Filed 10/1/13 P. v. Nguyen CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,
         Plaintiff and Respondent,                                   A133852
v.
                                                                     (San Francisco City & County
JEFF D. NGUYEN,                                                      Super. Ct. No. 212655)
         Defendant and Appellant.


         Jeff D. Nguyen was convicted, by a jury, of the first degree murder (Pen. Code,
§ 187, subd. (a))1 of his wife, Mai Banh. The jury also found ―true‖ allegations that
Nguyen personally used a deadly weapon (§ 12022, subd. (b)(1)). Nguyen appeals,
contending that his murder conviction should be reversed because: (1) the trial court
erroneously failed to properly answer the jury‘s question regarding premeditation during
deliberations; and (2) his trial counsel was ineffective for failing to object to the court‘s
response to the jury and to the prosecutor‘s misstatement of the law on provocation
during closing argument. We affirm.




         1   All further statutory references are to the Penal Code unless otherwise noted.


                                                             1
                   I.     FACTUAL AND PROCEDURAL BACKGROUND
                                     Prosecution Case
Ngoc Banh’s Testimony
       Ngoc2 testified that her sister, Mai, and Nguyen had two sons. Ngoc knew that
Nguyen and Mai had discussed divorce, but were trying to work things out. Mai told
Ngoc that Nguyen wanted to stay married but Mai did not.
       Mai worked seven days a week at her hair salon. In April 2007, Mai and her
children were staying with Ngoc during spring break. On Saturday, April 14, 2007, Mai
left for work, taking her white purse, and leaving her sons in Ngoc‘s care. At 8:00 p.m.,
Nguyen came by to pick up the two boys. The next day, around 6:00 p.m., Nguyen called
Ngoc and asked if Mai was there.
Duc Truong’s Testimony
       Duc Truong is married to Ngoc Banh. On the evening of Sunday, April 15, 2007,
Truong spoke to Nguyen, who said that Mai was missing. Truong called the San Leandro
police. Truong and Ngoc traveled to Mai‘s hair salon and found it locked and the lights
off. They also found Mai‘s car parked outside. Truong called Nguyen. When Truong
said he was at Mai‘s salon, Nguyen said he was on his way. When Nguyen arrived at the
salon, he asked Truong who had accompanied him. Nguyen then opened the salon with a
key. Nguyen entered first and went directly to the back. Truong followed and found
Mai, lifeless, on the floor. Truong called 911. Nguyen appeared relieved.
Hoogasian’s Testimony
       Nguyen made Mai‘s funeral arrangements with Michael Hoogasian. Hoogasian
said that Nguyen seemed ―[l]ike it was no big deal, like he was just coming in to talk to
someone.‖ Nguyen‘s primary concern was cost. When he was informed that a
government program might assist with the funeral costs, Nguyen asked about receiving
any overage, saying, ―I deserve it. I am the one that needs the money. I want that


       2  Because the victim and her sister, Ngoc Banh, share the same last name, we will
refer to each by first name only. No disrespect is intended.


                                             2
money.‖ Nguyen did not appear interested in the funeral services, telling Hoogasian that
he ―had more important things to do.‖
Dominic Canicosa’s Testimony
       In November 2005, Dominic Canicosa served Nguyen with papers noticing a suit
for divorce. On cross-examination, Canicosa testified that Nguyen was calm when
served.
Police Investigation
       Officer Jason Fletcher, of the San Leandro Police Department, testified that on
April 15, 2007, at approximately 7:00 p.m., he responded to Nguyen‘s home to
investigate a missing person. Nguyen was ―[v]ery, very calm.‖ He had red hands, as if
they had been sunburned or recently submerged under hot water. Nguyen reported that
he became concerned when Mai did not return home from a party earlier that morning.
Nguyen said that he last saw Mai the previous day, at 6:30 p.m., at her salon. Fletcher
repeatedly told Nguyen to contact San Francisco police before moving Mai‘s vehicle or
entering the salon.
       On April 15, 2007, at approximately 10:00 p.m., the San Francisco Police
Department responded to the hair salon. A body was found in the bathroom of the back
room. There was no sign of a struggle.
       On April 16, 2007, Nguyen was interviewed by San Francisco police. Nguyen
said that, on April 14, Mai gave him a haircut, at the salon, around 6:45 p.m. Nguyen
denied any involvement in Mai‘s death and theorized that she had been robbed and killed.
Nguyen exhibited a ―flat‖ demeanor throughout the interview.
       On April 25, 2007, a search was conducted at Mai‘s and Nguyen‘s home, in San
Leandro. A white purse was found, inside a Macy‘s plastic bag, at the bottom of a
clothes hamper. The purse contained keys to the salon and Mai‘s car. A claw hammer
was found on the floor, between the wall and the washing machine.
       Nguyen was arrested and interviewed again. Initially, Nguyen continued to deny
any involvement. But, Nguyen told police that the couple‘s marriage began to fray after
he accumulated a gambling debt. Nguyen signed quit claim deeds, giving Mai his rights


