Filed 7/11/17 P. v. Hamilton CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

KAMERON JENE HAMILTON,

Defendant and Appellant.


E065190

(Super.Ct.No. FSB1202304)

OPINION


APPEAL from the Superior Court of San Bernardino County. William Jefferson Powell IV, Judge. Affirmed.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Arlene A. Sevidal, Andrew S. Mestman, and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Kameron Jene Hamilton responded to an online advertisement offering sexual services that the victim had posted. During their encounter at the victim’s hotel room, Hamilton stabbed her with a knife 59 times, killing her.
A jury found Hamilton guilty of second degree murder (Pen. Code, § 187, subd. (a)), acquitting him of first degree murder. The jury found true the allegation that he used a deadly and dangerous weapon in the commission of the offense (§ 12022, subd. (b)(1).) The trial court imposed a sentence of 15 years to life on the second degree murder conviction, plus one year for the enhancement.
On appeal, Hamilton argues that his conviction must be reversed because the prosecutor committed prosecutorial misconduct by misstating the law regarding voluntary manslaughter during closing arguments, and defense counsel provided ineffective assistance by failing to object. The People agree that the prosecutor misstated the law, but argue that Hamilton forfeited any prosecutorial misconduct claim by failing to object, and that his ineffective assistance claim fails because he cannot demonstrate prejudice. We affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
On the morning of May 30, 2012, Hamilton purchased an eight-inch kitchen knife. He testified at trial that he bought it because “[i]t was only a dollar,” and it was “big and intimidating . . . just in case I had to use intimidation to get myself out of a situation, I felt that would be sufficient.”
That afternoon, Hamilton met the victim at her hotel room, after responding to her online advertisement offering sexual services. He brought with him a drawstring bag, in which he put his wallet, phone, a bottle of vodka, some marijuana, and the knife.
A housekeeper working at the hotel that afternoon was on her way to clean a room when she saw a woman run out of one of the rooms yelling “help me.” A man pulled the woman back into the room and slammed the door. The housekeeper did not see any blood on either the man or the woman when this occurred. But when she then approached the room she heard “pounding sounds . . . like something was being hit on the dresser,” and she saw blood dripping down the windowsill of the room. She went into a neighboring room, closed the door, and called the office.
The manager who received the call from the housekeeper closed and locked the front office, grabbed her cellphone, and called 911 while making her way up to the room. When she reached the room, she saw blood on the inside of the window frame. She entered a neighboring room (not the one entered by the housekeeper) and put her ear up against the wall; she heard “thud” sounds coming from the room, but no voices.
Police soon arrived. Hamilton was arrested when he exited the room; he ran a few steps before being pushed to the ground and taken into custody. He was carrying a drawstring bag, as well as the victim’s purse. After Hamilton was handcuffed, police found a knife on the ground to his right, near his feet. A wallet belonging to the victim, which had been in the drawstring bag, was also found next to Hamilton, on his right side. Later, $142 was found in the pocket of Hamilton’s pants.
Police found the victim lying face down in the room, already deceased. It was later determined that she had suffered 59 “sharp force injuries.” The medical examiner testified that one wound, which would have been fatal on its own, cut the carotid artery and jugular vein, as well as penetrating the voice box and larynx, and striking the cervical spine. Two other wounds, to the victim’s back, also would have been fatal, even if she had suffered no other wounds. She had multiple defensive wounds, including three penetrating all the way through her hand. Her scalp had 21 individual wounds, which were deep enough to leave indentation marks in her skull, but which would not likely have been fatal on their own, because the knife did not penetrate into her brain.
When Hamilton was arrested, he had a large laceration on his left wrist, and had blood on his hands and stomach. The medical examiner testified that the wound was not in a typical location for a defensive wound, but could have occurred as a self-inflicted wound, or accidentally if Hamilton was holding onto the victim’s body with his left hand while pulling the knife out with his right. A blood sample taken from Hamilton shortly after his arrest showed his blood alcohol content to be 0.16 percent.
