Filed 1/25/17
                CERTIFIED FOR PUBLICATION




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                         DIVISION ONE


THE PEOPLE,                              B261130

       Plaintiff and Respondent,         (Los Angeles County
                                         Super. Ct. No. NA094966)
       v.

KEVIN ADONIS FORREST,

       Defendant and Appellant.



      APPEAL from a judgment of the Superior Court of Los
Angeles County. James D. Otto, Judge. Affirmed.
      Carlo Andreani, under appointment by the Court of Appeal,
for Defendant and Appellant.
      Kamala D. Harris, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Victoria B. Wilson, Supervising
Deputy Attorney General, and Chung L. Mar, Deputy Attorney
General, for Plaintiff and Respondent.
               _________________________________
       Kevin Forrest appeals from the judgment entered following
a jury trial in which he was convicted of the first degree murder
of his wife. (Pen. Code,1 § 187, subd. (a).) The jury also found all
firearm and deadly weapon allegations true. (§§ 12022.53, subd.
(d), 12022, subd. (b)(1).) The court imposed an aggregate
sentence of 50 years to life in state prison. Appellant contends
that the prosecutor committed prejudicial misconduct by
misstating the law regarding voluntary intoxication and heat of
passion in closing argument. He further maintains that the trial
court’s incorrect instruction on the mental state required for
voluntary manslaughter constituted prejudicial error and
violated due process. We disagree and affirm.
                   FACTUAL BACKGROUND
      On February 27, 2013, approximately 9:20 p.m., appellant
shot and killed Kathleen, his wife of 19 years. Kathleen was
watching television in the living room of the couple’s home when
appellant fired a single round into her head from a .45-caliber
semiautomatic handgun. The gunshot was “rapidly fatal.”
      After shooting his wife, appellant rolled her body onto a
towel, which he dragged to the bathroom. He placed the body in
the bathtub. Using an eight-inch knife, appellant inflicted 94
sharp force injuries to the head, torso, and upper and lower
extremities of the body. Several of the knife wounds would have
been fatal had Kathleen not died from the gunshot to her head.
The largest of the sharp force injuries was on the abdomen,
consisting of two horizontal cuts connected by a vertical cut in the


      1   Undesignated statutory references are to the Penal Code.




                                 2
shape of an “H,” which created skin flaps that could be opened to
expose the interior of the abdomen. There were also knife
wounds around one leg and down the sides of both legs, as well as
wounds around the neck.2 Appellant left the knife in his wife’s
right eye.
      The next day, February 28, 2013, appellant withdrew
money from the bank and set out in his wife’s Mercedes for
Sheri’s Ranch, a brothel in Pahrump, Nevada. That evening, Nye
County Sheriff Deputy Joseph Marshall pulled appellant over in
Nevada. Appellant had failed to maintain his travel lane and
smelled of alcohol. The deputy found a loaded .45-caliber
semiautomatic handgun, a second loaded magazine for the
firearm, a holster, and bullets on the front passenger seat of the
car. Appellant was transported to a detention facility, where he
was booked as an intoxicated person in possession of a firearm
and spent the night.
      On March 1, 2013, appellant checked into Sheri’s Ranch,
where he partied with several prostitutes over the next two
nights. He told one prostitute that his wife had been killed in a
car accident the week before. He also shared his interest in
hunting, telling the prostitute that he had hunted deer and elk
and fished salmon in Alaska.



      2  A Long Beach police sergeant and experienced hunter
testified as an expert witness that the wounds shown in a
photograph of the victim’s abdomen were consistent with a
hunter’s act of gutting an animal. In addition, the wounds to the
victim’s legs were consistent with an attempt to sever the legs as
a hunter might do with large game such as deer or elk.




