Filed 9/25/14 P. v. Shackelford CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H038811
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1199993)

         v.

DAVID J. SHACKELFORD,

         Defendant and Appellant.


                                           I.        INTRODUCTION
         A jury convicted defendant David J. Shackelford of first degree murder (Pen.
Code, § 187, subd. (a)1) and found true the allegation that he personally used a deadly
weapon (§ 12022, subd. (b)(1)). The trial court sentenced defendant to a term of 25 years
to life for the murder, with a consecutive one year term for the deadly weapon allegation.
         On appeal, defendant contends: (1) his conviction must be reduced to second
degree murder because there was no substantial evidence of premeditation and
deliberation; (2) the prosecutor committed misconduct by misstating the reasonable doubt
standard; (3) trial counsel was ineffective for failing to request CALCRIM No. 522,
which would have told the jury that provocation may reduce a murder from first degree to
second degree; (4) the trial court erred by telling the jury, pursuant to CALCRIM


         1
             All further statutory references are to the Penal Code unless otherwise indicated.
No. 521, that defendant deliberated the murder if he decided to kill before completing the
acts that caused the victim’s death; (5) trial counsel was ineffective for failing to object
when the prosecutor argued that defendant premeditated the murder after stabbing the
victim; (6) the trial court erred by allowing the prosecutor to introduce evidence that
defendant hit someone with a baseball bat when he was a teenager; (7) trial counsel was
ineffective for asking defendant questions that opened the door to introduction of the
baseball bat incident, and for failing to request a limiting instruction regarding the
baseball bat incident; and (8) there was cumulative error. We will affirm the judgment.

                                  II.    BACKGROUND
       Defendant was convicted of murdering his girlfriend, Melanie Dunn, by stabbing
her in the neck with a knife. The incident occurred in the early morning hours of
February 10, 2011, in the home where Melanie lived with her family.2 Defendant
initially claimed that Melanie had stabbed herself, but at trial he claimed her death was
accidental.
       A.     Testimony from the Dunn Family
       Defendant had been living with the Dunn family for a month or two prior to
Melanie’s death. Melanie worked as a waitress at the Clift Hotel in San Francisco.
Defendant worked infrequently and had no car. About two weeks before her death,
Melanie stated that she had “had enough” of paying for everything for defendant and of
being the responsible one in the relationship. Melanie said defendant was “lazy,” and she
wanted defendant to move out. However, she thought defendant would kill her or kill
himself if she separated from him.
       Melanie left for work at about 5 p.m. on February 9, 2011. About an hour earlier,
Melanie had slammed her bedroom door upon exiting, leaving defendant inside the room.


       2
       As several members of the Dunn family testified at trial, we will refer to each of
them by their first names, for clarity.

                                              2
       Melanie’s brother, Jonathan Dunn, was home from college at the time of
Melanie’s death. On the night of February 9, 2011, Jonathan fell asleep on the living
room couch, which abutted the wall of Melanie’s bedroom. He heard Melanie come
home at about 4:00 a.m. About an hour later, Jonathan heard a knocking sound or
“thumps” coming from Melanie’s room. It sounded like something was hitting the wall
of her bedroom. He heard five to 10 thumps, but he did not hear any screaming, yelling,
or arguing.
       Jonathan tried to open Melanie’s bedroom door, but it was locked. He knocked
and called out Melanie’s name, but there was no answer, although he heard more
banging. Jonathan alerted his father, Kenneth Dunn, who had also heard a banging sound
and had woken up.
       Jonathan or Kenneth forced the bedroom door open. Inside the bedroom, Melanie
and defendant were lying on the bed on their sides, facing the door. Defendant was
behind Melanie. Melanie’s eyes were open but rolling back in her head. Her face was
full of blood, she had blood coming out of her nose and mouth, and she was gargling.
Defendant was not rendering any medical assistance to Melanie.
       Jonathan and Kenneth began attacking defendant, who stated, “You don’t
understand.” After they pulled defendant away from Melanie, Jonathan noticed that
Melanie had a knife in her neck and told Kenneth it was “bad.” Kenneth told defendant
to get out of the room, sat Melanie up in bed, removed the knife from Melanie’s neck,
then put pressure on the wound with a towel. Kenneth told his wife, Regina Dunn, to go
get his gun, but she called 9-1-1 instead.
       While Regina was on the phone with the 9-1-1 dispatcher, defendant began to
leave the house. Regina asked where he was going, and defendant said, “to the store.”
Regina told defendant to get back inside, and he did, briefly, but then he ran out.
       Jonathan called 9-1-1 also. He told the dispatcher that he thought Melanie stabbed
herself by accident, but at trial he explained he had been confused and in denial. He did

                                             3
not want to believe defendant would do something like that to Melanie. Defendant was
in the room when Jonathan told the 9-1-1 dispatcher that he thought Melanie had stabbed
herself.
       Melanie had never told Jonathan or Kenneth that she wanted to hurt herself. She
had not mentioned that she felt unsafe in the neighborhood or that she kept any knives in
her bedroom. At times, Melanie had mentioned not being happy with her life, but she
had not complained about being depressed. Two years before her death, on her 25th
birthday, Melanie had gotten emotional after being up all night after work. Melanie
would say that she believed suicide was “a copout.”
       Melanie had been close with her sister, Dawn McMahan. They communicated and
saw each other frequently. Melanie had been very happy the last time McMahan saw her,
which was on February 4, 2011—six days before Melanie’s death. About two weeks
before her death, Melanie told McMahan that she wanted defendant to move out. She
had realized defendant was not right for her and was tired of taking care of him. She had
also rekindled a relationship with an ex-boyfriend.
       B.    Investigation
       An officer arrived at the Dunn residence at 5:25 a.m. Melanie was non-
responsive, she had “lots of blood” on her neck and body, and bubbles were coming out
of her mouth. There was a “radiating bloodstain” on the wall above the head of her bed
and a “swipe stain” on the wall along her bedside. Melanie was taken to the hospital,
where she was pronounced dead at 5:51 a.m.
       Other officers were advised to be on the lookout for defendant and located him
walking away from the Dunn residence. Defendant had blood all over him. He did not
tell the officers that Melanie needed help, but he asked, “what happened” after he was
handcuffed. Defendant did not have any apparent injuries, but when he was
photographed that same morning, police observed two cuts on his left upper arm and
scratches on his neck. The cuts on defendant’s arm appeared to be fresh.

