Filed 5/15/14 P. v. Griffin CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                         A136110
v.
JAMES EDWARD GRIFFIN,                                                    (Contra Costa County
                                                                         Super. Ct. No. 51105733)
         Defendant and Appellant.


         A jury convicted James Edward Griffin of second degree murder with personal use
of a deadly weapon (a knife). (Pen. Code, §§ 187, 12022, subd. (b)(1).)1 He is in prison
serving 15 years to life for murder and an additional one year for weapon use. Defendant
appeals his conviction on several grounds. He claims (1) the court wrongly admitted
evidence of his connection with the Hell’s Angels Motorcycle Club; (2) the court erred in
using a standard jury instruction defining voluntary manslaughter; (3) the prosecutor
committed misconduct during closing argument to the jury by misstating the law and
referring to facts not in evidence; and (4) the court erred in discharging a deliberating
juror for misrepresentations made during voir dire. We shall affirm the judgment.
                                                Statement of Facts
         It is undisputed that defendant killed Robert Shaner by stabbing him with a knife.
Defendant claimed the killing was justified as self-defense or defense of another.



1
    All further section references are to the Penal Code unless otherwise noted.


                                                             1
Alternatively, defendant claimed the killing was voluntary manslaughter as imperfect
self-defense or because it occurred in the heat of passion or upon a sudden quarrel.

The Parties

         Robert Shaner was the estranged husband of Lesley Shaner, whom defendant was
dating.2 Robert and Lesley had a tumultuous five-year marriage. Robert suffered from
mental illness and physically abused Lesley on multiple occasions. They separated in
January 2010. Robert moved out of the couple’s house to live with a friend. Lesley
started dating defendant, whom she knew from childhood. Defendant had also been a
friend of Lesley’s brother who had recently died and who before his death had asked
defendant to “take care” of Lesley. Robert told his neighbor that Lesley’s brother
appointed defendant as her “guardian” and protector and he did not object to defendant’s
relationship with Lesley. When the neighbor told Robert she had heard defendant was a
Hell’s Angel and “didn’t care for that,” Robert replied: “I don’t know that he’s a Hell’s
Angels, but he’s a biker and he’s a really nice guy.” The two men “always talked and got
along” according to Lesley.

The Stabbing

         On March 10, 2010, Robert asked to stay overnight at the house occupied by
Lesley because he had “nowhere else to go.” Lesley had “concerns” about Robert staying
with her given his past abusive behavior and telephoned defendant to discuss the
situation. Ultimately, Lesley agreed to let Robert stay because she “felt sorry for him.”
Lesley slept in the bedroom and Robert stayed in the living room.
         Defendant arrived at the house the following morning. Many of that morning’s
events are in dispute. It is undisputed, however, that Robert called his brother on
defendant’s cell phone around 10:00 a.m. Robert said he was at the Concord house and
was leaving shortly to visit his brother in Alamo. About 30 minutes later, Robert
stumbled to his next door neighbor’s house beaten and stabbed.

2
    To avoid confusion, we shall refer to the Shaners by their first names.


                                               2
       The neighbor, Yasmeen Brown, testified that Robert banged loudly on her front
door and, in an urgent voice, yelled out for her to call the police. Brown opened the door
and found Robert “in terrible physical condition.” “[H]e had blood all over the top of his
head running down the side of his head, his eyes were red and swollen, he had gashes in
his face, he had marks on his neck, he had a large gash . . . [to] his right hand, and he was
generally beat up all over.”
       Brown called 911. A recording of the call was played for the jury. Brown told the
911 operator, “I have a neighbor on my porch. He is gushing blood.” Robert told the
operator “A Hell’s Angel stabbed me.” The operator asked Robert who stabbed him and
Robert said James Griffin. The operator told Brown the police and medical personnel
were on the way and then asked questions about the stabbing. Robert said defendant was
next door and had stabbed him with a “K-bar.” Brown then told the operator defendant
was leaving the premises. Brown relayed the make, color and license plate number of
defendant’s vehicle and its direction of travel. When a police officer arrived, Brown said
Robert told her “James attacked me. He went crazy on me. He hit me, beat me and knifed
me.” Robert was unable to talk to the officer himself and lost consciousness before the
paramedics arrived. The paramedics tried to revive Robert without success.

The Autopsy

       A forensic pathologist testified at trial that Robert died from a “stab wound to the
left mid-back.” The wound measured a little more than one inch on the surface and
penetrated about four inches into the chest cavity from the rear. The knife entered
horizontally between the sixth and seventh ribs, punctured the left lung and caused
extensive internal bleeding.
       Robert also suffered additional injuries. The palm of his right hand had two
lacerations, which the pathologist testified was “a characteristic location of . . . a defense
wound, someone trying to defend themselves from a sharp force object.” One of the hand
lacerations was a deep gash that “cut through some of the muscle.” On cross-
examination, the pathologist conceded the possibility that one could suffer hand


                                               3
lacerations by “hastily grabbing the wrong side of the knife” during an altercation for
control of the knife.
       Robert had multiple bruises and abrasions on his face, neck, chest and legs and
tears on his ear and lip. The lip tear was “[m]ost likely from a punch to the face.”
Robert’s nose was bloody and “appeared to be deviated a little to the left.”The
pathologist said Robert suffered at least four forceful blows to the face that “would have
been painful.”
       There were also signs of manual strangulation. There was hemorrhage in Robert’s
eyes and circular bruises on his neck “consistent with fingertips putting pressure on the
neck.” There was bleeding under the skin on each side of the neck and on the surface of
the larynx, which were injuries the pathologist attributed to “compression of the neck by
hands. In other words, strangulation.”

