P. v. Rossignol

Filed 3/20/07 P. v. Rossignol CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of Riverside, Bernard J. Schwartz, Judge. Affirmed.

A jury found Roderick Thomas Rossignol guilty of first degree murder (Pen. Code,^[1] 187, subd. (a)) and specifically returned findings that the offense was committed with premeditation and deliberation, but not during the course of a rape or attempted rape. The trial court sentenced Rossignol to prison for an indeterminate term of 25 years to life.

Rossignol appeals, contending that the evidence of premeditation and deliberation in this case was insufficient for first degree murder and that the trial court prejudicially erred by not giving CALJIC No. 8.73 and by requiring the jury to return special findings. In the alternative, Rossignol claims he was denied the effective assistance of counsel if either of the claimed errors regarding the instructions or verdicts is considered waived on appeal. We affirm.

FACTUAL BACKGROUND

In response to a 4:40 p.m. call from a United States Army sergeant at Fort Erwin on Monday, April 7, 2003, Riverside Police Officers Donald Goodner and Richard Prince went to Rossignol's parents' residence in Riverside to investigate a report that Rossignol, one of the sergeant's troops, was using drugs and contemplating suicide. The officers opened the security screen door and knocked on the partially open front door of the home, announcing their identity and presence. Rossignol, who was wearing sunglasses and his underwear rolled over the top of his unzipped pants, opened the door and then immediately tried to shut it. Rossignol, who had scratch marks on his face and left arm as well as dried blood on his face, appeared startled by the officers' presence.

When the officers had Rossignol step outside, they noticed a particularly foul, rotting-type odor emanating from inside the house. After the officers handcuffed Rossignol and patted him down for weapons, he kept saying over and over that he had done something really bad. When asked whether anyone else was in the house, Rossignol said he did not know. Although the officers at first thought Rossignol was "zoning off" on drugs, and just staring into space, they noticed he was watching them out of the corner of his eye.

While Goodner stayed with Rossignol on the porch, Prince entered the house and quickly checked the downstairs for additional persons. Although he saw no other person, he noticed that a jacuzzi tub in the bathroom was filled with water and that the odor was strongest near the stairs leading to the second floor of the house. Meanwhile, Rossignol had told Goodner he had been using "speed," was a medic in the military, knew how to avoid the military drug testing, and that he wanted to kill himself. Because the odor was so bad, Goodner asked Rossignol whether he had soiled himself. Rossignol told him "no," and asked if the officers had checked the upstairs.

The officers switched places, with Goodner entering the house to recheck the downstairs while Prince stayed with Rossignol. In addition to seeing the filled jacuzzi tub and noticing the odor was strongest by the stairs, Goodner also saw a kitchen butcher knife on the stairway and a trash can shredder with pornographic materials in the dining room. While Goodner was still inside, Rossignol told Prince he had gotten into a fight. When Goodner came back to the porch, Rossignol continued to deny knowing whether anyone else was in the house, saying he could not remember and then staring off into space while indicating interest in what the officers were doing and saying. Concerned that something was not quite right, Goodner called a supervisor to send additional officers and continued talking to Prince and Rossignol.

Once the additional personnel arrived, the house was checked again, including the second level. In the second bedroom upstairs where the odor was most intense, the officers found a military-type sleeping bag partially under a bed. Pulling the bag out, the officers saw body fluid seeping through the bag and a woman's dead body inside, with her head at the closed end and her feet at the open end of the sleeping bag.

When the homicide unit took over the investigation, Rossignol and his parents, who were contacted by telephone in New York, consented to a more detailed search of the residence. Upstairs, under the same bed where the sleeping bag had been found, the officers also found a suitcase containing letters, several white trash bags containing female clothing and a blanket which appeared to have some blood on it. A box of white trash bags similar to those under the bed was located in the garage.

Officers also found an empty condom wrapper on the headboard of a bed in the downstairs bedroom and a used condom in a trash can in the dining room. In addition to the knife on the stairs, a knife with a white powdery substance on its blade was found in the dining room. A bag containing a bowling ball was found in a closet near the front door of the house. Inside a tan pickup truck parked outside the house, officers found a gasoline receipt showing the purchase of gasoline on April 3, 2003, at 5:55 p.m.

The deputy coroner who took charge of the body noted the victim's face was cut and bloody, and she had traumatic injury to the back of her head and face. The victim was also wearing several layers of clothing and her outer pants were undone and slightly pulled down.

Riverside detectives Steven Shumway and Mike Medici responded to the residence and interviewed Rossignol for approximately four hours. After waiving his rights under Mirandav. Arizona (l966) 384 U.S. 436, Rossignol, who was 5"10" tall, weighed 175 pounds and had noticeable "scabbed over" scratches and marks on his face and arm, repeatedly claimed he was unaware of a body being in the house, thought the foul odor was due to the methamphetamine (meth) he had used, and did not know what was happening. He told the officers he had gotten off work at Fort Erwin the previous Thursday at 7:00 p.m., had purchased $50 of meth from an unnamed Riverside friend, had used some meth at the friend's house and was due back at work on Monday at 7:00 a.m., but had called in saying he could not work because of all the meth he had used.