                                            4
      An officer collected the knife from Melanie’s bedroom. The knife, which had an
eight-inch blade, matched a set of knives in the kitchen. The knife had been extremely
sharp, and Kenneth had used it to trim meat the weekend before Melanie’s death. Only
Melanie’s DNA was found on the knife, but it was possible that defendant’s DNA was
“drown[ed] out” because the knife contained a high level of Melanie’s blood.
      A second knife was found between the mattress and box spring of Melanie’s bed.
Kenneth had previously “retired” that knife. DNA from three individuals was found on
the knife. Melanie was the major contributor. Defendant could not be included or
excluded, but it was 980,000 times more likely that the DNA was from Melanie,
defendant, and a third party than from Melanie and two unknown individuals.
      At the time of her death, Melanie had been wearing a long-sleeved shirt and a tank
top. The long-sleeved shirt had two holes in the collar area, and the tank top had two
holes in the front abdominal area and smaller holes on the back side.
      Fingernail clippings from Melanie were tested for DNA. Defendant was a
possible contributor to the DNA found under her left fingernails; the probability was one
in 4.4 billion in the African American population.
      Dr. Michelle Jorden performed an autopsy. Melanie was five feet four inches tall
and 128 pounds. The stab wound in Melanie’s neck was one inch long, with diagonal
superficial wounds emanating from the main wound. The superficial wounds indicated
the knife had been dragged along the surface of Melanie’s neck before or after the knife
entered. These were not “hesitation marks,” i.e., nonfatal wounds often inflicted by
persons committing suicide.
      The knife had gone through Melanie’s skin, esophagus, cartilage, vertebrae, and
muscle. There were two exit wounds at the back of Melanie’s neck. This indicated that
the knife had been partially withdrawn, then pushed back in. The angles of the two exit
wounds indicated that the knife had been twisted before the second push or Melanie’s
head had been moved.

                                            5
       Dr. Jorden opined that Melanie’s death was a homicide, not a suicide or an
accidental death. She based her opinion on the location of the wound, the course of the
wound, the characteristics of the wound, the holes in Melanie’s clothing, and information
provided by the police. It is rare to see a suicide by stabbing, and people who do stab
themselves generally do so in the chest or abdomen, not the neck. People who do cut
their own necks usually inflict long wounds, not deep ones, and there are commonly
hesitation marks. The upward angle of the wound was very unusual for a suicide, as well
as difficult to self-inflict. It would also have been difficult for someone to plunge a knife
all the way through his or her own neck, then partially remove it, then plunge it back in.
People who stab themselves usually remove their clothing first; they do not stab
themselves through clothing. The holes in Melanie’s clothing were all from exit wounds,
and the holes in the lower part of her tank top indicate it was moved up during a struggle.
       Dr. Jorden opined that defendant placed Melanie in a choke hold before stabbing
her. Melanie had squirmed, causing her shirt to be pushed up. Defendant had stabbed
her while holding her. When the knife exited Melanie’s neck, it cut defendant’s arm.
       C.     Defendant’s Police Interviews
       Defendant was interviewed at the police station.3 He stated that he was six feet
three inches tall and that he weighed 225 pounds. He told the police that he and Melanie
had dated for about a year. He said Melanie had been upset when she came home from
work. After she had come home, defendant had gotten up to get food. He had locked the
bedroom door upon returning. He began watching television, then heard a “wincing
sound” and looked at Melanie. He saw blood and the knife, which was on the bed, and
went to Melanie’s aid. Kenneth and Jonathan then entered the room.




       3
         Defendant’s police interview was videotaped and played for the jury at trial. The
jury received transcripts of the interview.

                                              6
         Defendant claimed Melanie had been sending him suicidal text messages. The
police obtained text messages from defendant’s cell phone and found two messages in
which Melanie referred to wanting to hurt herself or commit suicide.4 One message had
been sent on January 29, 2011. The other message had been sent at about 2:00 a.m. on
February 8, 2011.
         Defendant admitted he had been exchanging text messages of “a sexual nature”
with other women. He denied knowing anything about Melanie having a relationship
with someone else, but there were text messages on his phone in which Melanie stated
that she wanted to spend the night with someone else and that she had been having sex
with two other people. When confronted with these text messages, defendant admitted he
had felt betrayed and that Melanie had wanted him to move out.
         D.     Defense Testimony
         Melanie’s supervisor testified that on the night of February 9, 2011, Melanie had
begun her work shift at 7:00 p.m. She had left work at about 2:30 or 3:00 a.m. on
February 10, 2011. She had filled out her time sheet when she began working, but she
did not fill it out at the end of her shift. It was unusual for Melanie not to complete her
paperwork. Melanie’s supervisor testified that he did not notice anything unusual about
her demeanor that night, but he told the police that Melanie had been distracted and that
she had constantly been on her cell phone.
         Defendant testified and admitted a 2005 conviction of petty theft with a prior, a
2006 conviction of petty theft with a prior, and a 2008 conviction of forgery. Defendant
also admitted he had given false information to a police officer in 2008, although he had
not been charged or convicted of that crime. He was on parole at the time of Melanie’s
death.

         4
        At trial, the jury received a binder containing over 9,000 text messages from
defendant’s cell phone. There were 1,439 text messages from defendant to Melanie and
1,315 text messages from Melanie to defendant.

                                               7
         Defendant described his relationship with Melanie as “pretty exclusive” at the
beginning but an “open relationship” later. He admitted that while in the relationship
with Melanie, he had flirted with other girls, sent flirty texts to other girls, and had sex
with two other women.
         At one point, defendant had sent a picture of his penis to another girl. Melanie had
found out and gotten upset. Defendant told his cousin about Melanie getting upset.
Defendant’s cousin texted him something like, “[S]he should get her ass whooped,” or “I
would have to get someone to beat her ass for that shit,” followed by “L.O.L.,” which
means “laugh out loud.” Defendant had texted back, “Shit. We still might have to get
someone to beat her ass[.] L.O.L.” Defendant had also texted his cousin about Melanie
wanting to get back together with her ex-boyfriend. Defendant wrote, “I want to beat her
ass!!”
         Defendant further described his relationship with Melanie as a “roller coaster.”
He claimed Melanie said she was depressed and had threatened suicide four or five times.
Just a few days before her death, she had texted him about harming herself. She used
marijuana on a daily basis and cocaine once or twice a week.
         Defendant claimed Melanie kept knives in her bedroom because she lived in a
rough neighborhood. She kept one knife under the bed. Defendant had touched both
knives.
         Defendant claimed he was intending to move out on February 15, which was the
date he had been told to leave by. He was hoping to stay together with Melanie after
moving out.
         On the day before Melanie’s death, defendant and Melanie had a fight about him
leaving. Melanie slammed a door before leaving for work. She and defendant texted one
another afterwards, and they spoke on the phone. During the conversation, Melanie said
she wanted to see her ex-boyfriend. Melanie also sent him texts that night, saying she
was going to have sex with someone else, that she was moving on, and that she had