Defendant’s Arrest

       The police apprehended defendant minutes after the stabbing, driving away from
the house with Lesley as a passenger. The police found a blood-stained fixed blade, K-bar
brand “military-type knife” in a sheath on the car’s front floorboard, partially covered
with a black leather vest. The sheath had a loop at the top allowing it to be worn on a belt
and a snap to hold the knife in place. The sheath was unsnapped. The vest pockets
contained postcards advertising Hell’s Angels events and stickers with the slogans
“Support your local Hell’s Angels” and “Motorcycle Clubs Are Not Street Gangs.”
Defendant was wearing a shirt with the number 81 on it that said “Support your local red
and white.” A police officer testified that the shirt was affiliated with the Hell’s Angels.
       Defendant had “one bleeding injury” – his right elbow was slightly cut by broken
dish fragments. Broken dishes were found in Lesley’s kitchen that matched small
fragments removed from defendant’s elbow by medical personnel. A photograph taken at
the time of defendant’s arrest shows his face to be without injury and unmarked.




                                              4
       Defendant is six feet one inch tall and weighs 260 pounds. Robert was about five
feet seven inches tall and weighed 187 pounds. Both men were in their early 40s at the
time of the stabbing.

Defendant’s Police Statement

       The police interviewed defendant on the afternoon of the stabbing, beginning
shortly after 4:00 p.m. and ending just before 6:00 p.m. A transcript of the interview is 66
pages. The interview was videotaped and portions of the interview were admitted in
evidence and viewed by the jury. Defendant did not testify at trial.
       Defendant told the police that Robert was bipolar and abusive toward Lesley but
that he and Robert had never fought or argued before that day. Defendant said Lesley’s
dying brother asked him to “take care” of Lesley. Defendant said the brother meant that
defendant “was to make sure that this guy didn’t keep abusing her.”
       Defendant said he came to Lesley’s house in the morning to help “get her stuff out
of there.” Defendant said Robert and Lesley started arguing so he went outside and sat in
his car to wait for her. Lesley then came outside to get defendant because Robert stuck a
knife in the wall. Defendant went in the house and saw a pocket knife stuck into Lesley’s
carousel picture hanging on the bedroom wall.3
       Defendant gave changing accounts of the events that followed. Initially, defendant
said Robert put a K-Bar knife to Lesley’s throat and he fought to get the knife. The police
questioned that account and told defendant it was inconsistent with Lesley’s account.
Defendant admitted, “I fucking lied” in “trying to save my ass.” The police asked
defendant “what really happened.”
       Defendant admitted that Robert did not put a knife to Lesley’s throat and that the
two men fought in the kitchen while Lesley was in the bedroom. Defendant said Robert
had stabbed the picture and was “throwing shit around.” Defendant wanted to “subdue”
Robert and “get his attention” so he grabbed Robert and “threw him around the kitchen.”

3
  A police officer testified that when he searched the house he saw an apparent knife-hole
in the carousel picture.


                                             5
Robert “attacked back” and the men “wrestled.” At some point Robert hit defendant with
a glass plate. Robert either grabbed defendant’s knife or the knife fell out of its sheath.
The men fought for control of the knife. Defendant said he gained control of the knife
and Robert immediately ran out the door. Defendant said if Robert was stabbed, it
happened accidentally during the fight for the knife. The police told defendant Robert
was dead and defendant needed to tell the truth. Defendant denied stabbing Robert and
said Robert fell on the knife.
       After additional questioning, defendant admitted threatening Robert with the
knife. Defendant continued to claim the men wrestled and fought over a dropped knife
but now admitted gaining control of the knife and gesturing with it to make Robert back
away. Defendant said he was “trying to probe” Robert by poking the knife toward him to
get him to “back the fuck off.” Defendant said Robert failed to move out of the way and,
instead, “pivoted” or “spun.” The police asked “And that’s when the knife went in him?”
Defendant answered, “Yeah. Maybe so far.” Defendant said the knife struck Robert on
the left side. Defendant insisted. “it . . . wasn’t my intent to . . . stab him. My intent [was]
to . . . regain control of the knife and intimidate him to get the fuck out of there.” The
police asked defendant if he punched Robert during the altercation and defendant said
“one time,” in the left eye.
       When he was videotaped, defendant depicted the stabbing by holding an
imaginary knife in a vertical position. Investigation revealed the stabbing wound to be
horizontal. A police officer confronted defendant with this fact after the videotaped
interview and defendant said he may have brought the knife around to the horizontal.

