Filed 11/30/15 P. v. Rachel CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H040306
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1107268)

         v.

ANDREW MARK RACHAL,

         Defendant and Appellant.


                                           I.        INTRODUCTION
         Defendant Andrew Mark Rachal appeals after a jury convicted him of first degree
murder (Pen. Code, § 187, subd. (a))1 and found true an allegation that he personally used
a deadly or dangerous weapon in the commission of that offense (§ 12022, subd. (b)(1)).
The trial court sentenced defendant to a prison term of 25 years to life for the murder,
consecutive to a one-year term for the weapon use allegation.
         On appeal, defendant contends: (1) there was insufficient evidence to support the
jury’s first degree murder verdict; (2) the trial court erred by dismissing a juror for
misconduct; (3) the trial court erred by failing to instruct on voluntary manslaughter;
(4) the trial court erred by incorrectly instructing the jury on self-defense; (5) the trial
court erred by admitting evidence concerning defendant’s ex-girlfriend; (6) the


         1
             All further statutory references are to the Penal Code unless otherwise indicated.
prosecutor committed misconduct; and (7) trial counsel was ineffective. For reasons that
we will explain, we will affirm the judgment.

                                 II.     BACKGROUND
       On May 10, 2011, Ricky Patterson suffered multiple stab wounds at defendant’s
residence, and he subsequently died. Defendant’s neighbors had heard cries for help
coming from defendant’s house, and they saw defendant come out of his house and drive
away. The next day, defendant fell or jumped off of a highway overpass in Santa Barbara
County, resulting in serious injuries.
       A.     Defendant’s Relationship with Patterson
       Patterson was an unlicensed contractor. In late 2010 and early 2011, Patterson
was working with Kevin Johnson, another unlicensed contractor. Patterson and Johnson
worked on various projects for Ronald Willoughby, who owned property in Berkeley.
One of the projects required a licensed general contractor, so Patterson proposed that
Willoughby hire defendant, who had his contractor’s license. Willoughby, his wife,
defendant, Patterson, and Johnson subsequently agreed that Johnson would do the
painting and drywall, Patterson would do carpentry and some other work, and defendant
would “run the whole thing.”
       During the weeks before Patterson’s death, Patterson and Johnson were working
together on a different project. They commuted to the job site together in Patterson’s
truck. During the commutes, Johnson often heard phone conversations between
defendant and Patterson. Patterson would put his cell phone on speaker, so Johnson
heard both sides of the conversations.
       One month or more before Patterson’s death, Johnson overheard defendant tell
Patterson that he was not going to use Patterson or Johnson for the Willoughby job.
Johnson later overheard defendant say that he had started the job. He also heard




                                            2
Patterson tell defendant that the Willoughbys wanted their money back, referring to a
$10,000 deposit or down payment.
       At some point after learning that defendant was not going to use him for the
Willoughby job, Johnson spoke to defendant on the phone. They argued, and defendant
hung up on Johnson. Defendant then called Johnson back. Defendant said he did not
have a problem with Johnson; his issues were with Patterson. Defendant told Johnson
that he “could kill” Patterson.
       Johnson never told Patterson about defendant’s statement, but he did advise
Patterson to stay away from defendant. Johnson also advised Patterson to stop being
upset about defendant not using them for the Willoughby job. As recently as two days
before the stabbing incident, Johnson had told Patterson to “leave it alone,” but Patterson
did not seem to be able to let it go.
       According to Johnson, the arguments between defendant and Patterson were not
just about the Willoughby job. Defendant and Patterson had “long-term issues,” one of
which involved Patterson getting defendant fired from being a supervisor at another
construction job. The conversations he overheard included “argumentative words” and
“bickering back and forth.”
       Between May 2, 2011 and May 10, 2011 (the day of the homicide), there were
numerous phone calls between defendant’s cell phone and Patterson’s cell phone. There
were seven calls on May 2, five calls on May 3, seven calls on May 4, three calls on
May 5, no calls on May 6, 28 calls on May 7, four calls on May 8, six calls on May 9,
and three calls on May 10.
       B.     Testimony of Defendant’s Neighbors
       Manuel Brillantes lived on defendant’s street on May 10, 2011. Just before
3:00 p.m. that day, he heard cries for help and followed the sound. He encountered
Phuong Phan, who lived next door to defendant. Phan had just returned home with two
of her children and was in her driveway.

                                             3
       After confirming that Phan had also heard the cries for help, Brillantes walked
towards defendant’s house. Brillantes looked through a broken window and saw two
men inside near the kitchen sink. Brillantes asked, “Is everything okay there?” He heard
one of the men say, “Help, call 9-1-1.” The man sounded weak and in pain. The second
man said, “He’s all right, he’s all right.” The second man was wiping something off of
his hands.
       Brillantes backed away from the house. He saw the garage door open, then saw a
man in the driveway. Phan, who was in her driveway, saw that the person was defendant.
Phan asked defendant, “Is he okay?” Defendant told her, “He’s okay, he’s okay.”
Defendant’s hands were red, but he did not appear to be injured.
       Meanwhile, Brillantes called 9-1-1. While on the phone with the dispatcher,
Brillantes heard defendant say, “[H]e’s all right, he’s all right,” and then saw defendant
leave in a white truck. The white truck had been parked across defendant’s driveway,
blocking Patterson’s burgundy truck, which was parked in defendant’s driveway.
Brillantes next saw a person standing up, then crawling, in defendant’s garage.
       Patterson was found lying on the ground in defendant’s driveway, just outside of
the garage, near the back of Patterson’s own truck. Patterson was treated by paramedics
and taken to the hospital, where he died.
       C.     Defendant’s Fall or Jump from the Overpass
       On the afternoon of May 11, 2011, Brian Kent and his wife were driving
northbound on Highway 101 in Santa Barbara County. He saw a white truck come up
behind him. The truck was speeding and almost hit Kent’s car two times. Kent wanted
to call 9-1-1, and his wife wanted to call the number on the side of the truck. Kent
followed the truck as it took an exit and went onto an overpass.
       The white truck stopped on the overpass. Defendant was inside the truck. He
appeared to be doing something—possibly writing. After about two or three minutes, he



                                             4
drove forward, stopped again, got out, and walked to the overpass railing. Defendant
“toppled over” the railing, with his body “almost straight as a board.”
       Ronald Jasso was also driving with his wife northbound on Highway 101 on
May 11, 2011. Jasso saw defendant standing on the overpass. Defendant put his arms at
his sides and “cartwheeled” over the railing. Defendant landed in the fast lane of the
freeway, feet first, and then “crumpled.” Jasso pulled over and went to see if defendant
was okay. Defendant appeared to be unconscious at first, but he later tried to stand up
and crawl toward the center of the fast lane. Jasso did not hear defendant say anything.
Defendant was wearing clear plastic gloves on both hands.
       Detectives from the Santa Barbara County Sheriff’s Department searched
defendant’s truck, finding a note inside. The note included “$5,000 Ricky stole my
money” and “Chanda was fucking not faithful.” The note also listed a number of names
of defendant’s friends and family members. Defendant’s truck also contained an empty
Sominex box, Sominex pill wrappers, two empty Red Bull cans, and eight unopened cans
of tuna fish.
       D.       Patterson’s Autopsy
       After his death, Patterson’s body underwent an autopsy. The cause of Patterson’s
death was complications of multiple stab wounds of the head and extremities—in other
words, extreme blood loss. Patterson had 31 penetrating stab wounds, one of which had
transected a large vein and an artery. Seven of the stab wounds were one-half inch deep;
all of the others were deeper.
       Patterson had a stab wound near his shoulder that was over three inches long and
one inch deep. He had a stab wound in the back of his head that was one and a half
inches long and one inch deep. Patterson’s skull had been chipped. This stab could have
broken a knife blade.




                                             5
       Patterson had several stab wounds in his face. One was on the right side of his
face, one was in his forehead, and one was on the left side of his face. He also had a stab
wound near his left ear.
       Patterson had a number of stab wounds in or around his left arm. A stab wound in
his left shoulder was three inches deep; it had both entry and exit wounds. Another stab
wound was below that one. He had three stab wounds in his left arm. One of those
wounds was three inches deep and was “probably the most significant” of all his wounds;
it was the one that had transected a major vein and an artery.
       There were three stab wounds in Patterson’s left hand, along with an incised
wound on that hand. At least two of the stab wounds were in Patterson’s palm. One of
the stab wounds in that hand was four inches long.
       Patterson had two stab wounds in his right arm. Stab wounds in the back of his
right upper arm and in his right forearm were both three inches deep. There was one stab
wound and one incised wound on his right hand.
       The remaining stab wounds were all in Patterson’s legs. Several of the stab
wounds in his left leg were three or more inches deep. One of the stab wounds in
Patterson’s right leg was four inches deep, and another one had gone through his leg.
       Patterson also had blunt force injuries to his forehead, the bridge of his nose, and
to his chest. He had abrasions on his abdomen, back, and arm.
       Patterson was five feet, 11 inches tall and weighed 262 pounds at the time of his
death. Defendant was five feet, 10 inches tall and weighed 228 pounds.
       E.     Defendant’s Injuries
       Defendant’s hands were photographed on May 12, 2011, when he was in the
hospital. There were horizontal defects on four fingers of defendant’s right hand. These
appeared to be sharp force injuries, and they would have made it impossible for




