Filed 10/6/14




                       CERTIFIED FOR PARTIAL PUBLICATION*

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                     F066467
        Plaintiff and Respondent,
                                                           (Super. Ct. No. F11904306)
                  v.

VEDGREN DEPATRICK JONES,                                           OPINION
        Defendant and Appellant.



        APPEAL from a judgment of the Superior Court of Fresno County. Wayne R.
Ellison, Judge.
        Athena Shudde, under appointment by the Court of Appeal, for Defendant and
Appellant.
        Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda
Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
                                          -ooOoo-




*      Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, only the
Introduction, part I of the Discussion, and the Disposition are certified for publication.
                                     INTRODUCTION
       Vedgren Depatrick Jones (defendant) stands convicted, following a jury trial, of
first degree murder (Pen. Code,1 § 187, subd. (a); count 1) and second degree robbery
(§ 211; count 2). He was sentenced to a total unstayed term of 25 years to life in prison,
and ordered to pay restitution and various fees, fines, and assessments. In the published
portion of this opinion, we hold that a verdict finding defendant “[g]uilty of violation of
section 187(a) of the Penal Code, a felony, first degree murder …, as charged in … the
information” (boldface & some capitalization omitted) satisfies the requirement that the
jury expressly find the degree of the crime even though the information charged generic
murder without specifying the degree. In the unpublished portion of this opinion, we
conclude the trial court did not abuse its discretion when it did not suspend jury
deliberations. Accordingly, we affirm the judgment.
                                         FACTS*
                                              I
                                PROSECUTION EVIDENCE
       Seventy-one-year-old Clifford Byrn maintained an account with a bank in
downtown Fresno. Slightly more than $1,000 was deposited into his account around the
first and third of each month in the form of Social Security benefits and money from his
family. Typically, Byrn would withdraw $1,000 in cash in the first few days of each
month. On Wednesday, June 1, 2011, he came into the bank and withdrew $85.2 On
June 3, he made his usual $1,000 withdrawal. Surveillance cameras at the bank showed
defendant, an occasional resident of the Fresno Rescue Mission, was with Byrn on
June 3.

1      All statutory references are to the Penal Code.
*      See footnote, ante, page 1.
2      Unspecified references to dates in the statement of facts are to the year 2011.



                                             2.
       Byrn was a regular customer at the Ambassador Inn and Suites, a motel located on
Olive Avenue, west of Highway 99, in Fresno. He would check into the motel around the
first of every month, and stay for four to six days, until his money ran out. He would go
to the liquor store across the street and nearby fast food restaurants during his stay.
       Byrn checked into the motel on June 1. As was his habit, he paid cash for one
night at a time. The motel’s manager saw him the second or third night of his stay. One
time, he was walking toward the McDonald’s. The other time, he was walking straight to
the liquor store. One time he was alone, and one time someone was with him.
       Surveillance footage from the nearby Kentucky Fried Chicken (KFC) showed
Byrn and defendant in the establishment shortly before 2:00 p.m. on June 3. Byrn paid
for his purchases with cash he took from his left front pocket. The assistant manager
recalled him having a large amount of bills. It appeared Byrn and defendant were
together, and the food was being purchased for both of them.
       On Sunday, June 5, a motel employee let herself into Byrn’s room to clean it.
Upon opening the door, she saw a pair of feet between the beds. The police were called.
       Officers Dupras and Smith arrived around 1:15 p.m. Upon entry into the room,
Dupras found Byrn lying face up on the floor between the two beds with a large Bud Ice
beer bottle protruding from his mouth. It appeared Byrn had been dead for some time, as
there was no pulse, lividity had set in, and the body was cold to the touch. No one else
was in the room.
       The room was in disarray. The thermostat was set at 85 degrees, and the heater
was putting out hot air. The television was on. KFC containers, plastic bags, and food
receipts dated June 3 were in the kitchenette area. There was also a receipt from
McDonald’s from late in the morning of June 4.3 There were two table settings. One

3      Surveillance video from this transaction showed Byrn, but not defendant. Alta
Franklin, the floor manager for this McDonald’s, saw defendant come into the restaurant
twice daily for about a month. Byrn almost always came in with one of two younger


                                              3.
plate was empty and the other had some food left on it. In the refrigerator were leftovers
from KFC and one full Bud Ice bottle.4 In a trash bag next to the entrance door were two
empty Bud Ice bottles. Multiple shards of broken glass and reddish stains that appeared
to be blood were on the westernmost bed, which was the bed closest to the bathroom and
Byrn’s body. The mattress of the other, easternmost bed nearest the entrance door was
askew, with part of the top of the box spring exposed, and with what appeared to be
blood stains on the sheet. An ashtray, drinking cup, and cigarette butt were on top of the
box spring. The nightstand was disheveled. Another ashtray, cigarette butts, an empty
pack of cigarettes, and a set of dentures were on the floor next to Byrn’s body. Also next
to the body, leaning partly into the nightstand, was a trash can containing two empty Bud
Ice bottles and a vodka bottle.
       Lying across Byrn’s neck was a pillowcase containing shards of broken glass that
were consistent with a beer bottle. The bottle in his mouth had been pressed into it with
“sufficient enough pressure” to preclude the liquid in the bottle from leaking out, despite
the fact the cap on the bottle was not “screwed on tightly.” A portion of a palm print was
found on the bottom of the bottle. This print matched defendant’s right palm.
       Byrn’s left front pants pocket was turned inside out. His wallet was in his jeans,
but it contained no money.
       DNA profiles obtained from blood located on the bottom, and on the base of the
neck, of the bottle in Byrn’s mouth were consistent with Byrn’s DNA. Bloodstains on
Byrn’s pants, including within the pocket that was turned inside out, were consistent with