                                               8
already slept with other people. She called defendant an “asshole” and told him, “[J]ust
leave me alone.” At some point that night, defendant changed his Facebook status,
stating that he had “hurt in my heart, ice in my veins.”
       When Melanie came home from work, defendant asked her how her day was.
Melanie was dismissive. They started arguing about him moving out, although not loud
enough for anyone to hear. Melanie seemed intoxicated. At some point during the
argument, Melanie pulled out a knife from under her pillow and began waving it around.
Melanie was enraged, but defendant tried to keep calm. Melanie said she would “rather
be dead than have to deal with our bullshit what we are going through.” Melanie told
defendant she had been “out messing [around] on” him and she told him, “Your mother
should have aborted you.” Melanie continued to wave the knife in front of herself, and
after the last comment, defendant “snapped.” He grabbed Melanie’s hand and pushed it
away from him. It was a hard push, but he did not aim at Melanie and was not intending
to hurt her. He was both protecting himself and pushing the knife away in anger.
Defendant acknowledged that the knife had gone all the way through Melanie’s neck and
that Melanie did not kill herself.
       When defendant saw blood, he got onto the bed to hold Melanie, which caused a
thump. Defendant did not see the knife in her throat, realize the knife had gone through
her neck, or feel that the knife was cutting his arm when he was holding her. Defendant
admitted he did not call 9-1-1, call out for help, or try to stop the bleeding.
       When defendant heard a knock at the door, he said, “Come in,” but he had
forgotten that the door was locked. Kenneth and Jonathan came inside and assaulted
defendant. Kenneth asked what defendant did to his daughter. Defendant told him, “You
don’t understand.” Kenneth told defendant to leave, so defendant went out to the living
room. He heard Jonathan calling 9-1-1 and Regina trying to call 9-1-1. Defendant told
Regina, “[T]ell them to hurry.”



                                               9
       Defendant was stressed out, so he decided to go get a cigar from the store. He
intended to return to the house. He was in shock. He did not attempt to run or hide from
the police. After being arrested, he asked the police, “What’s going on,” because he
wanted to know Melanie’s condition. Defendant claimed that after he was arrested, he
scratched his neck, which was irritated by the paper jumpsuit he had to wear. He had
sensitive skin and long nails at the time.
       Regarding his police interview, defendant admitted he had not been completely
honest. In fact, 90 percent of what he told the police was false. He was not truthful
because he was “trying to distance” himself from the situation. At trial, defendant
clarified that he was no longer claiming Melanie committed suicide; he was saying that
her death was accidental.

                                   III.      DISCUSSION
       A.     Sufficiency of the Evidence: Premeditation and Deliberation
       Defendant contends there was insufficient evidence to support the jury’s finding
that the attempted murder was willful, deliberate, and premeditated, and thus that
defendant’s first degree murder conviction should be reduced to second degree murder.5
              1.     Standard of Review
       Under the federal Constitution’s due process clause, there is sufficient evidence to
support a conviction if, viewing the evidence in the light most favorable to the
prosecution, a rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319.) In
addressing a claim of insufficient evidence, “the court must review the whole record in
the light most favorable to the judgment below to determine whether it discloses



       5
         Defendant does not challenge the sufficiency of the evidence on the alternate
theory, argued below, that the murder was of the first degree because it was committed
by lying in wait.

                                              10
substantial evidence—that is, evidence which is reasonable, credible, and of solid
value—such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.)
              2.     Analysis
       “ ‘ “Deliberation” refers to careful weighing of considerations in forming a course
of action; “premeditation” means thought over in advance. [Citations.]’ [Citation.]
‘ “Premeditation and deliberation can occur in a brief interval. ‘The test is not time, but
reflection. “Thoughts may follow each other with great rapidity and cold, calculated
judgment may be arrived at quickly.” ’ ” [Citation.]’ [Citations.]” (People v. Solomon
(2010) 49 Cal.4th 792, 812 (Solomon).)
       “People v. Anderson (1968) 70 Cal.2d 15 . . . (Anderson) discusses three types of
evidence commonly shown in cases of premeditated murder: [1] planning activity,
[2] preexisting motive, and [3] manner of killing. [Citation.]” (Solomon, supra, 49
Cal.4th at p. 812.) However, “ ‘Anderson did not purport to establish an exhaustive list
that would exclude all other types and combinations of evidence that could support a
finding of premeditation and deliberation.’ [Citations.]” (Ibid.)
       As to the first Anderson category of evidence, defendant contends “there was no
evidence of planning or preparation.” We disagree. Planning activity is present when
there are “facts about how and what defendant did prior to the actual killing which show
that the defendant was engaged in activity directed toward, and explicable as intended to
result in, the killing.” (Anderson, supra, 70 Cal.2d at p. 26.) Here, the evidence
supported a finding that defendant obtained the knife from the kitchen prior to the
stabbing. Although defendant testified that Melanie was the one who had placed the two
knives in the bedroom out of fear for her safety, Kenneth testified that he had used that
particular knife just a few days before the murder. Other members of the Dunn family
testified that Melanie had never mentioned feeling unsafe in the neighborhood and that
she had never mentioned keeping knives in her bedroom. (See People v. Nazeri (2010)

                                             11
187 Cal.App.4th 1101, 1115 (Nazeri) [jury did not have to believe the defendant’s
testimony that one of the victims had brought a knife to the room where he stabbed her].)
Further, defendant locked the bedroom door before stabbing Melanie, indicating he
wanted to prevent anyone from coming to her aid.
       As to the second Anderson category of evidence, defendant contends that there
was no evidence he had a motive to kill Melanie. Again, we disagree. Motive is shown
by “facts about the defendant’s prior relationship and/or conduct with the victim from
which the jury could reasonably infer a ‘motive’ to kill the victim.” (Anderson, supra, 70
Cal.2d at p. 27.) Contrary to defendant’s claim, the evidence supported a finding that
defendant and Melanie had an increasingly antagonistic relationship. Melanie had been
complaining about defendant, and she had instructed him to move out of the house.
Melanie had slammed a door earlier that evening, during a fight about him moving out.
The fight had continued through text messages and at least one phone conversation that
night, with Melanie telling defendant that she not only wanted to date another man, but
that she had already slept with other men. Numerous cases recognize that “a sexual-
jealousy ‘motive’ ” for a killing can support a finding of premeditation and deliberation.
(See Anderson, supra, at p. 29; Nazeri, supra, 187 Cal.App.4th at p. 1117.) Thus, the
record contains evidence from which the jury could infer that defendant had a motive to
kill Melanie.
       As to the manner of killing—the third Anderson category—defendant contends
“there was nothing ‘exacting’ about the manner of this killing.” The manner of killing
will support a finding of premeditation and deliberation when it was “so particular and
exacting that the defendant must have intentionally killed according to a ‘preconceived
design’ to take his victim’s life in a particular way.” (Anderson, supra, 70 Cal.2d at
p. 27.) In this case, defendant apparently put Melanie into a chokehold so as to prevent
her from screaming or struggling effectively. Defendant then stabbed Melanie with a
very sharp knife, using such great force that the knife went all the way through her neck,

