Filed 6/30/16 P. v. Avila CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D069644

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. FWV1302266)

JULIO ESTEVAN AVILA,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Bernardino County, Ingrid

A. Uhler, Judge. Affirmed.

         David M. McKinney, 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 Christopher P.

Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
       Julio Estevan Avila appeals a judgment following his jury conviction of second

degree murder (Pen. Code, § 187, subd. (a)).1 On appeal, he contends: (1) he was denied

his constitutional rights to remain silent, due process, and a fair trial when the trial court

required him to testify as a condition to permit his argument he acted in self-defense; (2)

he was denied his constitutional rights to due process, a fair trial, and present a defense

when the court erred by instructing with CALCRIM No. 570 on voluntary manslaughter;

(3) the prosecutor committed prejudicial error in arguing on the law of voluntary

manslaughter and misstating the state of mind required for the heat of passion theory of

voluntary manslaughter; (4) if he forfeited those prosecutorial errors by not objecting at

trial, he was denied effective assistance of counsel; and (5) the cumulative prejudice of

all the errors requires reversal of the judgment.

                   FACTUAL AND PROCEDURAL BACKGROUND

       In the early morning hours of July 7, 2013, Avila, Armando Lara, and other

friends of Avila went to the home of Jefrey Camacho, smashed the windows of

Camacho's car, and returned to Lara's house. At about 2:00 a.m., Camacho called his

friend, Pablo Garcia, told him someone had broken his car windows, and asked him to

come to his house. When Garcia arrived, Camacho got in Garcia's car and they drove to

Lara's house to find Avila, whom Camacho suspected had caused the damage to his car.

       On their arrival at Lara's house, they saw Avila standing outside with a group of

about 10 people. Camacho and Garcia got out of their car and walked toward the group.



1      All statutory references are to the Penal Code.
                                               2
Garcia was carrying a baseball bat. They exchanged words with Avila and his group.

Avila and Lara walked toward them. When Garcia and Camacho saw that Avila was

holding a gun, they fled back to their car. Camacho got in the driver's seat and tried to

drive away, but the parking brake had been engaged by Garcia on their arrival so

Camacho struggled to get the car to move. As Camacho finally released the parking

brake, Avila approached the driver's side window. Lara yelled, "Let him have it." Avila

aimed the gun at Camacho and shot him in the back of his head.2 Avila and Lara then

fled in a friend's car. Avila stated he thought he had seen Camacho's head drop forward

after he shot him. Garcia drove Camacho to a hospital, where he died.

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

alleged that in committing the murder he personally used and/or discharged a firearm

within the meaning of section 12022.53, subdivisions (b), (c), and (d). The jury found

Avila guilty of second degree murder (§ 187, subd. (a)) and found true the firearm

allegations (§ 12022.53, subds. (b)-(d)). The trial court sentenced Avila to an

indeterminate term of 40 years to life in prison. Avila timely filed a notice of appeal.




2     The bullet entered Camacho's head behind his left ear, passed through his brain,
and exited through his right eye.

                                             3
                                       DISCUSSION

                                              I

                        Trial Court Did Not Require Avila to Testify

       Avila contends the trial court denied him his constitutional rights to remain silent,

due process, and a fair trial when it required him to testify as a condition to his arguing he

acted in self-defense. Because the record does not support his contention, we conclude

the court did not so err.

                                              A

       During its case-in-chief, the prosecution presented the testimony of Garcia

(Camacho's friend); Justin Johnson, Troy Scutella, and Robert Marquez (all detectives

with the Ontario Police Department); and Bryan Espinoza and Isaac Casares (members of

Avila's group the night of the incident). On conclusion of the prosecution's case, Avila

moved to dismiss the first degree murder charge against him pursuant to section 1118.1,

arguing the evidence presented by the prosecution was insufficient to support that charge.

