Filed 11/30/15 P. v. Warren CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                          B253552

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. YA079985)
         v.

TYMARC D. WARREN,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Steven R. Van Sicklen, Judge. Affirmed with directions.


         Richard C. Neuhoff, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and
Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
                  ___________________________________________________
           A jury convicted defendant Tymarc Warren of first degree murder in violation of
Penal Code section 187, subdivision (a). The jury found defendant personally used a
deadly weapon, a knife, in the commission of the offense within the meaning of section
12022, subdivision (b)(1). The trial court sentenced defendant to 25 years to life for the
murder and one year for the deadly weapon enhancement for a total sentence of 26 years
to life.
           Defendant appeals on the grounds that: (1) the jury was misled as to the nature of
the heat of passion that can reduce first degree murder to second degree murder; (2) the
jury was misled into believing that defendant’s reaction could qualify as heat of passion
only if a reasonable person would have killed in defendant’s situation; (3) the jury was
improperly given to understand that self-defense was not available to defendant if the
jury believed he used more deadly force that was reasonably necessary; (4) the trial court
failed to instruct sua sponte that imperfect self-defense applied if defendant had a good
faith but mistaken belief that he was using no more force than necessary to defend against
lethal force; (5) the trial court’s nonstandard instruction on imperfect self-defense was
incorrect in several respects; (6) the trial court failed to instruct sua sponte that an initial
aggressor who uses nondeadly force and whose opponent responds with deadly force has
a right to use deadly force to defend himself; (7) the record shows defense counsel
provided inadequate assistance; (8) cumulative prejudicial errors require reversal; and (9)
the abstract of judgment must be corrected to reflect defendant’s correct number of credit
days.
                                             FACTS
Prosecution Evidence
           Defendant and Eileen Garnreiter began dating in 2008 or 2009. They moved into
an apartment together in June 2010. In December of that year, Garnreiter gave birth to
their daughter, L. Defendant and Garnreiter began to have problems in their relationship
after the birth, and Garnreiter was often upset. She would take the baby and stay at the
home of her mother, Yesenia Nash. Garnreiter complained to Nash about defendant’s
verbal abuse. He cursed at her and criticized her weight, cooking, and

                                                2
driving. Garnreiter also complained about defendant’s gambling and his failure to look
for employment.
       On January 7, 2011, Garnreiter went to Nash’s house with an overnight bag. After
talking with Nash, Garnreiter agreed to move permanently to Nash’s house with the baby.
That night, defendant told his sister, Tataneasha McDaniel, that he was upset with
Garnreiter because he was separated from his child when Garnreiter took her to Nash’s
house. Defendant was also upset by things he had read in Garnreiter’s Facebook account.
Defendant suspected that Garnreiter was open to seeing other men and planned to leave
him and take the baby with her.
       During a telephone conversation with McDaniel, defendant said he hated
Garnreiter and wanted to punch her in the face. He said he had not felt hate like that in
his heart since he “pulled out ammunition on [his] sergeant.” He told McDaniel that he
had seen that Garnreiter told a male through her Facebook account that she was no longer
in a relationship and referred to herself as a single mother.
       On the same night, defendant went to Nash’s home, where he spoke with Nash,
who would not let him in. Eventually, Garnreiter went outside and spoke with defendant.
To Nash’s surprise, Garnreiter began packing her things when she came in. She told
Nash, “I better go home before things get worse tomorrow.” Garnreiter drove off and
returned to the apartment she shared with defendant.
       At approximately 1:06 a.m. on January 8, 2011, defendant telephoned his sister
and asked what he should do. He said that Garnreiter was dead, he had slit his wrist, and
he wanted to know what to do with L. He asked McDaniel, “I want to know if I should
take [L.] with us.” Alarmed, McDaniel woke her father, Tymarc Warren, Sr. (Warren
Sr.), and told him to go to defendant’s apartment. Warren Sr. quickly drove to the
apartment and forced his way inside. He saw defendant lying over Garnreiter on the
floor. L. was on the counter. Warren Sr. called 911. Defendant said, “Dad, what have I
done?” After Warren Sr. picked up the baby, defendant tried to poke himself in the chest
with the knife and said, “I don’t want to live.”



                                              3
       When sheriff’s deputies arrived, defendant said, “I killed her because I got hate in
my heart. The devil put it there, and I started to choke her. That’s why she grabbed the
knife. But before she could use it, I forced it down her throat while she was still holding
it.” A bloody butcher knife was about a foot away from defendant. Deputy Andrew
Dousenard asked defendant if the victim had cut his wrists. Defendant replied, “I have
the devil and hate in my heart. I stabbed her, then I cut my wrist.” Defendant was calm
and spoke in a flat tone. He was transported to the hospital for treatment.
       Dr. Lisa Scheinin was the Los Angeles County deputy medical examiner who
performed an autopsy on Garnreiter. Scheinin stated that the manner of death was
homicide and the cause of death was multiple stab wounds. Dr. Scheinin noted “quite a
few injuries” on Garnreiter’s body. She had a bruised left eye, a bruised nose, a bruised
forehead, and multiple areas of hemorrhage in the left eye itself. Dr. Scheinin believed
the eye injury was caused by a blow to the eye.
       Garnreiter had multiple petechial hemorrhages on both cheeks, and on the
forehead, chin, and bridge of the nose. The petechial hemorrhages were signs of
strangulation. They were all over the skin of her face, the inner linings of the eyelids, on
the sclera of the right eye, and on the inside of the upper lip. This diffuse distribution of
petechia was typical of an external neck compression. There were also injuries to the
interior muscles of the neck and exterior bruises on the neck.
       There was a total of 16 stab wounds. There were three stab wounds in a small area
of the neck. One was on the right side of the neck and severed the carotid artery and
jugular vein. This stab wound also injured parts of the back of the throat above the
larynx and went through portions of the back of the throat, which caused Garnreiter to
aspirate blood into her lungs. A second stab wound had a depth of between four and five
inches and an area of abrasion at its upper margin. Abrasion of any part of a stab wound
is usually due to the hilt of the knife contacting the skin, i.e., the blade was plunged so
deeply that it went as far as it could to the hilt. A third stab wound was located in front of
the neck. It had a depth of approximately three to five inches. The orientation of the
blade was different in that unlike the other two wounds, the squared end of the knife was

                                              4
toward the front, and the sharp end was towards the back. The three stab wounds to the
neck were individually fatal because they injured the blood vessels and the inner
structures of the neck that allowed blood to enter the airway.
       Garnreiter also had stab wounds on her chest and abdomen. One was below the
nipple of the right breast. The stab wound to the chest was potentially fatal because it
entered the chest and could have collapsed the lung. Another stab wound of eight to 10
inches was in the upper right abdomen and caused the complete perforation of the liver.
The perforation of the liver was easily another fatal wound because a great deal of blood
is supplied to the liver. A victim could die from the associated blood loss.
       Garnreiter had several defensive wounds that she apparently suffered when
attempting to ward off a blow, or she grabbed the knife. There were two poke wounds
between the right breast wound and the stab wounds to the neck. Dr. Scheinin believed
that the poke wounds were caused while Garnreiter was moving and trying to get away,
and the knife did not make full contact with the skin. Slice marks on the fingers and on
the palm of the hand were not consistent in any way with Garnreiter holding the knife and
making a stabbing motion. An incised defensive wound on the inner right knee grazed
the skin and curved around, which was consistent with a serrated blade. Dr. Scheinin
believed the injury was consistent with the knife coming down in a slashing motion while
Garnreiter flailed around and curled into a ball, or drew her knees up to her chest in
trying to protect her chest.
       The asphyxia by neck compression was a contributory factor to the cause of death
because it could have had a temporary incapacitating effect on Garnreiter. The
strangulation did not completely render Garnreiter unconscious because she had
defensive injuries. Garnreiter’s injuries were consistent with her standing in front of the
perpetrator, being punched in the face, manually strangled, and then being placed in a
“sleeper hold” with the perpetrator’s forearm. She then could have been stabbed if she
had the sleeper hold on the left side and stabbed back to front on the right side, which
would be consistent with the wounds to the abdomen and breast. Either the knife was
repositioned in the hand or the hand itself was repositioned with the knife.

                                             5
Defense Evidence
       Defendant testified that he was 28 years old. He had never known his biological
mother while growing up. Warren Sr.’s wife, Yolanda, lived with defendant from the
ages of five through age eight, and she abused him. When Warren Sr. went to prison, the
abuse worsened. Yolanda was also abusive to McDaniel and defendant’s younger sister
K. Child Protective Services was contacted after Yolanda burned K.’s hands by placing
them over the lit stove. Defendant and his sisters were taken from the home and never
lived with Yolanda again.
       Defendant testified that, despite the abuse, he did well in school. He was in the
gifted and talented education program in junior high school. He played football in high
school, was a member of the drama club, and had a lot of friends. He was never involved
in a gang. He joined a fraternity that was geared toward scholastics.
       When he was 17 years old, he enlisted in the Army. In 2003, he received basic
training at Fort Benning in Georgia and went on to serve two six-month tours of duty in
Iraq. He witnessed several traumatic events during his time in Iraq, and his battle buddy
was injured when a mortar exploded near him. He saw people with missing limbs. He
was made to watch a video of a beheading, and shortly thereafter he began thinking about
suicide. He was suffering from sleep deprivation when he went into a dumpster, put a
gun in his mouth, and pulled the trigger. His gun jammed. He was put on suicide watch
for 72 hours. Once, he was approximately 100 meters from the explosion of an
improvised explosive device (IED), and he later heard the screams of other soldiers,
which affected him.
       After he returned to civilian life, defendant felt anxiety when he went to
nightclubs. Defendant later learned that he disliked and felt uneasy with the
“disorganized” crowds and felt that he was “more on guard” all the time. He had
recurring nightmares of a jet exploding inside an aviation hanger. He also felt anxious
when he went to El Camino College. He did not like walking the hallways. A professor
and his father advised him to go to Veterans Affairs (VA), where he was given a muscle
relaxer prescription that helped him sleep. He was also given a mouth guard because he