Lesley’s trial testimony

       Lesley testified about Robert’s pervasive physical abuse of her and defendant’s
knowledge of that abuse. On one occasion, Robert held a gun to her head. Another time,
he held a knife to her throat and threatened to kill her.
       On the day of the stabbing, Robert became agitated, argued with her and stabbed a
picture on the bedroom wall. The picture was the last birthday present she received from


                                               6
her father who died when she was a child. Lesley was in the bedroom when Robert
stabbed the picture and was afraid Robert was going to stab her. Lesley ran outside to get
defendant. Defendant entered the house and Lesley told him Robert stabbed the picture
and she was “scared for [her] life.” Lesley took her small dog into the bedroom to calm it.
She heard scuffling from the kitchen but did not see the altercation.
                                        Discussion
1. Evidence of the victim’s belief that defendant was associated with the Hell’s Angels
was admissible to show the victim’s state of mind during his altercation with defendant.
Moreover, any error in admitting the evidence or related evidence connecting defendant
with the Hell’s Angels was not prejudicial.
       Defendant contends the trial court prejudicially erred when it refused to exclude
evidence of his connection to the Hell’s Angels. Defendant’s counsel filed an in limine
motion to exclude “any statements or other evidence concerning [defendant’s] alleged
membership or association with the Hell’s Angels Motorcycle Club or that he was
assigned to be Lesl[ey] Shaner’s ‘protector.’ ” The prosecution opposed the motion,
arguing the evidence relevant to Robert’s state of mind and thus his likely response to
defendant’s attack. The prosecutor also maintained “the fact that the defendant held
himself out [as Lesley’s] Hell’s Angels protector before this incident goes to his motive
and intent, for he apparently felt duty bound to eliminate Robert Shaner from Lesley
Shaner’s life for her future safety.” The court denied the motion, finding the evidence
relevant to Robert’s state of mind, defendant’s position as a protector, and the
identification of the defendant in Robert’s 911 call.
       Defendant argues that evidence of his connection with the Hell’s Angels was
slight, of limited relevance, and should have been excluded as more prejudicial than
probative. (Evid. Code, § 352.) It is true that there was little evidence connecting
defendant to the Hell’s Angels. The record shows only that he drove a motorcycle, wore a
Hell’s Angels shirt and possessed Hell’s Angels stickers and event advertisements. In
fact, defendant was not a member of the Hell’s Angels, as the Attorney General concedes
on appeal. Moreover, whatever defendant’s connection to the group, there was no
allegation that the stabbing was motivated by that connection. Defendant stabbed his


                                              7
girlfriend’s estranged husband during a domestic altercation, not to further the purposes
of the Hell’s Angels.
         The Attorney General argues that evidence of defendant’s connection to the Hell’s
Angels was relevant to prove the identity of the stabber, noting that Robert told the 911
operator he was stabbed by a Hell’s Angels. But Robert also told the operator he was
stabbed by James Griffin, making Robert’s reference to the Hell’s Angels superfluous on
the issue of identity. Moreover, defendant admitted stabbing Robert. Identity was never at
issue.
         The Attorney General asserts that defendant was Lesley’s “gang-designated
‘protector,’ ” which explains “why he may have felt duty bound to eliminate Robert and
may have acted more quickly than permissible for the protection of Lesley’s safety.” The
record does not support that assertion. Defendant was not a “gang-designated
‘protector.’ ” The evidence established only that Lesley’s dying brother — who had no
ties to the Hell’s Angels — asked defendant to take care of Lesley, whom defendant had
known since childhood.
         Nevertheless, the Hell’s Angels evidence was relevant for one of the reasons
offered by the Attorney General: to prove Robert believed defendant was associated with
the Hell’s Angels and would have been fearful of initiating or escalating a fight with a
motorcycle club associate, contrary to defendant’s police account. Defendant argues that
for this purpose the evidence was “only tangentially relevant” and its scant relevance was
outweighed by the prejudicial impact of suggesting gang affiliation.
         Gang affiliation “ ‘may have a highly inflammatory impact on the jury’ ” and thus
trial courts “ ‘should carefully scrutinize such evidence before admitting it.’ ” (People v.
McKinnon (2011) 52 Cal.4th 610, 655, quoting People v. Williams (1997) 16 Cal.4th 153,
193.) “[A]dmission of evidence of a criminal defendant’s gang membership creates a risk
the jury will improperly infer the defendant has a criminal disposition and is therefore
guilty of the offense charged.” (Williams, supra, at p. 193.)
         However, our review of a trial court’s evidentiary rulings are deferential. “On
appeal, we review for abuse of discretion a trial court’s ruling on whether evidence is


                                               8
relevant, not unduly prejudicial, and thus admissible.” (People v. McKinnon, supra, 52
Cal.4th at p. 655.) We cannot say the trial court abused its discretion in admitting
evidence of defendant’s connection to the Hell’s Angels. Robert apparently believed
defendant was a member of Hell’s Angels and that belief was at the forefront of his mind
when he reported the stabbing to the 911 operator. Defendant’s claim of self-defense put
at issue Robert’s conduct and his likely reaction to the altercation. We do have concerns,
however, about the extent of the evidence admitted. While Robert’s statement to the 911
operator describing defendant as a Hell’s Angel and defendant’s Hell’s Angel shirt worn
at the time of his confrontation with Robert were relevant, evidence of the Hell’s Angels
stickers and advertisements in defendant’s vest pocket were out of Robert’s view and
presented a stronger case for exclusion.
       However, any error in admitting evidence of defendant’s Hell’s Angels connection
was not prejudicial in light of instructions limiting use of the evidence that were given
and the state of the evidence as a whole. The court gave a limiting instruction advising
the jury that Hell’s Angels items found on defendant when he was arrested were
“admitted for the limited purpose of determining what may or may not have been in the
mind of the decedent, Mr. Shaner.” The court cautioned the jury that the evidence should
not be used to conclude that defendant is, in fact, “associated or affiliated with the Hell’s
Angels.” Moreover, there was compelling evidence of defendant’s guilt independent of
the Hell’s Angels evidence. There was essentially uncontradicted evidence of a savage
beating and intentional stabbing wholly inconsistent with defendant’s account. Defendant
claimed he punched Robert “one time” and accidentally stabbed Robert when Robert
“pivoted” into the knife defendant was holding to fend him off. Yet, Robert’s neighbor
testified that when Robert came to her door seeking help “he had blood all over the top of
his head running down the side of his head, his eyes were red and swollen, he had gashes
in his face, he had marks on his neck, he had a large gash . . . [to] his right hand, and he
was generally beat up all over.” The autopsy confirmed the neighbor’s observations,
finding that Robert had been strangled, repeatedly punched in the face with great force,
and suffered deep cuts to his hand characteristic of defensive wounds incurred by a