Rossignol told the detectives that he was staying at his parents' home while they were away, that he had had no friends over to the house that weekend, that he had watched pornographic movies, and that the bedroom where the body was found was his. He explained that he had developed a problem with meth as a teenager, but recently he had used it infrequently. Meth generally caused him memory problems, to hear voices and become paranoid, and deprived him of sleep. He recognized that the hallucinations were not real and that meth enhanced his sexual drive. He thought his memory at the time of the interview was impaired because of his drug usage and did not know how he got his scratches, guessing he must have been in a fight. He claimed he had inflicted the slice marks on his arms and had filled the jacuzzi tub on Saturday or Sunday when contemplating suicide.

During the first few interview hours, Rossignol continued to indicate he did not remember a body being in the house. When Shumway asked him if there was a girl in the sleeping bag upstairs and if he had had consensual sex with her, Rossignol replied, "I don't. I don't--but I don't know that I would have raped somebody, but I don't know." When the detectives left the room after telling Rossignol that murder during rape would be more serious for him and a doctor would be examining things like fingernails, Rossignol was observed trying to clean his fingernails.

After the detectives resumed the interview and repeatedly told Rossignol that they did not believe his claim of lack of memory, he began changing his story. He remembered that after leaving his friend's house, he picked up a homeless woman walking by a mall after she agreed to share some meth that he had. He recalled driving to his parents' home with the woman and that she had a meth pipe and was spacey. They had oral sex and he used a condom, which he put in the trash can. When asked why the woman scratched him, Rossignol claimed he did not know, explaining that they had been making out before then and she just lost the mood and "got crabby," so they stopped for a while. He could not remember what caused the fight or why she scratched him, but again stated she just lost the mood and said she no longer wanted to have sex. Rossignol noted that they had also had vaginal sex at some point. He did not think he had hit the woman because he was not sore, and he did not believe he had pushed her down the stairs.

When the detectives returned to the subject of rape, Rossignol said he had never done that before, and that he did not think he had actually raped her. He said they "did have sex, but I . . . think it was justified." Rossignol told the detectives they would find the woman's belongings under the bed and that he had not buried her body, but rather waited for the police to arrive as such would honor the woman. He told the detectives he might remember more about the incident the next day.

During a subsequent rape examination, Shumway noticed that Rossignol's penis was badly bruised, chafed and swollen. Rossignol explained such condition was caused by masturbation. When the nurse conducting the exam asked Rossignol the date of his most recent consensual sexual intercourse, he told her it had probably been three weeks earlier.

The next day, an autopsy was performed on the woman, who was identified as Donna Sell, also known as Donna Newton (Newton). Although her body was in a moderate state of decomposition, it was determined that Newton was 5' 7" inches tall and weighed 150 lbs. Newton was wearing several layers of clothing with a shirt, jacket and bra in normal position and outer camouflage pants and inner denim shorts both unzipped, unbuttoned and slightly lowered on her hips. Beneath those pants were sweatpants with the drawstrings detached in normal position, nylon stockings, two types of underwear and a sanitary napkin in place. A glass meth pipe was found in her jacket.

Newton had numerous recent bruises on her head, torso, and extremities, including 26 bruises on her lower body, bruises on her arms and hands, two contusions to her upper right back, two to her right buttock, and two blunt force trauma impact injuries with resultant lacerations to her head, one fairly deep over the right eye and the other on the right side of her scalp above her ear. Although there was no evidence Newton's skull was fractured or her brain injured, she had extensive head bleeding and both eyes were bruised. Even though the head lacerations would not cause death, they could cause unconsciousness.

In addition, Newton had several abrasions on her neck and two fractured neck cartilages, the hyoid bone and the superior cornu on the right side of the larynx, which would have required considerable force to cause. She also had a large bite mark on the right side of her tongue. The medical examiner concluded that Newton died from asphyxia due to neck compression of 15 seconds to two minutes or longer, and had been dead one to three days. It could not be determined whether Newton had been sexually assaulted because of the decomposition of her body, but DNA taken from her fingernail clippings matched Rossignol's DNA profile.

On April 9, 2003, Shumway and another detective audiotaped a second interview with Rossignol. During that interview, Rossignol remembered he had hit Newton over the head with a bag containing a bowling ball, which he had grabbed from somewhere near the couch downstairs. He could not recall how many times he hit her, but said she was unconscious and bleeding after being hit. Nor could he remember why they had gotten into an argument, but only that they had an argument or fight, she had scratched him and then he had picked up the bowling ball. He did not think the argument was about the meth or about sex, claiming they had had consensual sex, first oral sex in his parents' bedroom and then regular sex in the living room on a sheet. Rossignol also thought he remembered putting his hands around the woman's throat, but he did not recall for how long. He could not remember why he choked the woman after he hit her. He said he probably realized she was dead because he then put her in the sleeping bag. He did not call the police because he was in shock and did not want to "deal with it" then.

