Rabbiosi
Filed
11/15/13 P. v. Rabbiosi CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
CHRISTOPHER ANTONE RABBIOSI,
Defendant and
Appellant.
F064055
(Super.
Ct. No. 1251118)
APPEAL from
a judgment of the Superior Court of
County. Ricardo Cordova, Judge.
Patricia L.
Brisbois, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Charles A. French and Caely E.
Fallini, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Shawnee Butler died from a
gun in defendant’s control. Defendant argues
the prosecution failed to prove the absence of heat of passion. He also contends the prosecutor prejudicially
misstated the law on heat of passion. We agree the prosecutor misstated the law
during closing argument, but hold that
no prejudice resulted. We disagree with
the remainder of defendant’s contentions, and affirm.
FACTS
A jury convicted Christopher Antone
Rabbiosi (defendant) of murder (count I – Pen. Code, § 187, subd. (a)
and two counts of assault with a deadly
weapon (counts II & III – § 245, subd. (a)(1).) The jury found defendant did not act
intentionally, deliberately and with premeditation. The jury found defendant did personally and
intentionally discharge a firearm and proximately cause death to another
person. (§ 12022.53, subd. (d).) Defendant was sentenced to an aggregate term
of 42 years to life.
Shawnee
Butler (Shawnee) left her husband Jerry Butler (Jerry) in 2008 for defendant. Shawnee and defendant traveled to Arizona,
then Oklahoma together. Shawnee called
Jerry from Oklahoma and asked for help to withdraw money from a joint account. Jerry testified that he complied and wired
approximately $15,000 to Shawnee in Oklahoma.
Shawnee was with defendant in
Oklahoma for approximately one month. When
Shawnee and defendant returned, Jerry let them live in his house which was
being foreclosed.
A week or two before the shooting, Shawnee’s
sister Gina heard defendant speaking to Shawnee on a telephone call. Gina heard defendant say he would pay Shawnee
back for money he owed her from the Oklahoma trip.
On the morning of September 18,
2008, Shawnee’s stepson Jeremy left a message on defendant’s phone intending to
scare him. In the message, Jeremy said:
“Hey, this is
coming from a concerned party on Shawnee’s side. I’m gonna tell you something, Bud. You better have that money in hand tonight. There’s gonna be consequences. I’m not talking about the law. I’m not talking about anything like that. I’ll take the fucking law in my own hands
motherfucker. You don’t know who I am;
you don’t need to know who I am. I know
who you are. I know where you work. I know where you sleep. I know where you lay your head at night, Bud. I followed you. So don’t fuck with me. Don’t fuck with my family. Don’t fuck with Shawnee. I will fuck you up. I will be your worst nightmare, Bud. Chris Rabbiosi, you motherfucker. You’re gonna fuck with my family, if you’re
gonna fuck with us, I will fucken kill you. You motherfucken[]. You understand me? You better fucken have some money in her hands
tonight. I swear to God on my life I
will fucken rip your balls off, Dude. I
will fuck you up Chris. Have some money
tonight, Bro. If you don’t, I swear to
God there’s gonna be consequences. You
just better not even fucken go home tonight, Bud. You better fucken be on your way to fucken
Oklahoma, fucken wherever you go. Go to
San Francisco you gay motherfucker. Just
get the fuck outta town if you don’t have the money tonight. That’s all I gotta say. Peace.â€
Gina had also left a voicemail for
defendant that day. She said that if
defendant did not have Shawnee’s money, they would go to the police. The message concluded with, “The shit stops
her [sic] and now. I have dealt with people like you before and I
know how to get rid of ya. If I really
have to send the police, believe me you will be dealt with. Good-bye.â€
At around 10:30 p.m. the same day
(September 18), Shawnee called Jerry. Shawnee
told Jerry she was going to meet defendant near his mother’s house so that he
could give her a check. Shawnee told
Jerry that if he did not hear from her in 30 minutes, “something went wrong.†Jerry told Shawnee to carry her cell phone and
leave it on. Jerry thought something was
“fishy†because the meeting was late at night.
After about 40 minutes, Jerry tried
to call Shawnee. The call went “straight
to her voice mail.†Jerry left his shop
and went looking for Shawnee and defendant. Jerry was accompanied by his son, Charlie, and
an employee. Jerry drove by defendant’s
mother’s residence and saw Shawnee in her “Tahoe.â€
Jerry testified that he “got a real good
look at her, and she looked real scared, so [Jerry] knew again something wasn’t
right.†Jerry made a U-turn and said he
wanted to follow the vehicle “because something’s going on.†However, Jerry lost track of the vehicle and
returned to his shop.
