Filed 7/14/16 P. v. Stapleton CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D068519

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCN323193)

KIRK LEON STAPLETON,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Blaine K.

Bowman, Judge. Affirmed.

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

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James H.

Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
      Kirk Leon Stapleton appeals a judgment following his jury conviction of first

degree murder (Pen. Code, § 187, subd. (a)).1 On appeal, he contends the prosecutor

committed prejudicial error by misstating during his closing argument the law on the heat

of passion theory of voluntary manslaughter.

                  FACTUAL AND PROCEDURAL BACKGROUND

      In 2013, Stapleton, together with his brothers John and Scot and other roommates,

lived in his Vista family home. In August, Juanita Kawash, Stapleton's girlfriend, had

been living with him in the garage for two months.

      In August 2013, Stapleton and Kawash had a heated argument in the front yard

driveway. He accused her of "giving it to everybody else [for] free." She asked him to

leave her alone. A neighbor, Bonnie Berumen, heard Kawash say, "help me, help me."

Another neighbor, Ysidro Bazan, saw Stapleton pull Kawash by her hair. Stapleton

appeared very angry and Kawash was crying and yelling. Stapleton threw her to the

ground and appeared to be trying to take her inside the house.

      Scot heard the arguing, went to see what was happening, and saw Stapleton with

his hands on Kawash's shoulders. John also heard the argument in the front yard. He

heard Stapleton yell at Kawash: "Fucking bitch. Why did you do that to me, bitch?"

Kawash replied, "I love you, Kirk." He said, "Fuck you, bitch." Looking out a window,

John saw Stapleton had a butcher knife in his hand and asked him, "[W]hat the fuck [are]

you doing?" The next time John looked out the window, Stapleton did not have the



1     All statutory references are to the Penal Code.
                                            2
knife, but he was dragging Kawash. At some point during the argument, John heard

Stapleton say something about Kawash having AIDS and that he had proof she had

exposed him to it.2 Stapleton pulled Kawash inside the house by her hair. As he pulled

her through the living room and kitchen, John left to walk his dog.3 When John returned,

the kitchen was "destroyed." Its curtains were torn down, dishes were shattered, and

things were everywhere.4 A bathroom sink had been pulled off of the wall and its drain

pipe broken.

      The next morning, John asked Stapleton about Kawash. Stapleton told him, "I

killed Juanita. What should I do? Are you going to snitch on me?" He said he had killed

her by accident. Later that day, Stapleton asked John for some trash bags and tape. John

gave him some "jumbo" bags. John also kept a shopping cart in their backyard.

      A video recording from a surveillance camera showed Stapleton pushing a

shopping cart to a dumpster behind a grocery store at about 10:57 a.m. on August 18,

2013. He was drinking a beer. He tried to lift a large object wrapped in a black bag from

the cart and toward the dumpster, but it apparently was too heavy and he placed it on the




2      Stapleton's wallet was later found to have a letter indicating Kawash's former
boyfriend, Angel Pineda, was HIV positive.

3     John had been beaten by Stapleton in the past and was scared.

4     Kawash's blood was later found on a space heater in the kitchen.

                                            3
ground next to the dumpster. He left a beer can at the scene.5 On August 19, an

employee discovered Kawash's body.

       The medical examiner found Kawash had suffered significant traumatic or violent

injuries, including a fractured jaw, skull fractures, and broken ribs and vertebrae,

consistent with her being punched, kicked, and stomped. She concluded the cause of

Kawash's death was homicidal violence and that she was alive when the injuries were

inflicted.

       An information charged Stapleton with one count of murder (§ 187, subd. (a)) and

alleged he had a prison prior within the meaning of sections 667.5, subdivision (b), and

668. At trial, the prosecution presented evidence substantially as described above. The

jury found Stapleton guilty of first degree murder. The trial court sentenced him to an

indeterminate term of 25 years to life for his murder conviction and a determinate term of

one year for the section 667.5, subdivision (b), and section 668 enhancement.6 Stapleton

timely filed a notice of appeal.




