Filed 5/20/22 P. v. King CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Thomas Rubinson, Judge. Affirmed as modified.

Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill, Supervising Deputy Attorney General, and Heidi Salerno, Deputy Attorney General, for Plaintiff and Respondent.

By information, defendant and appellant Kurtis Tyron King was charged with first degree murder (Pen. Code, § 187, subd. (a))[1] in connection with the killing of John Bannon. The information also alleged that defendant personally used a deadly and dangerous weapon, a knife, during the commission of the murder (§ 12022, subd. (b)(1)). In December 2019, defendant was convicted as charged and sentenced to 25 years to life for murder, plus a consecutive one-year term for the weapon use enhancement.

On direct appeal from his judgment of conviction, defendant contends the appellate record is inadequate to permit meaningful review. He also challenges the sufficiency of the evidence supporting his conviction for first degree murder, and contends the court committed three errors when instructing the jury. Finally, he requests that we correct his abstract of judgment as to fines, fees, and assessments. We agree that the abstract of judgment must be corrected, but otherwise reject defendant’s contentions and affirm the judgment as modified.

FACTUAL BACKGROUND

1. Prosecution Evidence

A. The Stabbing of John Bannon

Around 6:00 a.m. on January 10, 2018, Lizeth Medina began her shift as a cashier at a North Hollywood 7-Eleven convenience store. Also working that morning was Rajinder Singh. Medina testified that shortly before 9:00 a.m., a man wearing a backpack, later identified as John Bannon, walked into the store, asked to purchase a pizza, and waited while the food was being prepared. Bannon paid for the pizza, walked out of the 7-Eleven, and placed his box of pizza atop a trash can located next to the storefront doors.[2] Bannon stood outside and began eating his pizza.

According to Los Angeles Police Department Detective Eloy Navarro, around 9:00 a.m. surveillance footage of the outdoor area of the convenience store and adjacent parking lot captured defendant parking his white sedan in a parking stall “pretty close to Mr. Bannon.” Wearing dress pants, a jacket, and red shirt, defendant got out of the driver’s side door and walked into the store. After purchasing a pack of gum from Medina, defendant walked through the storefront doors. Detective Navarro testified that surveillance footage captured defendant stepping into his car, and Bannon engaging “the person in the vehicle in conversation.” Then, at some point, surveillance footage captured defendant and Bannon engaging in a physical altercation (which we describe in greater detail below). The surveillance footage, which was played for the jury, did not capture audio. Medina never heard Bannon yell or say anything to defendant.

At some point, Singh told Medina that “something really bad” had happened outside. Medina walked outside and found Bannon laying on the ground. He was breathing heavily and was non-responsive. After noticing blood next to Bannon’s body, Medina ran back to the store and called 911.

B. Defendant’s Arrest and Jailhouse Interview

Detective Navarro and several officers responded to the 7-Eleven between 9:00 and 9:30 a.m. During a search of the area outside the convenience store, Detective Navarro located a backpack that contained an EBT card and bottles of medication for schizophrenia and bipolar disorder in Bannon’s name; a toothbrush, toothpaste, and deodorant; and a written referral for a mental health facility. Detective Navarro also located Bannon’s body, which had sustained stab wounds to the upper chest, a defensive wound penetrating the left hand, and another defensive wound to the right leg. It was later determined that Bannon died of two independently fatal stab wounds to his chest: one severing the right lung; the other penetrating his heart. Investigating officers did not locate a weapon. Detective Navarro identified defendant as a suspect by tracing the license plate number of defendant’s white sedan shown in the surveillance video.

The following day, Detective Navarro and several officers executed a search warrant for defendant’s vehicle and home. Inside defendant’s room, officers located a pair of bloody pants. It was later determined that Bannon’s DNA matched the profile obtained from the pants. When searching defendant’s vehicle, officers located a black briefcase on the rear passenger compartment floorboard. Inside the briefcase was a five-inch “tanto blade” (described as a double-sided knife) and plastic sheath. Officers also located bloodstains on the outside driver’s side door handle, steering wheel, gear shift, and center console. Defendant was arrested at his home.

