Filed 12/7/15 P. v. Herrera CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                          B256122

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. VA130156)
         v.

JOSE FRANCISCO HERRERA,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Lori Ann
Fournier, Judge. Affirmed.
         Ann Krausz, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr.,
Supervising Deputy Attorney General, and Daniel C. Chang, Deputy Attorney General,
for Plaintiff and Respondent.


                            _______________________________________
       Jose Francisco Herrera appeals from the judgment entered following a jury trial in
which he was convicted of two counts of attempted murder, one count of attempted
voluntary manslaughter, and three counts of assault with a deadly weapon. Appellant
contends the conviction must be reversed because the prosecutor committed prejudicial
misconduct by misleading the jury regarding the provocation required to establish
voluntary manslaughter. Appellant also contends that he was deprived of his
constitutional right to effective assistance of counsel because defense counsel failed to
object to the prosecutor’s misstatements regarding provocation.
       We find appellant forfeited his claim of prosecutorial misconduct and he was not
deprived of his constitutional right to effective assistance of counsel. We therefore affirm
the judgment.
                            PROCEDURAL BACKGROUND
       Appellant was charged with three counts of attempted murder1 in violation of
Penal Code sections 664/187, and three counts of assault with a deadly weapon in
violation of section 245, subdivision (a)(1).2 With respect to the first three counts, the
information alleged pursuant to section 12022, subdivision (b)(1) that appellant
personally used a knife, and as to all counts that he inflicted great bodily injury pursuant
to section 12022.7.
       The jury acquitted appellant on the attempted murder charge in count 2, but
convicted him of the lesser included offense of attempted voluntary manslaughter in
violation of sections 664/192, subdivision (a). The jury found appellant guilty as charged
on the remaining counts, and found all knife and great bodily injury allegations true.
       The court sentenced appellant to an aggregate term of 19 years in state prison.




       1Count 1 charged appellant with attempted murder of Mary Linn, count 2 with
attempted murder of Louis Linn, and count 3 with attempted murder of Joseph Guerrero.
       2   Undesignated statutory references are to the Penal Code.


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                             FACTUAL BACKGROUND
      Approximately 10:30 p.m. on May 5, 2013, Mary Linn,3 her fiancé Joseph
Guerrero, Mary’s stepmother Nanette Renee Souza-Linn (Renee), and Mary’s father
Louis Linn went to the Iguana Bar on Rosemead Boulevard in Pico Rivera. Later in the
evening, Guerrero was not feeling well, so Mary and Guerrero stepped outside to the
parking lot. Mary was leaning against the back of a car smoking a cigarette when a group
of five to six people approached Mary and Guerrero. A fight broke out between Mary
and a woman from the group, and they both fell to the ground. Not long after Mary got
back on her feet, a male punched her in the stomach area. She later realized that she had
been stabbed. Guerrero joined the fight and found himself exchanging blows with the
bar’s security guard, Cesar Abbott. While he was fighting Abbott, Guerrero was attacked
by another person whom he could not identify. He then realized that he had been stabbed
in the stomach, hip, and back.
      Louis and Renee stepped out of the bar into the parking lot and heard a scream.
They saw several people on top of Mary, who was on the ground. Louis started hitting
and pulling people off Mary. He then found himself fighting with two men, one of whom
was appellant, who he had seen attacking Mary. Both men ran away after Louis hit them,
but appellant returned and punched Louis in his midsection three to five times. Louis
realized he had been stabbed when he discovered that he was bleeding. During the melee
in the parking lot, Renee saw appellant throwing punches at Guerrero while Guerrero was
engaged in a fight with another man. Renee also witnessed appellant strike Mary twice
with a jabbing motion to her side and stomach.
      Abbott witnessed appellant’s attack on Louis, Guerrero, and Mary. He saw
appellant punch Louis several times in the stomach, and then observed appellant attack
Guerrero, giving him uppercuts to the stomach. Abbott also saw appellant strike Mary
with an upward motion.

      3 References to individuals are by surname unless other individuals involved in the
case share the same surname.


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                                       DISCUSSION
       Appellant contends that the prosecutor committed prejudicial misconduct by
repeatedly misstating the legal standard of provocation during closing argument. As a
result, the jury convicted appellant of attempted murder as charged in counts 1 and 3, and
acquitted appellant of attempted murder and convicted him of attempted voluntary
manslaughter only on count 2. Because defense counsel failed to object to the
prosecutor’s misstatements regarding provocation, appellant further claims that he was
deprived of his constitutional right to effective assistance of counsel.
1.     Relevant Background
       The trial court instructed the jury on attempted voluntary manslaughter based on
heat of passion4 and imperfect self-defense.


