Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C153025
Jones, P.J.
Ali Omar Polk appeals from a judgment entered after a jury convicted him of second degree murder, (Pen. Code, §§ 187, subd. (a), 189) and being a felon in possession of a firearm. (§ 12021, subd. (a)(1).) He contends his conviction must be reversed because (1) the trial court committed several errors related to the admission of prior uncharged misconduct, (2) the court failed to investigate adequately possible juror misconduct, (3) the prosecutor violated Wheeler/Batson principles when selecting the jury, (4) the prosecutor committed misconduct during final argument, and (5) the court instructed the jury incorrectly. We conclude no prejudicial errors were committed at appellant’s trial and will affirm.
Unless otherwise indicated, all further section references will be to the Penal Code.
People v. Wheeler (1978) 22 Cal.3d 258; Batson v. Kentucky (1986) 476 U.S. 79.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant was convicted of murdering DeAndrew Smith while Smith was on the front porch of his residence in Oakland.
Smith and others lived in a house located on 79th Avenue in Oakland. On June 23, 2005, Smith and Dajuan Gross were sitting on the front porch of the house when appellant walked up. He was dressed entirely in black. Dajuan recognized appellant from the neighborhood and knew him as “Lee Bub.” He knew appellant and Smith had had a dispute recently and he whispered, “Here he come[s]” when appellant approached.
Many of the parties share the same last names. For clarity, we will sometime refer to them by their first names.
Appellant walked up the front stairs and demanded money. Smith responded, “You’ll get it when I get it.” Dajuan heard the sound of a bullet being chambered into a gun. He got up and tried to enter the house. As he did, Dajuan heard three or four shots. He turned and saw Smith lying on the porch. Dajuan then heard a second series of shots. He ran to a nearby house and called 911.
The shooting also was witnessed by Dajuan’s sister Ebonique. She was on the porch with Dajuan and Smith when appellant came over. Appellant demanded money claiming Smith had damaged his car. Smith denied damaging the car and told appellant to “Ask one [of his] females.” Again, appellant demanded money and again Smith declined. Appellant pulled a gun and fired three or four shots at Smith. Appellant then fled.
Based on these facts, an information was filed charging appellant with the offenses we have set forth above. As is relevant here, the information also alleged appellant had personally discharged a firearm and caused a death within the meaning of section 12022.53, subdivision (d).
The case proceeded to trial where the prosecution presented the evidence we have set forth above. Appellant testified in his own defense. He admitted he shot Smith but claimed he did so in self-defense. Appellant said he went to Smith’s house a few days before the shooting. Smith was sitting on the porch holding a shotgun. He was acting strangely and saying things like, “I’m fittin’ to start shootin’ mother fuckers around here.” The comments did not concern appellant and he left without incident.
The next morning, appellant returned to 79th Avenue to sell drugs. He brought a handgun to protect himself. He drove to Smith’s house and saw Smith, Ebonique and Ebonique’s mother Elyria on the front porch. He chatted with Elyria and laughed at a comment she made. When Smith heard appellant laughing, he became hostile. He grabbed a shotgun and said “Mother fucker, you laughin’ at me?” Appellant and Smith began to argue about who had the right to sell drugs in the neighborhood. Smith pointed the shotgun at appellant and said, “We don’t like you. You ain’t from around here.” Appellant ran toward his car. Smith followed and fired a shot. Appellant felt shotgun pellets on his leg, but they “didn’t hurt.” He kept running and jumped into his Jaguar. Smith fired two more shots from a distance of 30 to 35 feet. When appellant got home, he noticed shotgun pellet marks on the back of the Jaguar.
About 15 minutes later, a man named Damian Coleman called appellant and said Smith had offered to pay appellant $5,000 to “squash the beef.” That seemed fair to appellant.
Appellant returned to 79th Avenue a couple of days later to sell drugs and to talk to Smith. He was wearing his customary dark “uniform” for selling drugs and was carrying a handgun. When appellant arrived at Smith’s house, he saw Smith, Dajuan and a man named Taco sitting on the front porch. Smith had a shotgun on his lap. Appellant was not alarmed because he thought his dispute with Smith had been resolved.
Appellant asked Smith for the agreed-upon $5,000. Smith became hostile and started saying thinks like, “We are gonna kill you.” Appellant thought Smith was intoxicated or on drugs. He began to “get worried.”
Taco and Dajuan stood up and brandished handguns. They joined Smith’s taunts. At that point, Smith grabbed for his shotgun. Fearing for his life, appellant removed his handgun from his pocket, released the safety, and fired several shots at Smith from a distance of four to five feet. Appellant then turned and ran to his car. As he did, he passed a young man named Zachary Thompson. Thompson looked frightened, so appellant tried to calm him by saying, “I shot in the air, Zack, I shot in the air.”
Appellant drove home. He did not call the police because he assumed someone else would. It “never occurred” to him that he might have killed Smith.
Two or three days later, appellant learned that Smith had died. Appellant also learned that others wanted to kill him in retaliation.
In the following months, appellant lived in Bay Area motels and earned his living by selling drugs. It “never enter[ed] [his] mind” that the police might want to talk to talk to him about the shooting.
Appellant’s mother eventually told him the police were looking for him. He hired a lawyer and turned himself in.
The jurors evaluating this evidence initially told the trial court that they agreed appellant was guilty of murder, but that they could not agree as to the degree. In response, the prosecutor elected to dismiss the first degree murder charge. Later that same day, the jurors convicted appellant of second degree murder and being a felon in possession of a firearm, and found the use allegation to be true.
