P. v. Lee

Filed 8/20/07 P. v. Lee CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

----

A jury found defendant Charles Edward Lee guilty of second degree murder (Pen. Code, 187)^[1]and found true an allegation he used a knife as a deadly weapon in committing the offense. ( 12022, subd. (b)(1).) The trial court found defendant had a prior felony conviction for assault with a deadly weapon under section 245 that qualified both as a serious felony ( 667, subd. (a)) and as a strike. ( 667, subds. (b)-(i), 1170.12.) The trial court sentenced defendant to an indeterminate term of 30 years to life, plus a determinate term of one year under section 12022, subdivision (b)(1) and five years under section 667, subdivision (a).

On appeal, defendant claims the trial court erred in ruling defendants proposed expert witness testimony regarding the victims bipolar disorder was character evidence that would open the door to rebuttal evidence regarding defendants character for violence. He asserts numerous jury instruction errors and error by the trial court in responding to jury questions. He claims prosecutorial misconduct in closing argument, ineffective assistance of his trial counsel, and cumulative error. We shall affirm the judgment.

FACTUAL BACKGROUND

In late 2003, Crystal Wells, a 40-year-old woman with a drug problem and a history of theft, lived in a home owned by her mother Dorothy Shaver on Clay Street in Sacramento. Shaver rented the house to women who have had problems with drugs. Jacqueline Avery was the only other tenant of the Clay Street house to be home on Christmas night 2003.

In the early morning hours of December 26, 2003, Avery was awakened by the sound of a table tipping over. She heard Wells say in a loud voice, Get the fuck out of here. Avery got up and went to see what was going on. When she got to the door to the kitchen, Avery saw Wells standing near the open back door looking outside. Wells said somebody had broken into the house and that she had been stabbed. Wells asked Avery to call her mom, who lived next door, and to tell her she had been stabbed. Wells went upstairs to her bedroom.

Avery called Shaver, but did not tell her that Wells had been stabbed. When Shaver came over four to seven minutes later, she and Avery went upstairs where they found Wells collapsed on her stomach on the floor. Shaver called 911 and, at the operators direction, started CPR. The police and an ambulance arrived, but it was too late; Wells was dead.

An autopsy of Wells showed she had an inch-long knife wound on her upper right arm, a two-inch-long knife wound at the base of her neck, and a stab wound to her left chest. The first two wounds were superficial and not life-threatening, but the stab wound to her chest penetrated her heart, causing her death. The angle of the wound was from front to back, approximately 20 degrees from right to left, and approximately 10 degrees downward from horizontal. A person with such a wound to the heart could talk, stand, and walk for some brief period of time before becoming unconscious. Wells also had small abrasions on her forehead and left thigh. Wellss blood-alcohol level measured 0.13 percent and she had methamphetamine, cocaine, and cocaine metabolite in her system when she died.

Police found evidence of a struggle in the house, including a large area rug askew and a telephone stand knocked over. A button with some threads attached to it was found on top of the rug. In Wellss bedroom upstairs, police found two used narcotics smoking pipes. A piece of foil with residue and soot was found under the edge of a chaise, a baggie containing methamphetamine was found behind the back of the chaise, and on top of a storage chest was a cell phone. Defendants name was displayed on the face of the phone. The police looked at the call list on the phone, which led them to look for a woman named Denise Hysaw and eventually led them to an address on Huron Street.

Police arrived at the Huron Street address around 8:15 p.m. that evening. When police told Charles Fields, who answered the door, that they were looking for Hysaw and defendant, Fields directed them upstairs to where defendant was sleeping. After waking defendant, police asked him to come downtown to make a statement. In the subsequent interview with police, defendant denied being at Wellss house the previous night or any other time. Defendant claimed he did not know what the police were talking about when they asked him for his story of what happened at the Clay Street house. He denied knowing Wells or anyone living at the house. When police pointed out defendants shirt was missing a button, defendant said it had been missing for years. At trial, a criminalist testified the button found at the crime scene likely came from defendants shirt.

As police were leaving the Huron Street address, Hysaw walked up. She was taken in and questioned. Hysaw testified at trial that she called defendants cell phone on the night of December 25/26. Defendant said he was about two blocks away and they agreed to meet. However, defendant did not appear when Hysaw walked in the direction she expected to meet him. Hysaw walked to the house on Huron Street where she was invited by Fields to come inside and wait. Fifteen to 20 minutes later, Hysaw saw defendant walking up to the house. When he came in the door, Hysaw saw he had a small knife in his hands. There appeared to be a little blood on the tip of the knife. Defendant went into the kitchen to wash his hands and the knife. Hysaw asked defendant several times if he had any methamphetamine without any response from defendant. Eventually, defendant said, No, I dont have any shit [drugs]. Its gone. She took it. Later defendant added he stabbed or shanked her. Defendant said, I cant believe that bitch took my shit. She took it. I cant believe that.

When Hysaw asked defendant what had happened, defendant explained that on the way to meet Hysaw, a woman (Wells) came up to his car. Defendant decided to sell the woman the drugs he was going to share with Hysaw. The woman said she needed to go to her house to get the money, so defendant drove her back to her house. Defendant and the woman went inside and upstairs as defendant had agreed to let the woman try the drugs. The woman got her paraphernalia and smoked some of the drugs. When defendant glanced over, however, all the drugs were gone. He asked the woman if she wanted to go ahead and buy the drugs, but she said, No, its time for you to go. Defendant told her he would be glad to go as soon as he got either his drugs or the money. The woman repeated, No, its time for you to go. She stood up and walked to the door. Defendant looked for his stuff, but when he did not see it, he told the woman he wanted his stuff. The woman pushed and/or tugged him, telling him, You gotta go. You gotta go. Defendant demanded his stuff before he would go. Then they began to tussle. Defendant told Hysaw he stabbed the woman once in the neck and once in the chest. (Hysaw told police the night she was questioned that defendant said he stabbed or cut the woman three times.) According to Hysaw, after this conversation defendant noticed his cell phone was missing. He thought he left it in his car, but Hysaw checked the car and it was not there.