Rossignol was tried by a jury for Newton's murder. In addition to the presentation of the above evidence, the prosecution also played the audiotape of Rossignol's second interview for the jury, and presented testimony from Newton's sister and boyfriend. Newton's sister last saw Newton, who was 45 years old, at about 8:00 p.m. on Saturday, April 5, 2003, at their mother's house. Newton was a drug user addicted to meth, who was trying to get "clean," and lived in Riverside either in a shed behind her mother's house or in a lean-to behind a convenience store with her boyfriend, who was also a drug user. The boyfriend last saw Newton that same night between 10:00 p.m. and midnight, when she arrived at the convenience store and asked him for gas money to visit a friend.

During cross-examination of Shumway, defense counsel elicited testimony that the detective had previously trained and worked as a narcotics officer and generally knew about the effects of meth. Although he had not worked in narcotics for over 10 years, Shumway agreed that mental confusion, memory lapses, sleep deprivation and extreme paranoia with the hearing of voices were consistent with meth use. Shumway thought that although Rossignol exhibited all of these effects during his two interviews, he tried to cooperate and take responsibility for what had happened. Shumway believed that Rossignol was aware of the consequences of his actions. On redirect, Shumway stated that meth users could also fake forgetfulness.

The Defense Case

In addition to his own testimony, Rossignol's mother and a toxicologist testified in the defense case. According to the toxicologist, blood drawn from Newton during the autopsy revealed 0.741 mg/ml of meth and 0.081 mg/ml of amphetamine in her system. Blood taken from Rossignol after his arrest on April 7, 2003, showed 520 nanograms/ml of meth and 54 nanograms/ml of amphetamine in his system at that time. The toxicologist opined that meth could adversely affect time perception, memory, increase sex drive and cause aggression. The toxicologist conceded that even though meth has a 12-hour half life, there was no way of determining when the meth in Rossignol or Newton had been ingested. Rossignol's mother testified that she was the one who was in the process of shredding the pornographic materials the police found in the trash can at her home. She had received the unsolicited materials in the mail before her vacation.

Rossignol testified he left Fort Erwin, where he was an Army sergeant and licensed vocational nurse, on Saturday evening, April 5, 2003, came to Riverside, went to several bars and clubs, and then went to his friend Jimmy's house to obtain and smoke some meth. On his way to his parents' home, he saw Newton, whom he did not know, in a parking lot and asked if she wanted to share some meth. She agreed, and after she was in the car with all her belongings, she also agreed to have sex in exchange for sharing the meth.

At the house, Newton brought all her belongings inside and they smoked meth for about 10 minutes. They then had oral sex in Rossignol's parents' bedroom, got dressed, and went downstairs to the living room where they smoked more meth and watched adult movies. Later, he used condoms as they had vaginal and oral sex on a blanket Newton had taken from her bag. While cuddling and kissing afterwards, Newton suddenly stopped. When Rossignol opened his eyes, Newton had her hand on his face and was staring at him. She then scratched his face close to his eye as hard as she could without saying a word. As they both stood up, he pushed her down and grabbed the bowling ball bag containing his father's 16-pound bowling ball, which he noticed was sitting by the couch. Rossignol swung the bag hard, making "serious contact" with Newton's head as she was getting up. He did not remember how many times he hit her with the bag containing the ball. When she fell to her knees, he dropped the bag. As Newton started to get up again, Rossignol grabbed her and took her to the ground, with his left hand on her right arm and his right hand over her neck, just under her chin. He used all his strength to hold her down as she continued to struggle. Rossignol did not know what Newton was capable of doing; he only knew he did not want her to get up and hurt him. Newton's struggles slowed and when she went limp, he stopped and stood up.

Seeing that Newton was not moving, Rossignol became nauseous, ran to the bathroom, and vomited. When he returned, Newton had not moved, her eyes were open and she was not breathing. Although he had medical training, Rossignol "just freaked out" and could not call for help or try to assist Newton because he was paralyzed with shock and fear. He got a sleeping bag from upstairs, stuffed Newton's body in it, and dragged it up the stairs to his bedroom where he put it under the bed along with her suitcase and other bags with her belongings which he had gathered from downstairs. Rossignol spent the rest of the weekend smoking the remainder of the meth and watching pornography while trying to forget about what had happened.

After being up two nights without any sleep, Rossignol thought of committing suicide by filling the jacuzzi tub with warm water and letting his blood run out. He cut his wrists with a box cutter, but the blade was too dull. On Monday morning he phoned his sergeant to report that he could not come to work because he had been using drugs. He claimed that his mind was in a scramble when the police came to the house because he did not want to deal with anything and his thoughts, memory and concentration were impaired. He denied he had lied to the police, explaining he had a hard time remembering things due to the meth use and the lack of sleep.

