involving premeditation and deliberation as opposed to express malice aforethought involving a rash or unconsidered decision (see People v. Anderson, supra, 70 Cal.2d at pp. 26-27).
For the foregoing reasons, we reject defendant’s claim.
II. Instructional Claim Regarding Lesser Offenses
Defendant claims that the trial court erred under state law in failing to instruct the jurors that if they were convinced beyond a reasonable doubt that defendant committed an unlawful homicide but retained a reasonable doubt either as to the degree of murder or whether the offense was murder or manslaughter they could convict him only of the lesser crime. He further claims that the court’s omission violated his due process right to a fair trial under the Fifth and Fourteenth Amendments to the United States Constitution.
People v. Dewberry (1959) 51 Cal.2d 548 (Dewberry), discussed a claim that manslaughter instructions were defective because they “were not accompanied with the further instruction that in the case of a reasonable doubt as between second degree murder and manslaughter, defendant was to be found guilty [only] of manslaughter.” (Id. at p. 555.) The court held that as between the two offenses of manslaughter and murder, to the extent the former is a lesser included offense of the latter (see id. at p. 556), “the jury must be instructed that if they entertain a reasonable doubt as to which offense has been committed, they must find the defendant guilty only of the lesser offense.” (Id. at p. 555.) Such an instruction must be given on the court’s own initiative in a case presenting evidence that the defendant committed a less culpable type of unlawful homicide. (People v. Crone (1997) 54 Cal.App.4th 71, 76.)
The trial court gave the following instructions:
Because the trial court gave the jurors one or more copies of the written version of the instructions, we quote the text of the written version. (See People v. Wilson (2008) 44 Cal.4th 758, 803; People v. Sparks (2002) 28 Cal.4th 71, 75, fn. 3.)
“A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty as to each element of a crime and the allegation beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt.” (See CALCRIM No. 220.)
“The defendant is guilty of first degree murder if the People have proved that he acted willfully, deliberately, and with premeditation.... [The instruction then defined each term.] [¶]... [¶] All other murders are of the second degree. [¶] The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of first degree murder.” (See CALCRIM No. 521.)
“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 People have a burden of proving beyond a reasonable doubt that 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.” (See CALCRIM No. 570.)
“A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because he acted in imperfect self-defense. [¶] If you conclude the defendant acted in complete self-defense, his action was lawful and you must find him not guilty of any crime. The difference between complete self-defense and imperfect self-defense depends on whether the defendant’s belief in the need to use deadly force was reasonable. [¶]... [¶] If you find that Danny Vasquez threatened or harmed the defendant or others in the past, you may consider that information in evaluating the defendant’s beliefs. [¶]... [¶] The People have the burden of proving beyond a reasonable doubt that the defendant was not acting in imperfect self[-]defense. If the People have not met this burden, you must find the defendant not guilty of murder.” (See CALCRIM No. 571.)
“If you all agree the People have not proved the defendant committed an unlawful killing, then you must state on the verdict form that he is not guilty. [¶] If you all agree the People have proved the defendant committed murder, you must also decide what degree of murder the People have proved. You must all agree on the degree of murder he committed. If you all agree that the defendant is guilty of murder and on the degree of murder, then complete the form stating that the defendant is guilty of murder and the degree. Do not return a verdict form stating that the defendant is guilty of second degree murder unless you all agree that the defendant is not guilty of first degree murder.
“The People have the burden of proving that the defendant committed first degree murder rather than a lesser offense. If the People have not met this burden, you must find the defendant not guilty of first degree murder.
“[¶]... [¶]
“If you all agree that the defendant is not guilty of first or second degree murder, but you all agree the People have proved he is guilty of voluntary manslaughter, then complete the verdict form stating that he is guilty of voluntary manslaughter. Do not complete a verdict form stating the defendant is guilty of voluntary manslaughter unless you all agree that the defendant is not guilty of murder.
“The People have the burden of proving that the defendant committed murder rather than a lesser offense. If the People have not met this burden, you must find the defendant not guilty of murder.” (Cf. CALCRIM No. 641.)