Jerry and Charlie again went back
to look for Shawnee and defendant. Jerry
drove his white, lifted pickup truck and Charlie rode as a passenger. They returned to the same area where they had
seen Shawnee earlier. Charlie saw the
parked Tahoe and said, “There they are.†Jerry drove up to the Tahoe. When asked how fast he was driving as he
approached the Tahoe, Jerry testified: “Slow.
Twenty miles an hour, 15 miles an hour,
slow.†Jerry held his “bright lights†on
“for a few seconds†to “get a good look to see what was going on in the car.†He saw Shawnee, who “had the most terrified
look on her face I’ve ever seen ever [sic]
in 23 years.†He also saw defendant
“looking down, leaning down in the floorboard.â€
Before Jerry stopped his vehicle,
he observed Shawnee hold up her hand. As
soon as Jerry put his truck into park, he heard a gunshot. Charlie said, “Dad, that’s a gunshot.†Jerry jumped out of his truck. Defendant was outside of the Tahoe and yelled,
“Get the hell out of here.†Defendant was
holding a gun up towards the sky. Jerry
said, “Fuck you, motherfucker. You’re
pretty tough with that gun.â€
Jerry looked over and saw Shawnee
with her head down. He ran for the Tahoe
and was going to open the door. Before
he could, defendant said, “Fuck you, motherfucker. You’re a bitch.†Defendant pointed his gun over the hood of the
car and aimed it at Jerry. Jerry ducked,
then started running. Defendant chased
Jerry around the car. Then Charlie
exited the pickup truck and said, “Chris [i.e., defendant], what the hell are
you doing? We’re just here to see --
check on my mom.†Defendant started
walking towards Charlie with the gun pointed at Charlie. Jerry told Charlie to run. Jerry himself opened the door to the Tahoe and
saw blood everywhere. Shawnee had been
shot and was dying.
Jerry said, “You motherfucker. You
shot Shawnee.†Defendant responded, “Fuck
you.†Jerry told Charlie to call 911. Charlie had gotten back into the pickup truck
and Jerry thought Charlie was a “sitting duck.†So, Jerry started saying obscenities to
defendant. Defendant resumed chasing
Jerry.
After hearing her dog barking,
Sheila Purser exited her nearby home. Charlie
told her to call 911 because defendant had shot his mother. Defendant “froze†and looked like a “[d]eer in
… headlights.†Then he ran away.
Shawnee died from the gunshot wound
to the head. The bullet entrance wound
was on her forehead.
name="_ftnref4" title="">[4]
Defense
Case
Defendant testified. He was asked, “What was Shawnee’s attitude
about the money at the time when you were in Oklahoma?†Defendant responded, “The time in Oklahoma,
everything was ours. It wasn’t hers and
mine. We were starting a life together,
so it was always conveyed to me that everything was just ours. The truck was ours. The money was ours. We were sharing everything.†But, after Shawnee began having problems with
her family regarding the money, defendant felt “an obligation to her because
some of this money was spent on [him].â€
On the morning of the shooting,
defendant received the voicemails from Gina and Jeremy.
The messages made him “fearful†for his
safety and his family’s safety. He
wanted to know who left the messages so he would know who to “watch out forâ€
and to warn his parents. Defendant
planned to contact police the next day regarding the messages.
Defendant spoke with Shawnee the
day of the shooting. She wanted to meet
with him. He reluctantly agreed so they
could discuss the money and the threats. Defendant did not agree to give her the money
that night.
Defendant brought a gun because he
thought “something bad was going to happen.†There were four bullets in the gun, though the
gun could have carried “five or six†bullets in the magazine and one in the
chamber. Shawnee picked him up in her
Tahoe at about 11:30 p.m.
Shawnee initially parked the Tahoe,
but eventually began driving around because she did not like being parked in
that location. They drove around for
“close to half an hour†and discussed their failed relationship, the phone
messages and the money.
