Filed 2/25/14 P. v. Sanchez CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A135424
v.
LUIZ RICK SANCHEZ,                                                   (Alameda County
                                                                     Super. Ct. No. CH50321)
         Defendant and Appellant.


                                              I. INTRODUCTION
         Luis Rick Sanchez was convicted by a jury of the second degree murder of his
mother’s husband, Humberto Diaz. (Pen. Code, § 187, subd. (a).)1 The jury also found
true an allegation that Sanchez personally and intentionally discharged a firearm causing
great bodily injury. (§§ 12022.7, subd. (a), 12022.53, subd. (d).) The trial court
sentenced Sanchez to a state prison term of 40 years to life, and did not award any credit
for time served.
         Sanchez contends the judgment must be reversed because (1) there is insufficient
evidence to support the second degree murder conviction; (2) the trial court refused to
give a special jury instruction regarding his heat of passion defense; and (3) the
prosecutor committed misconduct. Sanchez also contends the trial court erroneously
denied him credits for time served in county jail prior to sentencing. Aside from the



         1
             Unless otherwise indicated, statutory references are to the Penal Code.


                                                             1
sentencing error, which the People concede, we reject Sanchez’s contentions and affirm
the judgment.
                             II. STATEMENT OF FACTS
A.    The Prosecution Case
      1.        Background
      In September 2010, Sanchez was 55-years-old, had custody of his two young
grandsons, and lived with his mother, Juanita Diaz, and Juanita’s husband, Humberto, in
the Diaz’s Union City home.2 Humberto earned money for the family working as a hod
carrier, while Sanchez stayed at home and took care of Juanita, who had a broken pelvis
and other serious medical problems. Humberto, who had been married to Juanita for
more than 30 years, was only a few years older than Sanchez, and the two men did not
get along well. According to Juanita, they argued all the time, Humberto constantly
complained about Sanchez, and he repeatedly tried to get him to move out of the house.3
      On September 11 or 12, Sanchez and Humberto had a loud argument in front of
Juanita. Arturo Raygoza, a family friend who was working on a construction project at
the Diaz house, could hear people arguing from outside. During the argument, Sanchez
chastised Humberto for not treating Juanita well. He complained that Humberto was
“messing around” while Sanchez was doing everything he could to care for Juanita.
Sanchez also accused Humberto of trying to have sex with his daughter Anna, who was
the mother of the two young boys who lived with Sanchez at the Diaz home. During the
argument, Humberto told Sanchez to move out, as he often did. And, at one point, both
men threatened to kill each other. The next day, Humberto told Juanita that he planned to
kick Sanchez out of the house and to change the locks.



      2
        For clarity, we use first names when referring to Juanita, Humberto and
Sanchez’s daughter, Anna Sanchez.
      3
        Sanchez testified that Humberto was three years older than him and 12 years
younger than Juanita. Juanita died before trial, but excerpts from her March 23, 2011,
preliminary hearing testimony were read to the jury.


                                            2
       2.     September 14, 2010
       September 14 started as a normal day. Humberto got up early and went to work
and Sanchez cared for Juanita who spent the day in bed as she normally did. Raygoza
was at the house for most of the day, working on the construction project, a small
addition to the back of the house. At some point during that day, Juanita told Sanchez
that Humberto had told her that he was going to change the locks.
       Shortly after 4:00 p.m., Humberto arrived home from work. As was his habit, he
went around the outside of the house to look at the construction project before going
inside to check on Juanita. From an outside entrance, Humberto went into the new room,
which was connected to the main house through another door leading into the kitchen.
Humberto seemed happy with the progress of the project as he and Raygoza talked about
plans for installing a new water heater. They knelt down on the floor facing each other,
with the diagram in between them, and discussed the parts they would need to buy.
       Humberto was facing the kitchen door and Raygoza was kneeling opposite him
when Sanchez entered the room from the kitchen. Raygoza heard Sanchez say “I told
you not to fuck with me,” and then he heard a “pop.” Raygoza looked up and saw a dark
mark on Humberto’s white t-shirt on the left side of his chest. A second or two later,
there was a second “pop.” Humberto looked down at his chest. He seemed scared and
like he might be in shock as he got to his feet and ran toward the door leading outside.
Raygoza heard a third shot before Humberto was out the door. Raygoza looked at
Sanchez who was pointing what appeared to be a semi-automatic gun directly at
Humberto. After firing the third shot, Sanchez “just turned around and walked back into
the kitchen” through the interior door.
       Raygoza had trouble believing these events were real; he thought for a moment
that perhaps Sanchez was just “messing” around with a pop gun. But, when he went
outside, he found Humberto lying on the cement next to Raygoza’s truck, trying to
breathe. Raygoza spent a few minutes going back and forth between his truck and the
back of the house looking for his phone to call 911. He heard voices inside the house and
he heard Sanchez say “ ‘I told you I was gonna do something to him.’ ”


                                             3
         Inside the house, Juanita had heard a few loud “pops,” but she did not think much
about it until Sanchez came into her room and said “you are husbandless,” and told her
that Humberto was dead. Sanchez did not appear agitated or excited but spoke in a
monotone voice. Juanita suggested that Sanchez did not mean what he was saying. But
when Sanchez said it was true, she made herself get up and used her walker to go to the
front door where she saw Humberto lying motionless on the ground. Juanita could not go
down the front steps, but Sanchez did go outside. He asked Raygoza if he had called 911
and Raygoza confirmed that he had. Then Sanchez walked toward Humberto. As he
stood over the body, Sanchez appeared angry and agitated and he began yelling and
screaming, telling Humberto “fuck you.”
         3.    The Investigation
         When police arrived, they drew their weapons and ordered Sanchez and Raygoza
to raise their hands in the air. Sanchez complied and, as he walked out from behind the
truck, he said “I’m the shooter.” The officer placed handcuffs on Sanchez and Raygoza.
Then, as Sanchez sat on the curb next to the police car, he told Raygoza “Sorry. You
shouldn’t have been here.”
         The police videotaped Sanchez as they questioned him for several minutes about
the location of the gun. Sanchez denied any remorse, saying “The one person that I
wanted to hurt is hurt and that’s all that matters.” He also attempted to justify his
decision to shoot Humberto, telling the officers that the man was married to his mother
and had tried to rape his daughter, that he treated Sanchez’s grandchildren “like shit,” and
that he was going to throw Sanchez and the boys out into the street. Ultimately, Sanchez
told the police where he had hidden the gun and gave them permission to search the
house.
         During the ride from the crime scene to the police station, Sanchez did not appear
agitated; he was calm and quiet for the entire ride. At the station, police found a .25-
caliber live bullet in the pocket of Sanchez’s pants. At the house, they recovered a .25
caliber semi-automatic handgun in a coffee can on top of the refrigerator in the kitchen.
There were no live rounds left in the magazine or chamber of the gun.


