Filed 4/28/14 P. v. Maldonado CA1/5
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE



THE PEOPLE,

         Plaintiff and Respondent,                                                    A134796

         v.                                                                           (Alameda County
                                                                                      Super. Ct. No. CH50069)
TAQUAN LAMONT MALDONADO,

      Defendant and Appellant.
________________________________________/

         A jury convicted appellant Taquan Lamont Maldonado of the first degree murder
of Katrina Moore (Pen. Code, § 187, subd. (a))1 and found true the allegation he
personally used a deadly and dangerous weapon (§ 12202, subd. (b)(1)). The trial court
sentenced appellant to state prison.
         On appeal, appellant contends trial counsel rendered ineffective assistance by:
(1) presenting a “sudden quarrel/heat of passion” defense without identifying “any actual
provocation by the victim” and by failing to argue appellant was provoked over a period
of time; (2) misstating the distinction between murder and manslaughter during closing
argument; (3) failing to request a pinpoint jury instruction that “adequate provocation


1      Unless otherwise noted, all further statutory references are to the Penal Code. By
separate order filed this date, we deny appellant’s related petition for writ of habeas
corpus (A139749) raising ineffective assistance of trial counsel claims.
                                                             1
may arise as a result of a series of events over time;” and (4) failing to request a
modification to CALCRIM No. 852, which instructs the jury how to consider evidence of
uncharged acts of domestic violence. He also claims the prosecutor committed
misconduct during closing argument, the court erred by admitting evidence of his prior
instances of domestic violence, and cumulative error occurred.
       We affirm.
                    FACTUAL AND PROCEDURAL BACKGROUND
       The People charged appellant with murdering Moore on June 5, 2010 (§ 187,
subd. (a)) and alleged he used a deadly and dangerous weapon, a knife, in the
commission of the offense (§ 12022, subd. (b)(1)).
Prosecution Evidence
       Moore began dating appellant in 2009. Moore was 10 years younger than
appellant and had been previously married. Moore lived in a house on Eden Canyon
Road (the house) in Castro Valley with several people, including Stephen Wilson, Japhy
Frey, and Lacey Elletson. Appellant did not live at the house, but he frequently spent the
night there with Moore. Everyone who lived or spent the night at the house used
methamphetamine.
       When appellant and Moore began dating, they “got along” and had a “normal”
relationship. At some point, however, the relationship changed and they began to argue
frequently, sometimes once or twice a day. Wilson, Frey, and Elletson heard appellant
and Moore arguing in Moore’s bedroom; sometimes Frey heard “stuff crashing . . . loud
bangs, doors slamming, that kind of thing.” Appellant also called Moore constantly and
left her threatening voicemails, sometimes saying, “‘I know you’re there’” and “‘Pick up
the phone.’” Some messages were angry, others were “whiny” and “[m]ushy.”
Appellant also came to the house uninvited, once stealing a car to drive there.
       In March 2010, Moore’s father saw she had a black eye; Moore said she “got in a
fight with” appellant but claimed “it was an accident, it was no big deal . . . really
downplaying it.” When Moore’s father confronted appellant and asked him, “‘What did
you hit her for?’” appellant looked away and did not respond. When Moore’s father

                                              2
encouraged Moore to break up with appellant, she said “they were breaking up, or they
were broke[n] up.”
      In early April 2010, Elletson saw Moore with a black eye. Moore told Elletson
she had “gotten into a confrontation[.]” Moore did not want to be seen at work with a
black eye, so she stopped going and was fired. Later that month, Elletson heard appellant
and Moore fighting in Moore’s bedroom. Elletson heard a smack and saw Moore holding
her face; Moore told Elletson appellant “put [his] hands on her.” In April 2010, Moore
complained to Frey that her back hurt: she said appellant “‘punched [her] in the back’”
and showed Frey a bruise the size of a grapefruit on her back.
      In late April or early May 2010, Moore told Frey she was “trying to break up
with” appellant but she continued to see him regularly. Elletson thought Moore was
confused about whether to continue dating appellant; as Elletson explained, “she was not
wanting to be with him but she didn’t know how to tell him . . . that she was done [with
the relationship], and he wasn’t getting the point.” Around this same time, Moore spoke
with her ex-husband about “getting back together” and moving to Sacramento. Moore
and Wilson had intimate relations “a few times” in April or May 2010.
      In May 2010 — a few weeks before her death — Moore had a bloody lip after
dropping appellant off at his house. She was crying and upset: she told Wilson appellant
punched out the back passenger window of her car and “threw her phone at her.” The
next day, Frey saw appellant with a bandage over a cut on his hand. Appellant admitted
he punched the window because he was angry.
      Around this time, Moore became pregnant. She told Elletson she felt like she “had
this demon in her” and wanted to terminate the pregnancy. On June 1, 2010, Katrina and
Elletson went to a clinic to fill out paperwork for Moore to get an abortion. Moore
scheduled the abortion for June 3, 2010. Appellant spent the night at Moore’s house on
June 2, 2010. On the morning of June 3, 2010, the two women drove to Moore’s house
to pick up appellant. Appellant told Moore he loved her. As the car drove away, Wilson
saw appellant throw a knife out the car window and onto the driveway. Wilson picked up
the knife — which he thought was from Moore’s kitchen — and put it in his bedroom.