Defendant noticed Shawnee was
acting nervous and “kind of fidgety a little bit.†She had her left hand in the pocket of her
large “hoody†sweatshirt. She was
looking around at cars and defendant “got the feeling she was looking for
somebody.†Defendant got so
uncomfortable that he asked Shawnee to take him home. Unexpectedly, Shawnee pulled over and parked
the Tahoe.
Within a few minutes, a “big truck
jacked up high [came] flying down [the street] right at [them], right at the
driver’s door.†The truck flashed its
high beams and pulled in front of the Tahoe, “kind of†blocking it in. Defendant “started kind of thinking†he had
been “set up†and was “under attack.†Defendant
pulled his gun out of his pocket and “sort of†pointed it at the truck. He thought he saw someone come out of the
truck. Shawnee made a “weird†movement
to her pocket “like sh[e was] grabbing for something.†Defendant thought she was “armed†and about to
shoot him. “[I]t felt like … I was under
attack, and she was participating in that attack, and I just kind of panicked,
and the gun just went off.â€
Defendant immediately got out of
the Tahoe. He did not realize the man
outside was Jerry. Defendant thought the
man was there to attack him. Defendant
eventually saw Charlie. Defendant
realized that Charlie and Jerry were not armed and there was no more threat, so
he ran home.
Defendant’s wife drove him to his
grandfather’s ranch in Patterson. Defendant
testified that he was “suicidal†during the car ride. His wife urged him to turn himself in, not to
commit suicide. Eventually, he did turn
himself in the morning after the shooting.
Defendant apparently described the
shooting to officers as “a point and shoot.â€
Defendant also told detectives that
Shawnee “would never hurt anyone.â€
Defendant testified to phone calls
he had from jail after the shooting. In
one call, defendant said “I’ll forever be sorry for this.†A couple days before testifying at trial,
defendant said to his mother that “we’ve all made our choices and we must live
with them.â€
title="">[7]
On cross-examination, defendant
testified that he was concerned while in the Tahoe, yet he stayed in the
vehicle. He also testified that after
having received the voicemails from Jeremy and Gina on the 18th, defendant went
to his storage unit to retrieve items to sell, went to McDonald’s, his father’s
house and the movie theater with his family.
Jury
Instructions on Count I
As to Count I, the jury was
instructed, inter alia, as to first and second degree murder, self-defense,
voluntary manslaughter due to sudden quarrel or in the heat of passion, and voluntary
manslaughter due to imperfect self-defense.
DISCUSSION
On appeal, defendant claims the
prosecution failed to prove the absence of heat of passion beyond a reasonable
doubt. We disagree. We also disagree with defendant’s assumption
that the prosecution in this case was required to prove the absence of heat of
passion.
HEAT OF PASSION.
“The mens
rea element required for murder is a state of mind constituting either express
or implied malice. A person who kills
without malice does not commit murder. Heat
of passion is a mental state that precludes the formation of malice .…†(People
v. Beltran (2013) 56 Cal.4th 935, 942 (Beltran).)
“Heat of passion arises when ‘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 (1995) 12 Cal.4th 186, 201.) Thus, heat of passion has a subjective and an
objective component. (
549 (Moye).) “‘“To satisfy the objective or ‘reasonable
person’ element … the accused’s heat of passion must be due to ‘sufficient
provocation.’â€â€™â€ (Ibid.) “To satisfy the
subjective element … the accused must be shown to have killed while under ‘the
actual influence of a strong passion’ induced by such provocation.†(Id. at
p. 550.)
II.
HEAT OF
PASSION WAS NOT “PROPERLY PRESENTED.â€
The Due
Process Clause of the federal Constitution “requires the prosecution to prove
beyond a reasonable doubt the absence of the heat of passion on sudden
provocation when the issue is properly
presented in a homicide case.†(
704, italics added (Mullaney); see
also People v. Rios (2000) 23 Cal.4th
450, 461-462 (Rios);
212, 223; U.S. v. Roston (9th Cir.
1993) 986 F.2d 1287, 1290.) “[U]nless it
appears from the prosecution’s case that the killing was committed in the heat
of passion and upon sufficient
provocation[,] the burden is on the defendant to raise a reasonable doubt in
the minds of the jurors that malice was present.â€
v. Sedeno (1974) 10 Cal.3d 703, 719, italics added, overruled on other
grounds by People v. Breverman (1998)
19 Cal.4th 142, 148-149 & People v.
Flannel (1979) 25 Cal.3d 668, 684-685, fn. 12, superseded by statute on
another point as stated in In
S. (1994) 7 Cal.4th 768, 777; accord
As we explain, although there was
some evidence adduced at trial regarding the objective component of heat of
passion – sufficient provocation, there was no evidence of the subjective
component: that defendant was actually
under the influence of a strong passion when he shot Shawnee.
