Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 06NF1650, John Conley, Judge.
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gary Brozio and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O’LEARY, ACTING P. J.
Jee Hyun Song appeals from a judgment after a jury convicted her of second degree murder and found true she personally used a deadly weapon. Song argues the trial court erroneously excluded evidence and failed to instruct the jury on voluntary manslaughter. None of her contentions have merit, and we affirm the judgment.
FACTS
Song and her husband, Dong Uk Kim, were divinity students at Bethesda Seminary in Anaheim. They met at school in September 2004 and were married in Korea four months later. In November 2005, they lived in Anaheim. Song was about 5’1” tall and weighed approximately 107 pounds, and Kim was 5’6” tall and weighed about 187 pounds.
One November evening at approximately 10:00 p.m., Mi Soo Ser, a fellow divinity student received a telephone call from Song on Kim’s telephone. Ser was a good friend of Kim, but did not know Song that well. Song, who was crying, asked Ser, who lived approximately 15 minutes away in Fullerton, to come to her apartment, but Song did not tell her what was wrong.
Approximately 10 minutes later while Ser was on her way to Song’s apartment, Song called again. Song said she thought Kim was dead, but did not say how he died. Ser told Song to call 911, but Song said she did not know how to and did not speak English. The call ended. Ser called a fellow student to find out where Song lived, and her pastor.
When Ser arrived at the complex, she called Song because she did not know her unit number. Song, still crying, met Ser outside and led her upstairs to the apartment. Kim was on the floor with a wound in his chest and there was a knife nearby. Ser went to the kitchen and called 911. Ser went outside to wait, but when she and the pastor tried to go back inside to help translate, emergency service personnel stopped them.
Paramedics Thomas Wills and David Verdecia responded to the call at approximately 10:17 p.m. They saw Kim in a bloody, white tank top T-shirt laying on the floor face up, Song was in the kitchen “very upset,” and there was a knife on the ground. The serrated knife was about 10 inches long, with a blade approximately five and one-half inches long. Later, forensic testing revealed the knife had blood, oil, tissue, and fat on it and had been plunged into Kim to within one-quarter inch of the handle. Near the patio on the ground, there was an open bottle of Jack Daniels and a glass.
Wills attended to Kim, saw that he had a knife wound in his chest, and determined he was dead. There was no puncture mark in the T-shirt’s fabric. Verdecia asked Song, who was agitated, to go into a bedroom so he could speak with her. He tried to ask her questions, but it was difficult because she spoke Korean, and there was language barrier. In broken English, Song said Kim had cancer, and later asked Verdecia, “‘Am I going to go to jail?’”
Officer Michael Lee who was conversant in Korean responded to the call at approximately 11:00 p.m. Lee first spoke with Ser who told the circumstances that brought her to the apartment. Lee then spoke with Song who was “hysterical and . . . crying.” Later, when Lee was walking Song from his patrol car into the police department, he smelled a strong odor of alcohol on her breath.
An information charged Song with murder (Pen. Code, § 187, subd. (a)), and alleged she personally used a deadly weapon, a knife (§ 12022, subd. (b)(1)).
All further statutory references are to the Penal Code, unless otherwise indicated.
At trial, the prosecutor offered Ser’s testimony as described above. On cross-examination, Ser opined Song and Kim got along well together.
Wills testified for the prosecution. Wills initially testified that based on the body’s temperature and lividity, he believed Kim to have been dead between 30 minutes and two hours. When shown his incident report, he stated he believed Kim to have been dead for approximately two hours. Wills explained he and other firefighters lifted Kim to examine his back. Verdecia also testified for the prosecution. Verdecia admitted he told another officer Song stated she argued with Kim about returning to Korea.
The prosecutor also offered the testimony of the coroner, Paul Hoag. Hoag testified Kim had a single stab wound to the center of his chest and bruises on the back of his neck. Hoag explained Kim was wearing a tank top T-shirt and there was a pattern injury around his neck consistent with the T-shirt being pulled or moved across the neck.
The prosecutor also offered the testimony of Dr. Sean Enloe, a forensic pathologist, who performed an autopsy on Kim. Enloe testified Kim had no drugs or alcohol in his system. He stated Kim had an approximately five-inch single blade knife wound in the bottom to middle of his left chest. The blade entered Kim’s body cleanly at a 30 degree upward angle. Enloe also stated Kim had bruises on his back. On cross-examination, Enloe said Kim had no defensive wounds of any kind. Enloe opined Kim’s wounds were consistent with either the prosecutor’s or defense counsel’s theory as expressed in their respective hypotheticals.