                                            3
      On Thursday, June 3, 2010, Moore went to the clinic to have an abortion. Elletson
accompanied her. On the way to the clinic, they stopped at appellant’s house; Elletson
waited in the car while Moore “went up to the door” to talk to appellant. Elletson heard
appellant and Moore arguing about the abortion: appellant said “he was going to support
[Moore] and the baby[.]” Moore returned to the “car crying and jump[ed] in” and
appellant “started chasing the car” as Moore drove away. As they drove, appellant called
Moore and yelled at her for “murdering his kid[.]” Moore had the abortion that
afternoon; appellant called and harassed her that evening.
      On June 4, 2010, Moore drove appellant to jail, where he was to serve time for a
car theft conviction. Moore told Wilson the jail was “overbooked.” She and appellant
returned to the house and appellant spent the night. Wilson did not hear appellant and
Moore arguing that evening. The next morning, June 5, 2010, Wilson saw appellant and
Moore making breakfast. Moore “seemed fine.” Wilson went outside to work in the
yard. At some point, Wilson heard appellant and Moore arguing inside the house.
Wilson heard a loud “thud . . . come from the house[,]” like a body or something heavy
hitting the floor. He went to Moore’s bedroom, where he heard Moore and appellant
talking in “calm voice[s].” Wilson thought appellant was “saying something about you
always got to bring up something old” and that he wanted to “start fresh[.]” Wilson went
outside and resumed his yard work.
      About 15 minutes later, appellant ran outside and said, “‘Help me help her.’”
Appellant had blood on his elbow. He said Moore fell through a window. Wilson went
into the house and saw blood on the archway leading into the living room. Appellant
went into Moore’s bedroom and shut the door. Wilson did not go into the bedroom;
instead, he looked for a phone to call 911. As Wilson looked for a phone, he heard
appellant say Moore was “swallowing her tongue, and something about the broken
window.” Unable to find a working telephone, Wilson went to a neighbor’s house to
borrow a phone.
      Appellant called 911 from a phone in Moore’s bedroom and said he needed an
ambulance for his girlfriend, who was “stabbed right below her collar bone and her

                                            4
shoulder.” When asked, “how did she stab herself” appellant said “Oh my God.” He did
not respond when asked “who stabbed her or how did she get stabbed?” When asked
again who stabbed Moore, appellant said, “We were just playing around [in] the room . . .
and then . . . I don’t know what happened. We were just playing around. We’re just,
like, gonna have sex in the room and then she ran into the — into the sliding glass
closet.” The dispatcher asked appellant, “Y’all were just playing around and she just ran
into the knife or something[?]” and appellant said, “No. No knife, the closet.”
       Law enforcement officers arrived and found Moore on her bedroom floor, covered
in blood. She was “wheezing and gurgling” and appellant was “holding a rag to her
shoulder.” The room was “very disheveled” and there were “blood streaks on the
bedroom door, on the walls, carpets” and on appellant’s clothes. A mirrored glass closet
door in the bedroom was shattered and there were glass fragments on the floor. Moore
had a deep, oozing wound near her neck. The officer felt a “very faint” pulse in Moore’s
neck and prepared to perform CPR. At that point, paramedics arrived and unsuccessfully
performed CPR for a lengthy period of time.
       A law enforcement officer took appellant out of the bedroom. His clothes were
bloody and he had “a laceration on his left forearm” and red marks on his arms, face,
chest and back. Appellant “was very excited, hysterical, concerned, distraught” and
“kept trying to go back inside” the house. A law enforcement officer moved appellant to
a patrol car and arrested him.
       Some time later, Moore’s ex-husband cleaned Moore’s bedroom and found a 9-
inch, single blade knife hidden in a floor vent. The knife was usually in a kitchen drawer,
about 20 feet from Moore’s bedroom. The knife had Moore’s blood on it and appellant
could not be excluded as the source of a minor DNA profile on the knife. A forensic
pathologist testified Moore’s wound was consistent with the use of the knife found in her
bedroom, not from broken glass. The knife traveled between two ribs, through Moore’s
left lung, and close to her heart. The pathologist testified people with this type of wound
can survive for up to 30 minutes, and opined Moore probably would have survived had