                                3
       Appellant left Sheri’s Ranch sometime on Sunday, March 3,
2013. He drank the entire way back to California, consuming a
12-pack of beer before stopping at a grocery store on the way to
purchase another 12-pack of beer and a fifth of Seagrams 7
Canadian whiskey, of which he drank half to two thirds that
evening.
       On March 3, 2013, at 7:22 p.m., appellant called 9-1-1 and
reported that he had killed his wife. The operator asked for the
location of his wife’s body, and appellant replied, “She is in my
bathtub.” In response to further questions, appellant stated that
he “shot her four days ago, Wednesday,” in his house, but the
weapon had been confiscated in Nevada.
       The same evening at 10:28 p.m. Eastern time (7:28 p.m.
Pacific time), Kathleen’s cousin received a text message from
appellant on Kathleen’s cell phone. The message said, “ ‘Kathy is
dead. Call the family. I do not recommend a viewing. I
mutilated her corpse a lot.’ ”
       When Long Beach police officers responded to the 9-1-1
dispatch at appellant’s home, appellant exited the house and
walked toward the officers while smoking a cigarette. An officer
asked appellant if there was anyone else in the house. Appellant
responded, “ ‘My wife.’ ” He paused and added, “ ‘She is quite
dead.’ ” His demeanor was calm and relaxed.
       Police arrested appellant and administered a breath
intoxilyzer exam during the booking process. His blood-alcohol
content measured .23 and .22. Police spoke with appellant that




                                4
night for about an hour.3 He was generally responsive to the
detectives’ questions. Appellant described how he had come up
behind his wife and shot her as she was watching television. He
explained that while he kept the loaded magazine in the gun he
had used to kill his wife, he did not keep a round in the chamber
and had to rack it before he could fire the gun. He told police he
had used only one knife and admitted taking two photos of his
wife in the bathtub. Appellant stated that he had wanted a
divorce. The detective asked appellant if he wanted to start a
new life, but his wife would not allow it, and appellant responded,
“Pretty much.”
       When police entered the home, they found Kathleen’s body
in a bathtub. Duct tape covered the seams of the front door to the
house. Police recovered a .45-caliber bullet from the wall in the
living room and a spent .45-caliber cartridge from the pocket of a
pair of sweatpants found on the floor outside the bathroom door.
Subsequent ballistics testing revealed the bullet and cartridge
case had been fired from the .45-caliber pistol confiscated from
appellant in Nevada.
       Police found two laptop computers in the living room.
Forensic analysis showed “Kevin” to be the only user name on
both laptops. On one of the computers, police found 446
downloaded images pertaining to celebrity deaths. On February
23, 2013, the user had spent 39 minutes conducting searches for
images related to celebrity death or crime scenes. Two of the


      3 At trial appellant claimed not to remember what he said
to police that night, although he acknowledged his voice on the
recording of the interview.




                                5
downloaded images showed what appeared to be a dead woman’s
body in a bathtub.4
        A digital camera found on the kitchen counter contained
three photos of Kathleen’s corpse in the bathtub. Police also
found a letter written in appellant’s hand and a calendar in the
kitchen with appellant’s writing on it.
        The letter5 stated that appellant killed his wife at 9:20 p.m.
with a .45-caliber bullet to the back of the head. He waited
several minutes before he moved her to the floor and then
“ ‘rolled her onto a towel and drug [sic] her in the bathroom.’ ”
Appellant wrote, “ ‘I noticed blood coming from her ear—then I
stabbed her over and over and over until I was sure she was
dead.’ ” The letter continued, “ ‘Now—cold water is running over
her body to stop the smell.’ ” Appellant also wrote, “ ‘11:25. No
rigor mortis with cold shower on it’ ”; “ ‘It smells like a wet, dead
chicken’ ”; “ ‘Maybe I should die too—not yet—he, he, he’ ”;
“ ‘12:30 a.m.—I stopped the cold water treatment. Still very
flexible. I picked her eyeballs out of their sockets in her head.
With a small shrimp fork found on the counter. Actually they are
tasty with a little soy’ ”; “ ‘What to do w/ the body?’ ” “ ‘I think I’ll



      4 At trial, appellant explained that he and his wife had
searched the Internet about celebrity deaths together after
watching a television show on the subject. He denied that he had
specifically searched for images of a dead woman in a bathtub
and asserted that he had viewed only a couple of the downloaded
pictures.
      5  Appellant testified that he did not remember writing the
letter, but admitted it was in his handwriting.




