Filed 5/20/14 P. v. Vicary 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THE PEOPLE, D063404
Plaintiff and Respondent,
v. (Super. Ct. No. JCF28830)
ANDREW AARON VICARY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Imperial County, Donal B.
Donnelly, Judge. Affirmed.
Dacia A. Burz, by appointment of the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
William M. Wood and Amanda E. Casillas, Deputy Attorneys General, for Plaintiff and
Respondent. A jury convicted Andrew Aaron Vicary of the attempted murder of his wife (the
victim) (count 1: Pen. Code,1 §§ 664, 187, subd. (a)) and found true an allegation that
the attempted murder was willful, premeditated, and deliberate. The jury also convicted
Vicary of corporal injury to his spouse (count 2: § 273.5, subd. (a)). The court sentenced
him to an indeterminate state prison term of life with the possibility of parole for his first
degree attempted murder conviction. The court also imposed the upper term of four
years for Vicary's count 2 conviction, but stayed execution of the sentence under section
654.
Vicary appeals, contending his attempted murder conviction must be reversed
because (1) his trial counsel provided prejudicial ineffective assistance by failing to
object when, during closing argument, the prosecutor misstated the proper legal standard
for assessing the adequacy of provocation that reduces an attempted murder to attempted
voluntary manslaughter committed in the heat of passion; and (2) the prosecutor's
misstatement of the correct standard for assessing provocation prejudicially injected
ambiguity into the attempted voluntary manslaughter jury instruction (CALCRIM No.
603) given by the court, resulting in a miscarriage of justice. We affirm the judgment.
1 Undesignated statutory references are to the Penal Code. 2 FACTUAL BACKGROUND
A. The People's Case
On May 17, 2012, Vicary and his wife, the victim in this case, lived together in a
tent in Slab City, a campground outside the City of Niland in Imperial County. Andra
Dakota was socializing at one of the campsites in Slab City. Dakota testified that, while
she was sitting outside around noon, she heard a "loud squealing noise" that sounded like
"an animal being slaughtered." Realizing the next scream was from a person screaming,
she ran towards the sound which came from another campsite. When she reached that
campsite, she saw Vicary and the victim, both of whom she had met. The victim was
lying flat on her back on the ground, and Vicary was bent over her with one foot on either
side of her body and choking her with his hands on her neck.
Dakota testified she screamed at Vicary, "What the fuck are you doing; what the
fuck are you doing?" Vicary immediately let go of the victim and stood up. In a "jittery"
state, Vicary said, "She was going to leave me; she was going to leave me." He then
stepped to one side and ran off.
Dakota went over to the victim, who was unconscious and not breathing. Dakota
thought she was dead. The victim's mouth was open and her eyes had rolled back into
her head. Dakota repeatedly shook the victim, and she started coughing and breathing
again. About a couple of minutes later, the victim regained consciousness and started
muttering, but Dakota could not understand what she was saying.
3 Shortly thereafter, Imperial County Deputy Sheriff Pompeyo Tabarez, firefighter
and paramedic Aaron Castro, and an emergency medical technician arrived at the scene.
Castro testified he saw someone taking care of the victim, who was lying on her back
with a broken chair underneath her. The victim told him that her husband had strangled
her and that her head had struck a pole inside the tent. In response to the prosecutor's
questions, Castro testified the victim did not mention anything to him about suffering her
injuries as a result of rough sex or a bondage game. Castro put a neck brace on her and
other paramedics put her in an ambulance.
Deputy Tabarez testified that when he arrived at the scene, he saw through the
mesh netting of the tent that the victim was inside the tent, lying on the ground as Dakota
was giving her first aid. The victim was conscious but had a hard time speaking because
her throat was injured. Deputy Tabarez also testified he had received training on injuries
caused by strangulation. He saw the victim had red marks and bruises on her neck, and
in the corner of the whites of her eyes he observed small blood spots called petechiae that
result from the bursting of blood vessels caused by pressure on the neck and lack of
oxygen. The victim's voice was deep and "raunchy," and he could hear a "little
whispering in the back" that sounded like a whistle. Based on his domestic violence
training, Deputy Tabarez opined that the victim's bruising, red marks, petechiae, rolled
back eyes, and voice were consistent with strangulation.
Deputy Tabarez testified he used his cell phone to videotape the victim's
statements about the incident. Two videotaped recordings of her statements, which
Deputy Tabarez testified accurately reflected what she said, were played for the jury.