He argued the evidence instead supported a mutual combat theory and/or heat of passion

theory. The court stated it did not believe there was evidence supporting a mutual

combat theory. Avila then argued the evidence was insufficient for first degree murder

because he perceived a threat when Camacho and Garcia got in their car and started to

leave but then came back. In response, the court stated: "Well, we don't have any

information actually at this point as to why the defendant shot the gun. That wasn't even

elicited during the examination of the officer [who] conducted the interrogation of

[Avila], so that is going to be pure speculation as to why he shot the gun. The only

                                              4
evidence I do have is that I have numerous witnesses indicating that people were

saying—I would assume it must be Armando Lara, but somebody at the location said,

'Let him have it! Let him have it!' numerous times." The court then cited testimony that

would support a first degree murder finding. There was evidence showing Camacho and

Garcia ran back to their car and were attempting to flee when Avila approached the car

and shot Camacho, in a cold, calculated decision, on Lara's urging to "[l]et him have it."

The court denied Avila's section 1118.1 motion to dismiss the first degree murder charge.

       The court then inquired of Avila's counsel whether Lara and Avila would testify as

part of the defense case. He replied Lara would testify. Regarding anticipated testimony

by Avila, his counsel stated: "I guess if the Court's not going to allow me to argue self-

defense without putting him on at this point, then I will put him on." The court

commented: "Well, there are no factors of self-defense at this time." It then addressed

Avila directly, stating: "So I just want to indicate, Mr. Avila, it's your choice. You have

the absolute right not to testify and you have the absolute right to testify, so it appears

that [your defense counsel] is indicating that you are going to make a choice to testify; is

that correct?" Avila replied, "Yes, your Honor."

       In the defense case, Avila's defense counsel presented the testimonies of Lara and

Avila. The prosecution then recalled the three detectives for additional testimony.

                                              B

       Contrary to Avila's assertion, the record does not support a reasonable inference

the trial court required him to testify as a condition to arguing self-defense. Rather, the

substance of the court's ruling on Avila's section 1118.1 motion was that it found there

                                               5
was substantial evidence to support a finding of first degree murder. (People v. Stevens

(2007) 41 Cal.4th 182, 200 [in ruling on § 1118.1 motion to dismiss, trial court must

review the record to determine " ' "whether from the evidence, including all reasonable

inferences to be drawn therefrom, there is any substantial evidence of the existence of

each element of the offense charged" ' "].) In deciding Avila's section 1118.1 motion to

dismiss, the court was not faced with deciding, and did not decide, whether Avila would

be entitled to instructions on self-defense or heat of passion or to argue those theories to

the jury.

       After the court made its ruling on Avila's section 1118.1 motion, it inquired of

Avila's counsel whether the testimonies of Lara and Avila would be part of the defense

case. After confirming that Lara would testify, Avila's counsel stated: "I guess if the

Court's not going to allow me to argue self-defense without putting [Avila] on at this

point, then I will put [Avila] on." The court commented: "Well, there are no factors of

self-defense at this time." Contrary to Avila's assertion, by its comment in response to his

defense counsel's "guess"/inquiry, the court did not make any ruling that Avila had to

personally testify in order to argue self-defense to the jury. Instead, the court simply

made an observation, presumably based on its "off-the-cuff" recollection of the evidence

presented during the prosecution's case-in-chief, that it was not aware of any evidence

supporting a self-defense theory at that point of the trial. Despite Avila's apparent

attempt to do so, the court's comment cannot be bootstrapped into a formal ruling that




                                              6
Avila was required to personally testify in order to argue self-defense to the jury.3

Furthermore, we believe the court's comment was most likely an accurate one because it

appears the prosecution's case-in-chief did not include sufficient evidence to support a

self-defense theory. There was testimony that Garcia or Camacho may have had either a

bat or a shotgun and also that Camacho and Garcia began to drive away in their car, but

then backed up and/or returned. The trial court could have reasonably concluded that

evidence was insufficient to support a finding that Avila shot Camacho in self-defense

and Avila's counsel did not cite any other evidence in the prosecution's case-in-chief to

show otherwise. We conclude the trial court did not require Avila to testify in order to

make a self-defense argument and did not otherwise deny Avila his constitutional rights

to remain silent, due process, and a fair trial. People v. Cuccia (2002) 97 Cal.App.4th

785, People v. Lawson (2005) 131 Cal.App.4th 1242, and the other cases cited by Avila

are inapposite to this case and do not persuade us to reach a contrary conclusion.