males — occasionally, a Caucasian male in his early 20’s, but 90 percent of the time,
defendant. Byrn would purchase a meal for the Caucasian individual, which was a
common thing for people in the area to do for the homeless. When Byrn and defendant
came in together, however, defendant would wait while Byrn purchased coffee for
himself, then they would leave.
4      All the intact Bud Ice bottles were 32-ounce size.



                                             4.
Byrn’s DNA. One of defendant’s fingerprints was found on the beer bottle in the trash
bag.
       At autopsy, it was determined Byrn was five feet nine inches tall and weighed 126
pounds. Because of decomposition, which was hastened by the heater being turned on in
the motel room, the time of death would not be determined. There were multiple external
injuries (contusions, abrasions, and lacerations) to the head, neck, and extremities, with
splinters of glass visible in the laceration on the left side of the forehead.5 There was
some pooling of blood in the base of the tongue at the back of the throat, but no obvious
contusion. Internally, there was bleeding under the scalp that corresponded to external
injuries. There was also subdural and subarachnoid hemorrhage covering both parietal
lobes of the brain. A significant amount of force was required to cause these types of
injuries, which in this case were fairly extensive.
       The cause of death was head injury due to multiple blunt impacts. Because the
bottle was inserted all the way to the windpipe, it was possible compromised air flow
could have contributed to the cause of death.
                                              II
                                   DEFENSE EVIDENCE
       The parties stipulated Byrn’s blood-alcohol level was 0.11 at the time of his death.
       Defendant, who admitted having been convicted of a felony in Georgia in 2003,
testified that he met Byrn near the Fresno Rescue Mission, where both were staying,
about the third week in May. Byrn was passing out beers to some homeless people and
asked if defendant wanted one. Because it was early in the morning, defendant declined,
but sat and talked with Byrn for a while. When defendant returned later that evening,



5      Of the 15 external injuries to the head and neck, one involved an external injury to
the back of the head. The others were to the front or side.



                                              5.
Byrn was sitting in the same spot. This time, defendant accepted his offer of a beer.
From that point on, defendant saw Byrn every day.
       One day when no one was around, Byrn remarked that he thought defendant might
have a big penis. Defendant responded, “Some people say that I do.” Byrn laughed and
asked if defendant wanted to go to a motel with him on the first of the month. Defendant
kind of “blew him off” at first, but Byrn kept asking for about a week.6
       The night before the first of the month, Byrn asked if defendant was going to go
with him in the morning to cash his check. Defendant said yes. The next morning,
defendant waited at the bus terminal while Byrn went into the bank. When Byrn
returned, the two went to the Ambassador Inn and Suites. There, Byrn gave defendant
some money and asked him to get some beer. Defendant went across the street to buy
beer and cigarettes, while Byrn went into the motel and registered.
       Byrn gave defendant a $50 bill for the beer and cigarettes, which came to less than
$20. Byrn told defendant to keep the change. Defendant and Byrn had not worked out
what was going to go on, but defendant assumed a man of Byrn’s age might want “to
play a little bit.” That first day, however, there was no sexual activity. They drank all
day and watched basketball, then went to bed.
       Early on June 2, Byrn asked if he could give defendant oral sex. Defendant
agreed. After, Byrn gave defendant $20 to go to McDonald’s, then again told defendant
to keep the change. That day, defendant went back and forth to the store about four
times, getting beer and cigarettes. Both men drank a lot; defendant was drinking vodka,
while Byrn was drinking Bud Ice. Byrn gave defendant money every time, then told him
to keep the change.



6    Defendant was straight, but had “messed with” men in the past, sometimes for
money.



                                             6.
        On June 3, Byrn said defendant was going to go to the bank with him, because
Byrn wanted to take defendant shopping on the way back and get him some clothes.
They took the bus to the bank, and Byrn had defendant go inside with him this time.
Defendant saw Byrn get the money; Byrn told him it was $1,000. Byrn then bought
defendant some clothes at a store on the Fulton Mall. At Byrn’s direction, they then took
a bus to a bar Byrn liked. They arrived around noon and sat on the patio, drinking beer.
After they both were “feeling pretty good,” they took the bus back to the motel, put the
clothes in the room, and went to KFC. After they got back from KFC, Byrn asked
defendant to give him oral sex. Defendant said he did not do that. Byrn then asked if
defendant would perform anal sex, but defendant refused.
        On June 4, Byrn said he was going to McDonald’s to get something to eat.
Defendant remained in bed, asleep. When Byrn returned, he ate and the two talked a
while. Byrn then asked if defendant wanted to drink again, and defendant agreed. Byrn
asked if defendant wanted to walk to the store with him, but defendant declined, because
he had not eaten anything since the day before and was feeling nauseated.
        When Byrn returned, defendant started drinking liquor again. Byrn asked over
and over for defendant to perform oral sex on him. Defendant refused. He went into the
bathroom and threw up. When he returned, he lay down on the bed closest to the door
with his back to Byrn, who was sitting on the bed, smoking a cigarette. Byrn kept asking
defendant to perform oral sex on him. Byrn cussed and angrily said he had been giving
defendant money, so why would defendant not “do it on” Byrn like Byrn had been “doing
it on” defendant? He then hit defendant with a bottle several times on the back of the
head.
        Defendant turned to get out of bed, and Byrn struck him on the arms. Defendant
kicked Byrn, who went “all the way over into his bed.”7 Defendant jumped on him and
7       The force of the kick was what shifted the mattress on defendant’s bed.