On cross-examination, when asked to explain why he had attacked Newton, Rossignol said he was not hearing voices telling him to do things and he was not acting in rage. He was "just reacting." He "wouldn't call it provoked," but "just an odd happening. . . ." He was basically reacting to the assault near his eyes. Although he did not feel he was in imminent danger of Newton killing him or causing him great bodily injury, he did not know what she was capable of because she had become violent. Rossignol did not think about killing Newton, he just wanted to decrease her ability to hurt him. He used all his force to push against her neck because she was strong and fighting back and he wanted her to stay down so she could not hurt him. Although Rossignol was afraid of what Newton might do if she got back up, he said he was not claiming self-defense and admitted what he did was wrong.

DISCUSSION

I

SUFFICIENCY OF EVIDENCE OF PREMEDITATION AND DELIBERATION

Rossignol contends the evidence of premeditation and deliberation was insufficient to support his first degree murder conviction. We disagree.

In reviewing the sufficiency of the evidence to support a conviction, we determine " 'whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.' [Citations.]" (People v. Crittenden (1994) 9 Cal.4th 83, 139, fn. 13.) Under such standard, we review the facts adduced at trial in full and in the light most favorable to the judgment, drawing all inferences in support of the judgment to determine whether there is substantial direct or circumstantial evidence the defendant committed the charged crime. (People v. Hillhouse (2002) 27 Cal.4th 469, 496; People v. Rodriguez (1999) 20 Cal.4th 1, 11.) The test is not whether the evidence proves guilt beyond a reasonable doubt, but whether substantial evidence, of credible and solid value, supports the jury's conclusions. (Peoplev.Arcega (1982) 32 Cal.3d 504, 518; In re Nathaniel C. (1991) 228 Cal.App.3d 990, 996.)

In making the determination, we do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact. (Evid. Code,  312.) We simply consider whether " ' "any rational trier of fact could have found the essential elements of [the charged offense] beyond a reasonable doubt." ' [Citations.]" (Peoplev.Rich (1988) 45 Cal.3d 1036, 1081.) Unless it is clearly shown that "on no hypothesis whatever is there sufficient substantial evidence to support the verdict" the conviction will not be reversed. (Peoplev. Hicks (1982) 128 Cal.App.3d 423, 429.)

With particular regard to determining whether a jury's finding of first degree murder based upon premeditation and deliberation, as in this case, is supported by substantial evidence, the test is whether a rational trier of fact could have found premeditation and deliberation beyond a reasonable doubt based on the evidence presented. (People v. Villegas (2001) 92 Cal.App.4th 1217, 1223.) "A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill. [Citation.] 'Deliberation' refers to careful weighing of considerations in forming a course of action; 'premeditation' means thought over in advance. [Citations.] 'The process of premeditation and deliberation does not require any extended period of time. "The true test is not the duration of time as much as it is the extent of reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. . . . " [Citations.]' [Citation.]" (People v. Koontz (2002) 27 Cal.4th 1041, 1080 (Koontz).)

Rossignol argues the evidence in this case shows the killing of Newton was not a premeditated and deliberate crime, but rather his impulsive reaction to her violent scratching of him while the two were under the influence of meth after having consensual sex. According to Rossignol, the analysis used in People v. Anderson (1968) 70 Cal.2d 15 (Anderson) supports reversal of his murder conviction. Although a reviewing court may consider the analysis employed in Anderson, which identified three factors commonly present in premeditated murder cases, i.e., planning activity, motive, and manner of killing, " '[u]nreflective reliance on Anderson for a definition of premeditation is inappropriate. The Anderson analysis was intended as a framework to assist reviewing courts in assessing whether the evidence supports an inference that the killing resulted from preexisting reflection and weighing of considerations. It did not refashion the elements of first degree murder or alter the substantive law of murder in any way.' [Citation.] In other words, the Anderson guidelines are descriptive, not normative. 'The Anderson factors, while helpful for purposes of review, are not a sine qua non to finding first degree premeditated murder, nor are they exclusive.' [Citation.]" (Koontz, supra, 27 Cal.4th at p. 1081.)

Recognizing the above principles, our Supreme Court in People v. Davis (1995) 10 Cal.4th 463 (Davis), affirmed a first degree murder verdict on grounds that, "[a] rational finder of fact could infer [from the evidence in that case] that defendant's manner of killing [the victim] demonstrated a deliberate plan to kill her." (Id. at pp. 510-511.) In Davis, the gravely injured victim of a car crash was chased and strangled by the defendant after she had fled from him. (Id. at p. 510.) The court found sufficient evidence of premeditation and deliberation in the pursuit and strangulation of the already debilitated victim. (Ibid.)