                                             6
defendant to grip a knife handle.2 Defendant had similar damage to the pinkie finger of
his left hand. The injuries on defendant’s hands were consistent with his hands sliding
onto the blade of the knife after stabbing Patterson and hitting bone. The injuries could
also have been defensive wounds.
       F.       Evidence Found at Defendant’s Residence
       Police investigators searched defendant’s residence, where Patterson’s burgundy
truck was backed into defendant’s driveway. There was a “club” locking device on the
steering wheel of Patterson’s truck, and the truck’s doors were locked.
       A knife handle with a broken blade, which contained blood, was found in a
garbage can in the garage. A broken knife blade was found on the kitchen floor. A
broken coffee pot was also found on the kitchen floor. When police first arrived, the
faucet in the kitchen sink was running. The bay window in the living room was broken,
with a small kitchen drawer lodged in it. A chair in the dining room was overturned. A
set of blinds in the bedroom was pulled down.
       Blood was found in several locations throughout defendant’s residence. The
“bloodletting” had begun in the master bedroom, where a lot of blood was lost. There
was blood on the bed, pillows, and carpet. There was also blood in the hallway leading
out to the living room and kitchen, including handprints on the hallway walls. Some of
the handprints were near the ground, indicating a person may have been crawling. Other
hand prints were higher up, suggesting that a second person had walked through the hall.
The higher handprints appeared to have been from someone who had blood on his or her
hands but whose own hands were not cut. The lower handprints appeared to have been
from someone who had “quite a volume” of blood on his hands.
       In the living room, there were bloody footprints leading from the kitchen to the
front door and back. There was a blood smear on the front door’s dead bolt.


       2
           Defendant was right-handed.

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       A large amount of blood was in the kitchen. Blood was smeared on cabinets,
appliances, and the floor. Blood droplets were on top of the smears, indicating that
someone bloody was “being smeared around on the floor” and someone else was
bleeding on top. There was a large pool of blood under a kitchen counter, indicating that
someone lost a lot of blood in that location. A blood smear on a kitchen cabinet
suggested that something—such as a head or knee—had been hit repeatedly against it.
The blood on the kitchen floor was consistent with Patterson being stabbed there, and
higher spatter indicated that was where he was stabbed in the back of the head.
       Blood spatter near a light switch in the entry to the garage from the kitchen was
consistent with the hand injury defendant had suffered. Blood stains on the floor going
into and through the garage were consistent with someone crawling.
       A number of items in defendant’s house were tested for DNA. Patterson was the
major source of the DNA in samples taken from blood on the bedroom floor and from
blood on items in the bedroom such as a quilt and two pillowcases. Patterson was also
the source of the DNA in blood samples taken from the hallway. Samples of blood found
in the kitchen contained mixtures of Patterson’s DNA and defendant’s DNA. Patterson’s
DNA was on the knife blade along with other DNA, which could have come from
defendant. Defendant’s DNA was on the knife handle, with Patterson as a possible
contributor.
       According to criminalist Cordelia Willis, the above evidence showed that
defendant was not bleeding in the master bedroom, where there had been a struggle; he
was injured in the kitchen, where there was a further struggle. The bloody footprints
indicated that defendant had walked to the front door and back after the struggle in the
bedroom and before being injured in the kitchen.
       There was no sign of forced entry into defendant’s house, except where the police
had broken down the front door. Patterson’s cell phone was found on the floor of
defendant’s bedroom; it had Patterson’s blood on it.

                                             8
       G.     Defense Testimony
       Timothy Sutherland was driving his motorcycle north on Highway 101 in Santa
Barbara County on May 11, 2011 when he saw defendant lying in the roadway.
Sutherland pulled over and went to see if defendant was okay. Defendant told him,
“He had a knife. He came at me.”
       Forensic pathologist and consultant Dr. Judy Melinek testified that defendant’s
hand wounds appeared to be defensive injuries. She thought it was unlikely, but possible,
that the wounds were caused by defendant’s hand slipping onto the knife blade. She
testified that if defendant had consumed the entire box of Sominex pills, he would have
been disoriented and sleepy, and he possibly would have hallucinated and been delirious.
       Private investigator Gregg Dietz took photos and video at defendant’s residence.
From the location where Brillantes claimed to have been standing when he looked inside,
a person could not see into the kitchen.
       Santa Barbara Deputy Sheriff David Valadez was one of the officers who
responded to the scene of defendant’s fall or jump from the overpass on May 11, 2011.
Deputy Valadez had removed the plastic gloves from defendant’s hands, although
defendant had tried to prevent him from doing so by clenching his fists. Deputy Valadez
did not know what had happened to the gloves.
       Defendant did not testify at trial.
       H.     Prior Misconduct Evidence – Chanda McClendon
       Chanda McClendon had a two-year dating relationship with defendant that ended
in May of 2011. At some point in April or May of 2011, defendant told McClendon,
“I can’t take too much or I’m going to snap,” referring to “his pressures.”
       On May 2, 2011, McClendon was parking in a garage at her school when
defendant showed up. Defendant blocked McClendon’s car in with his white truck. He
approached her, behaving “erratic” and “crazy.” Defendant threatened to kill himself.



                                             9
       Later that same day, defendant again blocked McClendon’s car, but he eventually
allowed her to move her car. McClendon called 9-1-1 and drove towards a police station.
Defendant followed her and pulled up alongside her when she parked. McClendon
subsequently obtained a restraining order.
       A search of defendant’s computer after the Patterson homicide showed that
defendant had performed a number of Google searches following the McClendon
incident. On May 2, 2011, defendant had searched for “how to commit suicide with
sleeping pills.” On May 4, 2011, defendant had searched for “how to get out of a
restraining order.” On May 6, 2011, defendant had performed a number of searches
containing McClendon’s name as well as searches such as “how to disguise your looks.”
On May 7, 2011, defendant had searched for “the death of Andrew Mark Rachal” and the
definition of stalking.
       I.     Prior Misconduct Evidence – Diane Williams and Gail Seahorn
       On March 28, 1998, San Jose Police officers were dispatched to a residence
in response to a domestic dispute call. The officers contacted defendant and
Diane Williams, and they handcuffed defendant. Defendant told an officer, “I was
protecting her because someone attacked her.” Defendant asked Williams not to press
charges. While one officer filled out paperwork and the other spoke with Williams in
another room, defendant tried to dive head-first through a second story window. In 1999,
defendant was convicted of felony false imprisonment by violence against Williams as
well as infliction of corporal injury on a spouse or cohabitant.
       In 2004, defendant was convicted of false imprisonment by violence against
Gail Seaton. No facts of that offense were introduced at trial.
       J.     Verdicts and Sentencing
       The jury was instructed on three theories of first degree murder: premeditation
and deliberation, torture, and lying in wait. The jury was also instructed on second



                                             10
degree murder. In addition, the jury was instructed on self defense and defense against
harm within the home.
        The jury convicted defendant of first degree murder (§ 187, subd. (a)) and found
true an allegation that he personally used a deadly or dangerous weapon in the
commission of that offense (§ 12022, subd. (b)(1)). The trial court sentenced defendant
to a prison term of 25 years to life for the murder, consecutive to a one-year term for the
weapon use allegation.

                                   III.    DISCUSSION
        A.     Sufficiency of the Evidence
        Defendant contends there was insufficient evidence to support the jury’s first
degree murder verdict. He argues the prosecution failed to meet its burden to prove that
defendant did not act in self defense, and he contends there was insufficient evidence that
he committed the murder with premeditation and deliberation, by torture, or by lying in
wait.
        “The law we apply in assessing a claim of sufficiency of the evidence is well
established: ‘ “ ‘ “[T]he court must review the whole record in the light most favorable
to the judgment below to determine whether it discloses substantial evidence—that is,
evidence which is reasonable, credible, and of solid value—such that a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt.” ’ ” ’ [Citation.] . . .
‘We presume “ ‘in support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence.’ [Citation.]” (People v. Gonzales and Soliz (2011)
52 Cal.4th 254, 294.)
               1.     Self-Defense
        A person has the right to use “all force necessary” in self-defense if, based on the
“nature of the attack,” a reasonable person would be “justified in believing that his [or
her] assailant intends to commit a felony upon him [or her].” (People v. Clark (1982)



                                              11
130 Cal.App.3d 371, 377 (Clark), overruled on other grounds by People v. Blakeley
(2000) 23 Cal.4th 82, 92.) When an intruder “unlawfully and forcibly enter[s]” a
residence, there is “a rebuttable presumption that [the resident] was in reasonable fear
of imminent danger when he [or she] used deadly force within his [or her] residence.”
(People v. Brown (1992) 6 Cal.App.4th 1489, 1496.)
       However, “a person may use only that force which is necessary in view of the
nature of the attack; any use of excessive force is not justified and a homicide which
results therefrom is unlawful. [Citation.]” (Clark, supra, 130 Cal.App.3d at p. 377.)
“[A] person may be found guilty of unlawful homicide even where the evidence
establishes the right of self-defense if the jury finds that the nature of the attack did not
justify the resort to deadly force or that the force used exceeded that which was
reasonably necessary to repel the attack.” (Id. at p. 380.)
       “When the issue of self-defense is properly presented in a homicide case, the
prosecution must prove the absence of the justification beyond a reasonable doubt.
[Citation.]” (People v. Pineiro (1982) 129 Cal.App.3d 915, 920.) “Issues arising out of
self-defense, including whether the circumstances would cause a reasonable person to
perceive the necessity of defense, whether the defendant actually acted out of defense of
himself [or herself], and whether the force used was excessive, are normally questions of
fact for the trier of fact to resolve. [Citations.]” (Clark, supra, 130 Cal.App.3d at p.
378.) However, a reviewing court may conclude that the prosecution failed to carry its
burden to prove that a homicide was not justified if the evidence of adequate provocation
or self-defense is “ ‘both uncontradicted and sufficient as a matter of law.’ ” (Ibid.) The
issue is a question for the trier of fact “where some of the evidence tends to show a
situation in which a killing may not be justified” or where “the evidence is
uncontroverted, but reasonable persons could differ on whether the resort to force was
justified or whether the force resorted to was excessive.” (Id. at p. 379.)



