Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County No. MF49947 Brian L. McCabe, Judge.
Robert Derham, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gomes, J.
After Louis Clifton Trimble and his girlfriend smoked crack cocaine together, he pulled out a gun and demanded $80 to get back to Oakland. She said she had no money. He accused her of having sex with his cousin and shot her four times at close range. A jury found him guilty of attempted murder and attempted robbery. On appeal, he argues prosecutorial misconduct, instructional error, ineffective assistance of counsel, judicial error, and cumulative error. We affirm.
ISSUES ON APPEAL
Trimble argues (1) the prosecutor committed misconduct in argument to the jury, (2) CALCRIM No. 603 improperly suggests that a response to provocation be reasonable, (3) his attorney rendered ineffective assistance of counsel by not requesting an instruction on provocation and the absence of premeditation, (4) the court’s failure to elaborate on the law after the jury requested clarification of premeditation prejudiced him, and (5) reversal of the judgment is imperative since the cumulative impact of individual errors was prejudicial.
FACTUAL BACKGROUND
Early in the morning on November 5, 2008, Trimble stopped by his girlfriend Caydee’s motel room in Merced. During the year or so she had known him, she had smoked crack cocaine with him, slept with him, and, for a month or so, lived in his trailer with him. The last time she had slept with him was about a week before.
At her motel room that morning, Trimble accused Caydee of “messing around” with his cousin Larry. She had never slept with him. “You’ll get what you deserve, ” he said, right in front of the manager, “You’ll get yours, bitch. Watch.” A couple of hours later, he called and told her, “Oh, I’m sorry. I didn’t mean what I said.” Months before, he had told her if she “ever stopped kicking it around” he would kill her. Three or four times in the past, he had argued with her over his cousin Larry.
Early in the evening on November 5, 2008, Caydee and her friends Mark and Anthony stood outside her motel after smoking methamphetamine together. Trimble walked from the street to the motel, headed toward her room, and offered everyone crack cocaine to smoke. After everyone went into her room, he checked to make sure the door was locked, pointed a gun at her, and said, “This is a robbery.” He said he needed $80 to go to Oakland.
Caydee, Mark, and Anthony all said no one had any money. Trimble told her he knew she had money. She said, “I don’t have no money.” He called her a liar, yelled at her again for messing around with his cousin Larry, and shot her four times. With each shot, he moved closer to her. He said, “I’m going to kill you, bitch. I told you I would.” He was right in front of her when he shot her the last time and told her, “You think I’m playing? You’re F-ing with my cousin, bitch.” He said he had one more bullet he was going to put in her head. He pointed the gun at her head and pulled the trigger two or three times, but the gun did not fire.
As Trimble ran to the door, he said, “This is worth seven years.” On his way out, he said, “Just remember the C-dog, ” referring to his moniker. Shot twice in the stomach, once in the shoulder, and once in the leg, Caydee suffered a broken collarbone, a broken shoulder blade, and internal bleeding in her right chest cavity. Airlifted to a hospital in Modesto, she arrived in “very critical” condition due to multiple life-threatening gunshot wounds.
Later that evening, a Merced police officer approached Trimble on the street and asked him his name. He raised his hands in the air and said, “I’m Trimble. I’m the one you’re looking for.” He had gunshot residue on both of his hands.
PROCEDURAL BACKGROUND
On December 23, 2008, the district attorney filed an information that charged Trimble with the commission of attempted willful, deliberate, and premeditated murder (count 1; Pen. Code, §§ 187, subd. (a), 664), attempted robbery in an inhabited dwelling house (count 2; §§ 211, 212.5, subd. (a), 664), and burglary of an inhabited dwelling house (count 3; §§ 459, 460, subd. (a)) on November 5, 2008. The information alleged personal and intentional discharge of a firearm proximately causing great bodily injury (counts 1 & 2; § 12022.53, subd. (d)) and a prior battery with infliction of serious bodily injury as a serious or violent felony or juvenile adjudication within the scope of the three strikes law (counts 1, 2, & 3; §§ 243, subd. (d), 1170.12, subds. (a)-(d), 1192.7, subd. (c)(8)). On October 26, 2009, the court granted the prosecutor’s motion and dismissed the count 3 burglary and the allegation in that count.