Subsequently the court sentenced appellant to 15 years to life for second degree murder, plus an additional 25 years for the section 12022.53, subdivision (d) finding.
II. DISCUSSION
A. Issues Relating to the Admission of Evidence and Argument that Appellant was a Pimp
Appellant contends the trial court committed several errors that relate to the admission of evidence and argument that indicated he worked as a pimp. To put these arguments in context, further background is necessary.
Prior to trial, appellant filed a motion in limine in which he asked the court to exclude several categories of evidence. Two of them are relevant here. First, appellant asked the court to exclude comments that were made by two of his ex-girlfriends, Kenya Ruffin and Lakia Bailey, to the effect that he engaged in pimping activity. Second, appellant asked the court to exclude any testimony from Ebonique Gross about the fact that she heard appellant and Smith arguing over “some females” shortly before the shooting.
The trial court conducted a hearing on appellant’s request. Appellant’s counsel argued that evidence from Ruffin and Bailey should be excluded because it was not relevant and the potential for prejudice was great. Defense counsel wanted the evidence concerning the argument excluded because the prosecutor was “going to claim it had to do with prostitution” and therefore the evidence should not come in at all.
The trial court declined appellant’s first request based on the prosecutor’s proffer that one of the theories he was pursuing was that appellant was a pimp and the shooting was triggered by an argument over appellants’ pimping activities. The court refused to exclude the second type of evidence based solely on how the prosecutor might characterize it during argument.
Later before trial, defense counsel filed a motion that asked the court to exclude certain pictures. Some of those pictures showed appellant with a pimp named “Fillmore Slim” who apparently had been the subject of a documentary movie called “American Pimp.” Other pictures showed appellant with attractive scantily clad women. Still others showed appellant dressed in extravagant attire. One picture showed a cake that had been prepared for appellant’s birthday on which the words “pimpin’ 4 life” were written.
The prosecutor opposed the motion to exclude stating: “there will be testimony... that the defendant and the victim, [in] the days leading up to the homicide, were arguing. One of the witnesses, I anticipate, will testify that she was present at the time of one of these arguments, and that the argument between the two had something to do with prostitutes or prostitution. It is my position that these photographs, and I would submit, do show him acting as a pimp. It corroborates this witness’s testimony. I must prove motive. Motive is an issue. I need not prove it, but it is an issue in the case, and if a witness is going to testify that she was present when these two were arguing about prostitutes, I believe these photographs corroborate that testimony, to some extent.”
The court denied the motion finding the photographs were not unduly prejudicial.
During the prosecutor’s opening statement, he showed the jurors a picture of appellant, telling them that appellant formerly looked different from how he looked in court: “You see, back then, back then the defendant, he was involved in the prostitution business. He had prostitutes who worked for him. He was a pimp, basically. He liked nice cars, jewelry. He wore gold teeth. He drove a green Jaguar. He [rode] a Harley-Davidson motorcycle.”
During the trial itself, the prosecutor wanted to introduce a prior statement Ebonique Gross made to the police. In one portion of that statement, Ebonique said that a couple of days before the shooting, she heard appellant and Smith arguing about prostitutes. Defense counsel wanted the court to exclude the prior statement as hearsay. The court declined the request and declined counsel’s request to instruct the jurors that the statement could not be considered for its truth.
After the prosecutor rested his case, the defense counsel made a motion for a mistrial. As is relevant here, she argued as follows: “[G]iven the way all of the evidence has come in in the prosecution’s case in relation to pimping. I feel that the prosecution knew from the very beginning that this case would not revolve around or have as a part of its relevance any alleged pimping by Mr. Polk and has put forth pictures and opinions and previous statements by Ms. Ruffin and Ms. Bailey that he’s unduly prejudiced....”
The trial court denied the motion stating, “There has been some evidence presented to the effect that the defendant and Mr. Smith were arguing a couple or so days before the day of the shooting, that the argument was about — had to do with prostitutes — and I’m kind of — I’m summarizing this evidence sort of liberally — and that it appears from the evidence that that incident at least provided some precipitation for this shooting, and there’s a connection between them, so while I think that the evidence — the connection isn’t rock solid, I think that there is at least sufficient evidence that there is some connection between the subject of pimping, and this shooting sufficient to deny the motion for mistrial.”
During final argument, the prosecutor briefly explained to the jurors why he had presented the evidence he had: “Now, the testimony of Kenya Ruffin and Lakia Bailey. Ebonique Gross said that the day prior or a couple of days prior to the shooting, she was present when the defendant and the victim were arguing about what? Prostitutes. Prostitutes. So if there were no photographs, if there were no evidence that he was a pimp, the defense would say, it never happened. She’s lying. [¶] I bring forth the photographs to corroborate the statement. It’s not a novel idea. When she says they were arguing about pimps or arguing about prostitutes, the fact that these photographs exist tend to corroborate that statement. Maybe that they were arguing about that, because you know what? He is a pimp.”
Appellant now raises a series of arguments related to the testimony and argument we have set forth above, the thrust of which is that the “evidence regarding [his] supposed pimping was unfounded, irrelevant, unduly prejudicial and, [was] admitted without adequate scrutiny.”
We reject all of the arguments appellant had advanced on this point for a clear lack of prejudice. The evidence and argument about pimping appellant has identified was a very minor aspect of this trial and plainly was overshadowed by other misconduct that appellant freely admitted. For example, appellant admitted he suffered two prior felony convictions for selling drugs and that he was on probation at the time of the shooting. Appellant admitted that his probation conditions prohibited him from possessing firearms or entering the 79th Avenue neighborhood. Appellant admitted that he sold drugs regularly and that he earned about $3,000 a month from doing do. And appellant admitted that he never paid taxes on the money he earned. In sum, the juror evaluating the evidence in this case clearly would have understood that appellant was not a model citizen. Against this background, evidence or argument that appellant also may have engaged in pimping activity undoubtedly would have had little impact. Any possible error was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.)