                                              12
       Here, defendant contends the prosecution did not present sufficient evidence from
which the jury could have concluded that defendant did not act in self-defense when he
killed Patterson. In other words, defendant contends that the evidence established he
acted in self-defense as a matter of law. Defendant points out that there was evidence
Patterson harbored “ill-will and animosity” towards him, that there was no evidence
defendant had invited Patterson to his home, that the altercation apparently began in
defendant’s bedroom, and that defendant subsequently claimed that Patterson had come
at him with a knife.
       The question of whether defendant was entitled to use deadly force was a question
for the jury because at least some of the evidence tended to show that the homicide was
not justified and that “the force resorted to was excessive.” (Clark, supra, 130
Cal.App.3d at p. 379.) The evidence showed that the violent altercation began in the
bedroom, but the evidence did not necessarily support the defense theory that defendant
had been sleeping or was taken by surprise by Patterson. Patterson—not defendant—was
the major source of the blood in the bedroom, where a lot of blood was lost. The
evidence indicated that defendant suffered the injuries to his hands later, in the kitchen,
where there was a mixture of defendant’s blood and Patterson’s blood. Patterson’s DNA
was on the knife blade, and defendant’s DNA was on the knife handle. Thus, the jury
could reasonably conclude that defendant had the knife from the very beginning of the
altercation and that he initiated the use of force. The evidence of the two sets of bloody
handprints coming from the bedroom strongly indicated—in light of the DNA
evidence—that Patterson crawled out of the bedroom, while defendant walked out, and
that Patterson suffered additional injuries in the kitchen, including the injury to his head,
which likely caused the high blood spatter in the kitchen and possibly caused the knife
blade to break. The evidence established that Patterson was stabbed more than 30 times,
all over his body. The presence of Patterson’s cell phone on the bedroom floor, with
Patterson’s blood on it, suggested that Patterson may have tried to call 9-1-1 when he was

                                              13
still in the bedroom, prior to the additional stab wounds he suffered in the kitchen. Based
on this evidence, the jury could reasonably conclude that defendant continued to stab
Patterson at a time when Patterson was not a reasonable threat to defendant—i.e., that
even if Patterson initiated the altercation, defendant used force in excess of “that which
was reasonably necessary to repel the attack.” (Id. at p. 380.)
       Other evidence supported the jury’s finding that defendant did not act in self-
defense. Defendant’s neighbors heard cries for help, and the jury could reasonably find
that those cries came from Patterson, in light of the severity of his injuries in comparison
to those suffered by defendant, who was able to walk out of the house and drive away.
Additionally, when defendant saw his neighbors, he did not say that he had been
attacked. Instead, defendant claimed that Patterson was “all right” and “okay,” and he
fled without calling the police.
       On this record, a reasonable jury could have found beyond a reasonable doubt that
defendant’s use of deadly force was not justified. Substantial evidence supports the
jury’s finding that the homicide was not justified.
              2.     Premeditation and Deliberation
       Defendant contends the evidence was insufficient to support a finding of
premeditated and deliberate murder. His argument is based on People v. Anderson
(1968) 70 Cal.2d 15 (Anderson), in which the court set forth three categories of evidence
commonly present in cases of premeditated and deliberate murder: (1) planning activity,
(2) preexisting motive and (3) manner of killing.3 (Id. at pp. 26-27.)




       3
        The Anderson factors are not exclusive or exhaustive. “The Anderson analysis
was intended as a framework to assist reviewing courts in assessing whether the evidence
supports an inference that the killing resulted from preexisting reflection and weighing of
considerations. It did not refashion the elements of first degree murder or alter the
substantive law of murder in any way.” (People v. Thomas (1992) 2 Cal.4th 489, 517.)

                                             14
       Defendant first contends there was no evidence showing that he planned to attack
or kill Patterson. According to defendant, there was no evidence that defendant “lured”
Patterson to defendant’s house or to his bedroom and no evidence that defendant brought
the knife to his bedroom before the violent altercation began. Defendant also argues that
any inference of premeditation was negated by the fact that Patterson was still alive when
defendant left.
       On this record, the jury could have reasonably concluded that defendant planned a
knife attack on Patterson. There was no evidence that Patterson forced his way into
defendant’s home. Patterson parked and locked his car in defendant’s driveway in a
manner suggesting he believed he was welcome at the residence. The blood spatter and
DNA evidence supported a finding that defendant was the initial assailant, first stabbing
Patterson with a knife in the bedroom, then following him through the hallway, and
continuing to stab him in the kitchen until the knife broke when it hit Patterson’s skull.
Based on these facts, the jury could have determined that the “most reasonable
inference[s]” were that defendant either invited Patterson over as part of a plan to kill him
or that defendant formed the plan to kill Patterson after allowing Patterson to enter the
residence. (See People v. Perez (1992) 2 Cal.4th 1117, 1127.) Further, after the
stabbing, defendant tried to convince his neighbors that Patterson was fine, and he fled;
he did not seem “horrified and distraught about what he had done,” but rather like
“someone who had just fulfilled a preconceived plan.” (People v. Boatman (2013) 221
Cal.App.4th 1253, 1267 (Boatman).)
       Defendant next contends there was no evidence of motive. He relies to a large
extent on Boatman, supra, 221 Cal.App.4th 1253, in which the defendant shot his
girlfriend in the face. The Boatman court found no evidence of motive from the victim’s
text messages to a friend, which suggested the defendant was angry, nor from a loud
argument that began about three minutes before the shooting. (Id. at pp. 1258-1259,
1267-1268.) Defendant points out that according to the Boatman court, motive satisfies

                                             15
the Anderson test if it is “the kind of motive that ‘would in turn support an inference that
the killing was the result of “a pre-existing reflection” and “careful thought and weighing
of considerations” rather than “mere unconsidered or rash impulse hastily executed.” ’
[Citation.]” (Id. at p. 1268.)
       Here, the evidence of motive was much stronger than in Boatman. In contrast to
Boatman, the evidence here showed that defendant and Patterson had “long-term issues,”
and that they had been arguing for weeks prior to the homicide, not merely for a few
minutes beforehand. Over a month before the homicide, defendant said that he “could
kill” Patterson. This evidence supported an inference that the homicide “ ‘was the result
of “a pre-existing reflection” and “careful thought and weighing of considerations” rather
than “mere unconsidered or rash impulse hastily executed.” ’ [Citation.]” (Boatman,
supra, 221 Cal.App.4th at p. 1268.)
       Last, defendant contends the “manner of killing” evidence did not support a
finding that the murder was premeditated. Defendant contrasts the stabbing here with the
“execution-style murder” in People v. Hawkins (1995) 10 Cal.4th 920, 956 (overruled on
other grounds by People v. Lasko (2000) 23 Cal.4th 101), where the victim was shot at
close range in the back of the head and neck, and with cases where the defendant stabbed
the victim in the chest, where “crucial organs” are located. Defendant points out that the
stab wounds suffered by Patterson were not to critical organs and that they were spread
all over his body.
       The evidence here strongly suggested that defendant surprised Patterson with the
knife attack, indicating he premeditated the assault. Defendant’s blood was not found in
the bedroom, where the assault began, and the upper hand prints in the hallway were not
made by someone whose hands were bleeding. By contrast, Patterson lost a significant
amount of blood in the bedroom, and his hands were apparently bleeding as he crawled
through the hallway. This evidence indicates that defendant suffered no defensive
wounds initially, and thus indicates that he brought the knife into the bedroom and took

                                             16
advantage of an opportunity to attack an unsuspecting victim. In addition, most of the
stab wounds were very deep—many were three inches or more, which showed that
defendant acted in a manner consistent with the premeditated decision to kill Patterson.
The fact that Patterson’s wounds were not to vital organs does not detract from the
strength of this evidence. The blood in the hallway indicated that Patterson’s hands were
among the first body parts injured, suggesting he put his hands up to keep defendant from
stabbing more serious body parts. Further, “[t]he attack occurred in a series of rooms,
indicating that [Patterson’s] repeated attempts to break away . . . were consistently
thwarted by [defendant’s] relentless pursuit of him, even after he was gravely wounded.”
(People v. Sanchez (1995) 12 Cal.4th 1, 34 [manner of killing tended to demonstrate the
defendant acted with premeditation and deliberation], disapproved on another ground by
People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 (Doolin).) And finally, defendant
eventually did stab Patterson in a major artery as well as in the back of the head. These
facts supported a finding that defendant “must have intentionally killed according to a
‘preconceived design’ to take his victim’s life in a particular way.” (Anderson, supra,
70 Cal.2d at p. 27.)
       Because the evidence was sufficient to support a conviction of first degree
premeditated murder, we need not consider whether it also supported a conviction under
a torture-murder theory or a lying-in-wait theory. Any deficiency in the evidence of
alternative first degree murder theories is harmless “absent an affirmative indication in
the record that the verdict actually did rest” on one of those theories. (People v. Guiton
(1993) 4 Cal.4th 1116, 1129 [where case is given to jury on different factual theories, one
of which is not supported by the evidence, court presumes the jurors rejected that theory
and based the verdict on the factually supported theory].) The record here does not
affirmatively indicate the jury relied on torture or lying in wait rather than premeditation
as a basis for first degree murder.



