California Court of Appeal Apr 8, 2014 No. E055383Unpublished
Filed 4/8/14 P. v. Walker CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E055383
v. (Super.Ct.No. FSB1001076)
MILTON CARNELL WALKER et al., OPINION
Defendants and Appellants.
APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,
Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Robert Franklin Howell, under appointment by the Court of Appeal, for Defendant
and Appellant Milton Carnell Walker.
Boyce & Schaefer and Robert E. Boyce, under appointment by the Court of
Appeal, for Defendant and Appellant Jerome Walker.
1
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Senior Assistant Attorney General, and William W. Wood and
Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
Defendants Milton Carnell Walker and Jerome Carnell Walker are brothers. They
got into a confrontation with the victim at the doorway of a convenience store; Jerome
“A conviction for murder requires the commission of an act that causes death,
done with the mental state of malice aforethought (malice). [Citation.] Malice may be
either express or implied. [Citation.] . . . Implied malice does not require an intent to kill.
Malice is implied when a person willfully does an act, the natural and probable
consequences of which are dangerous to human life, and the person knowingly acts with
conscious disregard for the danger to life that the act poses. [Citation.]” (People v.
Gonzalez (2012) 54 Cal.4th 643, 653.)
“‘Normally, hitting a person with the hands or feet does not constitute murder in
any degree. [Citations.] But if death or great bodily harm is a reasonable or probable
9
consequence of the beating the offense may be murder. [Citation.] Thus, to constitute
murder there has to be either an intent to kill or such wanton and brutal use of the hands
without provocation as to indicate that they would cause death or serious bodily injury so
as to indicate an abandoned and malignant heart.’ [Citations.]” (People v. Zankich
(1961) 189 Cal.App.2d 54, 67.)
In People v. Cravens (2012) 53 Cal.4th 500, the Supreme Court found sufficient
evidence that a single punch by a fist, resulting in death, was committed with implied
malice. It explained that the “defendant targeted a smaller and shorter victim who was
intoxicated, exhausted, and vulnerable.” (Id. at p. 508.) “And it was a very hard punch.
Witnesses described it as ‘extremely hard’ and ‘one of the hardest punches I’ve ever seen
thrown.’” (Id. at p. 509.) “Moreover, the jury could reasonably have found that
defendant secured himself every advantage to ensure that he could inflict the greatest
possible injury on his victim. Not only was defendant bigger and taller, but he gained
extra inches of height for his punch by standing on the curb while [the victim] was at
street level. Defendant’s conduct thus guaranteed that [the victim] would fall on a very
hard surface, such as the pavement or the concrete curb. ‘The consequences which would
follow a fall upon a concrete walk must have been known to [defendant].’ [Citations.]”
(Ibid.) Finally, the court noted that the fatal blow was a “sucker punch,” delivered
“without warning” when the victim “posed no threat and was not behaving in an
aggressive manner.” (Ibid.)
10
Basically, Jerome argues that there was less evidence of implied malice here than
in Cravens. However, Cravens merely held that the evidence of implied malice in that
case was sufficient; it did not purport to hold that any less evidence would have been
insufficient.
A more helpful case is People v. Alexander (1923) 62 Cal.App. 306, which
Cravens cited with apparent approval. (People v. Cravens, supra, 53 Cal.4th at p. 509.)
In Alexander, codefendants Avilla and Alexander accosted a stranger. Avilla grabbed the
victim’s right hand and said, “You are one of these wise guys from Alameda that hit me
before.” (Alexander, supra, at p. 307.) The victim replied, “No, you are badly
mistaken,” and smiled. (Ibid.) When the victim tried to break away, Avilla “struck [him]
in the face, knocking him down. As the [victim] fell the back of his head struck upon the
hard pavement of the street, causing a basal fracture of the skull. [The victim] never
regained consciousness, but died a short time thereafter. It appears that the [victim] was
a young man of frail build; that throughout the occurrence he kept his left hand in his
pocket, and that he made no resistance and no threats of any kind against either of the
defendants.” (Id. at pp. 307-308.)
The appellate court held that there was sufficient evidence that the crime was
murder rather than manslaughter: “[The defendants] deliberately pursued the deceased
and . . . the blow was struck while the deceased had his left hand in his pocket and while
the appellant Avilla held his right hand, thus causing him to fall backward, with his head
striking upon the hard pavement and without any opportunity of defending himself
11
against the fall. It is presumed ‘that a person intends the ordinary consequence of his
voluntary act’ [citation], and [Avilla] must be presumed to have known that by holding
the only free hand of the deceased fatal injuries would result from the striking of his head
upon the hard pavement.” (People v. Alexander, supra, 62 Cal.App. at pp. 308-309.)
