Filed 5/22/13 P. v. Trinidad CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F062786
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F11900271)
                   v.

JORGE MARTIN TRINIDAD,                                                                   OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Fresno County. Arlan L.
Harrell, Judge.
         Joanne Kirchner, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kari L.
Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
       Fifteen-year-old defendant Jorge Martin Trinidad was convicted of first degree
murder and second degree robbery after he repeatedly stabbed Marcella Ramos and took
her purse. On appeal, he contends (1) the trial court erred in refusing to instruct the jury
on the right to use force to recover stolen property, (2) the trial court erred in refusing to
instruct the jury on the claim-of-right defense to robbery, and (3) defense counsel was
ineffective for failing to object to the prosecutor’s closing argument on provocation and
voluntary manslaughter. We will affirm.
                               PROCEDURAL SUMMARY
       On February 17, 2011, the Fresno County District Attorney charged defendant
with first degree murder (Pen. Code, § 187, subd. (a);1 count 1) and second degree
robbery (§ 211; count 2). As to count 1, the information further alleged that defendant
personally used a knife during the commission of the crime (former § 12022,
subd. (b)(1)).
       A jury found defendant guilty on both counts and found the special allegation true.
The trial court sentenced defendant to 25 years to life on count 1, plus a one-year
enhancement on the special allegation. The court stayed sentence on count 2.
                                           FACTS
       On October 14, 2010, sometime around 6:00 a.m., Dolores dropped off her
33-year-old cousin, Marcella, near a gas station on the northwest corner of Winery and
Kings Canyon. Marcella was there to engage in prostitution. She walked north toward
the Big Lots store on the same corner. About 20 to 25 minutes later, Dolores received a
call from Marcella, telling her to come back and pick her up near the Big Lots store.
Dolores heard rustling sounds and thought Marcella sounded out of breath.
       When Dolores arrived, she saw Marcella on the sidewalk on the west side of
Winery, near the Big Lots store. Dolores realized Marcella was having difficulty
1      All statutory references are to the Penal Code unless otherwise noted.



                                              2.
breathing and she saw blood on the left side of her abdomen. Dolores got help from
passers-by who called the police.
       At about 6:30 a.m., Officers Swanson and Scott arrived and found Marcella lying
on the sidewalk next to the Big Lots store on the west side of Winery. She was covered
in blood and there was blood on the sidewalk underneath her. Another Hispanic female
was standing over her yelling. Officer Swanson saw five to 10 stab wounds on Marcella,
and he attempted to stop the bleeding from her chest wounds. Marcella was gurgling and
gasping for air, unable to say anything to the officers. An ambulance arrived three to five
minutes later. Marcella had surgery at the hospital, but she did not survive.
       Detective Cervantes spoke to Dolores at the scene. She said Marcella was
carrying a black fake leather purse and a black Page Plus cell phone. When officers went
to the hospital, they learned that the purse and phone did not arrive with Marcella.
       Detective Valles arrived on the scene at 7:45 a.m. He observed a bloody jacket on
the sidewalk where Marcella had lain. A blood trail led from the jacket diagonally across
the street, ending at a black T-shirt that was in the road near the curb on the east side of
Winery. The neck of the black T-shirt had been stretched out.
       Detective Serrano determined that Marcella’s cell phone was active. It had sent a
Spanish text message after Marcella had been killed, at about 9:00 a.m., to a specific cell
phone owned by a woman in Madera. Detective Serrano visited the woman and learned
that her 15-year-old daughter, Doris, was the primary user of the phone. Detective
Serrano went to Doris’s school and spoke to her. Doris said she had received a text
message in Spanish that morning from a male named George or Jorge whom she had
recently met in Fresno. Doris accompanied Detective Serrano back to Fresno.
       Detective Cervantes spoke to Doris at the station. He translated the Spanish text
message sent from Marcella’s cell phone at 9:00 a.m. as follows: “Mija [a term of
endearment], what are you doing? This is George. This will be my phone until the
number is disconnected.”