At the police station, Detective Navarro and his partner interviewed defendant. The interview, which was audio and video recorded, was played for the jury. When asked why he thought he was in police custody, defendant, who identified himself as “black Spanish,” replied that it could be due to an incident where he got into a fight with a “very belligerent” and “[m]entally ill” man the day before.

Defendant continued: “Something that happened. Well, a guy antagonized me, and we got into a fight. He really antagonized me. He, he screamed insults. Um, I don’t even know the guy, you know. I don’t know the guy at all. And uh, got out the car, screaming at me, called me all kinds of names, obscenities, and uh, went inside 7-Eleven, thought he would calm down. Came out, and he got, he had gotten worse; he just, ‘Fuck you, fuck you, fuck you. Nah nah, can’t stand you, you’re a piece of shit.’ I’m like, what—okay, I need to calm down. This is not a good day for me. [¶] . . . [¶] So, I get into the car . . . [¶] . . . [¶] And I said, maybe he’ll calm down. He says, ‘Yeah, I’m talking to you. Fuck you.’ I’m like—so I got into the car, closed the door, and I could still hear him [from about 20 feet away] with the door, with the window up. [¶] . . . [¶] Um, and he [(Bannon)] says, ‘Yeah, I’m talking to you. I’ll fuck you up, you black nigger.’ [¶] . . . [¶] Yeah. That hurt.^[[3]] [¶] . . . [¶] So, I said, ‘Oh God,’ I mean, I said—and I had the car started. So, I said, and my, and my job is right down the street. I said well, I go down the street and forget about it, so I parked the car.^[[4]] I was like, ‘Oh, I can’t take it. I’m going to.’ So I got out and beat the guy up.”

2. [i]Defense Evidence

Defendant did not call any witness or present evidence on his behalf.

DISCUSSION

1. Use of a Settled Statement Did Not Violate Due Process

Because the record on appeal does not contain a reporter’s transcript of the prosecutor’s opening argument to the jury following the close of evidence, defendant contends that the record on appeal is inadequate to permit meaningful review, and that a settled statement certified by the trial court is inadequate to cure the inadequacy. We disagree.

1. Relevant Background

The reporter’s transcript on appeal includes the pretrial proceedings, opening jury instructions, opening statements by the prosecution and defense, the entirety of trial testimony, and the parties’ discussion regarding relevant jury instructions. The reporter’s transcript also includes a portion of the court’s final jury instructions after the close of evidence, the defense closing argument, and the prosecution’s rebuttal closing argument. Copies of the written instructions presented to the jury are in the clerk’s transcript, along with the court’s minute orders, the judgment, and the notice of appeal.

Defendant filed, and this court granted, a request to settle the record “regarding the complete reading of the jury instructions to the jury and the opening closing argument of the prosecutor.” We directed the trial court to prepare a settled statement of these proceedings.

Thereafter, defense trial counsel and the prosecutor signed and submitted a “Stipulation to Settled Statement,” which was certified by the trial court.[5] In their stipulation, the parties agreed that due to a software malfunction, the court’s reading of the jury instructions and the prosecutor’s opening closing argument were not “transcribed or maintained, and the data is not recoverable.” However, the parties stipulated that the set of written jury instructions “were in fact read to the jury as they appear in print. [¶] There were no objections by either trial counsel to the giving of these instructions, nor were there any requests for additional instructions.”

The stipulation also provided: “It is not possible to re-create the prosecutor’s opening closing argument, as she did not write it out in advance. However, she did utilize a PowerPoint presentation to accompany her argument, and the parties stipulate that the attached printout of the PowerPoint accurately reflects the content of the PowerPoint.”

The stipulation attached copies of the written jury instructions and of the PowerPoint slides. It explained that certain slides depicted the playing of defendant’s interview with police, contained a discussion of the law, and presented an “amplif[ication of the prosecutor’s] discussion of some of the physical evidence” during opening closing argument.

