People v. Chestra ( 2017 )


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  • Filed 3/17/17
    CERTIFIED FOR PARTIAL PUBLICATION*
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION FIVE
    THE PEOPLE,                                  B264462
    Plaintiff and Respondent,             (Los Angeles County
    Super. Ct. No. BA402910)
    v.
    DAVID WARREN CHESTRA,
    Defendant and Appellant.
    APPEAL from a judgment of the Superior Court of Los
    Angeles County, Lisa B. Lench, Judge. Affirmed as modified
    with directions.
    Joshua L. Siegel, under appointment by the Court of
    Appeal, for Defendant and Appellant.
    Kamala D. Harris, Attorney General, Gerald A. Engler,
    Chief Assistant Attorney General, Lance E. Winters, Senior
    *     Pursuant to California Rules of Court, rules 8.1100 and
    8.1110, this opinion is certified for publication with the exception
    of parts III (A)-(B) and (D)-(H).
    Assistant Attorney General, Scott A. Taryle and John Yang,
    Deputy Attorneys General, for Plaintiff and Respondent.
    I. INTRODUCTION
    A jury convicted defendant, David Warren Chestra, of first
    degree murder in violation of Penal Code section 187, subdivision
    (a).1 The jury further found defendant personally and
    intentionally discharged a firearm causing death. (§ 12022.53,
    subd. (d).) Defendant admitted four prior conviction allegations
    within the meaning of sections 667, subdivision (d) and 1170.12,
    subdivision (b) were true. Defendant was sentenced to 100 years
    to life in state prison. We modify the oral pronouncement of
    judgment to include a $300 parole revocation restitution fine.
    (§ 1202.45.) In the published portion of this opinion, we discuss
    why any error in failing to instruct on voluntary manslaughter
    was harmless. We affirm the judgment in all other respects.
    II. THE EVIDENCE
    Defendant was a self-described former gang member.
    Defendant testified that as a gang dropout, he was at risk of
    being killed. Viewed in the light most favorable to the verdict
    (see People v. Hubbard (2016) 
    63 Cal.4th 378
    , 392; People v.
    Iniguez (1994) 
    7 Cal.4th 847
    , 854), the evidence established the
    following. On July 5, 2012, defendant shot and killed a former
    friend and fellow gang member, Gary Burks. Defendant was
    1 Further statutory references are to the Penal Code except
    where otherwise noted.
    2
    accompanied by his girlfriend, Brandy Ricks. Defendant kicked
    in Mr. Burks’s apartment door. Mr. Burks, armed with a pair of
    scissors, attempted to block the door. Defendant reached around
    the door and fired his weapon several times striking Mr. Burks in
    the head.
    The morning after the murder, defendant was arrested on a
    parole violation. Defendant subsequently entered a guilty plea to
    owning or possessing the firearm within the meaning of Penal
    Code section 29900. Both the gun, a .44-caliber revolver, and the
    unique ammunition used to commit the murder were found in a
    car owned by Ms. Ricks, but used by both defendant and Ms.
    Ricks. The car key was in defendant’s pocket. The gun was
    hidden in the engine compartment. Six rounds were missing
    from the box of ammunition. Defendant and Ms. Ricks had
    purchased the ammunition several days prior to the murder.
    This transaction was captured on surveillance videotape.
    Defendant was subsequently questioned by detectives and
    confessed to the crime. He described in detail the location, the
    physical surroundings and the manner in which he killed the
    victim. Defendant’s description was consistent with the evidence
    at the murder scene. As to the reason for the killing, defendant
    described himself as a gang “dropout.” Defendant explained,
    “[The victim] was talking shit, so I, myself, took his punkass life.”
    Defendant said, “I was gonna kill all my homies.” At another
    point, defendant explained: “[The victim] didn’t think I was
    coming, but I came. I got him. . . . This is my own gang shit.
    I’m a drop out from my hood. . . . .” Defendant also said Mr.
    Burks may have raped Ms. Ricks. Defendant told detectives: “I
    found out [Ms. Ricks and Mr. Burks] were doing some shit
    together, that he raped her. She, she told me. I don’t even think
    3
    it was a rape. She was asleep. So I just took that on, on account
    of myself and shit.”
    After confessing, defendant also wrote a letter to his wife, a
    member of defendant’s former gang who had opposed his decision
    to leave the gang. Defendant said: “Your punk ass got Big Crow
    murdered by me! [The word “me” is underlined twice.] . . .
    [L]ucky I got caught cuz all them fools were next. . . . Flaco’s
    punk ass got lucky, but both them niggas felt my wrath who put
    hands on P.NuT, [a gang member who had died] . . . I tried to
    change but the hood wouldn’t stop. So I ended the nigga[’]s life.
    That simple. Don’t worry I already confessed . . . .”
    While in custody prior to trial, defendant also told deputies:
    “I’m gonna fucking kill a fucking cop or a fucking nurse . . . .