                                              3.
       At this point, the officers determined they would use Doris to lure defendant out.
At 2:08 p.m., while the officers were discussing the plan with Doris, she happened to
receive a call from defendant. Detective Cervantes was able to record the call with his
digital recorder. According to the plan, Doris asked defendant where he was and said
they could meet later. Defendant said he was in the area of Kings Canyon and Dearing,
near the major cross streets of Kings Canyon and Chestnut. Doris told him she was going
to have her oldest sister drive her to the area so they could meet. Defendant said he
would prefer for her to pick him up on a side street because he had been involved in an
altercation and the police were looking for him. Then he apologized and said he would
have to meet her later; he had to go to his stepbrother’s because the police were going to
get him. He explained that he had gotten into a fight with some individuals that morning
at an apartment complex near Kings Canyon and Winery, which he called “[T]he
Wineries,” and that he had stabbed a female. He said the police had been investigating
the case since about 6:00 a.m., and he did not want to go out on the street. He said the
police were going to kill him.
       At 4:26 p.m., defendant called again to arrange a meeting with Doris. He said
they would meet at a bus stop near Kings Canyon and Chestnut. Then he said he would
wait in the parking stalls because he was afraid the police would be there.
       At 4:34 p.m., defendant called Doris a third time. By now, Doris was in the
backseat of an undercover vehicle with Detective Cervantes. Defendant told Doris that
he was walking with a friend to Kings Canyon and Chestnut. She asked him what he was
wearing. She told him she was there, but she had passed Chestnut and was coming
around. He giggled, then stressed to her that she should hurry because he did not want to
be out on the street for long. He told her he would to be in front of the Halloween
Superstore on the northwest corner of Kings Canyon and Chestnut. At this point,
Detective Cervantes was observing defendant and his friend. Detective Cervantes
informed undercover officers in the area. They exited their vehicles wearing tactical

                                            4.
vests and badges, approached defendant, ordered him to drop the cell phone he was
holding in his right hand and lie on the ground. The cell phone was a black Page Plus
phone. The officers conducted a pat-down search of defendant and found a folding
switchblade knife in a black nylon sheath and another cell phone, which was later found
to be inactive other than as a musical device. They arrested defendant.
      Detective Cervantes noticed that a group of people had congregated nearby to
watch the officers arresting defendant. Detective Cervantes approached and spoke to a
16-year-old boy who said defendant came to his apartment on Sierra Vista at about
7:00 a.m. that morning. Defendant told him he had been involved in a fight and had
stabbed a person. Defendant had some lottery tickets with him. Defendant cleaned a
bloody knife and changed into clean clothes. Detective Cervantes showed the boy the
switchblade knife taken from defendant and the boy identified it as the bloody knife
defendant had cleaned that morning.
      Detective Cervantes also spoke to a 16-year-old girl who said she knew defendant.
She said he came to her apartment on Dearing that morning at about 9:00 a.m. She saw
him using a Page Plus cell phone and sending text messages with it. She said defendant
told her he had been involved in a fight at about 6:00 a.m. at The Wineries apartment
complex. He said a female was trying to “get at him” and she took his wallet.
      At the station, Detective Cervantes interviewed defendant’s 17-year-old friend
who was with defendant when he was arrested. The friend said he saw defendant that
afternoon at an apartment on Dearing. Defendant told him he had been involved in a
fight. The friend saw defendant sending text messages on the black Page Plus cell phone
before he was arrested. The friend said defendant was 17 years old.
      Another person, also from an apartment on Dearing, told officers she saw
defendant with two cell phones that day. Defendant told her he had purchased the
phones, but he could not provide the name of the cell phone service provider.



                                            5.
       Detectives interviewed defendant at the station. He initially identified himself as
19-year-old Jesus Aburto. After he was read his Miranda2 rights, he agreed to speak to
the officers. He said he was drinking with some friends at an apartment complex on
Winery, just north of the crime scene. Around 6:00 a.m., he left and was walking south
on Winery toward the gas station when he met Marcella. He asked her for a lighter and
she said she did not have one. She asked him, “Do you want to do some business?”
Defendant took this to mean sexual intercourse. They agreed he would pay her $20 for
sex. He paid her and they walked into an alley perpendicular to Winery. Defendant lay
down near the trash can and Marcella faced away from him, but she got up and left
without doing what they had agreed upon. He told the officers they would find a condom
behind a U-shaped cinderblock wall dumpster enclosure at the east end of the alley.
       Defendant explained that since no sexual act had occurred, he tried to get his $20
back from Marcella. He took his knife out and told her, “Give me back my fucking
money.” She would not give him the money, so he grabbed the cell phone she was
talking on and he ran back toward the apartments. As he went into the apartment
complex, he realized he did not have his wallet. He came back onto the street and saw
Marcella. She ran when she saw him, but he caught her. She grabbed him3 and he did
not know what to do, so he grabbed her purse and took off running. Defendant did not
mention a stabbing.
       The detectives told defendant they knew he was omitting certain things and he
needed to provide more details. He then explained that after he realized his wallet was
gone, he came back to recover it. He realized it was in Marcella’s purse. When he
caught up to her, they struggled over the purse as he tried to remove it from her person.
They exchanged blows. Marcella pulled his shirt off. She punched him, and he punched