4 In the recordings, the victim stated she and Vicary "were arguing because [she]
was inside the tent and [she] was hot, and [she] wanted to get out. It took [her] an hour
and a half to [two] hours to finally get out of the tent, and [she] yelled at [Vicary], saying
that [she] hated him for doing that to [her]" because she "had to go to the bathroom, and
[she was] fricking thirsty, and [she] was hot." She told Vicary she did not want him
around her. Vicary got mad, started tapping her on the back of her shoulders, grabbed
hold of her, slammed her head against the wall, and choked her from behind. The victim
told Deputy Tabarez that after her head hit the "wooden stick," she was on the ground.
She stated she "yelled once" and "then [she] saw the lady and her boyfriend on top of
[Vicary]." She told Deputy Tabarez she was "not really" trying to break up with Vicary,
and she was "just mad at him." The victim told Deputy Tabarez there had been a prior
domestic violence incident in Slab City "[t]wo days before Christmas [in which] he
blacked both of my eyes, busted my nose, had blood coming out of my lip and out the
back of my head from a rock."
Two civilians brought Vicary to the Niland police substation. Deputy Tabarez
testified that after Vicary waived his Miranda2 rights, he voluntarily agreed to make
statements about the incident. During the police interview, Vicary told Deputy Tabarez
he and the victim were arguing earlier that day and she told him she was leaving him.
Vicary said the victim punched him twice and then somehow he was on top of her,
2 Miranda v. Arizona (1966) 384 U.S. 436.
5 choking her, and then he snapped out of it and started wondering what happened. Vicary
told Deputy Tabarez he did not want to kill her.
Leigh Price, a physician's assistant at the hospital where the victim was
transported, testified that she performed a physical evaluation of the victim. The
examination showed the victim had face, neck, spinal, and wrist pain, but no pain
medication was prescribed for her. The prosecutor asked Price for his opinion as to
whether certain assumed facts would be consistent with a strangulation. Specifically, the
prosecutor asked Price to assume that someone saw a person being strangled and, after
the person being strangled was released, that person's eyes rolled back, the person
stopped breathing for 10 seconds, regained consciousness after one-and-a-half minutes,
experienced problems with speaking, eating, and drinking; and had petechiae in the eyes.
Price opined that those assumed facts were consistent with strangulation. Price also
opined that death by strangulation would occur in less than 10 minutes if the person being
strangled had been punched multiple times in the face and the person's head had been
slammed through a chair before the strangulation.
At trial, outside the presence of the jury, the court granted the prosecution's
request that the victim be examined as a hostile prosecution witness. In the presence of
the jury, the victim stated she was testifying in court "against [her] will." She agreed she
was there under subpoena, she did not want to be in court, and she did not want anything
to happen to Vicary in this case because she "love[d] him so much." The victim testified
Vicary choked her because she liked to engage in bondage and she asked him to strangle
6 her. She acknowledged she did not tell Deputy Tabarez or anyone else that the choking
involved bondage.
The victim acknowledged she told Deputy Tabarez about a prior incident around
Christmas 2011, five months before the May 17 strangling incident, during which Vicary
assaulted her and hit her in the face causing it to bleed. However, she denied that Vicary
hit the back of her head with a rock. Instead, she claimed the back of her head hit a rock.
The victim also testified that she and Vicary had argued on the day of the incident
because she woke up believing he was on crystal meth and she wanted a divorce. On
cross examination, however, she indicated she had only dreamt that Vicary was on crystal
meth.
The victim also testified on cross-examination that, later that day, she and Vicary
engaged in hostage role-playing foreplay during which Vicary wrestled her to the ground
and started choking her. She testified she told Vicary to "do it tighter," but she became
unconscious. She also testified she did not think Vicary was trying to kill her.
On recall, Dakota testified that she saw the victim about four or five weeks after
the incident at the former campsite in Slab City. Dakota testified the victim told her she
almost "capped" (died) in the ambulance that day and was lucky to be alive. The victim
also told her that as a result of the choking, her trachea and jaw had been broken, and she
suffered permanent injury to one of her eyes.
B. The Defense
The defense presented no evidence.
7 DISCUSSION
On appeal, Vicary raises two contentions in support of his claim that his first
degree attempted murder conviction must be reversed. First, he contends his trial counsel
provided prejudicial ineffective assistance by failing to object when, during closing
argument, the prosecutor misstated the proper legal standard for assessing the adequacy
of provocation that reduces an attempted murder to attempted voluntary manslaughter
committed in the heat of passion. Second, he contends the prosecutor's misstatement of
the standard for assessing provocation prejudicially injected ambiguity into the attempted
voluntary manslaughter instruction (CALCRIM No. 603) that the court gave to the jury,
causing jury confusion and resulting in a miscarriage of justice. We conclude these
contentions are unavailing because Vicary has failed to meet his burden of demonstrating
his counsel provided ineffective assistance by failing to object to the prosecutor's
misstatement of the law or that the prosecutor's misstatement of the law prejudiced
Vicary by causing jury confusion. Accordingly, we affirm the judgment.