    That’s fucking for real. I’m a . . . I’ll be calm for a month. Two
    months, I’ll wait. Three months, I’ll wait. Killed my homeboy. I
    waited six months. Fucking talking about? Shot that fool in the
    head with a four-four. Kicked down the door. Right in the
    middle of his brain. Shit came out the shit. Think I won’t kill a
    motherfucking cop over this. Killed my homeboy.” (As noted
    above, the murder weapon was a .44-caliber revolver.)
    At trial, however, defendant denied shooting Mr. Burks.
    Defendant testified it was Ms. Ricks who shot and killed Mr.
    Burks. Defendant said he had gone to Mr. Burks’s apartment
    with Ms. Ricks to acquire cocaine. Mr. Burks was a member of
    defendant’s former gang. When Mr. Burks saw defendant in the
    hallway, he said, “What’s up, meaning “Fuck you.” Mr. Burks
    retreated into the apartment, returned with a pair of scissors in
    his hand, and tried to stab defendant. (Homicide investigators
    found Mr. Burks gripping the scissors in his hand.) A physical
    altercation between the two ensued. The fight ended when Ms.
    4
    Ricks shot Mr. Burks. Defendant said he did not know Ms. Ricks
    was armed. Defendant testified he falsely confessed to the
    murder in order to protect Ms. Ricks. Defendant said he was
    telling the truth at trial because he was terminally ill.
    III. DISCUSSION
    [Parts III (A)-(B) are deleted from publication. See post at page
    __ where publication is to resume.]
    A. Ineffective Assistance of Counsel
    Defendant raises ineffective assistance of counsel claims
    with respect to certain jury instruction issues as discussed below.
    To establish constitutionally ineffective assistance of counsel, a
    defendant must show both deficient performance, i.e., counsel’s
    representation fell below an objective standard of reasonableness
    under professional norms, and prejudice. (Strickland v.
    Washington (1984) 
    466 U.S. 668
    , 687; People v. Cunningham
    (2001) 
    25 Cal.4th 926
    , 1003; People v. Kraft (2000) 
    23 Cal.4th 978
    , 1068.) Further, as our Supreme Court has held, “If the
    record on appeal fails to show why counsel acted or failed to act
    in the instance asserted to be ineffective, unless counsel was
    asked for an explanation and failed to provide one, or unless
    there simply could be no satisfactory explanation, the claim must
    be rejected on appeal. (People v. Mendoza Tello (1997) 
    15 Cal.4th 264
    , 266-268.)” (People v. Kraft, 
    supra,
     23 Cal.4th at pp. 1068-
    1069; accord, People v. Huggins (2006) 
    38 Cal.4th 175
    , 206.) An
    appellate court will not second-guess counsel’s reasonable trial
    5
    tactics. (People v. Riel (2000) 
    22 Cal.4th 1153
    , 1185; People v.
    Avena (1996) 
    13 Cal.4th 394
    , 444.)
    With respect to prejudice, a defendant must establish there
    is a reasonable probability the result would have been more
    favorable to him or her absent defense counsel’s failings.
    (Strickland v. Washington, supra, 466 U.S. at p. 694; People v.
    Dickey (2005) 
    35 Cal.4th 884
    , 913.) A defendant must show a
    reasonable probability of a different result as a demonstrable
    reality. (People v. Lawley (2002) 
    27 Cal.4th 102
    , 136; People v.
    Fairbank (1997) 
    16 Cal.4th 1223
    , 1241.) A trial attorney is not
    ineffective for failing to pursue implausible arguments, meritless
    motions or futile objections. (People v. Prieto (2003) 
    30 Cal.4th 226
    , 261; People v. Ochoa (1998) 
    19 Cal.4th 353
    , 432; People v.
    Lewis (1990) 
    50 Cal.3d 262
    , 289.) Moreover, as the United States
    Supreme Court has held: “[A] court need not determine whether
    counsel’s performance was deficient before examining the
    prejudice suffered by the defendant as a result of the alleged
    deficiencies. . . . If it is easier to dispose of an ineffectiveness
    claim on the ground of lack of sufficient prejudice, which we
    expect will often be so, that course should be followed.”
    (Strickland v. Washington, supra, 466 U.S. at p. 697; accord,
    People v. Carrasco (2014) 
    59 Cal.4th 924
    , 982; In re Champion
    (2014) 
    58 Cal.4th 965
    , 1007.)
    B. Defendant’s Confession
    Defendant asserts detectives coerced his confession by
    impliedly promising leniency for Ms. Ricks. Defendant further
    argues his trial attorney, Deputy Public Defender Elizabeth
    Lashley-Haynes, was ineffective for failing to challenge the
    6
    admissibility of his tape-recorded confession as involuntary. We
    find no coercion and no ineffective assistance.