                                            7.
got the bottle from him; the bottle was inside a pillow case. Defendant struck Byrn
multiple times on the head and side of the face with it. Byrn was trying to stop defendant
from hitting him. At this point, defendant was hitting Byrn because Byrn had hit him.
By now, defendant did not feel as though he needed to defend himself, although Byrn
was still kicking and fighting.
       Defendant and Byrn, who both were drunk, were on the bed. When defendant
struck Byrn the final time, the bottle broke. Defendant got off of Byrn. Byrn stood up
and asked something like, “Why didn’t you just do it to me? I did it for you, you know.”
Defendant was angry, because he had already told Byrn he did not want to do it. He
pushed Byrn, who fell and hit the back of his head on the nightstand.
       Defendant dropped the pillow case after the bottle broke and the glass started
coming out of it. Because Byrn had kept asking for oral sex, defendant shoved the other
bottle into Byrn’s mouth and told him to “suck this.” Byrn was still conscious at that
point. Defendant did not call for help; he had never called the police, probably because,
given the fact he had been in trouble in the past, he was scared.
       Defendant believed the fight happened around 3:00 p.m. or shortly after. At some
point, Byrn was no longer breathing and defendant realized he was dead. Defendant then
took slightly more than $500 from Byrn’s left pocket, and he left town on a bus. He was
picked up for jaywalking in Las Vegas on July 7.
       Defendant did not hit Byrn once Byrn was on the ground. Defendant did not mean
for it to happen and did not want to hit Byrn at all, but felt like he had to defend himself.
He was younger and bigger than Byrn (in his early- to mid-30’s, six feet tall, and
approximately 160 pounds), and did not know how much force he was using.
Apparently, he used too much.




                                              8.
                                      DISCUSSION
                                              I
        THE JURY’S VERDICT SATISFIES THE REQUIREMENT OF SECTION 1157.
       Count 1 of the information charged that “the crime of MURDER, in violation of
PENAL CODE SECTION 187(a), a felony, was committed by [defendant], who did
unlawfully, and with malice aforethought murder” Byrn. The prosecutor presented two
theories of first degree murder to the jury (robbery felony murder and premeditation) and
jurors were instructed on both, as well as on second degree murder, voluntary
manslaughter based on heat of passion and imperfect self-defense, and justifiable
homicide based on self-defense. Jurors returned a verdict finding defendant “Guilty of
VIOLATION OF SECTION 187(a) OF THE PENAL CODE, a felony, FIRST DEGREE
MURDER …, as charged in Count One of the Information filed herein.”
       Defendant now contends that, because the information was silent as to degree and
the jury was not asked to return, and did not return, any specific finding on the truth of
either theory of first degree murder, the language of the verdict form, read in conjunction
with the information, “demonstrates the jury failed to determine the degree of the crime
as required by section 1157. Therefore, the verdict must be fixed as murder in the second
degree.” We disagree.8
       “[A]n information charging murder in violation of section 187 is sufficient to
support a first degree murder conviction. [Citations.]” (People v. Harris (2008) 43
Cal.4th 1269, 1294.) Jurors need not unanimously agree on a theory of first degree
murder (People v. Kipp (2001) 26 Cal.4th 1100, 1132), although they must unanimously
find the degree of the crime (see People v. Thomas (2012) 53 Cal.4th 771, 815-816).

8       Defendant did not object to the wording of the verdict forms or otherwise raise the
issue in the trial court. Nevertheless, the Attorney General does not claim the issue has
been forfeited for purposes of appeal. We assume the issue is properly before us. (See In
re Birdwell (1996) 50 Cal.App.4th 926, 930-931 & cases cited.)