                                            12
cutting through her skin, esophagus, cartilage, vertebrae, and muscle, and even cutting his
own arm. (Cf. People v. Harris (2008) 43 Cal.4th 1269, 1287 [sufficient evidence of
premeditation where the defendant stabbed the victim “directly in the heart with enough
force to penetrate part of a rib and pierce entirely through the heart”].) The superficial
wounds indicating the knife had been dragged across Melanie’s skin suggested that
defendant took some time to aim the knife before plunging it into her neck, and the fact
that there were two exit wounds suggested defendant partially withdrew the knife, then
pushed it back in, to make sure it was a fatal wound. (See People v. Perez (1992)
2 Cal.4th 1117, 1127 (Perez) [evidence the defendant inflicted post-mortem wounds “to
make certain the victim was dead” was consistent with a premeditated murder, rather than
with a “ ‘mere rash and unconsidered impulse’ ”].)
       Defendant’s behavior after the stabbing is also relevant. (See Perez, supra,
2 Cal.4th at p. 1128 [“the conduct of defendant after the stabbing . . . would appear to be
inconsistent with a state of mind that would have produced a rash, impulsive killing”];
see also Solomon, supra, 49 Cal.4th at p. 812 [Anderson factors are not exclusive].)
Here, after Melanie was stabbed in the neck, defendant did not attempt to render aid or
call for help—conduct that was consistent with a premeditated and deliberate killing.
       After the initial briefing in this case was completed, defendant wrote a letter to
inform this court of a recent case, People v. Boatman (2013) 221 Cal.App.4th 1253
(Boatman), in which a first degree murder conviction was reduced to second degree
murder because there was insufficient evidence of premeditation and deliberation. In
Boatman, the defendant shot his girlfriend in the face while they were alone in his
bedroom. The Boatman defendant initially claimed the victim shot herself, then claimed
that he had accidentally shot her. (Id. at pp. 1258-1259.) Regarding planning activity,
there was no evidence the defendant had left the bedroom to get the gun. (Id. at p. 1267.)
Following the shooting, he behaved like “someone horrified and distraught about what he
had done, not someone who had just fulfilled a preconceived plan”—he had tried to

                                             13
resuscitate the victim, directed his brother to call the police, cried, and made suicidal
remarks. (Ibid.) Regarding motive, there was evidence from which the jury could infer
the defendant was in a bad mood or had been angry with the victim, but no evidence of “a
motive suggesting premeditation and deliberation.” (Id. at p. 1268.) The manner of
killing did not show premeditation without evidence of motive and planning because it
was not an execution-style murder. (Id. at pp. 1269-1270.)
       Boatman is distinguishable from the instant case. As explained above, there was
evidence of planning activity here, because the evidence indicated defendant left the
bedroom to get the knife he used in the murder. Following the shooting, defendant did
not behave like “someone horrified and distraught about what he had done,” but like
“someone who had just fulfilled a preconceived plan”—he made no attempt to resuscitate
Melanie, did not make any attempt to get help, did not cry, and did not make suicidal
remarks. (See Boatman, supra, 221 Cal.App.4th at p. 1267.) There was much more
evidence of motive here, since Melanie had not only asked defendant to move out but
told him she wanted to see other people and had already slept with other people. Finally,
the manner of killing in this case showed premeditation because it was akin to an
execution-style murder.
       In sum, the evidence was sufficient to support defendant’s first degree murder
conviction on a premeditation and deliberation theory.
       B.     Prosecutorial Misconduct: Reasonable Doubt Standard
       Defendant contends the prosecutor committed misconduct by misstating the
reasonable doubt standard—specifically, the meaning of the term “abiding conviction”—
during closing argument to the jury.
              1.     Proceedings Below
       Pursuant to CALCRIM No. 220, the trial court instructed the jury on the meaning
of reasonable doubt as follows: “Proof beyond a reasonable doubt is proof that leaves
you with an abiding conviction that the charge is true. The evidence need not eliminate

                                             14
all possible doubt because everything in life is open to some possible or imaginary
doubt.”
       The defense first brought up the meaning of “abiding conviction” during argument
to the jury. Trial counsel stated, “I don’t have a definition for abiding conviction, but I
do know this. That when you leave the courtroom today and go home, you have your
dinner, and you spend some time, and you start thinking, you know what, I might have
made the wrong decision, or, wait, you know, actually, maybe it’s possible it could have
been this way, you start having that doubt, then you don’t have an abiding conviction. A
couple months down the line you start feeling maybe I didn’t make the right decision
there, then you didn’t have an abiding conviction.”
       In closing argument, the prosecutor argued that trial counsel “wants to change the
standard” for reasonable doubt to “not just what you think now, but what you think you
might think in the future.” The prosecutor argued that the jurors could not “live up to that
standard,” and that “that’s not the standard.” The prosecutor continued, “You are going
to go back, you are going to deliberate, and you are going to know beyond a reasonable
doubt the defendant committed first degree murder. And you know what? A week from
now, a month from now, a year from now, you are going to know it too. But that’s not
the standard. The facts aren’t going to change. But everybody second-guesses themself
[sic] at some point. And the defense counsel is playing on that knowledge about human
nature. It’s a defense tactic. It’s not like I haven’t heard this argument before.”
       Trial counsel objected, but the trial court ruled, “It’s argument.”
              2.     Analysis
       The general rules applying to claims of prosecutorial misconduct are as follows:
“Under the federal Constitution, to be reversible, a prosecutor’s improper comments must
‘ “so infect[ ] the trial with unfairness as to make the resulting conviction a denial of due
process.” ’ [Citations.] ‘ “But conduct by a prosecutor that does not render a criminal
trial fundamentally unfair is prosecutorial misconduct under state law only if it involves

                                             15
‘ “the use of deceptive or reprehensible methods to attempt to persuade either the court or
the jury.” ’ ” [Citations.]’ [Citation.]” (People v. Cunningham (2001) 25 Cal.4th 926,
1000.) “[W]hen the claim focuses upon comments made by the prosecutor before the
jury, the question is whether there is a reasonable likelihood that the jury construed or
applied any of the complained-of remarks in an objectionable fashion. [Citation.]”
(People v. Samayoa (1997) 15 Cal.4th 795, 841 (Samayoa).)
       Defendant contends the prosecutor misstated the law and diluted the reasonable
doubt standard by telling the juror that it was “not the standard” for an abiding conviction
that the jurors agree with their decision in the future. He points out that prior cases have
held that the term “abiding conviction” conveys “the requirement that the jurors’ belief in
the truth of the charge must be both long lasting and deeply felt.” (See People v. Light
(1996) 44 Cal.App.4th 879, 885; People v. Brigham (1979) 25 Cal.3d 283, 290 [the term
“abiding” conveys the “lasting, permanent nature of the conviction”].)
       Defendant argues the prosecutor’s comments were analogous to the argument
disapproved by the court in People v. Nguyen (1995) 40 Cal.App.4th 28 (Nguyen). In
that case, the prosecutor argued that the reasonable doubt standard was “ ‘a very
reachable standard that you use every day in your lives when you make important
decisions, decisions about whether you want to get married, decisions that take your life
at stake when you change lanes as you’re driving.’ ” (Id. at p. 35.) The Nguyen court
held that the prosecutor’s argument was improper and that it “trivialize[d] the reasonable
doubt standard.” (Id. at p. 36.) However, the court concluded, the defendant “was not
prejudiced since the prosecutor did direct the jury to read the reasonable doubt instruction
and the jury was correctly instructed on the standard.” (Id. at pp. 36-37.)
       Here, the prosecutor did not compare the standard of guilt beyond a reasonable
doubt to everyday decisions, so Nguyen is not on point. In this case, the arguments were
more similar to those in People v. Pierce (2009) 172 Cal.App.4th 567 (Pierce). In
Pierce, as in the instant case, the prosecutor disputed defense counsel’s explanation of an