Another informative case is People v. Tubby (1949) 34 Cal.2d 72. There, the
defendant was 29, six feet tall, and 175 pounds, whereas the victim was 82, 100 pounds,
and “feeble.” (Id. at p. 74.) The defendant punched the victim once, then dragged him
into a house; witnesses heard “thumping noises” coming from the house for “several
minutes.” (Id. at p. 75.) The defendant admitted that, once inside the house, he hit the
victim two or three times; finally, after hitting him one more time, knocking him down,
the defendant “‘felt something snap and [he] knew [he] had done something . . . .” (Ibid.)
The victim was left “semi-comatose”; he died later that day as a result of skull fractures.
(Id. at p. 76.) The Supreme Court held that this evidence was “unquestionably sufficient
to support a conviction of second degree murder . . . .” (Id. at p. 79.)
Here, similarly, Milton punched the victim in the face, then kept punching him,
forcing him back into the parking lot. Finally, he hit him hard enough to knock him
down; there was evidence that the victim’s head “bounced three times . . . off the parking
lot . . . .” Jerome then punched the victim in the face at least twice. Once again, the
victim’s head “bounc[ed] up and down.” In Alexander, Avilla hit the victim only once
but made sure he would hit his head on the pavement by holding his right hand while his
left hand was in his pocket. Here, defendants likewise made sure the victim would hit his
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head on the pavement by hitting him over and over again until he fell over backwards and
by hitting him two more times when he was down. Like the defendant in Tubby, who
admitted hitting the victim and feeling something “snap,” Milton admitted hitting the
victim and seeing his head hit the ground “hard . . . [l]ike . . . when your neck snap[.]”
Jerome argues that he was not larger than the victim; in fact, the victim
outweighed him by 20 pounds. Nevertheless, both Milton and Jerome were 40 years
younger. Moreover, as they were aware, the victim was drunk. Even more important,
Jerome and Milton double-teamed the victim, thus overwhelming him.
Jerome also relies on People v. Spring (1984) 153 Cal.App.3d 1199. In that case,
the defendant hit the victim only once; the victim did not fall down or lose consciousness.
(Id. at p. 1203.) Thus, the court held that there was insufficient evidence of malice. (Id.
at pp. 1204-1207.) It distinguished two other cases on the ground that there, “two men
beat one victim.” (Id. at p. 1205.) Here, of course, two men not only beat one victim, but
they beat him with repeated blows that caused his head to hit the pavement repeatedly.
Under Spring itself, this was sufficient evidence of malice.
III
CHALLENGES TO THE INVOLUNTARY MANSLAUGHTER INSTRUCTION
Defendants raise several contentions arising out of the trial court’s instruction on
involuntary manslaughter.
13
A. Additional Factual and Procedural Background.
Defendants requested an instruction on involuntary manslaughter, on the theory
that there was evidence that they committed an assault or battery without the intent to kill
and without conscious disregard for human life.
In response, the prosecution requested “a provision . . . that, if instead of an assault
or a battery, the jury finds that the defendants committed . . . an inherently dangerous
felony, such as assault by means of force likely to produce great bodily injury, then
involuntary manslaughter would not apply, and it would either be murder or . . .
voluntary manslaughter . . . .”
The trial court acceded to both requests. It had the prosecutor draft a modified
version of CALCRIM No. 580. It then delivered this instruction, as follows:2
“When a person commits an unlawful killing, but does not intend to kill, and does
not act with conscious disregard for human life, then the crime is involuntary
manslaughter, rather than murder or voluntary manslaughter.
“The difference between other homicide offenses and involuntary manslaughter
depends on whether the person was aware of the risk to life that their actions created, and
then consciously disregarded that risk.
2 In delivering the instructions orally, the trial court made frequent and apparently extemporaneous changes to the written instructions. This is a risky practice. The changes that it made to this particular instruction, however, were minor and not substantive.
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“An unlawful killing caused by a willful act done with knowledge and awareness
that the person is endangering the life of another and done in conscious disregard of that
risk is voluntary manslaughter or murder.
“An unlawful killing resulting from a willful act committed without intent to kill,
and without conscious disregard of the risk to human life, is involuntary manslaughter.
“A defendant commits involuntary manslaughter under the following
circumstances:
“1. The defendant committed the crime of assault or battery. And,
“2. The defendant did not act with conscious disregard of the risk to human life.[3]
And,
“3. The defendant’s acts unlawfully caused the death of another person.
3 This line, in both the written and oral instruction, deviated substantially from the corresponding line in the pattern instruction, which would have stated:
“2. The defendant committed the (crime/[or] act) with criminal negligence . . . .” (CALCRIM No. 580 (Apr. 2011 rev.).)
We find no explanation in the record for this deviation.