                                   6
have some whyskey [sic] and sleep on it’ ”; “ ‘Maybe tomorrow
[will] bring a new day.’ ”
       The letter went on: “ ‘12:46—decided to totally gut wife—
keep smell down, much like big game. Used kitchen scizzors [sic]
to do the nasty’ ”; “ ‘Gut her—quite nastier than I thought. When
you look at her—she seems calm except all of her guts have been
scrambled—Yeah, Kev!!’ ” “ ‘1:00 a.m.—after totally scrambling
guts—put the cold water on again. Noticed I stabbed myself in
the right hand—must fix.’ ” “ ‘Smell is BAADD [sic]’ ”; “ ‘2 a.m.—
gonna go for a ride’ ”; “ ‘2:30 a.m.—came back to sleep a little.
Smell = BAADD [sic] ”; “ ‘12:00 p.m. Thur Slept well in our bed.
She slept in the bathtub of course.’ ” The letter concluded,
“ ‘Withdrawing money and going to Vegas. Not really Vegas. Got
my jollies off at Sheri’s Ranch.’ ”
       Appellant testified on his own behalf. He served on active
duty in the United States Coast Guard for seventeen and a half
years and in the Coast Guard Reserves as a commissioned officer
for four and a half years.6 Kathleen was never happy with her
husband’s performance in the military and expressed her anger
over his failure to advance quickly enough by constantly
belittling and humiliating him. She was “relentless” in calling
him names. In 2007, the couple stopped having sexual relations.
       Beginning in May 2012, appellant and Kathleen separated
three times due to arguments over finances and because of


      6 After leaving active military service, appellant worked for
the Coast Guard in a civilian position, but he was forced to resign
because of improper use of a government credit card and the theft
of petty cash.




                                7
Kathleen’s constant berating. After each reconciliation, Kathleen
quickly resumed demeaning appellant on a daily basis, telling
him, “You’re no good,” “I wish I wasn’t married to a fucker like
you,” and, “I wish I wasn’t married to a piece of shit like you.”
She regularly called him names such as “ ‘fucker,’ ” “ ‘fat fuck,’ ”
“ ‘fuckhead,’ ” “ ‘good for nothing,’ ” and “imbecile.” These
remarks made appellant feel worthless and unloved.
       Appellant spent Christmas 2012 with his mother in
Virginia. After Christmas, appellant returned to California with
the .45-caliber handgun and its holster and ammunition, along
with several other guns he had retrieved from his mother’s house.
       Throughout February 2013, the couple argued several
times a week, and Kathleen continued to berate appellant and
call him names. Appellant wanted to show Kathleen how much
she was hurting him, and on January 14, 20, 22 through 31, and
February 22 through 28, he recorded the names she called him
each day on the kitchen calendar where she would notice. On the
days after he killed his wife, appellant wrote: “ ‘Good luck,
fucker’ ”; “ ‘A-h-e-m. Fucker no more, my dear’ ”; “ ‘Enjoy your
bath’ ”; and “ ‘Had enough.’ ”
       The night he shot his wife, appellant had planned to
celebrate a possible employment opportunity. But when he gave
Kathleen the good news, she responded by ridiculing him and
disparaging the job he hoped to get. Kathleen continued to
criticize him, calling him a “worthless piece of shit,” as appellant
cooked dinner. Kathleen proceeded to yell at him as she ate the
dinner he had prepared. Appellant was drinking heavily.
Finally, appellant went into the bathroom and cried.
       Appellant came out of the bathroom and walked down the
hall to the bedroom, where he grabbed the loaded .45-caliber gun