We also reject appellant’s arguments on their merits.
Evidence of uncharged misconduct generally is inadmissible to show bad character or criminal disposition, but it may be admitted to prove some material fact at issue such as motive, intent, knowledge, or identity. (Evid. Code, § 1101; People v. Roldan (2005) 35 Cal.4th 646, 705, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Because of the prejudice inherent in other crimes evidence, the evidence must have substantial probative value to be admissible. (People v. Ewoldt (1994) 7 Cal.4th 380, 402.) Once a trial court determines the misconduct evidence is relevant, it must then undertake an evaluation under Evidence Code section 352 to determine whether its probative value is outweighed by the probability that the evidence would be unduly prejudicial, confusing, or misleading to the jury. (People v. Kipp (1998) 18 Cal.4th 349, 371.) We review the trial court’s rulings on uncharged misconduct evidence for abuse of discretion. (Ibid.)
Here, the prosecutor wanted to present evidence that appellant had a motive to commit murder. In an effort to do so, he presented evidence that appellant and Smith got into an argument about prostitutes a few days before the shooting. Evidence that appellant had engaged in pimping activity would tend in reason to prove that such an argument did in fact occur: i.e., one who is a pimp would more likely get into an argument about prostitutes than one who is not. (Evid. Code, § 210.) The evidence was relevant and was probative on the issue of motive. As we have stated, evidence that appellant had engaged in pimping activity was not particularly damaging in the context of this case. The trial court reasonably could conclude its probative value was not outweighed by the risk of undue prejudice. On this record, we conclude the trial court did not abuse its discretion when it admitted the evidence in question. (People v. Kipp, supra, 18 Cal.4th at pp. 369, 371.)
None of the specific arguments appellant makes convince us that a different conclusion is compelled here. Appellant contends the trial court erred because it failed to conduct a formal hearing on the admissibility of the pimping evidence outside the presence of the jurors before allowing it to be introduced. However, the trial court has the discretion whether to conduct a formal hearing on admissibility outside the presence of the jurors. (Evid. Code, § 402, subd. (b); People v. Williams (1997) 16 Cal.4th 153, 196.) Given the fact that evidence of pimping was unlikely to be prejudicial in the context of this case, we conclude the court did not abuse its discretion when it declined to hold a formal hearing before allowing the evidence to be introduced. (Williams, supra, at pp. 196-197.)
Next citing McKinney v. Rees (9th Cir.1993) 993 F.2d 1378, appellant argues that admitting the evidence of his pimping activity violated his federal due process rights. In McKinney, the defendant was convicted of murdering his mother by slitting her throat after the jury heard evidence that he owned two knifes that could have caused the wound, that he was proud of his knife collection, that he occasionally carried a knife, and that he used a knife to scratch “Death is His” on his closet door. (McKinney v. Rees, supra, 993 F.2d at p. 1382.) Noting that the admission of evidence can violate due process if there are “no permissible inferences the jury may draw from [it]” the McKinney court ruled the knife evidence was irrelevant because it was probative only of character. (Id. at p. 1384.)
We fail to see McKinney’s parallel to this case. It is not usually a question of federal due process whether evidence of other crimes was erroneously admitted. (People v. Malone (1988) 47 Cal.3d 1, 22.) In any event, here the evidence of pimping was relevant; its admission did not violate due process. (Cf. People v. Steele (2002) 27 Cal.4th 1230, 1246.)
Next, appellant argues the trial court should have granted his motion for a mistrial. A mistrial is appropriate if prejudicial error occurs at trial that is incurable by admonition. (People v. Wharton (1991) 53 Cal.3d 522, 565.) Here, as we have explained, there was no error and even if there was, it is precisely the type of error that easily could be cured by admonition. We conclude the trial court did not abuse its discretion when it denied appellant’s motion for a mistrial. (Ibid.)
Finally on this point, appellant argues his conviction must be reversed because the cumulative effect of the errors he has identified resulted in gross unfairness and a denial of due process. We see no errors or gross unfairness. Reversal on this ground is not necessary.
B. Whether the Court Conducted an Adequate Investigation
Appellant contends his conviction must be reversed because the trial court failed to conduct an adequate investigation into possible juror misconduct. The context for this argument is a follows.
Two of the photographs that were admitted at trial showed appellant celebrating his 30th birthday with an older, stylishly dressed man. In one of the photos, appellant and the man are shown sitting in the back of a limousine.
Shortly after the prosecutor rested his case, the trial court announced it had received a note from Juror No. 14; one of the alternate jurors. The court dismissed the other jurors for the weekend and asked Juror No. 14 to remain. The court then read Juror No. 14’s note. It stated as follows:
“I may have seen the older gentleman pictured with the defendant in the limo and at the party. I saw him in a documentary on HBO approximately two years ago. I’m not sure it’s important, but thought it should be known. The documentary was entitled ‘American Pimp.’ The person’s name on the film was Fillmore Slim.”
The court asked Juror No. 14 whether he had shared that information with any of the other jurors. Juror No. 14 said he had spoken to Juror No. 1 about possibly recognizing someone who had been in a documentary, but that he “didn’t go into detail about it.” He said he did not mention the name “Fillmore Slim” and that he did not discuss the issue with any other member of the jury.