A few hours later, Hysaw saw a news report of the incident indicating the victim was dead. She told defendant of the report. A couple of hours later, defendant and Hysaw left the Huron Street house to look for drugs. At one point, they visited defendants brother, Floyd Lee. Hysaw heard defendant ask Lee whether Lee had heard about the stabbing. Defendant told his brother he was involved. When his brother asked what happened, defendant told him he was letting her try the drugs and the next thing he knew, the drugs were gone. Defendant told his brother he still had the knife. Lee told defendant to get rid of it. Hysaw did not actually see the knife being turned over, but it sounded like the knife was thrown out. Defendant and Hysaw left, found some drugs and went back to the house on Huron Street where they did the drugs, had sex and took a nap. Defendant was still asleep when Hysaw woke up and left for the store. When she returned, she saw police cars in front of the house and officers were bringing defendant out in handcuffs.

Defendants brother (Lee) testified defendant and a woman came over to his home on the morning of December 26, 2003. Defendant looked tired and said it had been a bad night. Defendant handed Lee a little knife and asked Lee to keep it for him. Lee put it in a coat pocket. Lee denied wrapping it in a towel before putting it in the pocket. Lee testified defendant never said he hurt anybody. Police later contacted Lee, who led them to the knife, which the police found wrapped in a towel and placed inside a pocket of a jacket inside a closet. According to the forensic pathologist, the knife seized by the police could have inflicted Wellss injuries.

Criminalist Michael Toms testified defendants urine sample at the time of his arrest showed amphetamine, methamphetamine and cocaine metabolite. Wellss autopsy blood sample showed methamphetamine, cocaine and cocaine metabolite. The effects of a single dose of methamphetamine or cocaine in the first four hours included mild euphoria, excitation, exhilaration, increased strength, increased alertness, rapid speech, decreased appetite, motor restlessness, and overall poor impulse control. In the last four to 24 hours, as the person was coming down, the person would experience nervousness, anxiety, paranoia, possibly agitation and aggression, an intense craving for more drugs, and ultimately extreme fatigue. If a person took more than a single dose, the effects could be amplified.

Defendant testified on his own behalf. He testified he drove to Del Paso Heights around 2:30 a.m. on December 26 looking for a prostitute. He had in his possession one-sixteenth of methamphetamine and a $20 piece of cocaine. Defendant saw three women standing near the corner of Grand and Clay. He recognized two of them as prostitutes. He pulled over and parked. The woman he did not know, who turned out to be Wells, came over to his car. They discussed the possibility of a date, Wells got into defendants car, and they agreed to a price of $20. Defendant drove to the Huron Street house, but it was occupied, so they went to Wellss house. On the way Wells asked defendant if he had any drugs.

When they arrived at the Clay Street house, Wells seemed fidgety and told defendant to hurry up. She collected a smoking pipe from a BBQ pit and they went inside the house and upstairs to her bedroom. Wells asked if they could smoke some of the dope before they had sex and defendant agreed. They smoked defendants cocaine and shared some of the methamphetamine. Defendant stripped to his underwear and Wells took off her pants. She began dancing around in her underwear. Defendant asked to use the bathroom and Wells directed him downstairs.

Defendant went down the stairs, but it was dark, so he turned around and went back upstairs to ask Wells to show him where the bathroom was located. When defendant reentered the bedroom, Wells had her back to him. She had defendants pants and was going through the pockets. Defendant startled her when he asked her what she was doing. She turned around and her whole demeanor changed. She appeared to be mad at defendant for some reason. Wells threw defendant his pants and told him to get dressed and get out. Defendant said okay and started putting his clothes back on. Wells went downstairs.

As defendant followed after Wells, he checked his jacket pocket for the drugs, money and cell phone that had been in the pocket earlier. It was all gone. At the bottom of the stairs, defendant saw Wells standing at the open back door. She had her right hand behind her back. Defendant asked where his belongings were. Wells told him to just go ahead and leave. Under the impression she was hiding his belongings behind her back, defendant reached for Wellss right arm with his left arm. Wells suddenly drew back and defendant saw she had a knife in her hand. Wells lunged at defendant, who being scared and panicked, immediately grabbed her wrist to keep from being stabbed. They struggled over the knife. With her left hand, Wells repeatedly hit defendant on the top of his head. She was hollering and cussing, telling him to get the fuck out. Wells forced defendant backwards. Defendant tripped over something, slipped and fell on his back. Defendant still had a hold of Wellss arm and as he fell, defendant pulled Wells down on top of him and the knife. Defendant kept twisting Wellss wrist to get the knife out of her hand. When he succeeded, he rolled over and pushed Wells off of him. He jumped up and ran out of the house. He had no idea Wells was hurt. He looked back when he reached his car and saw Wells at the door. He heard her cussing and saying, I called the fucking police. If he had known she was hurt, defendant testified he would have tried to get medical assistance.

When he returned to Huron Street, defendant claimed he told Hysaw and Fields that he had an altercation with a female at her house, she had pulled a knife on defendant, they struggled and defendant took the knife from her. Prior to leaving Fieldss house, defendant heard news of a break-in or something in the same area in which he had been. Defendant went out to the car and got the knife. He noticed a little blood and told Fields, Man, you know, the lady, she must have got cut or something. He put the knife in his pocket.