3      Even had the trial court made an implicit ruling that at that point of the trial the
evidence was insufficient to support a self-defense theory, the ruling was not that Avila
had to personally testify thereafter in order to argue self-defense. Instead, Avila could
have presented (and ultimately did present) evidence during the defense case, other than
his own testimony, that arguably could have provided substantial evidence to support a
self-defense theory. The record shows Lara testified for the defense that after Camacho
and Garcia left in their car, they put the car in reverse and backed up. Lara testified he
and Avila then walked up to the car and saw the men in the car reaching behind and
attempting to pull out a shotgun. Lara then cried out to Avila that they had a shotgun and
told him to watch out. Lara's testimony, along with other testimony during the
prosecution's case-in-chief that Camacho and Garcia may have had a shotgun in their car,
might have provided sufficient evidence for the trial court to allow Avila to argue self-
defense to the jury without his testimony.

                                             7
                                              II

      Trial Court's Instruction with CALCRIM No. 570 on Voluntary Manslaughter

       Avila contends the trial court erred by instructing with CALCRIM No. 570 on

voluntary manslaughter and, in so doing, denied him his constitutional rights to due

process, a fair trial, and present a defense. He argues CALCRIM No. 570 did not

adequately or properly instruct jurors regarding malice and the prosecutor's erroneous

arguments regarding the differences between murder and voluntary manslaughter made

the court's instructions prejudicially erroneous.

                                              A

       "Murder is the unlawful killing of a human being . . . with malice aforethought."

(§ 187, subd. (a).) Malice may be express or implied. (§ 188.) Malice is express "when

there is manifested a deliberate intention unlawfully to take away the life" of a human

being. (§ 188.) "[Malice] is implied, when no considerable provocation appears, or

when the circumstances attending the killing show an abandoned and malignant heart."

(§ 188.) Murder that is willful, deliberate, and premeditated is murder of the first degree.

(§ 189.)

       In contrast to murder, "[m]anslaughter is the unlawful killing of a human being

without malice." (§ 192.) Voluntary manslaughter includes the unlawful killing of a

human being on a sudden quarrel or heat of passion. (§ 192, subd. (a).) "A defendant

lacks malice and is guilty of voluntary manslaughter in 'limited, explicitly defined

circumstances: either when the defendant acts in a "sudden quarrel or heat of passion"

[citation], or when the defendant kills in "unreasonable self-defense"—the unreasonable

                                              8
but good faith belief in having to act in self-defense [citations].' " (People v. Lasko

(2000) 23 Cal.4th 101, 108.) Provocation can reduce an intentional killing from murder

to voluntary manslaughter if the killer's reason was actually obscured as the result of a

strong passion aroused by a provocation sufficient to cause an ordinary person to act

rashly or without due deliberation and reflection and from that passion rather than from

judgment. (People v. Breverman (1998) 19 Cal.4th 142, 163.) A person who

intentionally kills as a result of sufficient provocation (i.e., on a sudden quarrel or heat of

passion) lacks malice and is guilty not of murder but of the lesser offense of voluntary

manslaughter. (Lasko, at p. 108.)

                                               B

       A trial court must instruct the jury on general principles of law that are closely and

openly connected to the facts and necessary for the jury's understanding of the case.

(People v. Moye (2009) 47 Cal.4th 537, 548; People v. Breverman, supra, 19 Cal.4th at

p. 154.) On appeal, we generally review de novo the question of whether the trial court's

instructions fully, fairly, and correctly state applicable law. (People v. Ramos (2008) 163

Cal.App.4th 1082, 1088.) In so doing, we consider the court's instructions as a whole and

assume jurors are intelligent and capable of understanding and correlating all of the

instructions. (Ibid.) We interpret the instructions, if possible, to support the judgment if

they are reasonably susceptible to that interpretation. (Ibid.)