Defense counsel asked the court to inquire whether Juror No. 14 mentioned the name of the documentary or the word “pimp” to Juror No. 1. Juror No. 14 said he did not think he did. The court asked Juror No. 14 if he told Juror No. 1 which man in the photograph he was talking about. Juror No. 14 said “No, I didn’t even mention the guy. I just said a person in one of the photographs, I think I may have remembered him from a documentary....”
The court admonished Juror No. 14 not to discuss the case with any of the other jurors. Juror No. 14 agreed, and he clarified he had in fact spoken to Juror No. 7, not Juror No. 1.
The trial court dismissed Juror No. 14 for the weekend, and then asked counsel for comments. Defense counsel asked the court to dismiss Juror No. 14. The court said that would be premature because Juror No. 14 was an alternate and was not even on the jury at that point. The court said it would revisit the issue if the situation changed.
Nothing in the record indicates that Juror No. 14 ever participated in the deliberations or rendered a verdict.
Appellant now contends his conviction must be reversed because the trial court failed to conduct an adequate inquiry into juror misconduct. Implicitly acknowledging that Juror No. 14 was an alternate who did not deliberate, appellant focuses on the comments Juror No. 14 made to Juror No. 7. He argues Juror No. 7’s “bare exposure to [the] information bore a serious potential for prejudice that demanded some further inquiry.”
Not every incident involving a juror’s conduct requires or warrants further investigation. (People v. Cleveland (2001) 25 Cal.4th 466, 478.) The decision whether to investigate the possibility of juror misconduct rests within the sound discretion of the trial court. (Ibid.) A hearing is required only where the court possesses information which, if proven to be true, would constitute “good cause” to doubt a juror’s ability to perform his duties and would justify his removal from the case. (Ibid.)
The trial court here reasonably could conclude that further investigation was not necessary. The record merely indicates that Juror No. 14 told Juror No. 7 that he recognized someone from one of the photographs as having been in a documentary. Juror No. 14 did not identify the photograph and did not say who he recognized. He did not mention the name of the documentary and he did not mention the name Fillmore Slim. On this meager record, we conclude the court did not abuse its discretion when it concluded further inquiry was not necessary. (People v. Cleveland, supra, 25 Cal.4th at p. 478.)
Appellant contends the mere fact that Juror No. 14 and Juror No. 7 had a discussion about the case was misconduct. It would be difficult to characterize the apparently brief and vague conversation that occurred here as misconduct; however, even if it was, we would not reverse. Juror misconduct raises a presumption of prejudice that can be rebutted by “a reviewing court’s examination of the entire record to determine whether there is a reasonable probability of actual harm to the complaining party.” (People v. Loot (1998) 63 Cal.App.4th 694, 697.) There is no reasonable probability of actual harm from the misconduct at issue here.
Having reached this conclusion, we need not decide whether defense counsel raised the issue adequately in the court below, or whether she provided ineffective assistance of counsel.
C. Whether the Prosecutor Violated Wheeler/Batson Principles
Prior to voir dire, the trial court discussed with counsel the procedures they should follow if either intended to bring a Wheeler/Batson motion. The court said the moving party should alert the court of his or her desire to bring a motion, and that the court would hear argument later out of the jury’s presence.
Voir dire began, and the prosecutor used his first three challenges against women. Defense counsel signaled her desire to make a Wheeler/Batson motion. The court said it would address the issue at a later time. When the prosecutor used another challenge against a woman, defense counsel renewed her motion. Again, the court deferred a hearing. The prosecutor’s next three challenged were against men.
At the conclusion of the voir dire session, the court told defense counsel she could argue her Wheeler/Batson motion. Defense counsel said she was withdrawing it in light of the fact that the prosecutor’s most recent challenges were against men. After further discussion, the court again asked counsel to state her position. Counsel confirmed that she had “chosen not to make that motion or request any other Batson/Wheeler remedies....”
Jury selection continued the next day. After the process was complete, the court asked defense counsel a third time to confirm that she had withdrawn her Wheeler/Batson motion. Counsel confirmed she was withdrawing her motion, and she indicated she was doing so based on “appellate law that indicates I must exhaust my challenges before Batson/Wheeler would stand....”
The trial court and the prosecutor both recognized that defense counsel had misstated the controlling law. They pointed out that fact. In light of those explanations, defense counsel stated, “Okay. Well, then, fine. I’ll just make the motion.”
The trial court noted the prosecutor had exercised challenges against eight women and four men when selecting the jury. The court also noted that two women were on the jury and that one was an alternate. Based on that record, the court declined to find a prima facie case of discrimination explaining its decision as follows: “Interestingly enough, in this particular type of motion we’re dealing with a situation where it’s an inherent 50/50. It’s pretty much an even split, generally, between men and women. And the simple fact that the numbers aren’t exactly 50/50, I don’t’ think constitutes a prima facie showing that there’s been a discriminatory practice here in the use of peremptory challenges. While there are more women excused than men, [the prosecutor] has excused a number of men as well, and there are women on the jury, although there is certainly a distinct majority of men. But I don’t find that there’s been a prima facie showing, so I don’t feel that there’s any reason to call upon [the prosecutor] to explain his use of peremptories....”
The prosecutor said he would prefer to explain the reasons for his challenges on the record, and he clarified the names of the four jurors who were the subject of defense counsel’s motion. After a brief recess to obtain those jurors’ questionnaires, the prosecutor explained in detail on the record why he had excused each of them.
Appellant now contends the trial court erred when it declined to find a prima facie case of discrimination under Wheeler/Batson principles.