Defendant argues that “[t]he instructions given to appellant’s jury... did not convey the Dewberry principle... because none of these instructions addressed the question of how to choose between the degrees of murder or between murder and manslaughter.” We disagree.
“ ‘When reviewing a supposedly ambiguous [i.e., potentially misleading] jury instruction, “ ‘we inquire “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way” that violates the Constitution.’ ” ’ ” (People v. Ayala (2000) 24 Cal.4th 243, 289.) The same test applies under California law. (People v. Clair (1992) 2 Cal.4th 629, 663.)
There is no reasonable likelihood that the instructions given misled the jury to defendant’s detriment. Rather, the instructions met the requirements of Dewberry, supra, 51 Cal.2d 548, and in general correctly restated the law. The jurors were instructed that if they had a reasonable doubt about whether defendant was guilty of first degree murder, they had to find him not guilty of that offense. If they then had a reasonable doubt about his guilt of second degree murder, they had to find him not guilty of any kind of murder. The jurors could then find him guilty of voluntary manslaughter, but only if they decided he committed a homicide less serious than murder but still unlawful, i.e., he did not act in legitimate self-defense. These instructions satisfy the requirements of Dewberry because they “make[] clear that the principle of reasonable doubt applies not only between first and second degree murder but also between second degree murder and manslaughter” when manslaughter is a lesser included offense of murder. (Id. at p. 557.)
We conclude that the instructions conformed to the Dewberry standard. Because defendant’s constitutional due process claim is predicated on a violation of state law, and there was no such violation, we also reject his due process claim.
We also note in passing that defendant cannot be heard to complain of any error regarding the jury’s consideration of voluntary manslaughter or legitimate self-defense that would require an acquittal, because there was no substantial evidence that any of these circumstances accompanied his killing of Vasquez. At the beginning of closing argument, the prosecutor remarked that the jurors would “have one decision to make, which is whether or not this was a first degree murder or a second degree murder. After you heard all of the evidence in this case, that is actually what you need to decide.” That was a correct summation of the posture of the case: neither voluntary manslaughter nor self-defense was at issue.
III. Ineffective Assistance of Counsel
Defendant claims that he received ineffective assistance of counsel under the federal and state constitutions because counsel failed to object to certain remarks the prosecutor made during closing argument. On this record, we cannot agree.
A. Legal Principles
The law regarding ineffective assistance of counsel is well settled. A claim of ineffective assistance of counsel in violation of the Sixth Amendment entails deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of an adverse effect on the outcome. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694.) The Strickland standards also apply to defendant’s claim under article I, section 15 of the California Constitution. (E.g., People v. Waidla (2000) 22 Cal.4th 690, 718.)
The law regarding review of defendant’s underlying federal and state constitutional claims of prosecutorial misconduct also is well settled. “ ‘A prosecutor’s conduct violates the Fourteenth Amendment to the federal Constitution when 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 [California] law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.’ [Citation.]” (People v. Tafoya (2007) 42 Cal.4th 147, 176.)
When the defendant’s claim on appeal focuses on 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 those remarks in an objectionable fashion. (People v. Ayala (2000) 23 Cal.4th 225, 284.) In addressing defendant’s claims, we will assume that reasonable likelihood is part of the substantive law of prosecutorial misconduct and reasonable probability is the standard of review for prejudice. (Compare, e.g., People v. Harrison (2005) 35 Cal.4th 208, 244, and People v. Turner (2004) 34 Cal.4th 406, 429, with, e.g., People v. Cook (2006) 39 Cal.4th 566, 608, and People v. Brown (2003) 31 Cal.4th 518, 553.)
“Although counsel have ‘broad discretion in discussing the legal and factual merits of a case [citation], it is improper to misstate the law. [Citation.]’ [Citation.]” (People v. Mendoza (2007) 42 Cal.4th 686, 702.) In each of defendant’s arguments he asserts that the prosecutor misstated the law.