                                            3
to the family home and property in Sacramento, in exchange for a promise that Mai
would clear his debts. The couple also argued about child rearing.
       Eventually, Nguyen confessed to the killing. Nguyen said: ―I killed her because I
was so angry. That night . . . she was coming out with . . . her boyfriend. . . . We . . .
[were] going to get a divorce . . . . I just couldn‘t help, you know, I work hard for my
life, you know, I—I made one mistake—gambling . . . . But I couldn‘t pay up, my debt,
you know. All I wanted to do was just take care of my son, be with my son. She told me
she‘s gonna take all that . . . away from me. That‘s why I got so mad and I couldn‘t
control my . . . [unintelligible] moment—and I did a terrible thing . . . now I am paying
for it. . . . [¶] . . . [¶] I . . . was so angry, so I beat her with the hammer on her head.‖
       Nguyen told Mai, ―you‘re getting . . . married again, and you know, took
everything away from me.‖ Mai said ―no.‖ Nguyen became angry and wanted to beat
her. The toilet paper holder, in the bathroom, had come loose. They both went into the
bathroom. Nguyen had a hammer from the salon. Nguyen asked Mai to show him
where, on the wall, she wanted the toilet paper holder. When she turned around, he
began hitting her, in the back of the head, with the hammer. Nguyen said that ―[he] was
crazy at the time‖ and could not remember how many times he hit her. He also said: ―I
was very mad. I can‘t control myself . . . .‖ But, he also explained: ―It was a lot of anger
built up in me . . . all these years, and then I just at that moment . . . when she told me she
. . . filing a divorce and getting married, that‘s when I got . . . so upset.‖3
       Nguyen described the attack:
       ―A: But at first [I] hit her . . . on the head.
       ―Q: Mmm-hmm.
       ―A: And I remember she tried—she reaches her hand up tried to cover her head—
       ―Q: Mmm-hmm.
       ―A: —I—but I hit her again. Nothing I hit her . . . couple of more times she fell
down on the sides of the toilet when, uh, when you were facing the toilet she was falling


       3   This was the first time Nguyen learned that Mai was dating someone else.


                                                 4
. . . on the left. I hit her few times on that. Then after that I see . . . some little bit of
blood on my hand, not much, and I washed it, and I walked away. I took her purse and I
walked away. I locked the door and I walked away. But when I came back on Sunday I
saw her laid on this way on this side—
       ―Q: Uh-huh.
       ―A: —and blood‘s everywhere.
       ―Q: Uh-huh.
       ―A: So when I left her there she didn‘t die right away.‖
       After the conclusion of the interview, Nguyen led police to Lake Merritt where he
allegedly threw the hammer and Mai‘s cell phone into the water. Divers looked
repeatedly, but turned up nothing.
Forensic Evidence
       A forensic pathologist testified that bruises were found on Mai‘s armpit, right
palm, right arm, back of the right hand, left palm, back of the left hand, and right ankle.
The pathologist also found bruises on Mai‘s right forehead, tears to the back, sides, and
top of the head, tears to the back of the neck and behind her right ear, and a bruise on the
right side of her face. Mai suffered approximately 10 separate head wounds and ―a lot‖
of skull fractures. Some of the wounds were consistent with blows from a hammer. The
pathologist opined that Mai died from blunt force injuries to her head. A depression in
Mai‘s skull was compared with a valve knob in the bathroom at the salon. The
depression in the skull was similar in shape to the valve.
       A criminalist found portions of the recovered hammer that tested presumptively
positive for blood. DNA was found, but not enough to produce a full DNA profile.
                                          Defense Case
       Nguyen did not present any witnesses.
                                    Instructions and Verdict
       The jury was instructed on first and second degree murder, as well as voluntary
manslaughter. The prosecution‘s theory of the case was that Nguyen was guilty of first
degree, deliberate and premeditated, murder because he decided to kill Mai in advance,