                                             17
       B.      Discharge of Juror No. 11
       Defendant contends the trial court erred by discharging Juror No. 11 for
misconduct. He contends the error violated his constitutional rights to a jury trial and to
due process.
               1.    Proceedings Below
       The jury retired to deliberate about an hour before the lunch break on August 8,
2013.4 That afternoon, the prosecutor told the court that he had received a call from
another deputy district attorney named Kevin Smith shortly after noon. Smith had
overheard someone who matched the description of Juror No. 11 talking on his cell
phone. The prosecutor represented that Smith would tell the court what he had heard.
       The trial court asked defendant’s trial counsel if he wanted Smith to be sworn in.
Defendant’s trial counsel responded in the negative, noting that Smith was “an officer of
the court” who was expected to tell the truth.
       Smith then addressed the court. He had been outside the county building at noon,
waiting for some friends. He heard a male voice say, “not guilty,” and he looked up to
see the person. The person then said, “And I’ll probably be the only not guilty after
lunch too.” The person then walked away.
       Neither the prosecutor nor defendant’s trial counsel had any questions for Smith.
The trial court sent the bailiff into the jury room to ask Juror No. 11 to come to the
courtroom and to instruct the other jurors to cease their deliberations.
       The trial court addressed Juror No. 11, explaining that the juror had been
overheard talking on his cell phone and discussing “the status of the deliberations in this
case.” Juror No. 11 stated that he had been talking to his sister and that he had told her
about “being in the jury deliberation,” but that he had not gone “into detail.”

       4
        The clerk’s minutes reflect that the deputy was sworn to take charge of the jury
at 10:36 a.m., that the jury had begun deliberations by 10:44 a.m., and that the jury took
the lunch break at 11:52 a.m.

                                             18
       The trial court told Juror No. 11 that according to Smith, Juror No. 11 had actually
stated his position regarding whether defendant was guilty or not guilty with reference to
the “position of the other jurors.” Juror No. 11 replied, “I didn’t – I didn’t say which
position I had. I said, you know, I haven’t decided yet.”
       The trial court asked, “So, are you saying that you did not discuss your position
with respect to whether or not you felt the defendant was guilty or not guilty in this
case?” Juror No. 11 replied, “No, I did not.” The trial court asked, “And it’s also your
position that you did not state how the other 11 jurors were leaning with respect to guilty
or not guilty or conviction?” Juror No. 11 replied, “No. I just said – I told my sister,
‘We are in deliberation, you know, through this day, possibly tomorrow.’ ” According to
Juror No. 11, his sister asked how long deliberations would last, and he told her “that it
might take a couple of days.”
       The trial court asked Juror No. 11 if he had said “the words ‘not guilty’ ” during
the conversation with his sister. Juror No. 11 said, “Yes.” He had told his sister, “We are
in jury deliberation now. We are going – we’ve got to prove if he’s guilty or not guilty,
and it’s going to take some time, and everybody has got a chance to say what they
believe, and it will be, you know, a period of deliberation.”
       The trial court asked Juror No. 11 if he had told his sister that he “might be the
only not guilty vote after lunch.” Juror No. 11 replied, “No, I didn’t state anything in that
manner. Again, I just, you know, I was explaining that we’ve got to decide if he’s guilty
or not guilty, and that, you know, we will be back into deliberation after lunch.”
       The trial court asked Juror No. 11 to step out and then asked Smith more
questions. Smith confirmed that Juror No. 11 was the person he had overheard. The
trial court asked if Smith could have misheard Juror No. 11’s statements. Smith replied,
“No. I heard him say ‘not guilty’ with no explanation after it. And then I heard, ‘and
after lunch, I’ll probably be the only not guilty too.’ ” There was no question in Smith’s
mind regarding what he had heard.

                                             19
       The prosecutor asked the trial court to make a finding regarding Juror No. 11’s
credibility. The prosecutor argued that Smith was credible and that Juror No. 11 was not.
The prosecutor also argued that Juror No. 11 had engaged in misconduct.
       Defendant’s trial counsel argued that Juror No. 11 had not discussed the details of
the case and thus had not violated the admonition the jury had been given. Defendant’s
trial counsel asked the trial court to admonish Juror No. 11 instead of dismissing him.
       In announcing its ruling, the trial court first addressed the issue of whether Juror
No. 11 had committed misconduct. The trial court found it “clear” that Juror No. 11 had
discussed the case with his sister in violation of the admonition the court had given
pursuant to CALCRIM No. 3550.5
       Regarding credibility, the trial court noted that Smith was a “veteran district
attorney” who had tried at least three major cases before the trial court. Based on prior
cases, the trial court felt that Smith had integrity and that he was ethical and believable.
“So if Mr. Smith said he heard it, I know he heard it.” The trial court found that Smith
was “very credible.”
       On the other hand, Juror No. 11 was “clearly uncomfortable” when telling the trial
court about his conversation. Juror No. 11 was “evasive” and gave different answers
each time the trial court asked him questions. “[H]e was clearly not candid.” The trial
court found that juror No. 11 was “not credible.”
       The trial court found good cause to discharge Juror No. 11.




       5
         CALCRIM No. 3550 was read to the jury just prior to deliberations. In pertinent
part, the jury was instructed: “As I told you at the beginning of the trial, do not talk about
the case or about any of the people or any subject involved in it with anyone, including,
but not limited to, your spouse or other family, or friends, spiritual leaders or advisors, or
therapists. You must discuss the case only in the jury room and only when all jurors are
present. Do not discuss your deliberations with anyone. Do not communicate using
blogs, Facebook, Twitter, Tumblr, or any other social media during your deliberations.”

                                              20
              2.      Legal Standards
       The trial court may discharge a juror at any time, upon “good cause shown to the
court,” if the juror “is found to be unable to perform his or her duty.” (§ 1089; see
People v. Lomax (2010) 49 Cal.4th 530, 588 (Lomax).) Under section 1122, jurors must
not “converse among themselves, or with anyone else, on any subject connected with the
trial, or to form or express any opinion about the case until the cause is finally submitted
to them.” (Id., subd. (b).) The admonition against forming an opinion requires jurors to
consider all the evidence and precludes jurors from ignoring “further evidence, argument,
instructions, or the views of other jurors.” (People v. Allen and Johnson (2011) 53
Cal.4th 60, 73.) The admonition against discussing the case protects jurors from
extraneous influence outside of the evidence and instructions. (See In re Carpenter
(1995) 9 Cal.4th 634, 653.) “Violation of this duty is serious misconduct.” (In re
Hitchings (1993) 6 Cal.4th 97, 118.)
       “ ‘In determining whether juror misconduct occurred, “[w]e accept the trial court’s
credibility determinations and findings on questions of historical fact if supported by
substantial evidence.” ’ [Citations.]” (People v. Linton (2013) 56 Cal.4th 1146, 1194
(Linton).) The ultimate decision to discharge a juror is a matter within the trial court’s
discretion. (Lomax, supra, 49 Cal.4th at p. 589.) However, “ ‘a somewhat stronger
showing’ than is typical for abuse of discretion review must be made to support such
decisions on appeal. [Citation.]” (Ibid.) “[T]he basis for a juror’s disqualification must
appear on the record as a ‘demonstrable reality.’ This standard involves ‘a more
comprehensive and less deferential review’ than simply determining whether any
substantial evidence in the record supports the trial court’s decision. [Citation.] It must
appear ‘that the court as trier of fact did rely on evidence that, in light of the entire record,
supports its conclusion that bias was established.’ [Citation.] However, in applying the
demonstrable reality test, we do not reweigh the evidence. [Citation.] The inquiry is



                                               21
whether ‘the trial court’s conclusion is manifestly supported by evidence on which the
court actually relied.’ [Citation.]” (Id. at pp. 589-590, fn. omitted.)
        Defendant contends there was no evidence that Juror No. 11 could not perform his
duties. He contends the trial court was required to presume that all jurors would follow
the instructions given to them and that the trial court should have believed Juror No. 11
rather than Smith. He contends the record does not provide a basis for the trial court’s
credibility determination. He contends Juror No. 11 was credible because the
conversation occurred shortly after deliberations had begun, a time when the jurors were
“highly unlikely” to have already disclosed their votes for guilt.
        Substantial evidence supports the trial court’s finding that Smith was credible.
(See Linton, supra, 56 Cal.4th at p. 1194.) As defendant’s trial counsel observed, Smith
was an officer of the court who was expected to tell the truth. Smith was definitive and
consistent when reporting on the conversation he had overheard, and he told the trial
court there was no question in his mind about what he had heard. The trial court heard
Smith’s account of what he heard and thus was able to see Smith’s demeanor first-hand.
        Substantial evidence also supports the trial court’s finding that Juror No. 11 was
not credible. Juror No. 11 was vague and inconsistent when reporting on his statements
to his sister. Juror No. 11 first told the trial court only that he had told his sister about
“being in the jury deliberation.” Upon prodding from the trial court, Juror No. 11 then
added that he had also told his sister that he had not decided yet. Upon still further
questioning, he admitted using the term “not guilty,” but he denied stating a position.
The trial court was able to observe Juror No. 11’s demeanor in making these statements.
With respect to defendant’s claim that that the jurors were unlikely to have taken a vote at
the beginning of deliberations, we observe that it is common for a jury to take a
preliminary vote soon after they have retired to deliberate. (See, e.g., People v. Mendoza
(2000) 24 Cal.4th 130, 194; Vomaska v. City of San Diego (1997) 55 Cal.App.4th 905,
909.)