Later, when defendant was at his brothers home, his brother asked defendant if it was possible that the news was about the same incident defendant had been involved in. Defendant said no. Lee asked defendant to take Hysaw home and then come back to discuss it. As defendant was leaving, defendant handed the knife to Lee to hold onto until defendant got back. Defendant drove back to Fieldss house. He was so tired that he laid down and fell asleep. He remained asleep until an officer shook his foot to wake him up.

Defendant admitted two felony convictions, for a theft in 1998 and for passing bad checks in 2001. He admitted lying to the police when he was questioned that night. According to defendant, he did not want to discuss the matter and it was his way of ending the conversation.

On rebuttal, Shaver testified her daughter was left-handed. The parties stipulated a doctor had tested Wellss grip strength during a medical examination in 2002, which also indicated she was left-handed.

DISCUSSION

I.

Defendants Proposed Expert Testimony Regarding Wellss Bipolar Disorder

During Shavers testimony at trial, she mentioned her daughter (Wells) had been diagnosed with and treated for bipolar disorder. In response, the defense obtained Wellss medical records and had them reviewed by Dr. Albert Globus.

Defendant proposed to have Globus testify (1) as to what constitutes bipolar disorder, (2) the effects of narcotics on the human brain, (3) the interaction between the effects of bipolar disorder and the effects of narcotics, and (4) as to a hypothetical regarding the expected range of behaviors exhibited by a person with certain levels of blood alcohol and narcotics. Defendant claimed Globus would testify, that a person with bi-polar disorder who uses narcotics will have faulty thought processes and perceptions. Defendant argued such testimony would be used to rebut the notion that defendant broke into the house as claimed by Wells through the testimony of Avery. Defendant also claimed Globus would testify, that a person with a bi-polar disorder can be grossly irritable and irrational and can be extremely aggressive and that such a persons judgment is impaired and their inhibitions are reduced. Defendant argued such testimony would be used to support defendants assertion that he reasonably feared for his life and/or safety.

The prosecution took the position defendants proposed expert witness testimony regarding Wellss mental condition was character evidence, which included evidence of Wellss propensity for violence. While admissible, the introduction of such evidence, according to the prosecution, would make admissible rebuttal evidence of defendants character for violence under Evidence Code section 1103, subdivisions (a) and (b) (section 1103).^[2] The prosecution cited in support of its position People v. Jones (1954) 42 Cal.2d 219, In re Cheryl H. (1984) 153 Cal.App.3d 1098 (disapproved on other grounds in People v. Brown (1994) 8 Cal.4th 746, 755, 764), and People v. Stoll (1989) 49 Cal.3d 1136.

The trial court concluded the proposed evidence was relevant and admissible, but it was character evidence, under the authorities cited by the prosecution, that would open the door to the prosecutions evidence of defendants character for violence. Defendant suggested the trial court was missing the other point about if I have a doctor testify not about violence, then how far -- then what he may testify to. Because thats what triggers this whole issue is the testimony about violence. If he testifies about misperceptions, irritability, changes in behavior, that kind of thing, that doesnt necessarily invoke [section] 1103 character for violence. The trial court found the relevance was still for defendants claim of self-defense. Defendant said it was relevant to his perception. The trial court stated that if Globus testified along the lines indicated by the defense, the evidence would put the victims character at issue. And if it puts the victims character at issue, it puts the defendants character at issue. The court ruled the prosecution would be permitted to introduce evidence concerning defendants prior acts of violence if Globus testified along the lines previously indicated. Defendant did not call Globus to testify.

On appeal, defendant claims the trial courts ruling was an abuse of discretion and also violated his rights to due process and to present a defense. Defendant claims the proposed evidence of Globus was not evidence of Wellss character for violence within the meaning of section 1103, but was only offered to show Wellss likely state of mind at the time of the crime so as to support defendants testimony that he acted in self-defense in response to her sudden and irrational behavior. Defendant argues this case is similar to People v. Long (2005) 126 Cal.App.4th 865. We disagree.

Defendants offer of proof claimed Globus would testify that a person with a bi-polar disorder can be grossly irritable and irrational and can be extremely aggressive and that such a persons judgment is impaired and their inhibitions reduced[.] Defendant argued this evidence would support his claim of reasonable fear for his life and/or safety. Later defendant apparently offered to have Globus not use the term violence, but to testify about misperceptions, irritability, changes in behavior, that kind of thing[.] (Italics added.) Defendant said this testimony was relevant to show his perception. (Italics added.)

The Law Revision Commission comment to Evidence Code section 1101, regarding the use of character evidence to prove conduct, defines a persons character as his propensity or disposition to engage in a certain type of conduct[.] (Cal. Law Revision Com. com., 29B Wests Ann. Evid. Code (1995 ed.) foll. 1101, p. 438.) In People v. Long, supra, 126 Cal.App.4th 865, this court stated, [c]haracter evidence is evidence regarding someones general personality traits; evidence of a persons moral standing in a community based on reputation or opinion. (Id. at p. 871, quoting Blacks Law Dict. (7th ed. 1999) p. 576, col. 2.)

