Filed 6/30/15 P. v. Brown CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D065711

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCN247064)

ADAM JAMES BROWN,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Harry M.

Elias, Judge. Reversed.

         Ronda G. Norris, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Arlene A. Sevidal and Amanda E. Casillas, Deputy Attorneys General, for Plaintiff and

Respondent.
       A jury convicted Adam James Brown of first degree murder (Pen. Code,1 § 187,

subd. (a)) and found true that he personally used a deadly weapon (a knife) in the

commission of the murder (§ 12022, subd. (b)(1)). After the trial court declared a

mistrial at the sanity phase of the trial, a new jury found that Brown was insane when he

committed the murder.

       The court committed Brown to Patton State Hospital and sentenced him pursuant

to section 1026 with the term of confinement fixed to 25 years to life plus one year.

       Brown appeals, contending the prosecutor committed prejudicial misconduct

during closing argument by repeatedly misstating the legal standard to be applied in

deciding whether provocation was legally sufficient to constitute heat of passion

voluntary manslaughter. We agree, and thus, reverse the judgment.

                               FACTUAL BACKGROUND

       Beginning in 2003, Brown lived with his mother, Leonore Brown (Leonore), and

her significant other, Edward Gibbs, in Oceanside, and they continued to live together for

five years, until Leonore was killed. Leonore was practically bedridden and required

near constant care. She was on medication and experienced considerable pain on a daily

basis. Brown cared for his mother. He got her meals, helped her take showers, helped

her use the portable toilet, cleaned her toilet, and took care of most of his mother's other

needs around the clock. Brown and his mother did not argue or raise their voices at each

other. In all, Brown was very responsive to his mother's needs and treated her well.



1      Statutory references are to the Penal Code unless otherwise specified.
                                              2
       On the morning of June 8, 2008, after receiving his monthly social security check,

Gibbs left home to gamble for a few days, as was his usual monthly practice. Gibbs's

players card showed that he gambled all day on June 8 and 9 at Pala Casino.

       After spending the night at a hotel in Oceanside on June 8, 2008, Brown went to

the Hall of Justice in downtown San Diego on June 9, 2008. He informed a deputy

sheriff at the Hall of Justice that he was there because a judge who shot him worked

there. Brown also told the deputy that about 7:00 p.m. on June 8, 2008, he stabbed his

mother with a knife, and the knife was still in her body. Brown claimed that he killed his

mother because "she was talking on behalf of somebody who shot him." He said he

killed her in the master bedroom of their home and that her body was still there. Brown

told the deputy that the key to the master bedroom was on a table inside his bedroom.

       City of Oceanside police officers were sent to Brown's home to do a welfare

check. Nobody responded at the home, so the officers entered through a window. The

officers found Leonore's body on the bed in the master bedroom, which was locked. Her

legs were dangling off of the edge of the bed, and her feet were touching the ground.

There was also a pool of blood under her head and around her body. A knife was

protruding from her face, near her right eye. The blade of the knife was about three and

one half inches deep inside of her head, and it was embedded in her skull. The blade cut

through her carotid artery twice, causing her death. She also had six other knife-inflicted

injuries: three stab wounds, including one that went through her earlobe and another that

penetrated her scalp; and three cuts near her left ear. In addition, Leonore had defensive

wounds on her hands, which were consistent with her trying to grab the knife.

                                             3
       Police found a crossword puzzle near Leonore's feet. Her glasses were near her

left shoulder, and there was a pen under her body.

       The officers later found the master bedroom key on a shelf inside Brown's

bedroom. The officers also found Brown's bloody shirt in his bedroom. The blood on

the shirt matched Leonore's DNA profile with a frequency of 1 in 13 quintillion.

Additionally, the officers discovered that the knife Brown used was taken from a block of

knives in the kitchen.

                                       DISCUSSION

                                              I

                            PROSECUTORIAL MISCONDUCT

       Brown contends the prosecutor committed prejudicial misconduct by repeatedly

misstating the legal standard to be applied in deciding whether provocation was legally

sufficient to constitute heat of passion. The People concede that the prosecutor misstated

the law, but assert Brown was not prejudiced.

                                      A. Background

       Prior to closing arguments, Brown's counsel requested that the trial court instruct

the jury on heat of passion voluntary manslaughter as a lesser included offense. The

prosecution objected, arguing that there was no evidence to support the instruction.