5      Stapleton's DNA was later found on the beer can.

6      Although the parties do not cite to the record showing whether that enhancement
was based on Stapleton's admission of the truth of the allegation or the trial court's true
finding on the allegation, we shall presume the court correctly imposed the enhancement
under sections 667.5, subdivision (b), and 668 because he does not challenge it on appeal.

                                              4
                                         DISCUSSION

                                      Prosecutorial Error

       Stapleton contends the prosecutor committed prejudicial error by misstating

during his closing argument the law on the heat of passion theory of voluntary

manslaughter. He asserts the prosecutor wrongly argued in closing that if he killed

Kawash in anger it was murder and not voluntary manslaughter.

                                                A

       "A prosecutor's misconduct [or error] violates the Fourteenth Amendment to the

United States Constitution when it 'infects the trial with such unfairness as to make the

conviction a denial of due process.' [Citations.] In other words, the misconduct must be

'of sufficient significance to result in the denial of the defendant's right to a fair trial.'

[Citation.] A prosecutor's misconduct [or error] that does not render a trial fundamentally

unfair nevertheless violates California law if it involves 'the use of deceptive or

reprehensible methods to attempt to persuade either the court or the jury.' " (People v.

Cole (2004) 33 Cal.4th 1158, 1202.)

       "When the issue 'focuses on 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.' [Citations.] Moreover,

prosecutors 'have wide latitude to discuss and draw inferences from the evidence at trial,'

and whether 'the inferences the prosecutor draws are reasonable is for the jury to

decide.' " (People v. Cole, supra, 33 Cal.4th at pp. 1202-1203.)



                                                 5
       Although a prosecutor is given wide latitude in vigorously arguing the People's

case, the prosecutor may not misstate the law. (People v. Bell (1989) 49 Cal.3d 502, 538

(Bell); People v. Bandhauer (1967) 66 Cal.2d 524, 529.) The prosecutor "has the right to

fully state his views as to what the evidence shows and to urge whatever conclusions he

deems proper. Opposing counsel may not complain on appeal if the reasoning is faulty or

the conclusions are illogical because these are matters for the jury to determine." (People

v. Thomas (1992) 2 Cal.4th 489, 526.)

       Importantly for this case, arguments of a prosecutor must be considered in the

context in which they are made. (People v. Gonzalez (1990) 51 Cal.3d 1179, 1224, fn.

21.) When an appellant "singles out words and phrases, or at most a few sentences, to

demonstrate [prosecutorial] misconduct [or error], we must view the statements in the

context of the [prosecutor's] argument as a whole." (People v. Dennis (1998) 17 Cal.4th

468, 522; see also People v. Lucas (1995) 12 Cal.4th 415, 475 ["Viewing the

[prosecutor's] statements in the context of the argument as a whole [citation], we do not

believe the prosecutor argued that the jury should disregard the law on the defense of

unconsciousness. Moreover, viewing the challenged statements in context, we do not

believe there is a reasonable likelihood that the jury understood him to be making such an

argument."].)

       Absent a fundamentally unfair trial under the federal Constitution, prosecutorial

misconduct or error does not require reversal of the judgment unless it was prejudicial

under state law, i.e., it is reasonably probable the defendant would have obtained a more

favorable verdict absent the misconduct or error. (Bell, supra, 49 Cal.3d at pp. 534, 542;

                                             6
People v. Castillo (2008) 168 Cal.App.4th 364, 386 (Castillo); People v. Crew (2003) 31

Cal.4th 822, 839 (Crew).) If the prosecutorial misconduct or error renders the

defendant's trial fundamentally unfair under the federal Constitution, reversal of the

judgment is required unless the misconduct or error is harmless beyond a reasonable

doubt. (Castillo, at pp. 386-387, fn. 9; People v. Bordelon (2008) 162 Cal.App.4th 1311,

1323-1324.)