                                               22
       On this record, the trial court could reasonably conclude that Juror No. 11 was less
credible than Smith, and that Juror No. 11 had in fact violated his duty not to discuss the
case or the deliberations with anyone. As the basis for Juror No. 11’s disqualification
appears on the record “as a ‘demonstrable reality,’ ” the trial court did not abuse its
discretion by dismissing that juror. (Lomax, supra, 49 Cal.4th at p. 589.)
       C.     Failure to Instruct on Voluntary Manslaughter
       Defendant contends the trial court erred by failing to instruct the jury, sua sponte,
on voluntary manslaughter. The Attorney General contend that this claim was waived
under the doctrine of invited error.
              1.     Proceedings Below
       During the jury instruction conference, defendant’s trial counsel explained that
“an election was made to not include manslaughter as a lesser included.” Defendant’s
trial counsel noted that he had met with defendant and defendant’s family and that he had
explained to them his “strategic reasons and factual reasons for not wanting to have a
lesser included of either voluntary or involuntary manslaughter.” Defendant’s trial
counsel acknowledged that defendant disagreed with that strategy, but defendant’s trial
counsel did not think that defendant would insist on a voluntary manslaughter instruction
being given over counsel’s advice.
       Defendant’s trial counsel conferred with defendant, then reported that defendant
agreed that his “best interest is served by having the case go to the jury about a murder or
not guilty by reason of self-defense, period. No manslaughter.”
       The trial court noted “that giving the manslaughter instruction as a lesser included
offense is sua sponte to the court” and asked the prosecutor for his position. The
prosecutor noted that the evidence supporting provocation was “essentially” the same as
the evidence supporting self-defense, and that a finding of self-defense would “lead to a
not guilty entirely as opposed to a partial victory of voluntary manslaughter.” Thus, the



                                             23
prosecutor agreed that it was “a sensible tactical choice” to forego voluntary
manslaughter instructions.
       The trial court asked defendant’s trial counsel if he had discussed the matter with
defendant on previous occasions. Defendant’s trial counsel explained that he had
discussed the “ramifications” of the strategy with defendant previously as well as in court
that day. Defendant’s trial counsel reiterated that “from a strategic standpoint,” he was
choosing not to argue that provocation should reduce the homicide to voluntary
manslaughter because he wanted the jury to find that Patterson’s attack justified
defendant committing the homicide in self-defense. Defendant’s trial counsel also
explained that arguing imperfect self-defense would “detract” from his self-defense
argument.
       The trial court agreed not to give the manslaughter instructions.
       After the trial court instructed the jury, dismissed Juror No. 11, replaced Juror
No. 11 with an alternate, and instructed the jury to begin deliberations anew, defendant’s
trial counsel reported that defendant was now requesting involuntary and voluntary
manslaughter instructions. Defendant’s trial counsel reiterated that he had discussed the
issue with defendant on “numerous occasions,” including an hour-long conversation
before the jury was instructed. The trial court found that defendant’s request was
untimely.
              2.      Analysis
       “ ‘ “ ‘It is settled that in criminal cases, even in the absence of a request, the trial
court must instruct on the general principles of law relevant to the issues raised by the
evidence. . . .’ [Citation.] That obligation has been held to include giving instructions on
lesser included offenses when the evidence raises a question as to whether all of the
elements of the charged offense were present [citation], but not when there is no evidence
that the offense was less than that charged. [Citations.] The obligation to instruct on
lesser included offenses exists even when as a matter of trial tactics a defendant not only

                                               24
fails to request the instruction but expressly objects to its being given.” ’ [Citations.]”
(People v. Souza (2012) 54 Cal.4th 90, 114 (Souza), quoting People v. Breverman (1998)
19 Cal.4th 142, 154; see also People v. Birks (1998) 19 Cal.4th 108, 118.)
       Nevertheless, a claim that the trial court failed to comply with its obligation to
instruct on lesser-included offenses “may be waived under the doctrine of invited error if
trial counsel both ‘ “intentionally caused the trial court to err” ’ and clearly did so for
tactical reasons. [Citation.] Invited error will be found, however, only if counsel
expresses a deliberate tactical purpose in resisting or acceding to the complained-of
instruction. [Citations.]” (Souza, supra, 54 Cal.4th at p. 114.) “ ‘The doctrine of invited
error is designed to prevent an accused from gaining a reversal on appeal because of an
error made by the trial court at his [or her] behest.’ ” (People v. Coffman and Marlow
(2004) 34 Cal.4th 1, 49.) Thus, “a defendant may not invoke a trial court’s failure to
instruct on a lesser included offense as a basis on which to reverse a conviction when, for
tactical reasons, the defendant persuades a trial court not to instruct on a lesser included
offense supported by the evidence. [Citations.]” (People v. Barton (1995) 12 Cal.4th
186, 198.)
       An example of how the invited error doctrine applies to a trial court’s failure to
instruct on a lesser included offense is provided by People v. Cooper (1991) 53 Cal.3d
771 (Cooper). In that case, the defendant was charged with several counts of first degree
murder, but the trial court indicated it was considering giving instructions on second
degree murder as well. (Id. at p. 825.) The defendant’s trial counsel objected to the
second degree murder instructions, repeatedly stating that he did not want the jury to
reach a compromise verdict. (Id. at p. 826.) The defendant’s trial counsel indicated he
had obtained the defendant’s agreement with respect to that decision, and the defendant
confirmed he did agree. (Ibid.)
       On appeal, the Cooper defendant argued that the trial court had erred by failing to
instruct on second degree murder, but the California Supreme Court held that “any error

                                              25
was invited” because the record showed that “[d]efense counsel had a deliberate tactical
purpose for his objection.” (Cooper, supra, 53 Cal.3d at p. 827.) The record showed that
the defendant’s trial counsel “believed it was in his client’s interest not to have the
second degree murder instructions” and that counsel was aware that without an objection,
the trial court would have given the lesser included offense instruction. (Id. at p. 831.)
The court also noted that the defendant’s “personal waiver” was not required for
application of the invited error doctrine. (Id. at p. 827) Rather, “the action of ‘counsel’ ”
is “the critical factor.” (Ibid.)
       In this case, the record similarly shows that defendant’s trial counsel made a
deliberate, tactical choice to refuse manslaughter instructions. As in Cooper, defendant’s
trial counsel made it clear he did not want the jury to have a basis upon which it could
reach a compromise verdict. Defendant’s trial counsel believed it was in defendant’s best
interest to pursue such a strategy, and he understood that the trial court would have given
manslaughter instructions but for his objection. Under the circumstances, the invited
error doctrine applies. Even though defendant himself later changed his mind, “the
action of ‘counsel’ ” is “the critical factor” with respect to application of the invited error
doctrine. (Cooper, supra, 53 Cal.3d at p. 827.)
       D.      Self-Defense Instruction
       Defendant contends the trial court erred by including the word “and” instead of the
word “or” when instructing the jury pursuant to CALCRIM No. 506, which is entitled
“Justifiable Homicide: Defending Against Harm to Person Within Home or on Property.”
               1.      Instruction
       The trial court instructed the jury pursuant to CALCRIM No. 506 as follows:
“The defendant is not guilty of murder if he killed to defend himself in the defendant’s
home. Such a killing is justified, and therefore not unlawful, if: [¶] One, the defendant
reasonably believed that he was defending his home against Ricky Patterson who
intended to or tried to commit the crime of assault with a deadly weapon and tried to

                                              26
enter or did enter that home intending to commit an act of violence against someone
inside; [¶] Two, the defendant reasonably believed that the danger was imminent; [¶]
Three, the defendant reasonably believed that the use of deadly force was necessary to
defend against the danger; [¶] and [¶] Four, the defendant used no more force than was
reasonably necessary to defend against the danger. [¶] Belief in future harm is not
sufficient, no matter how great or how likely the harm is believed to be. The defendant
must have believed there was imminent danger of violence to himself. Defendant’s belief
must have been reasonable and he must have acted only because of that belief. The
defendant is only entitled to use the amount of force that a reasonable person would
believe is necessary in the same situation. If the defendant used more force than was
reasonable, then the killing was not justified. [¶] When deciding whether the defendant’s
beliefs were reasonable, consider all the circumstances as they were known to and
appeared to the defendant and consider what a reasonable person in a similar situation
with similar knowledge would have believed. If the defendant’s beliefs were reasonable,
the danger does not need to have actually existed. [¶] A defendant is not required to
retreat. He is entitled to stand his ground and defend himself and, if reasonably
necessary, to pursue an assailant until the danger of death or bodily injury has passed.
This is so even if safety can [be] achieved by retreating. [¶] The People have the burden
of proving beyond a reasonable doubt that the killing was not justified. If the People
have not met this burden, you must find the defendant not guilty of murder.” (Emphasis
added.)
              2.     Analysis
       The defense described in CALCRIM No. 506 is based on section 197,
subdivision (2), which provides that a homicide is justifiable “[w]hen committed in
defense of habitation, property, or person, against one who manifestly intends or
endeavors, by violence or surprise, to commit a felony, or against one who manifestly
intends and endeavors, in a violent, riotous or tumultuous manner, to enter the habitation