2. Analysis

Contrary to defendant’s contention, the record on appeal is adequate to permit meaningful review. (See People v. Young (2005) 34 Cal.4th 1149, 1170 [criminal defendants are constitutionally entitled to an appellate record adequate to permit meaningful review].) “An appellate record is inadequate ‘only if the complained-of deficiency is prejudicial to the defendant’s ability to prosecute his appeal.’ [Citation.] The defendant bears the burden of demonstrating that the record” is inadequate. (Ibid.; see § 1181, subd. 9.) Inconsequential inaccuracies or omissions are insufficient to demonstrate prejudice. If the record can be reconstructed with other methods, such as settled statement procedures, the defendant must employ such methods to obtain appellate review. The inability to settle a portion of the record “does not per se require a new trial. [Citation.] The burden is on the appellant to show that the omissions are ‘substantial’ and ‘consequential [citation],’ and that the omissions prevent meaningful appellate review.” (People v. Bills (1995) 38 Cal.App.4th 953, 959 (Bills), citing People v. Chessman (1950) 35 Cal.2d 455, 462; People v. Cummings (1993) 4 Cal.4th 1233, 1333, fn. 70; People v. Howard (1992) 1 Cal.4th 1132, 1165; People v. Pinholster (1992) 1 Cal.4th 865, 921, disapproved on another ground in People v. Williams (2010) 49 Cal.4th 405.)

As noted in Bills, decisions reversing convictions because of an inadequate record have all “involved very substantial omissions, such as all (People v. Jones (1981) 125 Cal.App.3d 298 [(Jones)]; People v. Serrato (1965) 238 Cal.App.2d 112) or a large portion (In re Steven B. (1979) 25 Cal.3d 1 [(Steven B.)]) or a crucial portion (People v. Apalatequi (1978) 82 Cal.App.3d 970 [(Apalatequi)]) of the reporter’s notes, or a crucial item of evidence. (In re Roderick S. (1981) 125 Cal.App.3d 48.)” (Bills, supra, 38 Cal.App.4th at p. 959.)[6]

By contrast, the record here is virtually complete. It contains the pretrial proceedings, the evidentiary portion of the trial, the written instructions given to the jury, and the sentencing proceedings. The only missing portions of the record pertain to part of the court’s reading of the written jury instructions, and the prosecution’s opening argument. The missing portions have no meaningful effect on the ability to assess the presence of error.

The settled statement establishes that the court “read to the jury [the written jury instructions] as they appear in print,” and that no objection or request for additional instructions was made. (See Cervantes, supra, 150 Cal.App.4th at p. 1121 [adequacy of a settled statement determined in part by defense counsel’s ability to assist in reconstructing the record].) Further, the settled statement contains the PowerPoint presentation used by the prosecutor in her closing argument, which covered selected portions of evidence and law. In this context, the absence of a transcript of the prosecutor’s closing argument does not meaningfully deprive defendant of the opportunity for appellate review. (See People v. Moore (1988) 201 Cal.App.3d 51, 58‑59 (Moore) [missing portions of the record contained “only portions of the defense arguments” to the jury].)

Defendant asserts that “other potential issues” could have arisen during closing argument. He notes that: (1) during the court’s colloquy with the parties on relevant jury instructions, the court denied a request by the prosecutor to quote People v. Beltran (2013) 56 Cal.4th 935 (Beltran), on the legal definition of provocation;[7] (2) during deliberations, the jury sought clarification on premeditation; and (3) in his summation to the jury, defense counsel suggested that the prosecutor may have made a joke during opening closing argument. From these observations, defendant speculates that the prosecutor could have misstated the law and made an inappropriate joke.

