Filed 8/22/16 P. v. Harris CA3
Opinion following order vacating prior opinion
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                      (El Dorado)
                                                            ----




THE PEOPLE,                                                                                  C079470

                   Plaintiff and Respondent,                                  (Super. Ct. Nos. P13CRF0031,
                                                                                      P13CRF0343)
         v.

COLLEEN ANN HARRIS,

                   Defendant and Appellant.




         Seventy-one-year-old Colleen Ann Harris (defendant) shot dead her sleeping
seventy-three-year-old husband Robert Harris (Harris), after she stewed for months about
an affair he was having with a 35-year-old woman who lived in Mongolia. Over 20 years
before shooting Harris, defendant had also shot dead her then-husband, but she was
acquitted of murdering him after the jury heard that defendant killed him after
confronting him about molesting her daughter. This prior-act evidence (which included
her defense) was introduced to prove that Harris’s shooting here was deliberate and


                                                             1
premeditated and was not an accident. Her defense to Harris’s death was accident
(without specifying who pulled the trigger). Regarding her defense of accident,
defendant testified she and Harris were wrestling in the bedroom, he had a gun, she
blacked out, and when she came to, Harris was dead. A jury found defendant guilty of
the first degree murder of Harris.
       On appeal, defendant contends the court erred in admitting evidence of the prior
shooting, trial counsel was ineffective in his examination of witnesses, and the prosecutor
committed misconduct during closing arguments. Disagreeing, we affirm.
                   FACTUAL AND PROCEDURAL BACKGROUND
                                             A
                                     Shooting Of Harris
       At 6:05 p.m. on January 6, 2013, attorney David Weiner (trial counsel) called 911
to report there had been a homicide on Wilderness Court in Placerville. Trial counsel
knew about Harris’s death because defendant had called him to report it, and trial counsel
had just met with defendant in his car outside the Placerville house, and the two talked in
person, while defendant “felt like [she] was in a fog.”1
       When sheriff deputies came to the Placerville house, they saw defendant climb
onto a countertop and put something on top of the kitchen cabinet. That something
turned out to be a manila envelope with checkbooks inside. They then saw defendant
come out of the house. When police asked her what was going on, she initially said, “I
can’t talk about it,” but she eventually said that her husband was dead inside the house,
he had been shot, and she had covered him with a blanket.



1     Defendant later told police that she did not have any particular reason to call trial
counsel that day and that she just called him every so often to find out how he and his
kids were doing. As to being in a fog, defendant testified at trial that she met with her
psychologist, Dr. Norman Tressor, for a total of 25 hours to help her remember exactly
what happened on the night Harris was shot.

                                             2
       Sheriff’s deputies went inside the house. In the master bedroom, they found
Harris in bed with most of his face missing and blood, brain, and bone matter scattered
throughout the room. There was no injury to Harris’s hand or arm, so the police did not
think the gunshot was self-inflicted. There was a significant pooling of Harris’s blood in
the sleeping position in which he was found, which indicated he had been shot in his
sleep. There was a reconfigured pistol-grip style double barrel shotgun at Harris’s left
leg, a substantial distance from where his arm would have been able to reach. The
shotgun had been wiped down, so there were no fingerprints or blood on it. The areas
near Harris’s body that had blood spatter on them (the headboard and the ceiling above
Harris) also had been wiped down. There was no sign of a struggle or fight in the house.
       Defendant was taken to a hospital and also interviewed by police. She answered
the doctor’s questions coherently, did not have difficulty understanding the questions,
and did not complain about loss of memory or consciousness. Police noticed she had a
bright red abrasion on her middle finger, but she could not explain to police how she got
this injury. In the police’s opinion, defendant’s finger injury was consistent with her
having fired the shotgun. Defendant also had a bruise on the center of her chest on her
cleavage line. Based on the way this shotgun had been reconfigured, the gun could have
recoiled on the person pulling the trigger, causing bruising in the area where defendant
had been hurt.
       Prior to Harris’s death, Harris and defendant had been having marital troubles,
caused by an affair he was having with a woman he met on a Mongolian business trip.
Harris had gone to Mongolia in the summer of 2012, and defendant had learned of the
affair during that time.
       At the beginning of September 2012, defendant began texting Harris’s daughter,
Pamela Stirling, expressing surprise, sadness, and anger about the affair.
       In mid-September, Harris flew from Mongolia to Stirling’s Los Angeles house,
and then the two of them travelled up to the Placerville house together. Harris told