                                 8
off the dresser. He removed the gun from its holster and walked
down the hallway to the kitchen. Standing in the doorway
between the kitchen and living room, appellant fired the gun.
The last thing he heard his wife say before she died was, “ ‘You’re
no good. You’re nothing but a worthless piece of—.’ ”
                          DISCUSSION
 A.    Prosecutorial Misconduct
       Appellant contends the prosecutor committed prejudicial
misconduct by misstating the law regarding voluntary
intoxication and heat of passion in closing argument to the jury.
Appellant, however, failed to object or request an admonition
regarding any of the statements he claims amounted to
misconduct, and thus forfeited the issue on appeal. In any event,
appellant’s claim fails on the merits because any misstatement of
the law was undeniably harmless.
       1. Appellant forfeited any claim of
          prosecutorial misconduct by failing to object.
       To preserve a misconduct claim for review on appeal, “ ‘a
defendant must make a timely and specific objection and ask the
trial court to admonish the jury to disregard the improper
argument.’ ” (People v. Linton (2013) 56 Cal.4th 1146, 1205;
People v. Thomas (2012) 54 Cal.4th 908, 937.) The underlying
purpose of this requirement is to “ ‘ “encourage a defendant to
bring errors to the attention of the trial court, so that they may
be corrected or avoided and a fair trial had . . . .” ’ ” (People v.
Saunders (1993) 5 Cal.4th 580, 590.) “The objection requirement
is necessary in criminal cases because a ‘contrary rule would
deprive the People of the opportunity to cure the defect at trial
and would “permit the defendant to gamble on an acquittal at his
trial secure in the knowledge that a conviction would be reversed




                                 9
on appeal.” ’ ” (People v. Partida (2005) 37 Cal.4th 428, 434.)
Indeed, it would be “ ‘ “unfair to the trial judge and to the adverse
party to take advantage of an error on appeal when it could easily
have been corrected at the trial.” ’ ” (People v. Saunders, supra,
5 Cal.4th at p. 590.)
       Here, appellant addresses the absence of any objection or
request for a curative admonition by asserting that an
admonition in this case would not have cured the harm, citing
People v. Alvarado (2006) 141 Cal.App.4th 1577, 1585 (Alvarado).
But appellant fails to make any showing that an objection and
admonition would have been futile, and his reliance on Alvarado
is misplaced. In Alvarado, this court found the prosecutor’s
improper vouching for the integrity of her office and the victim,
her argument that defendant was the perpetrator because he was
the person charged, and other improper statements in rebuttal
constituted prejudicial misconduct. Given the overall weakness of
the prosecution’s case, we concluded that “the challenged
comments were so prejudicial that an admonition would not have
dispelled the harm.” (Id. at pp. 1585–1586.)
       The same cannot be said for the instant case. Here, the
trial court properly instructed the jury on the principles of
voluntary intoxication and heat of passion, and, as we discuss
below, any misstatements of the law by the prosecutor were
harmless. We therefore conclude that appellant forfeited his
claim of prosecutorial misconduct by failing to object or seek an
admonition to the jury.7


      7 Appellant’s attempt to avoid forfeiture of his claim by
asserting that defense counsel’s failure to object to the




                                 10
      2. Any misstatement of the law regarding the jury’s
         consideration of evidence of voluntary intoxication
         was harmless.
      Appellant contends the prosecutor misstated the law by
informing the jury that it could consider the effect of voluntary
intoxication on appellant’s capacity to premeditate, deliberate,
and harbor express malice.8 Since evidence of voluntary