Later statutory references are to the Penal Code.
On November 6, 2009, a jury found Trimble guilty as charged and found both firearm allegations true. At a bifurcated trial immediately afterward, the jury found both prior allegations true. On January 25, 2010, the court imposed a term of life with the possibility of parole after 14 years (double the statutory seven-year minimum) on the attempted murder consecutive to a term of 25 years to life on the accompanying firearm enhancement (§§ 187, subd. (a), 189, 664, subd. (a), 3046, subd. (a)(1), 1170.12, subd. (c)(1), 12022.53, subd. (d)) and imposed and stayed an aggravated term of six years (double the statutory three-year term) on the attempted robbery consecutive to a term of 25 years to life on the accompanying firearm enhancement (§§ 211, 213, subd. (a)(1)(B), 654, 664, subd. (a), 1170.12, subd. (c)(1), 12022.53, subd. (d)).
DISCUSSION
1. Jury Argument
Trimble argues that the prosecutor committed misconduct in argument to the jury. The Attorney General argues the contrary.
The crux of Trimble’s argument is that the prosecutor’s bid to persuade the jury that he committed an attempted murder, rather than an attempted voluntary manslaughter, focused on the reasonableness of his response to the provocation. Arguing that “there’s no sudden quarrel or heat of passion, ” the prosecutor urged the jury to “look at how the defendant responded to his belief that Caydee, a prostitute, had had sex with his cousin Larry. That’s what you have to do.”
“And then if you think that’s how an ordinary, average person would react to the situation, then this is the lesser included offense for you people, ” the prosecutor went on. “If you think that his actions were appropriate under that circumstance where you find out that his cousin Larry was sleeping with somebody or cousin Larry was sleeping with Caydee and the appropriate thing is to go get a gun and go to the motel room and rob her and shoot her, then this is the jury instruction that you want. I submit to you that that’s ridiculous.” Trimble’s attorney objected and characterized the prosecutor’s argument as “a misstatement of the law.” The court instructed the jurors “that if what counsel argues conflicts with the Court” they “are to follow what the Court instructs them, ” informed the jurors “they will get a copy of the instructions, ” and overruled the objection.
After characterizing his own comments as “condensed down of what the law says, ” the prosecutor quoted CALCRIM No. 603 (“Attempted Voluntary Manslaughter: Heat of Passion – Lesser Included Offense”) on the jury’s duty, in determining whether the provocation was sufficient, to “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.”
On that record, Trimble argues that “the prosecutor misstated the law.” We disagree. After asking the jury to “look at how the defendant responded to his belief that Caydee, a prostitute, had had sex with his cousin Larry, ” the prosecutor emphasized that Trimble “cannot create his own provocation.” (Italics added.) “Would it be reasonable, ” he asked, “for a man to accuse a woman of sleeping with someone else and then, based on that, go and shoot her and try to kill her just because of some wild speculations that she’s having sex with another man?” (Italics added.) “You must consider, ” he argued, “whether an ordinary person of average disposition would have been provoked and how such a person would react in the same situation.” (Italics added.)
A person kills on sudden quarrel or heat of passion if a provocation that was sufficient to cause an ordinary person of average disposition to act rashly and without deliberation obscured his or her reason. (People v. Breverman (1998) 19 Cal.4th 142, 163 (Breverman).) The primary authority on which Trimble relies, People v. Najera (2006) 138 Cal.App.4th 212, 223 (Najera), applies the rule of law in Breverman and notes, “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 is not relevant to sudden quarrel or heat of passion.” (Id. at p. 223.) Here, the prosecutor argued that Trimble’s wild speculations could not let him create his own provocation since the jury’s responsibility was to “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.” Trimble’s reliance on Najera is misplaced.