                                              4
       A firearm expert from the county Sherriff’s office tested the gun recovered from
the Diaz home. The loading mechanism did not function properly; two out of three
times, the bullet was ejected before it was chambered. The recoil spring was worn, and
the trigger did not pull easily.
       An autopsy was performed by Dr. Thomas Rogers, who determined that Humberto
died from multiple gunshot wounds. Rogers documented three different entrance
wounds, but he only recovered two bullets from inside Humberto’s body. At trial,
Rogers acknowledged that a bullet which entered through Humberto’s arm could have
exited at the inside of the arm and re-entered the body at his torso. Thus, the autopsy
findings were consistent with either two or three shots having been fired.
B.     The Defense Case
       1.     Anna Sanchez
       Sanchez’s daughter Anna testified that she was 13 when she went to live with her
father at the Diaz home. Sanchez had always been the father figure for Anna’s own
children, and he moved with them to Ohio for several years before they all returned to
Union City in 2005. The family left Ohio after an ex-boyfriend assaulted Anna and they
moved back into the Diaz home because they had no place else to live.
       Anna admitted that, from 2006 until 2009, she had a serious methamphetamine
drug addiction. As a result of this habit, she was frequently jailed and her behavior was
not acceptable to Juanita, who kicked her out of the Diaz house in 2006. Anna left her
children with Sanchez and signed her welfare benefits over to him. Although Juanita
never forgave her or let her back into the house, Anna saw Sanchez often and was very
aware of the situation in the home. Anna felt that Humberto was unkind to Anna’s
children; he made them feel like they were not part of his family and he did not treat them
as well as he treated other grandchildren.
       Anna admitted that, when she was struggling with her addiction, she would do
“pretty much” anything for money to support her habit. After she moved out of the Diaz
house, she developed a “friendship” with Humberto, who gave her money “here and
there” to help out, even though he almost certainly knew she would use the money for


                                             5
drugs. At some point during this time, Anna used a social security settlement to buy a
truck, but the truck was impounded, and she needed $2,000 to get it back. She asked
Humberto for the money and promised to repay him. Instead, he asked her to agree to
have sex with him. Anna did agree, but always made excuses and never did have a
sexual relationship with him. Humberto continued to give Anna money, but Anna felt
that he grew increasingly angry with her for not keeping their agreement, and she thought
that he took his frustration out on Sanchez and the children, who were still living in his
home.
        By 2010, Anna viewed herself as a mediator between Sanchez and Humberto and
she testified that she personally witnessed many of their arguments. For example, they
argued about the way Humberto treated Juanita and they also argued about the fact that
Humberto would not let Sanchez move into a vacant bedroom.
        Anna testified about three telephone conversations she had with her father during
the two-day period before he shot Humberto. First, she spoke with Sanchez on
September 12, after he had a major argument with Humberto. Anna recalled that
Sanchez was extremely angry, that she talked with him about the problems he was having
with Humberto, and tried to assure him that everything was fine, and that they would not
be put out on the street.
        Anna also recalled two telephone conversations with Sanchez on the afternoon of
September 14, 2010. During the first call, Sanchez was extremely angry at Humberto.
According to Anna, Sanchez does not anger easily and she had never heard him that mad;
she could “just sense the anger that was coming through the phone,” and she recalled that
“It’s not like my dad at all.” A short time after this first conversation ended, Anna
received a second phone call from Sanchez telling her to come and pick up the children
because “the incident had took place.”
        2.    Sanchez’s Testimony
        Testifying on his own behalf, Sanchez attempted to explain to the jury how
tensions between himself and Humberto built up over the five-year period prior to the
fatal shooting. According to Sanchez, when he, Anna and the boys moved into the Diaz


                                             6
home in 2005, both Juanita and Humberto welcomed them, and the extended family got
along well even though Humberto had a lot of “rules.” However, as time went on,
several serious conflicts arose and remained unresolved.
       First, Sanchez and Humberto had conflicts regarding Anna. According to
Sanchez, Juanita kicked Anna out of the house because she broke one of the house rules
by having a friend over. Anna became homeless and turned to Humberto for money,
which he gave her on a regular basis. Sanchez told Humberto not to give Anna money
because she used it to buy drugs, but he knew that Humberto kept giving her money
behind his back. Sanchez was not happy about the situation, but Anna told him to stay
out of it, and he was afraid that if he challenged her she would take her kids away from
him.
       Sanchez admitted that Anna told him that the reason Humberto kept giving her
money was because he thought Anna was going to have sex with him. Anna told
Sanchez she would never do that, but that if Humberto was “stupid” enough to think she
would, then she was going to keep taking his money.
       Sanchez testified that he and Humberto rarely talked about Anna, but he did recall
a big argument in late 2009. Humberto told Sanchez that he thought Anna had stolen
something from his truck and Sanchez did not agree or disagree. Humberto said he knew
it was true and that he just wanted Sanchez to confirm it so that he could have some
friends “break her legs.” Sanchez recalled that he got really “pissed off,” but he could
not show any anger because he was always worried that Humberto would throw him and
the children out of the house. Sanchez’s trial counsel asked if Sanchez had felt that
Humberto was threatening to break Anna’s legs in order to “provoke” him. Sanchez
responded, “No. I thought it was because he was just upset with her because she
wouldn’t give up sex. And he had given her a lot, a lot of money by that time.” With
some additional prompting from his attorney, Sanchez testified that he was angry about
Humberto’s threat to break Anna’s legs, but that he “[b]ottled it up inside and just walked
away.”