                                             5
she received medical treatment earlier. Moore had methamphetamine in her system when
she died.
Defense Evidence
       Appellant’s friends and relatives testified appellant loved Moore and was upset
about her decision to have an abortion. Witnesses testified Moore stalked appellant by
repeatedly calling him “[a]ll day, all night” and by watching him when he was out in
public without her. Witnesses could hear Moore screaming at appellant when she called
and testified she sometimes slapped him when she was angry. They also testified
appellant frequently tried to pacify Moore. Appellant’s ex-wife testified he was not
violent during their marital fights, but conceded she applied for a restraining order after
he said he had a gun in the garage. She also testified appellant threatened “people” were
“going to go down” if she obtained a restraining order.
       On cross-examination, appellant’s witnesses admitted that when they spoke to
appellant while he was in jail, he said the incident was an accident. In one conversation,
appellant’s aunt advised him to tell the prosecutor Moore got him hooked on
methamphetamine, and it “f---ed [his] head up” and “the next thing you know she’s
dying, and you didn’t even know what happened[.]” In response, appellant said, “‘Yeah,
but I don’t know if that s--- will hold in court.’”
Verdict and Sentence
       A jury convicted appellant of the first degree murder of Moore (§ 187, subd. (a))
and found true the allegation that he used a deadly and dangerous weapon, a knife, in the
commission of the offense (§ 12202, subd. (b)(1)). The court sentenced him to 26 years
to life in state prison.
                                        DISCUSSION
       Appellant raises several ineffective assistance of trial counsel claims. “When
challenging a conviction on grounds of ineffective assistance, the defendant must
demonstrate counsel’s inadequacy. To satisfy this burden, the defendant must first show
counsel’s performance was deficient, in that it fell below an objective standard of
reasonableness under prevailing professional norms. Second, the defendant must show

                                               6
resulting prejudice, i.e., a reasonable probability that, but for counsel’s deficient
performance, the outcome of the proceeding would have been different. When
examining an ineffective assistance claim, a reviewing court defers to counsel’s
reasonable tactical decisions, and there is a presumption counsel acted within the wide
range of reasonable professional assistance. It is particularly difficult to prevail on an
appellate claim of ineffective assistance. On direct appeal, a conviction will be reversed
for ineffective assistance only if (1) the record affirmatively discloses counsel had no
rational tactical purpose for the challenged act or omission, (2) counsel was asked for a
reason and failed to provide one, or (3) there simply could be no satisfactory explanation.
All other claims of ineffective assistance are more appropriately resolved in a habeas
corpus proceeding. [Citations.]” (People v. Mai (2013) 57 Cal.4th 986, 1009.)
                                               I.
          Trial Counsel Was Not Ineffective for Failing to Identify “Provocation
                by the Victim” During Closing Argument, nor by Failing to
                  Argue Appellant Was Provoked Over a Period of Time
       First, appellant contends trial counsel was ineffective during closing argument for
“relying on a voluntary manslaughter/second degree murder heat of passion defense
without identifying any provocation” caused by Moore.2 He also argues trial counsel was

2       “‘Homicide is the killing of a human being by another. . . .”’ [Citation.] Criminal
homicide is divided into two types: murder and manslaughter. ‘Murder is the unlawful
killing of a human being, or a fetus, with malice aforethought.’ [Citation.] Malice
aforethought may be express or implied. [Citation.] ‘Express malice is an intent to kill. .
. . Malice is implied when a person willfully does an act, the natural and probable
consequences of which are dangerous to human life, and the person knowingly acts with
conscious disregard for the danger to life that the act poses.’ [Citation.] A killing with
express malice formed willfully, deliberately, and with premeditation constitutes first
degree murder. [Citation.] ‘Second degree murder is the unlawful killing of a human
being with malice aforethought but without the additional elements, such as willfulness,
premeditation, and deliberation, that would support a conviction of first degree murder.’
[Citation.]” [¶] Manslaughter is a lesser included offense of murder. [Citations.] The
mens rea element required for murder is a state of mind constituting either express or
implied malice. A person who kills without malice does not commit murder. Heat of
passion is a mental state that precludes the formation of malice and reduces an unlawful
killing from murder to manslaughter. Heat of passion arises if, ‘“at the time of the
                                               7
ineffective for failing to “present the jury with an arguably legally adequate theory of
provocation resulting from a series of events over time[.]” According to appellant, it was
reasonably probable the jury would have convicted him of second degree murder or
voluntary manslaughter had trial counsel presented a “viable theory of provocation.”
         These claims fail for numerous reasons. First, the record on appeal does not
provide trial counsel’s reasons for declining to identify specific instances of Moore’s
provocation, nor trial counsel’s reasons for failing to argue provocation based on a series
of events. “If the record on appeal sheds no light on why counsel acted or failed to act in
the manner challenged, an appellate claim of ineffective assistance of counsel must be
rejected unless counsel was asked for an explanation and failed to provide one, or there
simply could be no satisfactory explanation.” (People v. Carter (2005) 36 Cal.4th 1114,
1189.)
         Second, trial counsel did identify situations where Moore provoked him. Wilson
testified that when appellant and Moore started fighting on June 5, 2010, appellant
complained Moore kept “bring[ing] up something old[.]” In addition, trial counsel
elicited testimony that Moore was controlling, had a history of fighting with her partners,
and had slapped appellant when she was angry. Trial counsel also argued Moore had “a
very high level of methamphetamine and amphetamine” in her system when she died,
which he argued could explain why she was “agitated and having issues with” appellant.
         Third, trial counsel’s decision to focus on the day of Moore’s death — rather than
the weeks and months leading up to that date — was a reasonable tactical choice. (In re
Valdez (2010) 49 Cal.4th 715, 733 (Valdez); People v. Stanley (2006) 39 Cal.4th 913, 954