                                                 5
out of resentment, lured her to the bathroom, and then left her to die. Nguyen did not
dispute having killed Mai, but argued that he was guilty of only voluntary manslaughter
because he did so in a sudden fit of rage.
       Nguyen was convicted of first degree murder. The jury also found the weapon-use
allegation true. He was sentenced to state prison for a total term of 26 years to life. He
filed a timely notice of appeal.
                                     II.     DISCUSSION
       Nguyen does not dispute that he killed Mai. However, Nguyen contends that his
first degree murder conviction should be reversed because: (1) the trial court erroneously
failed to properly answer the jury‘s question during deliberations regarding
premeditation; and (2) his trial counsel was ineffective for failing to object to the
prosecutor‘s misstatement of the law on provocation during closing argument. Neither of
Nguyen‘s arguments is persuasive.
A.     Instructional Issue
       While arguing that the evidence would better support a conviction for voluntary
manslaughter, Nguyen does not challenge the sufficiency of the evidence to support his
conviction of first degree murder. Rather, he contends the trial court erred in responding
to a jury question about the requisite elements of deliberation and premeditation.
       ―A murder that is willful, deliberate, and premeditated is murder in the first
degree. (§ 189.) ‗ ―A verdict of deliberate and premeditated first degree murder requires
more than a showing of intent to kill. [Citation.] ‗Deliberation‘ refers to careful
weighing of considerations in forming a course of action; ‗premeditation‘ means thought
over in advance. [Citations.] ‗The process of premeditation and deliberation does not
require any extended period of time. ―The true test is not the duration of time as much as
it is the extent of the reflection. Thoughts may follow each other with great rapidity and
cold, calculated judgment may be arrived at quickly. . . .‖ [Citations.]‘ ‖ [Citation.]‘
[Citation.] [¶] ‗ ―Generally, there are three categories of evidence that are sufficient to
sustain a premeditated and deliberate murder: evidence of planning, motive, and method.
[Citations.] . . . But these categories of evidence, borrowed from People v. Anderson


                                              6
(1968) 70 Cal.2d 15, 26–27, ‗are descriptive, not normative.‘ [Citation.] They are
simply an ‗aid [for] reviewing courts in assessing whether the evidence is supportive of
an inference that the killing was the result of preexisting reflection and weighing of
considerations rather than mere unconsidered or rash impulse.‘ [Citation.]‖ [Citation.]‘
[Citation.]‖ (People v. Booker (2011) 51 Cal.4th 141, 172–173, parallel citation omitted.)
       1.     Background
       In accordance with the above principles, the jury was instructed, pursuant to
CALCRIM No. 521: ―If you decide that the defendant has committed murder, you must
decide whether it is murder of the first or second degree. [¶] Deliberation and
Premeditation [¶] The defendant is guilty of first degree murder if the People have proved
that he acted willfully, deliberately, and with premeditation. The defendant acted
willfully if he intended to kill. The defendant acted deliberately if he carefully weighed
the considerations for and against his choice and, knowing the consequences, decided to
kill. The defendant acted with premeditation if he decided to kill before completing the
act that caused death. [¶] The length of time the person spends considering whether to
kill does not alone determine whether the killing is deliberate and premeditated. The
amount of time required for deliberation and premeditation may vary from person to
person and according to the circumstances. A decision to kill made rashly, impulsively,
or without careful consideration is not deliberate and premeditated. On the other hand, a
cold, calculated decision to kill can be reached quickly. The test is the extent of the
reflection, not the length of time. [¶] All other murders are of the second degree. [¶] The
People have the burden of proving beyond a reasonable doubt that the killing was first
degree murder rather than a lesser crime. If the People have not met this burden, you
must find the defendant not guilty of first degree murder.‖ (Italics added.)
       During deliberations, the jury sent the court a written note asking: ―In the
definition of ‗deliberately,‘ must the decision to kill be made before the commencement
of action, or if the decision was made before the acts were completed, is that still
considered deliberate?‖ Upon receiving the note, the trial court apparently consulted
with counsel, although that discussion is not reported. Ultimately, the trial court