A. Background
Before the prosecution called its first witness, the court instructed the jury under
CALCRIM No. 222 that "[n]othing that the attorneys say is evidence. In their opening
statements and closing arguments, the attorneys will discuss the case but their remarks
are not evidence."
Following the presentation of evidence and before closing arguments, defense
counsel requested that the jury be instructed under CALCRIM No. 603 on the lesser
8 included offense of attempted voluntary manslaughter committed in the heat of passion.
The prosecutor did not oppose the request, and the court agreed to give that instruction.
As pertinent here, the court later instructed the jury under CALCRIM No. 200,
which stated in part, "You must follow the law as I explain it to you, even if you disagree
with it. If you believe that the attorneys' comments on the law conflict with my
instructions, you must follow my instructions." (Italics added.)
The court also instructed the jury on attempted voluntary manslaughter committed
in the heat of passion, as a lesser included offense of attempted murder, by giving a
modified version of CALCRIM No. 603.3
3 The court instructed the jury under CALCRIM No. 603 as follows: "An attempted killing that would otherwise be attempted murder is reduced to attempted voluntary manslaughter if the defendant attempted to kill someone because of a sudden quarrel or in the heat of passion. [¶] The defendant attempted to kill someone because of a sudden quarrel or in the heat of passion if: [¶] One, the defendant took at least one direct but ineffective step toward killing a person. [¶] Two, the defendant intended to kill that person. [¶] Three, the defendant attempted the killing because he was provoked. [¶] Four, the provocation would have caused a person of average disposition to act rashly and without due deliberation; that is, from passion rather than from judgment. [¶] And five, the attempted killing was a rash act done under the influence of intense emotion that obscured the defendant's reasoning or judgment. [¶] Heat of passion does not require anger, rage or any specific emotion. It can be volatile or intense emotion that caused a person to act without due deliberation and reflection. [¶] In order for a sudden quarrel or heat of passion to reduce an attempted murder to attempted voluntary manslaughter, the defendant must have acted under the direct and immediate influence of provocation as I have defined it. [¶] While no specific type of provocation is required, slight or remote provocation is not sufficient. [¶] Sufficient provocation may occur over a short or long period of time. [¶] It is not enough that the defendant simply was provoked. The defendant is not allowed to set up his own standard of conduct. [¶] You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was 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. [¶] If enough time passed between the provocation and the 9 1. Prosecutor's misstatement of the law regarding provocation
During closing argument, while attempting to explain the difference between
attempted murder and attempted voluntary manslaughter committed in the heat of
passion, the prosecutor stated—without an objection from defense counsel—that "[t]he
only difference is voluntary manslaughter says that if you find that a person of average
disposition—it's an objective standard—would have acted in the same way [Vicary] did,
then you can find him guilty of that." (Italics added.) Immediately thereafter, the
prosecutor told the jury, "All I'm going to say to that, ladies and gentlemen, again, this is
attempted murder, and for you to find him guilty of [attempted] voluntary manslaughter in
the heat of passion, you will have to say that this is how a reasonable person should act,
a person of average disposition." (Italics added.)
Soon thereafter, again without an objection from defense counsel, the prosecutor
argued:
"There are a lot of people who get divorced, a lot of relationships that don't work out every year. There's a family court right downstairs [and] probably right now there's a lot of people whose relationships didn't work out. Most people don't go to the extreme of trying to kill their partner when things don't work out. [¶] Everyone, at least most people have been in a relationship that didn't work out, where somebody threatened to leave or somebody did leave. For you to find him guilty of [attempted] voluntary manslaughter [in the] heat of passion, you'll have to decide that . . . what he did was about what anybody else would do based on the circumstances of this case.
attempted killing for a person of average disposition to cool off and regain his or her clear reasoning and judgment, then the attempted murder is not reduced to attempted voluntary manslaughter on that basis. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant attempted to kill someone and was not acting 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 attempted murder." (Italics added.) 10 [¶] What he did is not what anyone else would do, ladies and gentlemen. What he did was serious. What he did was violent. And what he did was attempted murder." (Italics added.)
2. Verdicts
As previously noted, the jury found Vicary guilty of the attempted murder of his
wife and found true the allegation that the attempted murder was willful, premeditated,
and deliberate. The jury also found Vicary guilty of inflicting corporal injury upon his
wife.
B. Analysis
1. Claim of ineffective assistance of counsel
In support of his claim of ineffective assistance of counsel, citing People v.