                                              9
person resisting knife thrusts. The fatal injury could not have been incurred by Robert
turning into a knife held stationary in defendant’s hand. The knife went into Robert’s
back and penetrated four inches. The autopsy findings were consistent with Robert’s
dying words: “James attacked me. He went crazy on me. He hit me, beat me and knifed
me.” Any error in admitting evidence of defendant’s connection to the Hell’s Angels was
harmless.

2. The standard jury instruction on voluntary manslaughter correctly states the law.

       Defendant claims the standard jury instruction on voluntary manslaughter,
CALCRIM No. 570, misstates the law of “by suggesting that victim-caused provocation
is essential to reduce murder to manslaughter” for killing in the heat of passion or during
a sudden quarrel. Defendant argues that heat of passion and sudden quarrel are “two
different concepts” and that victim-caused provocation is required for a heat of passion
defense but not for a sudden quarrel defense. Defendant maintains that “ ‘sudden quarrel’
replaces provocation by the victim as a cause of the passion that can reduce a homicide
from murder to manslaughter” and thus provocation should not be listed as an element of
a sudden quarrel manslaughter defense.
       Defendant did not raise this claim in the trial court and thus has forfeited it on
appeal. Defendant did not object to CALCRIM No. 570 nor seek modification of the
instruction. In closing argument to the jury, defendant claimed self-defense or voluntary
manslaughter without differentiating, as he does on appeal, between heat of passion and
sudden quarrel.
       The claim also fails on the merits because it is based on a misunderstanding of
voluntary manslaughter and the role of provocation. Voluntary manslaughter is properly
defined by CALCRIM No. 570, which states in relevant part: “A killing that would
otherwise be murder is reduced to voluntary manslaughter if the defendant killed
someone because of a sudden quarrel or in the heat of passion. [¶] The defendant killed
someone because of a sudden quarrel or in the heat of passion if: [¶] 1. The defendant
was provoked; [¶] 2. As a result of the provocation, the defendant acted rashly and under


                                             10
the influence of intense emotion that obscured (his/her) reasoning or judgment; [¶] AND
[¶] 3. 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. [¶] Heat of
passion does not require anger, rage, or any specific emotion. It can be any violent or
intense emotion that causes a person to act without due deliberation and reflection. [¶] In
order for heat of passion to reduce a murder to voluntary manslaughter, the defendant
must have acted under the direct and immediate influence of provocation as I have
defined it. While no specific type of provocation is required, slight or remote provocation
is not sufficient. Sufficient provocation may occur over a short or long period of time.
[¶] It is not enough that the defendant simply was provoked. The defendant is not allowed
to set up (his/her) own standard of conduct. You must decide whether the defendant was
provoked and whether the provocation was sufficient. In deciding whether the
provocation was sufficient, consider whether a person of average disposition, in the same
situation and knowing the same facts, would have reacted from passion rather than from
judgment.”
       The instruction correctly states that provocation is an essential element of
voluntary manslaughter. “An intentional, unlawful homicide is ‘upon a sudden quarrel or
heat of passion’ (§ 192(a)), and is thus voluntary manslaughter (ibid.), if the killer’s
reason was actually obscured as the result of a strong passion aroused by a ‘provocation’
sufficient to cause an ‘ “ordinary [person] of average disposition . . . to act rashly or
without due and reflection, and from this passion rather than from judgment.” ’ ” (People
v. Breverman (1998) 19 Cal.4th 142, 163.) Defendant misconstrues provocation as
“victim-caused provocation” and, from that misconstruction, reasons that provocation is
not required for a killing upon a sudden quarrel. In fact, legal provocation within the
meaning of voluntary manslaughter is broader than victim-generated provocation and
encompasses acts or circumstances that would “ ‘render an ordinary person of average
disposition “liable to act rashly or without due deliberation and reflection, and from this
passion rather than from judgment.” ’ ” (People v. Duff (2014) 58 Cal.4th 527, 562.) As
CALCRIM No. 570 correctly states, “no specific type of provocation is required.” “Heat


                                              11
of passion does not require anger, rage, or any specific emotion. It can be any violent or
intense emotion that causes a person to act without due deliberation and reflection.”
(Ibid.)
          It has long been recognized that a killing committed “in the heat of passion,
excited by a quarrel, sudden, and of sufficient violence to amount to provocation” is
manslaughter. (People v. Freel (1874) 48 Cal. 436, 437.) A sudden quarrel does not
replace provocation as an element of the offense, as defendant claims, but is a type of
provocation. (People v. Beltran (2013) 56 Cal.4th 935, 946.) The jury was properly
instructed.