The question in a prosecutorial misconduct claim focusing on a prosecutor’s comments to a jury is whether there is a reasonable likelihood that the jury applied or construed any of those comments in an objectionable fashion. (People v. Morales (2001) 25 Cal.4th 34, 44.) The appellate court’s duty is to view those comments in the context of the prosecutor’s argument as a whole. (People v. Lucas (1995) 12 Cal.4th 415, 475.) A prosecutor’s argument is an advocate’s point of view that generally carries less weight with a jury than a court’s instruction, which is a binding and definitive statement of the law. (Boyde v. California (1990) 494 U.S. 370, 384-385.) So an appellate court will not infer lightly a jury drew a damaging inference from a single comment in a prosecutor’s entire exhortation. (Id. at p. 385.) After the prosecutor’s argument, the court instructed the jury, “You must follow the law as I explain it to you, even if you disagree with it. If you believe the attorneys’ comments on the law conflict with my instructions, you must follow my instructions.” (CALCRIM No. 200.) “We presume that jurors understand and follow the court’s instructions.” (People v. Gray (2005) 37 Cal.4th 168, 231 (Gray).) By the applicable standard of review, the record persuades us that the jury did not apply or construe any of the prosecutor’s comments in an objectionable fashion.
2. CALCRIM No. 603
Trimble argues that CALCRIM No. 603 improperly suggests that a response to provocation be reasonable. The Attorney General argues the contrary.
The fundamental problem with CALCRIM No. 603, Trimble argues, is that the instruction “says opposite things at the same time.” He acknowledges the initial focus on the provocative acts of the victim “correctly informs the jury” provocation would have caused a “person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment.” He argues, however, that the instruction errs by stating, “It is not enough that the defendant simply was provoked, ” and by requiring the jury to “consider whether a person of average disposition would have been provoked and how such a person would react in the same situation knowing the same facts.”
Contrary to Trimble’s argument, CALCRIM No. 603 correctly tracks the law of provocation and heat of passion. The factor that distinguishes voluntary manslaughter in the heat of passion from murder is provocation. (People v. Lee (1999) 20 Cal.4th 47, 59.) Just as the provocation must “cause an ordinary person of average disposition to act rashly or without due deliberation and reflection, ” so the cause of the provocation must be either the victim or the conduct in which the defendant reasonably believed the victim was engaged. (Ibid.) The law requires no specific type of provocation. (People v. Lasko (2000) 23 Cal.4th 101, 108.)
Heat of passion arises when passion so disturbs or obscures the defendant’s reason at the time of the killing or attempted killing as to cause the ordinarily reasonable person of average disposition to act rashly, without deliberation and reflection, and from passion rather than from judgment. (People v. Barton (1995) 12 Cal.4th 186, 201.) The passion the provocation causes may be any violent, intense, high-wrought or enthusiastic emotion other than revenge. (Breverman, supra, 19 Cal.4th at p. 163.) The legal requirement of heat of passion has both an objective and a subjective component. (People v. Steele (2002) 27 Cal.4th 1230, 1252.) Just as, objectively, heat of passion must naturally arise in the mind of an ordinarily reasonable person under the given facts and circumstances, so, subjectively, the defendant must actually kill or attempt to kill on heat of passion. (Ibid.) CALCRIM No. 603, rather than saying “opposite things at the same time, ” correctly incorporates both the objective and the subjective components of heat of passion. “We presume that jurors understand and follow the court’s instructions.” (Gray, supra, 37 Cal.4th at p. 231.)
On a challenge for ambiguity, our duty is to view the instruction at issue in the context of the overall charge to the jury, rather than in artificial isolation, to determine whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction. (People v. Mayfield (1997) 14 Cal.4th 668, 777.) Our review of the record satisfies us there is no reasonable likelihood that the jury misunderstood or misapplied CALCRIM No. 603.
Our holding moots the Attorney General’s forfeiture and invited error arguments.
3. Assistance of Counsel
Trimble argues that his attorney rendered ineffective assistance of counsel by not requesting an instruction on provocation and the absence of premeditation. The Attorney General argues the contrary.