Similar to Davis, the manner of the killing in this case supports the jury's first degree murder finding based on premeditation and deliberation. After Rossignol had disabled Newton by striking her hard in the head several times with the bag containing the 16-pound bowling ball, rendering her temporarily unconscious or significantly dazed and causing her to fall, Rossignol made a conscience choice not to assist her but rather to then hold her down so she could not get up by applying all of his force against her neck until she went limp and he fractured two cartilages in her neck in the process. Scratch marks on Rossignol's face were consistent with Newton regaining consciousness, facing him and fighting for her life. From this evidence, a rational jury could reasonably infer that even if Rossignol's initial attack on Newton had been unconsidered and impulsive, that once she had been disabled, Rossignol's decision to then choke her to death when she was no threat to him showed cold, calculated reflection to kill her.

In addition, even though the jury did not find that the murder occurred during a rape or attempted rape, it still may have inferred from the evidence that Rossignol had been motivated to kill Newton because she had denied him additional sex after sharing more of the meth. Rossignol had testified that his sex drive was heightened by his use of meth and that after initially sharing some meth, watching adult movies and having consensual sex with Newton, they stopped and smoked some more meth. It was after this drug use that the attack on Newton unfolded. The jury could have reasonably inferred Rossignol retaliated against Newton for denying him more sex.

Contrary to Rossignol's assertion his "uncontradicted" testimony was consistent with Newton's injuries and his story he was just impulsively reacting to her aggression, the physical evidence showed Newton's injuries were more severe than his version of his actions, and the jury was not required to find his testimony credible. Although there was testimony about meth use and its effect on the memory, there was also evidence that a user could feign memory loss. According to the detectives, during Rossignol's two interviews before trial, he was "very evasive" and acted as though he was assessing the conversations and actions of the detectives before answering any questions. The main case detective opined Rossignol was possibly feigning memory lapses because after he was told his lack of memory claims would not work, he started to remember more details of what had occurred. The jury may also have found Rossignol's credibility suspect due to the consciousness of guilt shown by his trying to clean his fingernails after learning that Newton's fingernails would be checked for evidence. In sum, the jury had ample evidence to disbelieve Rossignol's claim that he simply reacted to an attack by Newton.

Rossignol's challenge to the evidence in this case as compared to other cases is unpersuasive. Comparison with other cases is of limited utility as each case "necessarily depends on its own facts." (People v. Thomas (1992) 2 Cal.4th 489, 516.) As noted above, the facts in this case provide a sufficient evidentiary basis for a reasonable jury to infer that Rossignol had a motive to kill Newton and that he carried out his intent to kill her in such a reflective manner as to support its finding that the murder was deliberate and premeditated.

II

CALJIC NO. 8.73 AND CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL

In his opening brief Rossignol claimed the trial court prejudicially erred by failing to instruct the jury with CALJIC No. 8.73^[2]concerning the relationship between evidence of provocation and the element of premeditation and deliberation, and that if there was no sua sponte duty to so instruct, his trial counsel rendered ineffective assistance of counsel for failing to request the instruction. In his reply brief, Rossignol concedes that the issue of whether the court has a sua sponte duty to instruct a jury with such instruction has been decided against him in People v. Rogers (2006) 39 Cal.4th 826 (Rogers), which held that CALJIC No. 8.73 is a pinpoint instruction that need only be given upon a defense request. (Rogers, supra, 39 Cal.4th at pp. 877-880.) Rossignol thus contends his defense counsel was constitutionally ineffective because he failed to request CALJIC No. 8.73 be given. He specifically argues that there could be no satisfactory explanation for counsel's failure to request the instruction because it was important to the defense and could only have benefited Rossignol. We conclude that Rossignol's claim of ineffective assistance of counsel lacks merit.

When faced with a claim that defense counsel has provided ineffective assistance at trial, "[w]e presume that counsel rendered adequate assistance and exercised reasonable professional judgment in making significant trial decisions." (People v. Holt (1997) 15 Cal.4th 619, 703 (Holt).) The burden is on the defendant to show both "that [his] counsel's performance fell below an objective standard of reasonableness; and . . . that there is a reasonable probability that, but for counsel's unprofessional errors, a determination more favorable to defendant would have resulted. [Citations.] If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails." (Ibid.) Also, "if the record does not preclude a satisfactory explanation for counsel's actions, we will not, on appeal, find that trial counsel acted deficiently." (People v. Stewart (2004) 33 Cal.4th 425, 459, citing People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)

Here, the record sheds no light on why Rossignol's counsel did not request CALJIC No. 8.73 or a similar defense instruction. Nor has Rossignol filed a petition for writ of habeas corpus which explains why his counsel did not make such a request. (See Holt, supra, 15 Cal.4th at p. 704.) Because deciding what defense to pursue and what additional instructions to request for a particular defense are tactical decisions, and the record reflects Rossignol's counsel may have had sound tactical reasons for not requesting CALJIC No. 8.73, such as a desire not to focus the jury's attention on the relationship of provocation to premeditation for an intentional murder and to instead concentrate on persuading the jury to return a verdict of guilty on a lesser offense of manslaughter, we cannot say that the record precludes a satisfactory explanation for defense counsel's omission.