As previously stated, defendant
testified that after Shawnee had picked him up, he noticed she was acting
nervous and “kind of fidgety a little bit.â€
She had her left hand in the pocket of her large “hoody†sweatshirt. She was looking around at cars and defendant
“got the feeling she was looking for somebody.†Defendant got so uncomfortable that he asked
Shawnee to take him home. Unexpectedly,
Shawnee pulled over and parked the Tahoe. Then, a pickup truck came “flying down†the
street, flashed its high beams, and pulled up next to the Tahoe, “block[ing]â€
him in. Defendant thought he had been
“set up.†Defendant saw Shawnee grabbing
for something and thought she was participating in the attack.
There was, therefore, evidence
defendant thought his former mistress, the woman he still “loved,†had tricked
him and planned to hurt him. We need not,
however, conclude whether this evidence was sufficient to “properly presentâ€
the objective component of heat of passion, for there was no evidence regarding
the subjective component. “It is not
enough that provocation alone be demonstrated.
There must also be evidence from which it can be inferred that the
defendant’s reason was in fact
obscured by passion at the time of the act.
[Citations.]†(
italics added.)
In describing the shooting, defendant
testified the “the gun just went off.†Defendant
further testified that after he told detectives his version of events, they did
not believe him. “They said they thought
I shot her because I was mad, and that I shot her on purpose because I was mad,
because I thought … she set me up and I was mad and that’s why I shot her. That was their whole thing.†“I told
them that was not correct, that the shot was fired because I was in fear for my
life.†(Italics added.)
Here, “nothing in the record,
including defendant’s own narrative of events leading up to the homicide,
suggested he was actually, subjectively, under the influence of a ‘strong
passion’ .…†(Moye, supra, 47 Cal.4th
at p. 552.) “[T]he evidence actually
introduced on the point – the defendant’s own testimony – was to the contrary.â€
(Id.
at p. 554.)
“In short, the thrust of defendant’s
testimony below was self-defense .… There
was [no substantial] evidence at the close of the evidentiary phase to
establish that defendant ‘actually, subjectively, kill[ed] under the heat of
passion.’ [Citations.] The only testimonial evidence on the point,
substantial or otherwise, came from defendant himself .… His only claim was that he acted out of
self-defense .…†(
Therefore, without deciding whether
the evidence might arguably have supported an inference of “‘“sufficient
provocationâ€â€™â€ (Moye,
evidence did not suggest “the killing was committed in the heat of passion†(
at p. 719). The issue of heat of passion
was not “properly presented†and the prosecution was not required to prove its
absence.
EVEN IF
HEAT OF PASSION HAD BEEN “PROPERLY PRESENTED,†THE
SUPPORTED BY SUBSTANTIAL
Even if the heat of passion issue
had been properly presented, we conclude the evidence was sufficient to support
the jury’s implied malice finding. (See
350.)
Defendant claims the prosecution
“failed to prove [the] absence of provocation†(People v. Bloyd, supra, 43 Cal.3d at p. 349). Such claims are without merit where (1) the trial
court properly instructed on voluntary manslaughter and heat of passion or
sudden quarrel, and (2) sufficient evidence supported the jury’s finding of
malice. (See id. at p. 350.) Here, defendant
does not challenge the trial court’s instructions on voluntary manslaughter due
to sudden quarrel or heat of passion.
And, as we identify below, sufficient evidence supports the jury’s
implied finding of malice.
Defendant testified he brought the
gun to meet with Shawnee because he thought “something bad was going to
happen.†Yet, there were only four
bullets in the gun, when it could have carried “five or six†bullets in the
magazine and one in the chamber.
Defendant testified that he
“guess[ed]†he described the shooting to officers as “a point and shoot.â€
And perhaps the most persuasive
evidence supporting the jury’s implied finding of lack of heat of passion is
defendant’s testimony regarding his conversation with officers. As discussed above, defendant testified that
police officers thought defendant killed Shawnee because he was mad that she
had apparently set him up. Defendant
testified he told them that was not
correct.