prosecutor’s argument amounted to ineffective assistance of
counsel fails for the same reason. (See People v. Centeno (2014)
60 Cal.4th 659, 674; People v. Anzalone (2006) 141 Cal.App.4th
380, 393; Strickland v. Washington (1984) 466 U.S. 668, 687–688,
694.) “Ineffective assistance of counsel under the Sixth
Amendment entails deficient performance under an objective
standard of professional reasonableness and prejudice under a
similarly objective standard of a reasonable probability of a more
favorable outcome in the absence of the deficient performance.”
(People v. Cole (2004) 33 Cal.4th 1158, 1202, fn. 11.) Because we
conclude that any misconduct by the prosecutor was harmless,
appellant cannot meet his burden of showing a reasonable
probability of a different outcome had defense counsel made a
timely objection, and his claim of ineffective assistance of counsel
fails.
      8   Specifically, the prosecutor argued on rebuttal: “The only
issue with alcohol is was he able to have a goal and think about
how to obtain that goal or did alcohol stop him from being able to
do that. [¶] Was he unable to form the intent to kill? [¶] That’s
the only thing that alcohol goes to. [¶] . . . [¶] You can consider
[voluntary intoxication] as to specific intent and premeditation
during deliberation; that’s it. [¶] And by ‘consider,’ it doesn’t
mean, oh, he drank a whole bunch of alcohol so the alcohol
caused him to kill. No. That’s not what that is talking about. [¶]
. . . [¶] But the question is: Did alcohol stop the defendant from




                                11
intoxication was admissible solely on the issue of whether he
actually formed the requisite intent, appellant asserts that the
misstatement substantially lightened the prosecutor’s burden of
proof on the issue of intent. Not so.
       The worst that can be said about the prosecution’s
argument in this regard is that its fleeting reference to the
defendant’s ability to form the intent to kill was somewhat
misleading. But the prosecutor’s argument appropriately
emphasized the evidence showing that despite his voluntary
intoxication appellant actually had the requisite mental state for
first degree murder. The prosecutor thus properly argued that
“we know for sure that [appellant] formed the intent to kill” based
on his choice of a loaded gun, the act of shooting his wife in the
head, and his use of a knife to stab her in the chest. (Italics
added.) The prosecutor further argued that appellant’s actions
together with the letter he wrote chronicling the details of the
killing and mutilation demonstrated “that he had the intent to
kill. [¶] In fact, when he thought that she might still be alive, he
made sure she [was] dead.” (Italics added.)
       Even if the remarks concerning voluntary intoxication
amounted to a misstatement of the law, the error was harmless.
The trial court fully and correctly instructed the jury on the
significance of voluntary intoxication, stating that the jury could
consider evidence of voluntary intoxication “only in a limited

being able to form intent to kill or premeditation and
deliberation? Did it stop him from being able to be goal-oriented?
[¶] So it’s not was he over the legal limit for driving? There are
functioning alcoholics. [¶] The issue is: Was he capable to form
that intent?” (Italics added.)




                                12
way,” to decide “whether the defendant acted with an intent to
kill or the defendant acted with deliberation and premeditation,”
and the jury “may not consider evidence of voluntary intoxication
for any other purpose.” The court also instructed that the jury
must abide by the court’s instructions if any of the attorneys’
comments conflicted with the jury instructions given. (CALCRIM
No. 200.) In the absence of any evidence of confusion on the part
of the jury, “[j]urors are presumed able to understand and
correlate instructions and are further presumed to have followed
the court’s instructions.” (People v. Sanchez (2001) 26 Cal.4th
834, 852; People v. Osband (1996) 13 Cal.4th 622, 717 [“ ‘[w]e
presume that jurors treat the court’s instructions as a statement
of the law by a judge, and the prosecutor’s comments as words
spoken by an advocate in an attempt to persuade’ ”].)
       Finally, given the letter appellant wrote describing his
actions, the evidence supporting a finding that appellant had the
requisite mental state for first degree murder was overwhelming,
whereas the evidence of appellant’s intoxication at the time of the
killingconsisting of his own testimony that he was drinking
that night and the presence of empty containers of alcohol around
the housewas extremely weak. Given this state of the
evidence, we do not find any diminution of the prosecution’s
burden of proof on the issue of appellant’s intent, and we deem
harmless any misstatement of law by the prosecutor regarding
voluntary intoxication.
       3. Any misstatement of law regarding heat of passion
          does not warrant reversal.
       Appellant contends the prosecutor misstated the law in
rebuttal by asserting that in order to reduce the killing from
murder and convict of voluntary manslaughter based on heat of




