Filed 3/28/14 P. v. Gibson CA6



                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT



THE PEOPLE,                                                          H037519
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SS082957A)

         v.

DAN MARK GIBSON,

         Defendant and Appellant.



         After a jury convicted Dan Mark Gibson (appellant) of the murder of his wife,
Maria "Cherry" Gibson (Pen. Code, § 187, subd. (a)), the trial court sentenced him to 15
years to life in state prison. Appellant filed a timely notice of appeal.
         On appeal, appellant claims that the trial court committed reversible error by
(1) refusing his request to instruct the jury on voluntary manslaughter as a lesser included
offense of murder, (2) allowing the prosecution to introduce into evidence inculpatory
statements he made to police investigators while he was seriously injured and medicated
in a hospital bed, in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda),
(3) failing to instruct the jury not to consider as evidence prosecutorial questions about
his character, (4) allowing him to be tried for first degree murder in the event of any
retrial, and (5) that his due process rights to a fair trial were violated because of the
cumulative effect of the trial court's errors. For reasons that follow, we affirm the
judgment.
                                Facts and Proceedings Below
       At the outset, we note that the fact that appellant killed his wife on October 30,
2008, is not in dispute. Appellant admitted to the police, to medical personnel, and in
court that he had so done. Specifically, appellant testified that he thought he "choke[d]
her to death." The main controversy in the trial court was whether the killing constituted
first or second degree murder.
The Prosecution's Case
       In the early morning hours of October 31, 2008, Grace Swearingen went outside to
retrieve her morning newspaper. Ms. Swearingen saw appellant lying on the ground.
When police officers arrived a short time later, they found appellant lying directly in
front of the garage attached to 1037 Highland Street, #D. When police entered this
residence they found the screen door leading out to the third floor balcony "forced off its
frame"; it appeared to have been forced out from the inside. Officers found appellant's
wife "lying in the bathtub, covered in a white comforter." Her face was exposed and her
eyes were wide open and her pupils were fixed and dilated, which indicated to one of the
officers that she was dead.
       Appellant was taken by ambulance to the hospital. En route a nurse asked
appellant if he was in any pain. Appellant responded by saying " 'I killed my wife.' " At
the San Jose Regional Medical Center, appellant told an attending physician that he had
"murdered" his wife by strangling her.1


1
       San Jose Police Officer Jonathan Gemmet was working as a security officer at the
Medical Center when appellant was brought into the emergency room. He testified that
appellant was conscious and speaking to the medical staff. As a result of what he heard
appellant saying, Officer Gemmet activated his department-issued digital audio recorder
                                               2
       The pathologist who conducted the autopsy on Ms. Gibson testified that the cause
of death was asphyxia due to strangulation. Ms. Gibson's body showed that she had
suffered various external injuries including bruises to her scalp and head, several
lacerations and abrasions, a stab wound on the neck that went in no more than an inch,
and a series of parallel superficial cuts, which he concluded were eight to 10 attempts to
cut into her neck consistent "with a sawing motion back and forth." Internal injuries
showed that the cartilage in her neck was cracked "as though something were extremely
forcefully being pressed against the front of" Ms. Gibson's neck. Ms. Gibson's ribs were
broken "all the way up and down," which he concluded was the result of someone
applying "a large amount of force, like almost the full weight of a fairly heavy body
standing or kneeling . . . on the body . . . ." The pathologist opined that Ms. Gibson was
stabbed and had her ribs crushed post mortem. At the time Ms. Gibson was killed she
was five feet, two inches tall and weighed 108 pounds.
       When Seaside Police Detectives Anderson and Martin interviewed appellant in the
hospital, he told them that on October 30, 2008, he and his wife had driven to San
Francisco to get the paperwork they needed to fly to the Philippines the next day.2 When
they returned home, they decided to take a nap before tackling the task of packing for the
trip. According to appellant, he woke up in a panic. He and his wife talked about the trip
to the Philippines and appellant told her that he would not be able to make the trip in the
time he had off from work; his wife said she would go with or without him. Appellant
said that his wife told him that she had transferred all the money from their bank account
to her family's account in the Philippines.
       Appellant explained that he moved closer to his wife. Specifically, he "reached,
leaned over like [he] was going to kiss her;" his arm was around her neck. Then, he


and started recording what was being said. A recording of appellant's conversation with
the medical staff was played for the jury.
2
       Appellant was informed of his Miranda rights and said that he understood.
                                              3
"[s]queezed and squeezed." At one point, his wife told him that he was hurting her and
squeezing too tight; he squeezed harder. Appellant said that his wife cried out for help;
as she was resisting him she kicked out the screen door leading to the balcony. His wife
bit him several times during the time he was strangling her. After choking his wife, he
retrieved a knife and stabbed her in her right wrist next to the vein, he tried to stab her in
the chest and throat area and "crotch area" so she would bleed out, then there would be no
question that she would die. In order to confirm that she was dead, appellant said he
placed his wife face down in the bathtub filled with water and checked to see if any
bubbles surfaced. However, before placing her in the bathtub he "jammed her, in her
sternum" with the knife and tried to . . . "break her neck" while she was in the bathtub
area.
        When the detectives asked appellant why he was angry with his wife, appellant
told them "it was the lack of my security of her coming back. It seemed like she had
more going for her in the Philippines." Appellant said he did not want to live without
her. According to appellant, they had not argued and his wife did not "lash out" at him or
"say something or do something to make" him "upset." Appellant explained, "it was me"
and he said, "the problems were me." He said that his wife had professed her fidelity to
him "numerous times."
        Appellant acknowledged that his wife "did not deserve" to die. He felt rage when
he attacked her because he "lost . . . all the money" that they shared. However, he
admitted that she had done nothing wrong. Appellant confessed that he thought about
"slicing" his wife's throat several days before he actually killed her.
        In the hours after he killed his wife, appellant walked back and forth several times
from his bedroom to the adjoining third-floor balcony intending to jump off and kill
himself. After multiple unsuccessful attempts, by accident, he slipped on some water and
fell from the balcony to the cement driveway below.


                                               4
       As a result of the fall from the balcony, appellant suffered a broken pelvis, injuries
to both his legs and numerous abrasions and bruises.
The Defense Case
       Dr. Daniel McFarland, an anesthesiologist, testified that given appellant's injuries
and the drugs administered to him by medical personnel before and during the time
appellant spoke to the detectives, he would have expected that appellant's brain function
would have been impaired, in addition to him having "some degree of memory
impairment." Dr. McFarland listened to the recording of appellant's police interview. He
noted that there were indications that appellant's mental faculties were impaired.
       Several of appellant's friends and work colleagues testified that in the time leading
up to the homicide, appellant had showed signs of stress from his job and was not his
usual friendly self. Some said that appellant was not a violent person. On the contrary,
he was friendly and caring.
       Appellant testified on his own behalf that he worked as a correctional counselor at
Soledad Correctional Training Facility, a state prison. Appellant spoke about a
relationship he had with an ex-girlfriend, which he described as both limited in scope and
platonic in nature. He and the ex-girlfriend belonged to the same gym, but he would
schedule his gym visits to try to avoid seeing her—not always successfully, but
eventually he ended his gym visits. However, he had accompanied her to a movie on one
occasion, and he had called her on his cellular telephone—telephone calls that his wife
was aware of and discussed with him. That was a source of stress, as were work
problems and the emotional problems of family members from his prior marriage. One
result of all this stress was that he could sleep only one to two hours per day; this was
despite the fact that he was overdosing himself on Ambien, a sleep-inducing medication.
       In the week of the killing, appellant said that he was depressed and not eating or
sleeping properly; he had stopped visiting the gym. He had taken off two weeks from
work to deal with his depression and was sitting at home watching television without
                                              5
registering the contents of the programs. He acknowledged that he and his wife were
living beyond their financial means.
       On the day he killed his wife, they drove to San Francisco to collect airplane
tickets for both of them from the offices of Philippine Airlines. Their flight was
scheduled to leave the next day, Friday, October 31. They returned to their residence to
pack. Appellant said that throughout the day he told his wife that he did not want to
undertake the trip. She said she would go with or without him, although she was worried
that he might contact his ex-girlfriend while she was gone if she did go alone. The
amount of things she was packing suggested to him that she did not plan to return to the
United States.
       Appellant testified that when he awoke from a brief nap, he saw his wife "sitting
on the bed with her laptop, and she was going over some figures from what [he] could
see." When he asked what she was doing, she said she was transferring all of their funds
to an account held by her family. Appellant said, "She pressed . . . a button and . . . said,
[n]ow we have no money in our account."
       Consistent with his trial testimony, at the hospital appellant had told the detectives
about his general life and work situation before the killing; and explained that because of
either sleep apnea or stress, or both, he was not sleeping. Appellant had told the
detectives about the situation that had occurred sometime before he killed his wife
concerning him being friendly with a former girlfriend; he described the relationship he
had with the former girlfriend after his marriage as platonic, but also mentioned his
"infidelity." Toward the end of the interview, he had stated that his wife "had discovered
I was[] with my ex-girlfriend." In addition, he stated that on three or four occasions he
had visited "massage parlors" but his wife did not know about these visits, although he
suspected that she might have known. In any event, possibly "the whole week of her
demise" they were arguing or having discussions about the ex-girlfriend. At the same
time, he felt jealous of the possible consequences of her ability to associate with
                                              6
celebrities and wealthy business executives through her job at an exclusive resort. He
wondered, "what do I have to offer, when you live paycheck by paycheck and so does
she[?]" His wife told him that if he loved her he would accompany her on a trip to her
native Philippines.
         Appellant had explained to the detectives that he viewed the trip to the Philippines
as "her way to get out of the marriage," a marriage he wanted to fix; from his perspective
he thought "[his] actions . . . in the past, had warranted" her plan to go to the Philippines.
However, he "didn't want to go to the Philippines." Before they took a nap, they were
arguing about his lack of commitment to go to the Philippines and, he "realized at this
point" that their "relationship was over."
         Toward the end of the interview, appellant had told the detectives that his wife had
not done anything wrong and that he "definitely" had. He summarized by saying he
committed the killing because he "wanted security"; and "didn't want to . . . live without
her." In addition, he killed her out of "[j]ealousy" of all the people that she "associate[d]
with."
         Appellant had told the detectives during the interview that he decided he "had no
right to . . . live." He went out onto the balcony to jump off and kill himself. He said that
before he could leap off volitionally, which he was having trouble doing, he slipped and
fell involuntarily. He predicted he would "probably go on death row . . . or [be] put in
prison for life."3
         Appellant testified that when he asked his wife if she was going to come back
from the trip to the Philippines, she said that she would not. As a result, he "felt [he] was
out of control" because he "was losing everything that was important to" him. During
cross-examination, appellant stated that when he asked his wife why she had transferred
their funds, she told him that she was leaving him. The prosecutor handed appellant a

3
      The recording of appellant's interview with Detectives Anderson and Martin was
played for the jury.
                                               7
statement for his and his wife's joint bank account for October 1 through October 31,
2008. Appellant looked at the statement and agreed that it did not show any emptying of
the account. Further, appellant admitted that he did not ask his wife to try to reverse the
transfer. Appellant acknowledged that on the day he killed his wife, the discussions he
was having with her concerning their impending trip were conducted in a "conversational
tone."
         In rebuttal, a police officer who had collected evidence from the couple's bedroom
found a laptop computer "in a small hutch-like desk next to the bed." The computer's lid
was closed.
                                          Discussion
I.       Alleged Error in Failing to Instruct on Voluntary Manslaughter
         The jury heard instructions on first and second degree murder but not voluntary
manslaughter. On the first day of deliberations, the jury sent a note to the judge in which
the jury asked, "Is voluntary manslaughter still an option?" The trial court said that it
was not an option. The jury then deliberated for approximately 19 hours, before
returning its murder verdict.4
         The jury returned a verdict form stating that they had found appellant guilty of
murder but were "[u]ndecided" whether the murder was willful, premeditated, and



4
       The jury deliberated from late in the afternoon on November 19, 2010, again on
November 22, on November 23, November 30, and returned a verdict at 3:30 p.m. on
December 1. Appellant calculates the total at approximately 23 hours, but we view the
record in a different way; specifically, we calculate lunch breaks as running from noon to
1:30 p.m. unless otherwise noted in the record, whereas appellant calculates them as
lasting one hour. However, during the five days that the jury deliberated, the jury posed
numerous questions for the court—including six questions indicating the jury was
wrestling with the question of whether the crime was first or second degree murder—and
requested to hear the recording of appellant's police interview, be provided with
photocopies of the definition of first degree murder and second degree murder, have
appellant's testimony read back, and the testimony of the anesthesiologist.