It is clear from defendants offer of proof and arguments that defendant intended to use Globuss testimony to show Wells had a mental condition or personality traits that caused her to have a propensity or a disposition to act irritably, irrationally, and aggressively and, therefore, she was likely to have acted in accordance with such disposition or traits in her actions towards defendant that night after smoking drugs with him. Indeed, defendant argued such testimony would be used to support his assertion that he reasonably feared for his life and or safety. Defendants proposed use of Globuss testimony supported defendants claim of self-defense because it was directed at Wellss character for violence, that is, her actions reasonably caused defendant to fear for his life. If Wellss actions did not include any suggestion of violence, they would not have been relevant to support defendants claim of his reasonable fear of Wells. Defendant did not propose to limit his use of the testimony to show Wellss state of mind; he wanted the evidence admitted in order to support his perception, that is, his state of mind of reasonable fear.

Defendants proposed use of Globuss testimony was analogous to the use of expert testimony regarding a psychiatric diagnosis as character evidence in In re Cheryl H., supra, 153 Cal.App.3d 1098 and People v. Stoll, supra, 49 Cal.3d 1136.

In In re Cheryl H., supra, 153 Cal.App.3d 1098, a psychiatrist was allowed to testify regarding the results of a standardized psychological test administered to the father of a child. The psychiatrist used those tests as part of the basis for her opinion that the child had been sexually abused by her father. (Id. at pp. 1109-1110.) The reviewing court found such testimony was character testimony inadmissible in a civil action. We find the following comments of the court relevant here:

Dr. Powell [the psychiatrists] opinion also rested to a lesser extent on the results of a standardized psychological test administered to [father]. He tested very high on the passive-dependency scale and exhibited highly guarded and defensive tendencies. According to Dr. Powell, studies indicate a high proportion -- 85 percent -- of fathers committing sexual abuse against their children have these personality traits. This intermediate finding, in turn, was used as part of the raw material for Dr. Powells expert opinion on the ultimate issue of who sexually abused Cheryl. []  This latter inference, in particular, requires no expertise in psychiatry or sexual abuse of children. It is strictly a matter of logic. But where does the logic carry us? It leads us to the conclusion [father] had a character trait, a propensity to sexually abuse children, and acted in conformance with that propensity in this instance by sexually abusing his daughter. This inference is prohibited by section 1101 of the Evidence Code which bans character evidence in civil cases. []  It makes no difference that it is an experts opinion rather than lay testimony about specific acts which is being used to establish the existence of this propensity. . . . Here a psychological study was used to demonstrate that certain character traits are linked with certain behavior, that is, that someone with these traits (a passive-dependent personality) has a propensity or disposition to engage in that behavior (sexual abuse of their children). Then a psychological test was used to prove [husband] exhibited those traits. These studies and tests and the opinions based on them are relevant only if employed as a basis for an inference that [husband] behaved in conformity with that [propensity or disposition] on a particular occasion. (Law Revision Com. com., Evid. Code, 1101.) Hence this is merely an exotic variety of character evidence and is inadmissible in a civil action. (In re Cheryl H., supra, 153 Cal.App.3dat pp. 1123-1124, fns. omitted.)

In People v. Stoll, supra, 49 Cal.3d 1136, the Supreme Court found the trial court erroneously excluded defendants proposed testimony from a psychologist who would have provided an expert opinion that defendant did not possess any pathology in the nature of sexual deviation, based on interviews and professional interpretation of standardized personality tests of the defendant. (Id. at pp. 1146, 1149, 1152, 1161.) Defendant wanted to use the opinion to show she had no predisposition to commit the charged lewd and lascivious acts. (Id. at pp. 1146-1147.) Citing People v. Jones, supra, 42 Cal.2d 219, 222, the Supreme Court found the proffered testimony was character evidence (Stoll, supra, at p. 1152), which should not have been excluded by the trial court on the basis of Kelly/Frye.^[3](Id. at p. 1161.)

These two cases demonstrate expert opinion regarding a persons psychological diagnosis or traits can be character evidence when used to show the persons likely actions or lack of action in conformity with such diagnosis or traits. Defendant proposed such a use of the proffered expert testimony in this case.

This proposed use of the evidence distinguishes this case from People v. Long, supra, 126 Cal.App.4th 865, where this court determined the testimony of a psychologist regarding a victims borderline personality disorder did not require a jury instruction to the effect that the jury could consider the character of the witness for honesty or truthfulness or their opposites in judging the believability of the witness. (Id. at pp. 870-872.) In Long, the evidence was admitted to explain and aid the jury in understanding the victims mental disorder. It was used to show the victims capacity and perception of reality. (Id. at p. 871.) Therefore, we concluded the evidence was not of the victims character for untruthfulness. (Id. at p. 872.)

Here defendants offer of proof showed he intended to use the testimony of Globus as character evidence to show Wells acted in conformity with the described characteristics of bipolar disorder. This in turn circumstantially supported his claim that he actually and reasonably believed he was in imminent danger of death or great bodily injury from Wells, i.e., that his killing of Wells was justified by self-defense. As the character evidence involved Wellss character for aggression or violence, the trial court correctly ruled its introduction would open the door for the prosecution to admit evidence of defendants character for violence.

II.

Failure to Give Three Specific Jury Instructions Regarding Self-Defense

Defendant claims the trial court erred in failing to instruct the jury (1) regarding defendants right to use reasonable force to recover his stolen property, (2) that where the original aggressor is not guilty of a deadly attack, but of a simple assault or trespass, the victim has no right to respond with deadly or other excessive force, that if the victim does use such force, the aggressors right of self-defense arises, (the second paragraph of CALJIC No. 5.54, 2004 revision, self defense by an aggressor) and (3) a defendant may use deadly force to repel the forcible and atrocious crime of robbery. We take each claim in turn.