                                             7
      During this same time period, late 2009, Sanchez and Humberto also had a
disagreement about sleeping arrangements at the Diaz home. Humberto’s uncle, Carlos
Llamas, had been living in a bedroom in the house for most of 2009. Llamas was
terminally ill and Humberto paid Sanchez $400 a month to care for him until he died at
the end of that year. Sanchez had been staying in the living room with his two
grandchildren and he wanted to move into Llamas’s old room, but Humberto would not
let him. Around this same time, Sanchez was cleaning out Llamas’s things when he
discovered a gun hidden in the back of the bedroom closet.
      According to Sanchez, Humberto never liked Sanchez’s grandchildren. But, by
the fall of 2009, his behavior toward them became “a lot, lot worse.” For example,
Sanchez bought bikes to give the children for Christmas but Humberto threw them in the
dumpster. Another time, Sanchez bought a puppy but Humberto would not let them keep
it. He would pop their balls, throw away their scooters and skateboards and did just
“thousands of little things” that upset Sanchez. Sanchez testified that Humberto became
less and less tolerant of the children as time went on and, by 2010, he and Humberto
frequently argued about them. According to Sanchez, Humberto knew that picking on
the children was something “that would aggravate me very much.”
      In addition, the two men had conflicts about Juanita, who had suffered a stroke in
2009 and was in declining health. According to Sanchez Juanita could no longer care for
herself and he took full responsibility for her care. However, Humberto objected to the
way that Sanchez took care of Juanita; Humberto wanted her to be more independent
which Sanchez did not think was realistic. Sanchez also felt that Humberto mistreated
Juanita. 4 When they argued about Juanita, Humberto often told Sanchez to get out of the




      4
         Juanita’s daughter, Eva Hauck, spent a lot of time at the Diaz home. She was 17
when her mother married Humberto, and when her own children were young, Juanita
took care of them at the house. Hauck testified that Humberto was good to her children,
gave them financial support and was also known as a person who helped everyone.
Hauck also believed that Humberto had taken good care of Juanita after she became ill.


                                            8
house, but Sanchez would respond that the house belonged to Juanita, that she was the
boss and that she wanted him there.
       Two days before the shooting, Sanchez and Humberto had yet another fight during
which Humberto tried to kick Sanchez out of the house. Sanchez testified that Humberto
started the argument by blaming Sanchez for a mess that the construction crew had left in
the kitchen. Humberto told Sanchez he was useless and to move out. Sanchez was
“livid” because he felt that he did so much work around the house. He moved the
argument to Juanita’s room because he wanted her to hear what he had to say.
       Sanchez used the September 12 argument as an opportunity to show Juanita that
Humberto was a liar. He told her that Humberto was cheating on her, that he had tried to
“hook up” with Anna, and that he gave Anna money for drugs. Juanita got really upset
when she heard that Humberto gave Anna money but he just said that she needed it.
Sanchez testified that he was very angry during the argument and admitted that he and
Humberto both threatened to kill each other. However, after about 10 or 15 minutes of
arguing, Humberto said there was no big deal and that “its not important.” At that point,
Juanita asked Sanchez to leave the room so she could talk to Humberto in private. After
another 15 minutes, Humberto came out of the room and said that Sanchez and the boys
did not have to move out.
       After the September 12 argument, Humberto started to ignore Sanchez and acted
as though he was not even there. Sanchez thought the matter was finally settled, that
Juanita had won the argument, and that he was going to stay in the Diaz house and take
care of her. However, two days later, Juanita called Sanchez into her room and told him
Humberto wanted him and the boys out of the house by the next day and that he was
going to change all the locks on the house. Sanchez became really upset, explaining his
feelings to the jury in this way: “It’s just an accumulation of three-and-a-half years of
him just picking on me, always badgering me, getting in my face, saying things, what he
did with my daughter, what he did with treating the kids, all that accumulation of things
just kind of like built up in me. I just couldn’t take it anymore.”



                                              9
       When Humberto came home a short time later, Sanchez was on the phone with
Anna and he told her he had to go because he wanted to try to talk Humberto out of
kicking them out. However, when Sanchez said they needed to talk, Humberto just
ignored him, raised his hand in a dismissive manner and went outside to talk with
Raygoza. Sanchez testified that Humberto’s behavior just made him “snap,” and that he
“lost it right there.” He went into the bedroom closet and retrieved the gun. He went to
the doorway between the kitchen and the new addition, said “I told you not to fuck with
me,” and then shot Humberto at least twice. Then he put the gun in the coffee can on top
of the refrigerator and went and helped his mother out onto the front porch where they
saw Humberto still alive, lying on the concrete.
C.     Incriminating Statements and Conversations
       In October 2010, Sanchez wrote to Anna from jail and warned her that when they
spoke in person, they would have to be “discreet” about the way they said things because
“they might be listening or recording our conversation.”
       On July 18, 2011, Anna was interviewed by a defense investigator named Walter
Stannard. Anna told Stannard that Sanchez was aware of and approved of Anna’s
“playing” around with Humberto in order to get money from him. She reported that she
had told her father that Humberto had propositioned her for sex when the incident
occurred and Sanchez understood that she was playing along because she needed money.
Anna also told the investigator that she spoke to Sanchez on September 14, before the
shooting, and during that conversation Sanchez said “ ‘I’m going to kill the
motherfucker.’ ”
       After Anna’s interview, Sanchez wrote several letters to her in which he discussed
the statements she had made to the defense investigator. In an August 9, 2011, letter,
Sanchez wrote: “When you told me that you said to the interviewer that I called you &
told you what I was going to do. That sent a red flag & warning bells off in my head. I
know you probably didn’t mean to but you just might [have] sent my case in favor of the
D.A.” The letter continued: “I think you made it look like pre-meditated murder because
I never told nobody that I had called you.” Sanchez also wrote: “Damn I fucked-up & I


                                            10
didn’t try & figure out how to get our stories straight. My fault. My stupid mistake.”
The following paragraph of this letter states:
       “But, who knows, if the D.A. doesn’t know we talked he might not ask you any
questions concerning that because without your testimony of you saying that you talked
to me just before the incident the D.A. doesn’t have nothing really substantial against me.
Then I have a very good chance of having my murder charges dropped to a voluntary
manslaughter.”
       Sanchez ended his August 2011 letter by telling Anna that “[w]ere going to have
to start getting [ourselves] more organized & our stories straight now that my case is
going to trial.” 5
       In a September 20, 2011, letter, Sanchez told Anna: “My one big question now is
I’m wondering if my lawyer will treat me different. You know, my lawyer had this
certain opinion of me. Now because of what you said will that change & will he start
treating me and this case differently. Because I had him totally convinced that this
wasn’t pre-meditated, but with what you might of said to the investigator I think he’s
going to look at me in a whole new way.” In this letter, Sanchez also wrote: “Did you
tell the investigator anything that might give him the idea I was gonna harm Beto in any
way? [¶] [Yes or No?] [¶] Because I’m going to have to play off that. So really think
hard & go over in your mind all that the two of you talked about (you & the
investigator).” And, later in the letter, Sanchez wrote, “Now that I’m getting closer to a
trial, I’m trying to prepare myself. I’m really trying hard to see if I can get my murder
charge dropped to a voluntary manslaughter.”


