Opinion
A148607
08-28-2018
THE PEOPLE, Plaintiff and Respondent, v. KEITH M. WILKINS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City & County Super. Ct. No. 12025703)
I.
INTRODUCTION
Appellant Keith Wilkins was convicted of the second degree murder of Marche Daniels and the voluntary manslaughter of Frederick Glaspie. Appellant argues that his second degree murder conviction should be reversed because the trial court improperly precluded expert testimony that was necessary to his defense. We conclude the trial court properly excluded the proposed testimony on the victims' gang affiliation and the character of the neighborhood and in any event, the testimony was cumulative and any error not prejudicial. Appellant also argues the prosecutor committed misconduct during the rebuttal argument by misstating the standard for heat of passion manslaughter. While the majority of the prosecutor's closing argument and rebuttal set forth the proper standard, the prosecutor did make an incorrect statement of the law in rebuttal, but any error was corrected by the court's instructions to the jury. We affirm.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Procedural History
Appellant was charged with two counts of premeditated murder (Pen. Code, § 187, subd. (a)), for the murders of Frederick Glaspie (count one) and Marche Daniels (count two); one count of being a felon in possession of a firearm (§ 29800, subd. (a)(1)); one count of being a convicted person carrying a concealed firearm (§ 25400, subd. (a)(2)); and one count of being a convicted person carrying a loaded firearm (§ 25850, subd. (a)). With respect to the premeditated murder counts, the information alleged personal discharge of a firearm (§ 12022.53, subd. (d)) and the special circumstance of multiple murders (§ 190.2, subd. (a)(3)).
All subsequent references are to the Penal Code unless otherwise identified.
Appellant was tried by a jury and acquitted of first degree murder but found guilty of the lesser included offenses of voluntary manslaughter for count one and second degree murder for count two. Appellant was found guilty of the remaining counts. The court sentenced appellant to 40 years to life plus 21 years.
B. Evidence at Trial
At trial, the prosecution played a surveillance video which showed on the afternoon of July 30, 2012, appellant shot Glaspie in the head. Daniels witnessed the shooting and began to run away, but appellant shot him in the head from behind. Appellant then stood over Daniels and shot him twice more in the head. He returned to Glaspie and shot him again in the head.
Glaspie had no weapon on him and none were found near his body. Daniels also had no weapon on him and there were no weapons on the ground near him.
Appellant's friend, Elijah Hopkins, had been killed two days before and appellant believed Daniels was involved in his murder. On July 30, 2012 some of Hopkins's family and friends, including appellant, were gathered at his home on Burr Street (the Burr Street house) in San Francisco.
Janeka Fells was visiting the Burr Street house to check on her friend Erica Augusta, Hopkin's sister. She saw Daniels and Glaspie arrive at the house and go upstairs and then she heard yelling. Everyone went outside and she saw that Daniels was crying and his lip was bleeding. She saw appellant talking with Glaspie. Daniels repeatedly told Fells: "I didn't do it." Fells never saw Daniels or Glaspie with a weapon or heard them threaten anyone.
Erica Augusta testified that when Daniels and Glaspie arrived at her house she felt scared because there had been talk that Daniels killed her brother.
Augusta identified appellant as the shooter in the video. Fells and Augusta both testified that appellant had a reputation as a peacemaker and a nonviolent person.
After the shooting, appellant fled the scene. Approximately three weeks later, officers attempted to arrest appellant and he ran from the officers after discarding a semiautomatic handgun.
Appellant testified at trial and admitted he shot both Daniels and Glaspie. He stated that he shot them because he was "afraid for his life and the lives of others in the house that they were going to kill somebody. Or hurt somebody." He stated that Towerside gang members had "shot up the house" before in 2009 and he believed Daniels was going to start fighting. Appellant stated he had been threatened multiple times in the past by Glaspie. When he was 17 years old, Glaspie threatened him with a gun. Appellant believed Glaspie wanted to start a gang war and was unconcerned about killing innocent people.
Appellant testified that Glaspie was a "general" in the Towerside gang. He acted as a mediator for the Towerside and Sunnydale gangs. Appellant believed that Daniels was Glaspie's "flunkey" who did Glaspie's "dirty work." Appellant stated that Glaspie told him that if you messed with him, he would kill "whoever was close to you."