2      Miranda v. Arizona (1966) 384 U.S. 436.
3      He pointed to his crotch.



                                             6.
her a few times and pushed her to the ground. He had his knife out and he told her he
wanted his wallet back. She had the purse on her right side and she would not let go of it,
so he got on top of her and stabbed her two to five times on the left side of her torso.
Defendant demonstrated this for the detectives with a few “very, very slight,” slow, and
“nonchalant” stabbing motions.
       After stabbing her, he took the purse and ran north through an apartment complex.
On his way, an unknown male looked as though he was going to try to swing at him, so
he punched the male in the face. Defendant jumped a fence and then went through the
purse to remove the contents. He took his wallet and some lottery tickets from the purse.
He left the purse and the remaining contents in the back of the apartment complex. He
still had Marcella’s cell phone. Defendant told the detectives he knew what he did was
wrong, but it was her fault, not his.
       Based on defendant’s information, officers went to the alley behind the strip mall.
At the end of the alley, behind a U-shaped cinderblock wall, they found an unused
condom and a condom wrapper in the location defendant had specified.
       Officers also went to the location defendant said he left Marcella’s purse. They
found the purse with the contents—including makeup, a compact, some condoms, a
child’s pacifier, and identification cards—strewn about.
       Defendant took officers to a backpack hidden under a car at the Sierra Vista
apartment complex (where he had changed his clothes that morning). The backpack
contained used lottery tickets.
       Defendant’s alien registration card with his picture showed him to be 21 years old.
Elementary school transcripts, however, showed him to be only 15 years old. At this
point, Detective Cervantes did not know if defendant was 15, 17, 19, or 21 years old. In
a second interview, Detective Cervantes inquired again. This time, defendant gave his
true name and birth date, and explained that he had the registration card because he



                                             7.
needed to be a certain age to work. Defendant weighed about 150 pounds and was the
appropriate size for a 15-year-old.
       Dr. Chambliss, a pathologist, conducted the autopsy on Marcella’s body on
October 15, 2010. Marcella weighed 156 pounds, and her system contained some
methamphetamine, but no alcohol. The cause of her death was a stab wound to the chest
that penetrated the heart’s left ventricle and caused her to bleed to death within minutes.
Another chest stab wound was directed downward, penetrating the spleen. She suffered
five other wounds to the left chest area that did not penetrate her body cavity. In
addition, she suffered wounds under her arm, on the back of her right forearm
(completely penetrating her arm), on the front of her right forearm, on her upper left arm,
and on her lower left leg. In total, Marcella suffered 16 stab and puncture wounds.
       According to Dr. Chambliss, the knife found on defendant could have created the
type of wounds on Marcella’s body.
       In addition to the stab wounds, Dr. Chambliss found a blunt trauma injury, an
internal bruise, on the left side of Marcella’s scalp, just above her forehead. Dr.
Chambliss saw no injuries, including defensive wounds, on Marcella’s hands.
       Dr. Chambliss examined Marcella’s jacket and sweatpants and determined that the
damage to the clothing was consistent with her stab wounds.
       On cross-examination, Dr. Chambliss explained that Marcella would have been
able to engage in activity after being wounded until her blood pressure dropped too low
and/or the blood accumulated around her heart and stopped its functioning. The
methamphetamine in her system could have made her more excitable and aggressive, and
possibly stronger. It also could have raised her blood pressure. Dr. Chambliss agreed
that her leg wounds could have occurred while her legs were raised, and the wound under
her arm could have occurred if she lifted her arm to attack.