                                             B

       The trial court instructed the jury on first and second degree murder and voluntary

manslaughter based on a theory of heat of passion. The court instructed with CALCRIM

No. 522 on provocation, as follows:

           "Provocation may reduce a murder from first degree to second
           degree and may reduce a murder to manslaughter. The weight and
           significance of the provocation, if any, are for you to decide. If you
           can conclude that the defendant committed murder, but was
           provoked, consider the provocation in deciding whether the murder
           was first- or second-degree murder. Also, consider the provocation
           in deciding whether the defendant committed murder or
           manslaughter."

The court also instructed with CALCRIM No. 570 on voluntary manslaughter, as

follows:

           "A killing that would otherwise be murder is reduced to voluntary
           manslaughter if the defendant killed someone because of a sudden
           quarrel or in the heat of passion. The defendant killed someone
           because of a sudden quarrel or the heat of passion if three factors are
           present: First, the defendant was provoked. Second, as a result of
           that provocation, the defendant acted rashly and under the influence
           of intense emotion that obscured his reasoning or his judgment. And
           finally, the third requirement is if the provocation would have caused
           a person of average disposition to act rashly and without due
           deliberation, that is, from passion rather than from judgment.

                                              7
          "Now, heat of passion does not require anger, rage, or any specific
          emotion. It can be any violent or intense emotion that causes a
          person to act without due deliberation and reflection. In order for
          heat of passion to reduce a murder to voluntary manslaughter, the
          defendant must have acted under the direct and immediate influence
          of provocation as I have defined it. While no specific type of
          provocation is required, slight or remote provocation is not
          sufficient. Sufficient provocation may occur over a short or long
          period of time.

          "It is not enough that the defendant was simply provoked. The
          defendant is not allowed to set up his own standard of conduct. You
          must decide whether the defendant was provoked and whether the
          provocation was sufficient. In deciding whether the provocation was
          sufficient, consider whether a person of average disposition in the
          same situation and knowing the same facts would have reacted from
          passion rather than from judgment. If enough time passed between
          the provocation and the killing for a person of average disposition to
          cool off and regain his or her clear reasoning or judgment, then the
          killing is not reduced to voluntary manslaughter on this basis.

          "The People have the burden of proving beyond a reasonable doubt
          that the defendant did not kill as a result of a sudden quarrel or in the
          heat of passion. If the People have not met this burden, you must
          find the defendant not guilty of murder."7

The court also instructed with CALCRIM No. 200 that the jury "must follow the law as I

explain it to you even if you disagree with it. If you believe that the attorneys' comments

on the law conflict with my instructions, you must follow my instructions."

       In closing, the prosecutor argued that Stapleton committed murder in the first

degree and did not kill Kawash in a heat of passion. He argued that when Stapleton was



7      A typed copy of CALCRIM No. 570 is missing from the clerk's transcript. It is
unclear from the record whether the jury was given a typed copy of CALCRIM No. 570
along with typed copies of the trial court's other instructions for use in its deliberations.

                                              8
angry at her and held a knife to her throat in the front yard, there may have been a good

argument for heat of passion. However, when he decided not to use the knife there or kill

her in the front yard, the living room, or the kitchen, he thought about it and decided to

kill her before he acted. The prosecutor argued that although Stapleton was angry and

killed her passionately, anger and heat of passion were two different terms. He asked the

jury to read over the applicable jury instructions. The prosecutor argued Stapleton acted

in a cold, deliberate manner in dragging Kawash into the house and into the garage before

killing her there. The prosecutor referred to CALCRIM No. 570 that instructed the jury

on voluntary manslaughter on a heat of passion theory. He noted provocation is required,

causing a reasonable person to act rashly, without thinking, and under the direct and

immediate influence of that emotion. He argued there was no evidence of provocation in

this case and the evidence instead showed Stapleton killed Kawash in a deliberate,

premeditated act of murder.