       5
          In this same letter, Sanchez asked Anna a series of yes or no questions, and told
her to provide answers using a code. Sanchez wrote: “The thing is I’m going to ask
them in a numbered sequence & I want you to answer the questions in the same order.
[¶] Example: I’ll be writing a No.# then a question [¶] . . . then you write the No.# with
your answer = 1. yes or no & so on. Got it? Here it goes. [¶] . . . Did you tell the
interviewer that I called you just minutes before I did what I did? [¶] . . . Did you say that
I said I was going to shoot Beto? [¶] . . . Did you say to the interviewer I was very
angry?”


                                              11
       Before Sanchez’s trial commenced, Anna sent him a letter in which she wrote: “I
am gonna to be testifying real soon, so I want to have everything fresh in my head. I
know you already told me, however, I need to know what you want me to say or not say
about the phone calls that day. I know you said for sure that the locks were gonna be
changed the day he came home early and that really pissed you off. But, what was the
reason you completely snapped. *Very important* your attorney & investigator has
asked me more than once.”
       While Anna was testifying at trial, the prosecutor asked her about the letters she
and Sanchez wrote to each other while Sanchez was in jail awaiting trial. Anna
maintained that she and Sanchez did not try to get their stories straight. She explained
that Sanchez was simply trying to think things through. According to Anna, Sanchez
genuinely did not recall having two phone conversations with her on the day of the
shooting. Also, he just wanted to clarify what she had said to the investigator. When
asked whether part of her motivation for testifying was to help Sanchez accomplish his
goal of getting his “murder charge dropped to a voluntary manslaughter,” Anna
responded “Yes sir. Why wouldn’t I?”
D.     The Jury Verdict and Judgment
       The jury was instructed regarding three types of homicide: first degree murder;
second degree murder and voluntary manslaughter, based on a heat of passion theory.
       The prosecutor argued that Sanchez committed murder not manslaughter; that
Sanchez hated Humberto and was angry at him, but that he did not kill under a heat of
passion. The defense theory was that Sanchez was guilty of manslaughter, not murder.
Defense counsel conceded that his client was not innocent, but argued that the homicide
was a manslaughter because there was a “build up of provocations” that occurred over the
year or year and a half before the homicide occurred and that there was also a “sudden
quarrel” that happened two days before the shooting, as well as an “immediate
provocation” just before the shooting, when Juanita told Sanchez that Humberto was
going to kick him out of the house.



                                            12
       The jury received a “guilty” and a “not guilty” special verdict form for each of the
three homicide offenses. On March 29, 2012, the jury returned two of the special
verdicts, one finding Sanchez not guilty of first degree murder and one finding him guilty
of second degree murder.
                                    III. DISCUSSION
A.     The Second Degree Murder Conviction
       Sanchez contends his conviction for second degree murder must be reversed or
reduced to voluntary manslaughter because the trial evidence establishes that he did not
act with malice aforethought but instead killed Humberto in the heat of passion. “ ‘When
the sufficiency of the evidence is challenged on appeal, the court must review the whole
record in the light most favorable to the judgment to determine whether it contains
substantial evidence—i.e., evidence that is credible and of solid value—from which a
rational trier of fact could have found the defendant guilty beyond a reasonable doubt.’
[Citation.] We must ‘ “presume in support of the judgment the existence of every fact the
trier could reasonably deduce from the evidence.” [Citations.]’ [Citation.]” (People v.
Tran (1996) 47 Cal.App.4th 759, 771-772.)
       1.     Legal Principles
       Murder is the “unlawful killing of a human being, or a fetus, with malice
aforethought.” (§ 187 subd. (a).) A killing with malice aforethought constitutes first
degree murder if it is willful, deliberate, and premeditated. (§ 189) “ ‘Second degree
murder is the unlawful killing of a human being with malice, but without the additional
elements (i.e., willfulness, premeditation, and deliberation) that would support a
conviction of first degree murder. [Citations.]’ [Citation.]” (People v. Chun (2009) 45
Cal.4th 1172, 1181 (Chun).) “Manslaughter, a lesser included offense of murder, is an
unlawful killing without malice. [Citations.]” (People v. Cruz (2008) 44 Cal.4th 636,
664.) “A person who kills without malice does not commit murder. Heat of passion is a
mental state that precludes the formation of malice and reduces an unlawful killing from
murder to manslaughter. Heat of passion arises if, ‘ “at the time of the killing, the reason
of the accused was obscured or disturbed by passion to such an extent as would cause the


                                             13
ordinarily reasonable person of average disposition to act rashly and without deliberation
and reflection, and from such passion rather than from judgment.” ’ [Citation.]” (People
v. Beltran (2013) 56 Cal.4th 935, 942 (Beltran).)
       “Heat of passion, then, is a state of mind caused by legally sufficient provocation
that causes a person to act, not out of rational thought but out of unconsidered reaction to
the provocation. While some measure of thought is required to form either an intent to
kill or a conscious disregard for human life, a person who acts without reflection in
response to adequate provocation does not act with malice.” (Beltran, supra, 56 Cal.4th
at p. 942.)
       Heat of passion is not an element of voluntary manslaughter that the People must
affirmatively prove to obtain a conviction for that offense. (People v. Rios (2000) 23
Cal.4th 450, 454 (Rios).) Rather, it is a theory of “ ‘partial exculpation’ ” that reduces
“murder to manslaughter by negating the element of malice. [Citation.]” (People v.
Moye (2009) 47 Cal.4th 537, 549 (Moye).) “Accordingly, where murder liability is at
issue, evidence of heat of passion . . . bears on whether an intentional or consciously
indifferent criminal homicide was malicious, and thus murder, or nonmalicious, and thus
the lesser offense of voluntary manslaughter. In such cases, the People may have to
prove the absence of provocation . . . in order to establish the malice element of murder.”
(Rios, supra, 23 Cal.4th at p. 454.)
       2.     Analysis
       In this case, Sanchez argues (1) there is insufficient evidence to support the malice
element of his second degree murder conviction, and (2) the prosecution failed to carry
its burden of proving the absence of adequate provocation. We will separately address
these two erroneous arguments.
              a.     Malice
       Malice, which is defined in section 188, may be either express or implied. Malice
is express “when there is manifested a deliberate intention unlawfully to take away the
life of a fellow creature.” (§ 188.) It is implied “when no considerable provocation