                                13
passion, the jury was required to find that a reasonable person
would have fired a loaded gun at the victim’s head. However, we
conclude that even if the prosecutor’s argument constituted a
misstatement of the law, it did not amount to a violation of due
process, and any error was harmless.
       In People v. Beltran (2013) 56 Cal.4th 935 (Beltran), our
Supreme Court explained the legal standard of provocation,
holding that to adopt “a standard requiring such provocation that
the ordinary person of average disposition would be moved to kill
focuses on the wrong thing. The proper focus is placed on the
defendant’s state of mind, not on his particular act. To be
adequate, the provocation must be one that would cause an
emotion so intense that an ordinary person would simply react,
without reflection. . . . [P]rovocation is not evaluated by whether
the average person would act in a certain way: to kill. Instead,
the question is whether the average person would react in a
certain way: with his reason and judgment obscured.” (Beltran,
at p. 949.)
       Here, the prosecutor argued that appellant did not kill his
wife in the heat of passion:
       “Heat of passion means you killed someone because of a
sudden quarrel or in heat of passion due to being provoked. [¶]
. . . The provocation would have caused a person of average
disposition to act rashly and without due deliberation. . . . [¶]
It’s not enough that the defendant was simply provoked. The
defendant is not allowed to set up his own standard of conduct.
[¶] In deciding whether the conduct is sufficient, consider
whether a person of average disposition in the same situation
and knowing the facts would have reacted from passion rather
than judgment. [¶] So it’s not the defendant. It’s an average




                                14
person would have done the same thing. [¶] First of all, was it
sudden? No. He says that the victim has belittled him,
questioned his choice of jobs, name-called him, gave him little sex
since 2004. [¶] In fact, on cross-examination, he admitted same
old, same old that day. Nothing new. [¶] She had said to him in
the past, if you believe him, his job choice wasn’t good enough.
He didn’t kill her back then. [¶] She has called him names
before, if you believe him. Didn’t kill her. [¶] There’s nothing
different about this day, if you believe what he says. [¶] Is it
what a reasonable person would have done? He can’t set his own
standards. [¶] Six-foot man that weighs 100 more pounds than
the 5-1 female. He is younger and stronger. What would a
reasonable person do? Would a reasonable person leave? Kick
her out? Cover her mouth? Get her attention? Fire a warning
shot? [¶] Or grab a loaded gun, rack it, walk up behind her, aim
at her head and pull the trigger? [¶] You have to find that this is
what a reasonable person would do to find manslaughter in this
case, based on his statement alone.” (Italics added.)
       The prosecutor’s remarks incorrectly informed the jury that
provocation is sufficient to reduce a murder to manslaughter only
if “a reasonable person would have done” what appellant did, that
is, shoot his wife in the head. Although such remarks amount to
a misstatement of the legal standard regarding provocation
under Beltran, supra, 56 Cal.4th 935, we nevertheless find that
the statements do not require reversal in this case.
       A prosecutor’s misconduct constitutes a federal
constitutional violation “ ‘ “ ‘when it comprises a pattern of
conduct “so egregious that it infects the trial with such unfairness
as to make the conviction a denial of due process.” ’ ” ’ ” (People v.
Hill (1998) 17 Cal.4th 800, 819; People v. Thomas, supra,