       Stapleton's counsel argued the evidence showed Stapleton accidentally beat

Kawash to death in the heat of passion after discovering her ex-boyfriend had tested

positive for the HIV virus and she had exposed him (Stapleton) to the virus. She argued

Stapleton's passion overcame his reason.

       In rebuttal, the prosecutor argued there was no evidence Kawash was HIV

positive. He also argued the evidence did not show Stapleton "lost it" (i.e., acted in a

heat of passion). He argued: "[Stapleton] may be mad. Let's focus on that for a second.

He's mad. Mad enough to kill? Okay. That's murder. Angry enough to kill. That's

murder." The trial court overruled an objection by Stapleton's counsel that the

                                             9
prosecutor's argument misstated the law. The prosecutor again argued that if Stapleton

had used the knife in the front yard, he might have acted in a heat of passion. However,

based on Stapleton's actions, he argued Stapleton did not act in a heat of passion and

instead made a decision to kill Kawash.

                                               C

       Stapleton asserts the prosecutor committed prejudicial error and misstated the law

when he argued in closing that being mad enough to kill was murder and being angry

enough to kill was murder. However, based on our review of the prosecutor's argument

as a whole, we conclude the prosecutor's challenged statements, in the context of his

entire closing argument, did not misstate the law.

       In arguing the evidence showed Stapleton committed first degree murder and not

voluntary manslaughter on a heat of passion theory, the prosecutor asked the jury to refer

to the trial court's instructions and discussed CALCRIM No. 570 on the heat of passion

theory of voluntary manslaughter. He noted provocation is required that would cause a

reasonable person to act rashly, without thinking, and under the direct and immediate

influence of that emotion. The prosecutor argued that although Stapleton was angry at

Kawash and held a knife to her throat in the front yard, he made the decision not to use

the knife there or kill her in the front yard, the living room, or the kitchen, but instead

acted in a cold, deliberate manner in dragging her into the house and into the garage

before killing her there. Accordingly, the prosecutor argued, implicitly, if not expressly,

that Stapleton did not act rashly, without thinking, or under the direct and immediate



                                              10
influence of anger or other emotion and therefore did not kill Kawash in the heat of

passion.

       After his counsel argued Stapleton beat Kawash to death in the heat of passion

when he discovered her ex-boyfriend had tested positive for the HIV virus and she had

exposed him (Stapleton) to the virus, the prosecutor argued in rebuttal that the evidence

did not show Stapleton acted in the heat of passion. He argued: "[Stapleton] may be mad.

. . . He's mad. Mad enough to kill? Okay. That's murder. Angry enough to kill. That's

murder." The prosecutor again argued that if Stapleton had used the knife in the front

yard, he might have acted in the heat of passion. However, based on Stapleton's actions,

he argued Stapleton did not act in the heat of passion and instead made a decision to kill

Kawash.

       By arguing in rebuttal that Stapleton may have been mad or angry enough to kill

and therefore commit murder, the prosecutor's statements, when considered in context

with his entire closing argument, did not misstate the law. Rather, considering the

prosecutor's prior statements, the jury could not have reasonably understood the

prosecutor was arguing that any killing committed in anger was necessarily murder and

not voluntary manslaughter. Rather, CALCRIM No. 570, to which the prosecutor had

previously referred, instructed the jury on voluntary manslaughter that anger or another

intense emotion is not, by itself, sufficient provocation, but it must, in addition, cause a

person to act without due deliberation and reflection and under the direct and immediate

influence of provocation. Therefore, the prosecutor's challenged statements argued, in

effect, that acting in anger, by itself, did not preclude a finding of murder. "One does not

                                              11
act rashly under [the heat of passion theory] simply by acting imprudently or out of

anger. Even imprudent conduct done while angry is ordinarily the product of some

judgment and thought, however fleeting. This is not the type of truly reactive conduct

contemplated by the [heat of passion] standard." (People v. Beltran (2013) 56 Cal.4th

935, 950.) Considering the prosecutor's closing argument as a whole, we conclude the

jury presumably, and reasonably, understood the prosecutor's challenged statements were

made in the context of his broader argument that correctly set forth the applicable law of

the heat of passion theory of voluntary manslaughter. (People v. Gonzalez, supra, 51