Even if that should prove to be true in each case, a reviewing court must examine defense counsel’s reaction or lack thereof in the jury’s presence in light of the rule that “[a] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. [Citation.] Tactical errors are generally not deemed reversible, and counsel’s decisionmaking must be evaluated in the context of the available facts. [Citation.] To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.” (People v. Maury (2003) 30 Cal.4th 342, 389.) In sum, defendant “must show that counsel’s action or inaction was not a reasonable tactical choice.” (People v. Jones (2003) 30 Cal.4th 1084, 1105.) Because the record on direct appeal will seldom show that counsel could have had no reasonable tactical purpose to forgo objecting to a prosecutor’s remark during closing argument, “failure to object will rarely establish ineffective assistance” (People v. Hillhouse (2002) 27 Cal.4th 469, 502) on direct appeal (see ibid. [discussing such a claim on a direct appeal]). As we will explain, this is not one of the rare cases in which defendant succeeds in showing on direct appeal that his counsel was ineffective for failing to object to the prosecutor’s remarks.
B. Analysis of the Prosecutor’s Remarks
1. Standard For Voluntary Manslaughter Provocation
Defendant claims that trial counsel was ineffective for failing to object to the following statement regarding the legal standard for the kind of provocation that suffices to reduce an unlawful homicide from murder to voluntary manslaughter. The prosecutor argued:
“In that situation, folks, that’s the defendant creating a conflict, setting up a standard of conduct where he’s saying now he was provoked by whatever words were exchanged, and he can’t do that. It’s whether or not that provocation was sufficient and whether or not an average person would be provoked in that situation and react in the same way. Would an average person who’s grown up in this circumstance and seen their mom do drugs their whole life really, be in relationships with men who gave her drugs, would a normal, rash person, average person confront that person and then shoot them five times? That’s what you have to ask yourself.
“You have to find that the defendant acted under the direct and immediate influence of that provocation. Slight or remote provocation is not sufficient. So when the defendant says Danny said, How are we going to get to the bottom of this? Is that enough? Is that enough to provoke an average person to the point they will shoot somebody five times?”
Defendant relies on People v. Najera (2006) 138 Cal.App.4th 212. Najera observed that the test for voluntary manslaughter is whether a reasonable person would respond to provocation by acting rashly, not on whether such a person would react by doing what the alleged actor did. “The focus 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 [are] not relevant to sudden quarrel or heat of passion.” (Id. at p. 223.)
We need not address whether the prosecutor committed misconduct and whether, if she did, defense counsel should have objected contemporaneously. As stated, ante, page 12, footnote 4, there was no substantial evidence of voluntary manslaughter in this case. For that reason, even if action by defense counsel had forced the prosecutor to rephrase her remarks regarding voluntary manslaughter, we do not believe the jury would have returned a voluntary manslaughter verdict, an acquittal, or a second degree murder verdict. In sum, there is no reasonable probability that defense counsel’s failure to object, even assuming he should have done so, would have resulted in a more favorable outcome for defendant.
2. Suggesting Order of Proceeding to the Jury
Defendant claims that trial counsel was ineffective for failing to object to the following statements, which defendant perceives as arguing that the jurors could not discuss lesser included offenses to first degree murder until they had unanimously agreed that he was not guilty of that greater offense. In so doing, he argues, the prosecutor misstated the law.
The prosecutor stated:
“Only after you’ve decided for some reason together that this is not a first degree murder, only then do you go on to the lesser charges of second degree murder and voluntary manslaughter. Under each one of those charges also you need to decide whether or not it’s true that he used a weapon which caused the death of Danny Vasquez.”
“In order to get to the lesser included offenses, ladies and gentlemen, you have to agree that the defendant is not guilty of first degree murder. You’re not even going to get there. And to get to voluntary manslaughter, you would have to agree to acquit the defendant in this case of second degree murder. You won’t get there.”