                                 15
54 Cal.4th at p. 937.) Conduct by a prosecutor is misconduct
under state law “ ‘ “only if it involves the use of deceptive or
reprehensible methods to attempt to persuade either the trial
court or the jury.” ’ ” (People v. Linton, supra, 56 Cal.4th at
p. 1205; People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 305;
Hill, supra, 17 Cal.4th at p. 819.) In this regard, “What is crucial
to a claim of prosecutorial misconduct is not the good faith vel
non of the prosecutor, but the potential injury to the defendant.
[Citation.] When . . . the claim focuses on comments made by the
prosecutor before the jury, a court must determine at the
threshold how the remarks would, or could, have been understood
by a reasonable juror. [Citations.]” (People v. Benson (1990)
52 Cal.3d 754, 793.) The standard is an objective one. (People v.
Berryman (1993) 6 Cal.4th 1048, 1072.) To determine whether
there is prosecutorial misconduct under state law, “ ‘ “ ‘the
question is whether there is a reasonable likelihood that the jury
construed or applied any of the complained-of remarks in an
objectionable fashion.’ ” ’ ” (People v. Linton, supra, 56 Cal.4th at
p. 1205; People v. Morales (2001) 25 Cal.4th 34, 44.)
       In Hill, supra, 17 Cal.4th 800, the prosecutor engaged in a
pattern of conduct which included misstating the facts relating to
the evidence and witnesses’ testimony, misstating the law,
making improper references to alleged facts outside the record,
and threatening to charge a witness with perjury if the witness
testified for the defense. The court found the prosecutor’s
conduct to be so egregious that it violated the defendant’s due
process rights under the United States Constitution and thereby
amounted to prosecutorial misconduct requiring reversal.
       No such pattern appears in the instant case, and, unlike
Hill, the prosecutor’s fleeting misstatements of the legal standard




                                 16
regarding provocation were not so egregious as to amount to a
denial of due process. (People v. Thomas, supra, 54 Cal.4th at
p. 937.) As the Supreme Court has explained, “ ‘it is not enough
that the prosecutor’s remarks were undesirable or even
universally condemned.’ [Citation.] The relevant question is
whether the prosecutor’s comments ‘so infected the trial with
unfairness as to make the resulting conviction a denial of due
process.’ ” (Darden v. Wainwright (1986) 477 U.S. 168, 181.)
      The misstatements regarding provocation would also not
require reversal under state law because there appears no
reasonable likelihood that the jury relied on the prosecutor’s
remarks to appellant’s detriment. The trial court instructed the
jury with CALCRIM No. 570, voluntary manslaughter based on
heat of passion.9 And as set forth above, we presume the jury
followed the court’s instructions over any misstatements of law
by the prosecutor. (People v. Sanchez, supra, 26 Cal.4th at
p. 852; People v. Osband, supra, 13 Cal.4th at p. 717.)



      9    The instruction provides in relevant part: “As a result of
the provocation, the defendant acted rashly and under the
influence of intense emotion that obscured his reasoning or
judgment; and [¶] . . . 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. [¶]
. . . [¶] It is not enough that the defendant simply was provoked.
The defendant is not allowed to set up his own standard of
conduct. . . . In deciding whether the provocation was sufficient,
consider whether a person of average disposition, in the same
situation and knowing the same facts, would have reacted from
passion rather than from judgment.”




                                 17
       Finally, the prosecutor’s misstatements of law regarding
provocation were undeniably harmless. In returning a verdict of
first degree murder, the jury expressly found that appellant
premeditated and deliberated the killing of his wife. And the
evidence strongly supported the jury’s conclusion. But such a
“state of mind, involving planning and deliberate action, is
manifestly inconsistent with having acted under the heat of
passioneven if that state of mind was achieved after a
considerable period of provocatory conductand clearly
demonstrates that defendant was not prejudiced” by any
misstatements of law by the prosecutor. (People v. Wharton
(1991) 53 Cal.3d 522, 572.)
  B. Instructional Error
       The trial court instructed the jury: “The following crime
and allegations require general criminal intent: voluntary
manslaughter.” Appellant contends the trial court prejudicially
erred in instructing the jury that voluntary manslaughter
required only general criminal intent, and the error violated
appellant’s constitutional right to due process. We disagree.
       A conviction for voluntary manslaughter requires that the
defendant acted either with an intent to kill or with conscious
disregard for life (i.e., the mental state ordinarily sufficient to
constitute malice aforethought). (People v. Bryant (2013)
56 Cal.4th 959, 970.) Citing People v. Whitfield (1994) 7 Cal.4th
437, 450 (Whitfield) (superseded by statute on another point as
stated in People v. Timms (2007) 151 Cal.App.4th 1292, 1297),
appellant asserts the instruction was error because voluntary
manslaughter is “a specific intent or mental state offense that