       4   The court instructed the jury with CALCRIM No. 603 (attempted voluntary
manslaughter: heat of passion): “An attempted killing that would otherwise be
attempted murder is reduced to attempted voluntary manslaughter if the defendant
attempted to kill someone because of a sudden quarrel or in a heat of passion. [¶] The
defendant attempted to kill someone because of a sudden quarrel or in the heat of passion
if: [¶] 1. The defendant took at least one direct but ineffective step toward killing a
person; [¶] 2. The defendant intended to kill that person; [¶] 3. The defendant attempted
the killing because he was provoked; [¶] 4. The provocation would have caused a person
of average disposition to act rashly and without due deliberation, that is, from passion
rather than judgment [italics added]; [¶] 5. The attempted killing was a rash act done
under the influence of intense emotions that obscured the defendant’s reasoning or
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. [¶] For sudden quarrel or heat of passion to reduce an attempted murder to
attempted voluntary manslaughter, the defendant must have acted under the direct and
immediate influence of provocation as I have defined it. While no specific type of
provocation is required, slight or remote provocation is not sufficient. Sufficient
provocation may occur over a short or long period of time. [¶] It is not enough that the
defendant simply was provoked. The defendant is not allowed to set up his own standard
of conduct. You must decide whether the defendant was provoked and whether the
provocation was sufficient. In deciding whether the provocation was sufficient, consider
whether a person of average disposition, in the same situation and knowing the same
facts, would have reacted from passion rather than judgment. [¶] The People have the
burden of proving beyond a reasonable doubt that the defendant attempted to kill


                                               4
       In closing argument the prosecutor urged the jury to reject the heat of passion
defense and find appellant guilty of attempted murder on all three counts. With respect to
the provocation necessary to establish the defense of heat of passion, the prosecutor made
the following remarks.
       “You may consider the fact that there was a fight, you may consider the fact that
there might have been provocation by the person who was attacked or under attack, but
you also have to ask yourself at the time that [appellant] stabbed these individuals, was
[appellant] acting under the direct influence of the provocation, and would a reasonable
person have done what [appellant] did?” (Italics added.)
       “Very important. Would a reasonable person have done what [appellant] did that
night to these three people? And the answer to that is a resounding no. No reasonable
person would have done this. And in considering whether or not you want to reduce the
crime of attempted murder to the crime of attempted voluntary manslaughter, you need to
go through the entire sequence of events that occurred that night.” (Italics added.)
       “And then [appellant] delivered a blow. After [Guerrero] was on the ground,
[appellant] went and stabbed him. Now, would a reasonable person have done that?
Absolutely not. You get mad, so you come back with a knife and stab everybody who
you think is in the family that was involved? No reasonable person would have done
what [appellant] did.” (Italics added.)
       “And then from there [appellant] runs to Louis. . . . [¶] [Appellant] introduced a
weapon. [Appellant] charged him. [Appellant] was far enough away from Louis where
Louis was not a danger to him. [Appellant] charged him. Clearly he was angry. [¶]
Would a reasonable person have done that? Absolutely not. [¶] And then there is
Mary. . . . [¶] [Appellant] runs around the tree, and while [Abbott’s] back is to him, he




someone and was not acting as a result of sudden quarrel or in the heat of passion. If the
People have not met this burden, you must find the defendant not guilty of attempted
murder.”