But such speculation does not suggest that the record on appeal is inadequate. “No presumption of prejudice arises from the absence of materials from the appellate record.” (People v. Samayoa (1997) 15 Cal.4th 795, 820.) Nor will speculation such as defendant offers suffice. (People v. Covarrubias (2016) 1 Cal.5th 838, 914 (Covarrubias).) Moreover, had any such misconduct occurred, we would reasonably expect that defense counsel would have raised the issues through an objection, motion for mistrial, or motion for a new trial. (See Moore, supra, 201 Cal.App.3d at p. 58; People v. Gurule (2002) 28 Cal.4th 557, 657.) Nothing of the kind appears in the record.[8] Thus, we conclude that the record is not inadequate to permit adequate appellate review.

2. Sufficiency of Evidence Supporting First Degree Murder

Defendant contends that the evidence is insufficient to support his conviction of premeditated murder, because the “evidence proves provocation sufficient to establish a heat of passion which constitutes voluntary manslaughter,” or which “was enough to reduce the offense to second degree murder.” We disagree.

A. Standard of Review

Defendant appears to misconstrue the proper standard of review. “‘When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.] We determine ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” (People v. Morales (2020) 10 Cal.5th 76, 88 (Morales).)

A criminal defendant “must present his case to us consistent with the substantial evidence standard of review. . . . If the defendant fails to present us with all the relevant evidence, or fails to present that evidence in the light most favorable to the People, then he cannot carry his burden of showing the evidence was insufficient because support for the jury’s verdict may lie in the evidence he ignores.” (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1574; see People v. Letner and Tobin (2010) 50 Cal.4th 99, 162; People v. Battle (2011) 198 Cal.App.4th 50, 62 [defendant may forfeit sufficiency of evidence claim by “selectively describ[ing] the circumstances most favorable to him”].)

In violation of the proper standard of review, defendant asserts that “there is substantial evidence” of provocation, and that therefore the “prosecution . . . failed to carry its burden of proving the absence of provocation beyond a reasonable doubt.” Thus, as framed—discounting the incriminating evidence and focusing on the exculpatory evidence—his contention is meritless. But even if framed under the proper, substantial evidence standard, it fails.

B. Governing Law

“California statutes have long separated criminal homicide into two classes, the greater offense of murder and the lesser included offense of manslaughter.” (People v. Rios (2000) 23 Cal.4th 450, 460.) Murder in the first degree is the unlawful killing that is willful, deliberate, and premeditated. (§§ 187, subd. (a), 189, subd. (a).) “In this context, ‘premeditated’ means ‘considered beforehand,’ and ‘deliberate’ means ‘formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.’ An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse. The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . . .” (Morales, supra, 10 Cal.5th at p. 88, citations and quotation marks omitted.)

Second degree murder is the unlawful killing of a human being with malice aforethought but without willfulness, premeditation, and deliberation. (Beltran, supra, 56 Cal.4th at p. 942.) “[P]remeditation and deliberation may be negated by heat of passion arising from provocation.” (People v. Hernandez (2010) 183 Cal.App.4th 1327, 1332 (Hernandez).) “If the provocation would not cause an average person to experience deadly passion but it precludes the defendant from subjectively deliberating or premeditating, the crime is second degree murder.” (Ibid.)

If the provocation would cause a reasonable person to react with deadly passion, the defendant “is deemed to have acted without malice so as to further reduce the crime to voluntary manslaughter.” (Hernandez, supra, 183 Cal.App.4th at p. 1332.) Heat of passion manslaughter has both an objective and subjective component requiring an emotion that is “‘so intense that an ordinary person would simply react, without reflection’” such that “‘judgment could not and did not intervene.’” (People v. Rangel (2016) 62 Cal.4th 1192, 1225.) Provocation by the victim “‘may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. [Citations.]’ [Citation.]” (People v. Moye (2009) 47 Cal.4th 537, 550 (Moye).)

3. Analysis

The jury in this case was instructed on premeditated first degree murder, second degree murder, the effect of provocation on the degree of murder or manslaughter, and voluntary manslaughter based on a sudden quarrel or heat of passion. (CALCRIM Nos. 500, 520‑522, 570.) CALCRIM No. 570 also provided that the People “have the burden of proving beyond a reasonable doubt that the defendant did not kill as the result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of murder.”