                                             9.
       Section 1157 states: “Whenever a defendant is convicted of a crime … which is
distinguished into degrees, the jury … must find the degree of the crime … of which he is
guilty. Upon the failure of the jury … to so determine, the degree of the crime … of
which the defendant is guilty, shall be deemed to be of the lesser degree.”9
       “Section 1157 applies ‘whenever the jury neglects to explicitly specify the degree
of the crime’ in the verdict form [citation].” (People v. San Nicolas (2004) 34 Cal.4th
614, 634; accord, People v. McDonald (1984) 37 Cal.3d 351, 381, overruled in part by
People v. Mendoza (2000) 23 Cal.4th 896, 910, 914 [§ 1157 does not apply where trial
court instructs jury only on first degree felony murder and to find defendant either not
guilty or guilty of first degree murder; where only crime of which defendant may be
convicted is first degree murder, question of degree is not before jury].) “Courts have
consistently applied sections 1157 and 1192 strictly and literally in favor of defendants,
so much so that ‘on this point, form triumphs over substance, and the law is traduced.’
[Citations.]” (People v. Williams (1984) 157 Cal.App.3d 145, 153; accord, People v.
Goodwin (1988) 202 Cal.App.3d 940, 946.)
       Section 1157’s requirement that the degree be specified “may be satisfied in two
ways: (1) by a finding that specifically refers to the degree of the crime by its statutory
numerical designation; and (2) by findings that encompass the statutory factual predicates
of the degree of the crime. [Citation.]” (In re C.R. (2008) 168 Cal.App.4th 1387, 1391.)
In the present case, the jury’s verdict explicitly specified a finding of first degree murder.
Section 1157’s requirement thus was satisfied.
       That the verdict referred to the crime “as charged in … the Information,” and the
information merely charged generic murder without specifying the degree thereof, does
not change this, nor does the fact there was no separate finding as to degree. (Cf. People

9     Section 1192, the counterpart of section 1157, requires the court to determine the
degree of the crime before passing sentence in cases of court trial or guilty plea.



                                             10.
v. Nunez and Satele (2013) 57 Cal.4th 1, 50 [§ 1157 not implicated where verdict found
defendant guilty of willful, deliberate, premeditated murder, in violation of § 187, as such
finding was equivalent to finding of first degree murder]; People v. San Nicolas, supra,
34 Cal.4th at pp. 634-635 [§ 1157 not implicated where verdict stated jury found
defendant guilty of murder in violation of § 187, as charged in information, and further
found defendant acted willfully, deliberately, and with premeditation]; People v. Golston
(1962) 58 Cal.2d 535, 539-540 [where information charged generic murder, without
reference to degree, § 1157 satisfied where trial judge, as trier of fact, stated defendant
was guilty of first degree murder].) This was not a situation where, for instance, the
jury’s verdict used a descriptive label rather than specifying the degree by number, and so
resort to the charging language of the information was needed, or at least helpful. (Cf.
People v. Goodwin, supra, 202 Cal.App.3d at p. 947 [degree sufficiently specified where
verdict form found defendant guilty of residential burglary as charged in information, and
information alleged burglary of inhabited dwelling, which necessarily constituted first
degree burglary].) It was also not a situation where the verdict simply stated defendant
was found guilty of murder as charged in the information (cf. People v. Williams, supra,
157 Cal.App.3d at pp. 154-155 [first degree murder verdict modified to second degree
where court found defendant guilty as charged in information, and information merely
alleged defendant committed murder with malice aforethought in violation of § 187,
without reference to degree]) or where no degree was explicitly stated in the verdict and
the degree had to be inferred from a special circumstance or other finding also made by
the jury (cf. People v. Bonillas (1989) 48 Cal.3d 757, 769, fn. 4 [§ 1157 requires express
finding of degree, even where finding of first degree murder can be implied from jury’s
true finding as to special circumstance]; People v. McDonald, supra, 37 Cal.3d at
pp. 379-380, 382 [same]).
       By enacting section 1157, “[t]he Legislature has required an express finding on the
degree of the crime to protect the defendant from the risk that the degree of the crime

                                             11.
could be increased after the judgment. [Citations.]” (People v. Goodwin, supra, 202
Cal.App.3d at p. 947.) There is no such danger here. Defendant nevertheless argues the
verdict form “presents a legal impossibility -- a verdict stating first degree murder based
on an information silent as to the degree.” Combining the degree stated in the verdict
with the information it incorporates “creates an incongruity and a legal impossibility,” he
says, and makes the verdict “unclear,” thereby bringing section 1157 into play. Again,
we disagree.
       Section 1157 requires that the jury find the degree of the crime and explicitly
specify that degree in the verdict form. The verdict here expressly states a finding of first
degree murder. “‘“A verdict is to be given a reasonable intendment and be construed in
light of the issues submitted to the jury and the instructions of the court.” [Citations.]’
[Citations.] ‘The form of a verdict is immaterial provided the intention to convict of the
crime charged is unmistakably expressed. [Citation.]’ [Citation.] ‘[T]echnical defects in
a verdict may be disregarded if the jury’s intent to convict of a specified offense within
the charges is unmistakably clear, and the accused’s substantial rights suffered no
prejudice. [Citations.]’ [Citation.]” (People v. Jones (1997) 58 Cal.App.4th 693, 710-
711; accord, People v. Jones (2003) 29 Cal.4th 1229, 1259.)
       Here, the jury’s intent to convict defendant of first degree murder is unmistakably
clear. With respect to count 1, jurors were instructed they would be given verdict forms
for guilty of first degree murder, guilty of second degree murder, guilty of voluntary
manslaughter, and not guilty. They were told they had to all agree on the decision to
return a verdict of guilty or not guilty, to complete and sign only one verdict form per
count, and to return the unused verdict forms unsigned. As for count 1, they were
expressly told that if they all agreed the People had proved defendant was guilty of first
degree murder, they were to complete and sign that verdict form, and were not to
complete or sign any other verdict form. They were further told their verdict on each
count had to be unanimous.