                                             3
Stirling he was worried about seeing defendant for the first time after she had learned of
the affair because of “the demise of her [former] husband.” He was “afraid the
defendant was going to do something horrible to him as she did to her [former] husband.
He was afraid that she was going to kill him.” Stirling did not counsel her father against
moving back in with defendant because Stirling had to “let her [father] make his own
decisions,” but “[t]he thought of him being injured never left [her] mind.” Stirling had
known about defendant killing her former husband for over 20 years.
       When Harris and Stirling arrived at the Placerville house, defendant was calm,
sad, passive, and quiet. When Harris told defendant he was planning on staying at his
Tahoe cabin, she was not pleased. Harris and Stirling left for Tahoe anyway. That
weekend, Harris began moving his property to the Tahoe cabin and changed his mailing
addresses to the Tahoe cabin as well.
       During October, Stirling and Harris continued communicating, and Stirling and
defendant did as well, although less than before. Harris told Stirling that he was going to
temporarily stay with defendant at the Placerville house to help her recover from a hip
replacement surgery she was having in mid-November.
       In November, Harris was at the Placerville house through Thanksgiving to
celebrate the holiday with defendant. Stirling, her husband, and her three children joined
on the day after Thanksgiving. Defendant told Stirling that she was frustrated that Harris
was not giving her answers about whether he wanted to stay married, whether he was
going to live permanently in Tahoe, and whether he was going to continue his affair.
       Over the Christmas holidays, defendant and Harris drove together down to
Stirling’s house in Los Angeles. Defendant was very angry with Harris because he was
not affectionate towards her and because she had found a receipt for a necklace Harris
had bought his Mongolian girlfriend. Harris told Stirling that he intended to move out of
the Placerville house back to Tahoe after the new year and had started consulting a
church counselor to help him separate from defendant.

                                             4
       The last text message Stirling received from defendant was on January 5, 2013,
the night before Harris died. In it, defendant wrote, “Your dad just called his Mongolian
love ten minutes ago.” “He still will not talk about anything that deals with he and I.” “I
sit here wondering who I am married to.” Harris and defendant had been married for
about 23 years at the time Harris was shot.
                                              B
            Defendant’s 1985 Killing Of Her Former Husband, James Batten
       Prior to defendant’s marriage to Harris, defendant was married to James (Jim)
Batten. At the time defendant and Batten met, defendant’s daughter from a prior
marriage, T. B., was about 11 years old and really liked Batten. But after the first year of
marriage, Batten began sexually molesting T. B., which quickly turned to intercourse
after defendant had a double mastectomy and Batten claimed he “needed” T. B. because
he could not have sex with defendant anymore. At one point, T. B. told defendant about
the molestation, and defendant and Batten assured her that it would not continue. But it
did, although T. B. did not tell defendant because defendant was becoming sicker with
the cancer treatment.
       When T. B. turned 18 (and two years before defendant shot Batten in July 1985),
T. B. moved out of the family home. She would come back regularly, however, to do her
laundry, and Batten would continue with his sexual advances.
       The day before defendant shot Batten, Batten tried to kiss T. B. and told her that
he and defendant were going to get a divorce, now she (T. B.) and he could “really be
together,” and he would “never leave [her] alone.” T. B. told defendant that day about
what had happened. Defendant went to see Batten. Batten held a gun to defendant’s
head and forced her to orally copulate him while telling defendant she “did not do that
nearly as well as her daughter did.” Defendant heard a click and thought that Batten had
shot her. Later, defendant called trial counsel. Afterward, she called 911 and said she
thought she shot her husband (from whom she was separated at the time) in the bedroom