After Hamilton’s arrest, he told one of the officers on scene that he came to the hotel to meet an escort, but realized halfway through having sex with her that he needed to get back home to his children because the person watching them had to leave for work, and left them unattended. He wanted half of his money back, because he was only there for half of the time; she refused, and an argument broke out. Hamilton told the officer that he was “violent with his words,” but then the victim took a knife out from an unknown location and attacked him with it. Afterward, he did not know what to do, so he showered to clean himself off.
A detective interviewed Hamilton later on the day of his arrest. Hamilton told the detective multiple times that he did not bring the knife to the hotel room. Rather, the victim pulled the knife out on him when they got into an argument; the victim had tried to cut their encounter short, and he asked for some of his money back. She then pulled a knife, and stabbed him when he tried to take it from her; the detective testified that Hamilton told “a couple different versions of what happen[ed] after that.”
At trial, Hamilton testified that he brought the knife with him because he had become aware that going to prostitutes could be dangerous, or someone could take advantage of him. He described several previous experiences where he felt prostitutes (or their associates) took advantage of him. He also described a discussion with a prostitute who advised him that his demeanor made him an “easy target to . . . either rob or take advantage of.” Hamilton testified that, when he left to meet the victim, he had no intention of hurting her.
According to Hamilton, when he met the victim at her hotel room, he paid her the agreed upon amount, about $140. Shortly thereafter, they began having intercourse. After a few minutes, the victim asked Hamilton if he “was almost done,” which he found “irritating” because he had discussed with her on the phone prior to their meeting that he wanted their encounter to be “unrushed.” Hamilton stopped having sex, reminded her that they had discussed that “it was going to be unrushed,” and asked her if he was going to get the “full time that [they] agreed upon.” She said yes, and told him to continue, which he did.
A few minutes later, Hamilton testified, the victim again asked if he was “almost done.” They stopped having sex again, and “had a conversation again about her saying that it was going to be unrushed,” and that the time they agreed on had “not been reached yet.” Hamilton felt that “she was trying to cut the date short and kind of gyp me for my money.” He did not want to continue with the “date,” and asked for some of his money back. The victim “got kind of angry” and told him “no, that the date is finished, and for [him] to leave.”
Hamilton stated that he responded by picking up the money, which was in a pocket of the victim’s clothing on a dresser, and attempting to take half of it back. He and the victim began arguing, “both kind of talking over each other.” As he was counting the money, she grabbed his bag, which was on the floor by the bed. Within a few seconds, she realized there was a knife in the bag, and had pulled it out. Hamilton tried to grab the bag from her, having dropped the money, and she cut his wrist.
Hamilton testified that after the victim cut him, he was frightened and in “kind of a shock.” He had vague memories of “struggles around the room,” but did not recall taking the knife from her. He remembered only “the last stab,” and “flashes” from their struggle. Afterwards, he was “freaking out” and “crying,” and did not know what to do next. He tried to clean himself off in the shower. Then he realized that victim’s phone had been ringing repeatedly, and became concerned that “that could have been her pimp calling, and he could be on his way or coming at any time.” When he heard knocking on the door, he thought it was her pimp or someone staying in the room with the victim; he did not know it was the police. His “plan was to open the door and run,” until he opened the door and saw the police.
Hamilton claimed to have no memory of talking to anyone after his arrest, being placed in a police car and transported to the police station, or the police transporting him to the hospital. His next recollection was when he “came to” in the hospital, after having had surgery on his wrist.
The defense also presented expert testimony from a clinical forensic psychologist who assessed Hamilton in December 2014. The expert interviewed Hamilton, reviewed police reports, and administered a Minnesota Multiphasic Personality Inventory (MMPI) test. He opined that people with Hamilton’s profile frequently report problems with drinking or drug use, which affects judgment and impulse control. The evaluation also suggested that defendant was guarded and suspicious about the motives of others, and might misinterpret the motives of others at times. The expert opined that Hamilton’s paranoia was a personality characteristic, as opposed to a disorder, meaning that he was able to function, but “underneath the surface there’s this suspicion, this fear . . . . So they are always kind of . . . on the lookout a little more, a little more scared.”