                                             12.
       As to count 1, jurors completed and signed only the verdict form for first degree
murder. The remaining verdict forms were returned unsigned. When defendant
requested that the jurors be polled, the verdict form specifying first degree murder was
read to them, and each affirmed it was his or her verdict.
       Under the circumstances, the verdict form’s reference to the information created
no fatal uncertainty or ambiguity, and did not result in a legal impossibility. Because the
degree of the crime was explicitly stated, defendant’s substantial rights were not
prejudiced. Defendant is not entitled to have the conviction reduced to second degree
murder.
                                              II*

        THE TRIAL COURT RESPONDED APPROPRIATELY TO THE PROSECUTOR’S
                          MISSTATEMENT OF THE LAW.

       Defendant contends the trial court should have halted deliberations to correct the
prosecutor’s misstatement of the law of heat-of-passion voluntary manslaughter. He says
its attempt to correct the error after the jury reached its verdicts was insufficient, and, as a
result, he was denied various constitutional rights. We find no error.10




*      See footnote, ante, page 1.
10     A question arises whether, in light of defense counsel’s failure to object to the
prosecutor’s initial misstatement of the law or to request a halt to deliberations,
defendant’s claim has been preserved for review. (See, e.g., People v. McCleod (1997)
55 Cal.App.4th 1205, 1220.) Because we are not confronted here with a claim of
prosecutorial misconduct per se, but rather with an assertion the trial court erred in its
response thereto and thereby violated defendant’s federal constitutional rights, including
his right to a fair trial, we find it appropriate to address the issue on the merits even
assuming forfeiture might appropriately be found. (See People v. Williams (1998) 17
Cal.4th 148, 161-162, fn. 6; People v. Espiritu (2011) 199 Cal.App.4th 718, 725.)
Accordingly, we do not address defendant’s claim that any forfeiture constituted
ineffective assistance of counsel.



                                              13.
A.    Background
      Counsels’ summations preceded the giving of jury instructions.11 In his opening
argument, the prosecutor stated:

             “The second way you get to voluntary manslaughter is through heat
      of passion -- a defendant killed somebody because of a sudden quarrel or in
      heat of passion if the defendant was provoked. As a result of the
      provocation the defendant acted rashly and under the influence of intense
      emotion that obscured his reason or judgment and the provocation would
      have caused a person of average disposition to act rashly and without due
      deliberation, that is, from passion rather than from judgment.

              “Okay.… And one example of -- kind of a heat-of-passion-type of
      defense would be you get off work early. You decide you are going to run,
      home grab something to eat. You get home at kind of an unexpected hour
      and you find your spouse in bed with somebody else. And you are so
      absolutely outraged by what you see that you pick up a knife and you just
      stab her and him to death. Right? Because it is such a powerful emotion
      what you feel. And it’s something that a reasonable person -- somebody
      else in your shoes would have probably responded the same way. It’s built
      for those kind of situations.

              “So the question is the first one, was the defendant provoked? If you
      believe his testimony that he’s bonked a few times on the head, I guess it
      could be considered provocation. As a result of the provocation the
      defendant acted rashly and under intense emotion that obscured his
      reasoning or judgment. Maybe. But this is the real issue, 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. So
      defendant’s bonked a few times on the head. He turns. Kicks the victim
      away. Disables the victim. That should be the end of it. Would a
      reasonable person in the defendant’s position then commence to beating
      the victim multiple times, hitting him on the head, causing 15 different types
      of injuries? And then at the end shoving a bottle down his mouth. Is that
      how a reasonable person in those circumstances would respond? The



11     As previously described, jurors were presented with a number of options as to
count 1. We summarize only the arguments and instructions concerning heat-of-passion
voluntary manslaughter.



                                           14.
      answer to that is no. So voluntary manslaughter does not apply.” (Italics
      added.)
      In response, defense counsel argued there was a sudden quarrel, and the severity
of Byrn’s injuries showed defendant acted under the influence of intense emotion and his
reasoning or judgment must have been obscured. Defense counsel then stated:

             “Now, here’s where the prosecution went wrong. They said would
      provocation have caused a person of average disposition to act rashly and
      without due deliberation from passion rather than judgment. And this is
      where I used to go wrong, because I think well, what kind of a person is
      going to react it [sic] a sudden quarrel by killing somebody? No average
      person is going to react to a suddenly [sic] quarrel by killing somebody.…
      But that’s not the test. The test is not whether -- if you have any doubt
      about this at all, get a note to the judge because this is … a key to the case.
      If you go wrong on this, as my worthy opponent did … you will go wrong
      completely in this case.