killing, the reason of the accused was obscured or disturbed by passion to such an extent
as would cause the ordinarily reasonable person of average disposition to act rashly and
without deliberation and reflection, and from such passion rather than from judgment.”’
[Citation.] Heat of passion, then, is a state of mind caused by legally sufficient
provocation that causes a person to act, not out of rational thought but out of
unconsidered reaction to the provocation. While some measure of thought is required to
form either an intent to kill or a conscious disregard for human life, a person who acts
without reflection in response to adequate provocation does not act with malice.”
(People v. Beltran (2013) 56 Cal.4th 935, 941-942, fn. omitted (Beltran).)
                                              8
(Stanley) [reviewing courts defer to “‘counsel’s reasonable tactical decisions’” and do
“‘not second-guess reasonable, if difficult, tactical decisions in the harsh light of
hindsight’”].) Presenting a defense that a series of events provoked appellant could have
risked focusing the jury’s attention on appellant’s increasingly possessive and violent
behavior, allowing the jury to conclude appellant intended to kill Moore. Appellant
concedes as much by noting his “significant pattern of domestic violence . . . increased
the likelihood that the jurors would find [he] premeditated and deliberated the killing.”
In addition, focusing the jury’s attention on Moore’s decision to terminate her pregnancy
could have risked offending certain jurors. (See People v. Hart (1999) 20 Cal.4th 546,
631 [risk of “alienating the jury” was a reasonable basis for tactical decision to limit
closing argument].)
       Moreover, the theory that a series of events provoked appellant was relatively
weak in light of testimony supporting a cooling off period, specifically: (1) Wilson’s
testimony that appellant and Moore did not argue the evening before her death; (2)
appellant and Moore made breakfast together on the morning of June 5, 2010; and (3)
Moore seemed “fine” that morning. (Valdez, supra, 49 Cal.4th at p. 733 [asserting an
easily-refuted claim could damage counsel’s “credibility before the jury”].) Reasonably
competent counsel could have determined it was more advantageous to focus on June 5,
2010 rather than claiming appellant was provoked by a series of events or by Moore.3
       Finally, appellant’s ineffective assistance of counsel claim fails because he cannot
establish that but for trial counsel’s alleged errors, it is reasonably probable “the result of
the proceeding would have been different.” (Strickland v. Washington (1984) 466 U.S.
668, 694 (Strickland).) The defense conceded appellant stabbed and killed Moore; the


3      This is not, as appellant contends, a situation like People v. Berry (1976) 18 Cal.3d
509. In that case, the California Supreme Court concluded the defendant was entitled to a
jury instruction on voluntary manslaughter because the defense presented testimony the
victim engaged in a “tormenting two weeks” where she “alternately taunted defendant
with her involvement with [another man] and at the same time sexually excited
defendant, indicating her desire to remain with him.” (Id. at p. 513.) Here, the court
instructed the jury on voluntary manslaughter.
                                               9
evidence supporting the first degree murder conviction was strong: (1) appellant had a
history of physically abusing Katrina; (2) he had to walk at least 20 feet to the kitchen to
retrieve the knife and walk another 20 feet back to the bedroom to stab Moore; (3)
appellant had a motive to kill Moore because she had an abortion and was going to leave
him; and (4) his evasive actions after stabbing Moore appeared calculated and suggested
consciousness of guilt consistent with a willful, premeditated murder. (See People v.
Famalaro (2011) 52 Cal.4th 1, 36 [jury could infer consciousness of guilt from the
defendant’s attempts to conceal evidence in first degree murder prosecution].) In light of
the significant evidence supporting the jury’s verdict, and, as explained above, the
weakness of a defense based on provocation over a period of time or a defense based on
provocation by Moore, appellant has not shown a reasonable probability he would have
been convicted of second degree murder or voluntary manslaughter had trial counsel
presented a different theory of provocation. (See People v. Wharton (1991) 53 Cal.3d
522, 572 [by finding the defendant guilty of first degree murder, the jury rejected a theory
he “acted under the heat of passion—even if that state of mind was achieved after a
considerable period of provocatory conduct”].)
                                             II.
              Misstating the Distinction Between First Degree Murder and
                 Voluntary Manslaughter Did Not Prejudice Appellant
       Second, appellant argues trial counsel was ineffective for misstating the distinction
between murder and manslaughter during closing argument.
       During a lengthy closing argument, appellant’s trial counsel presented a heat of
passion defense in an effort to reduce appellant’s crime to second degree murder or
voluntary manslaughter. Trial counsel described the differences between first degree
murder, second degree murder, and manslaughter, and recited the jury instruction on
manslaughter. Trial counsel also made the following brief comment: “[N]ow . . . the real
difference between murder and manslaughter is did he intend to kill her. And that if he in
fact had an intent to kill her, then why would he not just have let her die? Why would he
call the police if his intent before this happened was to kill her? That doesn’t make any