Appellant testified that on the day of shooting, he felt "panic" when he saw Daniels and Glaspie arrive at the Burr Street house. He said two of the people in the house had guns. He took a gun from one of them. He said he just wanted to prevent any violence from happening.
When Daniels and Glaspie arrived at the front porch, appellant confronted them. Daniels stated: "I didn't do it." Appellant testified that he told Daniels, "Get the fuck out of here" and "you did it." Daniels entered the house. Appellant blocked Glaspie from entering the house. Glaspie stated: "It's about time you feel what I feel," which appellant took to mean the loss of a friend. After a commotion in the house, Glaspie pushed past appellant to go inside. Appellant walked out to the sidewalk with a gun under his arm. Appellant was afraid Daniels and Glaspie had other friends or gang members coming to back them up.
When Glaspie and Daniels returned to the front of the house, appellant pulled out the gun and told them to leave. Appellant stated he did not want to shoot Glaspie but he needed him to leave because he did not want a war between the gangs. Everyone was arguing and appellant believed Glaspie and Daniels were lying. He described himself as "[a]ngry, frightened, scared, hurt, nervous, paranoid, sad."
At this point, appellant claims Glaspie said: "I'm going to get my Tower niggas." He started shooting because he was "scared" that Glaspie was going to hurt someone in the house. "I'm like, fuck, you're not going to hurt me or nobody else."
On cross-examination, appellant admitted that he did not think Daniels was armed.
III.
DISCUSSION
A. The Trial Court Properly Excluded the Gang Expert Testimony
1. Offer of Proof
Prior to trial, appellant filed an "Offer of Proof Re: Witness Tim O'Brien." O'Brien is a private investigator who had 20 years' experience investigating crimes in the Sunnydale and Visitation Valley area of San Francisco. The Offer of Proof included O'Brien's views of the victims, Fred Glaspie and Marche Daniels. Glaspie was a "senior member" of the Towerside gang and Daniels was a member. It also included his views on appellant who he was told by other officers was not a gang member.
The prosecution filed a motion in limine to exclude or limit the presentation of gang evidence. There were no gang allegations in the information and any gang evidence was irrelevant. They argued appellant could not properly present evidence of a victim's character pursuant to Evidence Code section 1103 through O'Brien's hearsay testimony. The testimony was not relevant to self-defense because the standard is a reasonable person not a reasonable gang member or reasonable person in a tough neighborhood. The introduction of evidence of the victims' gang association was not relevant, was prejudicial, and would consume an inordinate amount of time.
In response, appellant proposed to call San Francisco Police Department Inspector Joshua Kumli to testify as a gang expert. Kumli would testify about a gang's impact on young black males in their territory, the gang's use of fear, violence and intimidation, and gang members proclivity for carrying firearms. Kumli would also assert that both victims were active gang members with reputations for dangerousness and violence. Appellant argued his state of mind was relevant to provocation and self-defense.
The court held a hearing on the issue on July 15, 2015. The court stated that it could not see how the gang issue was relevant. There was "no self-defense" because the video showed the shooter going up to each of the victims as they are lying on the ground and shooting each of them a second time.
Appellant argued it was a single course of conduct and only a matter of seconds between shots. The prosecution argued appellant's state of mind was something only he could testify to and no third party could explain what appellant felt or understood. It is an objective reasonable person standard, "not a reason[able] person from a particular neighborhood." In addition, the testimony was unduly prejudicial and time-consuming.
The court stated that under Evidence Code section 352, the gang evidence "tends to mislead the jury and is an undue consumption of time." The court then stated that if appellant elected to testify and it opened the door, the court was not precluding him from raising the issue again.
Appellant argued that the prosecution had misstated the standard: it is a reasonable person in a similar neighborhood with similar knowledge. The court responded: "It's not a reasonable member of that community." (Italics added.) The court stated that it was allowing evidence that the community believed the victims had killed Elijah Hopkins.