Construing the evidence in the light most favorable to the judgment, we conclude that a jury could reasonably reject defendant’s evidence of provocation and heat of passion, and convict him of first degree murder. The Supreme Court has identified three categories of evidence relevant to the issue of premeditation and deliberation: planning activity, motive, and the manner of killing. (People v. Anderson (1968) 70 Cal.2d 15, 26–27; People v. Bolin (1998) 18 Cal.4th 297, 331.) These categories of evidence “‘are descriptive and neither normative nor exhaustive, and . . . reviewing courts need not accord them any particular weight.’” (People v. Rivera (2019) 7 Cal.5th 306, 324.)

All three categories of evidence are present in this case. Viewed in the light most favorable to the judgment, Bannon’s obscenities and racial epithets constituted evidence of motive. There was also evidence of planning. Defendant got into his car, started the engine, and contemplated driving away. Yet he then decided to grab a knife from inside his briefcase. Intending to attack Bannon, he got out of his car, unsheathed his knife, chased Bannon for some distance, and stabbed him while kneeling over his body. From this evidence, the jury could reasonably infer that defendant reflected on his course of action and planned to kill defendant with his knife. (See People v. Thomas (1992) 2 Cal.4th 489, 517; People v. Wright (1985) 39 Cal.3d 576, 593, fn. 5; People v. Jackson (1989) 49 Cal.3d 1170, 1200 [“‘the law does not require . . . a “rational” motive for killing. Anger at the way the victim talked to him . . . may be sufficient’”].)

Further, the manner of the killing reasonably suggested preexisting reflection. (See People v. Brady (2010) 50 Cal.4th 547, 565; People v. San Nicolas (2004) 34 Cal.4th 614, 658–659.) Bannon was unarmed, and suffered defensive wounds to his left hand and right leg. He died from two independently fatal stab wounds to his chest: one that severed the right lung, and another that penetrated his heart. From the nature of the stab wounds, the jury could reasonably infer that defendant made the calculated decision to kill Bannon by stabbing him in the chest to perforate his lung and heart.

The racial epithet Bannon shouted at defendant (assuming the jury concluded it was made) was certainly a factor for the jury to consider, but it did not compel the jury to conclude that defendant acted based on provocation or heat of passion. (See People v. Wells (1938) 10 Cal.2d 610, 623; People v. Najera (2006) 138 Cal.App.4th 212, 226 [calling defendant a “faggot” deemed insufficient to cause an ordinary person to lose reason and judgment]; People v. Manriquez (2005) 37 Cal.4th 547, 586 [calling defendant a “mother fucker” and taunting an attack did not constitute legally adequate provocation].) The out-of-state authorities on which defendant relies hold, as a group and in substance, that the use of racial epithets can create an environment in which violence is more likely. However, these authorities do not compel the conclusion that the jury here was required, as a matter of law, to conclude that adequate provocation existed in this case.

4. Claims of Instructional Error

A trial court has a sua sponte duty to instruct the jury on all principles of law relevant to the issues raised by the evidence, and all lesser included offenses if there is substantial evidence from which a jury can reasonably conclude the defendant committed the lesser, uncharged offense, but not the greater. (People v. Whalen (2013) 56 Cal.4th 1, 68, disapproved on another ground in People v. Romero and Self (2015) 62 Cal.4th 1; People v. Booker (2011) 51 Cal.4th 141, 179 (Booker).) The court’s duty to instruct on a lesser included offense exists even if defense counsel elects not to request the instruction. (People v. Barton (1995) 12 Cal.4th 186, 195.) The court may properly refuse an instruction offered by the defendant “‘if it incorrectly states the law, is argumentative, duplicative, or potentially confusing, or if it is not supported by substantial evidence.’” (People v. Burney (2009) 47 Cal.4th 203, 246, citations omitted.)

Here, defendant makes three claims of instructional error, none of which has merit.