                                             10
sense.” According to appellant, trial counsel’s statement was incorrect because “[t]he
real difference between murder and manslaughter is whether the defendant acted in
response to provocation which would have caused a reasonable person to act rashly from
passion, rather than from judgment.”
       Assuming for the sake of argument trial counsel erred, any error is harmless
because appellant cannot demonstrate “a reasonable probability that, but for counsel’s [ ]
errors, the result of the proceeding would have been different.” (Strickland, supra, 466
U.S. at p. 694.) First, the mention of intent as a distinguishing factor between murder and
manslaughter was an insignificant portion of a 42-page closing argument correctly
describing the difference between murder and manslaughter. Trial counsel’s use of the
word “intent” was not, as appellant argues, “confusing to the jury” because counsel
accurately stated the legal standard in other parts of his closing argument and because the
jury instructions clarified the proper legal standard. (See People v. Harrison (2005) 35
Cal.4th 208, 252.) “Placed in context,” trial counsel’s statement was “at most a harmless
mistake.” (People v. Najera (2006) 138 Cal.App.4th 212, 222 (Najera) [prosecutor’s
statement equating malice and intent to kill was “at most a harmless mistake”].) Second,
appellant cannot establish a reasonable probability of a better result because, as discussed
above, substantial evidence supported the first degree murder conviction and the evidence
supporting voluntary manslaughter was weak.
                                            III.
             Trial Counsel Did Not Render Ineffective Assistance by Failing
                    to Request a Pinpoint Instruction on Provocation
       Next, appellant contends trial counsel was ineffective for failing to request a
pinpoint instruction that “adequate provocation can result from a series of events over
time[.]” According to appellant, the jury would have convicted him of voluntary
manslaughter absent this error.
       At trial counsel’s request, the court instructed the jury on second degree murder
arising out of provocation (CALCRIM No. 522) and heat of passion voluntary
manslaughter (CALCRIM No. 570). The court instructed the jury that “[p]rovocation

                                             11
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.” The court further instructed the jury that murder can be reduced to manslaughter
if: “the defendant was provoked . . . [and] as a result of the provocation, the defendant
acted rashly and under the influence of intense emotion that obscured his reasoning or
judgment;” and the “provocation would have caused a person of average disposition to
act rashly and without due deliberation, that is, from passion rather than from judgment.”
The court specified “[s]ufficient provocation may occur over a short or long period of
time.” Trial counsel did not request a pinpoint instruction stating provocation can arise
as a result of a series of events over time.
       Appellant’s ineffective assistance of counsel claim regarding the pinpoint
instruction fails because the record on appeal is silent on trial counsel’s reasons for
declining to request such an instruction. (People v. Mendoza Tello (1997) 15 Cal.4th
264, 266 (Mendoza Tello).) Moreover — and as discussed above — trial counsel’s
decision to focus on the day of Moore’s death was a reasonable tactical choice,
particularly where the evidence supporting a defense based on provocation over a series
of time was weak. (People v. Felix (1994) 23 Cal.App.4th 1385, 1400 [“[e]ven if an
instruction had been given, the evidence was just not there to support a defense to the
charge. Counsel is not required to make meritless . . . arguments”].) Finally, appellant
cannot establish prejudice because the court instructed the jury that “‘sufficient
provocation may occur over a short or long period of time’” and because substantial
evidence supported the first degree murder conviction and the evidence supporting
voluntary manslaughter was weak.
                                               IV.
       Appellant Cannot Establish Ineffective Assistance Based on Trial Counsel’s
                Failure to Request a Modification to CALCRIM No. 852
       Fourth, appellant contends trial counsel rendered ineffective assistance by failing
to ask the court to modify CALCRIM No. 852 to apply to voluntary manslaughter in
addition to murder. According to appellant, a modification to CALCRIM No. 852 would

                                               12
have allowed the jury to conclude he was “‘likely’ to commit exactly the crime he
contended he did — voluntary manslaughter.” We disagree.
       Both parties asked the court to instruct the jury with CALCRIM No. 852, which
allows the jury to consider the defendant’s prior acts of domestic violence in deciding
whether the defendant committed the charged offense. Neither party requested
modifications to CALCRIM No. 852, and the trial court gave the instruction, which
provides in pertinent part: “The People presented evidence that the defendant committed
domestic violence that was not charged in this case. [¶] . . . [¶] If you decide that the
defendant committed the uncharged domestic violence, you may, but are not required to,
conclude from that evidence that the defendant was disposed or inclined to commit
domestic violence and, based on that decision, also conclude that the defendant was
likely to commit murder, as charged here. If you conclude that the defendant committed
the uncharged domestic violence, that conclusion is only one factor to consider along
with all the other evidence. It is not sufficient by itself to prove that the defendant is
guilty of murder. The People must still prove the [elements] of every charge beyond a
reasonable doubt.”
       We conclude appellant’s ineffective assistance of counsel claim fails because the
record on appeal is silent on trial counsel’s reasons for declining to request such an
instruction. (Mendoza Tello, supra, 15 Cal.4th at p. 266.) Appellant’s claim also fails
because he cannot show a reasonable probability the outcome of the trial would have
been different if the court modified the instruction as he now proposes. The modification
to CALCRIM No. 852 would not have affected the significant amount of evidence
supporting the first degree murder conviction.4 Additionally and perhaps most