                                             16
abiding conviction as one that is lasting. Defense counsel had told the jury that an
abiding conviction was “ ‘a permanent sort of a belief’ ” and that a juror could not
“ ‘wake up the next day and think . . . I hope that I was right.’ ” (Id. at p. 570.) The
prosecutor later told the jury that the reasonable doubt instruction did not say “ ‘anything
about tomorrow, the future, next week, or even ten minutes after your verdict.’ ” (Ibid.)
The prosecutor further told the jury that “ ‘when you’re deliberating, when you’ve made
your decision, that’s when it counts. There’s no legal requirement of and we’ll come
back in a week and make sure you’re all good with this.’ ” (Id. at p. 571.)
       The Pierce court found “no reasonable likelihood” that the jury misconstrued or
applied the prosecutor’s remarks relating to “ ‘an abiding conviction.’ ” (Pierce, supra,
172 Cal.App.4th at p. 572; see also id. at pp. 581-582 [conc. opn. of Hull, Acting P.J.].)
The majority explained that the prosecutor’s challenged statements had been brief and
that the prosecutor had reiterated that CALCRIM No. 220 says “ ‘proof beyond a
reasonable doubt is proof that leaves you with an abiding conviction that the charge is
true.’ ” (Id. at pp. 570; see also id. at p. 572.) The majority noted it was irrelevant that
“after the conclusion of the case one or more jurors might change their minds after
learning something new.” (Id. at p. 573; see also id. at p. 581 [conc. opn. of Hull,
Acting P.J.].) The court also noted that “the jury did not ask any questions concerning
the instruction on reasonable doubt or the meaning of the concept of an abiding
conviction.” (Ibid.)
       In the instant case, there is no “reasonable likelihood that the jury construed or
applied” the prosecutor’s remarks “in an objectionable fashion.” (Samayoa, supra, 15
Cal.4th at p. 841.) The prosecutor correctly told the jury that “abiding conviction”
referred to “what you think now.” As in Pierce, the jury did not ask any questions about
the meaning of reasonable doubt or about the term “abiding conviction.” Most
importantly, the jury was correctly instructed on reasonable doubt, and we must presume
the jury followed the instruction. (See Nguyen, supra, 40 Cal.App.4th at pp. 36-37.)

                                              17
       In sum, we conclude that the prosecutor did not commit misconduct when
discussing the meaning of reasonable doubt.
       C.     Ineffective Assistance of Counsel: Failure to Request CALCRIM
              No. 522
       Defendant contends trial counsel was ineffective for failing to request CALCRIM
No. 522, which would have told the jury that provocation may reduce a murder from first
degree to second degree.
       CALCRIM No. 522 provides in pertinent part: “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.”
       “To prevail on a claim of ineffective assistance of counsel, the defendant must
show counsel’s performance fell below a standard of reasonable competence, and that
prejudice resulted. [Citations.] When a claim of ineffective assistance is made on direct
appeal, and the record does not show the reason for counsel’s challenged actions or
omissions, the conviction must be affirmed unless there could be no satisfactory
explanation. [Citation.] Even where deficient performance appears, the conviction must
be upheld unless the defendant demonstrates prejudice, i.e., [a reasonable probability]
that, ‘ “ ‘but for counsel’s unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.’ ” ’ [Citations.]” (People v. Anderson (2001) 25 Cal.4th 543,
569; see also Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694 (Strickland ).)
       Defendant contends that the concepts stated in CALCRIM No. 522 were “critical
to and totally consistent with the defense theory of this case.” He points out that during
closing argument, trial counsel described the “hurtful and provocative things” Melanie
said to defendant, such as, “Your mother should have aborted you.”

                                            18
       The Attorney General points out that trial counsel argued that the stabbing was an
accident and that defendant was guilty of involuntary manslaughter or, at most, voluntary
manslaughter. Thus, the Attorney General contends, the record indicates that trial
counsel had a tactical reason for failing to request CALCRIM No. 522.
       We agree with the Attorney General that the record reflects trial counsel may have
had a sound tactical reason for not requesting CALCRIM No. 522: trial counsel did not
want to give the jury a reason to return a murder verdict. In argument to the jury, trial
counsel argued for a verdict of involuntary manslaughter, which was consistent with
defendant’s testimony about Melanie’s stabbing death being an accident. After referring
to Melanie’s insults, trial counsel argued, “And then he made a horrible mistake. . . . He
hit her hand. He pushed her hand. He thrusted his arm.” Trial counsel argued that
defendant did not have the intent to kill Melanie. Trial counsel argued that at most, the
crime was voluntary manslaughter, and he advised the jury to carefully read the
instructions on voluntary and involuntary manslaughter. It was not unreasonable for trial
counsel to focus on seeking an involuntary or voluntary manslaughter verdict rather than
give the jury a reason to convict defendant of murder.
       In light of trial counsel’s argument to the jury, defendant cannot show this record
affirmatively discloses a lack of tactical purpose or satisfactory explanation for defense
counsel’s omission. “[T]he difference between [defense] counsel’s approach and
appellate counsel’s hindsight analysis [of what defense counsel should have done] is
simply one of tactics. . . .” (People v. Morales (1979) 88 Cal.App.3d 259, 268
(Morales).)
       Trial counsel’s failure to request CALCRIM No. 522 was also not prejudicial.
The instruction would have informed the jury that it could consider any provocation in
deciding whether the crime was first or second degree murder. But the jury already had
to determine whether defendant acted willfully, deliberately, and with premeditation.
Although the jury was not specifically told that provocation can be considered in making

                                             19
that determination, the jury was also not limited in the evidence it could consider
concerning premeditation and deliberation. (See People v. Rogers (2006) 39 Cal.4th 826,
880.) Moreover, there was overwhelming evidence that defendant premeditated and
deliberated Melanie’s killing; even defendant’s own testimony – that Melanie’s death
was accidental – did not support a finding that he killed her with malice aforethought in
response to provocation.
       In sum, defendant has not shown trial counsel was ineffective for failing to request
CALCRIM No. 522.
       D.     CALCRIM 521
       Defendant contends the trial court erred by telling the jury, pursuant to CALCRIM
No. 521, that defendant acted with premeditation if he decided to kill Melanie before
completing the acts that caused her death.
       Pursuant to CALCRIM No. 521, the jury was instructed as follows: “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 length of time the person spends considering whether to kill
does not alone determine whether the killing is deliberate or premeditated. The amount
of time required for deliberation and premeditation may vary from person to person and
according to the circumstances. A decision to kill made rashly, impulsively, or without
careful consideration is not deliberate and premeditated. On the other hand, a cold,
calculated decision to kill can be reached quickly. The test is the extent of the reflection,
not the length of time.”
       Defendant contends that CALCRIM No. 521 improperly suggests that the
premeditation required for first degree murder can be formed during, rather than before,