Brown's counsel asserted that Brown's statement explaining why he killed his mother and

the inference that there was no other motive for the killing supported the instruction. The

court determined that the jury could infer provocation based on the evidence presented at

trial: "I think the content of [Brown's] statement to the deputy at the Hall of Justice is a

                                              4
fact upon which the jury, should they decide could raise -- create an inference that there

was some sort of provocation." Therefore, the trial court instructed the jury on first

degree murder, second degree murder, and heat of passion voluntary manslaughter.2 The

trial court also instructed the jury that they were to follow the law as the court explained

it, even if they believed an attorney's comments conflicted with the court's instructions.

       During closing argument, the prosecutor told the jury that the standard for

provocation in heat of passion voluntary manslaughter requires the jury to find that an

average reasonable person would have acted the "very same way" Brown did. Brown's

counsel objected, arguing that the prosecutor misstated the law. The trial court did not

rule on the objection, but told the jury, "Ladies and gentlemen, the instruction gives you

the format in which you are to analyze the elements. That's the law you're supposed to

follow."

       While still discussing provocation, the prosecutor later argued that the provocation

must be "so terrible that reasonable person in that situation would have also killed." The

prosecutor continued with similar statements throughout her closing argument:

           "There has to be an element of Leonore Brown provoking Adam into
           that extremely murderous rage in which an average reasonable
           person would have killed, too."

                                             ***

           "Leonore Brown has to provoke Adam Brown in such a way that
           heat of passion clouded his every judgment and an average
           reasonable person would have also killed. . . . Leonore Brown did



2      There is no contention that the jury instructions were not proper as given.
                                              5
          not provoke Adam Brown in such a way that he had to stab her
          multiple times."

                                            ***

          "Where is the provocation? . . . There has to be provocation that is
          so passionate that he could not do anything but to stab her four
          different times."

       During this argument, the prosecutor used a power point slide that said, "show me

provocation." Brown's counsel objected to the use of the slide. The court responded by

informing the jury, "Well, again, ladies and gentlemen, this is argument. Each lawyer is

going to tell you their perspective, how they interpret the facts and how they think you

should interpret the facts as relates to the law. You are the ultimate judges of what

factually occurred. The law you follow is going to be in this brown book, and that's your

obligation."

       Outside of the presence of the jury, Brown's counsel moved for a mistrial, arguing

that the People improperly shifted the burden of proof to the defendant by using the slide

that stated "show me provocation" and by implying that voluntary manslaughter provided

a "license to kill." Brown's counsel emphasized that the prosecutor misstated the law.

The court overruled the motion, finding that the court's admonishments and instructions

provided the correct law to the jury, and there was no reason for the court to believe the

jury would deviate from the instructions.

       In closing argument, Brown's counsel argued that the prosecution had the burden

of proving the absence of a sudden quarrel or heat of passion. He also asserted that

voluntary manslaughter is not a justified killing. Brown's counsel focused on his primary


                                             6
defense in the case that Brown was provoked and responded rashly, stabbing his mother:

"In deciding whether the provocation was sufficient, consider whether a person of

average disposition -- and that's what it is, average disposition -- in the same situation.

Well, when it says in the same situation, it means the 24 hour a day, seven day a week

care for his ailing mother where, I don't know, is he sleeping a lot? Is he happy with it?

Is he getting tired with it? Is his mom complaining? Is she saying things to him?"

       In rebuttal, the prosecutor argued that the evidence was insufficient to show

provocation, which would have driven an average person to act "exactly" as Brown did.

Brown's counsel objected again, and the trial court overruled the objection and told the

jury to "follow the instructions. You decide the facts."

                                        B. Analysis

       Brown asserts the prosecutor committed misconduct during her closing argument

by repeatedly misstating the law and shifting the burden of proof. The People concede

that the prosecutor misstated the law regarding the requirements of provocation, but

denies that the burden of proof was shifted or that Brown was prejudiced.

       We agree the prosecutor committed misconduct by misstating the law regarding

the proper standard for assessing the legal sufficiency of provocation. In People v.