                                             6
was grinding his teeth at night in his sleep. Defendant took his medication, but his father
confiscated it after defendant’s second suicide attempt, in which he consumed a bottle of
his medication. This attempt occurred after he was terminated from the Federal Aviation
Administration in April 2009. The termination devastated defendant.
       Defendant met Garnreiter in January 2008 and they were dating regularly by April
2008. They had a loving relationship. Defendant was very excited when he learned
Garnreiter was pregnant in March 2010. Garnreiter worked two part-time jobs, and
defendant got a job with the Census Bureau. Defendant gambled at a local casino, and in
September 2010, he lost about $6,000 while gambling. When Garnreiter threatened to
leave him, defendant began attending Gambler’s Anonymous. Soon after their baby’s
birth in December 2010, while Garnreiter was still in the hospital, defendant began
feeling “negative energy” from Garnreiter. When Garnreiter came home, defendant
delayed starting a new job for about three weeks so he could stay home and take care of
Garnreiter and the baby.
       At one point, after defendant expressed his disapproval of Garnreiter’s lack of care
of her appearance, Garnreiter insisted on being taken to her mother’s. She stayed at
Nash’s house for a couple of days. After that, Garnreiter began going out more
frequently with friends while defendant stayed home with the baby. Defendant felt that
he was being punished, but he was willing to do everything to get back on Garnreiter’s
good side. Garnreiter frequently felt depressed during this time and began drinking
frequently.
       There was tension between defendant and Nash over childrearing methods and
providing health care for the baby. On January 6, 2011, Nash came to the apartment to
discuss the health care issue. Defendant said he would inquire whether the VA could
provide health care for the baby. Garnreiter said she was going to take the baby to
Nash’s house that night so he could get some rest. There were no problems between
defendant and Garnreiter when she left their apartment on the night of January 6.
       On the following morning, January 7, 2011, Garnreiter sent defendant a text
message saying, “Good morning. I hope you’re on your way, and I love you.”

                                             7
Defendant responded that he loved her, too. Defendant found out that his daughter did
not qualify for health care with the agency. Defendant telephoned Garnreiter and told
her, and she said he needed to do something. When Garnreiter came home they argued.
Garnreiter announced she was going to her mother’s house and left the apartment.
       That evening, defendant began getting phone calls from concerned family
members. They told him that Garnreiter had indicated on her Facebook account that she
was tired of him. She was leaving him and taking the baby. Defendant was surprised.
When he called Garnreiter, she did not answer her phone. Defendant was able to log into
Garnreiter’s Facebook account, where he read a conversation between Garnreiter and a
man about meeting, which showed her interest in other men and confirmed that she
wanted to leave defendant. Defendant felt betrayed.
       Defendant and Garnreiter engaged in a lengthy series of text messages. She did
not want to be with him any longer. Defendant replied, “If you want to leave, that’s fine,
but our agreement was for me to spend the day with [the baby]. So I’m going to go over
there and get [the baby].” Defendant was not too upset that Garnreiter was moving on.
His main focus became his daughter. Defendant called McDaniel to find out if he was in
the right in going to get his child. McDaniel said Garnreiter was harboring their child
and told defendant that he could get the baby.
       Defendant went to Nash’s house. Nash told him that Garnreiter was feeding the
baby and closed the door. Defendant started walking back to his car, but returned to the
door and rang the doorbell again. Defendant said he just wanted the baby. Defendant
asked to enter and speak with Garnreiter. Nash replied, “She’ll come talk to you if she
feels like coming to talk to you.” Defendant replied, “You know what, I’m calling the
police, Ms. Yesse,” and walked away. The police merely told him to file for custody. As
defendant began to drive away, Garnreiter came out. Defendant and Garnreiter argued
over her mother’s interference, her desire to leave, and the lack of health care for the
baby. Garnreiter said she was going to their apartment to pack her things on Monday.
       Defendant testified he was in “pretty bad shape” and felt his world was crumbling
again and he needed support. While driving to his apartment, he spoke to his younger

                                              8
sister and said he was not sure whether life was worth fighting for. Defendant also spoke
with McDaniel when he arrived home. Defendant asked what the point of life was, and
stated that Garnreiter and the baby were all he had, and that Garnreiter wanted to pack
her things when he went to work on Monday.
      Defendant again looked at Garnreiter’s Facebook account and saw a message in
which Garnreiter called McDaniel a whore. Defendant told McDaniel and she became
upset. McDaniel said, “Ooh, I feel like beating her up.” Defendant agreed, stating, “Me
too. I want to punch her in the face. I feel like punching her in the face.”1 McDaniel
told defendant to come to her house because she did not think he should be by himself.
At that point, Garnreiter walked into the apartment. Defendant was surprised because she
had said she would not return until Monday. When defendant asked Garnreiter why she
had returned the apartment, she stated that she needed to get some things.
      Defendant and Garnreiter talked in the living room. Defendant told Garnreiter
they could work it out and she should spend the night with him. Garnreiter agreed.
Defendant and Garnreiter then argued about the insult to McDaniel posted on Facebook.
Garnreiter told defendant he had no right to go onto her Facebook account. They
continued to argue, and defendant told Garnreiter to give him the baby. He said he would
feed her while she was packing her bags, as she wanted to do. When defendant then
grabbed the baby from Garnreiter, she said she was not going anywhere, but he had to go.
They continued arguing. When defendant made a disparaging remark about Nash,
Garnreiter pushed him. Defendant placed the baby on the counter and grabbed Garnreiter
around the neck from behind her. He put his right arm across her throat.2
      Defendant said, “What if I had dropped [L.]. You need to calm down.” Garnreiter
kept telling him to let go of her. He repeated that she need to calm down, and “she just



1      In her statement to police, McDaniel did not mention that it was she who first
talked about punching Garnreiter and that defendant merely agreed with her.
2     At the time of the murder, defendant was five feet, 10 inches tall and about 170
pounds; Garnreiter was about five feet, four inches tall and weighed about 180 pounds.

                                            9
starts fighting me.” Defendant testified, “She rams me against the stove, and we’re just
turning. And she grabs my balls so I start squeezing her tighter. And then she has a
knife. I don’t even remember when she grabbed the knife.”
       Defendant grabbed her wrist with his left hand and told her to put down the knife.
She kept telling him to let go of her. She was slipping down and out of his right arm, so
he grabbed her on the throat with his right hand. He kept yelling to put the knife down
and she yelled for him to stop and let go. “She kept pushing down and I kept pushing
inward. I just got so mad. . . . I didn’t know what to do. I couldn’t let her go. No
way. . . . I was too afraid. So I just started focusing on more on working the knife
towards her. And at some point I just lost it, and I . . . turned her wrist.” Defendant
testified, “I pushed it in. She let go of it, and I grabbed it.” He said he grabbed the knife
with his right hand. Garnreiter fell and was still trying to grab the knife. Defendant
thought that might have been when he hit her, so that she would let go.
       Defendant told Garnreiter to “hold on,” and he began looking for his cell phone.
He was running all over the house. The baby cried, and he thought she was injured
because she had blood on her. Defendant grabbed the baby, ran to the bathroom, and
removed her clothes. He saw there was no blood under them, and she was not injured.
He crawled in the bathtub with her and said he was sorry. He did not mean to hurt
mommy. He started cutting his wrist. He got out of the bathtub and looked at Garnreiter.
He started cutting his wrist more. He wanted to stick the knife in his neck but was
worried about who would get L.
       Defendant found Garnreiter’s phone and called his sister. He told her that
Garnreiter was dead, he had cut his wrist, and L. could not come with them so she needed
to come and get her. He felt lightheaded. The next thing he remembered was his dad
standing there, and he told his dad to grab the baby. When he saw the baby was safe he
tried to stab himself in the heart.
       The next thing he remembered was getting fingerprinted. He did not recall
making the statements attributed to him by the responding deputies. He did not recall



                                              10
making any statements to Detective Dameron Peyton. Defendant did not tell McDaniel
that Garnreiter had attacked him.
       On cross-examination, defendant said he took complete control of the knife in his
right hand after the first stab wound. When asked what he did with the knife, he said he
“hit her twice” in the neck. At that point, Garnreiter fell on her left side. She pulled
defendant down with her. She grabbed hold of the sharp portion of the knife. He told her
to stop. That is when defendant hit her. He pulled the knife away from her and stood
over her. When asked how the next 12 stab wounds occurred, defendant replied he
recalled only the three to the neck. He did not remember every instant of the altercation.
He did not recall saying on direct examination that he did not remember anything after
forcing the knife into her throat one time. As the prosecutor ran through the stab wounds,
defendant testified he did not know or did not recall how he inflicted them.
       Defendant said he had taught Garnreiter a little about hand-to-hand combat. If
used properly, some of the things he taught her could be threatening. Up until the
stabbings, she was never a threat to him. He grabbed her because she pushed him while
he had the baby. He took a moment and set the baby down. He stated this was a calm
decision. He then grabbed Garnreiter to calm her and tell her not to push him while he
had the baby again. At the time of the killing, defendant was aware that stabbing a
woman even once on the throat would be dangerous to human life.
       Defendant testified that when he had full control of the knife with both of his
hands and had Garnreiter in a chokehold, he believed he was in danger of death or bodily
injury. He did not believe she was stabbed 16 times. When asked, “In all of these stab
wounds that you inflicted do you think it was excessive, he answered, “Yes, sir.” He also
testified that when he had full control of the knife, stabbing Garnreiter was necessary and
reasonable.
       Defendant acknowledged that he had never fired a machine gun in Iraq. He never
had to engage or fight the enemy. The IED explosion he talked about occurred
approximately 150 meters away from him, and no one was injured. In the five years after
he left Iraq, he had no other violent incidents.

                                              11
       Psychologist Michael Perrotti testified on behalf of the defense. He specialized in
neuropsychology. He had treated servicemen who had brain trauma and suffered from
depression and posttraumatic stress disorder (PTSD). He conducted three forensic
assessments of defendant and collateral interviews with Warren Sr. and McDaniel. He
found that defendant had a long history of emotional breakdown under stress. He noted
that the stress of an event in the military that caused exhaustion and sleep deprivation
resulted in defendant’s suicide attempt. He found defendant had significant
neuropsychological deficits in brain processing speed. Defendant also had a deficit in the
executive functioning area of the brain, which controls reasoning, planning, and logic. It
relates to impulse control and the ability to organize one’s behavior.
       Dr. Perrotti found defendant also suffered from Complex PTSD. He had suffered
physical abuse as a child, and later in life experienced the trauma of things that happened
to him in battle when he was serving in Iraq. He also had suffered a concussion during
high school football. Dr. Perrotti categorized defendant’s condition as Complex PTSD
because of these multiple instances of trauma, and the findings of defendant’s evaluation
were consistent with the symptomatology of Complex PTSD. The doctor also believed
defendant suffered from dissociative identity disorder, which was manifested by hearing
a voice that was not his and thinking that his thoughts were not his. Defendant also “had
a major depression.”
       Defendant was exposed to an explosive blast, and it was difficult to say what the
impact was on him. It was probable there was some sort of shock wave exposure from
that. He also was exposed to a video of a beheading and a woman who lost her arms. He
had nightmares of explosions and dead bodies. The person in the beheading became
himself. Defendant broke down and cried uncontrollably during his interview with Dr.
Perrotti.
       Dr. Perrotti believed that defendant was in a survival mode from the military.
When he was in an altercation with the victim, he was in an instinctive mode of “it’s
either me or them.” Based on his interview with Warren Sr., Dr. Perrotti believed
defendant had an impaired state of consciousness at the time of “the allegations.”