                                              5
on Wilderness Way (the same Placerville house where defendant and Harris later lived).
She then backtracked to the dispatcher and said, “I don’t know if I even shot him.”
       Defendant was charged with murdering Batten, and trial counsel represented her in
that murder trial as well. Defendant was acquitted of murdering Batten.
       About 18 years after defendant shot Batten, T. B. was married to someone she
described as very controlling. T. B.’s husband did not like defendant, and he drafted a
declaration for T. B. to sign to support a temporary restraining order against defendant.
Some of the statements in the declaration were true and some were false, but T. B. signed
the declaration because she had two young children, and her then-husband was the sole
provider for her family. In the declaration T. B. wrote she was “terrified of [her] mother
because [she had] seen [her mother] pull guns on family members in the past” and that
she had “seen her mother pull a pistol on [Batten] when she was 16 years old.” She had
also seen her mother use a gun to ward off her biological father, who at the time was
beating her infant brother “pretty bad.”
                                      DISCUSSION
                                             I
  The Court Acted Within Its Discretion And Did Not Violate Defendant’s Due Process
                  Right To A Fair Trial Or Double Jeopardy Principles
         In Admitting Evidence Of Defendant’s Killing Of Her Former Husband
       Defendant contends the trial court abused its discretion and violated her due
process right to a fair trial by admitting evidence she killed her former husband. She
argues that the evidence of her former husband’s shooting “was not probative, was
inflammatory, . . . was highly prejudicial,” and the incident was remote in time.
Defendant further contends admission of this evidence was a retrial of the 1985 murder
charge and violated her right to be free of double jeopardy and violated the collateral
estoppel doctrine. We disagree on all points.



                                             6
       The court admitted evidence that defendant killed her former husband to show
intent to kill Harris, to show lack of accident or mistake, and to show she acted with
deliberation and with premeditation when killing Harris. In doing so, the court did not
abuse its discretion or violate defendant’s constitutional rights. We explain below.
       In People v. Steele (2002) 27 Cal.4th 1230 (Steele), a case similar in many
respects to this one, the trial court admitted prior-act evidence that the defendant stabbed
to death a teenage babysitter 17 years before the current murder, which was the stabbing
death of another young woman. (Id. at pp. 1238-1239, 1243-1244.) On appeal, the
defendant claimed the court erred in admitting evidence of the prior killing for many of
the same reasons urged here (i.e., intent was not an issue, the prior killing was remote,
and the prior killing was too prejudicial), but our Supreme Court disagreed. It explained
as follows: “Here, the facts of intent to kill, premeditation, and deliberation were
material. . . . The previous killing . . . had a tendency to prove these facts. . . . The
[babysitter] and [current] killings bore several similarities. Both victims suffered manual
strangulation and received a cluster of about eight stab wounds in the chest or abdomen.
The victims resembled each other somewhat. Moreover, in both cases, defendant
admitted the killing to the police shortly afterwards, but supplied an explanation. . . . [¶]
The two killings were similar enough to make the earlier one relevant to the mental state
with which defendant committed the later one.” (Id. at pp. 1243-1244.) “There is also no
rule or policy requiring exclusion. . . . [E]vidence of other crimes is inherently
prejudicial. [Citation.] But this circumstance means the court must exercise its
discretion, not that it must always exclude the evidence. Here, the [babysitter’s] killing
was highly probative of defendant’s mental state when he killed [the current victim], a
critical issue.” (Id. at p. 1245.) “Defendant [also] argues that the first killing, 17 years
before the second, was too remote to have significant probative value. . . . [G]iven the
similarities of the killings, we do not believe the time factor compelled the court to
exercise its discretion in only one way.” (Id. at p. 1245.)