Beltran (2013) 56 Cal.4th 935 (Beltran), the California Supreme Court explained that

heat of passion is a state of mind that "precludes the formation of malice and reduces an

unlawful killing from murder to manslaughter," and heat of passion is "caused by legally

sufficient provocation that causes a person to act, not out of rational thought but out of



                                              7
unconsidered reaction to the provocation." (Beltran, supra, at p. 942.) The court

explained:

          "Adopting a standard requiring such provocation that the ordinary
          person of average disposition would be moved to kill focuses on the
          wrong thing. The proper focus is placed on the defendant's state of
          mind, not on his particular act. To be adequate, the provocation
          must be one that would cause an emotion so intense that an ordinary
          person would simply react, without reflection. To satisfy [the proper
          standard], the 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; italics omitted.)

       The court further clarified that, under the proper standard, "[p]rovocation is

adequate only when it would render an ordinary person of average disposition 'liable to

act rashly or without due deliberation and reflection, and from this passion rather than

from judgment.' " (Beltran, supra, 56 Cal.4th at p. 957, quoting People v. Logan (1917)

175 Cal. 45, 49.) The Supreme Court rejected the Attorney General's argument in that

case that the proper standard for assessing the adequacy of provocation is whether an

ordinary person of average disposition would be moved to kill. (Beltran, supra, at

pp. 946, 949.)

       Here, the prosecutor misstated the law by essentially arguing, like the prosecutor

in Beltran, supra, 56 Cal.4th 935, that the proper standard for assessing the adequacy of

provocation is whether an ordinary person of average disposition would be moved to kill.

Indeed, the prosecutor went so far as to tell the jury, not only would an ordinary person

be moved to kill, but would also have stabbed the victim four times. By misstating the

                                             8
law, as the parties correctly acknowledge, the prosecutor in this case committed

misconduct. (People v. Boyette (2002) 29 Cal.4th 381, 435 ["[I]t is misconduct for the

prosecutor to misstate the applicable law."].)

       Similarly, in consideration with the prosecutor's consistent misstatements of the

law, we also are very concerned with the slide stating, "show me provocation" and its

impact on the jury. This slide implies that it is not the prosecution that needs to prove a

lack of provocation beyond a reasonable doubt, but Brown who must prove provocation.

Showing this slide while misstating the applicable law further exacerbated the

prosecutorial misconduct.

       Having concluded that the prosecutor committed misconduct, we next must

determine whether reversal is warranted. A prosecutor's remarks can " ' "so infect[ ] the

trial with unfairness as to make the resulting conviction a denial of due process." ' "

(People v. Frye (1998) 18 Cal.4th 894, 969.) In such cases, the misconduct amounts to

federal constitutional error and reversal is required unless we conclude the misconduct

was harmless beyond a reasonable doubt. (People v. Estrada (1998) 63 Cal.App.4th

1090, 1106-1107, citing Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).) If

the prosecutor's remarks did not rise to that level, we will not reverse unless we conclude

it is reasonably probable that a result more favorable to the defendant would have been

reached in the absence of the misconduct. (People v. Barnett (1998) 17 Cal.4th 1044,

1133, citing People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) Under either

standard, we must reverse the judgment in this matter.



                                              9
       Here, the crux of Brown's defense was that he was provoked and responded by

killing his mother. His attorney stressed there was no motive whatsoever for the killing.

He presented evidence that Brown loved and cared for his mother, who was practically

bedridden, on a lot of medications, and was in considerable pain. Brown cared for his

mother by getting her meals, helping her take showers, helping her use the portable toilet,

cleaning her toilet, and taking care of most of her other needs around the clock. There

was evidence presented that Brown and his mother did not argue or raise their voices at

each other. In all, Brown was very responsive to his mother's needs and treated her well.

       Against this back drop, Brown's counsel argued that Brown must have been

provoked before he killed his mother. To this end, Brown's counsel argued that Brown

was stressed from having to care nonstop for his dying mother. He reminded the jury that

Brown said he killed his mother because "she was talking on behalf of somebody who

shot him." Also, Brown's counsel stressed the way in which Leonore was killed as

evidence that Brown was provoked. He stabbed her with a knife multiple times. Brown's

counsel maintained the method of the killing indicated that Brown was acting "rashly and

without due deliberation, that is from passion rather than judgment."

       In countering Brown's defense theory, the prosecutor argued there was no

evidence to support the defense's theory of provocation. However, she also consistently

misstated the law throughout closing argument and the trial court explicitly or implicitly

overruled all of Brown's counsel's objections to the misstatements. Therefore, the jury

reasonably could have concluded that the evidence of provocation had to show that a

reasonable person would have killed Leonore if under the same circumstances as Brown

                                            10
faced. In light of the fact that Brown's only real defense in this case was provocation and

the trial court believed sufficient evidence existed that a heat of passion voluntary

manslaughter instruction should be given, we cannot conclude the misconduct was

harmless beyond a reasonable doubt.