The prosecution argued the evidence would demonstrate that appellant believed Daniels was responsible for Hopkins's death and that motivated the shooting. The evidence related to the personal relationship among these men, not a broad-based history of the neighborhood.
The court again stated that it had not heard from appellant yet and it would "leav[e] the door open" to raise the issue again if the prosecution raised something making it relevant. "At this point I think it's [Evidence Code section] 352. It's not probative. It is very prejudicial. It's also extremely time consuming . . . and it takes the jury on a completely different tangent from the facts before us."
At the close of the prosecution's case, defense counsel again asked that Inspector Kumli be allowed to testify about Glaspie's gang involvement. The prosecution argued that one of the officers testified that Glaspie was "friendly" but not about his reputation. This did not open the door to allow gang testimony. Whether Glaspie was a gang member was not a question before the jury requiring expert testimony. The court responded: "I agree. So that's not coming in."
2. Legal Analysis
Appellant argues that the court abused its discretion in refusing to admit the testimony of his gang expert. On appeal, appellant only raises this claim as to the second-degree murder conviction for killing Daniels. Appellant asserts preclusion of the testimony violated his Sixth and Fourteenth Amendment rights to present a defense.
"Self-defense, when based on a reasonable belief that killing is necessary to avert an imminent threat of death or great bodily injury, is a complete justification, and such a killing is not a crime. [Citations.] A killing committed when that belief is unreasonable is not justifiable. Nevertheless, 'one who holds an honest but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury does not harbor malice and commits no greater offense than manslaughter.' [Citation.]" (People v. Elmore (2014) 59 Cal.4th 121, 133-134, italics omitted.) " 'The subjective elements of self-defense and imperfect self-defense are identical. Under each theory, the [defendant] must actually believe in the need to defend . . . against imminent peril to life or great bodily injury.' [Citation.]" (People v. Sotelo-Urena (2016) 4 Cal.App.5th 732, 744 (Sotelo-Urena).)
The trial court instructed the jury on self-defense that appellant must reasonably believe he or others present at the Burr Street house were in imminent danger of being killed or suffering great bodily injury or reasonably believe the immediate use of deadly force was necessary. "When deciding whether the defendant's beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed." The court further instructed the jury they could consider if appellant knew Glaspie and Daniels had threatened or harmed others in the past. The trial court also instructed the jury on heat of passion, provocation, and imperfect self-defense.
The trial court did not err in refusing to allow a gang expert to testify for several reasons. First, appellant failed to renew his motion to introduce expert testimony after he testified as he was advised to do by the court. At the original hearing, the court stated that the prosecution's theory of the case was that appellant killed both victims because he believed they killed Hopkins. The prosecution stated the shooting was personal, not related to the history of the neighborhood. Appellant argued it related to his experiences over the last four or five years and the prosecution was going to argue it is something he made up and his fears were not based in fact. The court responded: "Maybe. I haven't heard from Mr. Wilkins yet. Nobody has. That's why I'm leaving the door open. If it happens that you need to corroborate something from the District Attorney's Office, I'm going to revisit this issue, and you are welcome to bring it up again." The court specifically stated that it was not precluding appellant from talking about these issues but the expert testimony was not probative, it was prejudicial and "extremely time consuming."
Appellant's testimony raised the issue that the victims' gang membership created his fear. Appellant testified about his relationship with Glaspie and that Glaspie had threatened him the past. He did not testify to any similar threats by Daniels. Appellant's testimony did not require corroboration by a gang expert. He explained the nature of the community, the fact he believed Glaspie and Daniels were Towerside gang members, and his thoughts and feelings prior to the shooting.
Appellant argues that we should apply the analysis in Sotelo-Urena where Division Two of this court reversed a first degree murder conviction because the trial court precluded expert testimony on homelessness relevant to the defendant's claim of self-defense. (Sotelo-Urena, supra, 4 Cal.App.5th at pp. 736-737.) Sotelo-Urena, a homeless man, stabbed another homeless man. Sotelo-Urena claimed self-defense based on his belief he needed to use lethal force to defend himself from an attack. (Id. at p. 741.) Sotelo-Urena sought to have a former judge testify as an expert on homelessness in three areas: (1) empirical studies on the higher rate of violence against homeless people; (2) fear and victimization among the homeless; and (3) a greater than normal sensitivity to perceived threats of violence by homeless individuals. (Id. at pp. 741-742.) The trial court found that homelessness was within the common experience of the jurors and the issue was not the defendant's homelessness but being alone, at night behind the library. (Id. at p. 742.) The court precluded the expert testimony and Sotelo-Urena did not testify at trial, although his recorded statements were played for the jury. (Id. at pp. 737, 743.)