At the close of the prosecutor’s case, the trial court granted Song’s section 1118.1 motion as to the issue of premeditation, but not with respect to the issue of malice.
Song offered the testimony of Hwa Ryung Park and Travis Koh, friends from the seminary. They testified Song had a reputation for being truthful and was not violent.
Song testified on her own behalf and claimed she stabbed Kim accidentally. Song testified she and Kim were happy, they loved each other, and there was no reason she would kill him. She said they never hit each other and they were faithful to one another.
Song explained that when her class ended at approximately 7:15 p.m., Kim was waiting to take her home. Song admitted they discussed returning to Korea, but she insisted it was not an argument. When they got home about 7:30 p.m., they discussed dinner plans, but they were not hungry so they decided to wait to eat. While they sat on the patio and talked, Song had two or three glasses of whiskey; she did not ordinarily drink. Although she was not sure of the time, Song stated that around 10:00 p.m., she grabbed a bag of soft noodles from the refrigerator, put a pot of water on the stove, and grabbed a knife from a butcher block to cut open the bag and cut the noodles. As she walked towards the noodles with the knife pointing down at an angle, Kim “spun [her] around and gave [her] a strong hug.” Song heard a “hissing sound from [Kim,]” and he walked to the living room and fell on his stomach. Song said she did not know what to do. She “pull[ed] [Kim’s] arm[]” to try to roll him over. She did not call 911 because she could not speak English, but instead called Ser. Song said she was hysterical after she stabbed Kim because “[her] beloved husband [was] not there with [her,][]” and she was completely dependent on him for everything, including speaking for both of them because she spoke very little English.
Song stated she did not drink after stabbing Kim. She did not remember asking Verdecia whether she was going to go to jail. She thought she told Lee the stabbing “was an accident[.]” Song denied she pulled down Kim’s T-shirt to stab him. Song stated Kim wore a T-shirt that hung down and sometimes it would show his chest.
On cross-examination, Song testified Kim had class at 8:30 p.m., the night of the incident, but he never made it to school. She asked Kim if they could move back to Korea the night of the incident. Song explained she was “homesick” and wanted to return to Korea, but that was just one of the options they had. Song stated they “had many different plans in mind[,]” but they all involved “stay[ing] together.”
When the prosecutor showed Song a picture of her kitchen taken after the incident, Song could not explain why there was a pair of scissors laying next to the bag of noodles on the kitchen counter. After repeated attempts to have Song demonstrate how she held the knife to ascertain its angle, the prosecutor asked Song to demonstrate one last time. The prosecutor explained Song held the knife with two hands, with the blade side up, and the blade down at an angle. After the trial court expressed concern about characterizing the angle as 45 degrees, the prosecutor measured Song holding the knife: the handle was 51 inches from the ground, and the tip of the blade was 45 inches from the ground.
On rebuttal, the prosecutor recalled Enloe. Enloe opined bruising does not occur after circulation stops. Based on the placement and angle of Kim’s wound and the length of the knife blade, Enloe opined the knife would have been 56 inches from the floor. On cross-examination, Enloe admitted that if Kim was bending forward, the knife would have been lower. He stated bruising can occur as a person is dying.
The jury convicted Song of second degree murder and found true she personally used a deadly weapon. After denying Song’s motion for a new trial, the trial court denied her request for probation and sentenced her to 15 years to life on count 1 and a consecutive one-year term on the enhancement.
DISCUSSION
I. Excluded statements of Lee
Song argues the trial court erroneously excluded Lee’s testimony that Song told him the stabbing was an accident on various grounds. As we explained below, none of her contentions have merit.
On cross-examination, defense counsel asked Lee if when he was taking her to the police department, “[Song] repeatedly said in Korean that it was an accident?” The prosecutor objected on hearsay grounds. Defense counsel responded Song made the statements at the time of the incident and it was the “res gestae of the incident.” During an in-chambers discussion, the trial court asked whether Song’s hearsay statement was admissible pursuant to Evidence Code section 356. The prosecutor answered he did not offer any part of Lee’s conversation with Song, and therefore, Evidence Code section 356 was inapplicable. Defense counsel contended it was a spontaneous utterance, and the prosecutor argued it was not. The trial court indicated it would sustain the prosecutor’s hearsay objection reasoning there was an “opportunity for reflection and deliberate fabrication.” When back in the presence of the jury, the court sustained the objection and ordered the jury to not consider Lee’s testimony regarding Song’s characterization of the incident.