A. The Trial Court Did Not Err In Failing To Instruct Regarding A Persons Right To Use Force To Recover Stolen Property

Defendant claims the trial court had a sua sponte duty to instruct the jury as part of the instructions provided on self-defense that defendant had a right to use reasonable force to recover his stolen property. Defendant cites constitutional, statutory, and case authority for such a right.

However, with one exception, the authorities cited by defendant concern a persons right to protect or defend their property. Specifically, article I, section 1 of the California Constitution states all people have inalienable rights including, among others, enjoying and defending life and liberty, acquiring, possessing, and protecting property[.] (Italics added.) In Kentucky Fried Chicken of Cal., Inc. v. Superior Court (1997) 14 Cal.4th 814, the California Supreme Court held only that there is no duty to comply with a robbers unlawful demand for the surrender of property. (Id. at p. 829.) Fawkes v. Reynolds (1922) 190 Cal. 204, involved the right of a person to use reasonable force to defend himself and his property against a physical attack. (Id. at pp. 212-213.)

The only authority cited by defendant that does not involve the protection or defense of property is People v. Tufunga (1999) 21 Cal.4th 935. In that case, the California Supreme Court held that a claim of right (good faith belief in right or claim to specific personal property) is still recognized as a defense to a criminal charge of robbery because it negates the necessary felonious intent required under section 211. (Id. at pp. 943, 945-950.) In recognizing the Legislatures continuance of the claim-of-right defense to criminal liability for robbery, however, the Supreme Court certainly did not approve the forcible recovery of stolen property. (See id. at pp. 938-939, 950-956.)

Indeed, none of the authorities cited by defendant provide a person with a privilege to use force to retrieve already stolen property. Such a principle would in fact be at odds with the general rule that one who is or believes he is injured or deprived of what he is lawfully entitled to must apply to the state for help. Self-help is in conflict with the very idea of the social order. It subjects the weaker to risk of the arbitrary will or mistaken belief of the stronger. Hence the law in general forbids it. (Daluiso v. Boone (1969) 71 Cal.2d 484, 500.)

Defendant has not shown the trial court erred in failing to instruct the jury that defendant had an affirmative right to use reasonable force to recover his stolen property.

B. The Trial Court Did Not Err In Failing To Instruct The Jury With The Second Paragraph Of CALJIC No. 5.54 (Self Defense By An Aggressor)

Defendant contends the trial court erred by failing to instruct the jury that, Where the original aggressor is not guilty of a deadly attack, but of a simple assault or trespass, the victim has no right to use deadly or other excessive force. . . . If the victim uses such force, the aggressors right of self-defense arises. [Citation][.] (People v. Quach (2004) 116 Cal.App.4th 294, 301.) This rule was at the time of defendants trial reflected in the second paragraph of CALJIC No. 5.54 (2004 Re-revision).

A court must instruct sua sponte on general principles of law that are closely and openly connected with the facts presented at trial. (People v. Ervin (2000) 22 Cal.4th 48, 90.) The trial court must include sua sponte instructions on particular defenses and their relevance to the charged offense . . . if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendants theory of the case. (People v. Wickersham (1982) 32 Cal.3d 307, 326, disapproved on other grounds in People v. Barton (1995) 12 Cal.4th 186.) However, [t]he judge is required to instruct only on general principles that are necessary for the jurys understanding of the case; the judge need not instruct, without request, on specific points or special theories that might be applicable to the particular case. (5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, 610, p. 869; see People v. Garvin (2003) 110 Cal.App.4th 484, 489.) The trial court cannot be required to anticipate every possible theory that may fit the facts of the case before it and instruct the jury accordingly. The judge need not fill in every time a litigant or his counsel fails to discover an abstruse but possible theory of the facts. (People v. Wade (1959) 53 Cal.2d 322, 334, overruled on other grounds in People v. Carpenter (1997) 15 Cal.4th 312, 381.)

Here the trial court provided the standard instructions on self-defense based on defendants version of the events, under which defendant claimed he reached for Wellss arm, but she drew back, revealing a knife in her hand. Wells then lunged at defendant and defendant grabbed her arm to prevent her stabbing him. Under these facts, we conclude the instruction regarding an original aggressors simple assault being met by deadly force from the victim is a special theory on which the trial court had no duty to instruct in the absence of a request. (People v. Bloyd (1987) 43 Cal.3d 333, 354.)

Defense counsel failed to request this instruction, but his failure to make such request was not ineffective assistance of counsel. A defendant claiming ineffective assistance of counsel under the federal or state Constitution must show both deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of a different outcome. (People v. Ochoa (1998) 19 Cal.4th 353, 414; see Strickland v. Washington (1984) 466 U.S. 668 [80 L.Ed.2d 674].) Reviewing courts defer to counsels reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance. [Citations.] [W]e accord great deference to counsels tactical decisions [citation], and we have explained that courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight [citation]. Tactical errors are generally not deemed reversible, and counsels decisionmaking must be evaluated in the context of the available facts. [Citation.] [] In the usual case, where counsels trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsels acts or omissions. [Citations.] [Citation.] (People v. Jones (2003) 29 Cal.4th 1229, 1254.)

Here defense counsel reasonably may have tactically chosen not to request an instruction that was premised on defendant being the original aggressor, a label and focus which counsel may have wanted to avoid.

C. The Trial Court Did Not Err In Failing To Instruct That Robbery Is A Forcible And Atrocious Crime

The trial court instructed the jury with CALJIC No. 5.16 that, [a] forcible and atrocious crime is any felony that by its nature and the manner of its commission threatens, or is reasonably believed by the defendant to threaten life or great bodily injury so as to instill in him a reasonable fear of death or great bodily injury. The jury was further told, [m]urder is a forcible and atrocious crime. Defendant claims the trial court should also have instructed the jury that the crime of robbery is a forcible and atrocious crime. We disagree.