A prosecutor’s use of peremptory challenges to strike prospective jurors on the basis of group bias violates a criminal defendant’s right to a jury drawn from a representative cross-section of the community. (People v. Bell (2007) 40 Cal.4th 582, 596.) When a court is called upon to determine whether a prosecutor has violated this principle, it must follow a three-step process. First, the defendant must make out a prima facie case by showing that the totality of the relevant facts give rise to an inference of discrimination. (Ibid.) Second, once the defendant has made out a prima facie case, the burden shifts to the prosecutor to explain the reason for his or her actions. (Ibid.) Third, if a neutral explanation is tendered, the court must decide whether the defendant has proved purposeful discrimination. (Ibid.)
Here, the relevant circumstances support the trial court’s conclusion that appellant failed to establish a prima facie case. First and importantly, while defense counsel did ask the court to determine whether the prosecutor was exercising his peremptory challenges in a discriminatory fashion, the motion was half-hearted at best. Defense counsel withdrew her motion no less than three times, and she only made it when the court asked her yet again whether she wanted to pursue it. Defense counsel’s reluctance is telling. Second, as the trial court explained, while the prosecutor did exercise several challenges against women, he also challenged several men, and the final jury included members of both sexes. There was no blanket policy of exclusion of women. Third, the nature of the discrimination alleged presents special problems. Since all jurors are either men or women, an attorney’s peremptory challenges inevitably will apply to at least half of one gender or the other. Given this situation, it is reasonable to accept a relatively higher percentage of challenges to a given gender without giving rise to an inference of discrimination. Finally, defense counsel’s motion was based solely on the fact that that the prosecutor had used 8 of his 12 challenges against women. In analogous circumstances, our Supreme Court has ruled that similar numerical disparities were insufficient to establish a prima facie case. (See People v. Farnam (2002) 28 Cal.4th 107, 136-137 [no prima facie case when four of the prosecutor’s first five challenges were against African Americans]; People v. Mayfield (1997) 14 Cal.4th 668, 723-727 [no prima facie case where three out of five challenges were African Americans].) Based on the record as a whole, we conclude the trial court correctly ruled defense counsel failed to make a prima facie case of discrimination.
Appellant challenges the reasons the prosecutor gave when explaining his challenges. He notes that some of the characteristics the prosecutor identified were shared by other jurors who were not challenged. However, the trial court’s ruling was based on a “first stage” determination that defense counsel failed to make out a prima facie case of discrimination. “Whatever use comparative juror analysis might have in a third-stage case for determining whether a prosecutor’s proffered justifications for his strikes are pretextual, it has little or no use where the analysis does not hinge on the prosecution’s actual proffered rationales....” (People v. Bonilla (2007) 41 Cal.4th 313, 350; see also People v. Carasi (2008) 44 Cal.4th 1263, 1295-1296.)
D. Whether the Prosecutor Committed Misconduct During Final Argument
During final argument, defense counsel argued appellant was not guilty of any crime because he acted in self-defense.
In rebuttal, the prosecutor argued defense counsel’s argument was not credible. He stated that when you are a defense counsel “you... pretty much have to play the cards you’re dealt.” He offered a hypothetical in which defense counsel and an assistant discussed various ways of defending the case with the assistant pointing out the weakness of each. The prosecutor commented that defense counsel was competent, but “not a miracle worker.”
The prosecutor noted that defense counsel had discussed the jury instructions on voluntary manslaughter. The prosecutor then commented, “You know from day one we were told that this was a self-defense case as far as the defense is concerned. And now — and now at the very end, we’re thrown out this, if you don’t buy that, maybe it’s a voluntary manslaughter. You know, it’s funny really, because those instructions as you heard really don’t apply to this case. But that doesn’t matter, because [defense counsel] knows she only needs one of you.”
Later the prosecutor argued that defense counsel was like a car dealer who says to a customer, “You like this car?... If you don’t like that one, how about this one over here?” The prosecutor also compared defense counsel to a fisherman tying different types of bait to get the jurors to “bite.” He urged the jurors not to be “tricked” into thinking appellant had committed voluntary manslaughter. Finally, the prosecutor said defense counsel’s argument was similar to an “old western scene” in which the murderer, confronted by a posse, repeatedly changes his story in response to incriminating evidence.
The prosecutor completed his argument the following day. He argued the defense counsel had misstated the law when discussing CALCRIM No. 225, the instruction that describes what type of evidence can be used to prove a required intent or mental state. Specifically, defense counsel told the jurors they should consider each item of evidence individually and ask if there could be an innocent explanation for it. If there was, then the jurors could not use that item of evidence to prove intent or mental state. The prosecutor argued defense counsel’s interpretation of the law was too narrow, “She wants you to look at each one of these things individually and conclude that if you look at this individually, yeah, there could be two reasonable explanations, where someone can conclude the presence of an intent to kill and the absence of an intent to kill. That’s not what the law says. The reason why it doesn’t say that is because, you can go on forever, and if you looked at everything in isolation, you would always find a reasonable explanation for each little thing.” The prosecutor went on to tell the jurors they should look at the evidence in its “entirety” before making any decisions on intent.
The relevant portion of CALCRIM No. 225 states: “before you may rely on circumstantial evidence to conclude that the defendant had the required intent or mental state, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant had the required intent or mental state. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions supports a finding that the defendant did have the required intent or mental state and another reasonable conclusion supports a finding that the defendant did not, you must conclude that the required intent or mental state was not proved by the circumstantial evidence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable."