                                             8.
                                      DISCUSSION
I.     Instruction on Right to Recover Stolen Property
       Defendant contends the trial court erred in failing to instruct sua sponte that a
homicide may be justified when a robbery victim uses reasonable force to recover stolen
property. Defendant asserts that he was relying on this defense and there was substantial
evidence that he used force against Marcella to retrieve his stolen wallet. He argues that
the question of whether the force he used to recover his wallet was reasonable or
excessive was a question for the jury. He maintains that the failure to instruct was not
harmless because, had the jury been instructed properly, he likely would have been
convicted of a lesser crime than first degree murder. We conclude any error was
harmless.
       Robbery is “the felonious taking of personal property in the possession of another,
from his person or immediate presence, and against his will, accomplished by means of
force or fear.” (§ 211.) “‘[M]ere theft becomes robbery if the perpetrator, having gained
possession of the property without use of force or fear, resorts to force or fear while
carrying away the loot. [Citations.] In order to support a robbery conviction, the taking,
either the gaining possession or the carrying away, must be accomplished by force or
fear. (See § 211.)’ (People v. Cooper (1991) 53 Cal.3d 1158, 1165, fn. 8; People v.
Estes (1983) 147 Cal.App.3d 23, 27-28.)” (People v. Pham (1993) 15 Cal.App.4th 61, 65
(Pham).) Thus, “a robbery is committed when the defendant has taken possession of the
victim’s property and forcibly prevents the victim from regaining the goods, however
temporarily. [Citations.]” (Id. at pp. 67-68.)
       The victim of a robbery “has a right to use reasonable force to recover his
[property] and, if actually or apparently reasonably necessary, to kill the robber in so
doing. But when the point of reasonable force is passed, justification ceases [citation].”
(People v. Young (1963) 214 Cal.App.2d 641, 648 (Young) [where “defendant’s money
was snatched from his hand so quickly that no particular force was required and no fear

                                             9.
engendered upon the instant, but mere demand for return of the money brought forth the
opened knife and the threat to cut defendant’s head off and he was in fear for his life”];
People v. Randle (2005) 35 Cal.4th 987, 1002-1003 & fn. 6 (Randle) [citing Young and
recognizing right to pursue and use reasonable force to retrieve stolen property],
disapproved on other grounds in People v. Chun (2009) 45 Cal.4th 1172, 1201.)
       Here, Marcella took defendant’s wallet without force or fear, or even his
knowledge. But when defendant discovered the loss and confronted her, demanding
return of his wallet, she used force to physically resist his recovery of his stolen wallet.
We believe at this point Marcella’s mere theft of the wallet became a robbery and
defendant was entitled to use reasonable force to recover his property. (Pham, supra, 15
Cal.App.4th at pp. 65-67; Young, supra, 214 Cal.App.2d at p. 648; Randle, supra, 35
Cal.4th at pp. 1002-1003 & fn. 6.)
       There was no evidence that defendant used reasonable rather than excessive force
when he stabbed Marcella, who was apparently unarmed, 16 times, many of them to the
torso, with a switchblade to recover his stolen wallet. (See Randle, supra, 35 Cal.4th at
p. 1003 [the beating went well beyond any force the victims were entitled to use to
recover their property].) Thus, we find the trial court had no sua sponte duty to give the
instruction. Assuming, without deciding, that the trial court was required to instruct on
this defense theory, we are confident the jury would not have found defendant’s use of
force to be reasonable and therefore conclude any error in failing to give the instruction
was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18,
24.)
II.    Instruction on Claim-of-Right Defense
       Defendant also asserts that the trial court should have instructed sua sponte on the
claim-of-right defense to robbery because he had a good faith belief that he had a right or
claim to the property when he took Marcella’s purse. Again, we conclude any error was
harmless.