                                             12
Because of his Complex PTSD, defendant was highly prone to overreact, and combined
with his military training “and survival at all costs,” it “impacted his behavior during the
allegations.” Dr. Perrotti testified that certain triggers may cause a person with military
combat training and PTSD to react violently. Dr. Perrotti believed that the report of Dr.
Collins, the prosecution expert, showed defendant was highly likely to decompensate
under stress to a primitive level of functioning.
       PTSD is a mental disorder listed in the most recent edition of the Diagnostic and
Statistical Manual of American Psychiatric Association (DSM-5). Dr. Perrotti
acknowledged that Complex PTSD was not in the DSM-5.
Rebuttal Evidence
       Detective Peyton and his partner, Detective Margarita Barron, spoke with
defendant in the hospital during the early morning hours after the stabbing. Defendant
was advised of his constitutional rights, and he appeared lucid. When asked how the
killing occurred, defendant said that he and Garnreiter were arguing over some content on
Facebook. Defendant tried to take the crying baby from Garnreiter so that he could feed
her. Garnreiter took the bottle from him and walked away. At that point, he snatched the
child from her. Garnreiter shoved him, and he placed the baby on the counter and
grabbed Garnreiter by the neck. She struggled and at some point grabbed a knife. She
told him to stop and let her go. He grabbed the knife and they struggled. When she
attempted to stab him, and did stab him, he grabbed the knife and forced it down her
throat. He then took control of the knife, switched it from his left hand to his right, and
he continued to stab her. She fell and he stabbed her again in the throat and continued to
stab her. When asked if he thought about calling police or paramedics, defendant said he
thought about it, but when he saw that Garnreiter was not breathing and motionless, he
began stabbing himself.
       Detective Peyton asked defendant about his service in the military. Defendant told
him about an incident related to sleep deprivation. He had just come off a convoy shift
after working two shifts in a row. He was instructed to work a third shift. When
defendant complained to his sergeant that he was tired, he was told to continue and do

                                             13
what he had to do. Defendant said he was mad and so upset that he wanted to kill his
sergeant, but decided to kill himself instead. Defendant chambered a round and tried to
fire but the gun malfunctioned.
       Psychiatrist Peter Collins evaluated defendant to determine whether he suffered
from PTSD. He testified that Complex PTSD was not in the diagnostic criteria. There
are many debates about what it is, and he did not know what it was. Dr. Collins
described the symptoms of PTSD and concluded that defendant did not meet the criteria
for a PTSD diagnosis. Dr. Collins believed that although defendant was exposed to
certain events in Iraq, those events were fairly normal over there and, by his own account,
defendant stated that they did not affect him. Dr. Collins examined defendant in
connection with the four or five incidents that Dr. Perrotti felt met the criteria of PTSD
and found they did not. Although the events caused defendant to experience some
disturbing nightmares, they did not meet the criteria for PTSD. When defendant came
back to the United States, he did not meet the diagnosis and did not complain about
psychological difficulties with his deployment. He told Dr. Collins that if he had not
injured his knee he would have remained in the military. Dr. Collins’s general
impression was that serving his country and his time in Iraq was probably one of the
more positive events in defendant’s life.
       Defendant talked to Dr. Collins about insomnia in relationship to two areas. He
was getting up regularly to take care of his baby, and he was having difficulties in the
correctional center because of the noise. Sometimes he would ruminate on the events
that led to his trial. His insomnia in the military was not sustained. At one point, he was
taking a muscle relaxant for his temporomandibular joint. Given the circumstances
defendant described about the IED blast, Dr. Collins stated that defendant suffered no
blast injury in Iraq.




                                             14
                                      DISCUSSION
I. Instructions on Heat of Passion in Relation to Second Degree Murder
       A. Defendant’s Argument
       Defendant contends it was reasonably likely that the jury erroneously understood
from the jury instructions, combined with the prosecutor’s argument, that the provocation
necessary to reduce first degree murder to second degree murder under the heat of
passion theory contained an objective, reasonable person requirement.
       B. Relevant Authority
       “The test of whether provocation or heat of passion can negate malice so as to
mitigate murder to voluntary manslaughter is objective. [Citations.] ‘[N]o defendant
may set up his own standard of conduct and justify or excuse himself because in fact his
passions were aroused, unless . . . the facts and circumstances were sufficient to arouse
the passions of the ordinarily reasonable [person].’ [Citation.] The test of whether
provocation or heat of passion can negate deliberation and premeditation so as to reduce
first degree murder to second degree murder, on the other hand, is subjective.
[Citations.]” (People v. Padilla (2002) 103 Cal.App.4th 675, 678.)
       When instructions are claimed to be conflicting or ambiguous, “we inquire
whether the jury was ‘reasonably likely’ to have construed them in a manner that violates
the defendant’s rights.” (People v. Rogers (2006) 39 Cal.4th 826, 873.) We look to the
instructions as a whole, rather than one or two phrases plucked out of context, and to the
entire record of trial, including the arguments of counsel. (People v. Stone (2008) 160
Cal.App.4th 323, 331; People v. Dieguez (2001) 89 Cal.App.4th 266, 276.)
       C. Proceedings Below
       The trial court instructed the jury with CALCRIM No. 520 on the proof required
to find defendant guilty of first or second degree murder with malice aforethought. The
instruction defined express malice and implied malice. The instruction told the jury that,
if it decided defendant committed murder, the murder was of the second degree unless
the People proved beyond a reasonable doubt that it was murder of the first degree as
defined in CALCRIM No. 521.

                                            15
       CALCRIM No. 521 explained that first degree murder required the People to
prove defendant acted “willfully, deliberately, and with premeditation,” and the
instruction defined each of these terms. This instruction told the jury that “[a] decision to
kill made rashly, impulsively, or without careful consideration is not deliberate and
premeditated.”
       CALCRIM No. 522 explained that provocation could reduce a murder from first
degree murder to second degree murder, and it could reduce a murder to manslaughter.
The instruction told the jurors that they should consider any provocation to defendant
when deciding whether the crime was first degree murder or second degree murder, and
whether he committed murder or manslaughter.3
       CALCRIM No. 570 explained heat of passion in relation to voluntary
manslaughter. The instruction states that a killing that would otherwise be murder is
reduced to voluntary manslaughter if the defendant killed someone because of a sudden
quarrel or heat of passion, which occurred if the defendant was provoked. As a result, he
acted rashly and under the influence of intense emotion that obscured his reasoning, and
the provocation would have caused a person of average disposition to act without
deliberation, i.e., from passion rather than judgment.4


3      The trial court read CALCRIM No. 522 in its entirety as follows: “Provocation
may reduce a murder from first degree to second degree and may reduce a murder to
manslaughter. The weight and significance of the provocation, if any, are for you to
decide. If you conclude the defendant committed murder but was provoked, consider the
provocation in deciding whether the crime was first or second degree murder. Also,
consider the provocation in deciding whether the defendant committed murder or
manslaughter.”
4      The trial court read CALCRIM No. 570 in its entirety as follows: “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: 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; and, 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. Heat of passion does

                                             16
       D. Analysis
       Defendant claims there is a reasonable likelihood the jury misunderstood the
governing law and believed that both the provocation required to reduce first degree
murder to second degree and the provocation required to reduce murder to manslaughter
required the jury to determine whether an average and reasonable person would have
reacted from emotion. He posits that when the instructions are considered in conjunction
with the arguments of the prosecutor and viewed from a common sense perspective, the
likelihood that the jury held the inaccurate view was inevitable. Although the word
“provocation” was defined as containing an objective, reasonable person element in the
instruction on voluntary manslaughter, nothing informed the jury that “provocation” had
a different meaning with respect to second degree murder. CALCRIM No. 522
reinforced giving the word the same meaning, since it was the only instruction to mention
provocation in connection with second degree murder, and it described “provocation” in
identical terms as to both second degree murder and manslaughter.
       This “natural reading,” defendant argues, was “set in stone” when the prosecutor
stated without qualification that defendant “‘loses as to [his] claim’ of heat of passion
because under ‘the letter of the law,’ provocation had to satisfy the objective, ‘average
person’ test.” Defendant argues that the following portions of the prosecutor’s argument


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 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 People have
the burden of proving beyond a reasonable doubt that the defendant did not kill as a result
of a sudden quarrel or in the heat of passion. If the People have not met this burden, you
must find the defendant not guilty of murder.”


                                             17
misled the jury: The prosecutor stated, “you need to make sure you’re following the law.
You need to make sure you look at your jury instructions and make sure you’re going
right down the letter of the law.” He explained that the letter of the law was as follows:
“For heat of passion you have to find that the defendant was provoked; that the
provocation caused a rash act due to intense emotion that obscured judgment. This is the
big one, folks. This is the big one. That that provocation was such that it would cause an
average person—your average, reasonable person to act rashly without due deliberation.
Meaning to say, that whatever [Garnreiter] did was so provocative that an average,
reasonable person would have reacted and started plunging the knife into her throat or
putting her in a stranglehold. And that’s where Mr. Warren loses as to this claim.”
       Defendant also cites the following portion of the prosecutor’s argument: “Folks,
no reasonable, average person would react in this way. This was not the decision of a
reasonable, average person. . . . You can’t say was this an average reasonable person
with some sort of mental disorder. You can’t do that. Okay? It has to be just your
average, reasonable person. Okay?”
       And in rebuttal, the prosecutor argued, “Okay. So [Garnreiter] pushes him.
[Garnreiter] pushes him. And what the defense wants you to find is that that is
reasonable provocation for [Garnreiter’s] death. Folks, average, reasonable person
standard, not taking into account any claim of any mental health issues.”
       The record shows that the trial court gave the instructions on murder and
manslaughter without objection. Defendant did not request a pinpoint instruction on the
difference in the provocation required to reduce first degree murder to second degree
murder. (See People v. Jones (2014) 223 Cal.App.4th 995, 1001 (Jones) [CALCRIM
Nos. 520, 521, 522, and 570 correctly state the law, and absent a request for a pinpoint
instruction regarding the standard of provocation required to reduce first to second degree
murder, the trial court had no duty to make such a modification to the pattern
instructions, and failure to request such a pinpoint instruction forfeits the claim on
appeal].) There were no objections to the prosecutor’s argument, and defendant has
therefore forfeited these issues on appeal. (Jones, at p. 1001.)