In sum, “[e]ven if defendant’s
testimony provided some evidence of provocation for the jury to consider, it
remains the jury’s exclusive province to decide whether the particular facts
and circumstances are sufficient to create a reasonable doubt as to whether the
defendant acted under a heat of passion. [Citations.] Here, the jury was properly instructed on
passion or sudden quarrel. They found
malice, and we conclude the evidence is sufficient to support the finding.†(People
v. Bloyd, supra, 43 Cal.3d at p. 350.)
PROSECUTORIAL ERROR.
Defendant
claims the prosecutor prejudicially misstated the law during closing and
rebuttal argument. We hold defendant forfeited
this claim. Moreover, any error was
harmless.
Defendant forfeited his claim of prosecutorial error.
“When a defendant believes the
prosecutor has made remarks constituting misconduct during argument, he or she
is obliged to call them to the court’s attention by a timely objection. Otherwise no claim is preserved for appeal. [Citation.]
[¶] Defendant made no objection
to the prosecutor’s remarks and thus [forfeited] his claim. His appeal is foreclosed on that basis. Moreover, even if the claim had not been [forfeited],
it would lack merit.†(
43-44.)
prosecutor misstated the law during closing argument
In closing argument, the prosecutor
stated: “[I]n order to get to voluntary
manslaughter, the defendant has to be provoked. And here provocation, if the defendant acted
rashly and under the influence of intense emotion that obscured his reasoning
or judgment. That’s not Christopher’s
standard. You need to look at a
reasonable standard. What would the
average person do in that situation?â€
Later, she said: “A defendant is not permitted to set up his or
her own standard of conduct. You don’t
look to see what he told you about it. You
look to the average person. What would
the average person do? You must decide
first was he provoked, and then would an average person have been provoked in
that situation? And how would that
person react in that same situation knowing the facts?â€
The prosecutor’s hypothetical question
regarding provocation is arguably consistent with the law, assuming the
prosecutor used the word “provoked†to have a certain, specialized
meaning. It would not have been
erroneous to encourage the jury to determine whether defendant was “provokedâ€
in the sense of being actually “‘disturbed or obscured by some passion.’†(Beltran,
supra, 56 Cal.4th at p. 939.) Nor would it have been incorrect to suggest
the jury should determine whether an average person would have been “provokedâ€
in the sense of being “induced to react from passion and not from judgment.†(Ibid.)
But, the prosecutor’s hypothetical
question regarding what “the average person [would] do [in that situation]†adds
another, incorrect prong to the analysis. It asks how a reasonable person would have
acted in defendant’s position. “[P]rovocation
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.†(Beltran,
supra, 56 Cal.4th at p. 949, original
italics.) Here, the prosecutor’s
statements effectively “suggest[ed] that the jury should consider the ordinary
person’s conduct and whether such a person would kill.… [T]his was not the correct standard.†(Id. at
p. 954, fn. omitted.)
The prosecutor did not misstate the law during
rebuttal argument.
Defendant also claims the
prosecutor misstated the law during rebuttal argument.
During rebuttal argument, the
prosecutor said: “You cannot look to
what Christopher did or how Christopher acted. How would the reasonable person act? And that’s not what the reasonable person
would do. They would not reach around
towards the back and shoot her practically between her eyes.â€
“The
prosecutor’s brief comment must be considered in context.†(People
v. Collins (2010) 49 Cal.4th 175, 233.) Here, the context is unclear as to whether the
prosecutor was discussing a rubric for considering heat of passion or perfect
self-defense.
title="">[11]
The prosecutor’s statements criticized
by defendant are immediately preceded by the following:
“The
defense talked about voluntary manslaughter, imperfect self-defense, absolute
self-defense. In order for you to find
that the defendant, Christopher, acted in complete self-defense, you have to
understand and believe that he used no more force than reasonably necessary. He shot her in the head point blank, and he
didn’t even shoot the threat. He shot
someone else. [¶] Also, belief in future harm is not
sufficient, and that’s the reasonable person standard. [¶] In
this self-defense issue we’re talking about, what would a reasonable person do.
If you were in a vehicle, you got a
nasty phone call earlier that morning, you’re here with someone you’ve been
having an affair with, you have feelings for, you’ve embraced, you said she
never tells a lie. [¶] Reasonable person. When you see a truck pull up, reasonable
person would probably think oh, wow, there’s going to be a traffic collision. Oh, wow, this car is flying in front of me. There’s a drunk driver in front of me. No. Reasonable
standard, ladies and gentlemen.
how Christopher acted.…†(Italics added.)