Sotelo-Urena was homeless and had been stabbed a few weeks prior to the murder. He believed that the victim had been involved in his stabbing and he had to stab the victim before the victim stabbed him. (Sotelo-Urena, supra, 4 Cal.App.5th at p. 745.) The expert "was prepared to testify that individuals who are chronically homeless, like defendant, are subjected to a high rate of violence by both housed and homeless individuals, and that the experience of living for years on the streets instills a perpetual fear of violence that would have affected defendant's belief in the need to defend himself with lethal force." (Id. at pp. 745-746.) Division Two found this testimony was relevant because it would have helped the jury understand the situation from the defendant's perspective. (Id. at p. 746.) It explained his heightened sensitivity to aggression. (Ibid.) The court applied the same rationale as intimate partner battering where the victim spouse has a heightened sensitivity to danger. (Ibid.) "The same rationale applies here. According to [the expert], a homeless individual who has repeatedly been subjected to violence and the threat of violence will experience a heightened sensitivity to such threats and will have a reduced threshold at which he or she subjectively perceives an imminent threat." (Id. at p. 747.)
In People v. Humphrey (1996) 13 Cal.4th 1073 (Humphrey), our Supreme Court held that expert evidence on intimate partner violence was admissible under Evidence Code section 1107, but explained that its decision was not "changing the standard from objective to subjective, or replacing the reasonable 'person' standard with a reasonable 'battered woman' standard" for self-defense and that its decision "would not, in another context, compel adoption of a ' "reasonable gang member" standard.' " (Humphrey, at p. 1087.)
The Attorney General argues that Sotelo-Urena is distinguishable because Sotelo-Urena did not testify and no other trial evidence established the high rates of violence against homeless individuals. Here, appellant's own testimony established the character of the neighborhood, the fact both victims were Towerside gang members, and that he feared an outbreak of gang violence at the gathering. Prior to appellant's testimony, the court had concluded that the video of appellant's conduct showed no self-defense. In the video, appellant shot both victims and then shot each of them again when they were lying on the ground.
Sotelo-Urena faced an imminent threat of violence from the other homeless man. The man was on drugs, Sotelo-Urena believed he had a knife in his hand, and they began to "tangl[e]" with each other. (Sotelo-Urena, supra, 4 Cal.App.5th at p. 738.) Here the undisputed testimony is neither Glaspie nor Daniels were armed, both men were on the street in front of the house and neither of them posed an imminent threat of violence or injury to appellant. Daniels was walking away when he was shot in the back of the head. Appellant testified that he knew neither man was armed so, at most, his fear was that other members of the Towerside gang might arrive and cause him or other harm. As explained below, this is insufficient to support an imperfect self-defense claim.
In Sotelo-Urena, Division Two stressed that precluding the expert meant no information about the violence against and among homeless individuals was before the jury. The expert's testimony would have allowed the jury to hear understand the perspective of a chronically homeless man who had been recently assaulted. (Sotelo-Urena, supra, 4 Cal.App.5th at p. 745.) Here, there was evidence before the jury about the character of the neighborhood and appellant's previous exposure to gang violence. Additionally, appellant testified about his own fear and feelings at the time of the shooting. Finally, the experience of living in a high-crime neighborhood or area with gangs is not beyond the jury's common experience. A multitude of cases provide that expert testimony about the psychology and culture of street gangs is admissible to explain the actions of gang members (People v. Gonzalez (2006) 38 Cal.4th 932, 944), but appellant repeatedly stressed he was not a gang member. Unlike the chronically homeless man in Sotelo-Urena or the abused spouse in Humphrey, there was no basis to admit expert testimony that appellant had a heightened sensitivity to threats of violence. Appellant and other witnesses described him as a peacemaker or mediator in the community demonstrating an ability to control his emotions and calm others.