The prosecutor had a similar comment about defense counsel’s interpretation of reasonable doubt instruction: “She tried to tell you yesterday that if you have a reasonable doubt as to any part of this evidence, that’s enough. That’s enough to vote not guilty. If you have a reasonable doubt as to Dajuan’s testimony, that’s enough.... If you have a reasonable doubt about why the car was parked where it was, that’s enough. Again, that’s not what the law says. That’s a misapplication of the instructions that you were given yesterday.”
At that point, defense counsel objected on the grounds of “misstatement of the law and denigration.” The court responded, “Are you kidding? Overruled, overruled.”
Subsequently, defense counsel moved for a mistrial on the grounds of denigration of counsel and bias on the part of the trial court in its rulings. The court denied the motion.
After the jurors returned their verdict, defense counsel made an oral motion for new trial on the grounds of prosecutorial and judicial misconduct. Again the court denied the motion.
Appellant now contends his conviction must be reversed based on prosecutorial misconduct.
A prosecutor’s misconduct violates the Fourteenth Amendment to the United States Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. (People v. Cole (2004) 33 Cal.4th 1158, 1202.) A prosecutor’s misconduct that does not render a trial fundamentally unfair under the federal standard may nevertheless violate California law if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. (Ibid.) Where the issue focuses on comments made by the prosecutor before the jury, the question is whether it is reasonably likely the jurors construed or applied the remarks at issue in an objectionable fashion. (Id. at pp. 1202-1203.) When making that determination, we must keep in mind the fact that prosecutor’s have wide latitude to discuss and draw inferences from the evidence. Whether inferences drawn are reasonable is for the jury to decide. (Id. at p. 1203.)
Here, appellant contends the prosecutor committed misconduct by impugning defense counsel.
A prosecutor commits misconduct if he attacks the integrity of defense counsel or casts aspersions on her. (People v. Hill (1998) 17 Cal.4th 800, 832.) However, a prosecutor is permitted to challenge and criticize defense tactics. For example, in People v. Cunningham (2001) 25 Cal.4th 926, the prosecutor told the jurors that defense counsel’s job was to “create straw men” and to “put up smoke” and “red herrings.” (Id. at pp. 1002-1003.) Our Supreme Court ruled the comments were proper because they would have been understood by the jurors as an admonition that they should not be misled by the defense counsel’s interpretation of the evidence. (Id. at p. 1003.) Similarly, in People v. Cummings (1993) 4 Cal.4th 1233, 1302, the court ruled a prosecutor’s comment accusing the defense of attempting to hide the truth was not misconduct. In People v. Marquez (1992) 1 Cal.4th 553, the court ruled that the prosecutor’s comment that a “heavy, heavy smokescreen... has been laid down [by the defense] to hide the truth from you” constituted a proper argument in response to the defense presented. (Id. at pp. 575-576.)
We reach a similar conclusion in this case. The comments at issue here, including those that defense counsel was not a “miracle worker”, comparing her to a car salesman, analogizing her argument to that made in an old western movie, and urging the jurors not to be “tricked” by counsel’s argument, would have been understood by the jurors as an admonition that they should not be misled by defense counsel’s interpretation of the evidence, and not as a personal attack on defense counsel. We conclude there was no prejudicial misconduct.
As for the prosecutor’s statement that defense counsel misstated the law, the prosecutor was correct. In essence, defense counsel stated that the jurors could not consider evidence as probative on intent if that evidence, viewed in isolation, could reasonably be explained. That is not what CALCRIM No. 225 says. In any event, the critical issue is whether it is reasonably likely the jurors construed or applied the remarks at issue in an objectionable fashion. (People v. Cole, supra, 33 Cal.4th at pp. 1202-1203.) We conclude it is not reasonably likely the jurors construed or applied the prosecutor’s comments about defense counsel’s interpretation of CALCRIM 225 in an objectionable way.
The final argument appellant advances on this point is that the trial court committed misconduct when it overruled defense counsel’s objection during the prosecutor’s final argument and added the comment: “Are you kidding?”
A trial court commits misconduct if it persistently makes discourteous and disparaging remarks to defense counsel so as to discredit the defense or create the impression it is allying itself with the prosecution. (People v. Fudge (1994) 7 Cal.4th 1075, 1107.) The isolated comment appellant has identified does not violate that rule. While appellant suggests the court may have made other similar disparaging remarks, the trial court expressly denied that allegation. On appeal we must credit the trial court’s statement. (See People v. Prince (2007) 40 Cal.4th 1179, 1251.) We conclude no error was committed on this ground.
E. Instructional Issues
1. CALCRIM Nos. 570 and 571
The trial court instructed the jurors on the crimes of murder and manslaughter using the standard CALCRIM instructions. As is relevant here, CALCRIM Nos. 520 and 521 explained the various mental states required for first and second degree murder. CALCRIM Nos. 570 and 571 explained the elements of heat-of-passion voluntary manslaughter and unreasonable self-defense voluntary manslaughter.
The court instructed with CALCRIM No. 520 as follows:
The court instructed with CALCRIM No. 521 as follows:
The court instructed with CALCRIM No. 570 as follows:
The court instructed the jury with CALCRIM No. 571 as follows:
Appellant now argues that the instructions on voluntary manslaughter were misleading because they did not specifically require the jury to find that he acted with express or implied malice.
The People concede and we agree that a conviction for voluntary manslaughter requires a state of mind that amounts to malice aforethought. (See People v. Rios (2000) 23 Cal.4th 450, 470, (concurring opn. of Mosk, J.) However we disagree that the jurors were misinstructed.