4      That CALCRIM No. 852 could have been modified to refer to voluntary
manslaughter does not establish ineffective assistance based on trial counsel’s failure to
request such a modification. Appellant’s reliance on People v. Dallas (2008) 165
Cal.App.4th 940 (Dallas) does not alter our conclusion. In that case, the prosecution
charged the defendant with felony infliction of injury on a child and felony child abuse
and the trial court admitted prior acts of child abuse under Evidence Code section 1109 in
connection with both charges. The Dallas court rejected the defendant’s argument that
                                              13
importantly, the prior domestic violence evidence did not tend to show appellant acted in
the heat of passion. To the contrary and as appellant concedes, the “significant pattern of
domestic violence . . . increased the likelihood” the jury would find he premeditated and
deliberated before killing Moore.
                                             V.
                    Appellant’s Prosecutorial Misconduct Claim Fails
       Next, appellant claims the prosecutor committed prejudicial misconduct by
“misstating the law of heat of passion voluntary manslaughter” during closing argument.
       In rebuttal argument, the prosecutor focused on why appellant’s crime was
murder, not manslaughter. She read the voluntary manslaughter jury instruction:
“manslaughter is a killing that would otherwise be murder. It’s reduced to voluntary
manslaughter if a defendant kills someone because of a sudden quarrel or in the heat of
passion[.]” The prosecutor also explained the requirements of a heat of passion defense:
“One, the defendant was provoked; two, as a result of the provocation the defendant acted
rashly and under the influence of intense emotion that obscured his reasoning or
judgment; three, the provocation would have caused a person of average disposition to
act rashly and without due deliberation, that is from passion rather than from judgment. . .
. It is not enough that the defendant was simply provoked. The defendant is not allowed
to set up his own standard of conduct. In deciding whether the provocation was
sufficient, consider whether a person of average disposition in the same situation and

the trial court erred by allowing the jury to consider the prior acts of child abuse in
connection with felony child abuse charge. (Dallas, supra, 165 Cal.App.4th at p. 957.)
The court held Evidence Code section 1109 evidence is admissible in “‘a criminal
action[,]’” which “embraces all of the counts (and other allegations) charged. If the
Legislature had wanted to make the evidence admissible only in connection with a
particular count, it could have said so.” (Dallas, supra, 165 Cal.App.4th at p. 958.)
Dallas does not assist appellant. First, it is factually distinguishable because it does not
concern CALCRIM No. 852. Second, the Dallas court articulated a rule that Evidence
Code section 1109 evidence is admissible in connection with all charges and allegations
in a criminal action. Appellant has not shown that instructing on Evidence Code section
1109’s application to the charged offenses, and omitting its application to lesser included
offenses, prejudiced him.
                                             14
knowing the same facts would have reacted from passion rather than judgment.” The
prosecutor asked the jury to consider whether “the victim’s actions equal provocation that
would cause an ordinary person to act rashly in response[.] It’s the victim’s actions.”
       The prosecutor provided two examples of heat of passion provocation and stated,
“[r]emember, it’s not did the defendant act rashly and under the sudden quarrel and heat
of passion. The standard is would an ordinary, reasonable person in the defendant’s
situation have done what he did.” The prosecutor argued appellant’s crime was not
manslaughter because his behavior “was not the conduct of a reasonable person of
average disposition. [His] behavior was the behavior of a desperate and scorned man. So
are we to say that because Katrina was trying to break up with him, because they were in
an argument, therefore, what he did should be reduced, the fact that he stabbed her should
be reduced from murder to manslaughter? His actions are not what a reasonable,
ordinary person would do.” In addition, the prosecutor stated, “They’re arguing and he
stabs her. And is that enough? Is that what a reasonable person would do? Don’t let
him, because of what he did, reduce murder to manslaughter. His behavior is not the
conduct of an average reasonable person.” The prosecutor told the jury “would an
average person react the way that he did because someone’s trying to break up with
them? No. It’s not in the heat of passion.” Finally, the prosecutor argued the killing was
“not in the heat of passion” because there was no “real adequate provocation” and
because of the “cooling period” between the abortion and the stabbing.
       Appellant contends the prosecutor misstated the law during closing argument by
encouraging the jury to consider the reasonableness of his conduct in reacting to
provocation rather than considering whether the provocation was sufficient to cause a
reasonable person to react from passion, not judgment. Our high court has held
“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.” (Beltran, supra, 56 Cal.4th at p. 949.)
       A prosecutor commits misconduct by mistaking the law during argument. (People
v. Marshall (1996) 13 Cal.4th 799, 831; People v. Otero (2012) 210 Cal.App.4th 865,