                                               7
       Here, Steele’s analysis controls in many respects. Intent to kill and premeditation
and deliberation were central issues at trial because the defense was an accident. The
previous killing had a tendency in reason to prove these facts because, as the trial court
noted when admitting the evidence, there were “very significant similarities between the
two shootings.” Those similarities included that the victims were defendant’s husbands,
defendant shot them while in the bedroom during a time when they were having marital
difficulties, there was a delay in reporting the shootings, defendant called other people
prior to calling police (namely, trial counsel), and she claimed she did not remember what
had happened. There also was no policy against excluding the evidence even though the
prior killing was remote (28 years separated the two killings) and no conviction resulted
(unlike in Steele). The trial court here was careful to instruct the jurors that there was a
different standard of proof applicable to prior-act evidence and that the People had the
burden of proving by clear and convincing evidence defendant murdered her first
husband and that if they had not met their burden, the jurors must disregard the evidence
entirely.
       Finally, Steele’s analysis also controls defendant’s federal constitutional claims.
As to defendant’s claim that admission of the prior killing violated her due process right
to a fair trial, Steele holds that where evidence of a prior killing “supported the
permissible inference that the second killing was intended and premeditated,” there is no
due process violation. (Steele, supra, 27 Cal.4th at p. 1246.) As to defendant’s collateral
estoppel and double jeopardy claims, “no one is seeking to relitigate [the prior] murder.”
“This case involves solely defendant’s guilt for killing [the current victim]. Both [the
California Supreme Court] and the United States Supreme Court have held that principles
of double jeopardy, including its collateral estoppel component, permit the admission of
otherwise proper evidence of a prior crime even if the person had been entirely acquitted
of that prior crime.” (Steele, at p. 1245, fn. 2.)



                                               8
       In summary, there was no error, federal or otherwise, in admitting evidence of the
prior killing.
                                              II
 Trial Counsel Was Not Ineffective For Failing To Object To Evidence About Guns And
                 Defendant’s Dangerousness And For Referring To Defendant
                   As A “Murderess” And The Prior Killing As “Murder”
       Defendant contends her counsel was ineffective during various points of witness
examination. We take each in turn, keeping in mind the following standard. To establish
ineffective assistance of counsel, defendant bears the burden of establishing both that trial
counsel’s performance fell below an objective standard of reasonableness and, absent
trial counsel’s error, it is reasonably probable that the verdict would have been more
favorable to her. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694 [80 L.Ed.2d
674, 694, 698].) We give great deference to trial counsel’s reasonable tactical decisions
(People v. Weaver (2001) 26 Cal.4th 876, 925) and reverse “ ‘only if the record on appeal
affirmatively discloses that counsel had no rational tactical purpose for his act or
omission’ ” (People v. Frye (1998) 18 Cal.4th 894, 980).
                                             A
 Trial Counsel Was Not Deficient In Failing To Object To Relevant Evidence Regarding
   Defendant’s Use Of Guns, And Her Strategy Of Trying To Minimize That Evidence
                        During Cross-Examination Was Reasonable
       Defendant contends her trial counsel was deficient in failing to object to the
prosecutor’s cross-examination of T. B. regarding statements T. B. made about
defendant’s use of guns. The statements were made in T. B.’s 2003 declaration in
support of a temporary restraining order against defendant. Specifically, T. B. testified
that she wrote she was “terrified of [her] mother because [she had] seen her pull guns on
family members in the past” and that she had seen her mother pull a pistol on defendant’s
former husband Batten when she was 16 years old.