    1. The applicable involuntary confession law
    A defendant’s confession may be involuntary when the
    police make certain express or clearly implied promises. The
    types of inducements which can render a statement inadmissible
    include promises of leniency toward or freedom for the accused, a
    relative or a loved one, when the promise motivates the
    defendant to take responsibility. (E.g., People v. Tully (2012) 
    54 Cal.4th 952
    , 993 [witness protection promise]; People v. Weaver
    (2001) 
    26 Cal.4th 876
    , 920 [threats to arrest family members];
    People v. Boyde (1988) 
    46 Cal.3d 212
    , 238, disapproved on
    another point in People v. Johnson (2016) 
    62 Cal.4th 600
    , 648
    [implied promise of leniency]; People v. Steger (1976) 
    16 Cal.3d 539
    , 550 [desire to free spouse]; People v. Trout (1960) 
    54 Cal.2d 576
    , 584-585, overruled on another point in People v. Cahill
    (1993) 
    5 Cal.4th 478
    , 509-510 [same]; People v. Matlock (1959) 
    51 Cal.2d 682
    , 697 [threat to arrest relatives]; People v. Dowdell
    (2014) 
    227 Cal.App.4th 1388
    , 1401 [leniency for defendant’s
    child’s mother].) The question is whether, under all the
    surrounding circumstances, a promise was expressly made or
    implied, and if so, whether it motivated the defendant’s
    confession. (People v. Tully, supra, 54 Cal.4th at p. 986; People v.
    Massie (1998) 
    19 Cal.4th 550
    , 576.)
    Our Supreme Court has explained: “A confession is
    ‘obtained’ by a promise within the proscription of both the federal
    and state due process guaranties if and only if inducement and
    statement are linked, as it were, by ‘proximate’ causation. This is
    7
    certainly true for the federal right. The requisite causal
    connection between promise and confession must be more than
    ‘but for’: causation-in-fact is insufficient. (Hutto v. Ross [(1976)]
    429 U.S. [28,] 30, (per curiam ).) ‘If the test was whether a
    statement would have been made but for the law enforcement
    conduct, virtually no statement would be deemed voluntary
    because few people give incriminating statements in the absence
    of some kind of official action.’ (U.S. v. Leon Guerrero (9th Cir.
    1988) 
    847 F.2d 1363
    , 1366, fn. 1.) The foregoing is also true for
    the state right. (People v. Kelly [(1990)] 51 Cal.3d [931,] 974
    (conc. opn. of Mosk, J.).)” (People v. Benson (1990) 
    52 Cal.3d 754
    ,
    778-779; accord, People v. Tully, supra, 54 Cal.4th at pp. 985-
    986.)
    Further, when the benefit suggested by law enforcement
    officers flows naturally from a truthful confession, the
    defendant’s statement will not be considered involuntary. (People
    v. Tully, supra, 54 Cal.4th at p. 993; People v. Howard (1988) 
    44 Cal.3d 375
    , 398.) As explained in People v. Boyde, supra, 46
    Cal.3d at page 238, “Mere advice or exhortation by the police that
    it would be better for the accused to tell the truth, when
    unaccompanied by either a threat or a promise, does not . . .
    make a subsequent confession involuntary. [Citation.]” (Accord,
    People v. Dowdell, supra, 227 Cal.App.4th at p. 1401.)
    In addition to coercion, considerations affecting
    voluntariness include the interrogation’s length and location.
    Also relevant are the defendant’s maturity, education, physical
    condition, mental health and experience with the criminal justice
    system. (Withrow v. Williams (1993) 
    507 U.S. 680
    , 693-694;
    People v. Williams (1997) 
    16 Cal.4th 635
    , 660.)
    8
    Here, of course, the trial court never made a voluntariness
    determination. But when, as here, the interview is recorded, the
    facts surrounding the confession are undisputed, and review on
    appeal is de novo. (People v. Duff (2014) 
    58 Cal.4th 527
    , 551;
    People v. McWhorter (2009) 
    47 Cal.4th 318
    , 346.)
    2. Defendant’s confession
    Detective Terence Keyzer and his partner, identified only
    as Detective Acero, interviewed the 39-year-old defendant at the
    Riverside County Jail. Defendant was in custody on a parole
    violation. The interview lasted just over one hour. Defendant
    was experienced in the criminal justice system having been
    sentenced to state prison on several prior occasions.
    At the outset of the interview, Detective Keyzer twice
    advised defendant that he did not have to talk to them.
    Defendant acknowledged that he understood. He proceeded to
    speak with the detectives without objection. “Detective Keyzer:
    We’re here to talk to you about a couple of things. Understand
    you’re free to go, you know, go back to your cell or not talk to us
    or anything like that. That’s completely up to you. Do you
    understand that? [¶] [Defendant]: Yeah, what’s it about?
    [¶] . . . [¶] Detective Keyzer: . . . And, like I said, I’m - - we’re
    not here accusing you or anything, and you, you know, you don’t -
    - you’re free to leave any time. Okay? But he was a friend of
    yours? [¶] [Defendant]: Yeah.” Later, Detective Keyzer
    reiterated the point. “Hey, like I said, you’re not under arrest for
    this. You can end this conversation and leave at any time.