In other words, trial counsel's failure to request CALJIC No. 8.73 appears to reflect a reasoned decision not to distract the jury with other issues in hopes that his arguments on Rossignol's lack of intent to kill and on the concept of imperfect self-defense to show that the killing was merely an involuntary manslaughter would be more persuasive than the prosecution's arguments. Because the legal principle that sudden provocation may be considered in determining the existence of premeditation and deliberation is basically covered by other jury instructions given to the jury, counsel may have reasonably thought the jury would necessarily consider that issue as a matter of logic even if he focused on it at length or not. (See Rogers, supra, 39 Cal.4th at p. 880; People v. Jennings (2000) 81 Cal.App.4th 1301, 1318-1319.) Rossignol thus cannot show this record affirmatively discloses a lack of a tactical purpose for counsel's silence. (People v. Williams (1997) 16 Cal.4th 153, 215.) Rather, as the court in People v. Morales (1979) 88 Cal.App.3d 259 long ago noted, "the difference between trial counsel's approach and appellate counsel's hindsight analysis [of what trial counsel should have done] is simply one of tactics and [usually] constitutes a frivolous issue." (Id. at p. 268.) Rossignol simply has not shown his counsel was inadequate for failing to request CALJIC No. 8.73. (See People v. Riel (2000) 22 Cal.4th 1153, 1197.)

Moreover, even if Rossignol's counsel were arguably deficient for failing to request CALJIC No. 8.73, no prejudice can be shown on this record. As we noted earlier in our discussion, there was ample evidence Rossignol made a reflective decision to kill Newton when he choked the life out of her after rendering her disabled with the bagged bowling ball. In light of the totality of the evidence, and the other jury instructions on the requirements for premeditation and deliberation, which we presume the jury followed (People v. Sanchez (2001) 26 Cal.4th 834, 852), we cannot find that it is reasonably probable that a result more favorable to Rossignol would have occurred had CALJIC No. 8.73 been given upon counsel's request. (Strickland v. Washington (1984) 466 U.S. 668, 694.) Contrary to Rossignol's assertion, the omission of CALJIC No. 8.73 had no effect on the requirement that the jury must find premeditation and deliberation beyond a reasonable doubt. Rossignol has failed to show he was denied effective assistance of counsel and a fair trial.

IV

USE OF SPECIAL FINDINGS WITH VERDICTS

During jury instruction discussions, Rossignol's counsel objected to the giving of instructions on felony murder, arguing that the evidence was insufficient to support first degree murder on the theory of rape or attempted rape-murder. After hearing argument from the prosecutor as to the evidentiary support for the giving of such instructions, the trial judge stated that "it is with some hesitation" that he would give certain felony murder instructions, but was doing so because "it is appropriate" based on the evidence from which the prosecutor could reasonably argue "that [Rossignol] was attempting to have sex with [Newton], and she resisted, giving rise to the rape or attempted rape incident." The judge further noted that they had discussed off the record the "possibility of how the special finding would be given to the jury, and I thought that would be a good idea, and that . . . we would instruct the jury that if they return and believe unanimously that this was a first-degree murder, that they would let us know, by way of that special finding, whether or not their finding was first-degree murder based on premeditation, deliberation, or based on the theory of felony murder, or both. And I would draft a special instruction and have the People prepare in their verdict forms a special finding."

The trial judge explained his reason for the special findings was that:

"[T]he Court, as well as counsel, and any appellate court that may review the case later, will not know what the basis of the jury's finding was and be left to speculate as to whether or not they have come back solely based on the theory of felony murder, which, in my mind, is a close call as to the giving of that theory at all, or whether it was based on premeditation and deliberation. And I think, out of an abundance of caution and fairness to Mr. Rossignol, if the jury comes back with first-degree murder, they should know, and his appellate counsel should know, the thinking of the jury and why they came back with the decision that they did. So it would be abundantly clear to [the] appellate court that was the basis of their finding, if they find it to be first-degree murder based on premeditation and deliberation, so be it. If they find it based solely upon felony murder as to his acts, counsel has protected the record objecting to that instruction. It's believed that was not an instruction that should have been provided to the jury or a theory that they should have been able to consider, then the record will be clear as to how that unfolded. So it's my thought that that special finding should be included."

The court asked the prosecutor to draft the special finding and stated it would draft a special instruction to be read to the jury as to how to fill out the special findings. Defense counsel responded in the affirmative when the court stated it assumed he was similarly objecting to such instruction.