Beltran (2013) 56 Cal.4th 935 (Beltran), Vicary first asserts the prosecutor committed
misconduct during his closing argument "because he told the jury that adequate
provocation for attempted voluntary manslaughter requires an ordinary person be
inflamed to kill." (Italics added.) The Attorney General concedes the prosecutor
committed misconduct because his statements to the jury (discussed, ante) erroneously
"focused on [Vicary's] actions instead of whether a reasonable person under the same
circumstances . . . would have been driven to react out of emotion rather than judgment."
We agree the prosecutor committed misconduct by misstating the law regarding
the proper standard for assessing the legal sufficiency of provocation. In Beltran, the
California Supreme Court recently explained that heat of passion is a state of mind that
"precludes the formation of malice and reduces an unlawful killing from murder to
manslaughter," and heat of passion is "caused by legally sufficient provocation that
11 causes a person to act, not out of rational thought but out of unconsidered reaction to the
provocation." (Beltran, supra, 56 Cal.4th at p. 942.) Rejecting an argument similar to
the one the prosecutor made in this case,4 the Beltran court explained:
"Adopting a standard requiring such provocation that the ordinary person of average disposition would be moved to kill focuses on the wrong thing. 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. To satisfy [the proper standard], the anger or other passion must be so strong that the defendant's reaction bypassed his thought process to such an extent that judgment could not and did not intervene. Framed another way, provocation is not evaluated by whether the average person would act in a certain way: to kill. Instead, the question is whether the average person would react in a certain way: with his reason and judgment obscured." (Id. at p. 949, last italics added.)
The Beltran court further explained that, under the proper standard (which it
referred to as the Logan standard), "[p]rovocation is adequate only when it would render
an ordinary person of average disposition 'liable to act rashly or without due deliberation
4 In Beltran, during closing arguments at trial, the prosecutor argued in part as follows regarding heat of passion: "'And the provocation has to be such that a person of average disposition to act with passion rather than judgment [sic]. We would have probably millions more homicides a year if everyone could use words that may be─although I don't disbelieve. I don't agree that this is what happened. It's an illogical interpretation of the facts. You stub your toe. You're angry, might cuss a few words. You don't go out and kill somebody. [¶] We've all gotten cut off in traffic. We say the few choice words, "Oh, my God." We don't gun the pedal and start trying to hit the car in front of us to try to kill the person who cut us off. Can you imagine if that was permissible, "Oh, my God, I acted [ ] without judgment and rash. I got so angry. I was insulted." That's not the standard. It's a reasonable person, and you're all reasonable people and you know that it's illogical that even these words were uttered.'" (Beltran, supra, 56 Cal.4th at p. 943, fn. 5, italics added.) The Supreme Court in Beltran commented that the prosecutor's remarks to the jury arguably misstated the law by "seem[ing] to suggest that the jury should consider the ordinary person's conduct and whether such a person would kill." (Id. at p. 955 & fn. 15.) 12 and reflection, and from this passion rather than from judgment.'" (Beltran, supra, 56
Cal.4th at p. 957, quoting People v. Logan (1917) 175 Cal. 45, 49.) The Supreme Court
rejected the Attorney General's argument in that case that the proper standard for
assessing the adequacy of provocation is whether an ordinary person of average
disposition would be moved to kill. (Beltran, at pp. 946, 949.)
Here, the prosecutor misstated the law by essentially arguing, like the prosecutor
in Beltran, that the proper standard for assessing the adequacy of provocation is whether
an ordinary person of average disposition would be moved to kill. By misstating the law,
as the parties correctly acknowledge, the prosecutor in this case committed misconduct.
(People v. Boyette (2002) 29 Cal.4th 381, 435 ["[I]t is misconduct for the prosecutor to
misstate the applicable law."].)
However, as the Attorney General correctly points out, Vicary forfeited any claim
of prosecutorial misconduct in this case because his trial counsel failed to object to the
prosecutor's misstatement of the law. (People v. Price (1991) 1 Cal.4th 324, 447 ["To
preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely
objection at trial and request an admonition; otherwise, the point is reviewable only if an
admonition would not have cured the harm caused by the misconduct."].)
Thus, in challenging his first degree attempted murder conviction, Vicary claims
instead that his counsel performed deficiently and prejudicially by failing to object to the
prosecutor's misstatement of the law. This claim is unavailing.
The law governing Vicary's ineffective-assistance-of-counsel claim is settled. A
criminal defendant is constitutionally entitled to effective assistance of counsel. (U.S.
13 Const., 6th Amend.; Cal. Const., art. I, § 15; Strickland v. Washington (1984) 466 U.S.
668, 684-685; People v. Frye (1998) 18 Cal.4th 894, 979.) To establish a denial of the
right to effective assistance of counsel, a defendant must show (1) his or her counsel's
performance was below an objective standard of reasonableness under prevailing
professional norms, and (2) the deficient performance prejudiced the defendant.