                                               8
deliberate. The jurors were polled and confirmed that this was their true verdict. The
court recorded the verdict and excused the jury.
       Thereafter, the trial court ruled that the jury was deadlocked on the degree of the
murder and ordered a retrial on the applicable degree of murder. The court ruled that the
element of premeditation could be retried pursuant to Porter v. Superior Court (2009) 47
Cal.4th 125. However, before retrial occurred, the parties and the trial court reached
what may be termed a settlement, agreeing that appellant would agree to be sentenced for
second-degree murder, the prosecutor would move to dismiss what the court called "the
premeditation allegation," and the court would take the motion under submission and not
rule on it until after appellant's appeal was final. Accordingly, with this agreement in
place, the trial court sentenced appellant to a prison term of 15 years to life for second-
degree murder.
       Appellant contends that the trial court infringed on his right to due process under
the Fourteenth Amendment to the United States Constitution and to jury trial under the
Sixth Amendment. Further, the court erred under state law, by (1) denying defense
counsel's motion to instruct the jury on voluntary manslaughter as a lesser included
offense to murder, and (2) refusing to permit the jury to consider returning a verdict of
voluntary manslaughter despite a question from the jury during deliberations asking
whether it could so do.
       Defense counsel moved for a voluntary manslaughter instruction, but the trial
court denied the motion. In rejecting the requested instruction, the trial court discussed
cases it viewed as instructive, including People v. Moye (2009) 47 Cal.4th 537 (Moye),
People v. Steele (2002) 27 Cal.4th 1230, and People v. Berry (1976) 18 Cal.3d 509
(Berry). The court stated that as far as the objective component of the voluntary
manslaughter test is concerned, "[t]he only factors that can be considered, in this Court's
estimation, are the factors that the victim caused." The court noted that there were two
possible victim-caused passion-inducing factors—the victim purportedly telling
                                              9
defendant that (1) she did not intend to return from the Philippines and (2) she had
emptied the couple's joint bank account, transferring the money to an account belonging
to her family over which appellant had no control. The court went on to say, with regard
to the first factor—her leaving, "is that reasonably objective—is that the kind of thing
that would cause a reasonably objective individual to react with this kind of killing
passion? And the answer to that is no." Similarly, with regard to the bank account being
emptied the court questioned, "[i]s that conduct sufficient to raise a killing instinct or
conduct on the part of a reasonably objective person? And the answer to that is no."
       After further discussion, the trial court stated that it did not recall "any testimony
by anybody, at any time, that [the victim] even raised her voice. It's just not there. There
is no taunting. There were discussions. He—the defendant, in his taped statement, talked
about it more than he did in his court testimony. He talked about there being these
discussions or concerns that she expressed about the gal at the gym. But even those
discussion[s] were—weren't described as loud or angry, just unhappy, I guess. [¶] . . . I
just don't see anything in the evidence that would justify giving manslaughter, voluntary
manslaughter instructions, so the Court is not going to give it. The request to give it is
denied."
       As noted, ante, very shortly after the jury retired to deliberate, the jury sent a note
asking the court, "Is voluntary manslaughter still an option? Are the options: [¶] 1. 1st
degree murder[.] [¶] 2. 2nd degree murder[.] [¶] 3. manslaughter[.] [¶] 4. acquittal[.]"
Again, defense counsel argued that the court should instruct on voluntary manslaughter,
"especially now that the jury is asking about it." The court rejected the argument.
Instead, the court convened the jury in the courtroom and instructed the jury that the
informal answer to the question was "the options are: first-degree murder, second-degree
murder, acquittal, and no decision. Manslaughter is not an option. All right? [¶] And
then, more formally, I'm going to give you a further instruction. The possible options
are: [¶] One, Count 1, the options there are guilty or not guilty of murder. If you
                                              10
unanimously agree on a verdict, complete the verdict form accordingly. If all twelve
jurors cannot agree on a verdict, please inform the bailiff. [¶] Two, if the jury finds the
defendant guilty of murder, then the question remains as to whether . . . it is willful,
deliberate, and premeditated murder. If you are able to reach a unanimous agreement as
to whether such murder is or is not willful, deliberate, and premeditated, complete the
special finding on the verdict form. If you cannot reach a unanimous agreement, please
inform the bailiff that you cannot reach a decision as to the special finding."
       Under California law, a trial court has a "duty to instruct on 'all theories of a lesser
included offense which find substantial support in the evidence.' " (People v. Rogers
(2006) 39 Cal.4th 826, 866-867 (Rogers).) By instructing on all crimes for which there is
substantial evidence, "the trial court's action will avoid an unwarranted all-or-nothing
choice for the jury and will ensure that the verdict is no harsher or more lenient than the
evidence merits." (People v. Wickersham (1982) 32 Cal.3d 307, 324 (Wickersham),
disapproved on another ground People v. Barton (1995) 12 Cal.4th 186, 201.)
"Substantial evidence" is evidence from which a jury composed of reasonable persons
could conclude that the defendant committed the lesser offense, but not the greater.
(People v. Breverman (1998) 19 Cal.4th 142, 162.) "In deciding whether evidence is
'substantial' in this context, a court determines only its bare legal sufficiency, not its
weight." (Id. at p. 177.) In particular, "courts should not evaluate the credibility of
witnesses, a task for the jury." (Id. at p. 162.) "The testimony of a single witness,
including the defendant, can constitute substantial evidence requiring the court to instruct
on its own initiative." (People v. Lewis (2001) 25 Cal.4th 610, 646.)
       Conversely, the "substantial evidence requirement is not satisfied by ' "any
evidence . . . no matter how weak," ' but rather by evidence from which a jury composed
of reasonable persons could conclude 'that the lesser offense, but not the greater, was
committed.' [Citation.]" (People v. Verdugo (2010) 50 Cal.4th 263, 293.)


                                               11
        Although no specific type of provocation is required (Berry, supra, 18 Cal.3d at p.
515), the court may resolve the question when the provocation is so slight or so severe
that reasonable jurors could not differ on the issue of adequacy. (People v. Brooks (1986)
185 Cal.App.3d 687, 693.)
        "[O]n appeal we employ a de novo standard of review and independently
determine whether an instruction on the lesser included offense of voluntary
manslaughter should have been given." (People v. Manriquez (2005) 37 Cal.4th 547,
584.)
        The requested instruction, CALCRIM No. 570, would have provided: "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/her) 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/her) 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
                                             12
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."
       Thus, heat of passion arises if, " 'at the time of the killing, the reason of the
accused was obscured or disturbed by passion to such an extent as would cause the
ordinarily reasonable person of average disposition to act rashly and without deliberation
and reflection, and from such passion rather than from judgment.' " (People v. Barton,
supra, 12 Cal.4th at p. 201.) "Heat of passion, then, is a state of mind caused by legally
sufficient provocation that causes a person to act, not out of rational thought but out of
unconsidered reaction to the provocation. While some measure of thought is required to
form either an intent to kill or a conscious disregard for human life, a person who acts
without reflection in response to adequate provocation does not act with malice."
(People v. Beltran (2013) 56 Cal.4th 935, 942 (Beltran).)
       Recently, in Beltran, supra, 56 Cal.4th 935, our Supreme Court noted that "[t]o be
adequate, the provocation must be one that would cause an emotion so intense that an
ordinary person would simply react, without reflection." (Id. at p. 949.) In other words,
"the anger or other passion must be so strong that the defendant's reaction bypassed his
thought process to such an extent that judgment could not and did not intervene." (Ibid.)
       "[C]ase law and the relevant jury instructions make clear the extreme intensity of
the heat of passion required to reduce a murder to manslaughter. This passion must be a
' " ' "[v]iolent, intense, high-wrought or enthusiastic emotion" ' " [citation].' [Citation.]"
(Beltran, supra, 56 Cal.4th at p. 950.)
       In this case, just before the homicide, appellant's wife had (a) indicated that she
had transferred all of the money in the joint account to her family's account, and (b)
                                              13
indicated that she might stay in the Philippines after their trip, rather than return to the
United States with appellant. The question in this case is do these two facts together
constitute legally sufficient provocation—the kind of provocation that " 'would render
ordinary men of average disposition liable to act rashly or without due deliberation and
reflection, and from . . . passion rather than from judgment.' " (Beltran, supra, 56 Cal.4th
at p. 948.)
       "A heat of passion theory of manslaughter has both an objective and a subjective
component. [Citations.]" (Moye, supra, 47 Cal.4th at p. 549.)
       " ' "To satisfy the objective or 'reasonable person' element of this form of
voluntary manslaughter, the accused's heat of passion must be due to 'sufficient
provocation.' " [Citation.]' [Citation.] '[T]he factor which distinguishes the "heat of
passion" form of voluntary manslaughter from murder is provocation. The provocation
which incites the defendant to homicidal conduct in the heat of passion must be caused
by the victim [citation] or be conduct reasonably believed by the defendant to have been
engaged in by the victim. [Citations.] The provocative conduct by the victim may be
physical or verbal, but the conduct must be sufficiently provocative that it would cause an
ordinary person of average disposition to act rashly or without due deliberation and
reflection. [Citations.]' [Citation.]" (Moye, supra, 47 Cal.4th at pp. 549-550.)
       "To satisfy the subjective element of this form of voluntary manslaughter, the
accused must be shown to have killed while under 'the actual influence of a strong
passion' induced by such provocation. [Citation.]" (Moye, supra, at p. 550.)
" ' "However, if sufficient time has elapsed between the provocation and the fatal blow
for passion to subside and reason to return, the killing is not voluntary
manslaughter . . . ." [Citation.]' [Citation.]" (Ibid.)
       Appellant contends the "dual provocation" present in this case is legally sufficient
to meet the objective component of provocation under a heat of passion theory.
Appellant compares his wife's threat to not return from the Philippines with examples of
                                              14
infidelity in the case law. Citing to Berry, supra, 18 Cal.3d 509 and People v. Borchers
(1959) 50 Cal.2d 321 (Borchers), appellant argues that a wife's announcement to her
husband that she is leaving him is very much the sort of provocation that would cause a
husband to act rashly and without deliberation.
       In Berry, supra, 18 Cal.3d 509, a husband killed his wife in a rage following two
weeks during which she taunted her husband with her involvement with another man
when she had visited Israel. She told her husband that her lover was coming to America
to claim her, and that she wanted a divorce. (Id. at p. 513.) The defendant had testified
that his wife announced to him that, during a trip to her homeland, she had fallen in love
with another man, that she had enjoyed his sexual favors, that he was coming to this
country to claim her, and that she wanted a divorce. (Ibid.) Then, for the next two
weeks, his wife alternately taunted defendant with her involvement with the other man
and at the same time participated in sexual conduct with defendant. The defendant
choked his wife into unconsciousness once. On the day of the homicide, the defendant's
wife found him at their home after she returned from being out all night. She said, " 'I
suppose you have come here to kill me,' " and she screamed at him. He tried to stop her
screaming. They struggled and defendant finally strangled her with a telephone cord.
(Id. at pp. 513-514.) The Berry court noted that in Borchers, supra, 50 Cal.2d at page
329, they had declared that "evidence of admissions of infidelity by the defendant's
paramour, taunts directed to him and other conduct, 'support[ed] a finding that defendant
killed in wild desperation induced by [the woman's] long continued provocatory conduct.'
[Citation.]" (Berry, supra, at p. 515.) Accordingly, the Berry court found that under the
circumstances of the case, the trial court erred in refusing to instruct on voluntary
manslaughter based on sudden quarrel or heat of passion. (Id. at p. 518.) Specifically,
the Supreme Court agreed with the defendant: "Defendant's testimony chronicles a two-
week period of provocatory conduct by his wife Rachel that could arouse a passion of