                                            27
of another for the purpose of offering violence to any person therein.” (Emphasis added.)
In contrast to the instruction given here, the standard version of CALCRIM No. 506
contains the word “or” where the word “and” appears in italics in the quoted instruction
above.6
       The Attorney General concedes and we agree that the trial court here erred by
replacing the word “or” with the word “and” in the first element of CALCRIM No. 506.
Thus, the question is whether the error requires reversal.
       We will assume that a court’s misinstruction on an element of a defense is akin to
a court’s misinstruction on an element of an offense, which is subject to harmless error
review under the beyond-a-reasonable-doubt standard of Chapman v. California (1967)
386 U.S. 18, 24 (Chapman). (See People v. Flood (1998) 18 Cal.4th 470, 502-503.)
Under this standard, the error is harmless only if we can declare “beyond a reasonable
doubt that the error complained of did not contribute to the verdict obtained.” (Chapman,
supra, at p. 24.) “To say that an error did not contribute to the verdict is, rather, to find
that error unimportant in relation to everything else the jury considered on the issue in
question, as revealed in the record.” (Yates v. Evatt (1991) 500 U.S. 391, 403 (Yates)
disapproved on another ground by Estelle v. McGuire (1991) 502 U.S. 62, 73, fn. 4.)
       As given, the instruction required the jury to find that Patterson both (1) “intended
to or tried to commit the crime of assault with a deadly weapon” and (2) “tried to enter or
did enter that home intending to commit an act of violence against someone inside.” The
instruction should have required the jury to find only one of these two facts. On this
record, however, the error was harmless beyond a reasonable doubt. The defense theory
was that Patterson went to defendant’s residence with the intent to commit an act of
violence against him, and then proceeded to assault defendant with the knife while


       6
        The written version of CALCRIM No. 506 provided to the jury also contained
the word “and” instead of the word “or.”

                                              28
defendant was in his bed. Defendant’s trial counsel never argued that Patterson formed
the intent to commit an act of violence against defendant after entering the residence. If
the jury believed the defense theory that Patterson assaulted defendant with a knife while
defendant was in bed, it would have found that Patterson both “intended to or tried to
commit the crime of assault with a deadly weapon” and “tried to enter or did enter that
home intending to commit an act of violence against someone inside.” Because the
defense theory relied on the existence of both facts, the instructional error was
“unimportant in relation to everything else the jury considered on the issue in question, as
revealed in the record.” (Yates, supra, 500 U.S. at p. 403.)
       Moreover, the defense of section 197, subdivision (2) as defined in CALCRIM
No. 506 required the jury to find that defendant “used no more force than was reasonably
necessary to defend against the danger.” The evidence overwhelmingly established that
defendant used more force than necessary, even if Patterson did initiate the assault by
coming towards defendant with a knife. The incident began in the bedroom, where only
Patterson’s blood was found. This evidence established that defendant either initiated the
assault with the knife or quickly disarmed Patterson of the knife. Further, Patterson was
stabbed more than 30 times, including a likely final blow to the back of the head that was
hard enough to break the knife. Many of Patterson’s wounds were inflicted in the
kitchen, after he was so wounded he could only crawl out of the bedroom. On this
record, no reasonable juror would find that defendant “used no more force than was
reasonably necessary to defend against the danger.” Thus, beyond a reasonable doubt,
the instructional error with respect to Patterson’s intent and entry “did not contribute to
the verdict obtained.” (Chapman, supra, 386 U.S. at p. 24.)
       E.     Prosecutorial Misconduct
       Defendant contends the prosecutor committed misconduct during closing
argument by (1) misstating the law of self-defense within the home, (2) appealing to the



                                             29
sympathy of the jurors, (3) injecting his personal opinion of the evidence into the trial,
and (4) attacking defense counsel.
       The general rules applying to claims of prosecutorial misconduct are as follows:
“Under the federal Constitution, to be reversible, a prosecutor’s improper comments must
‘ “so infect[ ] the trial with unfairness as to make the resulting conviction a denial of due
process.” ’ [Citations.] ‘ “But 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 court or
the jury.” ’ ” [Citations.]’ [Citation.]” (People v. Cunningham (2001) 25 Cal.4th 926,
1000.) When the claim of prosecutorial misconduct “is based upon ‘comments made by
the prosecutor before the jury, 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.]’ [Citations.]” (Id. at p. 1001.)
       “A defendant generally ‘ “ ‘may not complain on appeal of prosecutorial
misconduct unless in a timely fashion—and on the same ground—the defendant made an
assignment of misconduct and requested that the jury be admonished to disregard the
impropriety. [Citation.]’ ” [Citation.]’ [Citation.] A defendant’s failure to object and to
request an admonition is excused only when ‘an objection would have been futile or an
admonition ineffective.’ [Citation.]” (People v. Fuiava (2012) 53 Cal.4th 622, 679
(Fuiava).)
       Here, defendant’s claims of prosecutorial misconduct all involve prosecutorial
argument to which his trial counsel failed to object. As to some of the claims, he asserts
that an objection would have been futile, and he argues that his trial counsel was
ineffective for failing to object in each instance.
              1.      Alleged Misstatement of Law
       Defendant first contends that the prosecutor misstated the law of self-defense
within the home by stating that the defense applied only if the jury found that Patterson

                                              30
broke into defendant’s residence “with murder on his mind.” Defendant points out that
the instructions and law required the jury to find that Patterson intended to assault
defendant, not murder him.
       The challenged comment was made in the context of the prosecutor’s discussion
of the presumption set forth in section 198.5: that a person held “a reasonable fear of
imminent peril of death or great bodily injury” if he or she used “force intended or likely
to cause death or great bodily injury within his or her residence” against a person who
“unlawfully and forcibly entered” the residence. The prosecutor told the jurors, “[Y]ou
don’t need [that presumption]. If you find that Ricky Patterson broke into that house with
murder on his mind, send [defendant] home. That’s not what happened.”
       “[I]t is misconduct for the prosecutor to misstate the applicable law [citation].”
(People v. Boyette (2002) 29 Cal.4th 381, 435.) Here, the prosecutor’s comment did not
state that the jury could find defendant acted in self-defense within his home only if
Patterson broke in with “murder on his mind.” In context, the prosecutor was telling the
jury that it did not need to even consider whether the section 198.5 presumption applied if
Patterson was thinking of killing defendant when he entered defendant’s residence.
       Even assuming the prosecutor misstated the law, an objection would not have been
futile and an admonition would have been effective. (See Fuiava, supra, 53 Cal.4th at
p. 679.) Defendant’s trial counsel could have requested the trial court tell the jury the
correct legal standard. However, defendant’s trial counsel was not ineffective for failing
to object and request an admonition. “[D]eciding whether to object is inherently tactical,
and the failure to object will rarely establish ineffective assistance. [Citations.]” (People
v. Maury (2003) 30 Cal.4th 342, 419.) The record indicates defendant’s trial counsel
made a tactical decision to respond to the prosecutor’s comments by reading the jury the
requirements for CALCRIM No. 506 during his own argument. (See People v. Welch
(1999) 20 Cal.4th 701, 764 (Welch ).) This decision was reasonable, particularly since
the jury was also instructed to follow the trial court’s instructions on the law and that if

                                              31
“the attorneys’ comments on the law conflict with [the] instructions, you must follow
[the] instructions.” (See CALCRIM No. 200.)
              2.     Alleged Appeals to Jurors’ Sympathy
       Defendant next contends the prosecutor improperly appealed to the sympathy of
the jurors by (1) asking the jurors to consider what they would think if “someone did this
to a dog or cat” and saying that only a “sadistic evil person” would do such a thing;
(2) referring to self-defense as a “license to kill;” and (3) repeatedly reminding the jury
how much defendant’s expert (Dr. Melinek) was being paid.
       “A prosecutor may ‘vigorously argue his [or her] case and is not limited to
“Chesterfieldian politeness” ’ [citation], and he [or she] may ‘use appropriate epithets
warranted by the evidence.’ [Citations.]” (People v. Fosselman (1983) 33 Cal.3d 572,
580.) When a defendant claims that a prosecutor made outrageous or prejudicial
comments, we “view the statements in the context of the argument as a whole.
[Citation.]” (People v. San Nicolas (2004) 34 Cal.4th 614, 665-666.)
              a.     References to Animals and Use of Term “Sadistic”
       The prosecutor’s comments about animals came in the context of his argument
about first degree murder by torture. The prosecutor argued that the elements of torture-
murder—including the requirement that the defendant “intended to inflict the pain for
any sadistic reason”—were met. (See CALCRIM No. 733; People v. Jennings (2010)
50 Cal.4th 616, 676, fn. 28.) The prosecutor stated, “Just look at what happened to
Mr. Patterson and ask yourself this question: Is it anything but sadistic to do this to your
friend? Or any other person? [¶] You know, sometimes I think we, in the [B]ay [A]rea,
a lot of us are animal lovers. Imagine what you might think if someone did this to a dog
or a cat. Who would think for one millisecond that that was anything but a sadistic, evil
person? [¶] Ricky Patterson is a human being. Of course it’s sadistic.”
       The above argument did not amount to an improper appeal to the jury’s
sympathies. The prosecutor did not argue that defendant had inflicted animal abuse; he