In a recent decision, the Fourth District sought to clarify the reasonable person standard applicable to self-defense. (People v. Brady (2018) 22 Cal.App.5th 1008 (Brady).) Brady involved a self-defense claim by a homeless individual with bipolar disorder, posttraumatic stress disorder, and a history of being a victim of violence. (Id. at pp. 1010-1011.) He argued that the standard is what would someone with his attributes do when faced with an imminent threat. The court held this was not the standard. "To justify an act based on self-defense, a defendant must have subjectively held an objectively reasonable belief that bodily injury was imminent. The objective component considers what would have appeared necessary to a reasonable person in the defendant's situation with his or her knowledge." (Id. at p. 1010.) The Brady court recognized Sotelo-Urena concluded that expert testimony regarding chronic homelessness was relevant to the objective prong of a self-defense claim. (Id. at p. 1016.) But Sotelo-Urena did not create a " 'reasonable homeless person standard.' " (Ibid.) Brady interpreted the court's holding in Sotelo-Urena as "expert testimony regarding chronic homelessness could bear on the issue of reasonableness by showing that, due to the greater incidence of violence toward homeless persons, 'a [homeless individual] might become sensitized and thus able reasonably to discern when danger is real and when it is not.' " (Ibid., quoting Humphrey, supra, 13 Cal.4th at p. 1086.)
The Brady court concluded: "Simply put, we view Humphrey and Sotelo-Urena as providing that the reasonable person standard takes into account a defendant's knowledge that may increase his or her ability to accurately predict impending violence. [Citation.]" (Brady, supra, 22 Cal.App.5th at p. 1017, italics omitted.) The court held this did not include Brady's personal attributes or experiences. His personal history of trauma was not folded into the objective prong of a self-defense claim. (Ibid.)
Similarly, here, appellant's personal experience with Glaspie and the Towerside gang was presented to the jury but it not part of the reasonable person standard and does not require expert testimony.
The expert testimony appellant sought to introduce was not probative and was prejudicial. The offer of proof included O'Brien's views of the gang culture in Visitation Valley, the victims' gang affiliation and the city attorney's gang injunction against the Towerside gang. It also included O'Brien's opinions about the victims, much of which was inadmissible hearsay.
After appellant testified, his testimony combined with Augusta and Fells explained the relationship between the Towerside gang and individuals present at the Burr Street house. Appellant also explained his experience with the victims and the fact he was threatened when he was younger. The jury had the necessary " ' " 'facts and circumstances' " ' " to determine whether a reasonable person in a similar situation with similar knowledge would feel the need to defend himself. (Humphrey, supra, 13 Cal.4th at pp.1082-1083.) We find no error in the court's exclusion of gang expert testimony.
3. Appellant Was Not Prejudiced by the Exclusion of the Gang Expert's Opinion
Even if the trial court erred in excluding the gang testimony, any such error was not prejudicial. Appellant argues that we must apply the harmless beyond a reasonable doubt standard under Chapman v. California (1967) 386 U.S. 18, 24 (Chapman), but " 'the routine application of provisions of the state Evidence Code law does not implicate a criminal defendant's constitutional rights.' (People v. Jones (2013) 57 Cal.4th 899, 957; accord People v. Robinson (2005) 37 Cal.4th 592, 626-627 [' "[A]s a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused's [state or federal constitutional] right to present a defense." '].) . . . [T]he trial court's error was one of state evidentiary law only, and the proper standard of review is whether it is reasonably probable that defendant would have obtained a more favorable result in the absence of the error. [Citations.]" (Sotelo-Urena, supra, 4 Cal.App.5th at p. 756.) We therefore consider whether it is reasonably probable that appellant would have obtained a more favorable verdict if the testimony was admitted under People v. Watson (1956) 46 Cal.2d 818, 836.