(Strickland, at pp. 687, 691-692; Frye, at p. 979.) To demonstrate prejudice, a defendant
must show a reasonable probability he or she would have received a more favorable
result had counsel's performance not been deficient. (Strickland, at pp. 693-694; Frye, at
p. 979.) "A reasonable probability is a probability sufficient to undermine confidence in
the outcome." (Strickland, supra, 466 U.S. at p. 694.)
Strickland explained that "[j]udicial scrutiny of counsel's performance must be
highly deferential [because] [i]t is all too tempting for a defendant to second-guess
counsel's assistance after conviction or adverse sentence, and it is all too easy for a court,
examining counsel's defense after it has proved unsuccessful, to conclude that a particular
act or omission of counsel was unreasonable." (Strickland, supra, 466 U.S. at p. 689.)
Strickland also explained that reviewing courts "must indulge a strong presumption that
counsel's conduct falls within the wide range of reasonable professional assistance; that
is, the defendant must overcome the presumption that, under the circumstances, the
challenged action 'might be considered sound trial strategy.'" (Ibid.)
In addition, trial counsel's failure to object is generally a matter of trial tactics as to
which reviewing courts will not exercise judicial hindsight. (People v. Kelly (1992) 1
Ca1.4th 495, 520 (Kelly), italics added.) In Kelly, the California Supreme Court
14 explained that "'[w]hen a defendant makes an ineffectiveness claim on appeal, the
appellate court must look to see if the record contains any explanation for the challenged
aspects of representation. If the record sheds no light on why counsel acted or failed to
act in the manner challenged, "unless counsel was asked for an explanation and failed to
provide one, or unless there simply could be no satisfactory explanation" [citation], the
contention must be rejected."' (Ibid.) Thus, "[a] reviewing court will not second-guess
trial counsel's reasonable tactical decisions." (Ibid.)
"Because the appellate record ordinarily does not show the reasons for defense
counsel's actions or omissions, a claim of ineffective assistance of counsel should
generally be made in a petition for writ of habeas corpus, rather than on appeal." (People
v. Diaz (1992) 3 Cal.4th 495, 557-558 (Diaz).) A defendant's burden is difficult to carry
on direct appeal because reviewing courts will reverse convictions on the ground of
inadequate representation only if the record on appeal affirmatively discloses that counsel
had no rational tactical purpose for his or her act or omission. (People v. Lucas (1995)
12 Ca1.4th 415, 43.)
Here, we conclude Vicary has failed to meet his burden of overcoming the strong
presumption that his trial counsel's failure to object to the prosecutor's misstatement of
the law regarding the proper standard for assessing the adequacy of provocation fell
within the wide range of reasonable professional assistance. The appellate record does
not disclose the reasons for defense counsel's omission. The Attorney General argues
that Vicary's counsel may have decided to withhold an objection because the court had
properly instructed the jury under CALCRIM No. 603 (on the lesser included offense of
15 attempted voluntary manslaughter committed in the heat of passion, as a lesser included
offense of attempted murder), and counsel was relying on the jurors to follow the court's
instructions. Indeed, as already noted, the court had instructed the jurors under
CALCRIM No. 222 that the attorneys' statements were not evidence, and also had
instructed them under CALCRIM No. 200 that, if they believed the attorneys' comments
on the law conflicted with the court's instructions, they were required to follow the court's
instructions.
The Attorney General also argues that because defense counsel in his closing
argument urged the jury to acquit Vicary of any criminal liability for attempted homicide,
he may have purposefully decided not to raise an objection in order to avoid placing
emphasis on the prosecutor's closing argument.
While the Attorney General's arguments offer plausible explanations for defense
counsel's challenged omission, they are speculative, as the Attorney General concedes.
The California Supreme Court has directed that, "[w]hen . . . the record sheds no light on
why counsel acted or failed to act in the manner challenged, the reviewing court should
not speculate as to counsel's reasons [because] engag[ing] in such speculations would
involve the reviewing court'" in the perilous process of second-guessing."'" (Diaz, supra,
3 Cal.4th at p. 557.) We are bound by the Supreme Court's directive in Diaz. (Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Here, as the appellate record sheds no light on why Vicary's trial counsel did not
object to the prosecutor's misstatement of the law during closing arguments, we will not
speculate as to counsel's reasons. (Diaz, supra, 3 Cal.4th at p. 557.) Thus, as the record
16 sheds no light on why counsel failed to act in the manner Vicary challenges, and there is
no basis for determining there could be no satisfactory explanation for his omission, we
conclude his claim of ineffective assistance of counsel must be rejected because Vicary
has failed to meet his threshold burden of demonstrating his trial counsel's performance
was deficient. (See Kelly, supra, 1 Cal.4th at p. 520.)
b. Vicary's claim his counsel's performance was prejudicial
In light of our conclusion that Vicary has failed to meet his burden of
demonstrating his counsel provide ineffective assistance by failing to object to the
prosecutor's misstatement of the law regarding provocation, we need not reach the merits
of Vicary's related assertion he was prejudiced by the claimed ineffective assistance.