                                             18
       Even if defendant’s issues were not forfeited, we would reject them. As noted, in
Jones the same instructions given in defendant’s case were found to be correct and not
misleading. (Jones, supra, 223 Cal.App.4th at pp. 999, 1001; see also People v.
Hernandez (2010) 183 Cal.App.4th 1327, 1334.) In Hernandez, for example, the court
stated, “Although CALCRIM No. 522 does not expressly state provocation is relevant to
the issues of premeditation and deliberation, when the instructions are read as a whole
there is no reasonable likelihood the jury did not understand this concept. Based on
CALCRIM No. 521, the jury was instructed that unless defendant acted with
premeditation and deliberation, he is guilty of second, not first, degree murder, and that a
rash, impulsive decision to kill is not deliberate and premeditated. Based on CALCRIM
No. 522, the jury was instructed that provocation may reduce the murder to second
degree murder. [¶] In this context, provocation was not used in a technical sense peculiar
to the law, and we assume the jurors were aware of the common meaning of the term.
[Citation.] Provocation means ‘something that provokes, arouses, or stimulates’; provoke
means ‘to arouse to a feeling or action[;] . . . to incite to anger.’ [Citations.] Considering
CALCRIM Nos. 521 and 522 together, the jurors would have understood that
provocation (the arousal of emotions) can give rise to a rash, impulsive decision, and this
in turn shows no premeditation and deliberation.” (Id. at p. 1334.) Hernandez points out
that CALCRIM No. 521 connects “a rash, impulsive decision to kill” to murder that is
not premeditated and/or deliberated. (Hernandez, at p. 1334.)
       With respect to the prosecutor’s argument, the record shows that defense counsel,
in her closing argument, argued exclusively for a verdict of voluntary manslaughter. She
discussed sudden quarrel and heat of passion and also provocation. She defined the
provocation by Garnreiter as the act of squeezing defendant’s testicles. Her principal
argument was that of imperfect self-defense, however. She argued that defendant was
suffering from the effects of PTSD and had disassociated himself from what was
occurring. She pointed out that the jury was instructed in CALCRIM No. 3428 that a
mental disorder could be considered when deciding whether defendant acted with the
intent or mental state required for a particular crime. Defense counsel never argued that

                                              19
the jury should find defendant guilty of second degree murder, as opposed to first degree,
based on his subjective perception of provocation.
       The prosecutor was able to anticipate the defense strategy, since in opening
argument defense counsel discussed PTSD at length, and stated several times that
defendant’s crime was manslaughter and not murder. It appears the prosecutor sought to
preempt this rationale by the arguments quoted ante. In light of the defense arguments,
the prosecution’s argument strategy could not have reasonably misled the jury in its
consideration of the evidence of provocation in determining whether defendant
premeditated and deliberated the killing so as to distinguish between first and second
degree murder. As instructed, the jury had to decide first if defendant was guilty of
manslaughter or murder. After deciding whether defendant committed murder, the jury
then had to consider whether the evidence showed deliberation and premeditation.
Nothing in the prosecutor’s argument, or the instruction, misled the jury into failing to
consider whether any provocation by Garnreiter obviated this mental state.
       Defendant also contends that, to the extent his argument was forfeited, his counsel
was deficient for failing to object. Since we have addressed defendant’s argument, we do
not need to discuss this alternative argument.
       Furthermore, even if the instructions on provocation were confusing or
misleading, defendant suffered no conceivable prejudice under any standard. (Chapman
v. California (1967) 386 U.S. 18, 24 [harmless beyond a reasonable doubt]; People v.
Watson (1956) 46 Cal.2d 818, 836-837 (Watson) [reasonable probability of different
verdict].) The jury was told, “If you believe that the attorneys’ comments on the law
conflict with my instructions, you must follow my instructions.” (CALCRIM No. 200.)
The jury was instructed to consider the instructions together. (CALCRIM No. 200.)
       Moreover, there was overwhelming evidence of premeditation and deliberation.
Defendant punched Garnreiter in the eye, held her in a chokehold, and manually
strangled her before any stabbing took place. Defendant thus had overpowered
Garnreiter and could have stopped his assault at any time. During the time defendant
forced Garnreiter’s hand holding the knife up to Garnreiter’s throat, if indeed this is what

                                             20
occurred, defendant had time to reflect on his actions. Defendant forcefully stabbed
Garnreiter five times in the neck, chest, and abdomen. Garnreiter’s stab wounds in the
neck were up to five inches in depth. He also poked her between the breast and neck and
slashed her 11 times on her arms, hand, fingers, and knee. The jury could reasonably
have inferred from the evidence that defendant’s manner of killing Garnreiter, if nothing
else, demonstrated a deliberate plan to kill her. (See, e.g, People v. San Nicolas (2004)
34 Cal.4th 614, 658 [the number of wounds on the victim’s body, many of which were
fatal, led to reasonable inference defendant intended to kill the victim].) The fact the
multiple wounds were clustered in areas containing vital organs tends to suggest a
preconceived design to kill, rather than a sudden explosion of violence. (See People v.
Prince (2007) 40 Cal.4th 1179, 1253; People v. Elliot (2005) 37 Cal.4th 453, 471 [three
potentially lethal knife wounds, repeated throat slashing and numerous other stab wounds
could be construed as suggesting a premeditated design to kill].) Premeditation requires
no more than a successive thought, and even if the manner of killing is suggestive of
rage, an inference of premeditation is not precluded. (San Nicolas, at p. 658.)
       In addition, defendant told responding deputies that he killed Garnreiter because
he had hate in his heart. He said he started to choke her, she grabbed the knife, but he
forced the knife down her throat before she could use it. He took the time to move the
knife from his left hand to his right hand to continue stabbing Garnreiter with his
dominant hand.
       We conclude the jury reasonably inferred from the evidence at trial that
defendant’s killing of Garnreiter displayed premeditation and deliberation, and any error
caused by a lack of further instruction in second degree murder or the prosecutor’s
emphasis on manslaughter in his argument was harmless.
II. Instruction on Heat of Passion and the Act of Killing
       A. Defendant’s Argument
       Defendant contends the instructions and the prosecutor’s arguments led the jury to
believe that the provocation defendant experienced had to be of a kind to cause an
ordinary person of average disposition to kill, whereas it need merely be of a kind to

                                             21
cause an ordinary person to react from emotion and without deliberation or judgment—
not necessarily by killing. Defendant argues that the error requires reversal, since had the
jury properly understood provocation, it could well have rendered a verdict of voluntary
manslaughter. He asserts the circumstances mitigated culpability for the killing even if
they did not justify homicide.
       B. Relevant Authority
       “Provocation is adequate only when it 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.] Logan [(1917)] 175 Cal. [45,] 49 .)”
(People v. Beltran (2013) 56 Cal.4th 935, 957.) This is the type of provocation that
suffices to constitute heat of passion and reduce a murder to manslaughter and is known
as the Logan standard. (Id. at pp. 938-939, 948-949.) The provocation is not required to
be of a kind that would cause an ordinary person of average disposition to kill. (Beltran,
at p. 938.) The proper focus is on the defendant’s state of mind, not on his particular act.
(Id. at p. 949.)
       C. Proceedings Below
       As noted, the trial court instructed the jury on voluntary manslaughter with
CALCIM No. 570, which told the jury that the defendant killed someone because of a
sudden quarrel or in the heat of passion if the defendant was provoked and, as a result of
the provocation, he 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 instead of
judgment.
       In arguing a lack of provocation to the jury, the prosecutor stated that the jury had
to find, “that whatever [Garnreiter] did was so provocative that an average, reasonable
person would have reacted and start plunging the knife into her throat or putting her in a
stranglehold.” In rebuttal argument, the prosecutor stated, “[Defense counsel] referenced
provocation. And remember, if you find provocation, what does it have to be? It has to



                                             22
be such that a reasonable, average person would feel provoked to commit that act.” The
jury did not have any questions during deliberations.
D. Analysis
       Defendant argues that Beltran controls this issue on appeal. In that case, the
defendant was charged with the murder of his former girlfriend. (Beltran, supra, 56
Cal.4th at pp. 939, 941.) The trial court modified the standard instruction explaining
voluntary manslaughter based on heat of passion (CALCRIM No. 570) with the
agreement of the parties. (Beltran, at p. 943.) The modified instruction stated in
pertinent part: “In deciding whether the provocation was sufficient, consider whether a
person of average disposition would have been provoked and how such a person would
react in the same situation knowing the same facts.” (Id. at p. 944.) During
deliberations, the jury asked if the phrase “‘“how such a person would react in the same
situation knowing the same facts”’” meant “‘“to commit the same crime (homicide) or
can it be other, less severe, rash acts[?]”’” (Id. at p. 945.) After consulting counsel, the
trial court provided the following response: “‘The provocation involved must be such as
to cause a person of average disposition in the same situation and knowing the same facts
to do an act rashly and under the influence of such intense emotion that his judgment or
reasoning process was obscured. This is an objective test and not a subjective test.’”
(Ibid., fn. omitted.)
       During closing argument in Beltran, the prosecutor stated that the provocation had
“‘to be such that a person of average disposition [would] act with passion rather than
judgment . . . . You don’t go out and kill somebody.’” (Beltran, supra, 56 Cal.4th at p.
943, fn. 5.) Defense counsel argued that the prosecutor had misstated the law, and that
“‘[i]f the provocation causes a person to act rashly and without thinking, that’s what this
provocation is under the law. It doesn’t say the provocation would have caused a person
of average disposition to kill.’” (Id. at p. 943, fn. 4.)
       The Beltran jury convicted the defendant of second degree murder. (Beltran,
supra, 56 Cal.4th at p. 941.) On appeal, the defendant argued that the instruction given
was misleading in that telling jurors to consider how a person would react in the face of