                                            15
870.) The People concede the prosecutor “committed misconduct” by focusing on
whether a “‘reasonable person of average disposition’ would have killed under the
circumstances.” When a prosecutorial misconduct claim is based on the prosecutor’s
arguments to the jury, we consider the challenged statements in the context of the
argument as a whole, and determine whether it is reasonably likely the jury construed or
applied any of the challenged statements in an objectionable fashion. (People v. Cole
(2004) 33 Cal.4th 1158, 1202-1203.) Appellant has forfeited his prosecutorial
misconduct claim fails because trial counsel did not request an admonishment or object to
any of the challenged remarks. “‘[A] defendant may not complain on appeal of
prosecutorial misconduct unless in a timely fashion—and on the same ground—the
defendant made an assignment of misconduct and requested that the jury be admonished
to disregard the impropriety. [Citation.]’ [Citation.]” (Stanley, supra, 39 Cal.4th at p.
952.)
        In the alternative, appellant claims trial counsel’s failure to object to the alleged
prosecutorial misconduct constituted ineffective assistance. We disagree. Even if trial
counsel had no valid tactical reason for failing to object to the prosecutor’s misstatement
of the law, appellant cannot demonstrate a reasonable probability the outcome of his trial
would have been different absent that error. “The standard for prejudice is a reasonable
probability that, but for counsel’s error, the verdict would have been different.
[Citations.]” (People v. Neely (2009) 176 Cal.App.4th 787, 796; Strickland, supra, 466
U.S. at pp. 691-694.) Here, the court’s instructions to the jury rendered harmless any
prosecutorial misconduct. The court instructed the jury with revised CALCRIM No. 570,
which provided, in clear and unambiguous terms, the objective requirement that the
provocation must be sufficient to arouse the passions of a reasonable person, and
contained no reference to how a reasonable person would react under the same
circumstances. (Beltran, supra, 56 Cal.4th at p. 954.) In addition, the court instructed
the jury that “[n]othing that the attorneys say is evidence” and that “[y]ou must follow the
law as I explain it to you, even if you disagree with it. If you believe that the attorneys’
comments on the law conflict with my instructions, you must follow my instructions.”

                                               16
       “[W]e presume that the jury relied on the instructions, not the arguments, in
convicting [appellant].” (People v. Morales (2001) 25 Cal.4th 34, 47; see also People v.
Boyette (2002) 29 Cal.4th 381, 436 [presuming the jury followed the court’s instructions
on the law, including the instruction that “to the extent the law as given by the trial court
conflicted with the description of the law as given by the attorneys, the jury was to follow
the court’s instructions”].) We are not persuaded by appellant’s claim that the timing of
the prosecutor’s statements unduly swayed or confused the jury. (Cf. Najera, supra, 138
Cal.App.4th at p. 224 [prosecutor’s misstatements not prejudicial despite jury confusion
regarding reasonableness of the defendant’s conduct where the “court correctly instructed
the jury to follow [its] instructions, not the attorneys’ description of the law”]; Beltran,
supra 56 Cal.4th at p. 956 [prosecutor’s misstatements of law did not prejudice the
defendant where the court’s clarifying instruction “properly refocused the jury on the
relevant mental state, properly set out in CALCRIM No. 570, and away from whether an
ordinary person of average disposition would kill in light of the provocation”].)
       Moreover — and as discussed above — the first degree murder verdict was well
supported by evidence and the evidence supporting a voluntary manslaughter verdict was
weak. (Najera, supra, 138 Cal.App.4th at p. 224 [failure to object was harmless error
where facts did not support a manslaughter defense].) We are not persuaded by
appellant’s claim that the prosecutor’s incorrect statement of the law lessened the
prosecution’s burden of proof. (Beltran, supra, 56 Cal.4th at p. 956 [applying People v.
Watson (1956) 46 Cal.2d 818 (Watson)].) Finally, we reject as unsupported by authority
appellant’s passing comment suggesting the court should have given an “instruction or
admonition clarifying the reasonableness requisite to heat of passion voluntary
manslaughter.”
                                             VI.
       Any Error in Admitting Prior Incidents of Domestic Violence Was Harmless
       Appellant argues the court erred by admitting evidence of five prior instances of
domestic violence against Moore because her statements describing the incidents were
inadmissible hearsay.

                                              17
       A.      The Prosecutor’s Motion to Admit Prior Acts of Domestic Violence
       The prosecutor moved in limine to admit evidence of several prior acts of
domestic violence by appellant against Moore pursuant to Evidence Code sections 1101,
subdivision (b) and 1109. Following a hearing, the court admitted the following
incidents pursuant to Evidence Code section 1109 and witnesses testified to these
statements at trial.
       Incident No. 1: a late February or early March 2010 incident where Moore’s father
saw her with a swollen lip. When Moore’s father asked her about the injury, Moore said
appellant had accidentally bumped her. Moore’s father confronted appellant, saying,
“You hit her. Don’t ever hit my daughter. You touch her again, you’ve gotta deal with
me.” Appellant did not deny the claims or argue with Moore’s father. The prosecutor
argued appellant’s response to Moore’s father’s accusations was relevant and was an
adoptive admission. Appellant objected to this evidence, arguing Moore’s father was
“speculating” on what happened, and that the evidence lacked foundation, and was
irrelevant and inflammatory under Evidence Code section 352. The court concluded
appellant’s failure to “deny anything” was an adoptive admission.
       Incident No. 5: an April 2010 incident where Moore told Wilson appellant threw a
coffee cup at a sliding glass door during an argument, breaking the glass. The court
initially excluded the evidence but later allowed Wilson to testify appellant “threw a
coffee cup” over defense counsel’s hearsay objection.
       Incident No. 6: an April 2010 incident when Moore told Elletson she and appellant
had “‘gotten into it,’” and appellant gave Moore a black eye. One of Moore’s co-workers
noticed the black eye. Moore told Elletson she was embarrassed by the black eye, and
had not gone to work because of it. Moore’s co-worker noticed a black eye around the
same time. Moore was fired for not going to work. The court noted the evidence was
“physical abuse . . . statements from the victim, closeness in time” and in response, trial
counsel “[s]ubmitted.” The court then admitted the evidence.
       Incident No. 8: a May 2010 incident, when Elletson heard appellant and Moore
arguing in her bedroom. After hearing a smack, Elletson ran into the bedroom and saw