              “The question is: Would an average person be upset enough to
      obscure their judgment, not would an average person be upset enough to
      obscure the judgment and cause them to kill? So … you don’t decide that
      the average person would react by killing, because they wouldn’t. What
      you decide is would the average person react by getting upset, by having
      their reasoning, their judgment damaged? And once you reach that point
      then you are in the sudden quarrel or heat of passion.”
      In his closing argument, the prosecutor conceded defendant was provoked, but
argued that was not enough because defendant was not allowed to set up his own
standard of conduct. Thus, there had to be provocation to a sufficient level, which the
prosecutor illustrated by again mentioning the adultery example and arguing it would
cause a reasonable person to be overcome with fury. This ensued:

             “[PROSECUTOR:] So there’s the two things, the provocation, but
      then the reaction to the provocation still must be something that a person of
      average disposition -- the reaction, the response -- the law says the
      provocation would cause a person of average disposition to act rashly and
      without due deliberation. In other words, how then would a reasonable
      person react under those circumstances? Would a reasonable person,
      seeing their spouse in bed with someone, be so overcome with fury that they
      would kill somebody? Yes, you could see that a reasonable person, an



                                            15.
       average person might do that. It wouldn’t be right. It would still be
       voluntary manslaughter, but you can see --

              “[DEFENSE COUNSEL]: Objection, Your Honor. That misstates
       the law of voluntary manslaughter.

              “THE COURT: Counsel, I think both of you have argued this. And
       ladies and gentlemen, you follow the instruction as I read it to you. Okay?
       Overruled.

              “[PROSECUTOR]: The question for you is if you follow the -- the
       defendant’s statement is the hitting on a head -- on the head enough
       provocation that a reasonable person under those circumstances would
       turn and murder somebody. That is the question.” (Italics added.)
       Jurors were subsequently instructed to follow the law as the court explained it to
them, and that, if the attorneys’ comments on the law conflicted with the instructions,
jurors must follow the court’s instructions. With respect to heat-of-passion voluntary
manslaughter, jurors were told, pursuant to CALCRIM No. 570:

               “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. [¶] … [¶]

              “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 jury retired to begin deliberations at 3:18 p.m. Defense counsel then
expressed concern that the prosecutor had misstated the law contained in CALCRIM


                                            16.
No. 570. Defense counsel pointed out that the instruction refers to provocation that
would have caused a person of average disposition to act rashly and without due
deliberation, that is, from passion rather than judgment, whereas the prosecutor had
worded it as whether the person would be provoked to kill. Defense counsel noted that
when the prosecutor repeated the original error in his closing argument, defense counsel’s
objection was overruled, suggesting to the jury that defense counsel’s statement of the
instruction was incorrect and that manslaughter could be found only if the killing would
be a reasonable thing that an ordinary person would do. The prosecutor countered that
his argument had been entirely consistent with the instruction.
       The trial court stated it was “inclined” to think the prosecutor’s argument to the
jury was an incorrect statement of the law, but it noted it had directed jurors to follow the
law as given to them by the court, and that CALCRIM No. 570 — as read to the jury —
correctly stated the law. It decided that since it was 4:00 p.m., and the jury was unlikely
to conclude its deliberations that afternoon, the attorneys could return in the morning with
a proposed pinpoint instruction. When defense counsel stated he had already drafted one,
the court said it needed some authority for the proposition the jury should be given an
additional explanation beyond the standard jury instruction, and it also wanted to give the
prosecutor the opportunity to explain why his argument was okay — a point the court had
yet to decide. The court recognized that if defense counsel was right and the jury came
back with a verdict, there might be grounds for a motion for a new trial based upon the
jury having been misled about the requirements of the law on the subject. It gave the
prosecutor until the next morning to present some authority why the jury should not be
instructed along the lines of what defense counsel proposed.
       The court directed counsel to return the next morning at 9:00. The jury was
informally excused for the day at 4:30 p.m.
       The next morning, court reconvened at 9:21 a.m. The court informed counsel the
jury had been deliberating since 9:00 that morning.

                                              17.
       The court provided counsel with a transcript of the pertinent portion of the
prosecutor’s closing argument and defense counsel’s objection, a copy of CALCRIM
No. 570 as given by the court, and a written proposal of the court in response to the
situation. The prosecutor then argued, unsuccessfully, that he had not misstated the law.
       At 9:38 a.m., the jury advised the bailiff they had reached a verdict. When the
court informed counsel of that fact, the following took place:

              “[DEFENSE COUNSEL]: Well, I ask that before accepting the
       verdict that the court read its post [sic] instruction.

               “THE COURT: I’m going to do that. I don’t think this is obviously
       a pressurized situation and a little bit surprising. But I am going to bring
       the jurors in and give them this instruction and ask them to -- understanding
       that they have indicated to us that they have arrived Alta [sic] verdict, that
       if there’s any misunderstanding about the law on this subject matter that
       they would need to reconsider that. Okay? Anything else you want to do?

              “[DEFENSE COUNSEL]: No. Thank you, Your Honor.

              “[PROSECUTOR]: No. [¶] … [¶]

              “(Whereupon the jury enters the courtroom.)

               “THE COURT: Well, good morning, ladies and gentlemen.… I
       understand you have verdicts in this matter. However, you’ll recall that
       there was an issue during closing argument about misstatements of the law.
       And I directed you to follow the instructions that I had given you. And
       after giving both counsel here an opportunity to investigate and research the
       law on this subject matter, I concluded, talking to them this morning, that
       we needed to give you a clarification in regards to the arguments that you
       heard from counsel so that you would understand the distinction that was
       drawn between these two parties in their closing argument.