                                              7
responded to the request ―by agreement of the parties,‖ with a written instruction to
―[r]eread instruction CALCRIM 521.‖
       2.     Analysis
       Nguyen argues that the trial court violated its instructional duty, under
section 1138, and Nguyen‘s due process rights by failing to further clarify the definitions
of deliberation and premeditation provided by CALCRIM No. 521. Nguyen concedes
that CALCRIM No. 521 constituted a correct statement of the law, but nonetheless
maintains that ―the jury may have convicted [him] of first-degree murder without
determining that he had carefully weighed the considerations for and against the killing
before deciding to kill.‖
       There is no evidence in the record that Nguyen‘s trial counsel raised this
contention below. ―When a trial court decides to respond to a jury‘s note, counsel‘s
silence waives any objection under section 1138. [Citation.]‖ (People v. Roldan (2005)
35 Cal.4th 646, 729, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th
390, 421, & fn. 22.) The record in fact indicates that the court‘s response was with
defense counsel‘s agreement. But even if we were to assume that the claim was not
forfeited, Nguyen‘s argument fails on the merits.4
       Section 1138 imposes ―a mandatory ‗duty to clear up any instructional confusion
expressed by the jury.‘ ‖5 (People v. Moore (1996) 44 Cal.App.4th 1323, 1331, quoting
People v. Gonzalez (1990) 51 Cal.3d 1179, 1212, superseded by statute on another point
as stated in In re Steele (2004) 32 Cal.4th 682, 690.) ―This does not mean the court must
always elaborate on the standard instructions. Where the original instructions are


       4 In the alternative, we would reach the issue based on Nguyen‘s assertion that his
trial counsel‘s agreement to the response constituted ineffective assistance of counsel.
       5  Section 1138 provides: ―After the jury have retired for deliberation, if there be
any disagreement between them as to the testimony, or if they desire to be informed on
any point of law arising in the case, they must require the officer to conduct them into
court. Upon being brought into court, the information required must be given in the
presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel,
or after they have been called.‖


                                             8
themselves full and complete, the court has discretion under section 1138 to determine
what additional explanations are sufficient to satisfy the jury‘s request for information.
[Citation.] Indeed, comments diverging from the standard are often risky. [Citation.] . . .
But a court must do more than figuratively throw up its hands and tell the jury it cannot
help. It must at least consider how it can best aid the jury. It should decide as to each
jury question whether further explanation is desirable, or whether it should merely
reiterate the instructions already given.‖ (People v. Beardslee (1991) 53 Cal.3d 68, 97.)
We review for abuse of discretion. (People v. Hodges (2013) 213 Cal.App.4th 531, 539.)
       We agree with the People that the trial court fulfilled its duty, under section 1138,
by directing the jury to CALCRIM No. 521, which contains the definitions of
deliberation and premeditation. When the jury instructions already given are complete
and accurate, the trial court does not necessarily abuse its discretion by advising the jury
to reread such instructions. (People v. Gonzalez, supra, 51 Cal.3d at p. 1213; People v.
Montero (2007) 155 Cal.App.4th 1170, 1179–1180; People v. Moore, supra,
44 Cal.App.4th at p. 1331.)
       Nguyen‘s reliance on People v. Loza (2012) 207 Cal.App.4th 332 (Loza), does not
convince us to reach a contrary conclusion. Loza was a murder case in which the jury
was instructed that a person who aided and abetted another to commit a crime is ―equally
guilty‖ of that crime. (Id. at p. 348.) On appeal, one defendant argued that, in response
to the jury‘s questions regarding the intent required for aider and abettor liability, the trial
court failed to adequately clarify its instructions when it simply referred the jury back to
the original instruction. The reviewing court concluded that trial counsel‘s failure to
object to the court‘s response constituted prejudicial ineffectiveness. (Id. at pp. 336, 349,
355–357.)
       The reviewing court noted: ―Although it is generally true that ‗a person who is
found to have aided another person to commit a crime is ―equally guilty‖ of that crime‘
[citation], ‗in certain cases, an aider may be found guilty of a greater or lesser crime than
the perpetrator. [Citations.]‘ [Citation.] . . . [¶] Because an aider and abettor‘s mental
state ‗floats free‘ from that of the direct perpetrator‘s, at least two courts have concluded