3. The prosecutor misstated the law in her closing argument to the jury but the errors
were not prejudicial.

          Defendant contends the prosecutor committed misconduct during closing
argument to the jury by misstating the law and referring to facts not in evidence. We
discuss each claimed instance in turn.
          Voluntary Manslaughter
          The prosecutor discussed voluntary manslaughter extensively in her closing
argument. She explained that the jurors had to decide if defendant “was provoked and
you have to decide if you think that provocation was sufficient.” The prosecutor said
“defendant is not allowed to set up his own standard of conduct for heat of passion or
provocation” and offered the example of a gang member who identifies with one color
who angrily and impulsively kills a person dressed in another color associated with a
rival gang. The prosecutor said such a killing is based on an individual standard of
conduct and is not manslaughter, which uses “a community standard.” She argued: “the
idea behind manslaughter . . . is that we as a community all acknowledge that anyone in
this circumstance would have had the same reaction.” Defense counsel objected that the
argument misstated the law. The court overruled the objection and informed the jurors
that attorneys are allowed to argue their view of the law but the jurors must follow the
instructions given by the court.



                                               12
       Defendant contends the prosecutor misstated the law by implying that legally
adequate provocation is found only if every person, even “saintly individuals,” would
react rashly to a given situation when the correct standard requires only that a reasonable
person be provoked. Standing alone, the prosecutor’s reference to “anyone” is unclear
and arguably capable of the interpretation defendant proffers. But the prosecutor soon
clarified matters by explaining that the jury must decide “if a reasonable person would
have been so impassioned in the same situation.” Judged as a whole, the prosecutor did
not misstate the law and, if she did, any misstatement was slight, quickly corrected and
unlikely to mislead the jury. “[A] court should not lightly infer that a prosecutor intends
an ambiguous remark to have its most damaging meaning or that a jury, sitting through a
lengthy exhortation, will draw that meaning from the plethora of less damaging
interpretations.” (Donnelly v. DeChristoforo (1974) 416 U.S. 637, 647; accord People v.
Tully (2012) 54 Cal.4th 952, 1048.)
       Nor did the prosecutor misstate the law in arguing that a verdict of voluntary
manslaughter requires a finding that the defendant acted from passion rather than from
judgment. The prosecutor argued that defendant acted with conscious thought in
removing Robert’s knife from Lesley’s carousel picture, folding the knife, confronting
Robert, beating him, stabbing him, and fleeing the scene: “He is not so impassioned that
he is not exercising judgment and flying off the handle.” Defendant claims the argument
was improper because one may exercise judgment while acting in the heat of passion.
Defendant is mistaken. One kills in a heat of passion if one “simply reacts from emotion
due to the provocation, without deliberation or judgment.” (People v. Beltran, supra, 56
Cal.4th at p. 950.)
       Defendant is correct, however, in noting one misstatement in the prosecutor’s
discussion of voluntary manslaughter. The prosecutor asked the jurors: “Would a
reasonable person have been so impassioned that they would have killed in this situation?
. . . We could expect you to be upset if you think someone is putting your girlfriend down
and calling her bad names and scaring her. Would the reasonable person be so upset that
they would kill? That’s for you to decide.”


                                              13
       The California Supreme Court has rejected the view that “provocation must be of
a kind that would cause an ordinary person of average disposition to kill.” (People v.
Beltran, supra, 56 Cal.4th at p. 938.) The court explained that “provocation 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.” (Id. at p. 949.)
       Defendant failed to object to the prosecutor’s misstatement of the law, thus
forfeiting the issue on appeal. (People v. Najera (2006) 138 Cal.App.4th 212, 223.)
Moreover, the error was harmless. Most of the prosecutor’s recitation of the law on
manslaughter was correct and properly focused on the defendant’s state of mind. The jury
was also properly instructed to direct its attention to determining whether “the defendant
acted rashly and under the influence of intense emotion that obscured his reasoning or
judgment.” (CALCRIM No. 570.) The court cautioned the jury that the prosecutor and
defense counsel may argue their view of the law but that the jury must follow the court’s
instructions. We presume the jury followed that instruction. (Najera, supra, at p. 224.)
       Self-defense
       The prosecutor addressed defendant’s claims of self-defense and imperfect self-
defense in closing argument to the jury. The prosecutor argued that Robert’s vandalism of
Lesley’s picture was “mean” but that Robert presented no present physical danger to
Lesley or defendant. The prosecutor maintained that defendant pursued Robert into the
kitchen, attacked him by throwing him against the refrigerator, and proceeded to beat and
stab him without any real or perceived threat from the far smaller Robert. The prosecutor
said self-defense and imperfect self-defense “cannot be contrived, it does not apply to the
aggressor. If you do indeed find that the defendant in seeking out Mr. Shaner and
throwing him against the refrigerator, is the aggressor in this situation, self-defense
doesn’t apply and imperfect self-defense doesn’t apply. They are both off the table.”
       Defendant contends the prosecutor misrepresented the law of self-defense. The
contention is forfeited for failure to object in the trial court and, in any event, is meritless.
The prosecutor correctly stated the law. As the jury was instructed, “The right to use