                                               C

       The trial court instructed with CALCRIM No. 520 on murder, stating:



                                               9
         "The defendant is charged in Count 1 with murder in violation of
         Penal Code Section 187.

         "To prove that the defendant is guilty of this crime, the People must
         prove that:

         "1. The defendant committed an act that caused the death of another
         person;

         "2. When the defendant acted, he had a state of mind called malice
         aforethought; and

         "3. He killed without lawful justification.

         "There are two kinds of malice aforethought: Express malice and
         implied malice. Proof of either is sufficient to establish the state of
         mind required for murder.

         "The defendant acted with express malice if he unlawfully intended
         to kill.

         "The defendant acted with implied malice if:

         "1. He intentionally committed an act;

         "2. The natural and probable consequences of the act were
         dangerous to human life;

         "3. At the time he acted he knew his act was dangerous to human
         life; and

         "4. He deliberately acted with conscious disregard for human life.

         "Malice aforethought does not require hatred or ill will towards the
         victim. It is a mental state that must be formed before the act that
         causes death is committed. It does not require deliberation or the
         passage of any particular period of time."

The court instructed with CALCRIM No. 570 on voluntary manslaughter, stating:

         "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.

                                            10
"The defendant killed someone because of a sudden quarrel or in the
heat of passion if:

"1. The defendant was provoked;

"2. As a result of the provocation, the defendant acted rashly and
under the influence of intense emotion that obscured his reasoning or
judgment; and

"3. 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.

"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 simply was provoked. The
defendant is not allowed to set up his own standard of conduct. You
must decide whether the defendant was provoked and whether the
provocation was sufficient. In deciding whether the provocation was
sufficient, consider whether a person of average disposition in the
same situation and knowing the same facts would have reacted from
passion rather than 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 and 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."


                                   11
The court also instructed with CALCRIM No. 200 that the jurors "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 argument, the prosecutor discussed the law on murder and voluntary

manslaughter. She argued: "Voluntary manslaughter is murder with an excuse: 'I didn't

intend to kill.' Sudden quarrel or heat of passion is one way to get to voluntary

manslaughter." She also argued: "Once you find malice, there is no going to voluntary

manslaughter."

                                              D

       To the extent Avila asserts the trial court's instructions on voluntary manslaughter,

whether considered by themselves or together with the prosecutor's arguments, were

erroneous because the instructions did not clearly state that even an intentional killing can

be reduced to voluntary manslaughter, we conclude he forfeited or waived that purported

instructional error by not requesting clarifying or amplifying language. "A party may not

complain on appeal that an instruction correct in law and responsive to the evidence was

too general or incomplete unless the party has requested appropriate clarifying or

amplifying language." (People v. Lang (1989) 49 Cal.3d 991, 1024; People v. Spurlock

(2003) 114 Cal.App.4th 1122, 1130.) In this case, because the court was not required to

provide a pinpoint, clarifying, or amplifying instruction on an issue that was otherwise

covered, whether expressly or implicitly, by the standard instructions (i.e., that an

intentional killing may be reduced to voluntary manslaughter on a showing of sufficient

provocation), Avila forfeited or waived any assertion that the instructions given were

                                              12
ambiguous or incomplete by not requesting any clarifying or amplifying instructions.

(Lang, at p. 1024; Spurlock, at p. 1130; People v. Mayfield (1997) 14 Cal.4th 668, 778;

People v. Cole (2004) 33 Cal.4th 1158, 1211.)