                                             20
the defendant commits the act causing the victim’s death. He notes that a previous
version of that instruction used the phrase “before committing” rather than the phrase
“before completing.” (See CALCRIM No. 521 (2009-2010).)
       The Attorney General contends the current version of CALCRIM No. 521 is not
legally erroneous because a defendant could “commit a series of acts that, in conjunction
with each other, cause death” or make a premeditated decision to kill in the course of an
attack. The Attorney General cites two cases as examples of such situations. In People
v. Ainsworth (1988) 45 Cal.3d 984 (Ainsworth), the California Supreme Court upheld a
jury’s finding of premeditated and deliberate murder “based on the theory that defendant
knowingly and intentionally permitted the victim to bleed to death as he kept her captive
during the lengthy car ride after the shooting.” (Id. at p. 1023 [upholding denial of
section 1118 .1 motion]; see id. at p. 1024 [upholding jury verdict on the basis of the
same evidence].) The California Supreme Court reached a similar conclusion in
People v. Raley (1992) 2 Cal.4th 870 (Raley), where the defendant stabbed the victims
numerous times, then drove them around, beat them, and dumped their bodies in a ravine,
after which one victim died. The court found sufficient evidence to support the jury’s
finding of premeditation and deliberation, explaining, “Even if we were to agree that it
could only be concluded that the many stab wounds defendant inflicted on each woman
were part of an unreflective explosion of violence, his calculated decision to let them
bleed for the next 18 hours, to refuse medical attention, to beat them about the head and
to dump them on a winter night into an isolated ravine supports the conclusion that he
premeditated the death of [the murder victim].” (Id. at p. 888.)
       The Ainsworth and Raley cases provide support for the “before completing”
language of CALCRIM No. 521. Thus, the instruction was not legally incorrect, and it
was incumbent upon defendant to request the trial court use different language when
reading the instruction to the jury. (See People v. Hudson (2006) 38 Cal.4th 1002, 1011-



                                            21
1012.) As defendant did not request any modification to CALCRIM No. 521 below, he
cannot now claim that the instruction was improper.
         E.     Ineffective Assistance of Counsel: Prosecutor’s Deliberation Argument
         Defendant contends trial counsel was ineffective for failing to object when the
prosecutor argued that evidence of what defendant did after stabbing Melanie showed
that he deliberated her murder.
         When the prosecutor introduced the concepts of premeditation and deliberation, he
stated, “Premeditated means he decided to kill before completing the act that caused the
death. He thought about it beforehand. It wasn’t [that] he killed her and didn’t think
about it beforehand. There is some sort of planning.” The prosecutor then described
deliberation: “Deliberation requires that the defendant carefully weighed the
considerations for and against his choice and, knowing the consequences, decided to
kill.”
         Later, the prosecutor discussed the evidence showing defendant intended to kill
Melanie. The prosecutor argued that “what he used . . . a 13-inch-long knife” and “the
location of the wound” showed intent to kill. The prosecutor also argued that “how he
acted right after” showed defendant intended to kill Melanie: “He doesn’t call for help.
He doesn’t do anything that could potentially save her, despite the fact she has this mortal
wound.”
         The prosecutor continued, “And, actually, if you think about it, while he’s laying
there with [Melanie], that’s additional time that he is deliberating the fact that he wants
her dead. Because she isn’t dead yet.” The prosecutor argued that defendant was “killing
her slowly” by preventing anyone from coming to help. The prosecutor further argued
that while defendant was laying there, he was continuing to think, “ ‘I want her to
die.’ . . . That’s deliberation.”
         The prosecutor also argued that defendant had “plenty of time” to think about the
murder, since Melanie left for work at 5:00 p.m. and was not killed until 5:00 a.m. The

                                              22
prosecutor argued that defendant had “more than four hours to cool down” after the last
text from Melanie, which was sent at 11:58 p.m. The prosecutor argued that defendant,
not Melanie, put the knives in the room “because he was thinking ahead. He was
premeditating.”
       Defendant contends the prosecutor’s argument distorted the law of deliberation
and premeditation, and thus that trial counsel should have objected. However, as
explained above, there was a legal basis for the prosecutor’s argument. CALCRIM
No. 521 correctly states that a defendant acts with premeditation and deliberation if he
decides to kill before completing the acts that caused the victim’s death. (See Ainsworth,
supra, 45 Cal.3d at pp. 1023-1024; Raley, supra, 2 Cal.4th at p. 888.) “Defense counsel
is not required to advance unmeritorious arguments on the defendant’s behalf.
[Citations.]” (People v. McPeters (1992) 2 Cal.4th 1148, 1173.) Thus, trial counsel was
not ineffective for failing to object.
       F.     Baseball Bat Incident
       Defendant contends the trial court erred by allowing the prosecutor to introduce
evidence that defendant had previously hit someone with a baseball bat, and by denying
his subsequent motion for a mistrial. Defendant contends that the introduction of this
evidence violated his rights to due process of law and a fair jury trial under the Fifth,
Sixth, and Fourteenth Amendments. He also contends the evidence should have been
excluded pursuant to Evidence Code section 352.
              1.      Proceedings Below
       During motions in limine, defendant requested the trial court exclude evidence that
defendant had a 2004 Virginia conviction of misdemeanor battery. Trial counsel asserted
that defendant was “somewhere around 18 or 19 years old” in 2004. The prosecutor
acknowledged that because the conviction was not a crime of moral turpitude, it was not
admissible for impeachment purposes, but noted that “it may be relevant for other
purposes.” The trial court ruled that the conviction would not be admitted “at this time.”