                                               14
force in self-defense or defense of another continues only as long as the danger exists or
reasonably appears to exist. When the attacker withdraws or no longer appears capable of
inflicting any injury, then the right to use force ends.” (CALCRIM No. 3474.) Also, “A
person does not have the right to self-defense or defense of others if he or she provokes a
fight or quarrel with the intent to create an excuse to use force.” (CALCRIM No. 3472.)
By statute, one may not claim self-defense if one was the aggressor absent an effort “to
decline any further struggle before the homicide was committed.” (§ 197, subd. (3).) The
prosecutor did not misrepresent the law in referring to this well-established principle.
          Food Stamp Application
          Defendant claims the prosecutor referred to facts not in evidence in discussing an
exhibit that was marked in evidence but not admitted. The exhibit was, in fact, admitted
in evidence and thus a proper subject of closing argument.
          At issue is People’s exhibit 48, which is a packet of papers found at defendant’s
home with his name on them used as indicia of residency. Among the papers is a food
stamp application defendant signed a week before the stabbing in which defendant
declared, under penalty of perjury, that he had no income. The prosecutor noted that
defendant told the police he was working and argued that defendant lied either to the
police or to the welfare agency, showing defendant to have “an honesty problem.” The
prosecutor proceeded to question the truthfulness of defendant’s other assertions to the
police.
          Defendant contends the referenced exhibit was not admitted in evidence. The
exhibit list, however, shows the evidence as both marked for identification and admitted
on March 23, 2012, during witness testimony. Defendant says the exhibit list is in error
and points to the trial judge’s statement, recorded in the reporter’s transcript for that day,
deferring a ruling on admissibility. Defendant overlooks the possibility that a ruling was
made later that was not transcribed by the court reporter. We note that the court, on
March 26, 2002, said the exhibit had been admitted “after the cross.”
          Even if defendant is correct and the exhibit was not admitted on the day indicated
in the exhibit list, it was certainly admitted before the prosecutor referenced it in closing


                                               15
argument. When the prosecutor began to discuss the exhibit, defense counsel objected
and a discussion between court and counsel was held off the record. A record of the
objection was later made outside the presence of the jury. In objecting, defense counsel
said he did not think the exhibit had been admitted and questioned its relevancy. The
court said the exhibit was admitted and overruled the objection. If the document had not
been admitted previously, it was admitted during closing argument, before the prosecutor
commented upon it.
       Defendant’s credibility
       The prosecutor returned to the issue of defendant’s credibility in her rebuttal. The
prosecutor quoted a portion of CALCRIM No. 226: “If you decide that a witness
deliberately lied about something significant in this case, you should consider not
believing anything that witness says.” The prosecutor remarked: “This is an important
principle. It applies not only to the defendant’s statement, but it applies to any other
witnesses.” Defense counsel objected and, following a discussion at the bench, the
objection was overruled. The prosecutor continued her argument: “So ultimately, ladies
and gentlemen, you are going to be the judges of credibility of everybody that testified,
and even of the defendant when you look at his statement.”
       The prosecutor erred by including defendant’s police statement within the ambit of
CALCRIM No. 226, which is concerned with witnesses who testify under oath. But we
reject defendant’s contention that the error was prejudicial. The jury was called upon to
evaluate the credibility of defendant and trial witnesses alike. The jurors were instructed
to determine if there were conflicts in the evidence and to “decide what evidence, if any,
to believe.” (CALCRIM No. 302.) The jurors were also instructed that if defendant
“made a false or misleading statement before this trial relating to the charged crime,
knowing the statement was false or intending to mislead, that conduct may show he was
aware of his guilt of the crime and you may consider it in determining his guilt.”
(CALCRIM No. 362.)
       Defendant argues that CALCRIM No. 226 encourages the jury to disregard the
entire testimony of a witness who lied about one thing and, in invoking that instruction,


                                             16
the prosecutor subjected defendant’s police statement to an exacting standard that should
not apply to unsworn statements. CALCRIM No. 226 is not as exacting as defendant
represents. The instruction does provide, as the prosecutor noted: “If you decide that a
witness deliberately lied about something significant in this case, you should consider not
believing anything that witness says.” (CALCRIM No. 226.) But the instruction also
provides: “[I]f you think the witness lied about some things, but told the truth about
others, you may simply accept the part that you think is true and ignore the rest.”
(CALCRIM No. 226.) The instruction did not relieve the jury of its obligation to evaluate
the credibility of defendant’s various statements to the police, both exculpatory and
inculpatory.

4. The trial court did not err in removing a juror during deliberations upon learning the
juror concealed material information on voir dire.