Defendants do not contend that this wording change constituted error; thus, they have forfeited any such contention. If only out of an excess of caution, however, we note that it was harmless under any standard. Admittedly, it resulted in the omission of one element of involuntary manslaughter; thus, it made the jury more likely to convict defendants of involuntary manslaughter rather than to acquit them entirely. What the jury actually did, however, was convict defendants of murder. In so doing, it necessarily rejected the lesser included offense of involuntary manslaughter, even though the wording change gave it the option of finding involuntary manslaughter even in the absence of criminal negligence. Thus, evidently it was convinced that defendants acted with either intent to kill or conscious disregard of the risk to human life.
15
“If the defendant committed an assault by means of force likely to produce great
bodily injury, or if the defendant acted with conscious disregard of the risk to human life,
then the offense is either murder or voluntary manslaughter.
“Additional instructions define the crimes of assault, battery, and assault by means
of force likely to produce great bodily injury.
“In order to prove murder or voluntary manslaughter, the People have the burden
of proving beyond a reasonable doubt that a defendant acted either with intent to kill or
with conscious disregard for human life. If the People have not met this burden, you
must find the defendant not guilty of murder or voluntary manslaughter.” (Italics added.)
B. Violation of the “Merger Rule.”
Defendants contend that the trial court erred by instructing, “If the defendant
committed an assault by means of force likely to produce great bodily injury, or acted
with conscious disregard of the risk to human life, then the offense is either murder or
For historical reasons, however, any discussion of involuntary manslaughter tends to
focus on whether the killing resulted from the defendant’s commission of a crime and, if
so, the nature of the underlying crime.
The first historical reason is that the felony murder rule has historically been —
and still is — an exception to this general rule. Thus, if the defendant kills, with or
21
without criminal negligence, during the commission of a crime listed in Penal Code
section 189, the killing is first degree murder, not involuntary manslaughter. And if the
defendant kills — again, with or without criminal negligence — during the commission
of an inherently dangerous but nonassaultive felony (other than those listed in Penal Code
section 189), the killing is second degree murder, and again, not involuntary
manslaughter.
The second historical reason is that in 1872, California’s involuntary manslaughter
statute was drafted in terms of a killing “[1] in the commission of an unlawful act, not
amounting to felony; or [2] in the commission of a lawful act which might produce death,
in an unlawful manner, or without due caution and circumspection . . . .” (Pen. Code,
§ 192, subd. (b), italics added.) Thus — presumably to accommodate the felony murder
rule — it does not expressly address a killing in the commission of a felony.
As the law has developed, however, a felony that is not inherently dangerous to
human life does not trigger the felony murder rule. (E.g., People v. Howard (2005) 34
Cal.4th 1129, 1132.) This created a gap in the law. A defendant who kills with criminal
negligence in the course of a misdemeanor is guilty of involuntary manslaughter.
(People v. Wells (1996) 12 Cal.4th 979, 984-989.) But what crime is it, if any, to kill
with criminal negligence in the course of a noninherently dangerous felony? In People v.
Burroughs (1984) 35 Cal.3d 824, disapproved on other grounds in People v. Blakeley
(2000) 23 Cal.4th 82, 89, the Supreme Court plugged this gap by holding that that, too, is
involuntary manslaughter. (Id. at pp. 835-836 & fn. 9.)
22
The adoption of the merger rule created a similar gap in the law. Under the
merger rule, a nonmalicious killing in the course of an inherently dangerous assaultive
felony is not murder. But what crime, if any, is it?
People v. Garcia (2008) 162 Cal.App.4th 18 held that a nonmalicious killing in
the course of an inherently dangerous assaultive felony is voluntary manslaughter. (Id. at
p. 31.) Jerome therefore argues that, if assault by means of force likely to cause great
bodily injury is an inherently dangerous felony, the trial court erred by failing to instruct
on this theory of voluntary manslaughter. While this appeal was pending, however, the
California Supreme Court disapproved Garcia on this point; it held that a nonmalicious
killing in the course of an inherently dangerous assaultive felony is not voluntary
manslaughter, and therefore, in the case before it, the trial court did not err by failing to
give a voluntary manslaughter instruction. (People v. Bryant, supra, 56 Cal.4th at
p. 970.) Bryant requires us to reject this argument.4
Alternatively, defendants also argue that if assault by means of force likely to
cause great bodily injury is not an inherently dangerous felony, then under Burroughs,
the jury should have been instructed that any nonmalicious killing that results is
involuntary manslaughter.
4 Bryant declined to decide whether an unintentional killing in the course of an inherently dangerous assaultive felony is (1) always involuntary manslaughter, (2) involuntary manslaughter only if done with criminal negligence, or (3) no crime at all. (People v. Bryant, supra, 56 Cal.4th at pp. 970-971; see also id. at pp. 972-974 [conc. opn. of Kennard, J.].)