However, even if we were to assume defense counsel's performance was deficient, we
would further conclude Vicary has failed to show he was prejudiced by the ineffective
assistance.
In support of his claim of prejudice, Vicary relies on this court's decision in People
v. Anzalone (2006) 141 Cal.App.4th 380. Vicary asserts that, "like [in] Anzalone, defense
counsel's failure to object to the prosecutor's misstatement of the law on the correct
standard for provocation . . . allowed the jury to reject attempted voluntary manslaughter
on an erroneous legal theory." Vicary acknowledges that here, "[a]s in Anzalone, it was
arguably reasonable for defense counsel's closing argument to gloss over attempted
voluntary manslaughter since the defense's primary position was [that he] had no intent to
kill when he beat and choked [the victim], and that he was only guilty of the charge of
domestic violence." He claims, however, that it is reasonably probable the results of the
17 trial would have been different if his trial counsel had objected because, "[l]ike [in]
Anzalone, the prosecutor's closing argument left the jury with the mistaken impression
that only provocation that inflamed an ordinary man to kill reduced attempted murder to
attempted voluntary manslaughter, and thus, it lessened the prosecutor's burden of proof
by allowing the jury to improperly reject attempted voluntary manslaughter as a lesser
included offense." Vicary's reliance on Anzalone is unavailing.
In Anzalone, the defendant was convicted of four counts of first degree attempted
murder based on evidence that the owner of a car interrupted the defendant as he was
attempting to steal the car, and the defendant fled but soon thereafter drove by and fired
two gunshots, one at the owner and the other in the direction of three other men who were
with the owner and attempting to find cover by the trunk of the car. (Anzalone, supra,
141 Cal.App.4th at p. 384.) On appeal the defendant challenged three of his four
attempted murder convictions, contending the court erred by failing to give a standard
jury instruction on concurrent intent, and defense counsel provided ineffective assistance
by failing to object to the prosecutor's misstatement of the law on the concepts of
concurrent intent and "zone of danger." (Id. at pp. 386, 395-396.)
In reversing the three attempted murder convictions related to the second gunshot
the defendant fired in the direction of the three men by the trunk of the car, we concluded
in Anzalone that, although the court did not commit instructional error, the prosecutor
committed misconduct by misstating the law related to the concepts of concurrent intent
18 and zone of danger.5 (Anzalone, supra, 141 Cal.App.4th at pp. 392-393, 395.) We also
held defense counsel "was prejudicially ineffective in failing to object to the prosecutor's
misstatement of the law." (Id. at p. 395.) In reaching this conclusion, we reasoned that
(1) as the trial court had not instructed the jury on the concept of concurrent intent (see id.
at p. 390), the prosecutor's erroneous argument concerning zone of danger "left the jury
with the mistaken impression that by firing indiscriminately in the direction of a group of
men, [the defendant] was guilty of attempting to kill them all" (id. at p. 395); (2) it was
5 Specifically, we concluded in Anzalone that "the argument of the prosecutor concerning how the jury could find appellant guilty of four counts of attempted murder when only two shots were fired was legally incorrect. [¶] It appears the prosecutor was attempting to invoke in some form the concept of concurrent intent outlined in [People v. Bland (2002) 28 Cal.4th 313] to explain how four counts of attempted murder could arise from the firing of only two shots. Undoubtedly, the trial court was aware this was the prosecutor's theory. . . . The trial court, however, did not give CALJIC No. 8.66.1, defining the concept of concurrent intent. [W]e cannot be sure why the trial court did not so instruct but it may be because in Bland the court explained that concurrent intent is not a legal doctrine requiring special instructions. The concept is, simply, an inference the jury may draw from the evidence." (Anzalone, supra, 141 Cal.App.4th at p. 392.) We noted that the prosecutor "told the jury that two shots could amount to four attempted murders because of 'something called the zone of danger,''' and he "explained that anytime persons are within this zone, the indiscriminate firing of a shot at those persons amounts to an attempted murder of everyone in the group." (Ibid.) Concluding that the prosecutor "misstated the law relevant to the definition of attempted murder" (Anzalone, supra, 141 Cal.App.4th at p. 393), we explained that "[t]he prosecutor's argument concerning zone of danger was erroneous and misleading" (ibid.) because, "[c]ontrary to the prosecutor's argument, an attempted murder is not committed as to all persons in a group simply because a gunshot is fired indiscriminately at them. The prosecutor's argument incorrectly suggest[ed] that a defendant may be found guilty of the attempted murder of someone he [did] not intend to kill simply because the victim is in some undefined zone of danger. In fact, to be found guilty of attempted murder, the defendant must either have intended to kill a particular individual or individuals or the nature of his attack must be such that it is reasonable to infer that the defendant intended to kill everyone in a particular location as the means to some other end, e.g., killing some particular person." (Id. at pp. 392-393.) 19 reasonably probable the prosecutor's misstatement of the law "led the jury to convict [the
defendant] of three additional counts of attempted murder merely because the remaining
victims were in some 'zone of danger'" (id. at p. 396); and, thus, (3) there was a
reasonable probability the results of the trial proceeding would have been different had
defense counsel objected because his failure to object "allowed the jury to find [the
defendant] guilty of multiple counts of attempted murder on an erroneous legal theory."