        Defendant contends the trial court violated his right to due process by removing a
juror during deliberations. The Attorney General maintains that removal was proper
because the juror concealed material facts during voir dire that raised an inference of
bias.
        Facts
        On the second day of deliberations, the foreperson sent a note to the judge
complaining that two jurors were not following instructions. The judge questioned the
foreperson with the prosecutor and defense counsel present. The foreperson said she and
about six other jurors were concerned that Jurors Nos. 36 and 92 were speculating and
not focusing on the instructions. The court questioned both jurors. Relevant here is Juror
No. 36. The court asked Juror No. 36 if she had any concerns with the instruction
requiring her “not to speculate or consider things that are not in the record” and she said
“no.” The court noted that a murder case can affect people emotionally and asked if the
case was “tough” for her. Juror No. 36 replied: “No, I’m fine with it. I’ve been around a
lot, so it’s – you know, I’ve experienced a lot of stuff so it’s not bothering me
emotionally or mentally or anything.” The judge advised her, “we all have our life
experiences . . . [b]ut . . . you can’t bring in thoughts of what you’ve experienced in life

                                              17
and apply it as evidence.” The juror said she understood. The court saw no cause to
excuse Juror No. 36 and deliberations resumed.
       Juror No. 36’s comment about experiencing “a lot of stuff” led the prosecutor to
investigate. The next day, the prosecutor told the court the juror had arrests for domestic
violence and other criminal offenses that the juror concealed during voir dire. A jury
questionnaire asked several questions about the prospective jurors’ personal experiences
with crime: “Have you[,] a family member[,] or household member or close friend ever
been a victim, witness, or defendant in a criminal matter?”; “Have you or any of your
immediate family members or close friends ever been a victim of a serious physical
assault?”; and “Have you or any of your immediate family members or close friends ever
been a suspect or charged with a crime?” Juror No. 36 answered “no” to each question.
       In fact, the juror had been arrested in September 2009 for infliction of personal
injury on a spouse. (§ 273.5, subd. (a)) The arresting agency was the same as the
investigating agency in the present case. The prosecutor in the present case had
“personally reviewed” the file and charged Juror No. 36 with four criminal counts,
including assault with a deadly weapon. (§ 245, subd. (a)(1).) The prosecutor had not
recalled during voir dire that she had filed a criminal complaint against the juror. Juror
No. 36 had been referred to the public defender and appeared in court on the 2009
incident. The case was ultimately dismissed but a restraining order remained in effect at
the time of defendant’s trial. The juror had also been arrested, but not convicted, in 2004
for domestic violence and in the 1990s for drunk driving and driving with a suspended
license.
       The court questioned Juror No. 36. The court said the juror’s comments led it to
check the files, where it was discovered she had been arrested for domestic violence.The
court asked Juror No. 36 why she said “no” when asked on the juror questionnaire if she
had ever been charged with a crime. The juror replied, “Okay. Um, are you under the
impression that I was involved in something? Because when I went to court for that it
was dismissed so I was under the assumption that, you know, that was beside me and no
longer a question of — because it was dismissed.” The juror further explained that the


                                             18
2009 arrest involved an “accident” with her ex-husband. The juror did not remember who
the Deputy District Attorney was on the case. The court asked Juror No. 36 if she had
other arrests for domestic violence and she said, “Um, no. Not that I recall ever” but also
said “I had a very rocky marriage for a long time.” The court asked “How about in
2004?” and the juror, at first, said he did not remember being arrested but then said her
husband called the police because she threw a salt shaker at him. The court asked Juror
No. 36 if the arrests and allegations against her were influencing her process as a juror.
The juror said “Absolutely not.”
       The court asked if a weapon was involved in the 2009 incident. The juror said a
knife was involved. Asked to explain, the juror gave a long description of her relationship
with her husband then said: “one morning I got up and he was sleeping on the couch and
he had been very, very, very nasty, cutting me with words like a knife, and I got a knife
out and said, ‘Good morning, son of a bitch.’ He woke up and hit the knife and cut
himself. Then he calls the cops and made a big scene and everything, but it was truly an
accident.” The juror said, “I’m not a violent person — I did not thrust the knife at him in
a stabbing manner, so it was just something like that.”
       The prosecutor asked the court to remove Juror No. 36. The prosecutor said “We
had many discussions with the panel about domestic violence and those sorts of things
and none of this was brought up. It was like it didn’t exist. And then to hear her say . . .
that she stabbed him with a knife but she didn’t thrust the knife at him . . . in a stabbing
manner, it was an accident, it sounds like such a similar issue as to what’s at issue in this
case that I can tell the court that had we had truthful answers . . . the People would have
sought to excuse her for cause. And we find that her failure to tell the truth on the
questionnaire is very problematic.” The prosecutor said Juror No. 36 falsely answered no
to multiple questions, including the question “Have you or anyone in your household ever
owned, carried or used a knife as a weapon?”
       Defense counsel said the juror had not been deliberately evasive but mistakenly
thought that dismissed charges were “water under the bridge” that did not have to be
reported on the juror questionnaire. As for the knife, counsel noted that Juror No. 36 said