23
The trial court, however, did instruct that “[w]hen a person commits an unlawful
killing, but does not intend to kill, and does not act with conscious disregard for human
life, then the crime is involuntary manslaughter, rather than murder or voluntary
manslaughter.” It also instructed that “[a]n unlawful killing resulting from a willful act
committed without intent to kill, and without conscious disregard of the risk to human
life, is involuntary manslaughter.”
Finally, the trial court also instructed that “[a] defendant commits involuntary
manslaughter under the following circumstances:
“1. The defendant committed the crime of assault or battery. And,
“2. The defendant did not act with conscious disregard of the risk to human life.
And,
“3. The defendant’s acts unlawfully caused the death of another person.”
If the jury found that defendants committed assault by means of force likely to
cause great bodily injury, then it necessarily also found that they committed the lesser
included offense of assault.5 The instructions informed the jury that, in that event, it had
to decide whether defendants acted with conscious disregard for human life; if so,
defendants were guilty of murder, and if not, they were guilty of involuntary
manslaughter. As we have already discussed in footnote 2, ante, evidently it found that
they did act with conscious disregard.
5 In light of the facts, it almost inevitably also found that defendants committed battery.
24
It is certainly arguable that the instruction could have been clearer and more
specific regarding the application of involuntary manslaughter under these circumstances.
Nevertheless, “‘[a] party may not complain on appeal that an instruction correct in law
and responsive to the evidence was too general or incomplete unless the party has
requested appropriate clarifying or amplifying language.’ [Citation.]” (People v. Jones
(2013) 57 Cal.4th 899, 969-970.) Here, the instruction was correct, and defendants did
not seek clarification.
We therefore conclude that defendants have not identified any error in the trial
court’s involuntary manslaughter instruction.
IV
PROSECUTORIAL MISCONDUCT IN CLOSING ARGUMENT
Defendants contend that the prosecutor committed misconduct by misstating the
law in closing argument.
A. Additional Factual and Procedural Background.
In closing argument, the prosecutor stated:
1. “Now, the Court read to you other instructions regarding, ‘Well, could it be a
voluntary manslaughter, could it be a voluntary manslaughter because of provocation?’
Well, this is instruction 570. And what you need to look at, you have to, basically, show
the defendant was provoked. But he just can’t be provoked, as the instruction tells you,
it’s not enough that the defendant was simply provoked. Basically, insulting words are
25
not enough. You can’t say, ‘I was provoked, so this is why I acted this way. You can’t
create your own conduct, your own standard for each individual.
“You have to look at, would a reasonable person in the same position do what they
did? No, a reasonable person would not do what they did, because what it says is a
reasonable person has to be so provoked, so angry, such in the heat of passion that their
reason and judgment skills are, basically, suspended, that they don’t know what they’re
doing.” (Italics added.)
2. “[F]or [imperfect self-defense] to apply to Milton, you’d actually have to
believe that he actually believed that Mr. Macon was going to cut him or kill him. And,
based on the evidence, that’s just not reasonable. It’s not believable. To believe, when
you look at the video, when you look at the other witnesses, [the store clerk] who does
not have a bias or motive to fabricate, and what he hears and what he sees, it’s not a
reasonable belief that Milton Walker believed that he was in imminent danger.
“Especially when he sees the man in front of him with one hand down by his side
and one hand holding the door. He is not in a fighting stance. He’s not sitting there
holding a deadly weapon. He’s sitting there, basically, with one hand down to his side,
one holding the door. And he’s not even looking at him . . . .
“But he believes he’s in imminent danger? It’s not reasonable. And it’s not
believable.” (Italics added.)
26
B. Forfeiture.
“‘“[A] defendant may not complain on appeal of prosecutorial misconduct unless
in a timely fashion — and on the same ground — the defendant made an assignment of
misconduct and requested that the jury be admonished to disregard the impropriety.
[Citation.]”’ [Citations.]” (People v. Pearson (2013) 56 Cal.4th 393, 426.)
Here, defense counsel forfeited the claimed prosecutorial misconduct by not
objecting and not requesting an admonition.
Defendants argue that the objection requirement was excused because the
prosecutor’s misconduct was so “systematic” that an admonition would not have cured
the harm. We cannot say that three instances of asserted misconduct over three transcript
pages are either pervasive or systematic. In any event, one reason for requiring a prompt
objection is to prevent the misconduct from becoming pervasive and systematic. For
example, in Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, plaintiff’s
lawyer’s referred to the “Lemon Law” some 14 times, in violation of the trial court’s
ruling on a motion in limine. (Id. at pp. 129–130.) The court stated: “[T]here is no
reason to conclude a timely objection and admonition would have been ineffective to
cure whatever harm occurred, and, more importantly, to prevent further reference to what
[the defendant] considered an inflammatory term.” (Id. at p. 130.) Here, similarly, a
prompt objection, if meritorious, could have nipped the supposed misconduct in the bud.