       Based on the record before us, we also conclude it is reasonably probable that a

result more favorable to Brown would have been reached in the absence of the

misconduct. Our high court has emphasized "that a 'probability' in this context does not

mean more likely than not, but merely a reasonable chance, more than an abstract

possibility. ([Watson, supra, 46 Cal.2d] at p. 837; cf. Strickland v. Washington (1984)

466 U.S. 668, 693-694, 697, 698 ['reasonable probability' does not mean 'more likely than

not,' but merely 'probability sufficient to undermine confidence in the outcome'].)"

(College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 715; italics omitted.) A

more favorable outcome under this analysis includes a hung jury. (Cf. People v. Soojian

(2011) 190 Cal.App.4th 491, 519-521.)

       Here, the jury heard several times during closing argument the wrong legal

standard to be applied in deciding whether provocation was legally sufficient to constitute

heat of passion. Moreover, despite multiple objections by Brown's counsel, the court

allowed these misstatements. Citing Beltran, supra, 56 Cal.4th 935, the People argue

there is no prejudice because the record does not demonstrate that the jury was confused.

The People's reliance on Beltran is misplaced on this point.

       In Beltran, supra, 56 Cal.4th 935, the jury asked a question regarding provocation

and the court correctly responded:

                                             11
          "The jury asked for additional guidance and the trial court gave it. It
          was not reasonably probable that the jury here was misled to
          defendant's detriment. Although counsel's argument may have
          created ambiguity about the nature of sufficient provocation, the jury
          directly requested clarification of the standard. The jury's note
          pinpointed the issue, inquiring if it should consider whether an
          ordinary person would 'commit the same crime (homicide) or can it
          be other, less severe, rash acts.' The trial court responded with a
          correct statement of law, that '[t]he provocation involved must be
          such as to cause a person of average disposition in the same situation
          and knowing the same facts to do an act rashly and under the
          influence of such intense emotion that his judgment or reasoning
          process was obscured.' (Italics added.) This response properly
          refocused the jury on the relevant mental state, properly set out in
          CALCRIM No. 570, and away from whether an ordinary person of
          average disposition would kill in light of the provocation. Because
          of the trial court's clarifying instruction, it was not reasonably
          probable that any possible ambiguity engendered by counsel's
          argument misled the jury." (Beltran, supra, at pp. 955-956.)

       In contrast to Beltran, here the jury made no inquiry regarding heat of passion, and

thus, the court did not respond by directing the jury to or otherwise reinforcing the heat of

passion voluntary manslaughter jury instruction. At best, the court referred the jury to the

jury instructions in general, but did so without sustaining any of Brown's counsel's

objections to the prosecutor's misstatements of the law. As such, the jury reasonably

could have been led to believe, by the trial court's tacit approval of the prosecutor's

statements during closing argument, that it could only find provocation if it determined

that a reasonable person under Brown's circumstances would have killed Leonore. This

is not correct, and the trial court here took no corrective action. (See Beltran, supra, 56

Cal.4th at pp. 949, 955-956.)

       Finally, the People argue there was not sufficient evidence of provocation in any

event. We disagree. There was enough evidence that the trial court believed a

                                             12
manslaughter instruction was warranted. Further, provocation was Brown's only defense

at trial. As set forth above, we conclude there was evidence to support Brown's theory.

Based on this evidence and the prosecutor's misconduct (approved by the trial court) we

cannot say that there is no reasonable chance that at least one juror could have found

Brown was provoked. (See Watson, supra, 46 Cal.2d at p. 837; cf. People v. Soojian,

supra, 190 Cal.App.4th at pp. 519-521.) Simply put, the prosecutorial misconduct

coupled with the trial court's tacit approval of same sufficiently undermines our

confidence in the outcome of this matter. (See College Hospital, Inc. v. Superior Court,

supra, 8 Cal.4th at p. 715.) Therefore, we must reverse the judgment.

                                      DISPOSITION

       The judgment is reversed.




                                                                  HUFFMAN, Acting P. J.

WE CONCUR:


                   McINTYRE, J.


                   O'ROURKE, J.




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