                                              19
she accidentally cut her husband. Defense counsel argued that the “bottom line is whether
she can deliberate what’s in front of her” and the juror indicated she could.
       The court removed Juror No. 36 and replaced her with an alternate. The court
explained the basis for its decision: “I watched her carefully while we were talking and I
noted a number of things. One, she was speaking very fast and I was trying to interact
with her and she wouldn’t really let me get in on some of my comments to her. She tells a
big story. I also consider the previous comments by the jury foreperson about her
conduct. And in listening to her story it sounds vaguely familiar. An incident involving
domestic violence with her spouse where her spouse was apparently not a very good
person in her mind. A knife comes out. A knife is used. He’s cut. This has so much
similarity to our case here that I don’t see how it cannot affect her ability to be fair. And
honestly, after looking at her responses to the questions and her explanation, she didn’t
really explain, well, how she could misunderstand [questions asking about criminal]
charges . . . or [being a] suspect in a criminal matter when she had been arrested twice on
domestic violence matters. I do believe that she was untruthful in her response.”
       Discussion
       “The trial court may discharge a juror for good cause at any time, including during
deliberations, if the court finds that the juror is unable to perform his or her duty.
(§ 1089.) ‘When a court is informed of allegations which, if proven true, would constitute
good cause for a juror’s removal, a hearing is required. [Citations.] [Citation.] If the trial
court has good cause to doubt a juror’s ability to perform his duties, the court’s failure to
conduct a hearing may constitute an abuse of discretion on review. [Citations.] ‘Grounds
for investigation or discharge of a juror may be established by his statements or conduct,
including events which occur during jury deliberations and are reported by fellow
panelists.’ ” (People v. Lomax (2010) 49 Cal.4th 530, 588.)
       “Although decisions to investigate juror misconduct and to discharge a juror are
matters within the trial court’s discretion [citation], we have concluded ‘a somewhat
stronger showing’ than is typical for abuse of discretion review must be made to support
such decisions on appeal.” (People v. Lomax, supra, 49 Cal.4th at p. 589.) The California


                                              20
Supreme Court has held that “the basis for a juror’s disqualification must appear on the
record as a ‘demonstrable reality.’ This standard involves ‘a more comprehensive and
less deferential review’ than simply determining whether any substantial evidence in the
record supports the trial court’s decision. [Citation.] It must appear ‘that the court as trier
of fact did rely on evidence that, in light of the entire record, supports its conclusion that
bias was established.’ [Citation.] However, in applying the demonstrable reality test, we
do not reweigh the evidence. [Citation.] The inquiry is whether ‘the trial court’s
conclusion is manifestly supported by evidence on which the court actually relied.’ ”
(Ibid.)
          The evidence fully supports the juror’s removal. “ ‘[I]ntentional concealment of
material information by a potential juror may constitute implied bias justifying his or her
disqualification or removal.’ ” (People v. San Nicolas (2004) 34 Cal.4th 614, 644.) The
trial court reasonably concluded that Juror No. 36’s failure to disclose her arrests for
domestic violence was intentional given multiple questions on the subject and her
unequivocal denials. In finding intentional concealment, the trial court noted that Juror
No. 36 wrote “Don’t understand” on the juror questionnaire when responding to some
questions yet expressed no lack of understanding when answering “no” to questions
asking if she had ever been a defendant in a criminal matter or charged with a crime. The
court concluded that the juror’s responses were deliberate misrepresentations, not
inadvertent errors caused by misunderstanding the questions. “ ‘Whether a failure to
disclose is intentional or unintentional and whether a juror is biased in this regard are
matters within the discretion of the trial court. . . . . [T]he trial judge is in the best position
to assess the state of mind of a juror or potential juror on voir dire examination.’ ” (Ibid.)
          The evidence also supports the trial court’s finding that the concealed information
was material to the case. Juror No. 36 had been twice arrested for domestic violence,
including an incident involving use of a knife. Domestic violence was a central issue in
the case being tried, as was use of a knife by one claiming accidental infliction of injury.
The court found the incident involving Juror No. 36 shared “so much similarity to our
case here that I don’t see how it cannot affect her ability to be fair.” A proper basis for


                                                21
removing the juror “appear[s] on the record as a ‘demonstrable reality.’ ” (People v.
Lomax, supra, 49 Cal.4th at p. 589.)
       Defendant maintains that Juror No. 36 was discharged because she may have been
holding out for acquittal. The discharge of a holdout juror raises special concerns because
“ ‘a unanimous criminal verdict is an important safeguard [that] rests on the premise that
each individual juror must exercise his or her own judgment in evaluating the case.’ ”
(People v. Harrison (2013) 213 Cal.App.4th 1373, 1382.) These concerns do not arise
here because Juror No. 36 was not a holdout juror and her evaluation of the case played
no role in the decision to remove her from the jury. The investigation of Juror No. 36
occurred early in the deliberation process and was prompted by the foreperson’s
complaint that two jurors were not following the law as instructed by the judge. No
deadlock in the jury’s deliberations was reported and the individual jurors’ views on the
merits of the case were never revealed. Juror No. 36’s removal was not based on her
position on the merits, which was unknown to court and counsel. Nor was her removal
based on the complaints of some of her fellow jurors that she was not following the
court’s instructions. Defendant suggests that such complaints may derive from
disagreement on the merits of the case and thus provide weak support for juror removal.
(United States v. Symington (9th Cir. 1999) 195 F.3d 1080, 1088.) In this case,
complaints that Juror No. 36 was not following instructions initiated an investigation but
those complaints were not the basis for removal. Juror No. 36 was removed because
further investigation disclosed the juror intentionally concealed material information
during voir dire. The impetus for Juror No. 36’s removal came from misrepresentations
she made during voir dire, not from her position on the merits of the case. Federal
authority criticizing the removal of a juror where it is “reasonably possible that the
impetus for . . . dismissal came from her position on the merits of the case” is thus
inapplicable. (Ibid.) Juror removal was proper.




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                                 Disposition
     The judgment is affirmed.




                                          _________________________
                                          Pollak, J.


We concur:


_________________________
McGuiness, P. J.


_________________________
Siggins, J.




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