Milton also argues that his defense counsel had already “abandon[ed]” him. In
part V, post, we will reject this contention. He does not contend that her failure to object
27
to the prosecutor’s closing argument, standing alone, constituted ineffective assistance.
We therefore conclude that Milton’s present contention is barred by forfeiture.
C. Merits.
Separately and alternatively, we also reject this contention on the merits.
First, defendants argue that the prosecutor’s statement that, for purposes of “heat
of passion” voluntary manslaughter, “insulting words are not enough,” misstated the law.
We agree that “mere words” can constitute legally adequate provocation; older
cases holding to the contrary are no longer good law. (People v. Valentine (1946) 28
Cal.2d 121, 138-144.) Defendants argue that some of the victim’s provocative behavior
consisted of words, particularly his threat to “cut” them. The prosecutor, however,
referred specifically to “insulting words” (italics added), not threatening words. There
was no evidence that Macon used any insulting words. Thus, the prosecutor’s minor
misstatement of the law was harmless. (See People v. Seaton (2001) 26 Cal.4th 598,
661.)
Second, defendants argue that the prosecutor’s statement that, for purposes of
“heat of passion” voluntary manslaughter, “You have to look at, would a reasonable
person in the same position do what they did?,” misstated the law.
“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
28
reflection, and from such passion rather than from judgment.’” [Citation.]” (People v.
Beltran (2013) 56 Cal.4th 935, 942.)
“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. . . . [T]he 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.” (People v. Beltran, supra, 56 Cal.4th at p. 949.)
“When a claim of misconduct is based on the prosecutor’s comments before the
jury, ‘“the question is whether there is a reasonable likelihood that the jury construed or
applied any of the complained-of remarks in an objectionable fashion.”’ [Citation.]”
(People v. Williams (2013) 56 Cal.4th 630, 671.)
Here, the single sentence on which defendants focus was ambiguous. The
prosecutor had just been talking about the standard for legally adequate provocation.
Thus, the sentence “You have to look at, would a reasonable person in the same position
do what they did?” could have meant, “would a reasonable person in the same position
have been provoked?” or “would a reasonable person in the same position have acted out
29
of passion?,” not “would a reasonable person in the same position have killed?” The
prosecutor’s next remarks indicated that he was talking about whether a reasonable
person would have been provoked; he said, “No, a reasonable person would not do what
they did, because what it says is a reasonable person has to be so provoked, so angry,
such in the heat of passion that their reason and judgment skills are, basically, suspended,
that they don’t know what they’re doing.” Thus, he focused appropriately on defendants’
state of mind, not their acts.
The jury was properly instructed that:
“A defendant kills someone because of a sudden quarrel or in the heat of passion if
the following three elements are proven:
“1. The defendant was provoked.
“2. As a result of the provocation, a defendant acted rashly and under the
influence of the intensive [sic] emotion that obscured his reasoning or judgment. And,
“3. The provocation would have caused a person of average disposition to act
rashly and without due deliberation, that is, to act from such passion rather than from
judgment. (CALCRIM No. 570, italics added.)
The jury was also instructed, “If you believe that any of the attorneys’ comments
on the law are different than my instructions on the law, then . . . you must disregard their
comments and base your decision solely on my instructions.” (CALCRIM No. 200.)
Under these circumstances, we see no reasonable likelihood that the jury
understood the prosecutor to mean that “heat of passion” voluntary manslaughter
30
required provocation such that a reasonable person would have actually committed
homicide.
Third, defendants argue that the prosecutor’s statement that, for purposes of
“imperfect self-defense” voluntary manslaughter, “it’s not a reasonable belief that Milton
Walker believed that he was in imminent danger,” misstated the law.
“Imperfect self-defense is the killing of another human being under the actual but
unreasonable belief that the killer was in imminent danger of death or great bodily injury.
[Citation.]” (People v. Booker (2011) 51 Cal.4th 141, 182.) Thus, as a legal matter, it
would be erroneous to say that defendants could not claim imperfect self-defense because
it would have been unreasonable to believe they were in imminent danger.
By contrast, however, as an evidentiary matter, it was relevant that defendants’
belief that they were in imminent danger was unreasonable. Imperfect self-defense
requires an actual and honest belief in the need for self-defense. The fact that such a
belief was unreasonable had some “tendency in reason” (Evid. Code, § 210) to prove that
they did not actually hold such a belief.
Moreover, that is exactly what the prosecutor was arguing —he was asking the
jury to infer, from the fact that the belief was unreasonable, that Milton did not actually
hold such a belief. Thus, he argued, “[F]or [imperfect self-defense] to apply to Milton,
you’d actually have to believe that he actually believed that Mr. Macon was going to cut
him or kill him. And, based on the evidence, that’s just not reasonable. It’s not
believable.” (Italics added.) “‘[P]rosecutors have wide latitude to draw reasonable
31
inferences from the evidence presented at trial . . . .’ [Citation.]” (People v. Tully (2012)
54 Cal.4th 952, 1022.) That is all the prosecutor did in this instance.
We therefore conclude that there was no prosecutorial misconduct.