                                             18
Moore holding her cheek. When she asked appellant, “‘Did you put hands on her[,]’”
appellant denied hitting Moore, but Moore told Elletson appellant had slapped her. The
court noted, “that seems [to be a] pretty clear case of domestic violence and a domestic
violence act that has corroboration. . . . And then subsequently the victim does confirm
and the defendant makes a denial and takes off.” Appellant’s counsel “object[ed] and
submit[ted].”
       Incident No. 10: a late April 2010 incident where Frey and Moore were in
Moore’s room and Moore complained that “[her] back hurt” and Frey asked her why it
hurt. Moore told him appellant punched her in the back and showed Frey a bruise the
size of two baseballs. Defense counsel argued, “I don’t think it’s corroborated; it’s
hearsay of the witness, who is obviously a very biased witness in this case.” The court
concluded the evidence was admissible under Evidence Code section 1109 and was not
inadmissible under Evidence Code section 352, noting it would not confuse the issues
and was “clearly not as inflammatory as being stabbed to death.”
       B.       The Admission of Incident Nos. 1, 5, 6, 8, and 10 was Harmless Error
       “Evidence Code section 1109 allows the introduction of evidence of defendant’s
commission of prior acts of domestic violence in a criminal action charging defendant
with an offense involving domestic violence.” (People v. Poplar (1999) 70 Cal.App.4th
1129, 1138.) Subject to certain exceptions not applicable here, Evidence Code section
1109 provides “in a criminal action in which the defendant is accused of an offense
involving domestic violence, evidence of the defendant’s commission of other domestic
violence is not made inadmissible by [Evidence Code] Section 1101 if the evidence is not
inadmissible pursuant to [Evidence Code] Section 352.” (Evid. Code, § 1109, subd.
(a)(1).)
       Appellant claims the court erred by admitting “hearsay evidence of multiple
instances of alleged prior domestic violence and other prior bad acts” committed by him. 5

5      Appellant cannot seriously contend the domestic violence evidence was
inadmissible under Evidence Code section 1109, and numerous California courts have
rejected his claim that the admission of this evidence violated his federal due process
                                             19
In response, the People contend appellant forfeited this claim with respect to Incidents
Nos. 1, 6, and 8 by not objecting on hearsay grounds at trial. They also contend the
evidence was admissible pursuant to the hearsay exceptions set forth in Evidence Code
sections 1240 and 1250 and that any error in admitting the evidence was harmless.
Appellant contends a hearsay objection would have been futile and, alternatively, that
trial counsel was ineffective for failing to object on hearsay grounds.
       We assume for the sake of argument the court erred by admitting the challenged
evidence. We conclude any error is harmless because appellant would have been
convicted of first degree murder had the court excluded Incident Nos. 1, 5, 6, 8, and 10.
(Watson, supra, 46 Cal.2d at p. 836.) As previously discussed, there was ample evidence
from which the jury could determine appellant killed Moore with premeditation and
deliberation including evidence that appellant: (1) had a motive to kill Moore; (2) walked
to and from the kitchen to retrieve the murder weapon; (3) hid the murder weapon and
fabricated a story about how Moore was stabbed; and (4) left Moore threatening
voicemails.
       We are not persuaded by appellant’s claim that “[i]n the absence of the erroneous
admission” of the evidence “there is a reasonable probability that one or more jurors
would have entertained a reasonable doubt as to whether the offense was second degree
murder or voluntary manslaughter.” As appellant concedes, even if the court had
excluded Moore’s descriptions of the prior domestic violence, the jury would still have
heard “direct evidence of prior domestic violence[,]” including evidence that appellant
threw a cell phone at Moore, split open her lip, broke her car window with his hand
because he was “mad,” and gave Moore a black eye. It is not reasonably probable the
jury would have returned a more favorable verdict had the court excluded the above
testimony. (Watson, supra, 46 Cal.2d at p. 836.)




rights. (See People v. Johnson (2010) 185 Cal.App.4th 520, 529 [“section 1109 does not
offend due process” and citing cases].)
                                             20
                                            VII.
                                     Cumulative Error
       Appellant’s final contention is the cumulative impact of the above errors deprived
him of a fair trial. We have either rejected appellant’s claims of error and/or found that
any errors, assumed or not, were not prejudicial. “Viewed as a whole, such errors do not
warrant reversal of the judgment.” (People v. Stitely (2005) 35 Cal.4th 514, 560.)
                                      DISPOSITION
       The judgment is affirmed.




                                                         _________________________
                                                         Jones, P.J.




We concur:


_________________________
Simons, J.


_________________________
Needham, J.




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