Later, defense counsel moved for a mistrial on the grounds the trial court excluded Lee’s testimony. Counsel argued Song would testify the stabbing was an accident, and the prosecutor would challenge that assertion. Counsel argued, therefore, Song’s statement to Lee was a prior consistent statement pursuant to Evidence Code section 791. The prosecutor contended counsel had not laid a proper foundation. The court agreed counsel had not complied with Evidence Code section 791 and denied the mistrial because Song’s chance of receiving a fair trial was not irreparably damaged.
“Hearsay, of course, is evidence of an out-of-court statement offered by its proponent to prove what it states. [Citation.] Unless it comes within an exception, it is inadmissible. [Citation.]” (People v. Alvarez (1996) 14 Cal.4th 155, 185; Evid. Code, § 1200.)
Song argues the trial court erroneously excluded Lee’s testimony Song spontaneously told him the stabbing was an accident because she exhibited an unchanging and fragile mental state from the time of the incident to the time she spoke with Lee. We disagree.
“Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.” (Evid. Code, § 1240.)
“‘“To render [statements] admissible [under the spontaneous declaration exception] it is required that[:] (1) there must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it.” [Citations.]’ [Citation.]” (People v. Ramirez (2006) 143 Cal.App.4th 1512, 1522 (Ramirez).)
“‘Whether the requirements of the spontaneous statement exception are satisfied in any given case is, in general, largely a question of fact. [Citation.] The determination of the question is vested in the court, not the jury. [Citation.]’ [Citation.] The trial court’s determination of preliminary facts will be upheld if supported by substantial evidence. [Citation.]” (Ramirez, supra, 143 Cal.App.4th at p. 1523.)
“‘A spontaneous statement is one made without deliberation or reflection. [Citation.] “The crucial element in determining whether a declaration is sufficiently reliable to be admissible under this exception to the hearsay rule is . . . the mental state of the speaker. The nature of the utterance—how long it was made after the startling incident and whether the speaker blurted it out, for example—may be important, but solely as an indicator of the mental state of the declarant.” [Citation.]’ [Citation.]” (Ramirez, supra, 143 Cal.App.4th at p. 1523.)
Here, we conclude the trial court properly ruled Song’s statement to Lee the stabbing was an accident made while en route to the police station was not admissible as a spontaneous utterance. Song testified she and Kim arrived home at approximately 7:30 p.m. After having his memory refreshed with the incident report, Wills explained that when he examined Kim sometime after 10:17 p.m., Kim had been dead for approximately two hours. And, Ser stated Song called her at approximately 10:00 p.m. Therefore, based on the evidence presented at trial, Song stabbed Kim sometime around 8:17 p.m., but she did not call anyone for approximately two hours. She did not call 911, although she knew emergency services would respond. Song called Ser twice and never explained what had happened. And, when she spoke to Verdecia, she asked him if she was going to jail. It was not until after 11:00 p.m., when Lee took her to the police station that Song claimed she stabbed Kim accidentally. Although there was independent evidence she was crying and extremely upset from the time she spoke with Ser until the time she spoke with Lee, Song waited over two hours to summon help, did not call 911, repeatedly failed to explain the circumstances of Kim’s death, and had ample time to ponder her own future. And only then, when she was on her way to the police station, did she claim it was an accident. We cannot say her statements, three hours later, were spontaneous and made without deliberation and reflection.
Finally, Song claims that she “may have said the very same thing” to Verdecia who could not understand her. (Italics added.) We cannot make such an assumption. And, in any event, the fact she may have said that was of little assistance to the jury.
Song contends Lee’s testimony Song told him the stabbing was an accident was admissible because the statement was “‘necessary to make . . . understood’ . . . or elucidate, what, earlier at the scene, [Song] was trying to say in Korean in the presence of or to . . . Verdecia and Wills, who spoke no Korean . . . .” Not so.
Evidence Code section 356 provides: “Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence.”