                                              E

       Assuming Avila did not forfeit or waive the purported instructional error, we

nevertheless conclude the trial court's instructions with CALCRIM No. 570 on voluntary

manslaughter were correct statements of applicable law. In People v. Genovese (2008)

168 Cal.App.4th 817, the court addressed a similar contention and upheld the standard

jury instructions on murder and voluntary manslaughter. Genovese rejected the

defendant's argument that the trial court should have expressly instructed the jury that

intent to kill or conscious disregard for life is an essential element of voluntary

manslaughter. (Id. at p. 831.) It also rejected the defendant's alternative argument that

the trial court's instructions did not inform the jury that voluntary manslaughter could be

found despite the existence of an intent to kill or conscious disregard for life. (Id. at

p. 832.) Genovese stated: "[A]lthough the jury was not expressly instructed in that

manner, . . . the jury was instructed, '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.' " (Id. at p. 831.) The court explained: "The killing could not

'otherwise be murder' unless the jury found defendant intended to kill the victim or acted

with conscious disregard for human life, and the jury was so informed in the instruction

defining murder (i.e., that to prove murder, the prosecution must prove defendant acted

with malice aforethought, and there are two kinds of malice aforethought—express,

                                              13
which requires intent to kill, and implied, which requires conscious disregard for human

life)." (Id. at pp. 831-832.) The court rejected the defendant's argument that, once the

jury determined express or implied malice was present, it was not told it could still find

the defendant guilty of voluntary manslaughter if it believed he acted in the heat of

passion, noting the plain language of the instructions informed the jury that a killing that

would otherwise be murder is reduced to voluntary manslaughter if the defendant acted

on a sudden quarrel or in the heat of passion. (Id. at p. 832.)

       We agree with the reasoning in Genovese and apply it to the instructions given in

this case. As in Genovese, the trial court here instructed a killing "that would otherwise

be murder" is reduced to voluntary manslaughter if the defendant killed a person on a

sudden quarrel or in the heat of passion and that the killing could not "otherwise be

murder" unless the jury found the defendant either had intended to kill the victim or acted

with conscious disregard for human life. Therefore, the court's instructions correctly

informed the jury that a killing on a sudden quarrel or in the heat of passion, whether

intentional or in conscious disregard for human life, is voluntary manslaughter. To the

extent the prosecutor's closing argument conflicted with the court's instructions, the court

instructed with CALCRIM No. 200 that the jury must follow its instructions and we

presume the jury understood and followed the court's instructions. (People v. Morales

(2001) 25 Cal.4th 34, 47; People v. Ramos, supra, 163 Cal.App.4th at p. 1088.) We

conclude Avila was not denied his constitutional rights to due process, a fair trial, and

present a defense when the court instructed with CALCRIM No. 570 on voluntary

manslaughter.

                                             14
                                               III

                                     Prosecutorial Error

       Avila contends the prosecutor committed prejudicial error by arguing in closing on

the law of voluntary manslaughter and misstating the state of mind required for the heat

of passion theory of voluntary manslaughter.

                                               A

       In closing, the prosecutor discussed the elements of murder and voluntary

manslaughter. She argued: "Voluntary manslaughter is murder with an excuse: 'I didn't

intend to kill.' Sudden quarrel or heat of passion is one way to get to voluntary

manslaughter." She also argued: "If there is insufficient provocation, it's murder. And

you have to determine whether or not you found insufficient provocation, assuming that

you don't find malice. Once you find malice, there is no going to voluntary

manslaughter." As Avila notes, the prosecutor also argued: "[W]hen you have malice,

you have murder. When you don't have malice, that's when you have the lesser-included

offense of voluntary manslaughter. . . . If you have no malice, that's the only way you

can get to manslaughter." Avila asserts that in so arguing, the prosecutor erred by, in

effect, telling the jury that once it found malice (i.e., intent to kill or act with conscious

disregard for human life), it could not consider voluntary manslaughter.

       The prosecutor also argued in closing that sudden quarrel or heat of passion was

"sufficient provocation by the victim where a reasonable person would do the same thing

that the defendant did under those circumstances." She further argued the evidence did

not support voluntary manslaughter because Avila was not sufficiently provoked under

                                               15
the reasonable person standard. Avila asserts that in so arguing, the prosecutor erred by

misleading the jury that the reasonable person standard for sufficient provocation was

whether a reasonable person would have acted as Avila did instead of the correct standard

of whether a reasonable person in the same situation and knowing the same facts would

have acted rashly and reacted from passion rather than from judgment.