A. Heat of Passion Instruction

Defendant first contends that the court failed to sua sponte instruct the jury on heat of passion manslaughter consistent with People v. Lasko (2000) 23 Cal.4th 101 (Lasko), which clarified that “a killer who acts in a sudden quarrel or heat of passion lacks malice and is therefore not guilty of murder, irrespective of the presence or absence of an intent to kill.” (Id. at p. 109.) We disagree.

With respect to murder, malice “may be express or implied.” (§ 188, subd. (a).) It is express when the defendant manifests “a deliberate intention to unlawfully take away the life of a fellow creature.” (§ 188, subd. (a)(1).) It is implied “when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.” (§ 188, subd. (a)(2).) Given the ambiguity with which implied malice has been defined, our Supreme Court has cautioned that juries “should be instructed that malice is implied ‘when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.’” (Lasko, supra, 23 Cal.4th at p. 107.)

In Lasko, the defendant argued that the trial court erroneously instructed the jury that “intent to kill was an essential element of the lesser included offense of voluntary manslaughter.” (Lasko, supra, 23 Cal.4th at p. 106.)[9] The defendant contended, and the Court agreed, that the instruction given to the jury “was improper because intent to kill is not a necessary element of voluntary manslaughter.” (Id. at p. 107.) In reaching this conclusion, the Court reasoned that a person who unlawfully kills another without express malice (intent to kill), but with implied malice (conscious disregard for life) during a sudden quarrel or heat of passion is guilty of voluntary manslaughter. (Id. at pp. 109–110.)

The jury instructions in this case fully complied with Lasko. CALCRIM No. 520 defined “murder” as an “act that caused the death of another” committed by defendant with “a state of mind called malice aforethought.” That instruction specified there “are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder.”[10] CALCRIM Nos. 522 and 570 instructed the jury to consider provocation and the sudden quarrel or heat of passion, which could reduce a killing “that would otherwise be murder . . . to voluntary manslaughter,” or could reduce first degree murder to second degree murder. Taken together, CALCRIM Nos. 520, 522, and 570 instructed the jury that an act by defendant causing the death of another committed with express malice or implied malice is reduced to voluntary manslaughter if defendant committed the act in a sudden quarrel or heat of passion.

In other words, because the jury instructions in this case did not require a finding that defendant specifically intended to kill to support a voluntary manslaughter conviction (the instructions also contemplated an implied malice killing), defendant has not demonstrated a claim of Lasko error. (See People v. Bryant (2013) 56 Cal.4th 959, 970 [“we were careful in Lasko . . . to state our holding that an unintentional killing may constitute voluntary manslaughter in terms that expressly acknowledged that the defendants in those cases had been acting ‘with conscious disregard for life’ and with the knowledge that their conduct was life endangering”].)[11]

B. Fighting Words

Defendant next contends that the court failed to instruct the jury sua sponte with language consistent with section 415, subdivision (3), which criminalizes the utterance of words “inherently likely to provoke an immediate violent reaction.” (See, e.g., Chaplinsky v. State of New Hampshire (1942) 315 U.S. 568, 572 [states may ban the use of “‘fighting’ words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace”].) According to defendant, the “fighting words” doctrine is a general principle of law relevant to the issues raised by the evidence. He is mistaken.

The jury was fully instructed on provocation and heat of passion. Defendant has cited no authority (and we are aware of none) requiring an instruction on the fighting words doctrine, either sua sponte or on request in a homicide case such as this—and with good reason, because the doctrine has nothing to do with provocation that lessens the degree of a homicide. That California criminalizes the utterance of words “inherently likely to provoke an immediate violent reaction” was not pertinent to the jury’s duty in the present case to decide whether, on the evidence presented, defendant acted with legally sufficient provocation.