                                             14
appears, or when the circumstances attending the killing show an abandoned and
malignant heart.” (Ibid.)
       The statutory definition of implied malice is vague. “Trial courts do not instruct
the jury in the statutory language of an abandoned and malignant heart [because doing] so
would provide the jury with little guidance.” (Chun, supra, 45 Cal.4th at p. 1181.) Case
law establishes that implied malice has “ ‘both a physical and a mental component. The
physical component is satisfied by the performance of “an act, the natural consequences
of which are dangerous to life.” [Citation.] The mental component is the requirement
that the defendant “knows that his conduct endangers the life of another and . . . acts with
a conscious disregard for life.” [Citation.]’ [Citation.]” (Ibid.)
       Here, the trial record contains substantial evidence of express malice. From that
evidence, the jury could have found that Sanchez manifested a deliberate intention to kill
Humberto during the argument that occurred a few days before the shooting and again
during his telephone conversation with Anna shortly before the murder occurred. In
addition, Sanchez himself made comments after the shooting which indicated that he had
both planned and intended to kill Humberto. Finally, the letters that Sanchez sent to
Anna before trial were not only evidence of a consciousness of guilt but could also have
been construed as admissions of malicious intent.
       To the extent evidence of express malice is lacking, there is also overwhelming
evidence of implied malice. On this record, there can be no dispute that the physical
component of implied malice is satisfied; the natural consequences of firing three
gunshots at an unarmed and unsuspecting man who is on his knees looking over building
plans with his contractor are dangerous to human life. Furthermore, the threats that
Sanchez made prior to the shooting, his behavior during the incident, and his words and
actions after he shot Humberto are substantial evidence that Sanchez knew his actions
would endanger human life and that he acted in conscious disregard for the life of
Humberto Diaz.




                                             15
              b.     Heat of Passion
       On appeal, Sanchez ignores the strong evidence of malice by focusing solely on
the question of provocation. He contends the prosecution failed to carry its burden of
proving that Sanchez was not provoked. Indeed, Sanchez maintains that the evidence of
provocation was so strong that no reasonable jury could properly find that Sanchez acted
with the malice aforethought that is required to commit second degree murder.
       “A heat of passion theory of manslaughter has both an objective and a subjective
component. [Citations.]” (Moye, supra, 47 Cal.4th at p. 549.) “ ‘ “To satisfy the
objective or ‘reasonable person’ element of this form of voluntary manslaughter, the
accused’s heat of passion must be due to ‘sufficient provocation.’ ” [Citation.]’ ” (Ibid.)
“ ‘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.]’ ” (Id. at pp. 549-550.) “The focus is on the
provocation—the surrounding circumstances—and whether it was sufficient to cause a
reasonable person to act rashly.” (People v. Najera (2006) 138 Cal.App.4th 212, 223.)
       Heat of passion manslaughter also has a subjective component; the “defendant
must actually, subjectively, kill under the heat of passion. [Citation.]” (People v. Steele
(2002) 27 Cal.4th 1230, 1252.) To satisfy this subjective element, “the accused must be
shown to have killed while under ‘the actual influence of a strong passion’ induced by
such provocation. [Citation.]” (Moye, supra, 47 Cal.4th at p. 550.)
       “[P]rovocation sufficient to reduce murder to manslaughter need not occur
instantaneously, but may occur over a period of time.” (People v. Wharton (1991) 53
Cal.3d 522, 569 (Wharton).) “The key element is not the duration of the source of
provocation but ‘ “whether or not defendant’s reason was, at the time of his act, so
disturbed or obscured by some passion . . . to such an extent as would render ordinary
men of average disposition liable to act rashly or without due deliberation and reflection,


                                             16
and from this passion rather than from judgment.” ’ ” (Id. at pp. 569-570.)
“ ‘ “However, if sufficient time has elapsed between the provocation and the fatal blow
for passion to subside and reason to return, the killing is not voluntary
manslaughter . . . .” [Citation.]’ [Citation.]” (Moye, supra, 47 Cal.4th at p. 550.)
       In this case, Sanchez contends that the trial evidence established that Humberto
engaged in two types of conduct which constitute legally sufficient provocation: (1) he
threatened to kick Sanchez and his grandchildren out of the Diaz home; and (2) he
offered Anna money for sex. Sanchez further contends that the prosecution failed to
produce any evidence from which a jury could have concluded that Sanchez was not
provoked by these actions. We disagree.
       The jury’s implicit finding that Humberto’s most recent threat to change the locks
was not legally sufficient provocation was supported by substantial evidence that this
threat was another round in an ongoing two-sided family feud between Sanchez and
Humberto. The evidence regarding this dysfunctional relationship substantially supports
the conclusion that Humberto’s remark to his wife was another empty threat which,
although frustrating and annoying, was not sufficiently provocative to lead a reasonable
person in Sanchez’s position to act rashly or without deliberation. Testimony by several
family members, including Sanchez himself, shows that Humberto’s desire to force
Sanchez out of the house was well known and long standing and that this was not the first
time that Humberto had made this threat. From this and other evidence in this record, the
jury could reasonably have concluded that Humberto’s threat to kick Sanchez out of the
house was not legally sufficient provocation to vitiate other substantial evidence that
Sanchez committed this crime with malice aforethought.
       Similarly, there is substantial evidence that Humberto’s proposition to give Anna
money in exchange for sex would not have provoked a reasonable person to act rashly or
without deliberation. That evidence showed, among other things, that Sanchez had been
aware of Humberto’s overture for some time and, if he did not expressly approve, he
implicitly condoned Anna’s tactical decision to encourage Humberto in order to gain
financial support. In either event, the undisputed evidence established that Sanchez knew


                                             17
that Humberto continued to give Anna money even though she did not have sex with him
and never intended to.
       Alternatively, even if the jury had found that Humberto’s conduct was objectively
provocative, it could reasonably have concluded that Sanchez was not subjectively acting
under a heat of passion when he killed Humberto on September 14, 2010. Indeed, the
substantial evidence of both express and implied malice is inconsistent with a finding that
Sanchez was actually overcome by the heat of passion when the fatal event occurred.
Not only were all of Sanchez’s problems with Humberto’s behavior long-standing, but
Sanchez had threatened to kill Humberto in the past, and he had warned both his mother
and Anna of his intention to kill Humberto. This evidence was inconsistent with the
defense theory that Humberto’s final threat to change the locks made Sanchez “snap” and
act rashly without thought or reason.
       Nor was the jury required to credit Sanchez’s self-serving testimony that his
passion was inflamed when Humberto refused to talk with him and treated him
disrespectfully just minutes before the fatal shooting. Indeed, that testimony was
contradicted by Raygoza’s testimony that Humberto did not even go into the house when
he came home from work on the day Sanchez killed him. Even if that interaction did
occur prior to the shooting, the evidence about what Sanchez did next was consistent with
the conclusion that he was not subjectively acting under a heat of passion. Sanchez went
and retrieved a gun which he had left hidden in a bedroom closet for several months. He
had or found bullets to load the gun. He then went and found Humberto, who was neither
armed nor looking for a fight. Then, he shot Humberto more than once with a gun that
was not easy to fire. And, finally, he fired a third shot as Humberto tried to run away.
From this evidence, and the other evidence of malice aforethought summarized above,
the jury could have concluded that, when Sanchez killed Humberto, he acted with
intention, out of hatred, anger and perhaps even frustration, but not because he was
provoked to act rashly or without reason.
       On appeal, Sanchez suggests that Humberto’s attempt to have sex with Anna was
legally sufficient provocation because that conduct was the impetus for the argument a