                                               23
the provocation led the jurors to question whether an average person would react
physically and kill as opposed to reacting mentally by undergoing obscured reason, thus
precluding the formation of malice. (Id. at p. 945.)
       A divided panel of the Court of Appeal reversed the conviction. The majority
concluded that the parties’ arguments created an ambiguity in the trial court’s jury
instruction on provocation, and it was prejudicial to the defendant. (Beltran, supra, 56
Cal.4th at pp. 945, 955.) Also, the trial court’s response did not clarify the ambiguity in
the instruction, and the prosecutor’s argument reinforced the problem caused by the jury
instruction. (Id. at p. 955.)
       The California Supreme Court stated that the Court of Appeal’s analysis fell short.
(Beltran, supra, 56 Cal.4th at p. 955.) The court reaffirmed that the Watson standard
applied, and that the prejudice analysis of the Court of Appeal overlooked the fact that
the jury asked for additional guidance and the trial court gave it. (Beltran, supra, 56
Cal.4th at pp. 955-956.) “The trial court responded with a correct statement of law, that
‘[t]he provocation involved must be such as to cause a person of average disposition in
the same situation and knowing the same facts to do an act rashly and under the influence
of such intense emotion that his judgment or reasoning process was obscured.’” (Id. at p.
956.) The Beltran court also stated that “[t]his instruction properly focused upon the
rashness of the act, not on the act alone.” (Id. at p. 957.)
       The Beltran court reversed the Court of Appeal. In its conclusion, the court
reaffirmed the “venerable” Logan standard for determining heat of passion, i.e., that
“[p]rovocation is adequate only when it 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.’ [Citation.]” (Beltran, supra, 56 Cal.4th at p. 957.)
       Defendant complains that his attorney did less to correct the prosecutor’s incorrect
statement of law than Beltran’s attorney. In addition, the prosecutor’s argument in his
case was just as likely to have confused the jury, but there was no clarifying instruction
from the court.



                                              24
       Although we agree with defendant that the prosecutor made an erroneous
argument with respect to the provocation needed to reduce murder to manslaughter, like
the court in Beltran, we find no prejudice. (Beltran, supra, 56 Cal.4th at pp. 955-957.)
Defendant fails to show that the prosecutor’s misstatement regarding provocation caused
any jury confusion. Unlike in Beltran, where the jury’s note indicated possible jury
confusion, nothing in the record here indicates that the jury was confused or misled.
       Moreover, prior to his remarks about stabbing Garnreiter, the prosecutor stated the
correct standard: that the provocation from Garnreiter “was such that it would cause an
average person—your average, reasonable person to act rashly without due deliberation.”
Defense counsel also stated the correct standard when she said that the provocation of
Garnreiter squeezing defendant’s testicles “could make someone act rashly and have their
reasoning obscured.” She read the entire CALCRIM No. 570 to the jury and explained
each element as it applied to defendant’s confrontation with Garnreiter. Defense counsel
argued against the prosecutor’s claim that defendant could not have acted in the heat of
passion because he had time to cool off when he put the baby on the counter. Defense
counsel stated that this occurred before Garnreiter had defendant’s testicles in her grasp
and up to that point he was calm and wanted to calm her down.
       In addition, the trial court correctly instructed the jury in part under CALCRIM
No. 570 that “[t]he defendant killed someone because of a sudden quarrel or in the heat
of passion if: [¶] . . . [¶] [t]he 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 also instructed the jury under CALCRIM No. 200 that, if
they believed the attorneys’ comments on the law conflicted with the court’s instructions,
they were required to follow the court’s instructions. Absent a showing to the contrary,
we assume the jury understood and followed the instructions given. (People v. Mickey
(1991) 54 Cal.3d 612, 689, fn. 17.) “[A]rguments of counsel ‘generally carry less weight
with a jury than do instructions from the court. The former are usually billed in advance
to the jury as matters of argument, not evidence [citation], and are likely viewed as the
statements of advocates; the latter, we have often recognized, are viewed as definitive

                                             25
and binding statements of the law.’” (People v. Mendoza (2007) 42 Cal.4th 686, 703,
citing Boyde v. California (1990) 494 U.S. 370, 384; People v. Osband (1996) 13 Cal.4th
622, 717.) Prosecutorial misrepresentations should not be judged as having the same
weight as instructions from the trial court. (Boyde, at pp. 384-385.) Where, as here, the
jury was carefully instructed on the elements of provocation, the burden of proof and
what constitutes evidence, we find no reversible error.
       Furthermore, “the Watson test for harmless error ‘focuses not on what a
reasonable jury could do, but what such a jury is likely to have done in the absence of the
error under consideration. In making that evaluation, an appellate court may consider,
among other things, whether the evidence supporting the existing judgment is so
relatively strong, and the evidence supporting a different outcome is so comparatively
weak, that there is no reasonable probability the error of which the defendant complains
affected the result.’ [Citations.]” (Beltran, supra, 56 Cal.4th at p. 956.) Here, the
evidence of provocation was weak, and as explained ante, the record discloses
considerable evidence that Garnreiter’s murder was premeditated and deliberate. As
noted, there were several contradictions in defendant’s testimony that called into question
his credibility, such as the number of wounds he recalled inflicting. Some of the wounds
appeared to be very intentional, purposeful and extremely violent. The jury concluded
defendant acted willfully, deliberately, and with premeditation. Defendant “must carry
his burden of proving prejudice as a ‘demonstrable reality,’ not simply speculation as to
the effect of the errors or omissions of counsel.” (People v. Williams (1988) 44 Cal.3d
883, 937.) Defendant fails to make such a showing. The jury necessarily rejected any
theory that defendant acted in the heat of passion.
       Accordingly, there is no reasonable probability of a more favorable outcome for
defendant had the jury been admonished again that the “proper focus” of an inquiry into
provocation is “on the defendant’s state of mind, not on his particular act” (Beltran,
supra, 56 Cal.4th at p. 949).




                                             26
III. Instruction Regarding Use of Deadly Force
       A. Defendant’s Argument
       Defendant argues that CALCRIM No. 5055 improperly told the jury that a person
who is in imminent mortal danger and who is lawfully entitled to use deadly force to
defend himself must use only objectively reasonable deadly force to protect his life. As a
result, defendant’s jury was authorized to reject self-defense and to convict him of
murder under circumstances in which he was in fact entitled to an acquittal under the
doctrine of self-defense. The error violated not only state law but also defendant’s Fifth,
Sixth, and Fourteenth Amendment rights to due process, equal protection, and a fair jury
trial, requiring reversal.



5       CALCRIM No. 505 on Justifiable Homicide (reasonable self-defense) was
read to the jury as follows: “The defendant is not guilty of murder or manslaughter if he
was justified in killing someone in self-defense. The defendant acted in lawful self-
defense if: One, The defendant reasonably believed that he was in imminent danger of
being killed or suffering great bodily injury; Two, The defendant reasonably believed that
the immediate use of deadly force was necessary to defend against that danger; and
Three, The defendant used no more force than was reasonably necessary to defend
against that danger. Belief in future harm is not sufficient, no matter how great or how
likely the harm is believed to be. The defendant must have believed there was imminent
danger of death or great bodily injury to himself. Defendant’s belief must have been
reasonable and he must have acted only because of that belief. The defendant is only
entitled to use that amount of force that a reasonable person would believe is necessary
in the same situation. If the defendant used more force than was reasonable, the killing
was not justified. When deciding whether the defendant’s beliefs were reasonable,
consider all the circumstances as they were known to and appeared to the defendant and
consider what a reasonable person in a similar situation with similar knowledge would
have believed. If the defendant’s beliefs were reasonable, the danger does not need to
have actually existed. The defendant’s belief that he was threatened may be reasonable
even if he relied on information that was not true. However, the defendant must actually
and reasonably have believed that the information was true. Great bodily injury means
significant or substantial physical injury. It is an injury that is greater than minor or
moderate harm. The People have the burden of proving beyond a reasonable doubt that
the killing was not justified. If the People have not met this burden, you must find the
defendant not guilty of murder or manslaughter.” (Italics added.)



                                            27
       B. Relevant Authority
       When instructions are claimed to be conflicting or ambiguous, “we inquire
whether the jury was ‘reasonably likely’ to have construed them in a manner that violates
the defendant’s rights.” (People v. Rogers, supra, 39 Cal.4th at p. 873.) We look to the
instructions as a whole, rather than one or two phrases plucked out of context, and to the
entire record of trial, including the arguments of counsel. (People v. Stone, supra, 160
Cal.App.4th at p. 331; People v. Dieguez, supra, 89 Cal.App.4th at p. 276.) We assume
that the jurors are intelligent persons capable of understanding and correlating all of the
instructions given. (People v. Ramos (2008) 163 Cal.App.4th 1082, 1089.) If reasonably
possible, we will interpret the instructions in support of the judgment rather than to defeat
it. (Id. at p. 1088.)
       Generally, a party forfeits any challenge to a jury instruction that was correct in
law and responsive to the evidence if the party fails to object in the trial court. (People v.
Hudson (2006) 38 Cal.4th 1002, 1011-1012; Ramos, supra, 163 Cal.App.4th at p. 1087.)
The rule of forfeiture does not apply, however, if the instruction was an incorrect
statement of the law (Hudson, at p. 1012), or if the instructional error affected the
defendant’s substantial rights. (Pen. Code, § 1259; Ramos, at p. 1087.)
       C. Analysis
       Because defendant contends both that the instruction was an incorrect statement of
the law and that any error affected his substantial rights, we assume defendant’s claim of
error was not forfeited and address the merits. (Ramos, supra, 163 Cal.App.4th at p.
1087; but see People v. Viray (2005) 134 Cal.App.4th 1186, 1208-1209 [finding
forfeiture despite defendant’s claim that error affected his substantial rights].)
       According to defendant, CALCRIM No. 505’s third element is wrong under the
law. This is the element that states the jury must find that, “[t]he defendant used no more
force than was reasonably necessary to defend against that danger.” We disagree with
defendant.
       Defendant cites no authority for the proposition that CALCRIM No. 505 is an
inaccurate statement of the law. To the contrary, the third element of the instruction has