While a robbery may be a forcible and atrocious crime as a matter of law in certain cases (see People v. Ceballos (1974) 12 Cal.3d 470, 478), such is not the case here. According to defendants testimony, Wells stole defendants drugs, money, and/or cell phone without any use of force or fear and, under defendants version of events, only later used the knife to scare defendant into leaving and in response to defendants attempt to get his property back. While these facts may be sufficient to establish a robbery by Wells (see People v. Cooper (1991) 53 Cal.3d 1158, 1165), it was up to the jury to decide whether the nature and the manner of [the robberys] commission threaten[ed], or [wa]s reasonably believed by the defendant to threaten life or great bodily injury so as to instill in him a reasonable fear of death or great bodily injury. (CALJIC No. 5.16.) The jury was properly so instructed under the general definition of a forcible and atrocious crime.

III.

The Trial Courts Responses To Jury Question Nos. 5, 6 and 8 On The Concept of Heat Of Passion

Section 1138 imposes upon the court a duty to provide the jury with information the jury desires on points of law. [Citation.] If, however, the original instructions are themselves full and complete, the court has discretion under . . . section 1138 to determine what additional explanations are sufficient to satisfy the jurys request for information. [Citations.] (People v. Smithey (1999) 20 Cal.4th 936, 985, fn. omitted.) Needless to say, any such additional explanations should be correct, responsive, and balanced. (People v. Moore (1996) 44 Cal.App.4th 1323, 1331.)^[4]

Defendant contends reversal is required here because the trial court provided inaccurate and unbalanced responses to several of the jurys questions during deliberations. We find no error.

A. Background To Jury Question Nos. 5, 6 And 8 And The Courts Responses

The trial court instructed the jury on voluntary manslaughter based on both heat of passion and imperfect self-defense. On the third day of jury deliberations, the jury asked for clarification of CALJIC No. 8.44 (No specific emotion alone constitutes heat of passion)^[5]especially the part dealing with felony & the feelings around it related to manslaughter[.] If a felony is about to be committed or was committed, does that negate heat of passion. (Question No. 5.) While the court and counsel were considering a response, another request was received from the jury. The jury asked, Is selling cocaine a felony? Is selling meth a felony? Is using the above or buying it a felony? Is prostitution - buying or selling a felony? (Question No. 6.)

The trial court provided the following response to these questions:

You have posed the following question:

[Question No. 5] Please clarify section 8.44, especially the part dealing with felony and the feelings around it related to manslaughter.

The fundamental inquiry in this area of the law of homicide, is whether or not the defendants reason was, at the time of his act, so disturbed or obscured by some passion - not necessarily fear or revenge - to such an extent as would render an ordinary person of average disposition liable to act rashly or without due deliberation and reflection, and from this passion rather tha[n] from judgment.

There is no specific type of provocation required by section 192 of the Penal Code, (Voluntary Manslaughter) and verbal provocation may be sufficient depending upon the circumstances of the individual case. Passion need not mean rage or anger but may be any violent, intense, high wrought or enthusiastic emotion.

[Question No. 6] With respect to question No. 6 you ask:

A. Is selling cocaine a felony? The answer is yes.

B. Is selling meth a felony? The answer is yes.

C. Is using the above or buying it a felony? The answer is yes.

D. Is prostitution - buying or selling - a felony? The answer is no, those offenses would constitute misdemeanors.

You ask if a felony is about to be committed or was committed, does that negate heat of passion?

Be advised that as a matter of law the fact that a felony is about to be committed or was committed does not, in and of itself, negate heat of passion. It is, however, one factor to take into account in the jurys determination of whether, under the totality of the circumstances, the defendant acted in the heat of passion.

A short time after receiving the courts response, the jury asked for a read-back of the testimony of criminalist Toms and the attorneys arguments. (Question No. 7.) The court reporter provided the requested read-back of testimony, but the court informed the jury that the arguments could not be read back as they were not evidence. A quarter of an hour after the completion of the read-back of Tomss testimony, the jury submitted another question asking for the definition of heat of passion. (Question No. 8.) After a further half hour of deliberations and before the court had responded to question No. 8, the jury informed the court that it was at an impasse, both as to the main charge & the weapons charge. The jury, however, continued deliberations and the trial court provided the following response to question No. 8:

[Question No. 8] You have asked for the definition of heat of passion.[]

Please be advised that this subject is addressed in your jury instructions, to wit: 8.40 which is voluntary manslaughter defined; 8.42 which is sudden quarrel or heat of passion and provocation explained; 8.43 explanation of whether or not sufficient time has elapsed for heat of passion to end i.e. the so called cooling period; 8.44 the law explaining that no specific emotion alone constitutes heat of passion.

These instructions can be found on pages 11 and 12 of your jury instructions.

Further, the court has attempted to expand on the above legal concepts in the courts previous response to your questions 5 and 6 wherein you asked for clarification of instruction 8.44 especially the part dealing with felony and the feelings around it related to manslaughter.

Additionally, heat of passion arises from some provocation. The provocation must be legally sufficient, that is, it must be the sort of provocation that would cause an ordinary, reasonable person to respond in heat of passion. Heat of passion can arise from any provocation that would arouse great anger, fear, jealousy, or other intense emotion. If the provocation is so slight that it would not arouse such an intense emotion in an ordinary, reasonable person, it is not legally sufficient.