    Okay? The - - do you understand that? [¶] [Defendant]: (No
    Audible Response).” And after defendant learned Ms. Ricks had
    9
    accused him of shooting Mr. Burks, Detective Keyzer told him:
    “The first thing I told you when you were in here, you’re not
    under arrest. You don’t have to talk to us or anything.”
    The detectives told defendant: there was some evidence
    Ms. Ricks was involved in the murder; they had spoken with her;
    she told them “how this went down”; and she said the detectives
    should talk to defendant because he could explain what had
    happened. Defendant denied any knowledge of the incident. He
    denied even knowing that Mr. Burks had died. He said he could
    not understand why Ms. Ricks would tell the detectives to talk to
    him. In an attempt to determine what happened and whether
    defendant’s version of events matched Ms. Ricks’s, the detectives
    incrementally fed defendant additional information: there was
    ballistic evidence connecting Ms. Ricks to the murder; Ms. Ricks
    said defendant “had something to do with it”; Ms. Ricks was in
    jail for the murder; Ms. Ricks said defendant was there when Mr.
    Burks got shot and it was “a self-defense thing”; Ms. Ricks had
    acquired the gun that was used; Mr. Burks had something in his
    hand, so Ms. Ricks “seen it was done out of self-defense”; a
    witness had seen a Black male and a White female running from
    Mr. Burks’s back gate to a car; Ms. Ricks said defendant and she
    had gone to Mr. Burks’s place and there was an argument; the
    detectives knew Ms. Ricks’s car had been at the scene; and Ms.
    Ricks admitted she was the one who acquired the gun.
    Defendant asked where was Ms. Ricks, had she been
    charged, and where was her son. He wanted to know what Ms.
    Ricks had told the detectives. He said he did not want to get Ms.
    Ricks into any trouble. He did not want to say anything that
    would be detrimental to him. He continued to steadfastly deny
    any involvement in the crime. Detective Keyzer said that if
    10
    defendant just explained what really happened, he would be
    helping himself and helping Ms. Ricks as well. He said Ms. Ricks
    was “looking at murder” and, “[W]e got her pretty tight on that.”
    Defendant wanted to speak with Ms. Ricks. The request was
    denied. Defendant was unconvinced that Ms. Ricks had told
    detectives he was present when Mr. Burks was shot.
    The detectives then took the position that if defendant was
    not present, then Ms. Ricks was lying, there was no self-defense
    and Ms. Ricks must have killed Mr. Burks. “Detective Keyzer: . .
    . [I]f you can’t explain [how it went down and why it was self-
    defense] cause you weren’t there, then that means she’s just - -
    [¶] Detective Acero: Then it’s all on her. [¶] Detective Keyzer:
    Yeah, that she’s a liar and that’s, that’s the end of that, you
    know?” Defendant still denied being present.
    The course of the conversation began to turn after
    Detective Keyzer told defendant Ms. Ricks said defendant shot
    Mr. Burks. “[Defendant]: I mean, why (Inaudible) she said I can
    explain. She said I can explain why it was self-defense - - [¶]
    Detective Keyzer: Right. [¶] [Defendant]: - - why her self - - so
    she’s telling you she shot Gary Burk[s]? [¶] Detective Keyzer:
    No, she’s not telling us that. [¶] [Defendant]: Then how is she
    saying it’s self-defense? [¶] Detective Keyzer: She’s saying that
    you shot Gary Burks - - [¶] . . . [¶] [Defendant]: So I’m gonna
    be getting arrested then. [¶] Detective Keyzer: . . . [B]ut we’re
    not arresting you. . . . [¶] . . . [¶] [Defendant]: -- you’re going
    to pretty soon. [¶] Detective Keyzer: For what? We have her.
    [¶] . . . [¶] Detective Keyzer: . . . We don’t - - . . . That’s what
    she said[, that defendant shot Mr. Burks]. We’re here trying to
    verify her story. She said that you won’t let her go down for this,
    and that you would be honest and tell the truth of what
    11
    happened. . . . - - this was a self-defense thing. That’s what she
    said. It was self-defense. She said you had to do it. It was self-
    defense cause he - - [¶] . . . [¶] . . . he had something. That’s
    what she told us. [¶] Detective Acero: Supposedly, Gary had
    something, that he was . . . coming at you - - [¶] [Defendant]:
    Look - - [¶] . . . [¶] . . . - - I wasn’t there. [¶] . . . [¶]
    [Defendant]: Man, I gotta talk to her, man. [¶] . . . [¶] . . .
    She’s a liar, a good liar, yeah, yep. So she said I shot him, so that
    means I’m about to get arrested for somebody saying that I shot
    somebody. I’m definitely gonna get arrested.”
    Some discussion followed about the lack of connection
    between defendant’s parole violation matter and the murder
    investigation. Detective Keyzer told defendant: “[W]e’re not here
    to talk to you about [your parole violation matter]. That’s
    something you’re dealing with on another level. We’re here
    talking about Brandy.” Defendant then confessed. He said Ms.