                                             15
jealousy, pain and sexual rage in an ordinary man of average disposition such as to cause
him to act rashly from this passion." (Id. at p. 515.)
       In Borchers, the defendant fell in love with the victim and within two weeks they
were engaged to be married. The victim had financial problems, and the defendant
helped solve them, including paying her debts, giving her power of attorney over his
assets, and buying a life insurance policy naming her as the beneficiary. The defendant
also instructed his attorney to prepare papers to adopt her young illegitimate son. Later,
the defendant hired a private investigator who informed him the victim was involved with
criminals and willingly had sex with one of them, a pimp. She also gave the pimp
defendant's money. On the day of the killing, the defendant and victim went for a drive
and she admitted her infidelity. She said she wished she were dead, attempted to jump
from the car, took a gun from the glove compartment, repeatedly urged the defendant to
shoot her, and taunted him by calling him chicken. (Borchers, supra, 50 Cal.2d at pp.
323-327.)
       We acknowledge that loss of property may be a contributing factor in heat of
passion involving marital infidelity. In People v. Le (2007) 158 Cal.App.4th 516, a
husband killed his wife's lover after an extended period of infidelity. Additionally, the
wife had loaned her lover $10,000. (Id. at 519.) The defendant cited both acts as reasons
for the killing. (Id. at p. 522.) Although the trial court instructed the jury on voluntary
manslaughter, the court erroneously instructed the jury that "mere words" are not a
defense to battery, and the court permitted the prosecutor to argue that words alone
cannot form sufficient provocation. (Id. at p. 518.) The jury convicted the defendant of
second-degree murder. In reversing the conviction, we found it reasonably probable that
the jury would have convicted the defendant of voluntary manslaughter. (Id. at p. 529.)5

5
        Loss of property has been a factor contributing to provocation in other contexts,
apart from marital infidelity. In Breverman, supra, 19 Cal.4th 142, a group of attackers,
seeking retribution for a prior fight, approached the defendant's residence while the
                                             16
       In contrast to Berry, Borchers and Le, here, there was absolutely no evidence that
appellant's wife was engaged in any extramarital affair, or that she was leaving him for
another man; there were no allegations of recent infidelity, and appellant did not claim
such thoughts were in his mind when he killed his wife. Further, there was no evidence
that she taunted him or even that they had had a heated argument. To the contrary,
appellant testified that his wife had not lashed out at him, and had not said something or
done something to make him upset. Rather, it was his own insecurity that caused him to
become enraged; he did not want to live without his wife. Further, appellant told the
police he was angry with his wife because he was afraid she was going to leave him; he
felt he could not survive without the money, but he did not feel that she had fooled him.
       In essence, appellant is asking this court to agree that there is legally sufficient
provocation when the provocation is the bare act of one spouse saying they are leaving
the marriage, and they are taking marital money. Respectfully, without more, this we
decline so to do. "Adequate provocation" goes " 'beyond that degree within which
ordinary men have the power, and are, therefore, morally as well as legally bound to
restrain their passions.' " (See Beltran, supra, 56 Cal.4th at p. 947.) The two
statements—I'm not coming back from the Philippines and I have transferred all our


defendant was inside. (Id. at p. 150.) The attackers began beating the defendant's car
with clubs and sticks, setting off the car alarm. The defendant began firing a gun from
inside his residence, and the attackers fled. One of the fleeing attackers was shot and
killed. The defendant stated that he fired at the attackers because they had damaged his
car, and he was trying to stop them. (Id. at p. 151.) He also insisted that he thought they
were trying to enter his home to kill him. The trial court instructed the jury on voluntary
manslaughter on a theory of imperfect self defense, but not on a theory of heat of passion.
(Id. at p. 152.) The California Supreme Court held that the trial court erred. (Id. at p.
164.) In its analysis, the court noted the attackers' trespass on the defendant's property
and the attack on his car, as well as the fear and panic the attack instilled in the
defendant's mind. (Id. at p. 163.) The prosecution asked the court to hold that mere
vandalism to an automobile is never sufficient provocation, but the court declined to do
so, noting that the facts underlying the provocation went beyond mere destruction of
property. (Id. at p. 164, fn. 11.)
                                              17
money to another account—comprised the only evidence of provocative conduct
attributed to the victim; plainly these statements were insufficient to cause an average
person to become so inflamed as to lose reason and judgment. (See People v. Bufarale
(1961) 193 Cal.App.2d 551, 562 (Bufarale) [the evidence did not support theory of heat
of passion killing when the alleged provocation consisted of the victim's rejection of
defendant's continued attentions and her decision to live with her husband].)6 Were it
otherwise, we would see a greater correlation between the divorce rate and the homicide
rate.7 "Mere unrestrained and unprovoked rage, or a 'heat of passion' to wreak
vengeance, of a legally sane although emotionally unstable or nervous person is no
defense to homicide." (People v. Danielly (1949) 33 Cal.2d 362, 377.)
       In sum, in this case, there was no substantial evidence supporting the need for a
"heat of passion" voluntary manslaughter instruction.
       Finally, even if we were to agree with appellant that the court should have
instructed on voluntary manslaughter based on heat of passion, we believe any error in
failing to give such an instruction was harmless. Generally, " '[t]he erroneous failure to
instruct on a lesser included offense . . . is subject to harmless error review under the
standard of People v. Watson (1956) 46 Cal.2d 818 . . . . Reversal is required only if it is
reasonably probable the jury would have returned a different verdict absent the error or


6
       The Bufarele court held that the defendant's killing of a woman with whom he had
been living was not, as a matter of law, upon the heat of passion since the defendant's act
was one of vengeance, preceded by neither a quarrel with the victim, nor by adequate
provocatory conduct on the part of the victim, who had decided to return to her husband.
(Bufarele, supra, 193 Cal.App.2d at pp. 559-563.)
7
       By this we do not mean that the provocation must be sufficient to cause a
reasonable person to kill as the dissent implies. Rather, we mean that if the bare act of
one spouse saying they are leaving the marriage, and they are taking marital money is
sufficient to cause a reasonable person to act out of passion rather than from reason and
judgment we would likely see a greater correlation between the divorce rate (one spouse
leaving and taking marital money) and the homicide rate (the other spouse reacting out of
passion rather than from reason and judgment and then killing the other spouse).
                                              18
errors complained of. [Citations.]' [Citation.]" (People v. Prince (2007) 40 Cal.4th
1179, 1267.) However, our Supreme Court has observed that "federal courts have held
that a trial court's failure to give a requested instruction . . . on a lesser included
offense . . . embodying the defense theory of the case and around which the defendant
had built his or her defense[] violated the defendant's due process right to present a
complete defense." (Rogers, supra, 39 Cal.4th at p. 872.) In People v. Thomas (2013)
218 Cal.App.4th 630 (Thomas), the First District Court of Appeal explained that "[w]hen
malice is an element of murder and heat of passion or sudden provocation is put in issue,
the federal due process clause requires the prosecution to prove its absence beyond a
reasonable doubt. (Mullaney v. Wilbur (1975) 421 U.S. 684, 704 . . . .) Thus, in
California, when a defendant puts provocation in issue by some showing that is sufficient
to raise a reasonable doubt whether a murder was committed, it is incumbent on the
prosecution to prove malice beyond a reasonable doubt by proving that sufficient
provocation was lacking. [Citations.]" (Thomas, supra, 218 Cal.App.4th at p. 643.)
Accordingly, the Thomas court concluded that "Mullaney compels the conclusion that
failing to so instruct the jury is an error of federal constitutional dimension. [Citation.]"
(Thomas, supra at p.643.) For that reason, the Thomas court held that an appellate court
"may affirm the verdict 'if, but only if, it appears beyond a reasonable doubt that the error
did not contribute to the particular verdict at issue.' [Citation.]" (Thomas, supra, at p.
646.) Of course, the Thomas court addressed the issue of "whether the failure to instruct
on provocation or heat of passion as it bears on the culpability for homicide, where
warranted by the evidence, results in an erroneous jury charge on an element of murder,
or some lesser error." (Thomas, supra, at p. 642, italics added.) Here, we have
concluded that the evidence did not warrant such an instruction. Nevertheless, as noted,
for purposes of our prejudice analysis we will assume that an instruction was warranted
and that Thomas was correctly decided.


                                               19
       Appellant bases his prejudice analysis on three things—the jury question
concerning voluntary manslaughter, "weak" evidence of malice, and the length of the jury
deliberations.
       Appellant places much reliance on the fact that the jury sent a note asking if
voluntary manslaughter was still an option to argue that in this case there is a strong
likelihood that if the court had instructed on voluntary manslaughter, the jury would have
convicted him of that rather than murder. In context, this request is not as significant as
appellant suggests.
       First, during opening statements defense counsel told the jury that "in this case
you'll learn that this man, this 60-year-old man with no criminal record, did a terrible
thing. And you'll hear through the instruction that this will fit the classic definition of
voluntary manslaughter, which he should be held accountable for."8 Thus, the jury was
told that it would be considering voluntary manslaughter. The trial court did not decide
whether to give the voluntary manslaughter instruction until the end of trial. It is
significant that the jury asked whether voluntary manslaughter was still an option, rather
than simply asking if it was an option.
       Second, the jury asked about voluntary manslaughter shortly after it began
deliberating. After learning that voluntary manslaughter was not an option, the jury
deliberated for approximately 17 more hours over four more days. Eventually, the jury
reported that it was divided over whether to convict appellant of first-degree murder or
second-degree murder. Thus, it appears the jury struggled over whether the murder was
deliberate and premeditated, not over whether it could convict appellant of a lesser
offense.
       As to appellant's claim that the evidence of malice aforethought was very weak,
we are not persuaded that it was. Appellant told the police that he thought about stabbing