Responding to a hypothetical, the expert opined that such a person, if he were paranoid about the dangers associated with prostitution, could have his “fight or flight” instincts triggered if he found himself facing a prostitute with a knife, regardless of whose knife it was. Alcohol intoxication could contribute to the flight or flight reaction by impairing judgment. According to the expert, it is common for people triggered into a fight or flight mode to engage in “overkill,” that is, to continue to use force in perceived self-defense past the point when, from an objective standpoint, any actual risk of harm had dissipated. Someone in such an elevated emotional state could likely have a poor memory of the event.
The prosecution asked the jury to find Hamilton guilty of first degree murder. The defense argued either that Hamilton acted in self-defense and should be acquitted, or that he acted under provocation or heat of passion and should be found guilty only of manslaughter.
The trial court instructed the jury on voluntary manslaughter using CALCRIM No. 570. The instruction provides, in relevant part:
“A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion.
“The defendant killed someone because of a sudden quarrel or in the heat of passion if:
“1. The defendant was provoked;
“2. As a result of the provocation the defendant acted rashly and under the influence of intense emotion that obscured his reasoning or judgment;
“AND
“3. The provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment. [¶] . . . [¶]
“It is not enough that the defendant simply was provoked. The defendant is not allowed to set up his own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether a person of average disposition, in the same situation and knowing the same facts, would have reacted from passion rather than from judgment.”
The trial court also instructed the jury with CALCRIM No. 200, which states in relevant part:
“You must follow the law as I explain it to you, even if you disagree with it. If you believe that the attorneys’ comments on the law conflict with my instructions, you must follow my instructions.”
During closing arguments, the prosecutor made the following comments, which are the focus of the present appeal, regarding what type of provocation would be sufficient to reduce a murder to voluntary manslaughter:
“Was this a sudden quarrel or heat of passion? Yes, they had an argument. Absolutely. But here’s the problem with this applying to the defendant . . . you have to have been provoked to the extent that it would cause an ordinary reasonable person to react that same way.
“Would other people have reacted that way in that situation?
“Is it reasonable to believe that somebody would have gotten a stab wound, if we are buying defendant’s story, and then turned around and stabbed somebody 59 times?
“A reasonable person would not have done that. A reasonable person would have run out of that room screaming for help. A reasonable person would have let [the victim] go when she tried to get away. A reasonable person would not drag her back in and stab her 59 times.
“It is a reasonable person standard. Not the standard of what the defendant did, but a reasonable person.
“It is not enough that the defendant was simply provoked. These are words directly from the instruction. He is not allowed to set up his own standard of conduct. And that is an instruction that is used a lot.
“You hear it referred to a lot when you are talking about a husband walking in and sees his wife with another man. It’s reasonable to believe that it would invoke that kind of response because of the fact that there is a relationship between the two. And in this particular case the defendant is attempting to set up his own standard of conduct. And, again, we are talking about an average disposition, same situation. There is an exclusive, narrow section of the law. And, again, a reasonable person would not have reacted the way that the defendant reacted.”
Defense counsel did not object to the prosecution’s comments regarding provocation.
II. DISCUSSION
Hamilton argues, and the People concede, that the prosecutor misstated the law regarding provocation during closing arguments. We agree. In People v. Beltran (2013) 56 Cal.4th 935 (Beltran), the California Supreme Court clarified that “provocation is not evaluated by whether the average person would act in a certain way: to kill. Instead, the question is whether the average person would react in a certain way: with his reason and judgment obscured.” (Id. at p. 949.) The jury was properly instructed in accordance with Beltran: “In deciding whether the provocation was sufficient, consider whether a person of average disposition, in the same situation and knowing the same facts, would have reacted from passion rather than from judgment.” (CALCRIM No. 570.) The prosecutor’s remarks, arguing that “[a] reasonable person would not have done” what Hamilton did, are incompatible with the law as stated in Beltran, and as articulated in the jury’s instructions. (Beltran, supra, at p. 949.)