                                             B

       "A prosecutor's conduct violates the Fourteenth Amendment to the federal

Constitution when it infects the trial with such unfairness as to make the conviction a

denial of due process. 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 trial court or

the jury." (People v. Morales, supra 25 Cal.4th at p. 44.) To preserve a claim of

prosecutorial misconduct or error, a defendant must timely object and request a curative

admonition unless an admonition would not have cured the harm caused by the

misconduct or error. (People v. Hinton (2006) 37 Cal.4th 839, 863; People v. Earp

(1999) 20 Cal.4th 826, 858.)

                                             C

       Although Avila asserts the prosecutor erred by misstating applicable law regarding

voluntary manslaughter and the reasonable person standard for provocation, the record

shows, and he concedes, his counsel did not make timely objections to the purported

prosecutorial errors and did not request curative admonitions. Avila does not persuade us

that timely objections would have been futile or that admonitions could not have cured

                                            16
the purported errors. We conclude Avila has forfeited or waived his claims of

prosecutorial error and cannot raise them on appeal.4 (People v. Hinton, supra, 37

Cal.4th at p. 863; People v. Earp, supra, 20 Cal.4th at p. 858; People v. Jenkins (2000) 22

Cal.4th 900, 1023; People v. Samayoa (1997) 15 Cal.4th 795, 841; People v. Najera

(2006) 138 Cal.App.4th 212, 224.)

                                              IV

                              Ineffective Assistance of Counsel

       Avila contends that if he forfeited the above purported prosecutorial errors by his

counsel not timely objecting to the errors and requesting curative admonitions, he was

denied his constitutional right to effective assistance of counsel.

                                              A

       A criminal defendant is constitutionally entitled to effective assistance of counsel.

(U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; Strickland v. Washington (1984) 466

U.S. 668, 684-685 (Strickland); People v. Pope (1979) 23 Cal.3d 412, 422 (Pope).) To

show denial of the right to counsel, a defendant must show: (1) his or her counsel's

performance was below an objective standard of reasonableness under prevailing

professional norms; and (2) the deficient performance prejudiced the defendant.

(Strickland, at pp. 687, 691-692; People v. Ledesma (1987) 43 Cal.3d 171, 216-217


4      Because we concluded above the trial court correctly instructed with CALCRIM
No. 570 on voluntary manslaughter and Avila does not persuade us otherwise, we reject
his assertion he can raise the issue of prosecutorial error, despite his counsel's failure to
timely object or request curative admonitions, based on section 1259 or cases involving
instructional error (e.g., People v. Smithey (1999) 20 Cal.4th 936, 976-977, fn. 7).

                                              17
(Ledesma); Pope, at p. 425.) To show prejudice, a defendant must show there is a

reasonable probability that he or she would have received a more favorable result had his

or her counsel's performance not been deficient. (Strickland, at pp. 693-694; Ledesma, at

pp. 217-218.) "When a defendant challenges a conviction, the question is whether there

is a reasonable probability that, absent the [trial counsel's] errors, the factfinder would

have had a reasonable doubt respecting guilt." (Strickland, at p. 695.) "A reasonable

probability is a probability sufficient to undermine confidence in the outcome." (People

v. Williams (1997) 16 Cal.4th 153, 215.) It is the defendant's burden on appeal to show

that he or she was denied effective assistance of counsel and is entitled to relief.

(Ledesma, at p. 218.)

       "In evaluating a defendant's claim of deficient performance by counsel, there is a

'strong presumption that counsel's conduct falls within the wide range of reasonable

professional assistance' [citations], and we accord great deference to counsel's tactical

decisions. [Citations.] . . . Accordingly, a reviewing court will reverse a conviction on

the ground of inadequate counsel 'only if the record on appeal affirmatively discloses that

counsel had no rational tactical purpose for his act or omission.' " (People v. Frye (1998)

18 Cal.4th 894, 979-980.)

       However, a court need not address the issue of whether a defendant's counsel

performed deficiently before it addresses the issue of whether the defendant was

prejudiced by that purported deficient performance. "If it is easier to dispose of an

ineffectiveness claim on the ground of a lack of sufficient prejudice, which we expect



                                              18
will often be so, that course should be followed." (Strickland, supra, 466 U.S. at p. 697;

see also In re Alvernaz (1992) 2 Cal.4th 924, 945.)