Since a court has no sua sponte duty to give a pinpoint instruction like the one Trimble puts at issue, he challenges the absence of that instruction on the ground of ineffective assistance of counsel. (People v. Rogers (2006) 39 Cal.4th 826, 877-878 (Rogers); People v. Middleton (1997) 52 Cal.App.4th 19, 30-33, disapproved on another ground by People v. Gonzalez (2003) 31 Cal.4th 745, 752, fn. 3.) The right to counsel protects the due process right to a fair trial by guaranteeing “access to counsel’s skill and knowledge” and implementing the constitutional entitlement to an “‘ample opportunity to meet the case of the prosecution.’” (Strickland v. Washington (1984) 466 U.S. 668, 684-686 (Strickland).) To establish ineffective assistance, the defendant must show that counsel’s performance both “fell below an objective standard of reasonableness” and prejudiced the defense. (Id. at pp. 687-692; People v. Ledesma (1987) 43 Cal.3d 171, 216-217 (Ledesma).) To establish prejudice, the defendant must show a “reasonable probability” “sufficient to undermine confidence in the outcome” that but for counsel’s performance “the result of the proceeding would have been different.” (Strickland, supra, at pp. 693-694; Ledesma, supra, at pp. 217-218.) A reviewing court can adjudicate an ineffective assistance of counsel claim solely on the issue of prejudice without evaluating counsel’s performance. (Strickland, supra, at p. 697.) We do so here.
Our analysis begins with other instructions on mental state. One was CALCRIM No. 600 (“Attempted Murder”), authorizing the jury to find Trimble guilty of attempted murder only on proof that he “intended to kill” Caydee, and another was CALCRIM No. 601 (“Attempted Murder: Deliberation and Premeditation”), elaborating on deliberation and premeditation: “If you find the defendant guilty of Attempted Murder under Count 1, you must then decide whether the People have proved the additional allegation that the Attempted Murder was done willfully, and with deliberation and premeditation. [¶] The defendant acted willfully if he intended to kill when he acted. The defendant deliberated if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant premeditated if he decided to kill before acting. [¶] The length of time the person spends considering whether to kill does not alone determine whether the attempted killing is deliberate and premeditated.” As the instruction noted, “The test is the extent of the reflection, not the length of time.”
Additionally, the charge to the jury included CALCRIM No. 603 (“Attempted Voluntary Manslaughter: Heat of Passion – Lesser Included Offense”) elaborating on provocation (cf. ante, part 2): “An attempted killing that would otherwise be attempted murder is reduced to Attempted Voluntary Manslaughter if the defendant attempted to kill someone because of a sudden quarrel or in the heat of passion. [¶] The defendant attempted to kill someone because of a sudden quarrel or in the heat of passion if: [¶] 1. The defendant took at least one direct but ineffective step toward killing a person; [¶] 2. The defendant intended to kill that person; [¶] 3. The defendant attempted the killing because he was provoked; [¶] 4. The provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment; [¶] AND [¶] 5. The attempted killing was a rash act done under the influence of intense emotion that obscured the defendant’s reasoning or 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 an attempted murder to attempted 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. The defendant is not allowed to set up his own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether 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 attempted killing for an ordinary person of average disposition to ‘cool off’ and regain his or her clear reasoning and judgment, then the attempted murder is not reduced to attempted voluntary manslaughter on this basis.”
On that record, Trimble suggests CALCRIM No. 522 (“Provocation: Effect on Degree of Murder”) as the instruction his attorney should have requested on provocation and the absence of premeditation: “Provocation may reduce a murder from first degree to second degree and may reduce a murder to manslaughter. The weight and significance of the provocation, if any, are for you to decide. [¶] If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder. Also, consider the provocation in deciding whether the defendant committed murder or manslaughter.” Arguing there was no need for CALCRIM No. 522, the Attorney General notes that the instruction “is primarily concerned with the effect of provocation on the degree of murder” but “could have been modified” to inform the jury that “provocation may reduce an attempted murder to an attempted manslaughter.”