                                             23
Although the details of that offense were not discussed at the time, it appears the offense
involved a baseball bat.
       During defendant’s initial cross-examination, defendant asserted that he had
“never been in this situation before” and therefore did not know what to do after the knife
went into Melanie’s neck. Upon further questioning, defendant denied ever seeing
someone get killed “directly in front” of him, but he admitted someone had been killed in
his presence. Specifically, he had seen “somebody get stabbed before.”
       During redirect examination, trial counsel asked defendant about “seeing someone
who was stabbed before.” Defendant explained that he was “there” when someone was
killed. He explained that there had been a quickly escalating argument among people
from his neighborhood, and that he had been “probably 12, 13, [or] 14” years old.
       On further cross-examination, defendant reiterated that he had been young when
he had seen someone killed. After being shown a previous statement, defendant
acknowledged that he had also seen someone stabbed and killed when he was an adult,
about four years prior to Melanie’s death.
       On further redirect examination, trial counsel asked defendant whether, even
though he had seen “other people dying before, or getting attacked,” he was prepared for
what happened on the night of Melanie’s death. Defendant responded, “No. Not at all.”
Trial counsel then asked whether defendant had been “either the aggressor or the victim
at any of those times that someone has died?” Defendant responded, “No,” and explained
that he had been “[b]asically, the bystander.”
       On further cross-examination, the prosecutor asked defendant, “But you are not
unfamiliar with being in the middle of hand-to-hand combat, are you?” Trial counsel
objected on the basis of “[t]he motions in limine.” The trial court overruled the
objection, and defendant admitted he had been in fights with his siblings and possibly
someone else. The prosecutor asked, “So you’ve been in stressful situations involving



                                             24
violence before, correct?” Defendant responded that he had been “in stressful situations,”
but that he would “have to say be more specific for ‘violence.’ ”
       After a bench conference, the prosecutor asked defendant if he had ever hit a man
with a baseball bat. Trial counsel objected, but the court overruled the objection.
Defendant then responded, “It’s happened before.” Defendant acknowledged that “stress
over violent situations isn’t foreign.”
       On further redirect examination, defendant explained that back in the “early
2000’s,” he had been in “some type of altercation with a guy who had a baseball bat.”
       Defendant subsequently moved for a mistrial, arguing that the baseball bat
incident had previously been excluded. The prosecutor responded that defendant had
“opened the door” to the topic by claiming he had not known what to do when Melanie
was stabbed because he had not been involved in anything like that before, and by
claiming he had only seen someone harmed when he was young.
       The trial court agreed that “the door was open” and denied the motion for a
mistrial. The court specifically found that trial counsel had opened the door by asking
defendant whether he had ever been the aggressor or the victim when he had seen
someone dying or getting attacked. The court explained, “I’m not going to allow him to
be cast in a false aura of nonviolence.”
       During argument to the jury, the prosecutor brought up the baseball bat incident
when discussing defendant’s behavior after the stabbing. The prosecutor noted that
defendant had not called 9-1-1 and had “run away.” The prosecutor further noted that
defendant had explained his behavior by claiming he had never been in such a situation
before, but that he later admitted seeing someone get killed when he was young and
seeing someone get stabbed about four years earlier. The prosecutor added that
defendant had also admitted having “some personal experience with this type of violence
too, because he’s got some experience with hitting somebody in the face with a bat.” The



                                            25
prosecutor argued that defendant “didn’t freeze because he didn’t know what to do. He
just wanted to keep Melanie quiet until she died.”
       During the defense argument, trial counsel suggested that defendant’s text
exchanges about beating someone were possibly jokes. Trial counsel further suggested
that the prosecutor was using those text messages and the baseball bat incident to indicate
defendant was violent.
       The prosecutor later responded to the defense argument: “So we aren’t saying
he’s violent just because of a couple of jokes, if you want to call them that, in his text
messages, or because he hit a man with a baseball bat when he was a teenager . . . . We
are saying he’s violent because he killed Melanie. [¶] And those other things, the text
messages, the fact that he hit a guy with a baseball bat, that just supports the theory that
he is violent. Right. That that is something he is capable of doing. We are not using it to
say he’s a violent person, but it’s not character – it’s not out of what we would expect.”
              2.     Analysis
       Defendant contends the evidence regarding the baseball bat incident was highly
prejudicial evidence of his propensity for violence and thus should have been excluded.
As noted above, defendant contends the error violated the federal constitution as well as
state law.
       “We review the trial court’s decision whether to admit evidence, including
evidence of the commission of other crimes, for abuse of discretion. [Citation.]”
(People v. Harris (2013) 57 Cal.4th 804, 841.) An erroneous exercise of discretion in the
application of ordinary rules of evidence generally does not implicate the federal
Constitution. (People v. Cudjo (1993) 6 Cal.4th 585, 611.) “[T]he admission of
evidence, even if error under state law, violates due process only if it makes the trial
fundamentally unfair.” (People v. Partida (2005) 37 Cal.4th 428, 436.)




                                              26
       Evidence Code section 1101, subdivision (a) states: “Except as provided in this
section . . . , evidence of a person’s character or a trait of his or her character . . . is
inadmissible when offered to prove his or her conduct on a specified occasion.”
       Evidence Code section 1101, subdivision (b) states: “Nothing in this section
prohibits the admission of evidence that a person committed a crime, civil wrong, or
other act when relevant to prove some fact (such as motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his
or her disposition to commit such an act.”
       Evidence Code section 1101, subdivision (c) states: “Nothing in this section
affects the admissibility of evidence offered to support or attack the credibility of a
witness.”
       Here, defendant testified that Melanie was stabbed accidentally and that he had not
tried to help her afterwards because he had “never been in this situation before.”
Defendant also testified that although he had seen “other people dying before, or getting
attacked,” he had been neither the aggressor nor the victim in any of those incidents; he
had been a “bystander.” The evidence of defendant’s involvement in a prior violent
incident was admissible to impeach his claim that he had only been a bystander during
the prior violent incidents he had witnessed. In other words, “[t]he challenged evidence
was directly relevant to impeach defendant’s own testimony.” (People v. Doolin (2009)
45 Cal.4th 390, 439; see Evid. Code, § 1101, subd. (c).) Under Evidence Code section
780, subdivision (i), a trial court may admit otherwise inadmissible evidence for
impeachment purposes to prove or disprove the “existence or nonexistence of any fact”
about which a witness has testified or opened the door. (See Andrews v. City and County
of San Francisco (1988) 205 Cal.App.3d 938, 946 [“[A] witness who makes a sweeping
statement on direct or cross-examination may open the door to use of otherwise
inadmissible evidence of prior misconduct for the purpose of contradicting such
testimony.”].) The open-the-door rule prevents witnesses from misleading the jury or

                                                27
misrepresenting facts. (See People v. Robinson (1997) 53 Cal.App.4th 270, 282-283;
People v. Shea (1995) 39 Cal.App.4th 1257, 1267 [If “ ‘the defendant first seeks to
mislead a jury or minimize the facts . . .’ he may properly be questioned further.”].)
        Defendant alternatively contends that even if the evidence of the baseball bat
incident was admissible for a legitimate purpose, the trial court should have excluded it
pursuant to Evidence Code section 352, which provides: “The court in its discretion may
exclude evidence if its probative value is substantially outweighed by the probability that
its admission will (a) necessitate undue consumption of time or (b) create substantial
danger of undue prejudice, of confusing the issues, or of misleading the jury.” Even
assuming that defendant raised this issue below, we find no abuse of discretion by the
trial court in declining to exclude the evidence on this basis. (See People v. Thomas
(2011) 51 Cal.4th 449, 485 [“ ‘A trial court’s exercise of discretion in admitting or
rejecting evidence pursuant to Evidence Code section 352 “will not be disturbed on
appeal unless there is a manifest abuse of that discretion resulting in a miscarriage of
justice.” ’ ”].)
        The questions and testimony about the baseball bat incident were relatively brief
and did not pose a significant potential for prejudice. Defendant testified that the
baseball bat incident occurred a number of years before the charged offense (in the early
2000’s) and he indicated that he had not been the initial aggressor in the baseball bat
incident (since the other person originally had the baseball bat). On this record, we find
no abuse of discretion in the trial court’s decision to admit the evidence under Evidence
Code section 352.