                                              28
long been upheld as a legitimate element of justifiable self-defense. (See People v.
Whitfield (1968) 259 Cal.App.2d 605, 609 [“Any force which is excessive, i.e.,
unreasonable under the circumstances, is not justified and the extent to which one may
make resistance against an aggressor is a fact to be determined by a jury.”]; People v.
Moody (1943) 62 Cal.App.2d 18, 23 [“When attacked one has a right to stand his ground
and defend himself and he may pursue his adversary if such pursuit is necessary to a
successful defense; but the extent to which one may make resistance against an aggressor
is a fact which must be determined by the jury by keeping in mind the amount or extent
of force which a reasonable person would employ under similar circumstances.”].)
       Defendant cites a quotation in People v. Humphrey (1996) 13 Cal.4th 1073
(Humphrey), for the principle that “‘[d]etached reflection cannot be demanded in the
presence of an uplifted knife.’” (Id. at p. 1094, quoting Brown v. United States (1921)
256 U.S. 335, 343.) In Humphrey, the defendant was charged with murder and convicted
of voluntary manslaughter. (Humphrey, at pp. 1080-1081). The court stated, “Although
the belief in the need to defend must be objectively reasonable, a jury must consider what
‘would appear to be necessary to a reasonable person in a similar situation and with
similar knowledge . . . .’ [Citation.] It judges reasonableness ‘from the point of view of a
reasonable person in the position of defendant . . . .’ [Citation.]” (Id. at pp. 1082-1083.)
Humphrey continued, “To do this, it must consider all the ‘“‘facts and circumstances . . .
in determining whether the defendant acted in a manner in which a reasonable man
would act in protecting his own life or bodily safety.’”’ [Citation.] As we stated long
ago, ‘. . . a defendant is entitled to have a jury take into consideration all the elements in
the case which might be expected to operate on his mind . . . .’ [Citation.]” (Humphrey,
supra, 13 Cal.4th at p. 1083.) CALCRIM No. 505 does not prevent a jury from properly
undertaking this task. Humphrey also quotes People v. Clark (1982) 130 Cal.App.3d
371, 377, for the principle that, “‘In defending himself, however, a person may use only
that force which is necessary in view of the nature of the attack . . . . [Citation.]’”
(Humphrey, at p. 1094.) In addition, in People v. Pinholster (1992) 1 Cal.4th 865, a first



                                              29
degree murder case (id. at p. 902), our Supreme Court stated, “any right of self-defense is
limited to the use of such force as is reasonable under the circumstances.” (Id. at p. 966.)
       The challenged language in CALCRIM No. 505 comports with Humphrey and
Pinholster, which we must follow. (Auto Equity Sales, Inc. v. Superior Court (1962) 57
Cal.2d 450, 455.) No instructional error occurred, and defendant suffered no violation of
his rights under the federal Constitution.
IV. Instruction on Self-Defense and Use of Deadly Force
       A. Defendant’s Argument
       Defendant contends that, if there was no error in reading CALCRIM No. 505, then
the trial court erred in failing to instruct sua sponte that imperfect self-defense applied if
defendant had a good faith but mistaken belief he was using no more force than necessary
to defendant against Garnreiter’s use of deadly force.
       B. Relevant Authority
       The trial court has a sua sponte duty to instruct the jury on the general principles
of law governing the case. (People v. Cummings (1993) 4 Cal.4th 1233, 1311.) We
review de novo the claim a court failed to properly instruct the jury on the applicable
principles of law. (Ramos, supra, 163 Cal.App.4th at p. 1088.)
       C. Analysis
       According to defendant, if a person who is in imminent mortal danger and is
authorized to use lethal force to defend himself is limited to using no more lethal force
than is reasonably necessary, then a person who has an actual but unreasonable belief in
the appropriateness of the amount of lethal force he is using must be found guilty of no
more than manslaughter. He asserts that “CALCRIM No. 505 is in error for omitting this
form of voluntary manslaughter.” Since the record could have supported a finding that
defendant used only the amount of deadly force he believed was reasonably necessary to
defend himself, reversal is required.
       Defendant cites no authority holding such an instruction is required. CALCRIM
No. 505 is not an instruction on voluntary manslaughter, but rather an instruction that
describes a complete defense—that of justifiable homicide. As the jury was instructed,

                                              30
voluntary manslaughter is a lesser included offense of murder that may occur when a
killing is committed because of a sudden quarrel or in the heat of passion (CALCRIM
No. 570) or when the defendant killed a person in unreasonable self-defense. The
concept that defendant argues is missing from the jury instructions is contained in the
instruction for imperfect self-defense, CALCRIM No. 571. This instructs the jury that
the defendant acted in imperfect self-defense if he actually believed that he was in danger
of being killed and he actually believed that the immediate use of deadly force was
necessary to defend against the danger but at least one of those beliefs was unreasonable.
This instruction gives the jury the option defendant argues for, i.e., finding that the belief
in the danger was reasonable, but the use of deadly force was unreasonable. Although
defendant would parse this second factor even further by saying that the degree of deadly
force was unreasonable, this further refinement adds nothing to the concept. “Deadly
force” is not subject to quantification. CALCRIM No. 505 uses the phrase “no more
force” than is necessary and not “no more deadly force than necessary,” as defendant
misquotes. If the type of force used was not likely to cause death (or serious bodily
injury), it is simply nondeadly force. We believe defendant’s overwrought analysis of the
variables involved in manslaughter would require the jury members to engage in
unnecessary mental gymnastics and likely confuse them in the process. Defendant
himself mocks the notion of excessive versus reasonable deadly force in the opening and
reply briefs. Moreover, given the jury’s finding of premeditation, the alleged
instructional “error” could not have prejudiced defendant.
V. Nonstandard Instruction on Imperfect Self-Defense
       A. Defendant’s Argument
       Defendant contends the trial court’s nonstandard instruction on voluntary
manslaughter and imperfect self-defense was wrong in two of its three sentences. It led
the jurors to believe defendant committed multiple acts that might have justified
Garnreiter’s attack; it failed to explain that if defendant’s conduct was not life-
threatening, then Garnreiter was not legally justified in resorting to lethal force; and it
completely eliminated any need for the jury to consider what defendant’s actual beliefs

                                              31
were regarding self-defense. These errors prevented the jury from considering a key
defense, violated due process, lightened the prosecution’s burden of proof, and deprived
defendant of his right to present a defense and to a jury trial.
       B. Proceedings Below
       The trial court read the following instruction: “A defendant who, through his own
wrongful conduct, such as initiating a physical assault, has created circumstances under
which his adversary’s attack is legally justified, may not invoke unreasonable self-
defense. Imperfect self-defense does not apply if a defendant’s conduct creates
circumstances where the victim is legally justified in resorting to self-defense against the
defendant. But the defense is available when the victim’s use of force against the
defendant is unlawful, even when the defendant sets in motion the chain of events that led
the victim to attack the defendant.”
       C. Analysis
       The record reveals no objection from defense counsel regarding this instruction.
As a general rule, a defendant’s failure to object to an instruction given forfeits any
objection thereto. (People v. Hudson, supra, 38 Cal.App.4th at pp. 1011-1012.) As we
have in previous sections, we address the merits of defendant’s complaint, since he
alleges his substantial rights were affected.
       The instruction the trial court read was taken directly from People v. Vasquez
(2006) 136 Cal.App.4th 1176 (Vasquez), a case that cited the California Supreme Court
case of In re Christian S. (1994) 7 Cal.4th 768 in laying out a principle, which, as stated
in Christian S., is well-established. A defendant may not invoke the doctrine of
imperfect self-defense where she or he, “through his own wrongful conduct (e.g., the
initiation of a physical assault or the commission of a felony), has created circumstances
under which his adversary’s attack or pursuit is legally justified.” (Christian S., supra, 7
Cal.4th at p. 773, fn. 1.) It is also well established that “extracts from appellate opinions
are deemed to be correct statements of the law.” (People v. Jones (1971) 19 Cal.App.3d
437, 447.)



                                                32
       In Vasquez, defendant Vasquez invited his cousin Arechiga to join him and some
friends in an alley. When Arechiga arrived, Vasquez, who was confined to a wheelchair,
accused Arechiga of raping Vasquez’s younger brother. Arechiga lunged at Vasquez and
began to choke him. Vasquez pulled out a gun and shot Arechiga. (Vasquez, supra, 136
Cal.App.4th at pp. 1177-1178.) At Vasquez’s trial on murder charges, the trial court
declined to give the jury an instruction on imperfect self-defense. The court stated that
Vasquez had “created the need to defend himself by luring Arechiga to the alley to
confront him.” (Id. at p. 1179.) The Court of Appeal reversed, setting forth the principle
quoted ante, that a defendant may claim imperfect self-defense when the victim responds
to the defendant’s attack by using unlawful force himself. (Id. at pp. 1179-1180.) The
court concluded that, although Vasquez may have been “up to no good,” an instruction on
imperfect self-defense was nevertheless required because it was Arechiga who “used
unlawful force first.” (Id. at p. 1180.)
       Although the reasoning in Vasquez parallels that of defendant on appeal, he
nevertheless finds two errors in the instruction. First, defendant complains that the use of
“such as” in the first sentence conveyed to the jury that initiating a physical assault was
only one form of wrongful conduct that could have justified Garnreiter attacking
defendant, leaving it to the jury’s discretion as to what other forms of wrongful conduct
by defendant might have justified her attack. We see nothing in the record of this case
that would provide a basis for the unguided speculation by the jury that defendant claims
would have occurred. On the contrary, giving the example of a physical assault indicated
to the jury that some petty act, such as insulting the victim, would not be considered the
creation of a circumstance in which the victim was legally justified in attacking the
defendant. The jury was fully aware of the facts of the case and the conduct of both
defendant and Garnreiter. The instruction was actually helpful to defendant given the
serious nature of Garnreiter’s act of grabbing a knife, as described by defendant. There
was nothing improper in having the jury determine whether any of the acts defendant
testified to having committed were wrongful enough to create circumstances justifying
Garnreiter’s actions.