“‘The purpose of this section is to prevent the use of selected aspects of a conversation, act, declaration, or writing, so as to create a misleading impression on the subjects addressed. [Citation.] Thus, if a party’s oral admissions have been introduced in evidence, he may show other portions of the same interview or conversation, even if they are self-serving, which “have some bearing upon, or connection with, the admission . . . in evidence.”’ [Citation.]” (People v. Williams (2006) 40 Cal.4th 287, 319 (Williams).)
Here, the prosecutor did not seek to admit any evidence of any conversation between Lee and Song. The prosecutor asked Lee about Song’s demeanor and whether he smelled an odor on her person. Additionally, Evidence Code section 356 does not apply to different conversations. (Williams, supra, 40 Cal.4th at p. 319.) As we explain above, we cannot assume Song, in Korean, told Verdecia and Wills she stabbed Kim accidentally.
Song’s reliance on People v. Barrick (1982) 33 Cal.3d 115, 131, footnote 4 (Barrick), superseded by statute on another ground as noted in People v. Collins (1986) 42 Cal.3d 378, 393, is misplaced. In Barrick, the court stated: “The postarrest statement would also be admissible if necessary to understand the earlier, prearrest statement, but in the present case the earlier statement is independently comprehensible.” (Barrick, supra, 33 Cal.3d at p. 131, fn. 4.) As we explain above, the prosecutor did not seek to admit any conversation between Lee and Song.
C. Evidence Code sections 791 and 1236
Song argues Lee’s testimony that she told him the stabbing was an accident was admissible because it was a prior consistent statement. Again, we disagree.
Evidence Code section 1236 provides, “Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement is consistent with his testimony at the hearing and is offered in compliance with [Evidence Code] [s]ection 791.”
Evidence Code section 791 states: “Evidence of a statement previously made by a witness that is consistent with his testimony at the hearing is inadmissible to support his credibility unless it is offered after: [¶] (a) Evidence of a statement made by him that is inconsistent with any part of his testimony at the hearing has been admitted for the purpose of attacking his credibility, and the statement was made before the alleged inconsistent statement; or [¶] (b) An express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen.”
“A prior statement consistent with a witness’s trial testimony is admissible only if either (1) a prior inconsistent statement was admitted and the consistent statement predated the inconsistent statement, or (2) an express or implied charge is made that the testimony is recently fabricated or influenced by bias or other improper motive, and the consistent statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen. [Citation.]” (People v. Smith (2003) 30 Cal.4th 581, 630 (Smith).)
Here, Lee’s anticipated testimony Song told him the stabbing was an accident was not a prior statement consistent with Song’s trial testimony. Song had not testified and admission of a prior statement by Song would have been premature. (People v. Hitchings (1997) 59 Cal.App.4th 915, 921-922; People v. Frye (1985) 166 Cal.App.3d 941, 950.) Additionally, Song’s statement to Lee she accidentally stabbed Kim arose after the motive to lie arose. After she stabbed Kim, she asked Verdecia whether she was going to jail. And as Lee took her to the police station, she claimed the stabbing was an accident. It is clear Song knew of the gravity of the situation and had a motive to make the exculpatory statement when she spoke with Lee. Song’s assertion the motive to fabricate arose after approximately three weeks after the incident when she reenacted the stabbing for a detective and learned of the coroner’s findings is not persuasive.
D. Evidence Code sections 1250 and 1252
Song argues Lee’s testimony Song told him the stabbing was an accident was admissible because it described her state of mind. The Attorney General argues Song waived appellate review of this issue because she did not raise Evidence Code section 1250 as a basis for admission of Lee’s testimony, and her claim is meritless. Song counters defense counsel’s argument the statement was relevant to the “res gestae” of the incident was broad enough to include admission pursuant to Evidence Code section 1250. Although we agree Song waived appellate review of this issue because she did not specifically raise Evidence Code section 1250 as a grounds for admissibility (People v. Fauber (1992) 2 Cal.4th 792, 854 (Fauber)), we will address the substance of her claim (Smith, supra, 30 Cal.4th at pp. 629-630).
Evidence Code section 1250 states: “(a) Subject to [Evidence Code] [s]ection 1252, evidence of a statement of the declarant’s then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when: [¶] (1) The evidence is offered to prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or [¶] (2) The evidence is offered to prove or explain acts or conduct of the declarant. [¶] (b) This section does not make admissible evidence of a statement of memory or belief to prove the fact remembered or believed.” Evidence Code section 1252 provides: “Evidence of a statement is inadmissible under this article if the statement was made under circumstances such as to indicate its lack of trustworthiness.”