                                            18
few days before the shooting. The record shows that Humberto’s sexual misbehavior did
come up during that argument. However, the revelation about that allegedly provocative
conduct was not made to Sanchez; it was made by him, in an apparent effort to impassion
Juanita and gain her support in Sanchez’s ongoing feud with Humberto.
       Sanchez also zeros in on the conversation he had with Juanita on the day he shot
Humberto. He characterizes Juanita’s revelation that Humberto was going to change the
locks as the final provocative act that essentially caused him to snap and to act rashly and
without reason. To support this theory, Sanchez emphasizes that no more than two hours
passed between the time of his conversation with Juanita and the time he killed
Humberto. Sanchez also maintains that evidence of his allegedly irrational behavior
during and after the shooting compels the conclusion that he acted without reason or
judgment. For example, he shot Humberto in front of a witness, he stood over
Humberto’s body and yelled “fuck you,” and he was still extremely angry and agitated
when the police arrived.
       As explained above, provocation can occur over a period time. (Wharton, supra,
53 Cal.3d at p. 569.) However, this rule does not affect the weight of the evidence
establishing that the conduct which Sanchez would characterize as provocative was
actually part of a two-sided, ongoing family feud. For the reasons we have already
explained, the jury was not required to accept Sanchez’s claim that Humberto’s past
conduct was provocation or that it caused Sanchez to snap during his conversation with
Juanita. Furthermore, we reject Sanchez’s assumption that his behavior during and
immediately following the shooting could only be interpreted one way, as proof that he
acted without thought or reason. Indeed, the jury’s perceptions of that conduct could well
have been colored by the credibility determinations it made about Sanchez and Anna.
       At best, Sanchez’s characterization of the events that unfolded on the day he shot
Humberto is an alternative interpretation of the trial evidence. But the question on appeal
is not whether the jury could have found that Sanchez killed in the heat of passion.
Rather, Sanchez’s claim of error is that the jury’s actual finding that Sanchez killed with



                                             19
malice aforethought is not supported by substantial evidence. For all of the reasons
discussed above, we reject that claim.
B.     The Pinpoint Heat of Passion Instruction
       Sanchez contends the trial court erred by denying his request for a special
instruction which pinpointed his defense theory that he committed this crime under a heat
of passion.
       1.     Background
       The jury received separate instructions regarding the crimes of murder with malice
aforethought, first degree murder, and voluntary manslaughter. With regard to the
murder crimes, the jury received an instruction regarding the elements necessary to prove
either first or second degree murder and a separate instruction regarding the additional
elements necessary to prove first degree murder, i.e., that the murder was willful,
deliberate and premeditated.
       The trial court then used CALCRIM No. 570 to instruct the jury regarding the
crime of voluntary manslaughter as a lesser included offense of the charged murder.
Pursuant to that pattern instruction, which is based on the heat of passion theory of
manslaughter, the jury was instructed 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:
         “1. The defendant was provoked; [¶] 2. As a result of the provocation, the
defendant acted rashly and under the influence of intense emotion that obscured
(his/her) reasoning or judgment; [¶] AND [¶] 3. The provocation would have
caused a person of average disposition to act rashly and without due deliberation,
that is, from passion rather than from judgment.
         “Heat of passion does not require anger, rage, or any specific emotion. It
can be any violent or intense emotion that causes a person to act without due
deliberation and reflection.


                                             20
          “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. 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.
          “If enough time passed between the provocation and the killing for a
person of average disposition to ‘cool off’ and regain his or her clear reasoning
and judgment, then the killing is not reduced to voluntary manslaughter on this
basis.
          “The People have the burden of proving beyond a reasonable doubt that
the defendant did not kill as the 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.”
         The jury also received the following special instruction regarding the role of
provocation in determining whether Sanchez committed first degree murder, second
degree murder, or manslaughter: “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 that the defendant
committed a 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.”
         However, the trial court denied a defense request to instruct the jury with the
following special instruction: “In considering whether the provocation caused the
defendant, Luiz Rick Sanchez, to act in the heat of passion, it is not necessary for you to


                                              21
decide if the provocation would have caused the average person to have been provoked to
kill, just to act rashly and without deliberation.”
       2.     Analysis
       Sanchez contends he was entitled to this special instruction because it was an
accurate statement of the law which pinpointed his defense theory that “a reasonable
person in Sanchez’s position would have been provoked to act rashly, though not
necessarily to kill, and that therefore the killing was voluntary manslaughter, not
murder.”
       As a general rule, the “ ‘ “defendant has a right to an instruction that pinpoints the
theory of the defense . . . .” ’ [Citation.] The court may, however, ‘properly refuse an
instruction offered by the defendant if it incorrectly states the law, is argumentative,
duplicative, or potentially confusing [citation], or if it is not supported by substantial
evidence [citation].’ [Citation.]” (People v. Burney (2009) 47 Cal.4th 203, 246; see also
People v. Moon (2005) 37 Cal.4th 1, 30.)
       In the present case, the trial court refused to give Sanchez’s special instruction
because it was potentially confusing and because CALCRIM No. 570 accurately and
adequately instructed the jury regarding the standard of provocation sufficient to reduce a
murder to manslaughter. On appeal, Sanchez does not challenge the accuracy of any
language in CALCRIM No. 570. Instead, he argues this instruction is incomplete and/or
misleading because it does not expressly instruct that the jury is not required to find that a
reasonable person in the defendant’s position would have been provoked to kill. We
strongly disagree with this contention which is not supported by any relevant authority.
Indeed, this claim is inconsistent with our Supreme Court’s recent holding in Beltran,
supra, 56 Cal.4th 935, a case upon which Sanchez mistakenly relies in his reply brief.
       In Beltran, supra, 56 Cal.4th 935, the defendant was convicted of second degree
murder for the stabbing death of his former girlfriend, the jury having rejected his
defense that he killed in the heat of passion. On appeal, he argued that the trial court
erroneously instructed the jury regarding the standard of provocation necessary to reduce
murder to manslaughter by using a 2006 version of CALCRIM No. 570 which stated, in