The jury took the evening recess. The following morning the trial court read CALJIC No. 8.74 regarding unanimous agreement as to offense - first or second degree murder or manslaughter to the jury before it resumed deliberations. Around midafternoon, the jury informed the bailiff they had reached a verdict.

B. Forfeiture

Relying on the rule that a party whose counsel agrees at trial with the courts proposed response to a jury inquiry cannot later challenge the response as being too limited (see, e.g., People v. Rodrigues (1994) 8 Cal.4th 1060, 1193; People v. Medina (1990) 51 Cal.3d 870, 902), respondent contends defendant has forfeited^[6]any claims of error as a result of his trial counsels agreement and failure to seek clarification of the courts proposed response. Defendant, in his reply brief, argues he is not precluded from arguing on appeal that the trial courts response was an incorrect statement of law and that the record contains no affirmative consent by his counsel to the responses provided by the trial court, but at most a failure to object.

We need not decide whether the issues raised by defendant were forfeited because defendant argues in the alternative ineffective assistance of counsel in failing to object to the incomplete and erroneous instructions. We reach the merits.

C. AnalysisOf The Courts Responses To Question Nos. 5 And 6

Defendant first focuses on the single sentence in the trial courts response to question Nos. 5 and 6 in which the court told the jury that as a matter of law the fact that a felony is about to be committed or was committed does not, in and of itself, negate heat of passion. Defendant complains about the courts use of the word negate. Although the word was likely chosen to correspond to the jurys question that specifically asked if a felony is about to be committed or was committed, does that negate heat of passion? (italics added), defendant contends the use of the word in response incorrectly reflected the substance of CALJIC No. 8.44 and invited the jury to draw inferences favorable to the prosecution.

CALJIC No. 8.44 informs the jury that [n]either fear, revenge, nor the emotion induced by and accompanying or following an intent to commit a felony, nor any or all of these emotional states, in and of themselves, constitute the heat of passion referred to in the law of manslaughter. Any or all of these emotions may be involved in a heat of passion that causes judgment to give way to impulse and rashness. Also, any one or more of them may exist in the mind of a person who acts deliberately and from choice, whether the choice is reasonable or unreasonable. (Italics added.) Defendant claims CALJIC No. 8.44 indicates felonious intent may be considered as tending to show, not tending to negate heat of passion, thus, the simple answer to the jurys question should have been no. Instead, the trial court reversed the meaning of the instruction in a manner favorable to the prosecution by using the negative.

We agree that taken in isolation, the trial courts response that the fact that a felony is about to be committed or was committed does not, in and of itself, negate heat of passion (italics added) might suggest, erroneously, that a defendants felonious intent subtracts from the emotional equation of heat of passion. However, we do not read the sentence in isolation. Taken as a whole, the response accurately reminded the jury of the fundamental inquiry in this area and emphasized that any intense emotion can be considered as part of the referenced passion. In fact, immediately following the sentence containing the word negate, the trial courts response told the jury that felonious intent is one factor to take into account in the . . . determination of whether, under the totality of the circumstances, the defendant acted in the heat of passion. This stated the rule in the positive, not the negative, and instructed the jury to consider the totality of the circumstances. We conclude a reasonable jury would not have read the trial courts complete response as instructing it to reject heat of passion if it found defendant had a felonious intent.

Defendant, however, contends the response was also inaccurate because it told the jury that a felony, as opposed to a misdemeanor, was one factor it must consider in determining heat of passion. In focusing on felonies, CALJIC No. 8.44 and the trial courts response reasonably directed the jurys attention to crimes normally involving intense emotions, the kind of emotions which would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from passion rather than from judgment. (CALJIC No. 8.42.) However, neither CALJIC No. 8.44 nor the trial courts response purported to provide an exclusive list of the emotions to be considered in determining heat of passion. The response, when read as a whole, did not suggest the jury could not consider the intent involved in prostitution, even though it was a misdemeanor. The response specifically told the jury passion may be any violent, intense, high wrought or enthusiastic emotion. If the jury found the intent involved in the prostitution defendant claimed was happening in this case contributed to a passion as would cause the ordinarily reasonable person of average disposition to act rashly (CALJIC No. 8.42), it was not precluded by the instructions of the trial court from considering it. Moreover, in telling the jury felonious intent was one factor to take into account the trial court did not require any particular decision of the jury with respect to such intent.

As there was no error, we reject defendants next contention that the trial courts later response to the jurys request for a definition of heat of passion (question No. 8) exacerbated the error by referring the jury back to its earlier response.

D. Analysis OfThe Trial Courts Response To Question No. 8

Defendant also complains that another portion of the response of the trial court to question No. 8 told the jury that: heat of passion arises from some provocation. The provocation must be legally sufficient, that is, it must be the sort of provocation that would cause an ordinary, reasonable person to respond in heat of passion. (Italics added.) Defendant contends this statement is erroneous as the provocation necessary for heat of passion need only be such that it would cause an average person to lose reason and render him or her liable to act from passion rather than judgment. True, the California Supreme Court has stated the fundamental inquiry regarding provocation is whether it be sufficient to obscure reason and render the average man liable to act rashly. (People v. Logan (1917) 175 Cal. 45, 50.) However, the Supreme Court has also more recently stated the test for adequate, objective provocation as whether 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 (1995) 12 Cal.4th 186, 201, quoting CALJIC No. 8.42, italics added.) In a case cited by defendant, the Supreme Court not only stated that provocation must be such that an average, sober person would be so inflamed that he or she would lose reason and judgment (People v. Lee (1999) 20 Cal.4th 47, 60), but that the provocative conduct by the victim must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly . . . . (Id. at p. 59, italics added.) The trial courts response was consistent with these authorities.