                                             5
then stabs Mary. What reasonable person would have done that? What man would have
done that?” (Italics added.)
       Defense counsel neither objected nor requested an admonition regarding the
prosecutor’s remarks about provocation. Instead, appellant argued that his only crime
was simple assault, or alternatively that the offense should be reduced to attempted
voluntary manslaughter based on imperfect self-defense. The defense made no argument
concerning heat of passion or the provocation required to establish the defense.
2.     Appellant’s Claim of Prosecutorial Misconduct Has Been Forfeited
       In order to preserve a misconduct claim for review on appeal, “‘a defendant must
make a timely and specific objection and ask the trial court to admonish the jury to
disregard the improper arguments.’” (People v. Linton (2013) 56 Cal.4th 1146, 1205;
People v. Thomas (2012) 54 Cal.4th 908, 937.) Unless a defendant can demonstrate that
an objection would have been futile or an admonition would not have cured the error,
even the assertion of ineffective assistance of counsel will not automatically transform a
forfeited claim into one that is cognizable on appeal. (People v. Thompson (2010)
49 Cal.4th 79, 121, fn. 14.)
       The underlying purpose of this requirement is to “‘“encourage a defendant to bring
errors to the attention of the trial court, so that they may be corrected or avoided and a
fair trial had . . . .”’ [Citation.]” (People v. Saunders (1993) 5 Cal.4th 580, 590.) “The
objection requirement is necessary in criminal cases because a ‘contrary rule would
deprive the People of the opportunity to cure the defect at trial and would “permit the
defendant to gamble on an acquittal at his trial secure in the knowledge that a conviction
would be reversed on appeal.”’ [Citation.]” (People v. Partida (2005) 37 Cal.4th 428,
434.) Indeed, it would be “‘“unfair to the trial judge and to the adverse party to take
advantage of an error on appeal when it could easily have been corrected at the trial.”’
[Citation.]” (People v. Saunders, supra, 5 Cal.4th at p. 590.)
       Here, appellant acknowledges the absence of any objection or request for a
curative admonition at trial concerning the prosecutor’s misstatements regarding
provocation. Further, appellant does not claim that an objection would have been futile

                                              6
or that an admonition would not have cured any harm. Accordingly, we deem appellant’s
claim of prosecutorial misconduct forfeited.
3.     Appellant’s Claim of Ineffective Assistance of Counsel Fails Because the
       Prosecutor’s Misstatements Regarding Provocation Were Not Prejudicial
       Appellant seeks to avoid forfeiture of his claim by asserting that his defense
counsel’s failure to object to the prosecutor’s misstatements regarding provocation
deprived him of effective assistance of counsel as guaranteed by the Sixth Amendment to
the United States Constitution. (See McMann v. Richardson (1970) 397 U.S. 759, 771,
fn. 14 [90 S.Ct. 1441].)
       “‘“[T]o demonstrate ineffective assistance of counsel, a defendant must first show
counsel’s performance was ‘deficient’ because his ‘representation fell below an objective
standard of reasonableness . . . under prevailing professional norms.’ [Citations.]
Second, he must also show prejudice flowing from counsel’s performance or lack
thereof.”’ [Citation.]” (People v. Mitchell (2008) 164 Cal.App.4th 442, 466–467.)
“Prejudice means a ‘reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.’ [Citation.] A reasonable
probability means a ‘probability sufficient to undermine confidence in the outcome.’
[Citation.]” (People v. Najera (2006) 138 Cal.App.4th 212, 225.) Thus, to prevail
appellant must show both that the prosecutor committed misconduct and that he was
prejudiced by such misconduct.
       Because we find the prosecutor’s misstatements regarding provocation were
harmless, and do not require reversal, appellant cannot meet his burden of showing a
reasonable probability of a different outcome had defense counsel made a timely
objection. We therefore reject appellant’s claim of ineffective assistance of counsel.
       In People v. Beltran (2013) 56 Cal.4th 935 (Beltran), our Supreme Court
explained the legal standard of provocation, holding that to adopt “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

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an emotion so intense that an ordinary person would simply react, without reflection. . . .
[P]rovocation is not evaluated by whether the average person would act in a certain way:
to kill. Instead, the question is whether the average person would react in a certain way:
with his reason and judgment obscured.” (Beltran, at p. 949.)
       Here, the prosecutor incorrectly informed the jury that provocation is sufficient to
reduce a murder to manslaughter only if a reasonable person would have done what the
defendant did. Although the prosecutor’s remarks clearly misstated the legal standard
regarding provocation under Beltran,5 we nevertheless find that the statements do not
require reversal in this case.
       A prosecutor’s misconduct constitutes a federal constitutional violation “‘“‘when
it comprises a pattern of conduct “so egregious that it infects the trial with such
unfairness as to make the conviction a denial of due process.”’”’ [Citations.]” (Hill,
supra, 17 Cal.4th at p. 819; People v. Thomas, supra, 54 Cal.4th at p. 937.) Conduct by a
prosecutor is 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.”
[Citation.]’” (People v. Linton, supra, 56 Cal.4th at p. 1205; People v. Gonzales and
Soliz, supra, 52 Cal.4th at p. 305; Hill, supra, 17 Cal.4th at p. 819.) In this regard, “What
is crucial to a claim of prosecutorial misconduct is not the good faith vel non of the
prosecutor, but the potential injury to the defendant. [Citation.] When . . . the claim
focuses on comments made by the prosecutor before the jury, a court must determine at
the threshold how the remarks would, or could, have been understood by a reasonable