8
      On this court's own motion, we augmented the record with the transcript of
counsels' opening statements.
                                              20
his wife to death several days before he killed her; and during the time he was strangling
her, he ignored her pleas for help. Further, despite the fact that she bit him several times
and struggled to the point where she kicked out the screen door appellant continued to
strangle her until she was dead. (See Shakleford v. Hubbard (9th Cir. 2000) 234 F.3d
1072, 1078-1079 [where evidence showed that the defendant strangled the victim to
death, jury had to have found malice where a pathologist testified it took at least 10
minutes for the victim to die and evidence showed that the defendant listened to the
victim's sobs as he strangled her until she died].) "[H]omicide by strangulation indicates
malice . . . ." (People v. La Vergne (1966) 64 Cal.2d 265, 272; see also People v.
Caldwell (1955) 43 Cal.2d 864, 869.) Thus, the element of implied malice—a
prerequisite to the offense of murder in the second degree—was more than sufficiently
established by proof of the vicious and brutal manner of the killing.
       Finally, appellant places much reliance on the fact that the jury deliberated for
"some 23 hours" to argue that here the jury was faced with a difficult decision and had
the court instructed with voluntary manslaughter, the jury, faced with the uncontroverted
fact that he killed his wife, would have elected to convict him of that rather than murder
as a less undesirable alternative to letting him go free. We are not persuaded that such is
the case.
       First, as noted ante, the actual time the jury deliberated was closer to 19 hours.
Further, during that time, the jury posed numerous questions for the court—including six
questions indicating the jury was wrestling with the question of whether the crime was
first or second degree murder—and requested to hear the recording of appellant's police
interview, be provided with photocopies of the definition of first degree murder and
second degree murder, have appellant's testimony read back, and the testimony of the
anesthesiologist. It seems logical that such time should not be included in the time
calculated for deliberation because during such time the jury was not actually deliberating
the case, but was listening to the testimony that was being read back and the recording of
                                             21
appellant's police interview. Furthermore, as indicated by the aforementioned questions,
we must assume that the jury spent time going over their instructions to make sure that
they were properly carrying out their duties; that is making sure that they understood the
difference between first and second degree murder.
         Appellant cites our Supreme Court's conclusion that deliberations of almost 12
hours were an indication that a case was not "open and shut." (People v. Cardenas
(1982) 31 Cal.3d 897, 907.) However, the length of a jury's deliberation is related to the
amount of information presented at trial. (People v. Houston (2005) 130 Cal.App.4th
279, 301.) Here, the record indicates that there were extensive trial proceedings
involving over two dozen witnesses occurring on five different days, over 100 exhibits
were admitted into evidence, as well as lengthy closing arguments and several pages of
jury instructions. The jury's deliberation of this mass of information over the course of
four days speaks only for its diligence; it adds nothing to appellant's prejudice argument.
         Given the fact that there was evidence that the source of appellant's anger was his
desire to not live without his wife, the strength of the evidence of malice in this case, and
the fact that at least some of the jurors thought that there was evidence of premeditation
and deliberation, we conclude that any failure to give a voluntary manslaughter
instruction was harmless beyond a reasonable doubt. In other words, it appears beyond a
reasonable doubt that the assumed error did not contribute to the particular verdict at
issue.
II.      Admitting Defendant's Inculpatory Extrajudicial Statements
Background
         On the afternoon of October 31, 2008, after being advised of appellant's
admissions about the killing to hospital staff and the San Jose police officer, the
interviewing detectives from Seaside went to the hospital. As noted, ante, they advised
appellant of his Miranda rights, he waived them, and he spoke for about an hour and a


                                              22
half. The next day, when law enforcement authorities again sought to question
defendant, he invoked his Miranda rights and questioning stopped.
        Before the detectives began questioning appellant about the killing of his wife,
Seaside Police Department Detective Dan Martin and appellant discussed appellant's
Miranda rights. Specifically, the following colloquy occurred.
        "Martin: . . . [B]efore we start talking about [what happened] . . . I'm going to read
you some procedural stuff, OK? I'm sure you're aware of what, what has to be read to
you under these circumstances. Um, [all right]?
        "Gibson: Yes.
        "Martin: So, if you don't understand anything I’m telling you, just let me know.
[Okay.] You have the right to remain silent. Do you understand that?
        "Gibson: Yes.
        "Martin: Anything you say can be used against you in the court of law. Do you
understand that?
        "Gibson: Yes.
        "Martin: Uh, you have the right to consult with a lawyer before answering any
questions, and to have a lawyer with you during any questioning. Do you understand
that?
        "Gibson: Yes.
        "Martin: Uh, if you cannot afford one, a lawyer, one will be provided to you for
free of cost if you want one. Do you understand that?
        "Gibson: Yes.
        "Martin: [Okay.]"
        Before trial, appellant moved to exclude the statements he made from his hospital
bed to the detectives. In addition, he sought to exclude his statements to all other medical
personnel who treated him.


                                              23
       At a pretrial hearing on appellant's motion, Dr. Daniel McFarland testified on
appellant's behalf that the combination of his serious injuries and drugs administered to
him rendered him incapable of, in the words of defense counsel, "knowingly participating
[in] and/or making intelligent decisions."
       Dr. McFarland had not treated appellant. Rather, he had reviewed various records
that formed the basis for his testimony. He testified that appellant had a closed head
injury, a general term meaning that his head had hit something during his fall from the
balcony. As a result, he had a diminished level of consciousness when treated initially by
first responders.
       According to Dr. McFarland, appellant's consciousness level measured at 15 out of
15 possible points under a standard scoring method during his transport to the hospital,
which began around 7:10 a.m. on October 31, 2008. However, that did not mean his
brain was functioning normally. He should have been able to answer basic questions
such as whether he was allergic to drugs, had ever had surgery, was currently using any
medications, or was under a doctor's care.
       During transport, appellant was administered two powerful drugs, the analgesic
Fentanyl and the sedative Versed, but in modest doses. He received four milligrams of
morphine sulfate in the emergency room at 8:10 a.m. Nevertheless, about 8:30 a.m. he
rated his pain level at 10 out of a possible 10.
       According to Dr. McFarland, appellant's condition remained poor throughout the
morning. At 11:00 a.m., his blood pressure was 77/49, which indicated serious internal
bleeding. At noon it was 78/38.
       The two detectives started to interview appellant at 12:25 p.m. At 1:07, while the
interview was still in progress, appellant started receiving a blood transfusion aimed at
raising his blood pressure.
       Dr. McFarland testified that the brain cannot work normally with blood pressure
as low as appellant's was at the start of the interview. Appellant would have been in
                                              24
hypovolemic shock. His brain functioning would have been further impaired by his head
injury. Finally, the Fentanyl, Versed, and morphine would have prolonged effects
because appellant's liver and kidneys could not have metabolized them normally.
         Dr. McFarland testified that the next day, i.e., November 1, 2008, before appellant
declined to speak to the detectives, he was confused about whether he had left the
hospital at some point and could not recall what he had told them the previous day, even
though his medical condition was better and he was being helped by morphine. His
mental state was still in flux, but when he invoked his rights on November 1, he was
lucid.
         Finally, Dr. McFarland concluded that as a result of the foregoing––and as
medical records, the audio recording of appellant's conversations, and the interview
transcripts showed––appellant's "level of consciousness and the clarity of his mentation
[were] highly variable from moment to moment." Dr. McFarland went on to say that at
times appellant "would appear lucid and cogent . . . . And other times he would respond
to a question, particularly ones that involved more than a one[-]word answer, with
information that was completely irrelevant." Appellant would have been incapable of
making "legally binding decisions, like entering [into] a contract or . . . signing a medical
release." In sum, appellant "exhibited . . . the waxing and waning mental status that is
typical of patients with his constellation of medical difficulties."
         However, Dr. McFarland testified that from listening to the audio recording of
appellant's hospital interview, he felt that when appellant was read his Miranda rights, he
"could not discern anything in the tone of [appellant's] voice or the clarity of his speech
that was unusual at that point. What was unusual was that his responses were slow and
delayed." Also, Dr. McFarland had not interviewed appellant about his hospital stay, nor
had he spoken with anyone who spoke to appellant in the hospital.
         The San Jose police officer who was working in the emergency room when
appellant arrived testified at the same pretrial hearing on appellant's motion to exclude
                                              25
the evidence of his statements. The officer described hearing appellant tell people that he
had murdered and strangled his wife. Appellant's statements were all volunteered; the
police officer testified, "I was being very mindful that I did not want to initiate questions,
which would also include not encouraging other people to ask him incriminating
questions, so I stood by silently with the recorder on."
       The flight nurse who attended to appellant during his helicopter ride to San Jose
also testified at the exclusion hearing. He felt that appellant was malingering, that is he
was feigning a level of neurological disability that he was not experiencing.
       With the acquiescence of defense counsel, the trial court accepted the
prosecution's offer of proof that if called to testify, the two detectives would state that
"during the entire time that they were speaking with [appellant] . . . his answers were
appropriate to questions" and "it was clear to them that he was willing to talk," and in fact
"in their opinion he was very much willing to talk," but "sometimes he would go off on
tangents about the pressures on him and they would refocus him . . . ."
       The court found that Miranda was waived and that appellant's statements were
voluntary. Accordingly, the court denied the motion to exclude appellant's statements he
made after he killed his wife. The court reasoned that in contrast to a young, immature,
and emotionally stressed suspect, appellant was older and was a prison guard with a
greater understanding of the consequences of invoking or waiving his Miranda rights.
He did not appear confused at the time he waived his rights. His account of events was
detailed. The court did not believe that appellant lost consciousness or landed on his
head, although his head may have struck the pavement after another part of his body
incurred the initial impact with the ground.
       Appellant claims that the trial court erred by allowing the prosecution to introduce
into evidence his inculpatory statements made in the hospital, evidence that in his view
was obtained in violation of Miranda, supra, 384 U.S. 436. Appellant rests this claim on
a factual argument that his physical and mental conditions were too poor for him to be
                                               26
able to knowingly and intelligently waive his constitutional right not to incriminate
himself.
       The prosecution bears the burden of demonstrating the validity of a defendant's
waiver of his Miranda rights by a preponderance of the evidence. (People v. Dykes
(2009) 46 Cal.4th 731, 751; see Berghuis v. Thompkins (2010) 560 U.S. 370, 384 [130
S.Ct. 2250].) Additionally, " '[a]lthough there is a threshold presumption against finding
a waiver of Miranda rights [citation], ultimately the question becomes whether the
Miranda waiver was [voluntary,] knowing[,] and intelligent under the totality of the
circumstances surrounding the interrogation.' [Citation.] On appeal, we conduct an
independent review of the trial court's legal determination and rely upon the trial court's
findings on disputed facts if supported by substantial evidence." (People v. Williams
(2010) 49 Cal.4th 405, 425.)
       Pursuant to Miranda, supra, 384 U.S. 436, a waiver of one's rights to counsel and
to remain silent must be " 'made voluntarily, knowingly and intelligently.' " (Moran v.
Burbine (1986) 475 U.S. 412, 421.) In other words, it "must have been made with a full
awareness of both the nature of the right being abandoned and the consequences of the
decision to abandon it. Only if the 'totality of the circumstances surrounding the
interrogation' reveals . . . the requisite level of comprehension may a court properly
conclude that the Miranda rights have been waived." (Ibid.)
       As noted by Dr. McFarland, appellant's level of lucidity varied during the
interview. While being evacuated to the hospital he gave the flight nurse a delusional
account—though possibly a feigned one—that the police precipitated his fall from the
balcony by spraying a slippery substance on it. At the same time, Detective Martin went
through each of appellant's Miranda rights in a careful and measured way; and the
transcript shows appellant considered each right and waived it in a linguistically
appropriate manner. The most Dr. McFarland could say about the colloquy was that
appellant's responses sounded slow and delayed on the audio recording of the interview.
                                             27
       The essence of appellant's claim is not that his statements were made
involuntarily, but that he lacked the capacity to agree to make them. This parsing of a
claim comports with the analysis set forth by other courts. "The inquiry into whether an
individual waived effectuation of the rights conveyed in the Miranda warnings has two
distinct dimensions." (U.S. v. Cristobal (4th Cir. 2002) 293 F.3d 134, 139 (Cristobal).)
"[A] waiver may very well have been voluntary (that is, uncoerced) and yet given without
a knowing and intelligent waiver of Miranda rights . . . ." (Id. at p.142.) Thus "it is not
enough for us to find that [a suspect] voluntarily waived his rights. We must also
determine whether the waiver was knowing and intelligent. Unlike the issue of
voluntariness, police overreaching (coercion) is not a prerequisite for finding that a
waiver was not knowing and intelligently made." (Ibid.)
       In other words, "[w]hether a waiver of Miranda rights is voluntary and whether an
otherwise voluntary waiver is knowing and intelligent are separate questions. [Citations.]
While the voluntariness prong is determined solely by examining police conduct, a
statement made pursuant to police questioning may be suppressed in the absence of
police coercion if the defendant was incapable of knowingly and intelligently waiving his
constitutional rights. [Citation.] Whether a suspect has knowingly and intelligently
waived his Miranda rights depends in each case on the totality of the circumstances,
including the defendant's intelligence and capacity to understand the warnings given."
(People v. Howard (Mich. Ct. App. 1997) 226 Mich.App. 528, 538.)
       In People v. Panah (2005) 35 Cal.4th 395 (Panah), the defendant murdered an
eight-year-old girl. (Id. at p. 408.) Similar to appellant, Panah was horrified by his
acts—"I have done something very bad" (id. at p. 412), he told another person—and,
again similar to appellant, he tried to kill himself. (Ibid.) When police apprehended the
defendant, they found him with slashed wrists, intoxicated, and uttering nonsensical
statements. He told them the victim could be at a motel, at a mall, or at a park, and that