                                              9
       Defense counsel was not deficient for failing to object because defendant’s
familiarity with guns was relevant to the People’s theory of this case that she used the
shotgun to shoot Harris. Moreover, defense counsel used a reasonable strategy to
minimize the impact of this evidence. Specifically, in redirect examination of T. B.,
counsel elicited that at the time T. B. signed those declarations, she was going through
postpartum depression, she designed those declarations to “make [her] mother look like a
terrible person,” she would not sign the declarations today, and she had seen her mother
use a gun to ward off T. B.’s biological father, who at the time was beating her infant
brother “pretty bad.” While the prosecutor came back in recross-examination and
pointed out that T. B. said harmful things about defendant in her declaration, including
that her mother “pulled a shotgun on [her] biological father . . . when [she] was nine years
old,” trial counsel elicited from T. B. that the whole point of those declarations was to
make her mother look terrible, and in reality, her mother was not terrible. In sum, there
was nothing deficient about trial counsel’s performance with regard to how he handled
this gun evidence.
                                             B
     Trial Counsel Was Not Ineffective For Failing To Object To Hearsay Evidence
  That Defendant Was Dangerous And For Referring To Defendant As A “Murderess”
                          And The Prior Killing As A “Murder”
       Defendant raises a number of contentions regarding trial counsel’s handling of
questions and evidence regarding defendant’s alleged dangerousness and the terminology
he used when questioning Stirling. We explain and analyze these contentions below.
       Defendant contends trial counsel was deficient in failing to object on hearsay
grounds to two questions the prosecutor asked Stirling that elicited hearsay statements
that defendant was dangerous. The first question was, “Did your father [i.e., Harris] tell
you why he was worried about seeing the defendant for the first time?” Stirling
responded, among other things, that Harris told her, “you know, Pam, you remember the

                                             10
demise of her [former] husband.” The second question was, “Can you tell me what his
concerns were?” Stirling replied, among other things, “the defendant was going to do
something horrible to him as she did to her [former] husband. He was afraid that she was
going to kill him. And we talked in great detail about safety . . . . [¶] . . . [¶] He was
scared that when he was asleep that he wouldn’t hear her if she came through the door at
Tahoe . . . .”
       Defendant further contends trial counsel was deficient for suggesting defendant
was dangerous in his cross-examination of Stirling by eliciting further references to
defendant being dangerous and referring to defendant’s 1985 shooting of her former
husband as “murder” and calling her a “murderess.” Specifically, during cross-
examination of Stirling, trial counsel asked why she did not counsel her father against
moving back in with defendant to care for her. Stirling responded that she had to let her
father make his own decisions, but “[t]he thought of him being injured never left [her]
mind” and that she was “always concerned for his safety.” Trial counsel followed up by
asking whether she asked her father if he felt safe around defendant and that “obviously”
he must have or else he would not have gone there. Stirling replied that he said he was
“not comfortable and often sleeps with one eye open.” Trial counsel followed up by
asking if Stirling asked her father whether he thought defendant was a danger to him.
Stirling responded, “he didn’t say yes,” and “he did not think she would do anything, but
considering the demise of her [former] husband, it was always a possibility,” “that
concerned him,” and “[h]e said that to [Stirling] very often.” Trial counsel then elicited
from Stirling that she had known about defendant killing her former husband for over 20
years and then asked why she did not “counsel him” once she learned he was marrying a
“murderess” or ask him why he was marrying somebody who had been acquitted of
“murder.” Stirling responded that it was defendant who first told Stirling she had killed
her former husband (and it was after she and her father had been married for four or five
years) and that her former husband was a “very bad man, who did awful things to her

                                              11
daughter” and Stirling added that Harris was “very, very happy with the defendant during
this time” so she “did not approach the subject with him.”
       While defendant on appeal claims that trial counsel’s failure to object to the
hearsay evidence about defendant’s dangerousness and eliciting evidence that Stirling
and her father thought defendant was dangerous and calling defendant a “murderess” and
referring to the killing of her former husband as “murder” was “prejudicial and
inflammatory,” there was a sound tactical reason for counsel’s actions. Counsel was
demonstrating to the jury that Stirling and her father were really not afraid of defendant
and indeed had nothing to fear. They had known for decades about her killing her former
husband, had not taken precautionary action to show they were afraid of her, and that
Harris really could not have been afraid of defendant because he returned to the
Placerville house voluntarily to care for her. In closing argument, trial counsel also
pointed out that it seemed “odd” that Stirling would bring herself, her children, and
Harris’s grandchildren to the Placerville house if Stirling really believed that defendant
posed a danger and it was just as odd that she would invite defendant along with her
father to Christmas at her house later that year if she truly feared defendant. Under these
circumstances, trial counsel’s performance was not deficient.
                                             III
           The Prosecutor Did Not Commit Misconduct In Closing Arguments
       Defendant contends the prosecutor committed numerous acts of misconduct in
closing arguments, violating her federal and state due process right to a fair trial. We
take each in turn, keeping in mind the following standard. “When a prosecutor’s
intemperate behavior is sufficiently egregious that it infects the trial with such a degree of
unfairness as to render the subsequent conviction a denial of due process, the federal
Constitution is violated. Prosecutorial misconduct that falls short of rendering the trial
fundamentally unfair may still constitute misconduct under state law if it involves the use