                                               9
that in certain circumstances, the ‗equally guilty‘ language found in [former] CALCRIM
No. 400 . . . , can be misleading by suggesting to the jury that it may not find an aider and
abettor to be guilty of a lesser offense from that of the direct perpetrator. [Citations.]‖
(Loza, supra, 207 Cal.App.4th at pp. 351–352.) Thus, because the jury specifically
inquired whether it should consider the state of mind of an aider and abettor, and
indicated by its question that it may have believed one defendant to be less culpable, the
trial court responded inadequately by simply referring the jury back to the instructions.
(Id. at p. 352.)
       Loza is distinguishable. Here, the jury was not given a jury instruction containing
potentially misleading language, such as the ―equally guilty‖ language at issue in Loza.
We fail to see how the jury could read CALCRIM No. 521 and reasonably conclude, as
Nguyen contends, that he could be convicted of first-degree murder without having
carefully weighed the considerations for and against the killing before deciding to kill.
The jury was instructed: ―The defendant acted deliberately if he carefully weighed the
considerations for and against his choice and, knowing the consequences, decided to kill.
The defendant acted with premeditation if he decided to kill before committing the act
that caused death.‖ (Italics added.)
       Nguyen insists that, in response to the jury‘s question, the trial court was bound to
inform them: (1) of ―the correct definition of premeditation and deliberation and the
relationship of those terms‖; and (2) ―that a first-degree murder verdict requires a finding
of both deliberation and premeditation.‖ CALCRIM No. 521 does just that. The trial
court did not abuse its discretion, or violate Nguyen‘s due process rights, in responding to
the jury question.
B.     Prosecutorial Misconduct
       Nguyen also contends that the prosecutor committed misconduct by misstating the
law of provocation in her closing argument. He also argues that his federal due process
rights were violated because the prosecutor‘s misstatement of the law lowered the
prosecution‘s burden of proof.



                                              10
       Specifically, Nguyen objects to the following portion of the prosecutor‘s
argument: ―A killing may be reduced from murder to manslaughter, but only if certain
conditions are met. [¶] The first is that the defendant was provoked and that has a very
specific legal meaning. The Court will read that to you. That the defendant, due to that
provocation, acted rashly. And . . . not any provocation will do. The provocation was the
type to cause a person of average disposition to act rashly under the influence of intense
emotion. [¶] Basically, what this means, and it is a little complicated. If you have to look
at those instructions, but it means that there is something that provoked the defendant to
such an extent that he acted without malice. Or in the difference between first and
second, . . . that he acted without premeditation and deliberation because this
provocation so affected his emotional state and his ability, that he couldn’t have the
intent that’s necessary. [¶] . . . [¶] It can reduce a murder to voluntary manslaughter, but
only if you find the provocation caused the defendant to act without malice aforethought.
It means the provocation was such that and so significant that it caused the defendant to
act rashly. [¶] He was in such a state, he couldn’t form the intent to kill. He could not act
with implied or express malice. Because of the nature of the provocation.‖
       The prosecutor continued: ―But look at specifically what is [Nguyen] telling you
are facts, specific facts that say or show there was any provocation at all? [¶] Meaning
what is he telling you Mai did that so provoked [Nguyen] that he . . . could only act
rashly. He couldn’t think about what he was doing. [¶] What did she do? [¶] . . . [¶] Even
if there was some [provocation], . . . is it the type of provocation that would cause a
person to act rashly without considering their actions? [¶] And that‘s why this
provocation concept comes in to determine between first and second degree murder.
Because in that it goes to whether if there is a provocation that so clouds your ability to
think rashly, you can‘t deliberate. [¶] You can‘t premeditate because something has
caused such an emotional stirring in you that you just act. [¶] . . . [¶] [W]e see that kind
on TV all the time. [¶] [A]nd that‘s kind of one of those killings where say someone is
charged or you know someone has been a murderer and a child molester and they
kidnapped your child, and were getting away with it. [¶] And you see them out on the