    Ricks was not there, she stayed in the car. He explained that it
    was a gang-related murder and he was the one with the motive.
    “[Defendant]: You gotta release Brandy. She wasn’t there. I
    killed that nigga. Fuck that nigga, Crow. Fuck Crow from
    [defendant’s former gang]. I killed that nigga. [¶] Detective
    Keyzer: Why? [¶] [Defendant]: I did it. No, I’ll just, I’ll just
    take it for her. I did it. . . . Arrest me. [¶] . . . [¶] Detective
    Keyzer: - - you gotta explain to me - - [¶] [Defendant]: I
    would’ve killed all of them. I could’ve killed Crow, Little Crow,
    Flaco. Who else? . . . [¶] . . . [¶] . . . I’m a drop out. Them
    motherfuckers, fuck them. I shot that nigga in his head, reached
    over from the door, hit that motherfucker four times with a four -
    - with a four - - with the - - shit . . . Release Brandy. You gotta
    release her though. [¶] Detective Keyzer: All right. [¶]
    12
    [Defendant]: - - you gotta fuckin’ release my girl. [¶] Detective
    Keyzer: We gotta verify your story. [¶] [Defendant]: Fuck, I just
    gave you the story. . . . I kicked down the fuckin’ door. I had
    Vans. There’s should be a Van print in ballistics. Kicked the
    motherfucker down. I reached around, popped the motherfucker
    four times, . . . Now, you gotta release her, man, right?”
    Defendant repeatedly demanded that Ms. Ricks be
    released. He said she was trying to take the blame but she had
    nothing to do with it. He tried to convince the detectives not to
    pursue Ms. Ricks for any involvement. Defendant wanted the
    detectives to show Ms. Ricks his written confession. Defendant
    continued: “You know, like you said, she put me there. I’m
    gonna get busted anyway. It’s gonna come out - - . . . I let the
    motherfucker have it. Fine. But Brandy didn’t have nothing to
    do with it. She wasn’t even there. Give her that.” Defendant
    continued: “[Ms. Ricks] was raped by Gary Burks . . . a while
    back. She was completely drunk and high, out of her mind. And
    I . . cause I don’t feel like going to court and all this. I want to get
    it over with - - and I . . . drove her, made her wait in the . . . car. I
    drove, made her wait in the car, right, because I knew where he
    lived. Motive is mine. I’m a drop out. He was talking shit, so I,
    myself, took his punk ass life. I love my girl, Brandy, and she
    didn’t know about it at all. I did it all myself. This is all true.”
    3. Application of the law to the present case
    We find no coercion undermining the voluntariness of
    defendant’s confession. Detective Keyzer repeatedly told
    defendant he did not have to talk to the detectives. Neither
    detective at any time expressly promised leniency for Ms. Ricks.
    13
    Nor did they imply it. They never suggested Ms. Ricks would be
    released if defendant confessed. Prior to the moment defendant
    confessed, the detectives sought to learn what had happened.
    The detectives wanted to know whether defendant’s account was
    consistent with what Ms. Ricks had told them. The detectives
    said defendant’s truthful account of the shooting might help both
    defendant and Ms. Ricks. They explained that if defendant
    denied any involvement, they would have to assume that Ms.
    Ricks was lying to them and that she was the guilty party.
    Defendant continued to deny any involvement despite knowing
    the detectives had strong evidence implicating Ms. Ricks.
    Defendant confessed only after the detectives revealed Ms. Ricks
    had named him as the shooter. That information led defendant to
    conclude he would be arrested for the murder. Prior to
    defendant’s confession, he had inquired only where Ms. Ricks was
    and whether she had been charged. He did not ask for leniency
    for her in return for providing information. The discussion about
    Ms. Rick’s fate, and defendant’s insistence that she was not
    involved and must be released, came only after defendant
    confessed. His confession therefore was voluntary.
    We further conclude that because defendant’s confession
    was voluntary, Ms. Lashley-Haynes was not ineffective for failing
    to bring a meritless motion to suppress it. Defendant has failed
    to establish as a demonstrable reality that there is a reasonable
    probability the trial court would have granted a motion to
    suppress his confession. Thus, he has failed to sustain his
    prejudice burden on his ineffectiveness claim. (People v. Mayfield
    (1993) 
    5 Cal.4th 142
    , 175-176; People v. Robertson (1982) 
    33 Cal.3d 21
    , 40.)
    14
    C. Self-defense Instruction
    Defendant asserts it was prejudicial error and a violation of
    his due process and jury trial rights not to sua sponte instruct on
    self-defense. Defendant reasons that as a gang dropout he was in
    danger of being killed by gang members including Mr. Burks.
    (There was some inconsistent evidence on this point at trial.
    Defendant testified that from the moment he left the gang he was
    targeted for death. Defendant also testified: “[M]y homeboys are
    never after me. We never had that type of beef. Never.”)