                                             12
of deceptive or reprehensible methods to persuade the trial court or the jury.” (People v.
Panah (2005) 35 Cal.4th 395, 462.) As we will explain below, there was no misconduct.
                                              A
             The Prosecutor Did Not Impugn The Integrity Of Trial Counsel
       Defendant claims the prosecutor committed misconduct by arguing that she and
her trial counsel fabricated her defense in the 1985 murder trial and again in this trial.
Specifically, the prosecutor argued in closing the following: There were times in
defendant’s testimony where she “couldn’t answer a question directly or where she
changed her answer, had to be put back on script by her attorney.” She “selectively
forg[ot]” she was not just a suspect in the 1985 killing, she was the defendant in that case
and “[s]he was represented by the same defense attorney she met with for 90 minutes
earlier that day.” “We didn’t know the defense’s theory after [trial counsel’s] opening
statement. He said, ‘My client will tell you what happened in the bedroom, whether it
was homicide or suicide or accident. . . . .’ [¶] Well if you’re telling the truth, you don’t
need to figure out what you’re going to say or what you’re going to do, you just tell the
truth.” Defendant claimed her relationship with trial counsel was social, but that was not
her entire relationship with him, as he represented her in the prior murder trial.
Defendant claimed she was in a fog and “[s]he didn’t want to say she met with her
criminal defense attorney from the last time her husband got killed.” Defendant claimed
to be moving valuables around the house after trial counsel left but before the sheriff’s
department arrived and “testified to putting some valuables up on a shelf. She doesn’t
want you to think she is writing a check to [trial counsel].” “[T]he defense is something
that is being made up on the fly in response to the People’s evidence. . . . This is not a
game. Might be to the defense team, but it’s not for the prosecution team.”
       These comments were fair arguments based on the state of the evidence. “A
criminal prosecutor has much latitude when making a closing argument. H[is] argument
may be strongly worded and vigorous so long as it fairly comments on the evidence

                                              13
admitted at trial or asks the jury to draw reasonable inferences and deductions from that
evidence.” (People v. Seumanu (2015) 61 Cal.4th 1293, 1330.) Here, the prosecutor
accurately noted that trial counsel had represented defendant in her prior murder trial and
that was the primary basis for their relationship. Moreover, there was evidence from
which a reasonable inference could be drawn that she was trying to hide a checkbook
right after she had talked with trial counsel. When police first arrived at defendant’s
house in response to trial counsel’s 911 call, they saw defendant climb onto a countertop
and put something on top of the kitchen cabinet. That something turned out to be a
manila envelope with checkbooks inside.
                                             B
                        The Prosecutor Did Not Misstate The Law
       Defendant on appeal points to a number of arguments made by the prosecutor in
closing that she claims misstated the law. We take each in turn, explaining why there
was no misconduct.
                                             1
              The Prosecutor Did Not Make Improper Propensity Arguments
       Trial counsel argued, “the more often one kills, especially under similar
circumstances, the more reasonable it is to believe the killing was intended and
premeditated.” Defendant on appeal contends this was improper propensity argument,
“nothing more than a statement of probabilities.” Not so. The California Supreme Court
has sanctioned this statement of the law in a very similar circumstance (i.e., evidence of a
prior murder introduced in a current murder prosecution), stating, “the doctrine of
chances teaches that the more often one does something, the more likely that something
was intended, and even premeditated, rather than accidental or spontaneous. Specifically,
the more often one kills, especially under similar circumstances, the more reasonable the
inference the killing was intended and premeditated.” (People v. Steele, supra, 27 Cal.
4th at p. 1244.)