                                            B

       Assuming Avila's counsel performed deficiently as Avila asserts, we nevertheless

conclude he has not carried his burden on appeal to show that such deficient performance

prejudiced his case. (Strickland, supra, 466 U.S. at pp. 687, 691-692, 697; Ledesma,

supra, 43 Cal.3d 171, 216-217; Pope, supra, 23 Cal.3d at p. 425.)

       Law on voluntary manslaughter. Regarding his counsel not objecting to and not

requesting curative admonitions to the prosecutor's purported misstatements of the law on

voluntary manslaughter, our review of the record shows it is not reasonably probable

Avila would have obtained a more favorable verdict had his counsel objected to those

misstatements and requested curative admonitions. First, as we concluded above, the

trial court correctly instructed with CALCRIM No. 570 on voluntary manslaughter. The

court instructed: "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." To the extent the prosecutor's closing argument conflicted or was

inconsistent with the court's instructions on the law applicable to voluntary manslaughter,

the court instructed with CALCRIM No. 200 that the jury must follow its instructions and

we presume the jury followed the court's instructions. Had Avila's counsel objected to

the prosecutor's misstatements and requested curative admonitions, the jury would not

have changed its application or understanding of the law on voluntary manslaughter. In

both situations, the jury would have followed, and presumably did follow, the

                                            19
instructions given it by the court and not any conflicting or inconsistent arguments by the

prosecutor.

       Second, the evidence in support of a voluntary manslaughter theory was much

weaker than the evidence in support of murder. In support of voluntary manslaughter,

there was evidence Camacho arrived with a shotgun, but put it back in the car when Avila

told him to do so. Avila and Lara testified there was no physical altercation or fight.

Rather, Camacho got back into the car and started to drive away. Avila testified the car

then backed up and returned, causing him to be concerned for his safety. Avila testified

he shot into the driver's door when he saw the car's driver reach for the shotgun in the

backseat, causing him to be scared and feel his life was in danger. Lara also testified he

saw someone in the car reaching for the shotgun in the backseat. Lara then told Avila to

"[l]et him have it" because the shotgun scared him. Although that evidence may have

provided some support for an inference that a reasonable person would have been

provoked and acted rashly in that situation and, based thereon, a finding of voluntary

manslaughter, the evidence in support of murder was much stronger and even

overwhelming.

       The evidence supporting the jury's finding of second degree murder included

evidence showing Camacho and Garcia were armed only with a baseball bat and not a

shotgun and, after the verbal confrontation with Avila and his group, had returned to their

car to leave. However, Camacho had difficulty getting the car to move because its

parking brake was engaged. Avila approached the car, Lara told him to "[l]et him have

it," and Avila shot Camacho in the back of the head about the time the brake was

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disengaged. That evidence overwhelmingly supported the jury's finding of murder and

refuted Avila's voluntary manslaughter theory that he was provoked and acted rashly by

shooting Camacho. Therefore, it is not reasonably probable the jury would have found

Avila guilty of only voluntary manslaughter had his counsel objected to the prosecutor's

misstatements regarding the law of voluntary manslaughter and requested curative

admonitions. Contrary to Avila's assertion, the fact the jury did not find he acted with

deliberation and premeditation in killing Camacho does not show it believed he acted

based on provocation. Also, the fact the jury deliberated for seven days does not show it

was a close case in its deliberations between second degree murder and voluntary

manslaughter. Rather, the length of the jury's deliberations could very well have been the

result of disagreements among jurors whether the murder was of the first degree rather

than second degree.