                                             28
he " 'liked her very much, even carry her skeletal remains around.' " (Id. at p. 413.)9 "At
times [Panah] spoke clearly, at other times he was incoherent as if he were falling asleep.
He appeared to [a police officer] to be under the influence of 'something,' and because of
the cuts to his wrists, the paramedics were called. [Panah] was transported to West
Valley Hospital for medical treatment." (Id. at pp. 413-414.) At the emergency room, an
attending physician found, and would later testify, that he "thought [Panah] was
'psychotic,' and described him as being 'agitated' and 'delusional.' He was having
auditory hallucinations, acting inappropriately, and had slashes on his wrists that
appeared to have been self-inflicted. . . . [Panah] said that people in black hoods had told
him to slash his wrists." (Id. at p. 416.) The doctor "concluded that [Panah] was 'acutely
psychotic,' suicidal and hearing 'command hallucinations, meaning the black robed and
hooded figures were telling him to kill himself.' [Panah] was also under the influence of
drugs. [The doctor] could not tell whether his psychosis was brought on by the drugs, or
was long-standing and relatively quiescent but had been exacerbated. He also
acknowledged [that] 'environmental factors,' like 'acute stress' or 'acute grief,' can
produce an acute psychotic break." (Ibid.)
        At the hospital, a detective interviewed Panah after advising him of his Miranda
rights, which he waived. (Panah, supra, 35 Cal.4th at p. 470.) The Supreme Court
rejected Panah's "claim that his hospital waiver was involuntary because of his
compromised physical and psychological condition." (Id. at p. 471.) The Supreme Court
explained that Panah argued "that when he was admitted to the hospital, he was suffering
from acute psychosis, was under the influence of drugs, and was suffering from the
effects of his suicide attempt, thus precluding a voluntary waiver of his rights. He also
claims he was heavily affected by intrusive medical procedures, including the use of a
catheter to extract a urine sample, injection with a tranquilizer, and the injection of

9
        The victim had been missing for only a day. (Panah, supra, 35 Cal.4th at pp. 410-
412.)
                                              29
charcoal into his system to absorb the sleeping pills. [Panah] also points out that [the
officer] testified that [he] was alternately rational and irrational." (Id. at p. 472.)10
       The Panah court noted that the officer who interviewed Panah acknowledged that
he was "sometimes irrational during the interrogation, he also testified that [Panah] was
responsive to his questioning, and his testimony was corroborated by the nurse who
attended [Panah]." (Panah, supra, at p. 472.) The Panah court noted that the trial court
had observed "that there was no question of police coercion in obtaining [Panah]'s
statement." Accordingly, the Panah court concluded that Panah's statements to the
detective "were not involuntary." (Ibid.)
       Although the Panah court referred to Panah's claim as one of an "involuntary"
waiver (Panah, supra, at p. 471), it is quite apparent from the circumstances that Panah
was advancing the same claim as appellant is advancing here. Voluntariness was not at
issue; Panah was obliging, just as appellant was here. The officer in Panah "asked
[Panah] where the little girl was. [Panah] replied she 'could be at Topanga Canyon and
Parenthia' at a motel. He also said she could be at the Fallbrook Mall or at a park located
at Topanga Canyon and Roscoe Boulevard. He told the officer he 'liked her very much,
even carry her skeleton remains around.' The statement did not make sense to [the
officer]. At times [Panah] spoke clearly, at other times he was incoherent as if he were
falling asleep." (Id. at p. 413.) Although Panah spoke of voluntariness (id. at pp. 471,
472), in fact the court was addressing capacity to waive Miranda rights (ibid); it is
authoritative for purposes of our analysis. (Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 450, 455.)
       Simply put, Panah, supra, 35 Cal.4th 395, weighs against appellant's claim. Its
facts are remarkably similar to those of this case—we might add only that appellant's

10
        The Supreme Court noted that the procedures to which Panah referred took place
after the officer interrogated him and could not have had any effect on the voluntariness
of his waiver. (Panah, supra, at p. 472.)
                                               30
ability to waive his Miranda rights was heightened by his law enforcement background.
(See People v. Breaux (1991) 1 Cal.4th 281, 301 [defendant was well versed in the
Miranda rights]; U.S. v. Dire (4th Cir. 2012) 680 F.3d 446, 474 [the determination of
whether a waiver was knowing and intelligent requires an examination of the totality of
the circumstances surrounding the interrogation, including the suspect's intelligence and
education, age and familiarity with the criminal justice system].)11
       In addition, Cristobal, supra, 293 F.3d 134 is instructive. The defendant in
Cristobal "began experiencing personal problems that he claims were the result of his
wife's philandering. [After] the couple . . . separated . . . Cristobal blamed his wife for
the breakdown in the marriage." (Id. at p. 137.) Cristobal alleged that his stress over his
wife's affairs " 'mutated into delusional psychosis.' " (Ibid.) Cristobal planted three
bombs and became the subject of a manhunt. Federal agents shot Cristobal several times,
leaving him seriously injured. He underwent surgery and was interviewed in the surgical
care trauma unit of a hospital the next day. An agent asked a nurse "whether Cristobal
was mentally and physically capable of being interviewed. [The nurse] informed [the
agent] that Cristobal was oriented at that time, and [he] began his interview with
Cristobal." (Id. at p. 138.) The nurse expressed this view even though, in addition to
Cristobal's serious injuries, he "had been given pain killers and narcotics such as
morphine." (Id. at p. 141.)
       In rejecting Cristobal's claim that his post-waiver statements should be suppressed
under Moran v. Burbine, supra, 475 U.S. 412, as neither knowing nor intelligent
(Cristobal, supra, 293 F.3d at p. 142), the Cristobal court noted that "[a]fter his waiver,
Cristobal never asked for the questioning to stop. He never indicated a desire not to


11
        Similar to this case, Panah made statements to hospital staff, a circumstance that
the trial court addressed in that case: "The trial court also found admissible statements
made by defendant to the treating physician and nurse at the hospital, concluding they
were not acting as agents for the police." (Panah, supra, 35 Cal.4th at p. 471.)

                                              31
confess. No agent harmed or threatened to harm Cristobal if he did not answer their
questions. He was not purposely held incommunicado or in seclusion, and he was not
subjected to continuous and unrelenting questioning. [Citation.] Unlike the suspect in
Mincey [v. Arizona (1978) 437 U.S. 385], Cristobal's answers to questions were lucid and
in fact very detailed." (Cristobal, supra, at p. 143.) "Though it was obvious to the
officers that Cristobal was in pain, he did not slur his words during the interview, he
never lapsed into unconsciousness, nodded off or went to sleep. When asked, on more
than one occasion, how he was feeling and whether he wanted to continue, he responded
that he wished to continue the interview. During the interview, Cristobal appeared to the
agents to be contrite and anxious to respond to questions to explain what had happened
and why." (Ibid.) For all these reasons, the Cristobal court found that the defendant's
confession was voluntary. (Ibid.)
       The Cristobal court distinguished Mincey v. Arizona, supra, 437 U.S. 385 by
saying, "In Mincey, the 'barely conscious' suspect, 'depressed almost to the point of
coma,' expressed his wish not to be interrogated without a lawyer on numerous
occasions. [Citation.] Many of Mincey's answers were unresponsive, and he complained
to the officer interrogating him that he was confused and unable to think. [Citation.]
Despite Mincey's 'entreaties to be let alone,' the officer only ceased the interrogation
during intervals when Mincey lost consciousness. [Citation.] The Court found that
Mincey's statements were 'not the product of his free and rational choice,' and that his
will was 'simply overborne.' " (Cristobal, supra, at p. 143.)
       The Cristobal court rejected what it perceived to be a possible argument that the
agents should have waited "until Cristobal was released from the hospital or transferred
out of intensive care before subjecting him to questioning." (Cristobal, supra, at p.141,
fn. 9.) The Cristobal court went on to note that "[i]f police conduct could be deemed
coercive simply because an interrogation occurs while a suspect is in the hospital, law
enforcement officers would be faced with a serious dilemma—wait until suspects are
                                             32
released (and thus risk losing valuable crime-solving or further crime-preventing
information), or risk suppression of statements necessary for conviction." (Ibid.) With
respect to hospital confessions, Cristobal recognized that "there are many scenarios that
could render a hospital confession involuntary. Because, in many instances, hospital
patients are weakened physically and perhaps mentally, law enforcement officials must
be cautious not to exploit suspects' conditions with coercive tactics. In this case, [the
agent] certainly acted with caution, and as such, the circumstances here do not warrant a
finding of involuntariness. The mere fact that [he] did not wait to interview Cristobal
does not amount to police overreaching." (Ibid.)12
       As noted ante, it was the prosecution's burden to establish the validity of
appellant's Miranda waiver by a preponderance of the evidence, and whether it met that
burden is a determination we make on appeal after examining the totality of the
circumstances. (People v. Williams, supra, 49 Cal.4th at p. 425.) On the record before
this court, we find that the prosecution carried that burden. Appellant's waiver language
was unequivocal: he kept answering "yes" to the question "do you understand that?" His
account to detectives was detailed and precise and it comported with his trial testimony in
many respects. During the questioning, a hospital staff member commented, "he seems
very awake, very alert." Against this, appellant did say at one point he was "getting
everything mixed up," but at least he recognized what he was doing. However, Dr.
McFarland stated that although "his level of consciousness and the clarity of his
mentation was highly variable from moment to moment," at the time appellant was read
his Miranda rights he "could not discern anything in the tone of his voice or the clarity of
his speech that was unusual at that point. What was unusual was that his responses were


12
        Undoubtedly, there are aspects of Cristobal that are at variance with the
circumstances of this case. Cristobal's "speech was not slurred, he never nodded off or
slept, nor did he indicate in any way that he was under a narcotic stupor." (Id. at p. 138.)
He was "alert and coherent at the time of the interview." (Id. at p. 142.)