Defendant calls our attention to People v. Dennis (1998) 17 Cal.4th 468. Dennis observed that “a court may restrict a jury from returning a verdict on a lesser included offense before acquitting on a greater offense, but may not preclude it from considering lesser offenses during deliberations. [Citations.] Thus, a trial court should not tell the jury it must first unanimously acquit the defendant of the greater offense before deliberating on or even considering a lesser offense.” (Id. at p. 536.)
We perceive no reasonable likelihood that the jury would misapprehend the prosecutor’s remarks to that effect or proceed to follow the approach defendant believes the prosecutor urged. The prosecutor did not tell the jurors that they were not free to discuss the offenses as they pleased. She argued only that the jurors must decide—“once you’ve decided” and if “you... agree”—that defendant was not guilty of first degree murder before proceeding to reach a decision on the lesser included offenses. This accurately states the law: “a jury must unanimously agree to acquit a defendant of a greater charge before returning a verdict on a lesser charge.” (People v. Whisenhunt (2008) 44 Cal.4th 174, 222.) What was true in Dennis is true here: “Plainly, the prosecutor did not tell the jury it could not or should not consider a lesser offense unless it first acquitted of the greater offense. Instead, the prosecutor did no more than offer the jury a suggested approach to its formal decisionmaking....” (People v. Dennis, supra, 17 Cal.4th at p. 536.)
3. Describing Manslaughter as Murder With an Excuse
Defendant claims that trial counsel was ineffective for failing to object when, in his view, the prosecutor committed misconduct by twice describing manslaughter as “murder with an excuse.” In defendant’s view, the prosecutor’s remarks confused voluntary manslaughter with excusable homicide, which is not criminal (§ 195).
The prosecutor stated:
“Manslaughter is a lesser offense to murder. It’s murder with an excuse. The defense will ask you to create or accept some type of excuse for the cold blooded murder of Danny Vasquez. The People will ask you to call it what it is: Murder in the first degree.”
“This is a murder. It’s not a manslaughter. Voluntary manslaughter is murder with an excuse. It does not apply in this case. There was no provocation here to take this from a first degree murder to a second degree murder even, and definitely not to a manslaughter.”
For the reasons stated above—that voluntary manslaughter was not at issue in this case—no prejudice could have arisen from defense counsel’s failure to challenge any prosecutorial mischaracterization of the nature of that offense.
DISPOSITION
In addition to this appeal, defendant filed, on March 16, 2009, a petition for writ of habeas corpus in this court. (In re Anthony Marcus Owens on Habeas Corpus (H033983).) In an order filed separately today, we have denied the petition.
WE CONCUR: Bamattre-Manoukian, Acting P. J., McAdams, J.
Substantial evidence is defined as evidence that is “reasonable, credible and of solid value.” (People v. Dunkle (2005) 36 Cal.4th 861, 885, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
To reduce an unlawful killing from murder to voluntary manslaughter, there must be either imperfect self-defense or adequate provocation (meaning a sudden quarrel or an act in the heat of passion). (People v. Manriquez (2005) 37 Cal.4th 547, 583.) There was no evidence of any such extenuating circumstance. There was no evidence at all of a sudden quarrel. Defendant quietly confronted Vasquez for perhaps a minute and then gunned him down. Nor was there evidence of heat of passion, notwithstanding that defendant was irked at Vasquez for attempting to sell drugs to his mother. “ ‘ “Heat of passion arises when ‘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 such passion rather than from judgment.’ ” [Citation.]’ ” (Id. at pp. 583-584.) There was no evidence of any heat of passion—i.e., quickly forming and boiling anger leading to rash behavior—that could lead defendant to kill Vasquez in a rage.
As for self-defense, imperfect or legitimate, there was no substantial evidence of it. The only evidence touching on this topic consisted of defendant’s statements to police—rambling and self-serving excuses put in context by defendant’s phone call statement that he was hoping to go free by reason of self-defense. (Ante, p. 4.) The evidence that Vasquez had been violent on prior occasions was beside the point, because there was nothing to tie it to the circumstances of the killing.