Given the evidence at trial, it is not reasonably probable that appellant would have obtained a more favorable result if a gang expert was allowed to testify. As the trial court noted, the videotape played for the jury showed appellant shoot Glaspie in the head. Daniels witnessed the shooting and began to run away and appellant shot him in the head from behind. Appellant then stood over Daniels and shot him twice more in the head. He then returned to Glaspie and shot him again in the head. Both victims were not armed.
Prior to the shooting, Daniels was crying and repeatedly saying "I didn't do it." Janeka Fells testified she never saw Daniels or Glaspie with a weapon or heard them threaten anyone. Appellant testified Glaspie said: "I'm going to get my Tower niggas," but he never mentioned any threat by Daniels. Appellant perceived Glaspie's statement as a threat, but even if we accept the statement as true, it was not an imminent threat. Self-defense "requires without exception that the defendant must have had an actual belief in the need for self-defense . . . . Fear of future harm—no matter how great the fear and no matter how great the likelihood of the harm—will not suffice. The defendant's fear must be of imminent danger to life or great bodily injury." (In re Christian S. (1994) 7 Cal.4th 768, 783, italics omitted.) Appellant failed to demonstrate imminent danger, especially from Daniels. Glaspie and Daniels were standing on the street, unarmed. Even if we believe appellant's testimony that he thought Glaspie may have summoned or would summon members of his gang, that was not an immediate threat to appellant's life or body.
The gang expert testimony was supposed to demonstrate Glaspie was a Towerside gang leader, Daniels was associated with Towerside gang members and that their presence at the Burr Street house was a provocative act. However, all of this was presented to jury through testimony of other witnesses as well as appellant's testimony.
Finally, appellant testified the he felt scared and wanted to prevent gang violence which caused him to shoot Glaspie and Daniels. However, shooting two gang members, one of whom appellant believed to be a leader, would only incite more violence and retribution. Appellant failed to testify to anything that made the gang expert testimony more probative than prejudicial.
The trial court did not err in finding the proposed expert testimony was more prejudicial than probative because it was not relevant to the issues before the jury.
B. Prosecutor's Rebuttal Argument
Appellant argues that the prosecution committed misconduct by misstating the law on provocation.
In its rebuttal argument, the prosecution stated:
"Provocation is a small portion of heat of passion. Take a look at what the law actually says. It's not enough that the defendant simply was provoked. Everybody at [the Burr Street house] was provoked . . . . [¶] The defendant is not allowed to set up his own standard of conduct. In deciding whether provocation was sufficient consider whether a person of average disposition in the same situation and knowing the same facts would have acted from passion rather than judgment.
"So everybody there was upset, was angry, was yelling. Lawyers go back and forth about who the average person or who the reasonable person is. But I would submit to you that a good example would be evidence of every other person at [the Burr Street house]. Every other person was in the same situation. They had at least the same relationship to this young man who was killed, if not closer. They knew the same facts. They heard the same rumors . . . .
"This is natural reaction of a reasonable person: I'm upset. I'm angry. I'm sad. I'm confused. I'm going to yell at you . . . . [¶] You can decide by looking at the reaction of the average reasonable person, of everyone else, what did they not do? Murder two people." (Italics added.)
Defense counsel objected: it "misstates the law." The court then instructed the jury: "if counsel states something different from my instructions, you are to follow my instructions."
" 'To constitute a violation of the federal Constitution, prosecutorial misconduct must " 'so infect[ ] the trial with unfairness as to make the resulting conviction a denial of due process.' " [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves " 'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.' " ' " (People v. Harris (2005) 37 Cal.4th 310, 341, quoting People v. Benavides (2005) 35 Cal.4th 69, 108.) A prosecutor's improper comments violate the federal Constitution if they " ' "so infect[ ] the trial with unfairness as to make the resulting conviction a denial of due process." ' [Citations.]" (People v. Cunningham (2001) 25 Cal.4th 926, 1000.)
Heat of passion arises if, " ' "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. Beltran (2013) 56 Cal.4th 935, 942 (Beltran).)