                                             32
argued that defendant had inflicted pain on Patterson, a human being. Further, the term
“sadistic” was in the jury instruction on torture-murder. (See CALCRIM No. 733.)
Moreover, even if the comments did cross the line of permissible argument, an objection
and admonition would have cured the harm. (See Fuiava, supra, 53 Cal.4th at p. 679.)
And finally, trial counsel was not ineffective for failing to object, as the record reveals he
made a reasonable tactical decision to respond to the prosecutor’s remarks in his own
argument.7 (See Welch, supra, 20 Cal.4th at p. 764.)
              b.     Use of Phrase “License to Kill”
       The prosecutor used the term “license to kill” several times when discussing self-
defense. The prosecutor equated “lawful self-defense” with “a right to kill someone” and
a “license to kill.” Even if the prosecutor’s use of the phrase “license to kill” amounted
to an improper attempt to persuade the jury, an objection and admonition would have
cured any harm. (See Fuiava, supra, 53 Cal.4th at p. 679.) And on this record, trial
counsel’s failure to object appears to be the result of a tactical decision. During his own
argument to the jury, defendant’s trial counsel discussed each element of self-defense as
provided by CALCRIM No. 505. Defendant’s trial counsel appears to have determined
that it would be more effective to respond to the prosecutor’s argument by focusing on
the facts and the wording of the self-defense instruction. (See Welch, supra, 20 Cal.4th
at p. 764.) This was a reasonable tactical decision, particularly since the jury was told to
follow the trial court’s instructions rather than the arguments of counsel. (See
CALCRIM No. 200.)

       7
         Defendant’s trial counsel argued that the prosecutor “tried to appeal to your
emotions by comparing to what happened to [Patterson] to your feelings if the knife
wounds had been used on a dog or a cat in the hope that you would consider [Patterson]
in the same way you would feel for a dog or a cat. A dog and a cat are defenseless
animals. They love people, by and large. They don’t carry knives. They don’t sneak
into a house trying to kill you. Why would he use that example? Just to pull at your
heart strings, to hope that you will make an emotional decision rather than one based on
facts.”

                                              33
              c.      Comments About Defense Expert
       When cross-examining Dr. Melinek, the prosecutor elicited the fact that she had
put in about 10 hours of work on defendant’s case and the fact that she charged $600 per
hour. During argument to the jury, the prosecutor referred to Dr. Melinek’s “$6,000
worth of testimony.” The prosecutor noted that he had not asked Dr. Melinek “how
much more she would make over that lunch hour” and that she would make $864,000 a
year by working only 30 hours per week for 40 weeks out of the year. The prosecutor
also noted that her “over $6,000 of testimony” had informed the jury that “sometimes
people run out of fear from future consequence,” and he commented, “As if we needed a
$600-an-hour expert to tell us that.” The prosecutor later argued that Dr. Melinek had an
“incentive” to give testimony that was helpful to the defense because she was getting
“paid $600 an hour.”
       “[T]he prosecutor has considerable leeway in suggesting an expert may testify a
certain way for financial gain or other reasons, without committing misconduct.
[Citation.]” (People v. Salcido (2008) 44 Cal.4th 93, 154 (Salcido).) Here, an objection
and admonition would have cured any harm (see Fuiava, supra, 53 Cal.4th at p. 679), and
trial counsel’s failure to object appears to be the result of a tactical decision to respond
during his own argument, rather than due to ineffective assistance.8 (See Welch, supra,
20 Cal.4th at p. 764.)




       8
        Defendant’s trial counsel responded to the prosecutor’s comments as follows:
“I’m not going to dignify [the prosecutor’s] attack on Doctor Melinek’s compensation.
That was paid to her by the county. Those fees were paid only after [the presiding judge]
was satisfied that the fees were reasonable and proper. To suggest that she earns
$840,000 a year and, therefore, for some reason you should disregard her testimony is
absurd.”

                                              34
                3.     Alleged Injection of Personal Opinion
         Defendant next contends the prosecutor improperly injected his personal opinion
of the evidence into the trial. Defendant identifies six comments as objectionable on this
basis.
         “ ‘[A] prosecutor may not . . . vouch personally for the appropriateness of the
verdict he or she urges.’ [Citation.]” (People v. Ayala (2000) 24 Cal.4th 243, 288.) “A
prosecutor is [also] prohibited from vouching for the credibility of witnesses or otherwise
bolstering the veracity of their testimony by referring to evidence outside the record.
[Citaitons.]” (People v. Frye (1998) 18 Cal.4th 894, 971, disapproved on another ground
by Doolin, supra, 45 Cal.4th at p. 421, fn. 22.)
         First, defendant criticizes the prosecutor for telling the jury, “I can’t think of a
more idiotic, stupid way to go over to your friend’s house with an intent to injure or kill
him than to do it in your own truck, lock the doors so you can’t make a speedy
getaway . . . .” Second, he criticizes the prosecutor for saying, “I think probably the thing
that illustrates the lack of Mr. Patterson’s intent [to harm defendant]” is that “the phone
was on the speaker.” As to both of these comments, the gist of defendant’s criticism is
the prosecutor’s use of the pronoun “I.” However, “[s]uch phraseology hardly establishes
impermissible expression of personal belief in the defendant’s guilt. [Citation.]
Examination of the prosecutor’s closing argument demonstrates that he was merely
presenting his views of the deductions and inferences warranted by the evidence.
[Citation.]” (People v. Allison (1989) 48 Cal.3d 879, 894 (Allison).)
         The third challenged comment was made when the prosecutor discussed the length
of time that defendant’s trial counsel spent cross-examining Phan, one of the two
neighbors who testified. The prosecutor told the jury, “I honestly can’t explain why
[defense] counsel took so much time with Miss Phan when it’s corroborated by Mr.
Brilliantes’ testimony.” While “ ‘[p]ersonal attacks on opposing counsel are improper
and irrelevant to the issues,’ ” in this instance “ ‘[t]he prosecutor did not engage in such

                                                35
forbidden tactics as accusing defense counsel of fabricating a defense or factually
deceiving the jury.’ ” (People v. Friend (2009) 47 Cal.4th 1, 31 (Friend).) In context, a
reasonable jury would have understood the prosecutor to be arguing about the strength of
the evidence.
       The fourth challenged comment was made when the prosecutor was discussing
Dr. Melinek’s testimony. The prosecutor noted that he had asked Dr. Melinek whether
credible experts have legitimate differences of opinion and that Dr. Melinek had agreed.
The prosecutor then stated, “What Doctor Melinek needs to add to that statement is:
experts who are paid $600 an hour to wait in the hallway to tell you people run out of
fear.[] Okay. I agree.” By expressing his personal agreement with Dr. Melinek’s
testimony that “people run out of fear,” the prosecutor did not overstep the bounds of
permissible argument. As noted above, “[t]he prosecutor has considerable leeway” in
discussing the testimony of a defense expert (Salcido, supra, 44 Cal.4th at p. 154) and in
context, the prosecutor’s reference to his agreement with Dr. Melinek did not amount to
an impermissible expression of personal belief in defendant’s guilt. (See Allison, supra,
48 Cal.3d at p. 894.)
       The final two challenged comments occurred during the prosecutor’s closing
argument. The prosecutor noted that although the defense had called Deputy Valadez,
defendant’s trial counsel had criticized parts of his testimony. The prosecutor stated,
“I just don’t understand [that].” Later, the prosecutor referred to a statement by
defendant’s trial counsel that his job was not to tell the jury “what the facts are,” but “to
give you possibilities, to give you a perspective, to ask you to look carefully at what the
evidence was in this case . . . .” The prosecutor told the jury, “I agree. Counsel’s here to
come up with possibilities, not reasonable doubt.” Neither of the these comments was
improper; the prosecutor did not express a personal belief in defendant’s guilt, imply
there were additional facts not in evidence, vouch for the credibility of a witness, or make
a personal attack on defendant’s trial counsel.