       Reasonable person standard for provocation. Regarding Avila's counsel not

objecting to, and requesting admonitions to cure, the prosecutor's purported errors by

arguing that the reasonable person standard for sufficient provocation was whether a

reasonable person would have acted as Avila did, our review of the record shows it is not

reasonably probable Avila would have obtained a more favorable verdict had his counsel

objected to those errors and requested curative admonitions. First, as we concluded

above, the trial court correctly instructed with CALCRIM No. 570 on voluntary

manslaughter. The court instructed in pertinent part:

          "The defendant killed someone because of a sudden quarrel or in the
          heat of passion if:


                                            21
          "1. The defendant was provoked;

          "2. As a result of the provocation, the defendant acted rashly and
          under the influence of intense emotion that obscured his reasoning or
          judgment; and

          "3. 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. [¶] . . . [¶]

          "It is not enough that the defendant simply was provoked. The
          defendant is not allowed to set up his own standard of conduct. You
          must decide whether the defendant was provoked and whether the
          provocation was sufficient. In deciding whether the provocation
          was sufficient, consider whether a person of average disposition in
          the same situation and knowing the same facts would have reacted
          from passion rather than from judgment. . . ." (Italics added.)

To the extent the prosecutor's closing argument conflicted or was inconsistent with the

court's instructions on the law applicable to voluntary manslaughter and the reasonable

person standard for provocation, the court instructed with CALCRIM No. 200 that the

jury must follow its instructions, which we presume the jury did. Therefore, had Avila's

counsel objected to the prosecutor's misstatements and requested curative admonitions,

the jury would not have changed its application or understanding of the law on voluntary

manslaughter or the reasonable person standard for provocation. In both situations, the

jury would have followed, and presumably did follow, the instructions given it by the

court and not any conflicting or inconsistent arguments by the prosecutor.

      The evidence in support of a voluntary manslaughter theory was much weaker

than the strong evidence in support of the jury's finding of murder. We incorporate

herein, without repeating, our discussion above of the evidence supporting voluntary

manslaughter and the evidence supporting murder. The evidence overwhelmingly

                                            22
supported the jury's finding of murder and refuted the voluntary manslaughter theory that

Avila was provoked and acted rashly by shooting Camacho, and that a reasonable person

would have been provoked and acted rashly in that situation. Therefore, it is not

reasonably probable the jury would have found Avila guilty of only voluntary

manslaughter had his counsel objected to the prosecutor's misstatements regarding the

reasonable person standard for provocation and requested curative admonitions.

Contrary to Avila's assertion, the fact the jury did not find he acted with deliberation and

premeditation in killing Camacho does not show it believed he acted based on

provocation. Also, the fact the jury deliberated for seven days does not show it was a

close case between second degree murder and voluntary manslaughter. Rather, the length

of the jury's deliberations could very well have been the result of disagreements among

jurors whether the murder was of the first degree rather than second degree.

       Conclusion. Based on our review of the evidence, we conclude it is not

reasonably probable Avila would have obtained a more favorable verdict had his counsel

not performed deficiently as Avila asserts by not objecting to the prosecutor's purported

misstatements on the law that applies to voluntary manslaughter and the reasonable

person standard for provocation. Alternatively stated, our confidence in the outcome of

Avila's trial is not undermined by the purported deficient performance of his counsel.

Because Avila was not prejudiced by his counsel's purported deficient performance, he

was not denied his constitutional right to effective assistance of counsel. (Strickland,

supra, 466 U.S. at pp. 687, 691-692, 697; Ledesma, supra, 43 Cal.3d at pp. 216-217;

Pope, supra, 23 Cal.3d at p. 425.)

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                                             V

                                   Cumulative Prejudice

       Avila contends the cumulative prejudice of the errors he asserts requires reversal

of the judgment. However, based on our review of the record, we conclude there is no

prejudicial error, considered individually or cumulatively, under the federal and state

Constitutions. (Cf. People v. Anderson (2001) 25 Cal.4th 543, 606.)

                                      DISPOSITION

       The judgment is affirmed.




                                                                           McDONALD, J.

WE CONCUR:



BENKE, Acting P. J.



AARON, J.




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