V
INEFFECTIVE ASSISTANCE OF COUNSEL IN CLOSING ARGUMENT
Milton contends that his trial counsel rendered ineffective assistance in closing
argument.
A. General Legal Principles.
“When challenging a conviction on grounds of ineffective assistance, the
defendant must demonstrate counsel’s inadequacy. To satisfy this burden, the defendant
must first show counsel’s performance was deficient, in that it fell below an objective
standard of reasonableness under prevailing professional norms. Second, the defendant
must show resulting prejudice, i.e., a reasonable probability that, but for counsel’s
deficient performance, the outcome of the proceeding would have been different. When
examining an ineffective assistance claim, a reviewing court defers to counsel’s
reasonable tactical decisions, and there is a presumption counsel acted within the wide
range of reasonable professional assistance.” (People v. Mai (2013) 57 Cal.4th 986,
1009.)
“It is particularly difficult to prevail on an appellate claim of ineffective
assistance. On direct appeal, a conviction will be reversed for ineffective assistance only
if (1) the record affirmatively discloses counsel had no rational tactical purpose for the
32
challenged act or omission, (2) counsel was asked for a reason and failed to provide one,
or (3) there simply could be no satisfactory explanation. All other claims of ineffective
assistance are more appropriately resolved in a habeas corpus proceeding. [Citations.]”
(People v. Mai, supra, 57 Cal.4th at p. 1009.)
“These standards apply with particular force at closing argument because . . .
‘[t]he decision of how to argue to the jury after the presentation of evidence is inherently
“[I]t is settled that it is not necessarily incompetent for an attorney to concede his
or her client’s guilt of a particular offense. [Citations.]” (People v. Lucas (1995) 12
Cal.4th 415, 446.) “[S]ensible concessions are an acceptable and often necessary tactic.
[Citation.]” (People v. Gamache, supra, 48 Cal.4th at pp. 392-393.) “‘ . . . “[G]ood trial
tactics demanded complete candor” with the jury. [Citation.] Under the circumstances
we cannot equate such candor with incompetence.’ [Citations.]” (People v. Gurule
(2002) 28 Cal.4th 557, 612.)
B. Conceding Absence of Provocation.
Milton argues that his defense counsel rendered ineffective assistance by telling
the jury not to consider provocation.
1. Additional factual and procedural background.
In closing argument, defense counsel stated:
33
a. “And, so, when you look at this whole case and you think about the fact that
people were provoked, that people — let’s say that people were provoked, that is not the
situation here.
“Because the provocation had already occurred. . . . [H]e had cussed him out. He
had threatened to cut him. And my client did nothing. Jerome did nothing.”
b. “Is that provocation? They’re not provoked. They’re not ready to sock
anybody. They’re not mad. Mr. Macon is a drunk. And he’s acting foolish. And they’re
not going to do anything . . . . Jerome begins to walk away. As this point, there’s
nothing about what my client did, Milton, or Jerome, that indicates that they were
provoked, that they were angry.
“He’s a drunk old man. Just forget about it.”
c. “Mr. Macon is charging at Milton, okay? Now, all that time prior to that,
Milton sat there and did nothing. Did nothing. Did nothing. Did nothing. Did nothing.
Until Mr. Macon charged him.
“And so this is not a case of provocation. This case is a case of self-defense.
Okay? Separate what lay people, what everybody calls provocation, . . . and the idea of
self-defense. Because you will hear in the instructions, provocation relates to voluntary
manslaughter.
“And this is a totally different concept.”
d. “Provocation. This is where I’m telling you that there’s a difference between
when everyday people say provocation, as when my client said, ‘I was provoked.’ As
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when — I don’t know whether it was Jerome who said, ‘I was provoked.’ That is
different than provocation in this particular sense.
“Provocation may reduce murder to manslaughter. I’m not asking you to reduce
murder to manslaughter. I’m asking you to see what happened not as provocation, as my
client would have called it, but as self-defense.”
e. “Voluntary manslaughter, heat of passion and lesser included offense . . . . I’m
not going to go through this, because you may want to argue that this was a heat of
passion. That this was . . . heat of passion or sudden quarrel. Okay? This is not that
situation. This is what happens when Mr. Macon charges my client. After that, it is still
self-defense . . . .”
f. “So this is part of your instructions . . . . They do not apply in my situation.
Because I’m saying that this was self-defense. And it was not provocation.”
2. Analysis.
We must reject this contention because defense counsel has never been asked why
she made the challenged concession.
This is not a case in which there simply could be no satisfactory explanation.