However, immediately
prosecutor stated:
“If
for some reason you find that there’s not enough evidence or you believe
there’s some provocation to Christopher, I would urge you to agree on second
degree murder, but please don’t blame the victims. Please don’t blame the Butler family, and
please use your common sense and bring justice for Shawnee. And that would result in a murder conviction,
whether it be first degree, which I think we’ve proven beyond a reasonable
doubt, but if you believe there’s some provocation like the jury instruction
explained, use that provocation to go to second degree. There’s no other option, ladies and gentlemen.
Thank you.â€
If the
prosecutor’s statement challenged by defendant was intended to offer the jury a
framework for analyzing heat of passion, it was incorrect. (See generally Beltran, supra, 56 Cal.4th 935.)
The same reasoning applies from the analogous closing argument we
analyzed earlier. (See §
However, if the prosecutor’s
comment was made in the context of discussing perfect self-defense, it was a
correct statement of law. In evaluating
a claim of self-defense, the jury must “consider all the ‘“‘facts and
circumstances … in determining whether the defendant acted in a manner in which
a reasonable man would act in protecting his own life or bodily safety.’â€â€™â€ (People
v. Humphrey (1996) 13 Cal.4th 1073, 1083, italics omitted.) The ultimate question “is whether a reasonable
person … would believe in the need to kill to prevent imminent harm.†(Id. at
p. 1087, italics omitted.) Therefore,
the correctness of the prosecutor’s statement of the law hinges on whether she
was discussing perfect self-defense or heat of passion.
“‘[A] court should not lightly
infer that a prosecutor intends an ambiguous remark to have its most damaging
meaning or that a jury, sitting through [a] lengthy exhortation, will draw that
meaning from the plethora of less damaging interpretations.’†(People
v. Tully (2012) 54 Cal.4th 952, 1048, quoting Donnelly v. DeChristoforo (1974) 416 U.S. 637, 647.) Accordingly, and for the reasons explained
below, we find it more plausible that the prosecutor was discussing
self-defense, rather than heat of passion, when she made the comments defendant
criticizes. Therefore, the prosecutor’s
statement was not an incorrect statement of law, as explained above.
The subsequent sentence, which
mentions provocation, was made near the end of the prosecutor’s rebuttal
argument.
title="">[12]
The sentence references not only
provocation but also a potential conclusion by the jury that some portion of
the prosecution’s case lacked “enough†evidence. Thus, it is more reasonable to interpret this
sentence as the prosecutor’s rhetorical pivot towards a broadly themed
conclusion, rather than a continuation of a topic being discussed immediately
prior.
Additionally, it is clear that
immediately before the subject statement, the prosecutor is discussing perfect
self-defense. She quite plainly says, “
about, what would a reasonable person do.†(Italics added.) There is no intervening language that
suggests she has changed topics to discuss heat of passion by the time she
utters the comments condemned by defendant.
We conclude the prosecutor’s
comments can be reasonably construed as a correct statement of law.
The prosecutor’s error was harmless.
Even if the prosecutor misstated
the law on rebuttal, any error was harmless. And
while the prosecutor did misstate the law during closing
argument, that error is also harmless.
First, as referenced in our
discussion of the proper presentment of heat of passion under
defendant actually killed in the heat of passion.
Moreover, the court instructed the
jury as follows: “If you believe that
the attorneys’ comments on the law conflict with my instructions, you must
follow my instructions.†This
instruction “told jurors to ‘follow the law’ as stated by the court. We assume the jury abided by the court’s
admonitions and instructions, and thereby avoided any prejudice.†(People
v. Stitely (2005) 35 Cal.4th 514, 559; accord People v. Boyette (2002) 29 Cal.4th 381, 436.)
DISPOSITION
The judgment is affirmed.
_____________________
DETJEN,
J.
WE CONCUR:
_____________________
KANE, Acting P.J.
_____________________
POOCHIGIAN, J.
name="_ftn1" title="">[1]
All subsequent statutory
references are to the California Penal Code unless otherwise noted.
name="_ftn2" title="">[2]
Documentary evidence suggested
the actual amount was $9,916.72.