                                             33
       Defendant also argues that the second sentence is inaccurate where it tells the jury
that imperfect self-defense does not apply if defendant’s conduct created circumstances
in which Garnreiter was legally justified in resorting to self-defense. Clearly, the
sentence is accurate. Defendant complains that the sentence failed to explain that if
defendant’s conduct was not life-threatening, such as putting Garnreiter in a headlock
without applying significant pressure, then Garnreiter was not legally justified in
grabbing a knife and stabbing him. Defendant appears to be arguing again that he only
used a little bit of lethal force. The question is not whether defendant’s placing
Garnreiter’s head in a headlock was proven to be life-threatening, but whether
defendant’s conduct created circumstances in which Garnreiter was legally justified in
resorting to self-defense against defendant. Clearly, the jury believed that being placed in
a headlock is a circumstance in which a person would be justified in defending himself or
herself.
       Defendant also complains that with this sentence, the instruction completely
eliminated any need for the jury to consider what defendant’s actual beliefs were with
regard to self-defense. As a result, the elements of imperfect self-defense contained in
CALCRIM No. 571 were rendered insignificant. The instruction did not prohibit the jury
from considering defendant’s actual belief in the need for self-defense. The jury was
instructed with CALCRIM No. 571 that it should consider whether defendant actually
believed he was in imminent danger and actually believed the immediate use of deadly
force was necessary. The jury was also instructed to consider the instructions all
together. There was no prejudicial error.
VI. Initial Aggressor and Deadly Force
       A. Defendant’s Argument
       Defendant contends the trial court erred in failing to instruct the jury sua sponte
that if the initial aggressor uses nondeadly force, and his opponent responds with deadly
force, the initial aggressor has a right to use deadly force to defend himself.




                                             34
          B. Relevant Authority
          A trial court is required to instruct a jury on the general principles of law which
are relevant to the issues raised by the evidence in a given case. (People v. Valdez (2004)
32 Cal.4th 73, 115.) A pinpoint instruction explains the relationship between particular
evidence and the elements of an offense, and is not required absent a defendant’s request.
(See People v. Saille (1991) 54 Cal.3d 1103, 1119-1120; People v. Barton (1995) 12
Cal.4th 186, 197.)
          C. Analysis
          Relying on People v. Quach (2004) 116 Cal.App.4th 294, defendant argues that
the trial court should have instructed the jury that “[w]here the original aggressor is not
guilty of a deadly attack, but of a simple assault or trespass, the victim has no right to use
deadly or other excessive force. . . . If the victim uses such force, the aggressor’s right of
self-defense arises.” (Id. at p. 301.) Stated otherwise, “‘[W]hen a defendant engages in
simple assault and his opponent responds with deadly force so suddenly that the person
cannot withdraw, a defendant may immediately use deadly force in self-defense.’”
(Ibid.)
          The instruction regarding self-defense that defendant now contends should have
been given sua sponte is essentially the same instruction he complains about in the
previous section. Although that instruction pertained to defendant’s right to imperfect
self-defense, the concept defendant advocates is the same.
          As a reminder, we repeat the instruction given: “A defendant who, through his
own wrongful conduct, such as initiating a physical assault, has created circumstances
under which his adversary’s attack is legally justified, may not invoke unreasonable self-
defense. Imperfect self-defense does not apply if a defendant’s conduct creates
circumstances where the victim is legally justified in resorting to self-defense against the
defendant. But the defense is available when the victim’s use of force against the
defendant is unlawful, even when the defendant sets in motion the chain of events that led
the victim to attack the defendant.” (Italics added.)



                                               35
       The instruction defendant claims should have been given (the second instruction)
would read (according to the heading of this issue in defendant’s opening brief): “An
initial aggressor who uses nondeadly force and whose opponent responds with deadly
force has a right to use deadly force to defend himself.”
       Both instructions label defendant as the initial aggressor, but of a nondeadly
attack. In both instructions the adversary responds. In the second instruction, the victim
has no right to use deadly force. In the first (given), the adversary must have a legally
justified response and cannot engage in a use of force that is unlawful. In the second
instruction, if the victim uses deadly or excessive force, the initial aggressor (the
defendant) has a right of self-defense. In the first instruction (given), if the victim’s use
of force is unlawful, the defense of imperfect self-defense is available, even if the
defendant was the initial aggressor.
       Therefore, contrary to defendant’s assertion, the omitted instruction was not
“likely key to the jury’s evaluation of the case, because it would have communicated
what no other instruction did.” It appears defendant is merely engaging in an exercise in
semantics by proposing this additional instruction.
       Although the given instruction dealt with imperfect self-defense and the “missing”
instruction dealt with true self-defense, the concept that defendant’s initial attack was
benign, that Garnreiter responded inappropriately with deadly force, and that defendant
was therefore justified in using deadly force on Garnreiter was duly presented to the jury,
and it rejected that concept. The jury was clearly given an opportunity to evaluate
defendant’s initial attack, Garnreiter’s response, and whether defendant reasonably or
unreasonably believed he had to resort to deadly force. Furthermore, for the reasons
explained in the prior issue, we disagree with defendant’s claim that “[i]t is not possible
to conclude beyond a reasonable doubt that the jury did not conclude that [defendant] had
used non-lethal force up to the point where Garnreiter grabbed the knife and started to
stab him,” and that therefore reversal is required. Even defendant’s own testimony
revealed that Garnreiter told him to release her from the chokehold before she picked up
the knife. Defendant did not do so, even when she grabbed his testicles. He responded

                                              36
by squeezing her neck tighter. Defendant had the opportunity to cease struggling with
Garnreiter before she grabbed the knife. Defendant was not prejudiced by the failure to
instruct the jury with an additional instruction modeled on the language in People v.
Quach, supra, 116 Cal.App.4th 294.
VII. Ineffective Assistance of Counsel
       A. Defendant’s Argument
       Defendant contends the record is replete with evidence of profoundly deficient
performance by trial counsel. Considered cumulatively, these deficiencies undermine the
outcome and warrant a presumption of prejudice. He asserts that no court should have
confidence in the outcome of a trial in which counsel’s deficiencies were so pervasive
and where a conviction of first degree murder was returned on evidence that was more
compatible with a lesser verdict, and a new trial is called for.
       B. Relevant Authority
       To establish ineffective assistance of counsel, defendant must first show that
counsel’s “acts or omissions were outside the wide range of professionally competent
assistance.” (Strickland v. Washington (1984) 466 U.S. 668, 690 (Strickland).) Second,
defendant must show that the alleged deficiencies in counsel’s performance were
prejudicial to the defense, i.e., that there is a reasonable probability that but for counsel’s
unprofessional errors, the outcome of the case would have been different. (Id. at p. 694;
People v. Ledesma (1987) 43 Cal.3d 171, 217-218.) A reasonable probability is a
probability sufficient to undermine confidence in the conviction. (People v. Maury
(2003) 30 Cal.4th 342, 389.) It is not enough for defendant to show that errors had some
conceivable effect on the outcome of the case. (Ledesma, at p. 217.)
       We “‘need not determine whether counsel’s performance was deficient before
examining the prejudice suffered by the defendant as a result of the alleged
deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice . . . that course should be followed.’” (In re Cox (2003) 30
Cal.4th 974, 1019-1020; Strickland, supra, 466 U.S. at p. 697.)



                                              37
       C. Analysis
       During voir dire, a prospective juror, when answering the question as to whether
she could be fair and impartial stated, “If you were to ask me this question yesterday I
would absolutely say yes I could be fair and impartial. And I don’t know if this is going
to change my feelings or not, but after the attorneys both stood up and spoke this
morning, I was thinking about this, I felt that the attorney representing Mr. Warren had a
hard time articulating herself, and her thoughts were very unorganized, and I kind of
zoned out, and stopped listening to her. And I felt like maybe that wouldn’t be fair. So
that’s that. That is just my feeling. I just kind of felt like it was hard to understand her,
and follow where she was going . . . her train of thought was very unorganized. And I
just felt like that wasn’t fair to Mr. Warren to have her represent him.”
       At the next recess, the trial court stated to defense counsel: “I had sort of the same
observations as the juror. Your voir dire today was confusing to me. And I just want
to—if anything is going on—are you okay? Taking any medication or anything? I’m
serious.” The court later added that it believed the juror was “right on.” Counsel replied
that she was tired, not on medication, and was taken aback when her voir dire questions
did not draw responses from the jurors. She assured the court that she was ready.
       Defendant argues that the juror’s remarks and the court’s comments in response
are indications that defense counsel “was plainly not ready.” He contends this lack of
readiness was most on view during her examination of Dr. Perrotti, her expert witness.
He cites a colloquy with the trial court wherein defense counsel stated she did not know
exactly what Dr. Perrotti was going to testify to, and a comment from the court that it was
concerned that counsel did not know why she was asking Dr. Perrotti certain questions.
When counsel replied she did know but had not been able to articulate it, the court stated,
“That’s another problem. . . . What are you doing here if you cannot articulate things like
that? I’m serious.” Defendant asserts the record thereafter is “riddled with indications
that counsel was unprepared for Dr. Perrotti’s testimony” and gives several examples.
Defendant quotes another criticism by the trial court in which it stated that defense
counsel had confused Dr. Perrotti, asked questions that were not well thought out and was

                                              38
“just repeating things.” Counsel also failed to establish a foundation for defendant’s jail
medical records and for a screen shot of Facebook postings by Garnreiter that did not
contain statements about which there had been testimony. These exhibits were excluded.
Defendant asserts that “counsel was unfamiliar with the basic evidentiary requirement
that a foundation needs to be laid in order for documents to be admissible.”
       Defendant complains that counsel also failed to object to CALCRIM No. 3472,
which had no application to the case, and rendered deficient performance with respect to
each of the instructional issues set out in his instant appeal. Counsel unreasonably failed
to object to several aspects of the prosecutor’s arguments as well. Defendant argues that
trial counsel’s own closing argument was deficient. She failed to tell the jury that
provocation may occur over a short or long period of time and that provocation could
reduce the offense from first degree murder to second degree murder. Counsel did not
tell the jury that imperfect self-defense would apply even if they discarded defendant’s
strongly impeached PTSD claim, since it could find imperfect self-defense if it concluded
that Garnreiter had responded with deadly force to defendant’s nondeadly force. Counsel
failed to sufficiently argue the lack of evidence of premeditation and deliberation.
       Defendant argues that the standard of prejudice for ineffective assistance has been
met. Moreover, he contends, this is a case where the circumstances are so likely to
prejudice the accused that the cost of litigating their effect is unjustified, and prejudice is
presumed, citing United States v. Cronic (1984) 466 U.S. 648 (Cronic).
       We disagree with defendant that he need not show he was prejudiced by the
alleged ineffective assistance he received. In Cronic, the United States Supreme Court
held that prejudice need not be shown where the trial lost “its character as a confrontation
between adversaries” (Cronic, supra, 466 U.S. at pp. 656-657, 659), i.e., where there was
a “complete denial of counsel” at a critical stage, where “counsel entirely fail[ed] to
subject the prosecution’s case to meaningful adversarial testing,” or where even a
competent attorney would have been unable to provide effective assistance under the
circumstances. (Id. at pp. 659-660.)