The first paragraph of CALCRIM No. 570 states: “[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.” Similarly, the first paragraph of CALCRIM No. 571 states: “[a] killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because (he/she) acted in imperfect self-defense....” Therefore, before the jurors could decide whether appellant was guilty of manslaughter under either theory, they would have to decide whether appellant was guilty of murder. Because the standard instructions on murder that were provided specifically required the jurors to find that appellant acted with express or implied malice, the jurors were properly informed of the mens rea requirement for voluntary manslaughter.
Our conclusion is fully consistent with prior case law. In People v. Genovese (2008) 168 Cal.App.4th 817, 831, the defendant argued the instructions were inadequate because they failed to tell the jurors that an intent to kill or a conscious disregard for life was an essential element of voluntary manslaughter. The Genovese court rejected that argument as follows: “although the jury was not expressly instructed in that manner, the jury was instructed, ‘A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because he acted in imperfect defense of another....’ Similarly, the jury was instructed, ‘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 killing could not ‘otherwise be murder’ unless the jury found defendant intended to kill the victim or acted with conscious disregard for human life, and the jury was so informed in the instruction defining murder (i.e., that to prove murder, the prosecution must prove defendant acted with malice aforethought, and there are two kinds of malice aforethought — express, which requires intent to kill, and implied, with requires conscious disregard for human life). [¶] Thus, the instructions did let the jury know that a killing in imperfect self-defense (or heat of passion, etc.), whether intentional or in conscious disregard of life, is voluntary manslaughter.” (Id. at pp. 831-832, original italics.)
Appellant’s counsel on appeal forthrightly cited this new case even though it had not been cited by counsel for respondent. The court appreciates counsel’s candor.
Here, as is Genovese, we conclude the instructions that were given provided the jurors with adequate guidance.
2. Instruction on the Union of Act and Intent
The trial court instructed the jurors on the union of act and intent using the following modified version of CALCRIM No. 252:
“Every crime and allegation charged in this case requires proof of the union, or joint operation, of act and wrongful intent or mental state.
“The crimes of possession of a firearm by a convicted felon and voluntary manslaughter, as well as the allegations of use and discharge of a firearm, require general criminal intent. To be guilty of one of these offenses or allegations, a person must not only commit the prohibited act, but must do so intentionally, or on purpose. It is not required, however, that the person intend to break the law. The act required is explained in the instruction for each crime or allegation.
“The crimes of first degree murder and second degree murder require the mental state known as ‘malice aforethought.’ To be guilty of this offense, a person must not only intentionally commit the prohibited act, but must do so with this mental state. The act and the mental state required are explained in the instructions for these crimes.” (Italics added.)
Appellant now contends the trial court erred when it told the jurors that voluntary manslaughter was a general intent crime.
We will assume, for purposes of this argument, that the court erred when it told the jurors voluntary manslaughter was a general intent crime. The issue then becomes whether the error was prejudicial. Our Supreme Court has set forth the standard that applies when a trial court fails to properly instruct on a lesser included offense: “‘[I]n a noncapital case, error in failing sua sponte to instruct, or to instruct fully, on all lesser included offenses and theories thereof which are supported by the evidence must be reviewed for prejudice exclusively under [People v.] Watson, [supra, ] 46 Cal.2d 818, 836.] A conviction of the charged offense may be reversed in consequence of this form of error only if, ‘after an examination of the entire cause, including the evidence’ (Cal. Const., art. VI, § 13), it appears ‘reasonably probable’ the defendant would have obtained a more favorable outcome had the error not occurred.’ [Citation.]” (People v. Blakeley (2000) 23 Cal.4th 82, 93, quoting People v. Breverman (1998) 19 Cal.4th 142, 178; see also People v. Martinez (2007) 154 Cal.App.4th 314, 337.)
Here, several factors lead us to conclude that any possible error was harmless. First, our Supreme Court has recognized that categorizing crimes as involving general or specific intent is largely “linguistic.” (People v. Hood (1969) 1 Cal.3d 444, 457; People v. Hering (1999) 20 Cal.4th 440, 447.) The court’s technical error in describing voluntary manslaughter as a general intent crime was unlikely to have confused the jurors significantly.
Second, the elements of voluntary manslaughter were set forth fully and correctly in CALCRIM Nos. 520, 521, 570, and 571. Those instructions make clear that the primary focus of the crime lies not in the presence of malice but in the circumstances that negate malice: i.e., heat of passion or unreasonable self-defense. The instruction’s description of voluntary manslaughter as a general intent crime was unlikely to have confused the jurors as to the elements of the crime.
Third, and importantly, appellant’s primary defense was that he had acted in self-defense. Defense counsel began her closing argument by declaring “this is a self-defense case.” She then argued that theory to the jurors at length. Defense counsel then turned to voluntary manslaughter telling the jurors they would “probably” never get to those instructions. After going through the voluntary manslaughter instructions briefly, she returned to her primary theory, “This is a complete self-defense case.” She said she was “not in any way trying to cosign onto [the voluntary manslaughter] theory” and that she was discussing those instructions only because she had an “obligation” to do so.
On this record, we conclude it is not reasonably probable appellant would have achieved a more favorable result absent the error alleged. (People v. Blakeley, supra, 23 Cal.4th at p. 93.) Any possible error was harmless.
3. CALCRIM No 3472
Over defense counsel’s objection, the trial court instructed the jurors with CALCRIM No. 3472 as follows: “A person does not have the right to self-defense if he provokes a fight or quarrel with the intent to create an excuse to use force.”