In any event, defense trial counsel focused the jury, both in his opening statement and closing argument, on the provocative effect of Bannon’s words. Thus, because nothing in the standard instructions precluded the jury from finding that words alone can be sufficient provocation (People v. Wharton (1991) 53 Cal.3d 522, 571, fn. 10), and because “counsel’s argument to the jury fully explicated the defense theme” (People v. Gutierrez (2002) 28 Cal.4th 1083, 1144), even if the court erred (it did not), defendant cannot show prejudice.

C. Refusal to Instruct on Imperfect Self-Defense

While discussing with the court which instructions the jury would receive, defense trial counsel requested that the court provide an instruction on voluntary manslaughter based on imperfect self-defense. The court denied the request. Defendant contends the court’s ruling was erroneous. We disagree.

Voluntary manslaughter based on imperfect self-defense occurs when the “defendant acts in the actual but unreasonable belief that he or she is in imminent danger of great bodily injury or death.” (People v. Simon (2016) 1 Cal.5th 98, 132 (Simon).) “Such a killing is deemed to be without malice and thus cannot be murder.” (Booker, supra, 51 Cal.4th at p. 182.)

Here, nothing in the evidence, including defendant’s statements, suggests that defendant acted with an actual but unreasonable belief in the need to defend himself from a threat of imminent death or great bodily injury by Bannon, who was unarmed. (Accord, Simon, supra, 1 Cal.5th at p. 134 [“[t]he record here is equally devoid of evidence tending to show [the defendant’s] subjective fear” of the victim].) At best, the record shows that defendant “snapped,” retrieved and unsheathed his knife, chased Bannon down, and (after Bannon fell) stabbed him to death. Defendant has provided no reasonable basis on which a jury could conclude that he actually believed he was in danger.

Relying on People v. Villanueva (2008) 169 Cal.App.4th 41 (Villanueva), defendant asserts that Bannon’s threats to kill him constituted sufficient evidence to support an imperfect self-defense instruction. Villanueva does not stand for that proposition. On the contrary, the killing in that case (the victim was shot while inside a vehicle) occurred after the victim had threatened to kill the defendant, but also after the victim “appeared to reach in his glove compartment for a weapon . . . and stepped on the accelerator in an apparent attempt to run [the] defendant over.” (Id. at p. 52.) The Villanueva court did not suggest that a threat to kill in and of itself warrants an imperfect self-defense instruction. (See People v. Casper (2004) 33 Cal.4th 38, 43 [a case is not authority for a proposition not considered].)

5. Correction of Abstract of Judgment

Defendant contends, the Attorney General concedes, and we agree that the abstract of judgment should be corrected to reflect the oral pronouncement of judgment.

At the initial sentencing hearing, the court imposed a $40 court security fee (§ 1465.8), $30 conviction assessment (Gov. Code, § 70373), $300 restitution fine (§ 1202.4, subd. (b)), and imposed and stayed a $300 parole restitution fine (§ 1202.45). During a subsequent restitution hearing, the court imposed $3,894.50 in victim restitution (§ 1202.4), and stated that it would “waive” the restitution fine, court security fee, and conviction assessment based on defendant’s indigence.

The abstract of judgment must be modified to reflect $3,894.50 in victim restitution (the current abstract of judgment lists $3,899), and should not impose any restitution fine, court security fee, or criminal conviction assessment. (See People v. Jones (2012) 54 Cal.4th 1, 89; People v. Mitchell (2001) 26 Cal.4th 181, 185.)

DISPOSITION

The clerk of the superior court is directed to prepare an amended abstract of judgment reflecting $3,894.50 in victim restitution, and striking a restitution fine (§ 1202.4, subd. (b)), court security fee (§ 1465.8), and conviction assessment (Gov. Code, § 70373). In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, Acting P. J.

We concur:

COLLINS, J.

CURREY, J.

[1] Undesignated statutory references are to the Penal Code.

[2] According to Medina, the convenience store was located in a shopping center that contained an outdoor parking lot. Medina could see outside through a wall of glass in the front area of the convenience store.