                                              22
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. 954.) The defendant argued this
instruction was misleading because it encouraged the jury to question whether “an
average person would react physically and kill,” when the only relevant question was
whether an average person would react “mentally, experiencing obscured reason
precluding the formation of malice.” (Id. at p. 945.)
        The Court of Appeal agreed with the Beltran defendant and reversed the
judgment. (Beltran, supra, 56 Cal.4th at p. 945.) It found that the language in
CALCRIM No. 570 quoted above was ambiguous because it “ ‘did not expressly limit
the juror’s focus to whether the provocation would have caused an average person to act
out of passion rather than judgment’ ” and because it allowed or maybe even encouraged
“jurors to consider whether the provocation would cause an average person to do what
the defendant did; i.e., commit a homicide.” (Id. at p. 954.)
        The People sought review of the appellate court’s decision in Beltran, supra, 56
Cal.4th at page 946, arguing there was no reversible instructional error. The People also
took the position that the 2006 version of CALCRIM No. 570 did not actually go far
enough, and that “the proper standard for assessing the adequacy of provocation is
whether an ordinary person of average disposition would be moved to kill.” (Id. at p.
946.)
        The Beltran court granted review in order to “clarify what kind of provocation will
suffice to constitute heat of passion and reduce a murder to manslaughter.” (Beltran,
supra, 56 Cal.4th at p. 938.) To answer that question, the court reaffirmed an almost
100-year-old test for assessing provocation in this context: “[W]hen examining heat of
passion in the context of manslaughter, the fundamental ‘inquiry is whether or not the
defendant’s reason was, at the time of his act, so disturbed or obscured by some
passion . . . to such an extent as would render ordinary men of average disposition liable
to act rashly or without due deliberation and reflection, and from this passion rather than



                                            23
from judgment.’ [Citation.]” (Id. at pp. 938-939, quoting People v. Logan (1917) 175
Cal. 45, 49.)
        The Beltran court then rejected the People’s theory that provocation requires a
finding “not only that an ordinary person of average disposition would be liable to act
rashly and without reflection, but that such a person would act rashly in a particular
manner, namely, by killing.” (Beltran, supra, 56 Cal.4th at p. 942.) The court reasoned
that a test that asks whether the 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 the 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.” (Id. at p.
949.)
        However, the Beltran court also disagreed with the Court of Appeal’s analysis of
the 2006 version of CALCRIM No. 570; it found that the challenged language in that
instruction was neither ambiguous nor inadequate. (Beltran, supra, 56 Cal.4th at p. 954.)
The court reasoned that “[t]elling the jury to consider how a person of average disposition
‘would react’ properly draws the jury’s attention to the objective nature of the standard
and the effect the provocation would have on such a person’s state of mind.” (Id. at p.
954.)
        On appeal, Sanchez contends that Beltran supports his claim of instructional error
because that case “reaffirm[s]” the legal principle reflected in the pinpoint instruction that
the trial court refused to give, i.e., that it is not necessary for a jury to conclude that a
reasonable person would have been provoked to kill. But this contention completely
misses the relevant point. Beltran did not hold or in any way intimate that this legal
principle is part of the standard for assessing provocation in this context. Indeed,


                                               24
Sanchez provides neither authority nor any sound reason for his contention that he was
entitled to a pinpoint instruction on a principle of law that is not part of the legal test for
assessing provocation.
       Furthermore, Sanchez conveniently overlooks the fact that Beltran, supra, 56
Cal.4th 935, undermines his claim that the current version of CALCRIM No. 570 is
either misleading or insufficient to instruct the jury regarding the proper standard of
assessing provocation when there is a question whether the defendant killed in the heat of
passion. The Beltran court approved the 2006 version of CALCRIM No. 570 because it
found that the challenged language did not mislead the jury or improperly focus the jury’s
attention on the defendant’s act rather than his state of mind. (Id. at p. 954.)
       Any lingering concern about potentially ambiguous language in the 2006 version
of CALCRIM No. 570 was resolved in 2008 when the instruction was revised in order to
clarify the standard of provocation by eliminating the language that had troubled the
appellate court panel that decided Beltran and replacing it with the following language:
“ ‘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.’ ” (Beltran, supra, 56 Cal.4th at p. 954,
fn. 14.) We reject Sanchez’s unsupported notion that this language is misleading or
incomplete.
       Finally, in our opinion, Beltran highlights a material flaw in Sanchez’s special
instruction. Beltran teaches that the “proper focus” of the provocation inquiry “is placed
on the defendant’s state of mind, not on the particular act.” (Beltran, supra, 56 Cal.4th at
p. 949.) But Sanchez’s proposed instruction focused on the conduct of the defendant
rather than his state of mind; by telling the jury that it did not have to find that an average
person in Sanchez’s position would “have been provoked to kill,” this special instruction
strayed from the proper the inquiry by diverting the jury’s attention to the act that
Sanchez committed rather than his state of mind. In other words, the special instruction
that Sanchez advocates here is the opposite side of the same flawed theory that the People
advanced in Beltran. It would have instructed the jury to focus on the conduct that the


                                               25
provocation might cause in an ordinary person by telling them that said conduct does not
have to be a killing. That is not the proper standard for assessing provocation in this
context. (Beltran, supra, 56 Cal.4th at p. 949.)
       For all these reasons, we conclude that the trial court did not err by refusing to
give the pinpoint instruction that Sanchez proposed.
C.     The Prosecutor’s Conduct
       Sanchez contends that his federal due process rights were violated during closing
arguments to the jury because the prosecutor committed prejudicial misconduct by (1)
misstating the legal test for determining whether a defendant killed in the heat of passion,
and (2) shifting the burden of proving voluntary manslaughter onto the defense.
       1.     Legal Principles
       “ ‘[I]t is improper for the prosecutor to misstate the law generally [citation], and
particularly to attempt to absolve the prosecution from its prima facie obligation to
overcome reasonable doubt on all elements. [Citation.]’ [Citation.]” (People v. Hill
(1998) 17 Cal.4th 800, 829-830.)
       “A prosecutor’s conduct violates the Fourteenth Amendment to the federal
Constitution when it infects the trial with such unfairness as to make the conviction a
denial of due process. Conduct by a prosecutor that does not render a criminal trial
fundamentally unfair is prosecutorial misconduct under state law only if it involves the
use of deceptive or reprehensible methods to attempt to persuade either the trial court or
the jury.” (People v. Morales (2001) 25 Cal.4th 34, 44; see also People v. Farnam
(2002) 28 Cal.4th 107, 167; People v. Wilson (2005) 36 Cal.4th 309, 337.)
       “ ‘To prevail on a claim of prosecutorial misconduct based on remarks to the jury,
the defendant must show a reasonable likelihood the jury understood or applied the
complained-of comments in an improper or erroneous manner.’ [Citation.] ‘Prosecutors
have wide latitude to discuss and draw inferences from the evidence at trial. [Citation.]
Whether the inferences the prosecutor draws are reasonable is for the jury to decide.
[Citation.]’ [Citation.] In order to preserve an appellate claim of prosecutorial
misconduct, a defendant must make a timely objection at trial and request an admonition;