Appellant now contends the trial court should not have instructed with CALCRIM No. 3472 because there was no evidence to support it. We disagree. Appellant admitted that Smith had shot him and his car with a shotgun a couple of days before the killing. Appellant also admitted that on the day of the crime, he went to Smith’s house armed with a pistol. Ebonique Gross said that appellant’s request for money from Smith was a ruse and that appellant was simply looking for an “excuse” to come onto her porch that day. The jurors interpreting this evidence reasonably could conclude that appellant was angry about being shot, and that he went to Smith’s house hoping to provoke a fight that he could settle with a gun. The instruction was amply supported.
Furthermore, even if we were to conclude the instruction was not supported, we would not reverse. It is error to give an instruction that correctly states the law but which has no application given the facts of the case. (People v. Rollo (1977) 20 Cal.3d 109, 122-123, superseded by statute on other grounds in People v. Castro (1985) 38 Cal.3d 301.) Yet such an error is usually harmless having no effect other than to add to the bulk of the charge. (Rollo, supra, at p. 123.) There is grounds for concern only when the irrelevant instruction creates a substantial risk of misleading the jury to the defendant’s prejudice. (Ibid.)
The trial court here told the jurors that not all of the instructions applied. If as appellant contends, CALCRIM No. 3472 was not supported, then the jurors simply would have ignored it. We see no possibility for prejudice.
4. Instructions on Reasonable Doubt and Related Issues
The trial court instructed on the concept of reasonable doubt using the standard CALCRIM instruction. As is relevant, that instruction defined reasonable doubt as “proof that leaves you with an abiding conviction that the charge is true.”
The court also instructed with CALCRIM No. 200 and other instructions that told the jurors that must decide “what the facts are” based on the evidence presented at trial. (See CALCRIM Nos. 200, 222, 223, & 3550.)
Appellant now contends the “archaic and incomplete abiding conviction language” in the reasonable doubt instruction failed to convey the concept of reasonable doubt correctly. Appellant concedes that our Supreme Court has ruled differently. (People v. Freeman (1994) 8 Cal.4th 450, 504.) That ruling is controlling in this court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Appellant also argues that CALCRIM 200 and the other instructions that told the jurors they must decide the facts based on the evidence presented in court were misleading because “[r]easonable doubt may clearly be based upon absence of evidence, not just the evidence presented in court....” Appellant concedes this same argument has been rejected by several other courts. (See, e.g., People v. Guerrero (2007) 155 Cal.App.4th 1264, 1268-1269; People v. Flores (2007) 153 Cal.App.4th 1088, 1092-1093; People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1509-1510.) We find the reasoning of those cases to be persuasive and will adopt it here.
F. Cumulative Error
Appellant contends that even if none of the errors he has identified is prejudicial by itself, cumulatively they require a reversal of his conviction. We have rejected many of appellant’s arguments on the merits. To the extent the court may have committed some errors, they were minor and even when considered cumulatively, they do not require that appellant’s conviction be reversed. (People v. Jones (2003) 29 Cal.4th 1229, 1268.)
III. DISPOSITION
The judgment is affirmed.
We concur: Simons, J., Bruiniers, J.
Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
“To prove that the defendant is guilty of the crime of murder, the People must prove that: [¶] 1. The defendant committed an act that caused the death of another person; [¶] 2. When the defendant acted, he had a state of mind called malice aforethought; [¶] AND [¶] 3. He killed without lawful justification. [¶] There are two kinds of malice aforethought: express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder. [¶] The defendant acted with express malice if he unlawfully intended to kill. [¶] The defendant acted with implied malice if: [¶] 1. He intentionally committed an act; [¶] 2. The natural consequences of the act were dangerous to human life; [¶] 3. At the time he acted, he knew his act was dangerous to human life; [¶] AND [¶] 4. He deliberately acted with conscious disregard for human life. [¶] Malice aforethought does not require hatred or ill will toward the victim. It is a mental state that must be formed before the act that causes death is committed. It does not require deliberation or the passage of any particular period of time.”
“If you decide that the Defendant has committed murder, you must decide whether it is murder of the first or second degree. [¶] The defendant is guilty of first degree murder if the People have proved that he acted willfully, deliberately, and with premeditation. The defendant acted willfully if he intended to kill. The defendant acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if he decided to kill before committing the act that caused death. [¶] To prove a killing was deliberate and premeditated, it is not necessary to prove the defendant maturely and meaningfully reflected upon the gravity of his act. [¶] The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection. The length of time alone is not determinative. [¶] 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.”
“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: [¶] 1. The defendant was provoked; [¶] 2. As a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured his or her reasoning or judgment; AND, [¶] 3. The provocation would have caused an ordinary person of average disposition to act rashly and without due deliberation -- that is, from passion rather than from judgment. [¶] Heat of passion does not require anger, rage or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection. [¶] 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 simply was provoked. He 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 an ordinary person of average disposition would have been provoked and how such a person would react in the same situation knowing the same facts. [¶] If enough time passed between the provocation and the killing for an ordinary person of average disposition to ‘cool off’ and regain his or her clear reasoning and judgment, then the killing is not reduced to voluntary manslaughter on this basis. [¶] The People have the 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 him not guilty of murder.”
“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 unlawful homicide. 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. [¶] The defendant acted in imperfect self defense if: [¶] 1. He actually believed that he was in imminent danger of being killed or suffering great bodily injury; AND [¶] 2. He actually believed that the immediate use of deadly force was necessary to defend against the danger; BUT, [¶] 3. At least one of those beliefs was unreasonable. [¶] Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. [¶] In evaluating the defendant’s beliefs, consider all the circumstances as they were known and appeared to the defendant. [¶] If you find that DeAndrew Smith threatened or harmed the defendant in the past, you may consider that information in evaluating the defendant’s beliefs. [¶] Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. [¶] 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.”