Here, assuming without deciding Song’s statement otherwise qualifies for admission pursuant to Evidence Code section 1250, her statement was not made under circumstances indicating it was trustworthy. As we explain above, Song asked Verdecia whether she was going to jail, and as Lee took her to the police station, she claimed the stabbing was an accident. She had a compelling motive to deceive and exonerate herself from the stabbing. There was ample ground to doubt Song’s motives and sincerity when she claimed the stabbing was an accident. (People v. Edwards (1991) 54 Cal.3d 787, 820.)
E. Harmless error
Because we conclude the trial court properly excluded Lee’s testimony Song told him the stabbing was an accident, we need not address her claim the error was prejudicial. Assuming there was error, we conclude it was not prejudicial. The jury heard Song’s explanation she accidentally stabbed Kim, and it heard her testify she thought she told Lee it was an accident. Further, the trial court instructed the jury with Judicial Council of California Criminal Jury Instructions (2007-2008) CALCRIM No. 510, “Excusable Homicide: Accident.” There was evidence from which the jury could conclude Song accidentally stabbed Kim, but it did not believe her story. Based on Song’s conduct after the stabbing and the physical evidence, there was sufficient evidence for the jury to conclude Song intended to kill Kim. Therefore, it is not reasonably probable that had the jury heard Lee’s testimony Song told him the stabbing was an accident there would have been a different result.
II. Exclusion of Park’s character witness testimony
Song argues the trial court erroneously struck Park’s testimony concerning her state of mind. Again, the Attorney General asserts Song forfeited appellate review of this issue because when the trial court struck the testimony, defense counsel offered no additional basis for admitting the evidence, and her claim is meritless. We agree with the Attorney General on both counts.
During direct examination, defense counsel asked Park when was the last time she spoke with Song. Park stated she spoke with Song a few hours before the incident. When counsel asked her what was the nature of that conversation, the prosecutor objected on relevancy grounds. Counsel responded it was relevant, and when the trial court asked whether it was offered for its truth, counsel replied, “No[.]” The court allowed the testimony subject to a motion to strike. Park stated: “Well, what had happened was that her husband was really ill sometime before, and I referred her to a doctor. And so I asked her during that time how her husband was doing, and she had told me that he’s all better now and she is very thankful. And she was very happy. And she told me that she had regained her grace from God and that she was very happy. So it seems to me that she went home in a very happy way.” The trial court granted the prosecutor’s motion to strike and ordered the jury to disregard it. Counsel did not pursue the matter further.
“An appellate court may not reverse a judgment because of the erroneous exclusion of evidence unless the ‘substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means.’ [Citations.]” (People v. Livaditis (1992) 2 Cal.4th 759, 778.)
Here, defense counsel did not make an offer of proof on the issue of relevance. Counsel stated Park’s testimony was relevant and was not offered for its truth. After the trial court struck the testimony, counsel abandoned the line of questioning and proceeded to inquire as to Song’s reputation for truthfulness. (Fauber, supra, 2 Cal.4th at pp. 853-854.) She cannot now complain the trial court erroneously struck the testimony without having offered a basis for its admission at trial.
In any event, it is not reasonably probable that had Park’s testimony on this point been admitted, the result would have been different. The jury heard testimony Song and Kim were happy and they loved each other. Song explained she was devastated to lose her husband and she was completely dependent on him. Additionally, there was sufficient evidence from which the jury could reasonably conclude Song intended to kill Kim.
III. Federal claims concerning exclusion of Lee’s and Park’s testimony
Song claims the trial court’s exclusion of Lee’s and Park’s testimony denied her Sixth and Fourteenth Amendment rights because it prevented her from “mount[ing] a complete defense to the murder charge[.]” As to Lee’s testimony, Song complains the court denied her a meaningful opportunity to confront and cross-examine the prosecutor’s witness. With respect to Park, she grouses the court denied her the right to corroborate her testimony concerning her state of mind. Neither of her contentions have merit.