(Id. at p. 395.)
Vicary's reliance on Anzalone is unavailing because that case is distinguishable.
In Anzalone, as already discussed, defense counsel's failure to object to the prosecutor's
misstatement of the law regarding the concepts of concurrent intent and zone of danger
was prejudicial because the trial court did not instruct the jury concerning those legal
concepts; and, thus, counsel's failure to object allowed the jury to convict the defendant
of multiple counts of attempted murder on an erroneous legal theory. (Anzalone, supra,
141 Cal.App.4th at pp. 395-396.) Here, however, the trial court properly instructed the
jury under CALCRIM No. 603 on the law concerning the essential concept at issue
here─the legal standard for assessing the sufficiency of provocation that reduces an
attempted murder to attempted voluntary manslaughter committed in the heat of passion.
As already noted, the court also instructed the jury under CALCRIM No. 200 that, if they
believed the attorneys' comments on the law conflicted with the court's instructions, they
were required to follow the court's instructions. Absent a showing to the contrary, we
assume the jury understood and followed the instructions given. (People v. Mickey
(1991) 54 Cal.3d 612, 689, fn. 17 ["The crucial assumption underlying our constitutional
20 system of trial by jury is that jurors generally understand and faithfully follow
instructions."].) Here, as there is no showing to the contrary, we assume the jury
understood and followed the instructions the court properly gave under CALCRIM No.
603. (Mickey, at p. 689, fn. 17.) Thus, Vicary's reliance on Anzalone to show prejudice
is unavailing.
In any event, in light of the overwhelming evidence supporting his first degree
attempted murder conviction (discussed, ante, in the factual background), Vicary's claim
that—but for his counsel's failure to object—he would have obtained a more favorable
outcome, fails. That evidence shows Vicary choked the victim to the point of rendering
her unconscious, injuring her throat, and causing the blood vessels in her eyes to burst.
The strongly incriminating evidence showing Vicary let go of her throat, stated "[s]he
was going to leave me," and immediately fled when a witness screamed at him, supported
a finding he acted with willful premeditation and was aware of his guilt. For all of the
foregoing reasons, we conclude Vicary has failed to meet his burden of showing
prejudicial ineffective assistance of counsel.
2. Claim that the prosecutor's misstatement of the law caused prejudicial jury confusion
Vicary also claims the prosecutor's misstatement of the standard for assessing
provocation injected ambiguity into the attempted voluntary manslaughter instruction the
court gave the jury under CALCRIM No. 603 (see fn. 3, ante), thereby prejudicing him
by causing jury confusion that resulted in a miscarriage of justice. We conclude this
claim is unavailing because Vicary has failed to meet his threshold burden of
21 demonstrating the prosecutor's misstatement of the law caused jury confusion, and, in any
event, he has failed to demonstrate prejudice.
Our analysis is guided by the California Supreme Court's decision in Beltran,
supra, 56 Cal.4th 935. There, the defendant was charged with the murder of his former
girlfriend. (Id. at pp. 939, 941.) The trial court instructed the jury on the lesser included
offense of attempted voluntary manslaughter committed in the heat of passion by using a
modified version of former CALCRlM No. 570, which stated in part:
"The defendant killed someone . . . in the heat of passion if . . . , as a result of 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 from judgment." (Beltran, supra, 56 Cal.4th at p. 944.)
During closing argument, the prosecutor indicated that, to find the defendant acted
in the heat of passion, the jury would have to find that a person of average disposition in
the defendant's position would "go out and kill somebody." (Beltran, supra, 56 Cal.4th at
p. 943, fn. 5.) Defense counsel responded by arguing that the prosecutor had misstated
the law, and that the standard for assessing the adequacy of provocation was whether
"[t]he provocation would have caused a person of average disposition to act rashly and
without due deliberation." (Id. at p. 944, fn. 4.)