    Further, Mr. Burks tried to stab defendant with scissors. In the
    alternative, he argues Ms. Lashley-Haynes acted ineffectively
    because she failed to request self-defense instructions. We find
    no error, hence no constitutional rights violation (People v. Garcia
    (2011) 
    52 Cal.4th 706
    , 755, fn. 27; People v. Boyer (2006) 
    38 Cal.4th 412
    , 441, fn. 17) and no ineffective assistance.
    Our Supreme Court has explained: “‘It is settled that in
    criminal cases, even in the absence of a request, the trial court
    must instruct on the general principles of law relevant to the
    issues raised by the evidence. [Citations.] The general principles
    of law governing the case are those principles closely and openly
    connected with the facts before the court, and which are
    necessary for the jury’s understanding of the case.’ (People v. St.
    Martin (1970) 
    1 Cal.3d 524
    , 531.)” (People v. Breverman (1998)
    
    19 Cal.4th 142
    , 154.) The obligation to instruct on general
    principles of law extends to defenses. (People v. Breverman,
    
    supra,
     19 Cal.4th at p. 157; People v. Sedeno (1974) 
    10 Cal.3d 703
    , 716, disapproved on another point in People v. Breverman,
    
    supra,
     19 Cal.4th at p. 163, fn. 10.) With respect to defenses:
    “[T]he duty to give instructions, sua sponte, on particular
    15
    defenses and their relevance to the charged offense arises only if
    it appears that the defendant is relying on such a defense, or if
    there is substantial evidence supportive of such a defense and the
    defense is not inconsistent with the defendant’s theory of the
    case. Indeed, this limitation on the duty of the trial court is
    necessary not only because it would be unduly burdensome to
    require more of trial judges, but also because of the potential
    prejudice to defendants if instructions were given on defenses
    inconsistent with the theory relied upon.” (People v. Sedeno,
    supra, 10 Cal.3d at p. 716; accord, People v. Wickersham (1982)
    
    32 Cal.3d 307
    , 326, disapproved on another point in People v.
    Barton (1995) 
    12 Cal.4th 186
    , 201.) Our review is de novo.
    (People v. Manriquez (2005) 
    37 Cal.4th 547
    , 581; People v. Waidla
    (2000) 
    22 Cal.4th 690
    , 733.)
    To prevail on a self-defense claim, a defendant must
    establish: he actually and reasonably believed he was in
    imminent danger of death or great bodily injury; he reasonably
    believed the use of deadly force was necessary to defend against
    the danger; the belief was objectively reasonable; and he used no
    more force than was reasonably necessary under the
    circumstances. (People v. Humphrey (1996) 
    13 Cal.4th 1073
    ,
    1082; People v. Flannel (1979) 
    25 Cal.3d 668
    , 674-675, superseded
    by statute on another point as stated in People v. Elmore (2014)
    
    59 Cal.4th 121
    , 138.)
    We find no error. First, defendant did not rely on self-
    defense. Instead, defendant testified Ms. Ricks shot Mr. Burks.
    Defendant said he was unarmed and struggling with Mr. Burks
    when Ms. Ricks fired her weapon. Defendant was surprised. He
    did not know Ms. Ricks was armed. Second, even if there was
    substantial evidence of self-defense, an instruction on self-
    16
    defense would have been inconsistent with defendant’s theory at
    trial—that he did not shoot Mr. Burks, in fact, he was not even
    armed. Therefore, the trial court had no sua sponte duty to
    instruct on self-defense.
    Defendant has not established his attorney was ineffective.
    The record does not show why trial counsel did not request a self-
    defense instruction. But not doing so was a reasonable tactical
    choice. Ms. Lashley-Hayes relied on a defense that Ms. Ricks
    shot Mr. Burks, not defendant. She gave the jury a clear choice
    between believing defendant told the truth when he confessed
    and believing he told the truth at trial. The jury could
    reasonably have concluded defendant confessed to a crime he did
    not commit because he loved Ms. Ricks and did not want her to go
    to prison. Such a conclusion would have been consistent with
    defendant’s conversation with the detectives insofar as defendant
    professed his love for Ms. Ricks and his desire that she not be
    held in any way responsible for the murder. That the jury did not
    so find does not undermine the validity of Ms. Lashley-Hayes’s
    approach. This court will not second-guess trial counsel’s
    decisions as to trial tactics. (People v. Riel, supra, 22 Cal.4th at
    p. 1185; People v. Avena, 
    supra,
     13 Cal.4th at p. 444.)
    [Part III (C) is to be published.]
    C. Lesser Included Offense Voluntary Manslaughter Instructions
    The trial court instructed the jury on first and second
    degree murder. The trial court instructed that if the prosecution
    failed to prove a willful, deliberate, premeditated murder beyond
    a reasonable doubt, then the jury must find defendant guilty of
    17
    second degree murder. (CALCRIM No. 521.) The jury convicted
    defendant of first degree murder. The jury further found
    defendant personally discharged a firearm causing Mr. Burks’s
    death.