“‘Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants “a meaningful opportunity to present a complete defense.”’ [Citation.] This right is abridged by evidence rules that ‘infring[e] upon a weighty interest of the accused’ and are ‘“arbitrary” or “disproportionate to the purposes they are designed to serve.”’ [Citation.]” (Holmes v. South Carolina (2006) 547 U.S. 319, 324-325.)
“As a general matter, the ‘[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant’s right to present a defense.’ [Citations.] Although completely excluding evidence of an accused’s defense theoretically could rise to this level, excluding defense evidence on a minor or subsidiary point does not impair an accused’s due process right to present a defense. [Citation.]” (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.)
Here, the trial court did not apply the rules of evidence in an arbitrary manner. As to Lee, the court considered counsels’ arguments and made a reasoned decision on the admissibility of the evidence. With respect to Park, although the record is limited because counsel did not make an offer of proof, the court allowed Park to answer the question and after hearing the answer struck it. Additionally, the court’s rulings did not prevent Song from presenting a defense. As we explain above more fully, the jury heard evidence Song accidentally stabbed Kim, and they were happy and in love with each other. Even if erroneous, the court’s exclusion of the testimony at issue did not rise to the level of federal constitutional error.
IV. CALCRIM No. 570
Song argues the trial court erroneously failed to instruct the jury on the lesser included offense of voluntary manslaughter. As we explain below, there was not sufficient evidence for such an instruction.
“Voluntary manslaughter is a lesser included offense of murder. [Citation.] One form of the offense is defined as the unlawful killing of a human being without malice aforethought ‘upon a sudden quarrel or heat of passion.’ [Citation.] ‘The heat of passion requirement for manslaughter has both an objective and a subjective component. [Citation.] The defendant must actually, subjectively, kill under the heat of passion. [Citation.] But the circumstances giving rise to the heat of passion are also viewed objectively. . . . [Citation.] [¶] . . . ‘“To satisfy the objective or ‘reasonable person’ element . . . of voluntary manslaughter, the accused’s heat of passion must be due to ‘sufficient provocation.’”’ [Citations.]” (People v. Cole (2004) 33 Cal.4th 1158, 1215-1216.)
“‘The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. [Citations.]’ The test for adequate provocation is objective. [Citation.] [¶] . . . ‘“A provocation of slight and trifling character, such as words of reproach, however grievous they may be, or gestures, or an assault, or even a blow, is not recognized as sufficient to arouse, in a reasonable man, such passion as reduces an unlawful killing with a deadly weapon to manslaughter.”’ [Citation.]” (People v. Najera (2006) 138 Cal.App.4th 212, 225-226 (Najera).)
Federal courts have not ruled “the federal Constitution confers any right to lesser included offense instructions in noncapital cases.” (See People v. Breverman (1998) 19 Cal.4th 142, 168-169.) Therefore, any obligation to instruct the jury on the lesser included offense of voluntary manslaughter must arise under California law. We conclude it was not required.
“A trial court must instruct on a lesser included offense if substantial evidence exists indicating that the defendant is guilty only of the lesser offense. [Citation.] ‘“Substantial evidence” in this context is “‘evidence from which a jury composed of reasonable [persons] could . . . conclude[ ]’” that the lesser offense, but not the greater, was committed. [Citations.]’ [Citation.]” (People v. Manriquez (2005) 37 Cal.4th 547, 584.)
Here, the only evidence Song relies on to support her contention the trial court should have instructed the jury on voluntary manslaughter is Verdecia’s testimony he remembered reading and telling another officer Song and Kim argued about returning to Korea before the stabbing. Song insisted they did not argue about returning to Korea in keeping with her defense of accident. Verdecia’s testimony does not provide substantial evidence to support a voluntary manslaughter instruction. “‘“A provocation of slight and trifling character, such as words of reproach, however grievous they may be, or gestures, or an assault, or even a blow, is not recognized as sufficient to arouse, in a reasonable man, such passion as reduces an unlawful killing with a deadly weapon to manslaughter.”’ [Citation.]” (Najera, supra, 138 Cal.App.4th at p. 226.) Because we conclude there was insufficient evidence to support a voluntary manslaughter instruction, we need not address Song’s claim she was prejudiced by the lack of such instruction. Therefore, the trial court properly refused Song’s request to instruct the jury on voluntary manslaughter.
DISPOSITION
The judgment is affirmed.
WE CONCUR: MOORE, J. IKOLA, J.