The People argue, and Hamilton concedes, that the defense’s failure to object to the prosecutor’s misstatement of the law forfeited any claim of prosecutorial misconduct. We agree: “A claim of prosecutorial misconduct is not preserved unless the defendant makes a timely objection and requests an admonition, and even then the issue is preserved only if the admonition was insufficient to cure any harm.” (People v. Hajek (2014) 58 Cal.4th 1144, 1241.) Because Hamilton failed to lodge any objection, let alone a timely objection, to the prosecutor’s remarks, his claim was forfeited.
The issue, then, is whether defense counsel’s failure to interpose an objection to the prosecutor’s misstatement of the law constituted ineffective assistance of counsel. To prevail on a claim of ineffective assistance, a defendant must “establish not only deficient performance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice. [Citation.] (People v. Bolin (1998) 18 Cal.4th 297, 333.) “[P]rejudice must be affirmatively proved; the record must demonstrate ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’” (Ibid.)
“[W]hen considering a claim of ineffective assistance of counsel, ‘a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed.’” (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.)
Here, Hamilton has failed to establish a reasonable probability that, had defense counsel objected to the prosecutor’s misstatement of the law and the jury been properly admonished, the outcome of the trial would have been different. First, the jury was properly instructed on provocation, by means of CALCRIM No. 570. It was further instructed using CALCRIM No. 200, that if any attorney remarks conflicted with the court’s instructions, it must follow the court’s instructions. There is nothing in the record that overcomes the presumption “‘that jurors understand and follow the court’s instructions.’” (People v. Wilson (2008) 44 Cal.4th 758, 803.)
Moreover, the evidence in support of the defense’s provocation theory was weak and contradicted. (See Beltran, supra, 56 Cal.4th at pp. 956-957 [no prejudice from prosecution’s misstatement of standard for provocation because evidence of provocation was “both weak and contradicted”].) The theory centers on the notion that the victim cut Hamilton first, causing him to react from passion rather than from judgment. But the testimony of the medical examiner was that Hamilton’s injury was not typical of a defensive wound. And the housekeeper who saw Hamilton drag the victim back into the hotel room as she screamed for help saw no blood on either of them. The only support for the defense’s theory that the victim initiated the violence is Hamilton’s own, shifting account of the events.
On the other hand, there was strong evidence that Hamilton attacked the victim not as a reaction to a legally cognizable provocation, but because of rage stemming from his feeling that the victim was taking advantage of him. He testified about previous encounters with prostitutes that left him feeling that he had not gotten the full benefit of the bargain. He had been warned by another prostitute that his demeanor made him an “easy target to . . . either rob or take advantage of,” so he chose to bring with him a knife that he found to be “kind of big and intimidating.” He stated that the victim’s questions during sex, asking whether he was almost finished, made him feel “like she was trying to cut the date short and kind of gyp me for my money.” According to Hamilton, he tried to get some of his money back, and an argument ensued. This is strong, albeit circumstantial, evidence that Hamilton’s violence was a reaction to feeling taken advantage of yet again, not a spontaneous response to violence by the victim.
Additionally, as the jury was instructed, to reduce a murder to manslaughter, the provocation must be such that a person “of average disposition” would be caused to act “from passion rather than from judgment.” It is noteworthy that the psychologist who examined defendant and testified as a defense witness observed Hamilton does not have an average disposition; rather, he is “always kind of . . . on the lookout a little more, a little more scared.” While Hamilton’s paranoia is not directly probative of what provoked him to react with violence toward the victim, it is another piece of the puzzle, the totality of which lends little credence to his claim of provocation, and strongly supports the jury’s conclusion that Hamilton’s actions were murder, not manslaughter.
In short, we find no reasonable probability that the outcome of the trial would have been different if defense counsel had objected to the prosecutor’s misstatement of the law regarding provocation and the jury been properly admonished. Hamilton’s claim of ineffective assistance of counsel therefore fails.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


CODRINGTON
J.
We concur:


MILLER
Acting P. J.

SLOUGH
J.