                                             33
slow and delayed." As noted, Dr. McFarland had not interviewed appellant about his
hospital stay or talked to anyone who had spoken with appellant in the hospital.
       In sum, we conclude that the trial court did not err in allowing the prosecution to
present evidence of appellant's inculpatory extrajudicial statements. (See also People v.
Breaux, supra, at pp. 299-301 [defendant shot twice and morphine administered at the
hospital; defendant's condition not life-threatening and his pain level moderate; despite
his impaired mental and physical condition, he waived his Miranda rights knowingly and
voluntarily before police questioning at the hospital]; People v. Jackson (1989) 49 Cal.3d
1170, 1189.)13
III.   Alleged Instructional Error
       Appellant claims that the trial court should have instructed the jury with
CALCRIM No. 351, which provides, "The attorney for the People was allowed to ask
defendant's character witness[es] if (he/she/they) had heard that the defendant had
engaged in certain conduct. These 'have you heard' questions and their answers are not
evidence that the defendant engaged in any such conduct. You may consider these
questions and answers only to evaluate the meaning and importance of (the/a) character
witness's testimony."



13
        In U.S. v. Gaddy (8th Cir. 2008) 532 F.3d 783 (Gaddy), the suspect "had not slept
the night before and . . . had consumed alcohol and drugs several hours before he waived
his rights" (id. at p. 788); in addition, he claimed disorientation because the authorities
charged in on him. (Ibid.) The court stated that " '[i]ntoxication and fatigue do not
automatically render a confession involuntary.' [Citation.] Instead, 'the test is whether
these mental impairments caused the defendant's will to be overborne.' " (Ibid.) The
court noted that an agent "testified that Gaddy understood his Miranda rights, agreed to
waive them and appeared 'cooperative' and 'calm' " (ibid.) and that "later, [the agent]
again asked Gaddy if he wanted to speak with him, and Gaddy said that he did." (Ibid.)
"In addition, Gaddy had extensive contact with law enforcement on prior occasions." (Id.
at p. 789.) The Gaddy court held that the suspect's decision to speak was voluntary.
(Ibid.) Similar to Panah, Gaddy used the concepts of voluntariness and capacity to waive
Miranda rights interchangeably. Nevertheless, the case is informative.
                                            34
       As noted, appellant presented numerous witnesses who testified to his good
character and non-violent nature. While cross examining these witnesses, the prosecutor
asked whether their opinion would change if the witness knew that appellant had
previously grabbed his wife and bruised her arm. Later, outside the presence of the jury,
in response to defense counsel's objections, the court ruled that the prosecution could ask
the question if she had "a good faith belief that the conduct, which is the subject of the
question, occurred."
       At the conclusion of the defense case, the court and counsel discussed the matter
again. Defense counsel requested an admonition to the jury that the questions asked of
both appellant and others were not evidence. The court asked whether defense counsel
wanted the court "to highlight" the particular questions or "do that generally." Defense
counsel requested that "it just be generally." The court noted that it had already done
that,14 but would do it again at the conclusion of the case. The court asked "[w]ould that
be sufficient?" Defense counsel responded in the affirmative.
       Just before closing argument, the court again instructed the jury as follows: "At
this time, ladies and gentlemen, the attorneys are given an opportunity to argue the case.
I'll remind you once again what the attorneys have to say is not evidence. Their questions
aren't evidence; what they say [sic] during their opening statements to you were [sic] not
evidence; and now, in the case of closing argument, their statements, again, are not
evidence" (Italics added.)
       After the conclusion of closing argument, again the trial court instructed the jury
that "Nothing that the attorneys say is evidence. In their opening statements and closing


14
        The court pre-instructed the jury that "Nothing that the attorneys say is evidence.
In their opening statements and closing arguments the attorneys will discuss the case, but
their remarks are not evidence. Their questions during the trial are not evidence. Only
the witnesses' answers are evidence. The attorneys' questions are significant only if they
help you to understand the witnesses' answers. Do not assume that something is true just
because one of the attorneys asked a question that suggests it's true."
                                             35
arguments, the attorneys discuss the case, but their remarks are not evidence. Their
questions are not evidence. (Italics added.)
        Appellant recognizes that without a request, pursuant to People v. Daniels (1991)
52 Cal.3d 815, 882-884, the trial court is not required to sua sponte instruct the jury on
the limited use of evidence used to impeach a defendant's good character. He contends,
however, that the request for an instruction made by defense counsel should have been
understood as a request for CALCRIM No. 351. As outlined, ante, the record does not
support such an assertion. Without doubt, defense counsel wanted only "that it just be
generally . . . ."
        Alternatively, appellant argues that if this court is inclined to find that the court
was not obligated to give CALCRIM No. 351 in the absence of a specific request, his
trial counsel provided ineffective assistance of counsel by failing to state his request in
that form.
        The test for ineffective assistance of counsel stems from decisions of both the
United States and California Supreme Courts. We consider " 'whether counsel's
representation fell below an objective standard of reasonableness under prevailing
professional norms and whether the defendant suffered prejudice to a reasonable
probability, that is, a probability sufficient to undermine confidence in the outcome.' "
(People v. Carter (2005) 36 Cal.4th 1114, 1189, citing Strickland v. Washington (1984)
466 U .S. 668, 694; People v. Ledesma (1987) 43 Cal.3d 171, 217.) A reviewing court
will presume that counsel was competent and that his or her conduct was the basis of
sound tactical decisions. (Ibid.) Accordingly, the burden is on the defendant to
demonstrate that his or her attorney was inadequate under the constitutional standard.
(Strickland v. Washington, supra, 466 U.S. at p. 687.)
        Appellant's first hurdle is less a substantive one than a principle of appellate
practice. "If the record on appeal sheds no light on why counsel acted or failed to act in
the manner challenged, an appellate claim of ineffective assistance of counsel must be
                                               36
rejected unless counsel was asked for an explanation and failed to provide one, or there
simply could be no satisfactory explanation." (People v. Carter, supra, 36 Cal.4th at p.
1189.) Otherwise, the claim may be raised only by a petition for writ of habeas corpus.
(People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) Actions taken or not taken
by counsel at a trial are "typically motivated by considerations not reflected in the record.
It is for this reason that writ review of claims of ineffective assistance of counsel is the
preferred review procedure. Evidence of the reasons for counsel's tactics, and evidence
of the standard of legal practice in the community as to a specific tactic, can be presented
by declarations or other evidence filed with the writ petition." (In re Arturo A. (1992) 8
Cal.App.4th 229, 243; see also People v. Mendoza Tello, supra, at pp. 266-267.) An
ineffective assistance claim may be reviewed on direct appeal only where "there simply
could be no satisfactory explanation" for trial counsel's action or inaction. (In re
Dennis H. (2001) 88 Cal.App.4th 94, 98, fn. 1.)
       Appellant argues that there is "lack of any conceivable tactical reason why counsel
would have chosen to forego a jury instruction on a point which he clearly felt strongly
about." Respectfully, we disagree. Appellant has failed to overcome the presumption
that, under the circumstances, the challenged omission could be considered sound trial
strategy. (People v. Duncan (1991) 53 Cal.3d 955, 966.) The instruction that appellant
argues should have been requested would have added very little to the instruction that the
court gave three times in this case. Defense counsel could have reasonably concluded
that the court's instruction—given three times—that the attorneys' questions during trial
were not evidence was adequately conveyed to the jury. Accordingly, appellant has not
surmounted the first hurdle in his ineffective assistance of counsel claim.
IV.    Appellant's Issue Regarding Retrial
       We note that because we affirm the judgment, it is not necessary to address
appellant's claim that in the event of a retrial he can only be tried for second degree
murder.
                                              37
       We do note in passing that the procedure employed here in recording the verdict
was erroneous. "[T]he trial court commits error if it receives and records a verdict of
guilty on the lesser included offense without ever having given the jury an acquittal-first
instruction." (People v. Fields (1996) 13 Cal.4th 289, 310.) "[W]hen the jury returns a
verdict on the lesser included offense, it must also render a corresponding verdict of
acquittal on the greater offense. If a verdict of guilty on the lesser offense is recorded and
the jury discharged without having rendered any verdict on the greater offense, a retrial
on the greater offense is barred under [Penal Code] section 1023, regardless of whether
the jury expressly deadlocked on that charge." (Ibid.) Moreover, "[w]hen the jury is
instructed on the acquittal-first rule and hangs on the more serious offense, the
prosecution is put to a choice: It may either move for a mistrial and set the entire matter
for a retrial [citations], or, if it wishes to accept a verdict on the lesser charge and forgo a
chance to convict on the greater, the prosecution may ask the court to dismiss the greater
charge in the interest of justice [citation]. [Citation.]" (People v. Anderson (2009) 47
Cal.4th 92, 114.) "[T]he whole point of the . . . rule is to provide a procedure whereby
the jury's intent is clear, and legitimate interests of both the defendant and the People are
honored." (Id. at pp. 114-115.) In this case, it does appear that an acquittal first
instruction was not given. Although the trial court erred by not instructing with
CALCRIM No. 640, concerning completing verdict forms when more than one degree of
murder is possible, the error cannot possibly have had any effect on the jury's
understanding regarding the definition of second degree murder.
V.     Cumulative Error
       Appellant contends that the cumulative impact of all of the above errors deprived
him of a fair trial. We have either rejected appellant's claims of error and/or found that
any errors were not prejudicial. Viewed cumulatively, we find that any errors do not
warrant reversal of the judgment. (People v. Stitely (2005) 35 Cal.4th 514, 560.)


                                               38
                                 Disposition
     The judgment is affirmed.




                                   ______________________________
                                   ELIA, Acting P. J.


I CONCUR:




________________________________
BAMATTRE-MANOUKIAN, J.




                                     39
MÁRQUEZ, J., Dissenting.
       I respectfully dissent. I agree with the majority that a trial court has a duty to
instruct on all theories of a lesser included offense that are supported by substantial
evidence. (Maj. opn. at p. 11.) But I disagree with the majority’s conclusion that there
was no substantial evidence supporting the need for a “heat of passion” voluntary
manslaughter instruction in this case. (Id. at p. 22.) Indeed the jury, during its
deliberations, inquired whether voluntary manslaughter was still on option for their
consideration.1 Notwithstanding trial counsel’s renewed plea to include a voluntary
manslaughter instruction, “especially now that the jury is asking about it,” the trial court
convened the jury in the courtroom and instructed that “[m]anslaughter is not an option.”
By denying Gibson’s requests for this instruction, the trial court violated his due process
rights and arrogated the jury’s role to itself.
       To be clear, were defendant challenging a jury conviction of first degree murder on
the basis of insufficient evidence, I would readily reject that claim. The evidence
adduced at trial was sufficient to support a first degree murder conviction. But the jury
here could not agree on a conviction of first degree murder. And it was precluded––
erroneously, in my view––from considering the lesser included offense of voluntary
manslaughter, having to choose, instead, between murder and acquittal. This was error.
And it was prejudicial, as the record is sufficient to establish the possibility of a more
favorable outcome absent this error. For this reason, I would reverse Gibson’s conviction
and remand this matter for a possible retrial with a jury instructed on all theories of
criminal liability substantially supported by the evidence, including voluntary
manslaughter.