    On appeal, defendant asserts the trial court should have
    sua sponte instructed on voluntary manslaughter based on heat
    of passion and imperfect self-defense. Defendant argues: “Given
    the evidence that [Mr.] Burks, a member of [defendant’s] former
    gang, insulted [defendant] and attacked him with scissors before
    the shooting, a reasonable juror could have found that
    [defendant] actually believed that he needed to use deadly force
    to defend himself. If this belief was not found to be objectively
    reasonable, then the killing would only be voluntary
    manslaughter. The killing would also have been voluntary
    manslaughter if [defendant] acted in a heat of passion arising
    from [Mr.] Burks’s insult and attack. The trial court was
    consequently required to instruct sua sponte on the lesser
    included offense of voluntary manslaughter based on imperfect
    self defense and heat of passion . . . .” We conclude that under
    People v. Sinclair (1998) 
    64 Cal.App.4th 1012
    , 1016-1022, there
    was no error.
    Heat-of-passion and imperfect-self-defense voluntary
    manslaughter are lesser included offenses of murder. (People v.
    Simon (2016) 
    1 Cal.5th 98
    , 132 [imperfect self-defense]; People v.
    Cole (2004) 
    33 Cal.4th 1158
    , 1215 [heat of passion].) A trial
    court’s duty to instruct on general principles of law, discussed
    above, extends to lesser included offenses. (People v. Breverman,
    (1988) 
    19 Cal.4th 142
    , 154-155.) Our Supreme Court has
    explained: “A trial court has a sua sponte duty to ‘instruct on a
    lesser offense necessarily included in the charged offense if there
    18
    is substantial evidence the defendant is guilty only of the lesser.’
    (People v. Birks (1998) 
    19 Cal.4th 108
    , 118.) Substantial evidence
    in this context is evidence from which a reasonable jury could
    conclude that the defendant has committed the lesser, but not the
    greater offense. (People v. Ochoa (1998) 
    19 Cal.4th 353
    , 422.)”
    (People v. Shockley (2013) 
    58 Cal.4th 400
    , 403.) In People v. Cruz
    (2008) 
    44 Cal.4th 636
    , 664, our Supreme Court emphasized,
    “[T]he ‘substantial’ evidence required to trigger the duty to
    instruct on such lesser offenses is not merely ‘any evidence . . . no
    matter how weak’ (People v. Flannel (1979) 
    25 Cal.3d 668
    , 684,
    fn. 12), but rather ‘“evidence from which a jury composed of
    reasonable [persons] could . . . conclude[]”’ that the lesser offense,
    but not the greater, was committed. (Id. at p. 684, quoting People
    v. Carr (1972) 
    8 Cal.3d 287
    , 294; [People v.] Barton [(1995)] 12
    Cal.4th [186,] 201, fn. 8; People v. Breverman, 
    supra,
     19 Cal.4th
    at pp. 162-163.)” (Accord, People v. Castaneda (2011) 
    51 Cal.4th 1292
    , 1327-1328.) Further, our Supreme Court has held, “The
    obligation to instruct on lesser included offenses exists even when
    as a matter of trial tactics a defendant not only fails to request
    the instruction but expressly objects to its being given. (People v.
    Mosher (1969) 
    1 Cal.3d 379
    , 393[, disapproved on another ground
    in People v. Ray (1975) 
    14 Cal.3d 20
    , 32]; People v. Graham
    (1969) 
    71 Cal.2d 303
    , 319 [same].)” (People v. Breverman, 
    supra,
    19 Cal.4th at pp. 154-155.) Moreover, the trial court must
    instruct on a lesser included offense supported by the evidence
    even when it is inconsistent with the defendant’s chosen defense.
    (People v. Breverman, 
    supra,
     19 Cal.4th at pp. 157, 162-163;
    People v. Sedeno (1974) 
    10 Cal.3d 703
    , 717, fn. 7, disapproved on
    another point in People v. Breverman, 
    supra,
     19 Cal.4th at p. 163,
    fn. 10.)
    19
    Both heat-of-passion and imperfect-self-defense voluntary
    manslaughter focus on the defendant’s subjective state of mind.
    (People v. Sinclair, supra, 64 Cal.App.4th at p. 1015.) For heat-
    of-passion voluntary manslaughter to apply, the defendant must
    be under the actual influence of a strong passion that obscures
    reason at the time of the homicide. (People v. Wickersham (1982)
    
    32 Cal.3d 307
    , 326-327 disapproved on another point in People v.
    Barton, (1995) 
    12 Cal.4th 186
    , 201.); People v. Sinclair, supra, 64
    Cal.App.4th at pp. 1015-1016.) Imperfect self-defense requires
    that the defendant be in actual fear of imminent danger to life or
    great bodily injury at the time of the homicide. (People v.
    Humphrey (1996) 
    13 Cal.4th 1073
    , 1082; People v. Sinclair,
    supra, 64 Cal.App.4th at p. 1016.)