Cal.3d at p. 1224, fn. 21; People v. Dennis, supra, 17 Cal.4th at p. 522; People v. Lucas,

supra, 12 Cal.4th at p. 475.) Based on our review of the record, there is no " 'reasonable

likelihood that the jury construed or applied any of the complained-of remarks in an

objectionable fashion.' " (People v. Cole, supra, 33 Cal.4th at pp. 1202-1203.) The

prosecutor did not err as Stapleton asserts.

                                               D

       Assuming arguendo the prosecutor's challenged statements may have misstated

applicable law, we nevertheless conclude reversal of Stapleton's murder conviction is not

required. First, any error the prosecutor made in his closing argument did not deny

Stapleton a fundamentally fair trial under the United States Constitution. He had notice

of the charge against him and an opportunity to present evidence, cross-examine

witnesses against him, and to otherwise present a defense at trial. Furthermore, the trial

court correctly instructed the jury on first and second degree murder and voluntary

manslaughter. Importantly, the court also instructed the jury with CALCRIM No. 200

                                               12
that if it "believe[d] that the attorneys' comments on the law conflict with my instructions,

you must follow my instructions." To the extent the prosecutor's challenged statements

in closing conflicted with the court's instructions, the jury presumably followed the

court's instructions. Because Stapleton was not denied a fundamentally fair trial, we

conclude there was no prosecutorial error under the United States Constitution. (People

v. Morales (2001) 25 Cal.4th 34, 44; Castillo, supra, 168 Cal.App.4th at pp. 386-387, fn.

9; People v. Bordelon, supra, 162 Cal.App.4th at pp. 1323-1324.)

       To the extent the prosecutor's challenged statements were deceptive or

reprehensible and therefore error under California law, we nevertheless conclude it is not

reasonably probable Stapleton would have received a more favorable verdict absent that

error, and therefore any error is harmless and does not require reversal of the judgment.

(Bell, supra, 49 Cal.3d at pp. 534, 542; Castillo, supra, 168 Cal.App.4th at p. 386; Crew,

supra, 31 Cal.4th at p. 839.) As discussed above, the trial court correctly instructed the

jury on first and second degree murder and voluntary manslaughter. The court also

instructed the jury that if it "believe[d] that the attorneys' comments on the law conflict

with my instructions, you must follow my instructions." Accordingly, to the extent the

prosecutor's challenged statements in closing conflicted with the court's instructions, the

jury presumably followed the court's instructions. Furthermore, there was strong

evidence presented by the prosecution showing Stapleton killed Kawash after making a

decision to do so and therefore did not act rashly, without thinking, and under the direct

and immediate influence of anger or other intense emotion. As the prosecutor argued in

closing, the evidence showed Stapleton held a knife in the front yard while arguing with

                                             13
Kawash. When his brother asked him what he was doing, Stapleton got rid of the knife

and dragged Kawash from the front yard, through the living room and kitchen, and into

the garage, where he then beat her to death. The jury reasonably inferred from that

evidence that Stapleton's thought processes in taking those actions precluded a finding he

acted without thinking and under the direct and immediate influence of anger or other

intense emotion (i.e., heat of passion voluntary manslaughter). Furthermore, because the

jury found Stapleton guilty of first degree murder, it necessarily found he killed Kawash

with premeditation and deliberation. Its finding of premeditation and deliberation is

inconsistent with a finding that he acted without thinking, as required for heat of passion

voluntary manslaughter. It is not reasonably probable Stapleton would have received a

more favorable verdict had the prosecutor not erred as he asserts. (Bell, at pp. 534, 542;

Castillo, at p. 386; Crew, at p. 839.)

                                         DISPOSITION

       The judgment is affirmed.




                                                                           McDONALD, J.
WE CONCUR:



NARES, Acting P. J.



HALLER, J.



                                             14