               “So I don’t know how this might affect your decisions in this case.
       But given the fact that you’ve arrived at decisions, I want you to reconsider
       whatever decisions you’ve made in light of this additional instruction. I’m
       going to read it to you. But I’m also going to give a copy to [the court
       clerk] so she can hand it to you in writing so you don’t have to try to get all
       of this necessarily.




                                             18.
              “It’s relatively brief but -- and straightforward. So here it is: During
       closing argument you heard from both counsel as to how to interpret
       instruction 570 which defines when a killing that would otherwise be
       murder is reduced to voluntary manslaughter, if the killing occurred
       because of a sudden quarrel or in the heat of passion. That instruction
       provides in part that any provocation which caused the defendant to act
       rashly and under the influence of intense emotion that obscured his
       reasoning or judgment must also be the kind of provocation which would
       have caused a person of average disposition to act rashly and without due
       deliberation, that is from passion rather than from judgment. Contrary to
       any suggestion in the People’s closing argument, it is not required that such
       provocation be of a kind that would have caused a person of average
       disposition to kill.

               “So that’s it. I don’t know whether it has any effect on what you’ve
       done here, but I want you to go back and reconsider it. And then if
       necessary, take other votes or whatever you need to do here. And then you
       can let the clerk know if you’ve arrived at verdicts in this matter.”
       The jury returned to the jury room to continue deliberating at 9:46 a.m. At
9:55 a.m., they informed the bailiff they had reached a verdict.
B.     Analysis
       “Manslaughter is ‘the unlawful killing of a human being without malice.’
[Citation.] A defendant lacks malice and is guilty of voluntary manslaughter in ‘limited,
explicitly defined circumstances,’” (People v. Lasko (2000) 23 Cal.4th 101, 108) one of
which is “‘when the defendant acts in a “sudden quarrel or heat of passion” [citation] .…’
[Citation.]” (Ibid.) As the California Supreme Court has explained: “‘[T]he factor
which distinguishes the “heat of passion” form of voluntary manslaughter from murder is
provocation. The provocation which incites the defendant to homicidal conduct in the
heat of passion must be caused by the victim [citation], or be conduct reasonably believed
by the defendant to have been engaged in by the victim. [Citations.] The provocative
conduct by the victim may be physical or verbal, but the conduct must be sufficiently
provocative that it would cause an ordinary person of average disposition to act rashly or
without due deliberation and reflection. [Citations.] “Heat of passion arises when ‘at the



                                            19.
time of the killing, the reason of the accused was obscured or disturbed by passion to
such an extent as would cause the ordinarily reasonable person of average disposition to
act rashly and without deliberation and reflection, and from such passion rather than from
judgment.’” [Citation.]’ [Citation.]” (People v. Manriquez (2005) 37 Cal.4th 547, 583-
584.)
        “Heat of passion, then, is a state of mind caused by legally sufficient provocation
that causes a person to act, not out of rational thought but out of unconsidered reaction to
the provocation.” (People v. Beltran (2013) 56 Cal.4th 935, 942.) Adequate provocation
does not require a finding that an ordinary person of average disposition would kill. (Id.
at p. 949.) “Adopting a standard requiring such provocation that the ordinary person of
average disposition would be moved to kill focuses on the wrong thing. The proper focus
is placed on the defendant’s state of mind, not on his particular act. To be adequate, the
provocation must be one that would cause an emotion so intense that an ordinary person
would simply react, without reflection.… [T]he anger or other passion must be so strong
that the defendant’s reaction bypassed his thought process to such an extent that
judgment could not and did not intervene. Framed another way, provocation is not
evaluated by whether the average person would act in a certain way: to kill. Instead, the
question is whether the average person would react in a certain way: with his reason and
judgment obscured.” (Ibid.) “The focus is on the provocation — the surrounding
circumstances — and whether it was sufficient to cause a reasonable person to act rashly.
How the killer responded to the provocation and the reasonableness of the response is not
relevant .…” (People v. Najera (2006) 138 Cal.App.4th 212, 223.)
        The italicized portions of the prosecutor’s statements, ante, are incorrect. (See
People v. Beltran, supra, 56 Cal.4th at p. 954 & fn. 15; People v. Najera, supra, 138
Cal.App.4th at p. 223.) It is improper for a prosecutor to misstate the law, however
unintentionally. (People v. Hill (1998) 17 Cal.4th 800, 822-823, 829.) Such impropriety
normally is curable by admonition, however (see, e.g., People v. Solomon (2010) 49