The crux of Trimble’s argument is that although “provocation was the only defense offered” the instructions did not authorize the jury to “consider provocation on the separate premeditation allegation.” The Attorney General argues that the charge to the jury adequately covered provocation and premeditation. We agree. Our Supreme Court has rejected an argument like Trimble’s involving CALJIC instructions analogous to the CALCRIM instructions here (Rogers, supra, 39 Cal.4th at p. 880): “[T]he standard manslaughter instruction is not misleading, because the jury is told that premeditation and deliberation is the factor distinguishing first and second degree murder. Further, the manslaughter instruction does not preclude the defense from arguing that provocation played a role in preventing the defendant from premeditating and deliberating; nor does it preclude the jury from giving weight to any evidence of provocation in determining whether premeditation existed.”
Here, as Trimble argues, his attorney “relied exclusively on the provocation defense at trial, ” as his closing argument to the jury shows. In addition, the jury found true the allegation that the attempted murder he committed “was willful, deliberate and premeditated.” By making that finding, the jury necessarily rejected his defense that provocation negated deliberation and premeditation. The requisite showing of prejudice is lacking since the record shows no reasonable probability that, even if his attorney had requested CALCRIM No. 522, the result of the proceeding would have been different. (Strickland, supra, 466 U.S. at p. 697.) His ineffective assistance of counsel argument is meritless.
4. Jury Request
Trimble argues that the court’s failure to elaborate on the law after the jury requested clarification of premeditation prejudiced him. The Attorney General argues the contrary.
After deliberating for over an hour and a half, the jury sent the court the request, “Clarification on the law: If someone goes to rob someone else and commits a shooting, is the shooting considered premeditated?” The court read the request to both counsel and asked if either had “any objection to stating, ‘Please refer to the jury instructions’?” Both replied, “No.” The court answered the jury’s question as agreed.
Trimble’s opening brief argues the court violated section 1138 by failing to ensure that the jury understood the law. (See People v. Beardslee (1991) 53 Cal.3d 68, 96-97.) The Attorney General argues Trimble forfeited his right to appeal the issue by failing to object. (See People v. Roldan (2005) 35 Cal.4th 646, 729, disapproved on another ground by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 [“When a trial court decides to respond to a jury’s note, counsel’s silence waives any objection under section 1138.”]) With commendable candor, Trimble’s reply brief acknowledges the Attorney General’s response “appears to be correct” but argues, for the first time, his attorney’s silence was ineffective assistance of counsel. To raise an issue for the first time in a reply brief is to waive the issue on appeal. (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3.)
Section 1138 provides: “After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.”
Even so, to obviate possible later litigation of Trimble’s claim of ineffective assistance of counsel, we choose, in the interest of judicial efficiency, to address his argument. (People v. Williams (1998) 61 Cal.App.4th 649, 657, citing, e.g., People v. Marshall (1996) 13 Cal.4th 799, 831.) Again we do so solely on the issue of prejudice without evaluating counsel’s performance. (Strickland, supra, 466 U.S. at p. 697.) The evidence of Trimble’s guilt of attempted willful, deliberate, and premeditated murder was overwhelming. The court adequately instructed the jury on premeditation. The jury asked no other questions about premeditation. To establish prejudice, Trimble must show a “reasonable probability” “sufficient to undermine confidence in the outcome” that but for counsel’s performance “the result of the proceeding would have been different.” (Strickland, supra, at pp. 693-694; Ledesma, supra, 43 Cal.3d at pp. 217-218.) Since the record shows no reasonable probability that, even if the court had elaborated on the law, the result of the proceeding would have been different, the requisite showing of prejudice is lacking. (Strickland, supra, 466 U.S. at p. 697.) His ineffective assistance of counsel argument is meritless.
5. Cumulative Error
Trimble argues that reversal of the judgment is imperative since the cumulative impact of individual errors was prejudicial. The Attorney General argues the contrary. Since Trimble fails to persuade us that any error occurred, his cumulative error argument is meritless. (People v. Heard (2003) 31 Cal.4th 946, 982.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Cornell, Acting P.J., Dawson, J.