                                              11
street, and you just found out that they are getting away with it, and they are going to go
home, and they had raped your little kid and killed her. And you pull out a gun and you
shoot them. [¶] What you do in shooting them is not excusable, but the law recognizes it
is also not murder because that is the nature of provocation.‖ (Italics added.)
       Nguyen‘s trial counsel did not request an admonishment or object to any of the
above remarks.6 ― ‗[A] defendant 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.]‖ (People v. Stanley (2006) 39 Cal.4th 913, 952.)
Accordingly, Nguyen has forfeited his prosecutorial misconduct claim.
       However, because Nguyen also contends that his trial counsel‘s failure to object
constituted ineffective assistance, we consider Nguyen‘s misconduct claim under that
rubric. Under both the Sixth Amendment to the United States Constitution and article I,
section 15, of the California Constitution, a criminal defendant has the right to the
effective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 684–
686; People v. Ledesma (1987) 43 Cal.3d 171, 215.) This right ―entitles [the defendant]
to ‗the reasonably competent assistance of an attorney acting as his diligent conscientious
advocate.‘ [Citations.]‖ (People v. Ledesma, at p. 215.) To establish ineffective
assistance of counsel, a defendant must show: (1) that counsel‘s performance was so



       6  In fact, Nguyen contends that his trial counsel compounded the prosecutor‘s
misconduct by endorsing the same formulation of provocation. In his closing argument,
Nguyen‘s trial counsel said: ―We are asking you to hold [Nguyen] accountable for what
he did. [¶] And what he did is commit a violent act, could have even had the intent to do
it. [¶] But if he did it . . . as a result of such a rash of feelings that he could not deliberate,
that he could not even think, that he probably was not even thinking . . . . If you find that
that‘s reasonable, then you know what the law requires you to do. [¶] . . . [¶] Now, I wish
I could tell you what malice means in the legal sense, but I haven‘t been able to figure it
out. Because malice aforethought is not premeditation, the intent to kill. We will leave
that for you to decide. [¶] But if we‘ve got that provocation, that heat of passion and
when you look at the evidence, if you think, yes, I see how that affected his mind, I see
how that affected his specific intent. There is no specific intent here.‖ (Italics added.)


                                                12
deficient that it fell below an objective standard of reasonableness, under prevailing
professional norms and (2) that the deficient performance was prejudicial, rendering the
results of the trial unreliable or fundamentally unfair. (Strickland v. Washington, at
pp. 688, 692; People v. Ledesma, at pp. 216–217.) To satisfy the prejudice requirement,
a defendant ―must show that there is a reasonable probability that, but for counsel‘s
unprofessional errors, the results of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.‖ (Strickland v. Washington, at p. 694.)
       Nguyen contends: ―The prosecutor committed misconduct by erroneously and
repeatedly telling the jury that to reduce the crime from murder to manslaughter,
provocation had to so enrage [Nguyen] that he could not harbor malice or form the intent
to kill. This overstated the level of provocation required because to reduce liability to
manslaughter, provocation did not have to render [Nguyen] incapable of forming the
culpable mental state. Rather, it would have been sufficient so long as it would have
caused an average person of ordinary disposition, with knowledge of the same facts as
[Nguyen], to act rashly and without judgment [¶] . . . [¶] Thus, contrary to what the
prosecutor repeatedly told the jury, the only task before it on the issue of provocation was
to determine whether it was sufficient . . . to cause an average person to act from passion,
not judgment. If the jury made such a finding, malice would be negated by operation of
law. [¶] . . . [¶] . . . In other words, if the jury determined that provocation was sufficient
to cause a person of average disposition to act rashly, [Nguyen‘s] liability would be
reduced from murder to manslaughter because that is what section 192(a) requires, not
because of the impact of provocation on the ability to form intent or harbor malice.‖
       It is misconduct for a prosecutor to misstate the law during argument. (People v.
Marshall (1996) 13 Cal.4th 799, 831; People v. Otero (2012) 210 Cal.App.4th 865, 870.)
And, the People, in their appellate brief, apparently concede that the prosecutor‘s
comments constituted a misstatement of the law. But, even if we were to find that the
prosecutor misstated the law and that Nguyen‘s counsel had no valid tactical reason for
failing to object, Nguyen‘s ineffective assistance of counsel claim must be rejected