       1
         It is not surprising the jury inquired about voluntary manslaughter. As Gibson’s
trial counsel made clear in his opening statement, heat of passion was the sole basis for
Gibson’s defense.
       1. The Jury’s Fact Finding Role
       “[T]rial by jury in criminal cases is fundamental to the American scheme of
justice. . . .” (Duncan v. Louisiana (1968) 391 U.S. 145, 149.) “[T]he jury trial
provisions in the Federal and State Constitutions reflect a fundamental decision about the
exercise of official power––a reluctance to entrust plenary powers over the life and
liberty of the citizen to one judge or to a group of judges.” (Id. at p. 156.)
       Furthermore, it is the role of the jury—not of the court—to act as fact finder.
“[T]he English jury’s role in determining critical facts in homicide cases was entrenched.
As fact-finder, the jury had the power to determine not only whether the defendant was
guilty of homicide but also the degree of the offense. [. . .] Throughout its history, the
jury determined which homicide defendants would be subject to capital punishment by
making factual determinations, many of which related to difficult assessments of the
defendant’s state of mind. By the time the Bill of Rights was adopted, the jury’s right to
make these determinations was unquestioned.” (Walton v. Arizona (1990) 497 U.S. 639,
711 (dis. opn. of Stevens, J.) [quoting Welsh S. White, Fact-Finding and the Death
Penalty: The Scope of A Capital Defendant’s Right to Jury Trial (1989) 65 Notre Dame L.
Rev. 1, 11].)
       By refusing a jury instruction where substantial evidence requires it, a trial court
undermines the jury’s role in our system of justice, denying both defendant and jurors
their lawful rights.
       2. The Legal Standard Requiring Instruction
       When a defendant is charged with murder, the trial court has a sua sponte duty to
instruct on voluntary manslaughter if a reasonable jury could find the defendant
committed manslaughter due to a sudden quarrel or heat of passion. (People v.
Breverman (1998) 19 Cal.4th 142, 154 (Breverman).) Specifically, heat of passion is “a
state of mind caused by legally sufficient provocation that causes a person to act, not out
of rational thought but out of unconsidered reaction to the provocation.” (People v.
                                              2
Beltran (2013) 56 Cal.4th 935, 942 (Beltran).) “[T]he provocation must be one that
would cause an emotion so intense that an ordinary person would simply react, without
reflection.” (Id. at p. 949.) The duty to instruct may arise even if the evidence shows the
defendant intended to kill. (Breverman at p. 163.) However, the provocation is not
required to be so great as to be “of a kind that would cause an ordinary person of average
disposition to kill.” (Beltran at p. 935.)
       The provocation requirement has two components, i.e., “ ‘both an objective and a
subjective component. [Citation.] First, the defendant must actually, subjectively, kill
under the heat of passion.’ ” (People v. Manriquez (2005) 37 Cal.4th 547, 584.) The
passion aroused need not be anger or rage, but may be any violent, intense, high-wrought,
or enthusiastic emotion other than revenge. (Breverman, supra, 19 Cal.4th at p. 163.)
“ ‘But the circumstances giving rise to the heat of passion are also viewed objectively.
As [the California Supreme Court] explained long ago . . . , “this heat of passion must be
such a passion as would naturally be aroused in the mind of an ordinarily reasonable
person under the given facts and circumstances,” because “no defendant may set up his
own standard of conduct and justify or excuse himself because in fact his passions were
aroused, unless further the jury believe that the facts and circumstances were sufficient to
arouse the passions of the ordinarily reasonable man.” ’ [Citation.]’ ” (People v.
Manriquez, supra, at p. 584.)
       No specific type of provocation is required. (Breverman, supra, 19 Cal.4th at
p. 163.) Legally sufficient provocation may be entirely verbal, including words of abuse,
insult or reproach. (People v. Valentine (1946) 28 Cal.2d 121, 140; People v. Le (2007)
158 Cal.App.4th 516, 526.) Courts have also abandoned the rule that “trespass against
lands or goods” may not form sufficient provocation. (People v. Valentine, supra,
28 Cal.2d at p. 140.)
       Under Beltran, the trial court applied the wrong standard in denying the requested
instruction. The trial court considered whether the evidence of provocation was sufficient
                                             3
to “raise a killing instinct” or “cause a reasonably objective individual to react with [. . .]
killing passion.” Our Supreme Court explicitly rejected that standard. “Adopting a
standard requiring such provocation that the ordinary person of average disposition
would be moved to kill focuses on the wrong thing. The proper focus is placed on the
defendant’s state of mind, not on his particular act.” (Beltran, supra, 56 Cal.4th at
p. 949.)
       Here, the majority opines that if the evidence of provocation was sufficient to
provoke a reasonable person, “we would see a greater correlation between the divorce
rate and the homicide rate.” But the provocation need not be so great as to cause a
reasonable person to commit homicide; that is the wrong standard. (Beltran, supra,
56 Cal.4th at p. 935.) The provocation is sufficient if it would cause a reasonable person
to act “not out of rational thought but out of unconsidered reaction to the provocation,”
even if a reasonable person would not kill under those circumstances. (Id. at p. 942.)
Application of the standard should therefore ignore the fact of the homicide, and focus
solely on whether a reasonable person would be sufficiently provoked to act without
reason or consideration. Under the circumstances presented to Gibson, I find that
standard satisfied.
       3. Substantial Evidence of Heat of Passion
       A trial court must instruct the jury on heat of passion provocation if “substantial
evidence” supports the instruction. Substantial evidence is evidence from which a jury
composed of reasonable persons could conclude that the defendant committed voluntary
manslaughter, but not murder. (Breverman, supra, 19 Cal.4th at p. 162.) “In deciding
whether evidence is ‘substantial’ in this context, a court determines only its bare legal
sufficiency, not its weight.” (Id. at p. 177.) In particular, “courts should not evaluate the
credibility of witnesses, a task for the jury.” (Id. at p. 162.) “The testimony of a single
witness, including the defendant, can constitute substantial evidence requiring the court
to instruct on its own initiative.” (People v. Lewis (2001) 25 Cal.4th 610, 646.)
                                               4
       The evidence was more than sufficient to require an instruction on voluntary
manslaughter. First, with respect to the subjective component of heat of passion, Gibson
presented considerable evidence of his irrational state of mind before he killed his wife.
He consistently stated—in both the police interviews and in trial testimony—that he fell
into a state of panic and rage just before strangling his wife. Gibson’s statements,
corroborated by abundant testimony from his co-workers and colleagues, showed that his
state of mind was the result of accumulated pressure over the course of the preceding
week or so, during which work- and marital-related stress had deprived him of sleep and
made him despondent. This evidence is sufficient to establish the subjective component
of heat of passion.
       With respect to provocation, Gibson contends he was provoked through the
combined effect of two statements by his wife—that she was leaving him, and that she
had transferred their money out of their bank account to her family overseas. On the day
of the killing, he repeatedly told his wife throughout the day that he did not want to
undertake the trip to the Philippines. She said she would go with or without him, and the
volume of baggage she was packing suggested to Gibson that she did not plan to return to
the United States. Just prior to the crime, his wife was sitting on the bed with her laptop
and “going over some figures.” When he asked what she was doing, she said she was
transferring all of their funds to an account held by her family.2 Gibson testified that
“[s]he pressed . . . a button and . . . said, Now we have no money in our account.”
       On cross-examination, defendant expanded on this point:

       2
         Defendant had never performed online banking himself and had limited
computer knowledge generally. His wife did all of the couple’s online banking. As the
majority notes, on cross-examination the defendant was apparently shown an account
statement that showed no transfer on the date in question. However, the document itself
is not part of the record. Without weighing the credibility of defendant’s testimony, we
must consider whether the supposed transfer constitutes conduct that was “reasonably
believed by the defendant to have been engaged in by the victim.” (People v. Souza
(2012) 54 Cal.4th 90, 116.)
                                              5
        “Q. Okay. And then, when you said she transferred funds, did she—was she on
the bed or was she somewhere else?
        “A. I believe she was right on the bed next to me.
        “Q. So, how did she do that?
        “A. With her laptop.
        “Q. Okay. And then, what did you see her do?
        “A. She was telling me this is what we’re going to do with our funds, we’re going
to transfer it.
        “Q. To what?
        “A. To her family’s account.
        “Q. Where?
        “A. I’m not sure, ma’am.
        “Q. Okay. Well, was she doing something with the computer?
        “A. Yes. She was putting our account number that showed our balance, and then
all of a sudden the balance was wiped out.
        “Q. You saw that?
        “A. She showed me.
        “Q. And you saw that on the screen?
        “A. Yes.”
This enraged him. He felt that without his money “I couldn’t survive.” He regarded her
action as “payback” and “retribution” “for the way I was in the past.” On hearing about
the alleged transfer of funds, he had a “[p]anic attack” and “assaulted her,” “choked her,”
and “stabbed her.” On cross-examination, Gibson testified that when he asked her why
she had transferred their funds, she told him that she was leaving him. As a result,




                                              6
Gibson “felt I was out of control” because “I was losing everything that was important to
me.”3
        Gibson contends this “dual provocation” is sufficient to meet the objective
component of provocation sufficient for heat of passion. The facts here are
comparatively unique under the case law governing such provocation. The classic
example involves a spouse committing adultery. Gibson compares his wife’s threat to
remove herself from the relationship with examples of infidelity that are discussed in the
case law.
        In some cases, the facts share some similarity to Gibson’s situation. For example,
in People v. Berry (1976) 18 Cal.3d 509, a husband killed his wife in a rage following
two weeks during which the wife taunted the husband with her involvement with another
man while she had visited Israel. She told her husband that her lover was coming to
America to claim her, and that she wanted a divorce. (Id. at p. 513.) Despite the
extended period of time over which the provocation arose, the court held this conduct to
be sufficient provocation, and the court reversed the conviction based on the trial court’s
failure to instruct the jury on voluntary manslaughter. (Id. at p. 518.)
        Loss of property may also be a contributing factor in heat of passion provocation
involving marital fidelity. In People v. Le, supra, 158 Cal.App.4th 516, a husband killed
his wife’s lover after an extended period of infidelity. The wife in that case had loaned
her lover $10,000. (Id. at p. 519.) The defendant cited both acts––infidelity and the
$10,000 loan––as reasons for the killing. (Id. at p. 522.) Although the trial court
instructed the jury on voluntary manslaughter, the court erroneously instructed the jury
that “mere words” are not a defense to battery, and the court permitted the prosecutor to
argue that words alone cannot form sufficient provocation. (Id. at p. 518.) The jury
convicted the defendant of second degree murder. In reversing the conviction, this court