                                             28
       G.       Ineffective Assistance of Counsel: Baseball Bat Incident
       Defendant contends trial counsel was ineffective for asking defendant questions
that opened the door to introduction of the baseball bat incident and for failing to request
a limiting instruction regarding the baseball bat incident.6
       As noted above, a claim of ineffective assistance of counsel has two components:
“the defendant must show counsel’s performance fell below a standard of reasonable
competence, and that prejudice resulted. [Citations.]” (People v. Anderson, supra, 25
Cal.4th at p. 569.)
       The record indicates trial counsel had a tactical reason for asking defendant the
questions that eventually opened the door to the admission of the baseball bat incident.
The fact that defendant had done nothing to help Melanie after the knife went into her
neck was a significant part of the prosecution’s case, and the prosecution sought to
exploit that fact during cross-examination. Defendant himself had asserted that he had
“never been in this situation before,” which opened the door for the prosecutor to ask
questions about defendant’s prior experiences with violent situations. Trial counsel tried
to rehabilitate defendant during subsequent redirect examination, by eliciting the fact that
his prior experiences had been in the past and had only involved him watching the
incidents. Although this eventually enabled the prosecutor to impeach defendant with the
baseball bat incident, we cannot say that trial counsel acted unreasonably in asking
defendant questions designed to rehabilitate him. As previously noted, “the difference
between [defense] counsel’s approach and appellate counsel’s hindsight analysis [of what
defense counsel should have done] is simply one of tactics. . . .” (Morales, supra, 88
Cal.App.3d at p. 268.)
       Defendant also fails to show a reasonable probability that “ ‘ “ ‘but for counsel’s
unprofessional errors, the result of the proceeding would have been different.’ ” ’ ”


       6
           These issues are raised in defendant’s supplemental opening brief.

                                              29
(People v. Anderson, supra, 25 Cal.4th at p. 569.) In light of the strong evidence that
defendant was guilty of first degree murder, confidence in the outcome of trial is not
affected by the admission of the evidence of the baseball bat incident. The incident was
not significant in light of the facts about defendant that were already known to the jury:
that defendant had prior convictions, that he was on parole at the time of the incident, that
he had texted his cousin about getting someone to beat Melanie’s “ass,” and that he had
lied to the police. Defendant’s testimony about Melanie’s death being an accident was
inherently improbable and inconsistent with the medical testimony. Defendant’s
testimony about the knife was contradicted by the testimony of Melanie’s family. The
evidence presented at trial overwhelmingly established that defendant was angry with
Melanie on the night of her death, that he obtained the knife that night, that he took her
by surprise so she could not scream, that he plunged the knife all the way through her
neck, and that he pulled the knife part way out and pushed it back in again. On this
record, even if trial counsel had not opened the door to admission of the baseball bat
incident, the jury would still have reached a first degree murder verdict.
       We also reject defendant’s claim that trial counsel was ineffective for failing to
request a limiting instruction regarding the baseball bat incident. First, the baseball bat
incident was admitted for impeachment purposes, not as other crimes evidence under
Evidence Code section 1101, subdivision (b), so an instruction such as CALCRIM
No. 375 (evidence of uncharged offenses to prove identity, intent, common plan, etc.)
would not have been appropriate. Second, “the decision not to request one was a
reasonable tactical choice by defense counsel to avoid directing the jury to focus on the
evidence [of the baseball bat incident].” (People v. Ferraez (2003) 112 Cal.App.4th 925,
934.) Third, as explained above, the evidence of defendant’s guilt of first degree murder
was overwhelming and thus, even if trial counsel had requested a limiting instruction
concerning the baseball bat incident, we conclude the jury would still have reached a first
degree murder verdict.

                                             30
       In sum, we conclude trial counsel was not ineffective for asking defendant
questions that opened the door to introduction of the baseball bat incident or for failing to
request a limiting instruction regarding the baseball bat incident.
       H.     Cumulative Error
       Defendant contends his conviction should be reversed because of the cumulative
effect of the claimed trial errors, including the prosecutorial misconduct, the trial court’s
evidentiary rulings, and the ineffective assistance of counsel. (See People v. Hill (1998)
17 Cal.4th 800, 844 [“a series of trial errors, though independently harmless, may in
some circumstances rise by accretion to the level of reversible and prejudicial error”].)
       Defendant first contends that the reasonable doubt standard was undermined by
the prosecutor’s argument regarding reasonable doubt and the trial court’s overruling of
trial counsel’s objection to that argument. We have concluded, however, that there is no
“reasonable likelihood that the jury construed or applied” the prosecutor’s remarks “in an
objectionable fashion,” and thus that there was no prosecutorial misconduct. (See
Samayoa, supra, 15 Cal.4th at p. 841.)
       Defendant next contends there were three errors that specifically affected the
jury’s resolution of whether he was guilty of first or second degree murder: (1) trial
counsel’s failure to request CALCRIM No. 522, which would have told the jury that
provocation can reduce a murder from first degree to second degree; (2) the language of
CALCRIM No. 521, which permitted the jury to find that premeditation occurred during
the acts causing Melanie’s death; and (3) the prosecutor’s statement that deliberation
could be based on defendant’s conduct after the stabbing. However, we have concluded
that trial counsel had a tactical reason for failing to request CALCRIM No. 522 and that
there was no legal error in giving CALCRIM No. 521 or in the prosecutor’s argument
about premeditation and deliberation.
       Last, defendant contends that the admission of the baseball bat incident added to
the cumulative prejudice by inflaming the jurors and making them more likely to convict

                                             31
him of the maximum possible offense. However, we have concluded that the trial court
did not abuse its discretion in permitting evidence of the baseball bat incident to be
introduced, and that trial counsel was not ineffective for asking defendant a line of
questions designed to rehabilitate him after he was cross-examined about his claim of
having never been in a similar situation before, which eventually opened the door to
introduction of the baseball bat incident. We have also concluded that trial counsel was
not ineffective for failing to request a limiting instruction regarding the baseball bat
incident.
       Defendant notes that in People v. Jandres (2014) 226 Cal.App.4th 340, this court
reversed the judgment based upon the cumulative impact of several errors committed
during the trial. In that case, this court found that an uncharged act was erroneously
admitted and that there were three instructional errors regarding that uncharged act. (Id.
at pp. 357-359.) Here, we have found no errors to cumulate, and thus we reject
defendant’s claim of cumulative error.

                                   IV.    DISPOSITION
       The judgment is affirmed.




                                              32
                             ___________________________________________
                             BAMATTRE-MANOUKIAN, ACTING P.J.




WE CONCUR:




__________________________
MÁRQUEZ, J.




__________________________
GROVER, J.