The next day, the trial judge asked both counsel to review the special instruction he had drafted and the special finding verdicts provided by the prosecutor. Finding the verdicts appropriate, the judge stated, "[it] indicates in the verdict forms as to the special findings. We, the jury find the defendant guilty of 'predeliberation' or 'do not find premeditation, deliberation,' and the similar for felony murder. . . . We've got both options which is basically neutral." After noting that defense counsel had objected to the specials "with respect to the recording," the court asked defense counsel if there was anything he wished to change. Counsel replied that he "can't improve on it."

In the subsequent instructions, the court told the jury that "[i]f you are convinced beyond a reasonable doubt that the defendant is guilty of the crime of first-degree murder, you must then include a special finding in your verdict. The special finding in your verdict must indicate if the unanimous decision of first-degree murder was based on premeditation and deliberation or felony murder or both."

After concluding the instructions, the trial court went over the verdict forms with the jurors, telling them:

"As to the verdict forms, there are five possible verdicts that you can have in this case. However, you can only have one of the five. You could come back, if, in your deliberations, you decide it's murder of the first degree or murder of the second degree, there's a lesser charge of voluntary manslaughter, involuntary manslaughter, and not guilty. Those are the five possibilities. You can only come back with one of those. Only one can be a potential verdict. [] Further, if you come back with a finding of murder, you must then designate whether or not that murder was murder of the first degree or murder of the second degree. [] You will see on the form there is a blank spot left where you are to fill that in. If you find that this is murder in the first degree, there's another thing that you must do, and that is complete the findings. [] . . . [] If you find this was murder of the first degree, you must then look at the finding forms. There are four forms. One that corresponds to premeditated and deliberated finding of yes, and one that finds to premeditation and deliberation, no. That means that if you find the murder was committed with premeditation and deliberation, you would sign the finding that corresponds to that. If you find that it was not committed with premeditation and deliberation, then, obviously, you would sign that form. [] The second part of the first-degree murder would be that of felony murder. If you find that this was a first-degree murder, you then have to decide whether or not it was committed based on felony murder or not based on felony murder, the theory being intent to commit rape or attempted rape. So you must fill out those finding forms. Now, if you find that its both premeditated and deliberated and felony murder, then you would fill out both of those forms, leaving the other ones blank. If you find that it's neither of those, and, of course, that would mean that you then found it's not first-degree murder, you must fill out both of those forms, indicating no premeditation and no deliberation and no murder. So as to the findings, there has to be at least two forms filled out, no matter what your verdicts are in that regard."

The actual special findings given the jury were: 1) "We, the jury . . . , having found . . . ROSSIGNOL, guilty of . . . Murder in the First Degree, find the offense was committed with premeditation and deliberation;" 2) "We, the jury . . . having found . . . ROSSIGNOL, guilty of . . . Murder in the First Degree, do not find the offense was committed with premeditation and deliberation;" 3) "We, the jury . . . , having found . . . ROSSIGNOL, guilty of . . . Murder in the First Degree, find the offense was committed during the course of a rape or attempted rape;" 4) "We, the jury . . . having found . . . ROSSIGNOL, guilty of . . . Murder in the First Degree, do not find the offense was committed during the course of a rape or attempted rape."

The jury returned a verdict finding Rossignol guilty of murder in the first degree and special findings that the offense was committed with premeditation and deliberation, and not committed during the course of a rape or attempted rape.

On appeal, Rossignol contends the trial court prejudicially erred by requiring negative findings as to premeditation and deliberation and felony murder, by telling the jury that to return a verdict other than first degree murder, it must specify there was no premeditation and deliberation and no felony murder, and by overly focusing the jury on first degree murder as the likely verdict. Rossignol essentially argues that the use of the special findings to identify the theory on which the jury relied to return a first degree murder verdict was coercive, interfered with the deliberative process and violated his constitutional right to due process. Rossignol claims that if his failure to object to the special findings on due process grounds forecloses this court from addressing such issue on appeal, then he was denied effective assistance of counsel. We conclude Rossignol can show no prejudicial error regarding the special findings.

In general, our Supreme Court has "approved the use of . . . hybrid general verdict forms [as used in this case], finding they do not violate the statutory prohibition against special verdicts. [Citations.] Such verdict forms are permissible because they do not ask the jury merely to make factual findings while 'ced[ing] the ultimate judgment of [the defendant's] culpability to the trial court.' [Citation.]" (People v. Gurule (2002) 28 Cal.4th 557, 631-632 (Gurule).) Such "'general' verdicts supplemented by special 'findings' [citations] . . . [are proper] so long as they do not interfere with the jury's deliberative process. [Citations.]" (People v. Webster (1991) 54 Cal.3d 411, 446-447 (Webster).)