        3
        Defendant stated in his probation interview that he believed the account held
funds for his daughter’s college education.
                                              7
found it reasonably probable that the jury would have convicted the defendant of
voluntary manslaughter. (Id. at p. 529.)
       Loss of property may also factor into provocation in other contexts, apart from
marital infidelity. In Breverman, supra, 19 Cal.4th 142, a group of attackers, seeking
retribution for a prior fight, approached the defendant’s residence while the defendant
was inside. (Id. at p. 150.) The attackers began beating the defendant’s car with clubs
and sticks, setting off the car alarm. The defendant began firing a gun from inside his
residence, and the attackers fled. One of the fleeing attackers was shot and killed. The
defendant stated that he fired at the attackers because they had damaged his car, and he
was trying to stop them. (Id. at p. 151.) He also insisted that he thought they were trying
to enter his home to kill him. The trial court instructed the jury on voluntary
manslaughter on a theory of imperfect self defense, but not on a theory of heat of passion.
(Id. at p. 152.) The California Supreme Court held this was error. (Id. at p. 164.) In its
analysis, the high court noted the attackers’ trespass on the defendant’s property and the
attack on his car, as well as the fear and panic the attack instilled in the defendant’s mind.
(Id. at p. 163.) The prosecution asked the court to hold that mere vandalism to an
automobile is never sufficient provocation, but the court declined to do so, noting that the
facts underlying the provocation went beyond mere destruction of property. (Id. at
p. 164, fn. 11.)
       Loss of property also factored into heat of passion provocation in People v.
Dewberry (1959) 51 Cal.2d 548. In that case, the defendant placed a large sum of money
on a bar counter. He then shot another customer after failing to have all of it returned to
him. The defendant was convicted of second degree murder, following instructions in
which the trial court instructed on voluntary manslaughter but refused a defense request
to instruct that the jury was required to convict him only of voluntary manslaughter if it
had a reasonable doubt about his guilt of murder. (Id. at p. 554.) The Supreme Court
concluded, “[w]hile there was sufficient evidence to support a conviction of second
                                              8
degree murder, a finding that the offense was manslaughter would be equally
warranted. . . . [T]he jury . . . was . . . presented with substantial evidence of provocation,
much of which was undisputed, that would support a finding of voluntary manslaughter.
[Citation.] [The victim] had taken defendant’s money and only returned part of it,
passing the rest to his wife. Defendant could reasonably conclude that [the victim]
intended to steal his money, and he testified that [the victim] made a menacing gesture
toward him and told him that if he did not shut up he would lose more than his money.
Defendant was entitled to have this evidence considered in the light of the rule of
reasonable doubt, not only on the issue of self defense, but also on the issue of
provocation sufficient to reduce the killing from second degree murder to manslaughter.”
(Ibid.)
          I acknowledge that Gibson’s “dual provocation” theory—that he was provoked
both by his wife’s threat of leaving and her transfer of the money in their joint banking
account to her family in the Philippines—does not fit neatly into the factual patterns of
existing case law. But it is also true that none of the cases above squarely foreclose the
sufficiency of the provocation here, and several of them contain elements common to
these facts. Regardless of the various factual patterns found in the case law, no specific
type of provocation is required. (Breverman, supra, at p. 163.) The sole question here is
whether there is substantial evidence of provocation such that an ordinary person of
average disposition would be liable to act rashly or without due deliberation and
reflection. (Beltran, supra, at p. 957.) Gibson’s statements and testimony provide
substantial evidence to show that he reasonably believed his wife had transferred their
money to her family, and that she had informed him of her intention to leave him. I
would find this provocation sufficient to cause an ordinary person to act rashly or without
deliberation and reflection.
          Accordingly, I conclude that the trial court’s denial of Gibson’s request for a
voluntary manslaughter instruction was erroneous under state law.
                                                9
       4. Reversal
       To warrant reversal, Gibson must show prejudice—that is, he must show the
possibility of a more favorable outcome in the absence of error.4 The record includes
sufficient evidence that reasonably could have persuaded the jury to reject the murder
charges in favor of voluntary manslaughter. Most significantly, Gibson made numerous
statements demonstrating heat of passion in his interviews with police at the hospital.
Gibson consistently stated several times that he killed his wife after falling into a state of
panic and rage. His trial testimony was consistent with these claims. Gibson also said
that his state of mind was the result of a combination of factors. In the days before the
crime, he was under a great deal of stress resulting from his job at Soledad Prison. He
found his work situation so unbearable that he volunteered for a demotion. He was
unable to sleep, and the situation was causing him insecurity in his ability to support his
family financially. His relationship with a former girlfriend was also causing stress in his
marriage. The tension between Gibson and his wife was exacerbated by the logistical
difficulty of preparing for the trip to the Philippines on short notice. According to
Gibson, all of these factors culminated in a rage-filled panic attack triggered by his wife’s
threat to leave him and his belief that she had transferred all of the money from their bank
account to her family in the Philippines.
       A jury could reasonably conclude that Gibson was not trying to deceive or trick
the police in these interviews.5 Gibson readily admitted many incriminating details of the
crime, including the fact that he had contemplated killing his wife earlier in the week.
These admissions are inconsistent with any attempt to absolve himself falsely.




       4
         Because I would reach this conclusion under either the federal or state law
standard for evaluating prejudice, I will not discuss which is required here.
       5
         The jury clearly considered the interviews, as demonstrated by its note to the
court asking to hear the audio of the recording during deliberations.
                                              10
       Additionally, numerous friends and colleagues corroborated Gibson’s statements
concerning his state of mind in the days before the killing. Gibson worked in the
administrative segregation or “ad seg” unit at the prison. Benjamin Curry, the prison
warden, testified that prisoners were placed in administrative segregation if they
presented a direct threat to the safety of others. Gibson’s co-worker, Karen Gragson,
testified that the unit was where “they’d put all the tough guys.” Carla Plymesser,
Gibson’s supervisor, described his position as stressful and overwhelming. Gibson was
forced to handle a “huge caseload” due to recent vacancies that had doubled the number
of cases he was assigned. Victoria Berry, Gibson’s friend and tax return preparer,
described his work situation as a “pressure cooker.”
       These witnesses uniformly testified that Gibson’s demeanor had changed
markedly in the days before the crime. Berry testified that Gibson was normally a
“happy-go-lucky” person, but that the happiness had drained out of him, and he told her
“his job was killing him.” She was worried that he would suffer a heart attack or stroke.
Gragson testified that Gibson would not talk to her, and that he appeared overwhelmed
and “didn’t look like himself.” Cathelene Tucker, another co-worker, testified that “It
wasn’t the same individual.” Gibson was no longer smiling, and appeared preoccupied.
Curry, the warden, testified that Gibson called him a couple days before the crime.
Gibson sounded upset and emotional. He told Curry that he “didn’t want to be a burden
to anyone,” and he wanted to be demoted from his counselor position to correctional
officer. Plymesser, Gibson’s direct supervisor, testified that he requested time off one
week before the crime because “he had hit the wall” and needed to “separate himself
from being at work.”
       Numerous witnesses uniformly described Gibson as being a peaceful, nonviolent,
and gentle man prior to the crime.6 Tucker, Gibson’s co-worker, described him as a


       6
           The defendant has no record of any prior convictions.
                                             11
“gentle giant” who was extremely friendly, nonaggressive, and timid. Tucker, Plymesser,
and Dustin Smith, Gibson’s friend of forty years, all testified that he was known as a “big
teddy bear.” Berry testified that “we trusted our children with him.” Another friend
described him as “playful” and “happy-go-lucky.”
       Given the nature and consistency of the testimony from these witnesses, the jury
could reasonably have concluded that Gibson’s subjective state of mind in the days and
hours leading up to the crime, compared with his general demeanor prior to these events,
was consistent with his acting rashly and without reflection during the killing.
       The jury also could have concluded that Gibson reasonably believed the victim
engaged in conduct constituting heat of passion provocation. With respect to his wife
leaving him, Gibson testified that the large volume of items they were preparing to
pack—four boxes holding ninety pounds each—signaled to him that she did not intend to
return. Crime scene investigators found that the victim’s purse contained about $900 in
U.S. currency and an unspecified amount of Philippine currency. With respect to
Gibson’s testimony that his wife had transferred the contents of their bank account to her
own family, he also testified that he had limited experience with computers, and he had
no experience with online banking. He testified that his wife was responsible for the
account. At some point after his wife took over responsibility for the checking account,
he discovered that she was only paying interest, but no principal, on the mortgage for
their condominium. Considering this evidence, together with the consistency between
Gibson’s testimony and his statements in interviews with the police, the jury could have
found that he reasonably believed his wife had effected the transfer and told him she
intended to leave.
       I readily acknowledge the record contains much evidence weighing against heat of
passion. Significantly, in his interviews with police, Gibson admitted that he
contemplated killing his wife earlier in the week, which would support a finding of
premeditation. But the existence of some evidence supporting premeditation would not
                                            12
preclude the jury from finding heat of passion. In Le, supra, 158 Cal.App.4th 516, the
defendant lay in wait for half an hour with a knife hidden in his waistband. (Id. at
pp. 521-522.) He called his friends and relatives to bid them farewell and tell them he
would be put in jail. Nonetheless, this court rejected the prosecution’s assertion of
harmless error and found it reasonably probable that the jury would have reached a more
favorable outcome had it been instructed properly. (Id. at p. 529.)
       I also acknowledge the violence that Gibson inflicted on the victim after her death.
But the jury could have found such behavior consistent with a state of rage. Notably,
Gibson attempted to kill himself soon after the crime. The jury could have reasonably
inferred that his behavior throughout the entire evening arose from a persistently
irrational state of mind.
       Finally, the fact that the jury, on its own initiative, asked the trial court if it could
consider voluntary manslaughter suggests it is reasonably probable the jury may have
arrived at an outcome more favorable to Gibson. After the court instructed the jury that it
could not consider manslaughter, the jury remained focused on Gibson’s state of mind.
In one note, the jury requested clarification of the mens rea requirement, asking, “We
would like you to please give us some examples of the statement ‘acted deliberately, if he
carefully weighed the considerations for and against his choice and, knowing the
consequences, decided to kill.’ ” In another note, the jury asked, “If someone kills
another without premeditation, leaves, then returns to scene [sic] because he is unaware
that the victim is dead, then commits further acts willfully, deliberately and with
premeditation to kill the victim, can this qualify as 1st degree murder?” (Emphasis
added.) The jury remained undecided on the issue of premeditation, which suggests that
at least one juror believed that Gibson acted without premeditation. These events show it
was reasonably probable that at least one juror could also have found Gibson acted out of
heat of passion, resulting in a hung jury and a mistrial.


                                               13
       The majority points to the evidence of malice aforethought and the fact that the
jury continued to deliberate for 17 hours after the court instructed that voluntary
manslaughter was not an option, suggesting that the jury considered premeditation at
length. As noted earlier, I acknowledge that the evidence was sufficient to support a first
degree murder conviction. If defendant were challenging such a conviction on the basis
of insufficient evidence, I would readily reject that claim because governing evidentiary
standards afford great deference and latitude to the jury, designed to “ ‘ensur[e] that the
jury will consider the full range of possible verdicts’ included in the charge. . . .”
(Breverman, supra, 19 Cal.4th at p. 155.) In this case, however, the full range of possible
verdicts included voluntary manslaughter, an option the trial court erroneously precluded
the jury from considering.
       5. Conclusion
       Taking the record as a whole, the evidence establishes a reasonable probability that
a jury could have reached a more favorable outcome for defendant (i.e., a hung jury) had
the court properly instructed them with a voluntary manslaughter instruction based on
heat of passion. While much of the evidence weighs against heat of passion, the evidence
to support it is substantial. More importantly, it was the province of the jury—not the
court—to weigh this evidence. I would reverse the conviction and remand this matter for
a possible retrial on all theories of criminal liability substantially supported by the
evidence, including the lesser included offense of voluntary manslaughter based on heat
of passion.




                                                   Márquez, J.




                                              14