                                             20.
Cal.4th 792, 828; People v. Combs (2004) 34 Cal.4th 821, 854; People v. Mayfield (1993)
5 Cal.4th 142, 177-178), and here jurors were specifically told to follow the instruction
on the subject as the court read it to them, and also generally to follow the court’s
instructions if they conflicted with the attorneys’ arguments. Jurors were correctly
instructed on the law of provocation by means of CALCRIM No. 570. (See People v.
Beltran, supra, 56 Cal.4th at p. 954 & fn. 14.) We presume they followed these
instructions. (People v. Boyette (2002) 29 Cal.4th 381, 436; People v. Najera, supra, 138
Cal.App.4th at p. 224.)
       Defendant contends, however, that once the trial court determined the prosecutor
misstated the law and defense counsel asked that the error be corrected, the court was
required to suspend jury deliberations until the jury could be fully and properly
instructed. Of course, the jury already had been fully and properly instructed pursuant to
CALCRIM No. 570. (See People v. Beltran, supra, 56 Cal.4th at p. 954 & fn. 14.)
       In any event, “from time to time during the trial, and without any request from
either party, the trial judge may give the jury such instructions on the law applicable to
the case as the judge may deem necessary for their guidance on hearing the case.”
(§ 1093, subd. (f).) “An appellate court applies the abuse of discretion standard of review
to any decision by a trial court to instruct, or not to instruct, in its exercise of its
supervision over a deliberating jury. [Citation.]” (People v. Waidla (2000) 22 Cal.4th
690, 745-746.) “The trial ‘“judge must always be alert to the possibility that counsel in
the course of argument may have befuddled the jury as to the law. If this occurs, then
either at the time the confusion arises or as part of the final instructive process the judge
should rearticulate the correct rule of law.”’ [Citation.] The court has ‘a duty to
reinstruct if it becomes apparent that the jury may be confused on the law.’ [Citation.]”
(People v. Ardoin (2011) 196 Cal.App.4th 102, 128.) Moreover, “the order of procedure
at the trial is within the discretion of the trial judge and must stand unless a clear abuse of
discretion is shown. [Citations.]” (People v. Seastone (1969) 3 Cal.App.3d 60, 67; see

                                                21.
§ 1094.) Also subject to review for abuse of discretion is the trial court’s decision
whether to suspend deliberations. (People v. Santamaria (1991) 229 Cal.App.3d 269,
276-277.)
       “[D]iscretion is abused whenever the court exceeds the bounds of reason, all of the
circumstances being considered. [Citations.]” (People v. Giminez (1975) 14 Cal.3d 68,
72.) To the extent there was concern jurors might be confused or draw the wrong
conclusion from the trial court’s overruling of defense counsel’s objection to the
prosecutor’s closing argument, the trial court acted reasonably in giving the parties until
the next morning to present further argument and authority, and in allowing jurors to
continue deliberating in the meantime. Although it could have suspended deliberations
for the time it took to consider the issue and determine whether to give a further
instruction (see People v. Cleveland (2004) 32 Cal.4th 704, 755-756), defendant fails to
convince us it was required to do so, especially in light of the instructions it had already
given. The trial court also acted reasonably once it learned the jury had reached a verdict.
It did not “receive” the verdict, which was neither “returned” nor “complete” (see
§§ 1149, 1164, subd. (a); People v. Green (1995) 31 Cal.App.4th 1001, 1009-1010;
People v. Crowell (1988) 198 Cal.App.3d 1053, 1063), and the jury remained under its
control (see People v. Bento (1998) 65 Cal.App.4th 179, 187). Accordingly, it retained
full authority to direct jurors to reconsider their verdict in light of its clarifying
instruction. (Cf. § 1161; People v. Hendricks (1987) 43 Cal.3d 584, 597.)
       Defendant claims that by failing to have the verdict forms placed in an envelope
by the foreperson and sealed, failing to provide the jury with a new packet of verdict
forms, and then telling the jury it did not know what effect the clarification might have,
the trial court implicitly signaled the verdicts were correct. We fail to find any logic in
this argument. Defendant points to the fact the jury returned within five to 10 minutes of
being sent out of the courtroom — barely enough time, he says, “to reach the jury room,
sit down and contact the bailiff to indicate [the jury] had reached verdicts.” The clerk’s

                                               22.
minutes show the jury actually was out nine minutes.12 This was ample time for jurors to
digest the court’s clarification and determine whether it made any difference in their
verdict on count 1, the only count affected. Since jurors had always been correctly
instructed on the subject of provocation and heat-of-passion voluntary manslaughter, it is
not surprising they quickly determined it made no difference.
       Considering the circumstances, we reject defendant’s claim the verdict “was a
product of the jury having been misled by uncured prosecutorial misconduct,” thereby
violating various of his constitutional rights. “It is fundamental that jurors are presumed
to be intelligent and capable of understanding and applying the court’s instructions.
[Citation.]” (People v. Gonzales (2011) 51 Cal.4th 894, 940.) In light of those
instructions and the trial court’s clarification, it is not reasonably probable any possible
confusion engendered by the prosecutor’s misstatements or the trial court’s overruling of
defense counsel’s objection thereto misled the jury. (See People v. Beltran, supra, 56
Cal.4th at p. 956.) The trial court did not err in its handling of the situation.
                                       DISPOSITION
       The judgment is affirmed.
                                                                   _____________________
                                                                             DETJEN, J.
WE CONCUR:


 _____________________
 HILL, P. J.


 _____________________
 LEVY, J.


12     The trial court stated the jury was out “perhaps five or ten minutes.” In contrast to
the court’s estimate, the clerk’s minutes stated the exact time the jury retired and
returned.



                                              23.