Here, Rossignol attempts to argue the required special finding forms given the jury interfered with the deliberative process by mischaracterizing them as "special verdicts" or actual verdict forms. However, as the record clearly reflects, the court carefully delineated that there were five verdict forms, only one of which could be returned on the count 1 murder charge. The court then explained that only if that decision was murder, would the jury then designate whether it had found first degree murder or second degree murder. If the jury found first degree murder, then it would be required to further designate whether first degree murder was found unanimously upon the theory of felony murder or premeditation and deliberation or both by use of the special finding forms.

The problem concerning the special findings appears to arise not from any of the written instructions, verdict forms or special findings that were given the jury, but from the court's last oral statements to the jury that they would have to indicate no premeditation and deliberation and no felony murder even if they had decided there was no first degree murder. Although the court technically erred in making such statement, Rossignol did not object to such misstatement below. Nor has he persuasively shown any deliberative harm that might have arisen from such misstatement. In addition to Rossignol's defenses, the jury was given full and correct instructions on murder and manslaughter in its various forms, including the special court instruction that the jury would return special findings with a first degree murder verdict to indicate "if the unanimous decision of first-degree murder was based on premeditation and deliberation or felony murder or both," and CALJIC No. 17.10, which told the jury:

The crimes of Second Degree Murder, Voluntary Manslaughter and Involuntary Manslaughter are lesser crimes to that of First Degree Murder charged in Count One. [] Thus, you are to determine whether the defendant is guilty or not guilty of the crime charged in Count One or of any lesser crimes. In doing so, you have the discretion to choose the order in which you evaluate each crime and consider the evidence pertaining to it. You may find it productive to consider and reach a tentative conclusion on all charges and lesser crimes before reaching any final verdict. However, the court cannot accept a guilty verdict on a lesser crime unless you have unanimously found the defendant not guilty of the charged crime."

The jury was also given CALJIC No. 17.30 which told the jurors not to take anything the judge said "to intimate or suggest what you should find to be the facts. . . ." We presume the jurors followed the given instructions.

In any event, we cannot find that the court's technical misstatement was coercive or caused Rossignol to suffer any prejudice. Because the jury would necessarily have had to unanimously find no premeditation and no felony murder to reach a conclusion that the count 1 charge was less than first degree murder in its deliberative process to reach its verdict, to then fill out or sign a special finding that there was no premeditation and no felony murder after such decision was already made would merely have been a ministerial act of recording those findings. Contrary to Rossignol's assertion otherwise, there is nothing in this record to show that the court required the jury to use and determine the special findings before it decided the issue of his guilt or innocence to the count 1 murder charge. Rossignol has simply not identified any improper interference with the jury's deliberative process by the use of the special findings.

Rather, this record demonstrates that the trial court was trying to protect Rossignol's right to appellate review of the general verdict if such were based on felony murder as the theory of first degree murder, to which he had objected and the court had reluctantly conceded could be argued as an alternate theory for the prosecution. However, "[a]n accused suffers no cognizable 'prejudice' when the trial court protects the record by directing the jury to agree unanimously on each alternate theory supporting the charge, and to disclose the results." (Webster, supra, 54 Cal.3d at p. 447.)

Moreover, even if Rossignol's position were correct, no prejudice could be shown in this case. As we have found, there was ample evidence presented to support the first degree murder conviction based on premeditation and deliberation and the jury did not find such supported under a felony murder theory based on rape or attempted rape. Thus, "an undifferentiated verdict would not have changed the appellate outcome." (Webster, supra, 54 Cal.3d at p. 447.)

Rossignol's additional claim that the combined first degree verdict form supplemented with the special findings somehow violated his constitutional rights to due process and a fair jury trial "was not preserved for appeal because defense counsel did not make clear [his] objection was on constitutional grounds." (Gurule, supra, 28 Cal.4th at p. 632.) Nor could his counsel be found to have been ineffective for failing to object on such grounds because the use of special findings in California has been held not to substantially implicate a defendant's state or federal constitutional rights to due process or a fair trial. (People v. Jackson (1996) 13 Cal.4th 1164, 1227; People v. Davis (1995) 10 Cal.4th 463, 512, fn. 9.)^[3]

DISPOSITION

The judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

O'ROURKE, J.

IRION, J.

Publication Courtesy of California attorney directory.

Analysis and review provided by Oceanside Property line attorney.

^[1] All statutory references are to the Penal Code unless otherwise specified.

^[2] CALJIC No. 8.73 provides, "If the evidence establishes that there was provocation which played a part in inducing an unlawful killing of a human being, but the provocation was not sufficient to reduce the homicide to manslaughter, you should consider the provocation for the bearing it may have on whether the defendant killed with or without deliberation and premeditation."

^[3] To the extent Rossignol generally concludes his first degree murder conviction should be reversed due to cumulative error, such assertion fails. Because we have found no prejudicial error in any of his claimed trial errors, Rossignol cannot show cumulative error, or that he was denied due process or a fair trial. (See People v. Kronemyer (1987) 189 Cal.App.3d 314, 349.)