       5  Arguing that the prosecutor’s remarks did not rise to the level of a “deceptive or
reprehensible method of argument” that would constitute prosecutorial misconduct
(People v. Linton, supra, 56 Cal.4th at p. 1205; People v. Gonzales and Soliz (2011)
52 Cal.4th 254, 305; People v. Hill (1998) 17 Cal.4th 800, 819 (Hill)), respondent asserts
that “[t]he prosecutor’s remarks are not without support in the law.” To the extent
respondent’s position is that adequate provocation for voluntary manslaughter requires a
finding that an ordinary person of average disposition would kill, the argument was
rejected by our Supreme Court in Beltran. (See Beltran, supra, 56 Cal.4th at pp. 951–
952 & fn. 10.)


                                              8
juror. [Citations.]” (People v. Benson (1990) 52 Cal.3d 754, 793.) The standard is an
objective one. (People v. Berryman (1993) 6 Cal.4th 1048, 1072.) To determine whether
there is prosecutorial misconduct under state law, “‘“the question is whether there is a
reasonable likelihood that the jury construed or applied any of the complained-of remarks
in an objectionable fashion.”’ [Citation.]” (People v. Linton, supra, 56 Cal.4th at p.
1205; People v. Morales (2001) 25 Cal.4th 34, 44.)
       In Hill, the prosecutor engaged in a pattern of conduct which included misstating
the facts relating to the evidence and witnesses’ testimony, misstating the law, making
improper references to alleged facts outside the record, and threatening to charge a
witness with perjury if the witness testified for the defense. The court found the
prosecutor’s conduct to be so egregious that it violated the defendant’s due process rights
under the United States Constitution and thereby amounted to prosecutorial misconduct
requiring reversal.
       No such pattern appears in the instant case, and, unlike Hill, here the prosecutor’s
misstatements of the legal standard regarding provocation were not so egregious as to
amount to a denial of due process. (People v. Thomas, supra, 54 Cal.4th at p. 937.) As
the Supreme Court has explained, “‘it is not enough that the prosecutor’s remarks were
undesirable or even universally condemned.’ [Citation.] The relevant question is
whether the prosecutor’s comments ‘so infected the trial with unfairness as to make the
resulting conviction a denial of due process.’ [Citation.]” (Darden v. Wainwright (1986)
477 U.S. 168, 181 [106 S.Ct. 2464].)
       The prosecutor’s misstatements regarding provocation would also not require
reversal under state law because there appears no reasonable likelihood that the jury
relied on the prosecutor’s remarks to appellant’s detriment. The trial court not only
instructed the jury on the correct legal standard of provocation by giving CALCRIM No.
603, it also instructed the jury: “You must follow the law as I explain it to you, even if
you disagree with it. If you believe that the attorneys’ comments on the law conflict with
my instructions, you must follow my instructions. [¶] Pay careful attention to all of these
instructions and consider them together”; “Nothing that the attorneys say is evidence”;

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and, “In their opening statements and closing statements, the attorneys discuss the case,
but their remarks are not evidence.”
       In the absence of any evidence of confusion on the part of the jury, “[j]urors are
presumed able to understand and correlate instructions and are further presumed to have
followed the court’s instructions.” (People v. Sanchez (2001) 26 Cal.4th 834, 852;
People v. Williams (2002) 170 Cal.App.4th 587, 635.) This presumption is the “‘crucial
assumption underlying our constitutional system of trial by jury.’ [Citations.]” (People
v. Yeoman (2003) 31 Cal.4th 93, 139.)
       There was no indication in this case that the jury was confused or failed to follow
the trial court’s instructions. To the contrary, the jury’s verdict on count 2—acquitting
appellant on the charge of attempted murder and convicting him on the lesser included
offense of attempted voluntary manslaughter—reveals a nuanced understanding of the
instructions and careful application of the law to the facts of the case. (See People v.
Lewis (2001) 26 Cal.4th 334, 390.) We therefore find the prosecutor’s misstatements
regarding provocation resulted in no prejudice to appellant, and thus do not require
reversal.
       Because appellant cannot meet his burden of showing a reasonable probability that
he would have obtained a better result had defense counsel made a timely objection to the
prosecutor’s remarks, his claim of ineffective assistance of counsel fails.
                                       DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED.


                                                  LUI, J.
We concur:


       ROTHSCHILD, P. J.


       CHANEY, J.

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