                                             10.
       “An essential element of any theft crime is the specific intent to permanently
deprive the owner of his or her property. [Citation.]” (People v. Williams (2009) 176
Cal.App.4th 1521, 1526.) “‘“Although an intent to steal may ordinarily be inferred when
one person takes the property of another, particularly if he takes it by force, proof of the
existence of a state of mind incompatible with an intent to steal precludes a finding of
either theft or robbery. It has long been the rule in this state and generally throughout the
country that a bona fide belief, even though mistakenly held, that one has a right or claim
to the property negates felonious intent. [Citations.] A belief that the property taken
belongs to the taker [citations], or that he had a right to retake goods sold [citation] is
sufficient to preclude felonious intent. Felonious intent exists only if the actor intends to
take the property of another without believing in good faith that he has a right or claim to
it. [Citation.]” [Citation.]’ [Citation.]” (People v. Tufunga (1999) 21 Cal.4th 935, 943.)
“‘[A] trial court is not required to instruct on a claim-of-right defense unless there is
evidence to support an inference that [the defendant] acted with a subjective belief he or
she had a lawful claim on the property.’ [Citations.]” (Id. at p. 944.)
       Assuming the evidence supported the claim-of-right defense and the trial court
therefore erred in failing to instruct on it, we nevertheless conclude any error was
harmless because it is not conceivable that the jury would have found defendant not
guilty of robbery had the trial court so instructed. The claim-of-right defense would have
applied only to defendant’s taking of Marcella’s purse, but not his taking of her cell
phone, to which he had no possible claim of right. Seeking recovery of money lost in an
illegal prostitution transaction would not support such a claim. (People v. Tufunga,
supra, 21 Cal.4th at pp. 953-954, fn. 5 [claim-of-right defense “is not available where the
claim of right to the property is founded in a ‘notoriously illegal’ transaction”], citing
People v. Hendricks (1988) 44 Cal.3d 635, 642 [fee collection for prostitution services];
People v. Gates (1987) 43 Cal.3d 1168, 1182 [distribution of proceeds from forgery
ring], disapproved on another ground in People v. Williams (2010) 49 Cal.4th 405, 458-

                                              11.
459; People v. Johnson (1991) 233 Cal.App.3d 425, 456-458 [payment for a drug deal].)
The evidence was overwhelming that defendant robbed Marcella of her cell phone. He
admitted that he forcibly took it from her hand while she was talking on it and then he ran
away with it. The prosecutor told the jurors they could find robbery in defendant’s taking
of Marcella’s cell phone, purse, or lottery tickets. The court instructed the jurors they had
to agree on which act constituted the robbery. (CALCRIM No. 3500.) If the jurors had
been instructed on the claim-of-right defense, and had found it a valid defense to
defendant’s taking of the purse, they undoubtedly would still have found defendant guilty
of robbing Marcella of her cell phone. Any error in failing to instruct on this defense was
harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24.)
III.   Ineffective Assistance of Counsel
       Lastly, defendant argues that defense counsel was ineffective for failing to object
to the prosecutor’s misstatements of the law regarding voluntary manslaughter. For the
third time, we conclude any error was harmless.
       To establish ineffective assistance of counsel, a defendant must show (1) counsel’s
representation fell below an objective standard of reasonableness under prevailing
professional norms and (2) counsel’s deficient performance was prejudicial. (Strickland
v. Washington (1984) 466 U.S. 668, 687-688 (Strickland); People v. Ledesma (1987) 43
Cal.3d 171, 216-217 (Ledesma).) To establish prejudice, defendant must make a showing
“sufficient to undermine confidence in the outcome” that but for counsel’s deficient
performance there was a “reasonable probability” that “the result of the proceeding would
have been different.” (Strickland, supra, at p. 694; Ledesma, supra, at pp. 217-218.) On
review, we can adjudicate an ineffective assistance claim solely on the issue of prejudice
without determining the reasonableness of counsel’s performance. (Strickland, supra, at
p. 697; Ledesma, supra, at pp. 216-217; People v. Hester (2000) 22 Cal.4th 290, 296-
297.) We will do so here.