During deliberations, the jury sent the following note to the court:
"'In instruction 570: 'In deciding whether the provocation was sufficient, consider whether a person of average disposition would have been provoked and how such a person would react in the same situation knowing the same facts.' Does this mean to commit the
22 same crime (homicide) or can it be other, less severe, rash acts [?]'" (Beltran, supra, 56 Cal.4th at p. 945.)
After consulting counsel, the trial court provided the following response to the
jury's note:
"'The provocation involved must be such as to cause a person of average disposition in the same situation and knowing the same facts to do an act rashly and under the influence of such intense emotion that his judgment or reasoning process was obscured. This is an objective test and not a subjective test.'" (Beltran, supra, 56 Cal.4th at p. 945, fn. omitted.)
The jury thereafter convicted the defendant of second degree murder. (Beltran,
supra, 56 Cal.4th at p. 941.) In a split decision, the Court of Appeal reversed the
conviction, with the majority concluding the parties' closing arguments created an
ambiguity in the trial court's jury instruction on provocation that was highlighted by the
jury's note and was prejudicial to the defendant. (Id. at pp. 945, 955.)
The California Supreme Court disagreed and upheld the defendant's murder
conviction. (Beltran, supra, 56 Cal.4th at pp. 955, 958.) The Beltran court concluded
that the parties' closing arguments had "muddied the waters" and their "competing
formulations" of heat of passion "may have confused the jury's understanding" of the
court's instruction on provocation. (Id. at pp. 954-955.) However, notwithstanding the
jury's note indicating possible confusion, the Supreme Court rejected the defendant's
claim that the ambiguity introduced into the instructions deprived him of his federal
constitutional rights to a jury trial and due process. (Id. at p. 955.) Applying the
23 harmless error standard announced in People v. Watson (1956) 46 Cal.2d 818, 836,6 the
Supreme Court concluded "[i]t was not reasonably probable that the jury here was misled
to defendant's detriment." (Beltran, at p. 956.) The Supreme Court reasoned that,
"[a]lthough counsel's argument may have created ambiguity about the nature of sufficient
provocation, the jury directly requested clarification of the standard," and "[t]he trial
court responded with a correct statement of law, that '[t]he provocation involved must be
such as to cause a person of average disposition in the same situation and knowing the
same facts to do an act rashly and under the influence of such intense emotion that his
judgment or reasoning process was obscured." (Ibid., italics omitted.) The Beltran court
also stated that "[t]his instruction properly focused upon the rashness of the act, not on
the act alone." (Id. at p. 957.)
Here, Vicary has failed to meet his threshold burden of demonstrating the
prosecutor's misstatement of the law regarding provocation caused any possible jury
confusion. As the Attorney General correctly points out, unlike in Beltran where the
jury's note indicated possible jury confusion, nothing in the record here indicates possible
jury confusion.
Even if Vicary had demonstrated possible jury confusion, he has failed to meet his
burden of demonstrating prejudice. Applying the Watson harmless error standard, as we
must (Beltran, supra, 56 Cal.4th at p. 956), we conclude Vicary has failed to show a
6 The Supreme Court explained that, "'[u]nder Watson, a defendant must show it is reasonably probable a more favorable result would have been obtained absent the error.'" (Beltran, supra, 56 Cal.4th at p. 955, quoting People v. Mena (2012) 54 Cal.4th 146, 162.) 24 reasonable probability the jury was misled to his detriment by the prosecutor's
misstatement of the law regarding provocation. The trial court correctly instructed the
jury in part under CALCRIM No. 603 that "[t]he defendant attempted to kill
someone . . . in the heat of passion if: [¶] . . . [¶] . . . the provocation would have caused
a person of average disposition to act rashly and without due deliberation; that is, from
passion rather than from judgment." Significantly, as already discussed, the court also
instructed the jury under CALCRIM No. 200 that, if they believed the attorneys'
comments on the law conflicted with the court's instructions, they were required to follow
the court's instructions.
Absent a showing to the contrary, we assume the jury understood and followed the
instructions given. (People v. Mickey, supra, 54 Cal.3d at p. 689, fn. 17.) Thus, as there
is no showing to the contrary here, we assume the jury understood and followed the
instructions the court properly gave under CALCRIM No. 603. (Mickey, at p. 689, fn.
17.) We conclude Vicary has failed to demonstrate the prosecutor's misstatement of the
law regarding provocation resulted in a miscarriage of justice.
For all of the foregoing reasons, we affirm the judgment.
25 DISPOSITION
The judgment is affirmed.
NARES, J.
WE CONCUR:
McCONNELL, P. J.
IRION, J.