Defense counsel could reasonably choose to play down provocation, the better to play up
self-defense. Provocation would result in a conviction for voluntary manslaughter; self-
defense, on the other hand, would result in a complete acquittal. Moreover, self-defense
was more closely consistent with Milton’s own statements. He told the police he thought
the victim had a knife. At trial, he claimed that the victim threatened to “cut” him, then
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moved toward him; he believed the victim was about to attack him, so he punched him
preemptively. This testimony, if accepted, would be sufficient to prove self-defense.6
By contrast, there was little evidence of provocation. Jerome claimed that Macon
closed the door on his leg, then asked, “Do you know who you’re messing with? I’m a
Macon.” However, he admitted that he ignored Macon and walked away. And Milton,
as noted, testified to a classic self-defense scenario. But even assuming the jury could
have found that Macon’s actions constituted provocation, there was a clear tactical
advantage to framing them as grounds for self-defense.
C. Conceding Absence of Imperfect Self-Defense.
Milton argues that his defense counsel rendered ineffective assistance by
conceding that imperfect self-defense did not apply.
1. Additional factual and procedural background.
Defense counsel also stated:
“This is not a situation of imperfect self-defense . . . . That just doesn’t apply.
Okay? My client thought he may have had a knife. And when he charged him, he
responded.”
2. Analysis.
Once again, defense counsel has not been asked why she made the challenged
concession. And once again, this is not a case in which there simply could be no
6 Jerome’s attorney took much the same approach; she argued self-defense and asked the jury to acquit her client of both murder and voluntary manslaughter.
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satisfactory explanation. As with provocation, defense counsel could reasonably choose
to emphasize “perfect” self-defense at the expense of imperfect self-defense. Perfect
self-defense would be a complete defense.
D. Conceding Absence of “Perfect” Self-Defense.
Milton argues that his defense counsel rendered ineffective assistance by
conceding that perfect self-defense did not apply. He also argues that this concession
undermined any reasonable tactical purpose that she could have had in conceding that
both provocation and imperfect self-defense did not apply.
1. Additional Factual and Procedural Background.
Milton’s defense counsel also stated:
“As the fifth element, this was not self-defense. If this happened and this
happened, he was involved in dangerous activities and he had a disregard for human life
and he hurt the person and, No. 5, he was not acting in self-defense. For involuntary, you
have to have a battery. The definition of battery, you know, he was hit or, you know, the
person was hurt, or —
“And, then, he did not act in self-defense. So, I think, I say to you that all of these
do not apply, because this was not a lawful — this was not a lawful killing.”
2. Analysis.
Milton misconstrues this portion of his defense counsel’s argument. From her
reference to the “fifth element” and “No. 5,” it is clear that she was referring to the jury
instruction on simple assault (CALCRIM No. 915). According to this instruction, simple
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assault has five elements; the fifth element is that “[t]he defendant did not act in self-
defense or defense of someone else.” She also referred to the battery instruction
(CALCRIM No. 925), which likewise required that “[t]he defendant did not act in self-
defense or in defense of someone else.” Both of these instructions were relevant to
involuntary manslaughter. Thus, defense counsel was actually arguing that the assault
and battery instructions and involuntary manslaughter instructions did not apply, because
they required that the defendant was not acting in self-defense, and Milton was acting in
self-defense.
Admittedly, her statement, “this was not a lawful killing,” standing alone, could be
construed as conceding that self-defense did not apply. In context, however, it is clear
that she simply misspoke. She was already having trouble getting this sentence out; she
had to restart it twice. Throughout her argument, she stated that self-defense did apply.
No reasonable juror would have understood her to be conceding that it did not.
E. Conceding Causation.
Milton argues that his defense counsel rendered ineffective assistance by
conceding that it was Milton’s last punch, which knocked Macon to the ground, and not
Jerome’s additional two or three punches, that caused the fatal skull fracture.
1. Additional factual and procedural background.
Defense counsel stated:
a. “And, unfortunately, my client threw the last punch. That got him on the floor.
Jerome is next to him. Goes down and punches him two more times.
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“My client had done the damage, my client had broken his skull.”
b. “Yes, Jerome hit him. But my client had done the damage. My client had hit
him where his head went back and it was fractured because it hits the cement.”
c. “Unfortunately, my client punched him, and he went down. And that was the
reason that Mr. Macon had the crack in his head. And that was the reason that
Mr. Macon died, not because Jerome came and punched him two more times.”
2. Analysis.
Yet again, defense counsel was not asked why she made the challenged
concession. The evidence that Milton caused the skull fracture, however, was quite
strong. One witness testified that, when Milton knocked Macon down, “[Macon’s] head
bounced three times . . . off the parking lot . . . .” Also, Milton had admitted to police
that he saw Macon’s head hit the ground: “Like hard. Like, you know, when your neck
snap?” Once Macon hit the ground — even before Jerome hit him — he was motionless
and unresisting.