                                             26
otherwise, a claim is reviewable only if an admonition would not have cured the harm
caused by the misconduct. [Citation.]” (Wilson, supra, 36 Cal.4th at p. 337.)
       2.     Analysis
       In the present case, Sanchez’s trial counsel did not object to the prosecutor’s
allegedly improper comments. Absent evidence or even a contention that an admonition
would not have cured the perceived harm, Sanchez forfeits his claim of prosecutor
misconduct. (Wilson, supra, 36 Cal.4th at p. 337.) Furthermore, even if this claim of
error was properly before us, we would reject it.6
       Sanchez first contends that the prosecutor misstated the legal test for determining
whether a defendant acted in the heat of passion by telling the jury that the question
whether Sanchez committed murder or manslaughter depended on whether he acted
reasonably by killing Humberto. To support this claim, Sanchez strings together isolated
statements from different parts of the prosecutor’s lengthy summation. After considering
the challenged remarks in the context of the arguments the prosecutor made, we conclude
that it is not reasonably likely that the jury construed the prosecutor’s comments in an
improper or inappropriate manner. (Wilson, supra, 36 Cal.4th at p. 337.)
       To be sure, the prosecutor characterized Sanchez’s decisions and conduct as
unreasonable. However, he did not argue or intimate that the test for determining
whether a person kills in the heat of passion requires the jury to find that Sanchez acted
reasonably by killing Humberto. To the contrary, while arguing that there was a dearth
of evidence that Sanchez committed a voluntary manslaughter, the prosecutor correctly
recounted the three requirements for finding a heat of passion killing: that the defendant
was provoked; that the defendant acted under that provocation; and that “this provocation
has to be such that it would have caused the person of average disposition to act rashly
without deliberation; that is, from passion rather than judgment.”



       6
          Thus, we need not consider Sanchez’s related theory that his trial counsel’s
failure to lodge objections to the prosecutor’s comments constituted ineffective assistance
of counsel.


                                             27
       Any lingering danger that the jury might have misinterpreted or been misled by
the prosecutor’s comments was eliminated by the jury instructions the court gave in this
case. We presume that the jury followed those instructions. (People v. Boyette (2002) 29
Cal.4th 381, 436.) We also presume that the “ ‘the jury treated the court’s instructions as
statements of law, and the prosecutor’s comments as words spoken by an advocate in an
attempt to persuade.’ ” (People v. Seaton (2001) 26 Cal.4th 598, 646; see also People v.
Samayoa (1997) 15 Cal.4th 795, 844.)
       Here, as discussed above, the jury was instructed with CALCRIM No. 570, which
reinforced the prosecutor’s correct recitation of the test for determining whether a killing
which might otherwise be murder was manslaughter because the defendant acted under
the heat of passion. Furthermore, the jury was also instructed with CALCRIM No. 222,
which told them that “[n]othing that the attorneys say is evidence.” This instruction
further reduced the likelihood that the jury would misconstrue the prosecutor’s statements
about the unreasonable nature of Sanchez’s conduct.
       Sanchez’s second argument is that the prosecutor shifted the burden of proving
voluntary manslaughter onto Sanchez by telling the jury that the law sets up “a lot of
barriers” and “demands” before a jury can find that a defendant committed this offense.
       The theme of the prosecutor’s closing argument was that Sanchez killed Humberto
out of hatred and anger but that he did not kill under a heat of passion. In pursuing that
theory, the prosecutor argued that the evidence did not establish the elements of heat of
passion voluntary manslaughter. However, the prosecutor never argued that the
defendant had the burden of proof with respect to this or any other matter. The jury was
repeatedly instructed about the prosecutor’s burden of proof in this case, including its
burden of proving beyond a reasonable doubt that the defendant “did not kill as the result
of a sudden quarrel or in the heat of passion.” As noted above, we presume on appeal
that the jury followed these instructions. (People v. Boyette, supra, 29 Cal.4th at p. 436.)
Thus, we are not persuaded there was a reasonable likelihood that the jury interpreted the
prosecutor’s comments as imposing any burden of proof on the defendant in this case.



                                             28
       For all of these reasons, we reject Sanchez’s contention that the prosecutor
committed prejudicial misconduct during closing argument.
D.     Sentencing Error
       Sanchez’s final claim of error is that he was denied credit toward his sentence for
the 597 days he was in custody prior to sentencing.
       The trial court denied Sanchez’s request for custody credit pursuant to section
2933.2, which states, in subdivision (a): “Notwithstanding Section 2933.1 or any other
law, any person who is convicted of murder, as defined in Section 187, shall not accrue
any credit, as specified in Section 2933 or Section 2933.05.”
       Although section 2933.2 does preclude Sanchez from obtaining conduct-based
presentence custody credits, he is nevertheless entitled to actual custody credit for “all
days of custody,” including partial days. (§ 2900.5, subd. (a); People v. Herrera (2001)
88 Cal.App.4th 1353, 1365-1366.) In light of this authority, the People concede that
Sanchez is entitled to presentence credit for actual days spent in custody and that the
number of credits Sanchez accrued amounted to 597 days. Therefore, we will order that
the abstract of judgment be corrected to reflect this credit.
                                    IV. DISPOSITION
       The judgment is affirmed. This case is remanded to the trial court with directions
to (1) prepare a corrected abstract of judgment awarding Sanchez his presentence custody
credits (§ 2900.5), and (2) forward a certified copy of the amended abstract of judgment
to the Department of Corrections.




                                              29
                                              _________________________
                                              Haerle, Acting P.J.


We concur:


_________________________
Richman, J.


_________________________
Brick, J.*




      * Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.




                                         30