                                              36
              4.     Alleged Attacks on Defendant’s Trial Counsel
       Finally, defendant contends the prosecutor improperly attacked defendant’s trial
counsel during argument by stating that the job of defendant’s trial counsel was “just to
point out possibilities, whether they are reasonable or not” and “to come up with
possibilities, not reasonable doubt.” As noted above, these comments were made in
response to statements made by defendant’s trial counsel, who had previously told the
jury, “My job is to give you possibilities, to give you a perspective, to ask you to look
carefully at what the evidence was in this case . . . .” The prosecutor’s responsive
comments did not amount to improper “ ‘[p]ersonal attacks on opposing counsel’ ” or
“ ‘such forbidden tactics as accusing defense counsel of fabricating a defense or factually
deceiving the jury.’ ” (Friend, supra, 47 Cal.4th at p. 31.)
       F.     Ineffective Assistance of Counsel
       Defendant contends his trial counsel was ineffective for (1) requesting the jury not
be instructed on manslaughter, (2) failing to object to the erroneous instruction on self-
defense within the home, and (3) failing to object to the above-identified instances of
prosecutorial misconduct.
       “ ‘In order to establish a clim of ineffective assistance of counsel, defendant bears
the burden of demonstrating, first, that counsel’s performance was deficient because it
“fell below an objective standard of reasonableness [¶] . . . under prevailing professional
norms.” [Citations.] Unless a defendant establishes the contrary, we shall presume that
“counsel’s performance fell within the wide range of professional competence and that
counsel’s actions and inactions can be explained as a matter of sound trial strategy.”
[Citation.] If the record “sheds no light on why counsel acted or failed to act in the
manner challenged,” an appellate claim of ineffective assistance of counsel must be
rejected “unless counsel was asked for an explanation and failed to provide one, or unless
there simply could be no satisfactory explanation.” [Citations.] If a defendant meets the
burden of establishing that counsel’s performance was deficient, he or she also must

                                             37
show that counsel’s deficiencies resulted in prejudice, that is, a “reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” [Citation.]’ [Citation.]” (People v. Lopez (2008) 42 Cal.4th 960, 966
(Lopez); see Strickland v. Washington (1984) 466 U.S. 668, 690, 694.)
              1.      Refusal of Manslaughter Instructions
       Defendant first contends his trial counsel was ineffective for requesting the jury
not be instructed on manslaughter. We have previously concluded that to the extent the
trial court had a sua sponte duty to give manslaughter instructions, any error in failing to
so instruct was invited by defendant’s trial counsel.
       The decision to forego manslaughter instructions in this case, in order to avoid a
compromise verdict, was a reasonable tactical decision “in light of the evidence.”
(Cooper, supra, 53 Cal.3d at p. 832.) Most significantly, after his fall or jump from the
overpass, defendant stated, “He had a knife. He came at me.” Trial counsel could
reasonably determine that this statement was consistent with a self-defense verdict but
inconsistent with a manslaughter verdict. That is, if the jury had believed defendant’s
statement, it would necessarily have believed that defendant did not kill Patterson in a
sudden quarrel or heat of passion or due to an unreasonable belief in the need to defend
himself. (See People v. Manriquez (2005) 37 Cal.4th 547, 583 [“an intentional killing is
reduced to voluntary manslaughter if . . . the defendant acts upon a sudden quarrel or heat
of passion on sufficient provocation . . . , or kills in the unreasonable, but good faith,
belief that deadly force is necessary in self-defense”].) To have argued for a
manslaughter verdict might have “undercut the credibility of the defense.” (Cooper,
supra, 53 Cal.3d at p. 832.) As defendant’s trial counsel’s actions “ ‘ “can be explained
as a matter of sound trial strategy,” ’ ” we conclude that “ ‘ “counsel’s performance fell
within the wide range of professional competence” ’ ” and that defendant did not receive
ineffective assistance of counsel when his trial counsel requested that the trial court not
give manslaughter instructions. (Lopez, supra, 42 Cal.4th at p. 966.)

                                              38
              2.     Failure to Object to Wording of CALCRIM No. 506
       Defendant next contends his trial counsel was ineffective for failing to object to
the erroneous instruction on self-defense within the home. We have previously
concluded that the erroneous instruction was harmless beyond a reasonable doubt.
(Chapman, supra, 386 U.S. at p. 24.) As there was no prejudice from that instruction,
defendant’s trial counsel was not ineffective for failing to object.
              3.     Failure to Object to Prosecutorial Misconduct
       Finally, defendant contends his trial counsel was ineffective for failing to object to
the prosecutor’s comments that defendant alleges to have constituted prosecutorial
misconduct. As to each instance, we have previously concluded there was no
prosecutorial misconduct or that defendant’s trial counsel was not ineffective for failing
to object.
       G.     Admission of Evidence Relating to McClendon
       Defendant contends the trial court erred by allowing the prosecution to introduce
evidence concerning defendant’s relationship with his ex-girlfriend, McClendon. That
evidence included defendant’s behavior on May 2, 2011 (when he blocked McClendon’s
car, exhibited “erratic” behavior, and threatened to kill himself), the fact that McClendon
obtained a restraining order, and the evidence of defendant’s various Google searches.
              1.     Proceedings Below
       During trial, defendant objected “as to its relevance” regarding the admission of
testimony about the incident involving McClendon. The prosecutor argued that the
evidence was relevant to defendant’s mental state around the time of the offense. The
trial court found that the proposed testimony would be “highly relevant” and that it was
admissible.
       Following McClendon’s testimony, the prosecutor noted that pursuant to a
discussion with defendant’s trial counsel, the prosecutor had purposely avoided asking



                                             39
McClendon questions that would have elicited that defendant had made “some threats
[of] violence.”
       During argument to the jury, the prosecutor told the jury that in order to
understand what defendant did, “you have to understand what’s going on in the
defendant’s mind.” The prosecutor referred to defendant’s reaction to his recent breakup
with McClendon and reminded the jury that defendant’s “mind state at the time” included
suicidal thoughts. The prosecutor argued that defendant’s Google searches gave the jury
“a window” into what defendant was thinking at the time and argued that the evidence
showed that “[t]hings are spiral[]ing out of control to such a degree that he’s
contemplating suicide . . . .” The prosecutor also argued that some of defendant’s Google
searches showed him contemplating “doing things that aren’t that different from what
happened to Mr. Patterson.” He reminded the jury that defendant had told McClendon,
“I can’t take too much or I’m going to snap,” and he argued, “That’s what happened on
May 10th, 2011, at defendant’s house. He snapped. He couldn’t take it anymore, and he
took someone with [him], his friend, Ricky Patterson . . . .”
               2.      Analysis
       Defendant first contends the evidence relating to McClendon was not relevant to
the issues at trial.
       “ ‘Relevant evidence’ means evidence, including evidence relevant to the
credibility of a witness or hearsay declarant, having any tendency in reason to prove or
disprove any disputed fact that is of consequence to the determination of the action.”
(Evid. Code, § 210.) “The test of relevance is whether the evidence tends ‘ “logically,
naturally, and by reasonable inference” to establish material facts such as identity, intent,
or motive. [Citations.]’ [Citation.] The trial court has broad discretion in determining
the relevance of evidence [citations], but lacks discretion to admit irrelevant evidence.
[Citations.]” (People v. Scheid (1997) 16 Cal.4th 1, 13-14.)



                                             40
       As the prosecutor argued during trial, the evidence of defendant’s reaction to the
breakup with McClendon was relevant to his state of mind on the day of the stabbing.
That evidence showed that defendant was experiencing intense feelings of frustration to
the extent that he was contemplating suicide. These feelings provided a possible motive
for defendant’s commission of the charged offense. Thus, the trial court did not abuse its
discretion by determining that the evidence was relevant.
       Defendant next contends the evidence of his relationship with McClendon was
improper character evidence under Evidence Code section 1101, subdivision (a). While
Evidence Code section 1101, subdivision (a) prohibits the introduction of “evidence of a
person’s character or a trait of his or her character (whether in the form of an opinion,
evidence of reputation, or evidence of specific instances of his or her conduct) . . . when
offered to prove his or her conduct on a specified occasion,” Evidence Code
section 1101, subdivision (b) specifies that such evidence is admissible “when relevant to
prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake or accident . . .) other than his or her disposition to commit
such an act.” As just discussed, the evidence showed that defendant was experiencing
intense feelings of frustration, which provided a possible motive for his commission of
the charged offense. This motive evidence was admissible under Evidence Code
section 1101, subdivision (b).
       Finally, defendant contends the probative value of the challenged evidence was
substantially outweighed by its prejudicial effect. (See Evid. Code, § 352.) Evidence
Code section 352 provides: “The court in its discretion may exclude evidence if its
probative value is substantially outweighed by the probability that its admission will
(a) necessitate undue consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.” Prejudicial evidence means
“ ‘evidence which uniquely tends to evoke an emotional bias against defendant as an
individual and which has very little effect on the issues.’ ” (People v. Bolin (1998)

                                             41
18 Cal.4th 297, 320.) “ ‘In applying [Evidence Code] section 352, “prejudicial” is not
synonymous with “damaging.” ’ [Citation.]” (People v. Karis (1988) 46 Cal.3d 612,
638.)
        The evidence concerning McClendon was not particularly inflammatory and thus
was not the type of evidence that would tend to evoke an emotional bias against
defendant. Defendant did not commit any actual physical violence against McClendon,
whereas in the charged offense he committed a brutal stabbing. The Google searches
showed defendant’s frustration, but nothing about the searches was likely to inflame the
jury or suggest defendant had a propensity to commit violent acts against others. The
evidence was presented without consuming a great deal of time, and there was no danger
the jury would confuse the issues involving McClendon with the issues it had to resolve
in determining defendant’s guilt at trial. The trial court therefore did not abuse its
discretion under Evidence Code section 352.

                                    IV.   DISPOSITION
        The judgment is affirmed.




                                             42
                             ___________________________________________
                             BAMATTRE-MANOUKIAN, ACTING P.J.




WE CONCUR:




__________________________
MIHARA, J.




__________________________
MÁRQUEZ, J.