When Milton testified, the prosecutor doggedly asked him whether he saw the
victim’s head snap back after hitting the ground; Milton just as doggedly refused to give
him a straight answer. The jury undoubtedly took this, not only as evidence that Milton
struck the fatal blow, and not only as evidence that Milton knew that he struck the fatal
blow, but as evidence that Milton had little regard for his oath to tell the whole truth. His
counsel could reasonably conclude that the best way to restore Milton’s credibility (or at
least hers) was to concede the point.
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At the same time, even assuming that Milton did not personally cause the skull
fracture, the evidence that he was guilty as an aider and abettor was also strong. Defense
counsel could reasonably conclude that, by conceding that Milton caused the skull
fracture, she would gain credibility but not forfeit any likely winning issue.
F. “Abandonment.”
Finally, Milton argues that we must presume prejudice because his defense
counsel failed to subject the prosecution’s case to meaningful adversarial testing. (See
United States v. Cronic (1984) 466 U.S. 648, 659-660.)
We have already rejected Milton’s ineffective assistance claims. In each instance,
our rejection was not based on failure to show prejudice; rather, it was based on failure to
show objectively unreasonable representation. Even when these instances are viewed
collectively, rather than individually, Milton has not shown that counsel’s performance
was deficient. A fortiori, he has not shown that she failed to subject the prosecution’s
case to meaningful adversarial testing.
VI
USE OF AN IMPROPER LEGAL STANDARD
IN DENYING MILTON’S NEW TRIAL MOTION
Milton contends that the trial court erred by denying his new trial motion based on
an incorrect legal standard.
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A. Additional Factual and Procedural Background.
Milton filed a new trial motion, arguing, among other things, that there was
insufficient evidence of malice.
The trial court denied the motion. Regarding the sufficiency of the evidence, it
stated:
“[T]he Court is satisfied that there is sufficient evidence to support the verdict . . . .
[A]nd, of course, the Court does not reweigh the evidence or make an independent
determination, the Court simply determines whether or not there was substantial evidence
to support the jury’s finding.”
It then explained that the “uncontradicted” evidence that Jerome hit the victim
after he was already down, taken together with the evidence that Milton “stood by while
that was happening” and that both defendants left the victim “motionless on the ground,”
was “sufficient to support a finding of wanton disregard for human life.”7
It added: “Knowledge that that kind of action[,] causing the victim’s head to hit
the pavement, after it had already hit the pavement, could be life-threatening, and to
continue with it, is reckless disregard for human life.”
B. Analysis.
“‘In reviewing a motion for a new trial, the trial court must weigh the evidence
independently. [Citation.] It is, however, guided by a presumption in favor of the
7 Milton does not dispute the trial court’s conclusion that this was sufficient evidence of malice.
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correctness of the verdict and proceedings supporting it. [Citation.] The trial court
“should [not] disregard the verdict . . . but instead . . . should consider the proper weight
to be accorded to the evidence and then decide whether or not, in its opinion, there is
sufficient credible evidence to support the verdict.” [Citation.] . . .’ [Citation.]” (People
v. Fuiava (2012) 53 Cal.4th 622, 729-730.)
We may assume, without deciding, that the trial court’s remarks demonstrate that
it denied the motion based on the deferential “substantial evidence” standard, rather than
the appropriate independent judgment standard. Even if so, Milton cannot show that the
error was prejudicial, because the trial court made it clear that, even if it had exercised its
independent judgment, it would still have denied the motion. It described the relevant
evidence as “uncontradicted” (as indeed it was). It found not only that there was
“substantial evidence” and “sufficient evidence” of malice, but additionally that
defendants’ conduct did actually demonstrate malice — “reckless disregard for human
life.”
Even if we were to remand with directions to reconsider Milton’s new trial motion
under the proper legal standard, we see no reasonable probability that the trial court
would grant the motion. Hence, the error, if any, was not prejudicial. (See People v.
Ochoa (1998) 19 Cal.4th 353, 476.)
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VII
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI Acting P. J.
We concur:
KING J.
MILLER J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendants' second-degree murder convictions, finding sufficient evidence of implied malice and concluding that any error in the jury instructions was harmless when viewed in the context of the entire charge.
Issues
Whether there was sufficient evidence of implied malice to support a second-degree murder conviction.
Whether the trial court erred in its jury instructions regarding the relationship between assault and murder/manslaughter.
Whether the trial court erred by failing to instruct that a nonmalicious killing in the course of a noninherently dangerous felony is manslaughter.
Whether the prosecutor committed misconduct and whether trial counsel provided ineffective assistance.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“Malice is implied when a person willfully does an act, the natural and probable consequences of which are dangerous to human life, and the person knowingly acts with conscious disregard for the danger to life that the act poses.”