                                            12.
       “Where an intentional and unlawful killing occurs ‘upon a sudden quarrel or heat
of passion’ (§ 192, subd. (a)), the malice aforethought required for murder is negated, and
the offense is reduced to voluntary manslaughter—a lesser included offense of murder.
[Citation.]” (People v. Carasi (2008) 44 Cal.4th 1263, 1306 (Carasi).) “‘The heat of
passion requirement for manslaughter has both an objective and a subjective component.
[Citation.]’” (People v. Gutierrez (2002) 28 Cal.4th 1083, 1143.) “Such heat of passion
exists only where ‘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 deliberation and reflection, and from this
passion rather than from judgment.’”’ [Citation.] To satisfy this test, the victim must
taunt the defendant or otherwise initiate the provocation. ([Citation]; e.g., People v.
Berry (1976) 18 Cal.3d 509, 512–515 [young wife repeatedly subjected older husband to
sexual insults, rejection, and admissions of infidelity, causing him to strangle her in
jealous rage]; cf., People v. Manriquez (2005) 37 Cal.4th 547, 585-586 [provocation
lacking where defendant calmly shot bar patron who insulted and goaded him into firing];
see also People v. Gutierrez[, supra,] 28 Cal.4th [at p.] 1144 [revenge does not reduce
murder to manslaughter].)” (Carasi, supra, at p. 1306.)
       “In a related vein, the ‘“existence of provocation which is not ‘adequate’ to reduce
the class of the offense [from murder to manslaughter] may nevertheless raise a
reasonable doubt that the defendant formed the intent to kill upon, and carried it out after,
deliberation and premeditation”’—an inquiry relevant to determining whether the offense
is premeditated murder in the first degree, or unpremeditated murder in the second
degree. [Citations.] First degree willful, deliberate, and premeditated murder involves a
cold, calculated judgment, including one arrived at quickly [citation], and is evidenced by
planning activity, a motive to kill, or an exacting manner of death. [Citation.] Such state
of mind ‘is manifestly inconsistent with having acted under the heat of passion—even if



                                             13.
that state of mind was achieved after a considerable period of provocatory conduct.’
[Citation.]” (Carasi, supra, 44 Cal.4th at p. 1306.)
       Defendant correctly argues that the prosecutor, in his argument on voluntary
manslaughter and sufficient provocation, interspersed incorrect statements of law with
correct statements of law. In essence, the incorrect statements encouraged the jurors to
consider whether the circumstances would cause an ordinary person to do what defendant
did: stab Marcella 16 times. The correct standard is whether the circumstances would
cause an ordinary person of average disposition to act rashly or without due deliberation
and reflection, and from this passion rather than from judgment. (Carasi, supra, 44
Cal.4th at p. 1306; People v. Najera (2006) 138 Cal.App.4th 212, 223-226.)
       We also agree with defendant that there was evidence of provocation—Marcella’s
stealing his wallet, refusing to return it, and physically hitting and struggling with him to
prevent him from recovering it. But even if we assume that the evidence satisfied the
objective element (which was the element misstated by the prosecutor)—that these
circumstances constituted provocation sufficient to cause an ordinary person of average
disposition to act rashly or without due deliberation and reflection, and from passion
rather than from judgment—we nevertheless cannot agree that the record contains
evidence that satisfied the subjective element—that defendant’s “‘reason was actually
obscured as the result of a strong passion aroused by [the] “provocation .…”’” (Carasi,
supra, 44 Cal.4th at p. 1306, italics added.) Defendant explained to the detectives that he
and Marcella struggled and punched each other. He pushed her to the ground and
demanded his wallet back as he brandished his knife. She still refused to let go of the
purse, so he got on top of her and stabbed her two to five times in the torso. The
evidence does not include any statement by defendant that he experienced a strong
emotion or passion, such as rage or anger. In fact, his demonstration of the stabbing was
remarkably devoid of passion, showing a few very slight and slow stabbing motions,
which the detective described as “nonchalant.” Furthermore, the people with whom

                                             14.
defendant had contact shortly after the stabbing did not report any statements by
defendant regarding his emotions during the stabbing. And defendant did not testify at
trial. Under these circumstances, we simply do not find any record evidence to support
the subjective element of the heat of passion required to reduce first degree murder to
either second degree murder or voluntary manslaughter. The fact that the jury did not
find defendant guilty of second degree murder rather than first degree murder, which
would have required a finding that defendant made his “decision to kill … rashly,
impulsively, or without careful consideration” rather than with deliberation and
premeditation (as the jury was instructed by CALCRIM No. 521), further supports our
conclusion that the evidence of a subjective element was not there.
       Accordingly, we must conclude there is no reasonable probability that the result of
the proceeding would have been different had defense counsel objected to the
prosecutor’s misstatements. Having found no prejudice, we reject defendant’s
contention. (Strickland, supra, 466 U.S. at pp. 693-694; Ledesma, supra, 43 Cal.3d at
pp. 217-218.)
                                     DISPOSITION
       The judgment is affirmed.


                                                               _____________________
                                                                              Kane, J.
WE CONCUR:


 _____________________
Wiseman, Acting P.J.


 _____________________
Gomes, J.




                                            15.