                                              39
       In Bell v. Cone (2002) 535 U.S. 685, the Supreme Court explained that its holding
in Cronic was extremely narrow: “When we spoke in Cronic of the possibility of
presuming prejudice based on an attorney’s failure to test the prosecutor’s case, we
indicated that the attorney’s failure must be complete.” (Bell v. Cone, at pp. 696-697.)
The California Supreme Court has also deemed the Cronic exception to be quite limited:
“Defendants have been relieved of the obligation to show prejudice only where counsel
was either totally absent or was prevented from assisting the defendant at a critical
stage.” (In re Visciotti (1996) 14 Cal.4th 325, 353.)
       Although defendant is able to point out numerous areas in which he believed
counsel’s performance was deficient, it is clear from the record that his attorney did not
completely fail to test the prosecution case. Faced with her client’s admitted act of
killing the victim, defense counsel clearly had a strategy of showing he was guilty only of
manslaughter. She did not fail to cross-examine witnesses or present relevant witnesses
or argument. Even if we accepted in full defendant’s characterization of counsel’s
actions as failings, the record of the proceedings below does not show “a total breakdown
of the adversarial process within the meaning of []Cronic, supra, 466 U.S. 648.” (In re
Visciotti, supra, 14 Cal.4th at p. 352.) In Florida v. Nixon (2004) 543 U.S. 175, the
Supreme Court reiterated that the exception to the general rule requiring a showing of a
prejudicially deficient performance under Strickland is extremely narrow. It stated: “We
illustrated just how infrequently the ‘surrounding circumstances [will] justify a
presumption of ineffectiveness’ in Cronic itself. In that case, we reversed a Court of
Appeals ruling that ranked as prejudicially inadequate the performance of an
inexperienced, underprepared attorney in a complex mail fraud trial. [Citation.]”
(Florida v. Nixon, supra, 543 U.S. at p. 190.)
       Defendant’s claim of constitutionally ineffective counsel is thus subject to the
traditional test, in which “defendant has the burden of proving that counsel’s
representation fell below an objective standard of reasonableness under prevailing
professional norms, and that there is a reasonable probability that, but for counsel’s



                                             40
unprofessional errors, the result would have been different. [Citations.]” (People v.
Kelly (1992) 1 Cal.4th 495, 519–520.)
       Under this test, even assuming trial counsel failed in all of the ways defendant
names, defendant has not established prejudice, and his contention must therefore be
rejected. “[T]he ultimate focus of inquiry must be on the fundamental fairness of the
proceeding whose result is being challenged. In every case the court should be concerned
with whether, despite the strong presumption of reliability, the result of the particular
proceeding is unreliable because of a breakdown in the adversarial process that our
system counts on to produce just results.” (Strickland, supra, 466 U.S. at p. 696.)
       Given the strong evidence of defendant’s guilt of first degree murder, it is unclear
what, if anything, counsel could have done (or not done) to change the outcome of the
trial. Even if we assume that counsel’s speech or manner was annoying to some of the
jurors, the jury is presumed to follow the court’s instructions. (People v. Sanchez (2001)
26 Cal.4th 834, 852.) The record is devoid of any evidence to suggest that the jury
disregarded the instruction not to consider the attorneys’ statements as evidence.
       As for the criticism of counsel’s voir dire, it appears that counsel’s rhetorical
device (analogizing the elements of a crime to ingredients of a recipe) fell flat. The
jurors apparently did not want to participate in her analogy, but this does not equate to
ineffective assistance. Counsel answered the trial court’s concerns with her explanation
that the failure of the jurors to answer her questions led her to become flustered. This
was a reasonable explanation, and on the cold record, we cannot say whether the trial
court was overly harsh in agreeing so thoroughly with the complaining juror and in
making some of the other remarks defendant notes in his brief.
       With respect to counsel’s examination of Dr. Perrotti, although counsel may have
stumbled when challenged by the prosecutor and used inartful phrases in answering the
trial court’s criticisms, her examination of Dr. Perrotti was not completely ineffective.
The California Supreme Court has stated that in egregious cases, “[e]ven where defense
counsel may have ‘“elicit[ed] evidence more damaging to [defendant] than the prosecutor
was able to accomplish”’ . . . we have been ‘reluctant to second-guess counsel’ [citation]

                                             41
where a tactical choice of questions led to the damaging testimony.” (People v. Williams
(1997) 16 Cal.4th 153, 217.) Once Dr. Perrotti was on the stand, counsel could not
exercise complete control over his responses, regardless of her degree of preparation. In
any event, it appears that Dr. Perrotti gave favorable testimony on defendant’s theory of
PTSD, and defendant does not show how a different direct examination by defense
counsel would have revealed stronger evidence of his condition so as to eliminate the
possibility of a verdict of murder. Hence, defendant was not prejudiced. Likewise,
defendant was not prejudiced by counsel’s failure to obtain admittance of the two
exhibits. He does not explain how the Facebook screen shot or defendant’s medical
records from jail would have changed the outcome. Dr. Perrotti gave sufficient evidence
of defendant suffering from PTSD for the jury to evaluate this condition in regard to
imperfect self-defense, and the Facebook screen shot appeared to be cumulative of
McDaniel’s testimony to the degree that it was relevant.
       Defendant also points out as evidence of ill preparation that defense counsel asked
Detective Peyton whether defendant slurred his words when he was interviewed at the
hospital. Detective Peyton’s response was, “No. You have a copy of the recording.”
The second part of the detective’s answer was unresponsive. It was also curt, as were
many of his responses, and was not evidence of counsel’s poor performance. Regardless
of whether defense counsel listened to the recording, she was entitled to attempt to elicit
testimony regarding defendant’s degree of apparent lucidity from the detective.
       Defendant argues that counsel prejudicially failed to object to the reading of
CALCRIM No. 3472, which told the jury that a person has no right to self-defense if he
provoked a quarrel with the intent to create an excuse to use force. Defendant asserts that
this instruction had no application to his case. If this was indeed true, the jury was
instructed that some of the instructions might not apply to defendant’s case, and that it
should follow only the instructions that applied to the facts as the jury found them to be.
(CALCRIM NO. 200.) Defendant suffered no prejudice from the reading of this
instruction. (See People v. Cross (2008) 45 Cal.4th 58, 67 [inapplicable instructions
generally constitute mere technical errors and are not grounds for reversal].) We have

                                             42
addressed defendant’s other claims regarding the jury instructions elsewhere in this
opinion.
       With respect to any failure to object to the prosecutor’s closing argument, we note
that a trial counsel’s failure to object during summation seldom establishes ineffective
assistance of counsel. (People v. Collins (2010) 49 Cal.4th 175, 233; People v. Avena
(1996) 13 Cal.4th 394, 421; People v. Ghent (1987) 43 Cal.3d 739, 772-773.) Defense
counsel may have concluded the prosecutor’s misstatement in opening argument was
brief and adequately addressed in the jury instructions. The record does not affirmatively
disclose that defense counsel had no rational tactical purpose for failing to object to the
prosecutor’s comments concerning provocation.
       We also find no prejudice in counsel’s allegedly deficient performance in her
closing argument. “The mere circumstance that a different, or better, argument could
have been made is not a sufficient basis for finding deficient performance by defense
counsel. [Citations.]” (People v. Ledesma (2006) 39 Cal.4th 641, 748.) “Even if some
of the arguments [not made] would unquestionably have supported the defense, it does
not follow that counsel was incompetent for failing to include them. . . . [J]udicious
selection of arguments for summation is a core exercise of defense counsel’s discretion.”
(Yarborough v. Gentry (2003) 540 U.S. 1, 7-8.)
       We have concluded there was strong evidence of defendant’s guilt of first degree
murder. The jury was properly instructed on first degree murder, second degree murder,
and manslaughter. Given the circumstances surrounding the crime in this case, it was not
any supposed weakness in defense counsel’s argument that caused the jury to find
defendant deliberated and premeditated the stabbing of Garnreiter. All of the evidence
that defendant cites as being omitted by his trial counsel at argument was heard by the
jury, and it is not reasonable to suppose that had counsel mentioned this evidence again
during her closing argument, defendant would have received a more favorable verdict.
VIII. Cumulative Error
       Defendant contends that the accumulation of errors in this case was surely
prejudicial under federal constitutional law. Defendant again refers to “numerous

                                             43
misleading instructions and arguments regarding provocation, self-defense, . . . imperfect
self-defense, and the blatantly substandard performance of . . . defense counsel” and
argues that defendant’s trial was fundamentally unfair in violation of the due process
clause of the federal Constitution. He maintains that the same is true if the errors are
matters of state law only and the inquiry is whether it is reasonably probable defendant
would have obtained a different outcome in the absence of the errors.
       We disagree, and, as we have indicated in this opinion, we do not believe any of
the alleged errors, singly or cumulatively, deprived defendant of a fair trial of his guilt.
As the California Supreme Court has stated, “A defendant is entitled to a fair trial, not a
perfect one.” (People v. Mincey (1992) 2 Cal.4th 408, 454.) There has been no showing
of cumulative prejudicial error of a degree sufficient to permit reversal
IX. Credit Days
       Defendant argues, and respondent agrees, that defendant is entitled to 1,077 days
of actual custody credit instead of the 1,010 days he was awarded by the trial court.
Defendant was arrested on the day of the murder, January 8, 2011, and he was sentenced
on December 19, 2013. There is no evidence he was released at any time between his
arrest and his sentencing.
       A defendant is entitled to credit for a day of custody for each day he spends in
custody. This includes partial days, such as the date of his arrest and the date of his
sentencing. (People v. Morgain (2009) 177 Cal.App.4th 454, 469.) The abstract of
judgment must be modified to reflect the correct number of days of presentence credit,
which is 1,077 days.




                                              44
                                     DISPOSITION
       The superior court is directed to correct the number of credit days on defendant’s
abstract of judgment and to forward a corrected copy to the Department of Corrections
and Rehabilitation. In all other respects, the judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                          BOREN, P.J.
We concur:


       ASHMANN-GERST, J.


       HOFFSTADT, J.




                                            45