Appellant relies on People v. Najera (2006) 138 Cal.App.4th 212 (Najera). During the closing argument in Najera, the prosecutor argued to evaluate heat of passion, the jury must consider whether "a reasonable, ordinary person" would have reacted as the defendant did. (Id. at p. 223.) The prosecutor stated: "Would a reasonable person do what the defendant did? Would a reasonable person be so aroused as to kill somebody? That's the standard." (Ibid., italics omitted.) In rebuttal, the prosecutor stated: " '[T]he reasonable, prudent person standard . . . [is] based on conduct, what a reasonable person would do in a similar circumstance. Pull out a knife and stab him? I hope that's not a reasonable person standard.' " (Ibid.)
The Najera court held: "The focus is on the provocation—the surrounding circumstances—and whether it was sufficient to cause a reasonable person to act rashly. How the killer responded to the provocation and the reasonableness of the response is not relevant to sudden quarrel or heat of passion." (Najera, supra, 138 Cal.App.4th at p. 223.) The prosecutor's remarks were misleading and a misstatement of law, but despite the error, the court concluded that no reversal was necessary. (Id. at p. 224.) The court explained that the remarks did not require a reversal as the victim's conduct that precipitated the attack did not demonstrate adequate provocation as a matter of law. (Id. at p. 226.)
Appellant is correct that the prosecutor's one statement in rebuttal in this case shares similarities with the improper argument in Najera and was not the proper statement of the law under Beltran. "The proper focus is placed on the defendant's state of mind, not on his particular act. To be adequate, the provocation must be one that would cause an emotion so intense that an ordinary person would simply react, without reflection." (Beltran, supra, 56 Cal.4th at p. 949, italics omitted.) The prosecutor told the jury that everyone else present did not react by committing murder. This was improper because it focused on appellant's actions rather than on his mental state. The prosecutor's statement that a reasonable person would not have killed Daniels and Glaspie was improper because it suggested that the jury should evaluate whether a reasonable person would have acted the way appellant did.
We conclude, however, this statement was not prejudicial. The prosecutor's other statements about provocation and heat of passion were accurate and to the extent the jury was confused, it was properly instructed by the court. The court instructed the jury that "defendant killed someone because of a sudden quarrel or heat of passion if the defendant was provoked. As a result of the provocation the defendant acted rashly and under the influence of intense emotion that obscured his reasoning or judgment. And the provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than judgment." The court further explained that it is not enough that the defendant was provoked. "The defendant is not allowed to set up his own standard of conduct. In deciding whether provocation is sufficient, consider whether a person of average disposition in the same situation and knowing the same facts would have reacted from passion rather than judgment." We presume that the jury followed those instructions. (People v. Boyette (2002) 29 Cal.4th 381, 436.)
The fact that the jury convicted appellant of the voluntary manslaughter of Glaspie rather than first degree murder demonstrates the jury understood the court's instructions and properly applied them.
Furthermore, prior to closing arguments, the court instructed the jury: "Nothing that the attorneys say is evidence. In their opening statements and closing arguments the attorneys discuss the case, but their remarks are not evidence." We presume that the " 'the jury treated the court's instructions as statements of law, and the prosecutor's comments as words spoken by an advocate in an attempt to persuade.' " (People v. Seaton (2001) 26 Cal.4th 598, 646.)
Appellant argues at length the prosecutor's statement violated his Sixth and Fourteenth Amendment rights and should be reviewed under the Chapman standard. "We find that, even if the prosecutor's argument constituted misconduct, it did not render the trial so fundamentally unfair that it triggered the Chapman standard. Nor is it reasonably probable that a more favorable result would have been reached absent the alleged objectionable argument. Reversal is neither warranted nor appropriate. [Citations.]" (People v. Fernandez (2013) 216 Cal.App.4th 540, 564.)
We conclude that "[t]here was no reasonable possibility the prosecutor's challenged statements affected the jury's [verdict]. [Citation.]" (People v. McDowell (2012) 54 Cal.4th 395, 438.)
C. Cumulative Error
We have rejected appellant's arguments that errors occurred during his trial. Accordingly, we reject his contention that the cumulative effect of the errors requires reversal. (See People v. Bolin (1998) 18 Cal.4th 297, 335.)
IV.
DISPOSITION
The judgment is affirmed.
/s/_________
SMITH, J. We concur: /s/_________
STREETER, Acting P. J. /s/_________
REARDON, J.
Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.