Finally, defendant argues the trial courts responses were misleading and unbalanced because the trial court did not include a reminder that the prosecution had the burden of proving beyond a reasonable doubt that heat of passion was not established. The trial court instructed with CALJIC No. 8.50 regarding the prosecutions burden of proof regarding the absence of heat of passion. Nothing in the jurys subsequent questions suggested any confusion as to that burden or need for re-instruction regarding that burden. The trial court fulfilled its duty under section 1138 by addressing the issues identified by the jury.

IV.

The Trial Courts Instructions On Involuntary Manslaughter

The trial court instructed the jury that the unlawful killing of a human being without malice was manslaughter (CALJIC No. 8.37) and instructed regarding voluntary manslaughter (CALJIC Nos. 8.40, 8.42, 8.43, 8.44) and involuntary manslaughter. (CALJIC Nos. 8.45, 8.46.) The trial court instructed the jury on distinguishing murder and manslaughter through CALJIC No. 8.50 and by giving the portion of CALJIC No. 8.51 dealing with the commission of dangerous misdemeanors and criminally negligent lawful acts. The court defined assault with a deadly weapon (CALJIC No. 9.02) and misdemeanor brandishing of a weapon. (CALJIC No. 16.290.)

Defendant argues the trial courts instructions, specifically the latter portion of CALJIC No. 8.45 (Involuntary Manslaughter Defined) and the misdemeanor section CALJIC No. 8.51 (Murder and Manslaughter distinguished-Nature of Act Involved), erroneously suggested a verdict of involuntary manslaughter could not be returned if the jury found the killing of Wells occurred in the commission of felony assault with a deadly weapon, or indeed, any felony. Defendant contends the instructions, considered with the trial courts response to jury question No. 6 regarding the felony or misdemeanor characterization of the enumerated crimes, removed involuntary manslaughter from the jurys consideration if it found the killing took place during the commission of drug use or sales. We disagree.

The jury was instructed with CALJIC No. 8.45, the first part of which informed the jurors of the general principle that Every person who unlawfully kills a human being, without malice aforethought, and without an intent to kill, and without conscious disregard for human life, is guilty of the crime of involuntary manslaughter. This provided the jurors with a legally correct definition of involuntary manslaughter that they could apply in reaching their verdict. (People v. Lee, supra, 20 Cal.4th at pp. 61-62.) It encompassed defendants claimed defense that he unintentionally killed Wells under the circumstances required for a conviction for involuntary manslaughter.

Although the last part of CALJIC No. 8.45^[7]and CALJIC No. 8.51, as given,^[8]highlighted the misdemeanor and criminal negligence forms of involuntary manslaughter, the instructions did not imply there were no other methods to prove involuntary manslaughter. In this sense, the misdemeanor manslaughter instruction was merely illustrative of and not restrictive on the general theory of involuntary manslaughter. (See People v. Lee, supra, 20 Cal.4th at p. 62.) Nothing in the courts instructions suggested or even implied that this form of involuntary manslaughter was exclusive. (Ibid.)

A. Defendants Claims Of Error Regarding The Prosecutors Arguments On Involuntary Manslaughter And The Courts Response To Question No. 6 Fail

Defendant claims the jury was likely to have understood the instructions explaining involuntary manslaughter as precluding an involuntary manslaughter conviction if the killing occurred at a time when appellant was committing any felony (capitalization omitted) because of the prosecutors arguments and the trial courts response to question No. 6, quoted ante. Although we agree the prosecutor made erroneous statements regarding the law of involuntary manslaughter, we do not conclude the jury would likely have understood those comments to change the instructions given by the court. Nor do we view the trial courts response to question No. 6 as having any likely influence on the jurys decision regarding involuntary manslaughter. It was clearly asked in connection with the jurys consideration of voluntary manslaughter and the doctrine of heat of passion.

With respect to defendants argument regarding the prosecutors comments, the reporters transcript reflects the prosecutor stated, in the course of his description of the law regarding involuntary manslaughter, that an unlawful killing was still required and that the unlawful killing had to have occurred in the course of an unlawful act, but not a felony -- an unlawful act which is a felony, then youre not in this realm. (Italics added.) Later the prosecutor made the following argument:

[F]or it to be involuntary manslaughter, we have to have either a lawful act then with high risk, or a lawful act that has a high risk of danger done without due caution and circumspection.

Now, if [defendant] is the one who, over drugs, over money, over sex, over cell phone, over whatever, is pulling out a knife and going after [Wells] with a knife, that is not a lawful act. So we can forget about the due caution and circumspection because that is flat not a lawful act.

Okay. So that one possible alternative for involuntary manslaughter is not there.

So the other thing, an unlawful act not amounting to a felony, in other words, some misdemeanor was committed which was dangerous to human life in the circumstances in which it was done in this case, he did that without these other things, and that would be another way of getting to involuntary manslaughter.

Now, the trouble with this is that the unlawful act that he engages in is not a misdemeanor. If all he did was take out the knife and display it or exhibit it, okay, you know, that would be something which is sometimes called exhibiting a deadly weapon or brandishing a deadly weapon, and that is a misdemeanor. And that might be okay.

But he did more than that, because he went after her with the knife. She sustained three wounds. Thats not just displaying or exhibiting a deadly weapon in a rude manner. Thats assault with a deadly weapon. Thats a felony.

Since its a felony, it doesnt check this box. And so we also have some of these things up here, because we have either the conscious disregard for human life or the intent to kill, which will also