                                             14
                                              2
            The Prosecutor Did Not Shift The Burden Of Proof To Defendant
       The prosecutor argued that in looking at the defense case, “importantly, . . . keep[]
in mind, first that the People have the burden of proof. I have to prove my case beyond a
reasonable doubt in order for you to vote to convict. [¶] But if the defense asserts or
claims something in her defense, the defense team has the burden of production.” The
prosecutor explained that defendant claimed a “memory issue for traumatic events,”
noted that her psychologist Dr. Tressor was “not available as a witness to the defense
because of a medical issue,” “so I’m not going to . . . mislead you and suggest that they
could have called Dr. Tressor,” “[b]ut there are many, many experts that they could call
to evaluate the defendant and talk about this.” “The law is clear that if the defense isn’t
prepared to go forward because they lost a witness, or they need to obtain a witness, the
Court would grant that continuance. There was no motion to continue filed in this case
by the defense” and “[i]f you can’t afford an expert witness that you need in your
defense, the Court will appoint one for you.” The prosecutor also mentioned the current
condition of the shotgun and noted that trial counsel was “asking you to go back into that
jury room and just speculate. And the reason why he is doing that is because if you focus
on the defense evidence, if you challenge the defense’s evidence, you see it doesn’t add
up to reasonable doubt.” Defendant on appeal contends that these arguments shifted the
burden of proof to defendant and gave defense the burden of production.
       These arguments were well within the permissible range. The California Supreme
Court has explained that a prosecutor’s statements do not constitute impermissible burden
shifting simply because the prosecutor correctly notes that a defendant did not produce
any evidence, so long as the prosecutor does not state a defendant has the burden of
proving her innocence. (People v. Bradford (1997) 15 Cal.4th 1229, 1340.) Here the
prosecutor correctly noted the defense did not back up its own defense even though it
could have brought in an expert to testify about her alleged failure to recall, and the

                                             15
prosecutor never stated or suggested that defendant had the burden of proving her
innocence. In fact, the “[p]rosecutor . . . reiterated that the prosecution had the burden of
proof by sufficient evidence [of] . . . defendant’s guilt . . . .” (Bradford, at p. 1340.)
Thus, “the prosecutor’s comments [did not] impermissibly shift the burden of proof to
defendant.” (Ibid.)
                                               3
                           The Prosecutor Did Not Misrepresent
                            The Law Of Voluntary Manslaughter
       The prosecutor argued that as to the lesser offense of voluntary manslaughter, the
so called “heat of passion manslaughter,” the “instructions . . . are very specific . . . as to
the degree of provocation.” It “has to be a degree of provocation that would rob a person
of average temperament [of] their ability to essentially reason, their ability to premeditate
and deliberate. It has to be a provocation that is somewhat immediate and does not allow
for a cooling off period.” (Italics added.) Defendant on appeal contends this was a
material misrepresentation of the law because the prosecutor “told the jury provocation
could only arise over a short period of time.” She quotes the jury instruction here,
CALCRIM No. 570, which actually demonstrates there was no error. As the jury was
instructed, “In order for heat of passion to reduce a murder to voluntary manslaughter, the
defendant must have acted under direct and immediate influence of provocation . . . .
Sufficient provocation may occur over a short or long period of time.” (Italics added.)
The prosecutor’s point was that “the People’s theory is that the defendant waited until
[Harris] was asleep to shoot and kill him. That’s a cooling off period.” Defendant was
still upset, frustrated, angry, and obsessing about the affair but months passed between
learning about the affair and her deciding to kill him, which was “more than sufficient
time for a reasonable person of average temperament to cool off.” This argument was
within the law and indeed supported by the voluntary manslaughter instruction given.



                                               16
                                   DISPOSITION
       The judgment is affirmed.



                                            /s/
                                            Robie, Acting P. J.



We concur:



/s/
Duarte, J.



/s/
Renner, J.




                                       17