[3] According to defendant, Bannon also screamed, “‘I’ll fuck you up’”; “‘I’ll fuck you up; I’ll kill you’”; “‘You’re a piece of shit’”; “‘I’m going to fuck you up, you black piece of shit’”; and “‘I don’t like you anyway.’”

[4] Defendant told himself, “‘Okay, this time Kurtis, get in the car,’” and “[d]on’t pay this guy any attention.” He told himself, “You know better than that. [¶] . . . [¶] And you can’t attack this guy. [¶] . . . [¶] This guy’s crazy” and “[m]entally ill.”

[5] California Rules of Court, rules 8.346 and 8.137 provide for the preparation of a settled statement whenever a party learns that any portion of the oral proceedings cannot be transcribed. (See Cal. Rules of Court, Rules 8.346(a), 8.137(d)(2), 8.137(h)(2).)

[6] Defendant relies on Jones, Steven B., and Apalatequi, and People v. Bradford (2007) 154 Cal.App.4th 1390 (Bradford), and People v. Cervantes (2007) 150 Cal.App.4th 1117 (Cervantes) in his appellate briefs. In those cases, however, omissions in the reporter’s transcripts comprised the entire evidentiary portion of trial (Cervantes, supra, at p. 1121; Jones, supra, 125 Cal.App.3d at p. 300, fn. 5), a substantial portion of trial testimony (Steven B., supra, 25 Cal.3d at pp. 3–4, 7–8, fn. 1), proceedings during which the defendant interposed an objection and contested a proposed settled statement (Apalatequi, supra, 82 Cal.App.3d at pp. 973–974), or proceedings in which defense trial counsel did not participate (Bradford, supra, at pp. 1400–1409, 1420–1421 [unreported ex parte communications between trial judge and the jury]).

[7] In denying the prosecutor’s request, the court stated that she “should not be quoting case law in your closing. [¶] . . . [¶] No. You can argue the law that I give them. You don’t get to tell them, ‘well, this appellate opinion said this is provocation and this appellate opinion said that’s not provocation.”

[8] We note as well that while defense counsel mentioned a “joke” purportedly made by the prosecutor, defense counsel’s argument makes clear that the purported joke was simply a comment on a portion of defendant’s confession. Defense counsel stated: “I think the prosecutor . . . said, [defendant] laughed when he’s talking to the detectives. You will recall too, of course, that when he laughs, the detectives are laughing too. She [(referring to one of the detectives)] makes a joke about that he’s the best-dressed guy they have ever arrested and a joke about something else. . . . [¶] . . . [¶] So I think the prosecutor is going to say that he’s being tricky and evasive and hiding things, and she has already argued that.”

[9] There, the jury received a standard instruction on the elements of voluntary manslaughter as follows: “‘1. A human being was killed, [¶] 2. The killing was unlawful, and [¶] 3. The killing was done with the intent to kill.’ (Italics added.)” (Lasko, supra, 23 Cal.4th at p. 107.)

[10] CALCRIM No. 522 also defined express and implied malice as follows: “The defendant acted with express malice if he unlawfully intended to kill. [¶] The defendant acted with implied malice if: [¶] 1. He intentionally committed an act; [¶] 2. The natural and probable consequences of the act were dangerous to human life; [¶] 3. At the time he acted, he knew his act was dangerous to human life; [¶] AND [¶] 4. He deliberately acted with conscious disregard for human life. [¶] . . . [¶] If you decide that the defendant committed murder, it is murder of the second degree, unless the People have proved beyond a reasonable doubt that it is murder of the first degree as defined in Instruction No. 521.”

[11] Defendant appears to conflate the term “unintentional killing” in Lasko with the jury instruction defining implied malice in this case, which required inter alia that defendant “intentionally commit[] the act,” the natural and probable consequences of which were dangerous to human life. (CALCRIM No. 520.) Use of the term “unintentional” in Lasko was confined to the Court’s discussion of express malice; the Court did not purport to redefine the type of conduct required for implied malice. (See Lasko, supra, 23 Cal.4th at p. 111; fn. 10, ante.)