                                               13
because he has failed to demonstrate a reasonable probability the outcome of his trial
would have been different absent that error. ―The standard for prejudice is a reasonable
probability that, but for counsel‘s error, the verdict would have been different.
[Citations.]‖ (People v. Neely (2009) 176 Cal.App.4th 787, 796; Strickland v.
Washington, supra, 466 U.S. at pp. 691–694.)
       Nguyen suggests that his federal due process rights were violated and that we
should apply the Chapman standard for prejudice. To support his contention, he relies on
People v. Thomas (2013) 218 Cal.App.4th 630 (Thomas). In that case, Division Three of
this court concluded that the Chapman v. California (1967) 386 U.S. 18, 24 (Chapman)
standard was applicable when the trial court refused the defendant‘s request for
CALCRIM No. 570 and thus ―the jury was not instructed that it could consider
provocation to reduce a murder to manslaughter.‖ (Thomas, at pp. 633, 644.) The court
held: ―[T]he failure to instruct on provocation where warranted is an error of federal
constitutional dimension that denies the defendant due process because it relieves the
prosecution of the burden to prove malice beyond a reasonable doubt.‖ (Id. at p. 642.)
       Thomas is distinguishable because, here, the trial court instructed the jury,
pursuant to CALCRIM No. 570: ―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 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


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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 the 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.‖ (Italics added.) The jury was also
instructed: ―A decision to kill made rashly, impulsively, or without careful consideration
is not deliberate and premeditated.‖
        It is conceded that the court‘s instructions to the jury were correct. And, the trial
court instructed the jury: ―If you believe that the attorneys‘ comments on the law conflict
with my instructions, you must follow my instructions.‖ We must presume that the jury
followed this instruction. (People v. Boyette (2002) 29 Cal.4th 381, 436; People v.
Mendoza (2000) 24 Cal.4th 130, 173 [―the ‗court‘s instructions, not the prosecution‘s
argument, are determinative, for ―[w]e presume that jurors treat the court‘s instructions as
a statement of the law by a judge, and the prosecutor‘s comments as words spoken by an
advocate in an attempt to persuade‖ ‘ ‖]; People v. Najera (2006) 138 Cal.App.4th 212,
224.)
        Nguyen‘s reliance on People v. Anzalone (2006) 141 Cal.App.4th 380, is also
misplaced. In that case, the Fourth District Court of Appeal concluded that defense
counsel was prejudicially ineffective in failing to object to the prosecutor‘s misstatement
of the law of concurrent intent, when the trial court had not instructed on concurrent
intent. (Id. at pp. 392–393, 395–396.) The court explained: ―The danger in the trial
court not instructing on a legal concept relied on by the prosecution is that it totally


                                              15
leaves to the prosecutor the defining of that legal concept. In this case the prosecutor got
it wrong.‖ (Id. at p. 392.) Thus, ―[t]aking the court‘s proper instructions [on attempted
murder] and the prosecutor‘s erroneous argument [on concurrent intent] together, the jury
would have reasonably understood that to find attempted murder it was required to find
appellant intended to kill at least one of the men standing by the car; but once it did so, it
could find appellant guilty of three additional counts of attempted murder simply because
the other victims were in the ‗zone of danger.‘ ‖ (Id. at p. 396.)
       Here, unlike in People v. Anzalone, the jury was fully and correctly instructed on
the relevant legal concept. It was also instructed to follow the court‘s instructions on the
law, even if they conflict with statements made by counsel (CALCRIM No. 200). As
Nguyen acknowledges in his briefing, there was never a dispute at trial that this was an
intentional killing. The only issue was whether the killing was in the heat of passion in
response to adequate provocation. Given the strength of the evidence against Nguyen
and the trial court‘s proper instructions, there is no reasonable probability the outcome of
Nguyen‘s trial would have been different absent any error by his counsel.
                                    III.    DISPOSITION
       The judgment is affirmed.




                                                   _________________________
                                                   Bruiniers, J.


We concur:


_________________________
Jones, P. J.


_________________________
Simons, J.



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