                                18
required a specific intent to kill or a mental state of conscious
disregard for life.”10
      Even assuming the trial court’s characterization of
voluntary manslaughter as a general intent crime was wrong, the
remainder of the court’s instructional charge correctly identified
the necessary elements of first and second degree murder and
voluntary manslaughter, as well as the requisite mental state for
voluntary manslaughter. In such circumstances, “[w]e must
consider whether it is reasonably likely that the trial court’s
instructions caused the jury to misapply the law. [Citations.]
‘[T]he correctness of jury instructions is to be determined from
the entire charge of the court, not from a consideration of parts of
an instruction or from a particular instruction.’ ” (People v.
Carrington (2009) 47 Cal.4th 145, 192; People v. Solomon (2010)
49 Cal.4th 792, 822.)
      Here, the court instructed that in order to find appellant
guilty of murder, the People must prove that, when appellant
acted, “he had a state of mind called malice aforethought.” The
instruction explained: “There are two kinds of malice
aforethought, express malice and implied malice. . . . [¶] The
defendant acted with express malice if he unlawfully intended to


      10  Whitfield involved admission of evidence of voluntary
intoxication on the issue of whether the defendant formed the
mental state of implied malice in a prosecution for second degree
murder. The Supreme Court declared that, while implied malice
does not fall literally within the description of general or specific
intent, it is “closely akin” to specific intent, “which requires proof
that the defendant acted with a specific and particularly culpable
mental state.” (7 Cal.4th at p. 450.)




                                  19
kill,” and he “acted with implied malice if . . . [¶] . . . [¶] [h]e
deliberately acted with conscious disregard for human life.”
(CALCRIM No. 520.)
        The court further instructed: “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 completing the acts that caused death.” The instruction
continued, “The People have the burden of proving beyond a
reasonable doubt that the killing was first degree murder rather
than a lesser crime.” (CALCRIM No. 521.)
        The jury was also instructed that “[p]rovocation may reduce
a murder from first degree to second degree and may reduce a
murder to manslaughter” (CALCRIM No. 522), and that “[a]
killing that would otherwise be murder is reduced to voluntary
manslaughter if the defendant killed someone because of a
sudden quarrel or in the heat of passion. [¶] . . . [¶] The People
have 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 the defendant not guilty of murder.” (CALCRIM No. 570.)
        Viewing the instructions as a whole, it is clear the jury was
properly instructed on the requisite mental state for voluntary
manslaughter. Moreover, pursuant to the court’s instructions,
the jury could not convict appellant of first degree murder
without finding that he had an express intent to kill and that at
the time of the killing he was not acting under the influence of a




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sudden quarrel or heat of passion. Thus, even assuming the trial
court’s classification of voluntary manslaughter as a general
intent crime was misleading, the characterization was irrelevant
to the issues of whether he acted willfully, deliberately and with
premeditation. Accordingly, there appears no likelihood that the
trial court’s instructions caused the jury to misapply the law in
this case (People v. Carrington, supra, 47 Cal.4th at p. 192), and
any error in the instructions which characterized the mental
state for voluntary manslaughter as one of general intent must
be deemed harmless beyond a reasonable doubt. (Chapman v.
California (1967) 386 U.S. 18, 36.)
                         DISPOSITION
      The judgment is affirmed.
      CERTIFIED FOR PUBLICATION.


                                          LUI, J.
We concur:


      ROTHSCHILD, P. J.


      CHANEY, J.




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