    Our review is de novo. (People v. Nelson (2016) 
    1 Cal.5th 513
    , 538; People v. Simon, supra, 1 Cal.5th at p. 133.) Our
    Supreme Court held: “‘On appeal, we review independently the
    question whether the trial court improperly failed to instruct on a
    lesser included offense.’ (People v. Souza (2012) 
    54 Cal.4th 90
    ,
    113.)” (People v. Nelson, supra, 1 Cal.5th at p. 538.)
    In People v. Sinclair, supra, 64 Cal.App.4th at page 1015,
    the defendant, charged with murder, testified before the jury that
    he was unarmed and never fired the fatal shot. The jury
    convicted him of second degree murder and found he used a
    firearm. (Ibid.) On appeal, the defendant argued the jury should
    have received heat-of-passion and imperfect-self-defense
    voluntary manslaughter instructions. Defendant reasoned such
    instructions were mandatory based on his testimony. That
    testimony related to the argument with the victim and others.
    This court, citing People v. Medina (1978) 
    78 Cal.App.3d 1000
    ,
    1005-1006, held the failure to so instruct sua sponte was not
    20
    error: “When defendant denied he shot the decedent, none of the
    alleged evidence of heat of passion and imperfect self-defense was
    of the type ‘that a reasonable jury could find persuasive.’
    [Citation.]” Simply stated, the duty to instruct on inconsistent
    defenses does not extend to cases such as this where the sworn
    testimony of the accused [that he was unarmed and did not shoot
    anybody] completely obviates any basis for finding a lesser
    included offense.” (People v. Sinclair, supra, 64 Cal.App.4th at
    pp. 1021-1022.) We also observed: “We do not mean to suggest
    that every time the accused completely denies under oath any
    participation in the charged homicide, there is no duty to instruct
    on lesser and necessarily included offenses. We acknowledge
    bright lines are difficult to draw in this case. However, the
    accused may confess or made admissions which indicate the fatal
    shooting occurred, for example, in the heat of passion. If the
    confession in which the accused admits shooting the deceased is
    presented to the jury, then it may be pertinent to the case in
    terms of conflicting evidence as to what occurred. There are no
    doubt other scenarios in which a defendant’s under oath denial
    she or he committed a homicide may be colored by other
    testimony, which creates substantial evidence sufficient to
    support manslaughter instructions. However, . . . the present
    matter in which defendant denied being armed and shooting the
    decedent is not such a case.” (Id. at p. 1020.)
    Here, prior to trial, defendant confessed to an intentional
    killing. Defendant told detectives he was the aggressor, and he
    did not claim or suggest he (or anyone else) killed Mr. Burks in
    self-defense. Rather, defendant made it clear he was angry at
    Mr. Burks and retaliated against him for that reason. At tria,
    before the jury, by contrast, defendant denied shooting Mr.
    21
    Burks. Defendant denied even being armed when Mr. Burks was
    shot. If defendant was to be believed, he took no part in the
    homicide. Under defendant’s testimony, it was Ms. Ricks who
    shot Mr. Burks.
    Under no view of the evidence was defendant guilty of only
    voluntary manslaughter. Defendant’s trial testimony would not
    permit a jury composed of reasonable persons to conclude he was
    guilty of voluntary manslaughter but not murder, nor would his
    confession to the detectives, which was plainly inconsistent with
    his trial testimony and provided no support for a lesser included
    offense verdict on the murder charge. Unlike the hypothetical
    scenario discussed in Sinclair, defendant’s confession did not
    indicate the fatal shooting occurred in the heat of passion or
    imperfect self-defense. (People v. Sinclair, supra, 64 Cal.App.4th
    at p. 1020.) The evidence was such that defendant was either
    guilty of murder or not guilty of any offense. Under these
    circumstances, the failure to sua sponte instruct on voluntary
    manslaughter was not error. (People v. Sinclair, supra, 64
    Cal.App.4th at pp. 1018-1020; see also People v. Leach (1985) 
    41 Cal.3d 92
    , 106 [defendant who denied taking part in a robbery
    was not entitled to lesser included grand theft instruction];
    People v. Trimble (1993) 
    16 Cal.App.4th 1255
    , 1260 [defendant
    who denied committing vehicular burglary was not entitled to
    lesser included auto tampering instruction]; People v. Medina,
    supra, 78 Cal.App.3d at pp. 1005-1006 [defendant who relied on
    alibi defense to murder was not entitled to diminished capacity
    instructions]; People v. Salas (1978) 
    77 Cal.App.3d 600
    , 607-608
    [defendant relying on alibi defense to robbery was not entitled to
    a simple assault instruction]; People v. Whalen (1973) 
    33 Cal.App.3d 710
    , 718 [no error in failing to instruct on assault
    22
    with a deadly weapon where defendant, charged with assault
    with a deadly weapon on a police officer, denied pointing a gun at
    the officer].) Given the foregoing analysis, we need not discuss
    whether the failure to sua sponte instruct on voluntary
    manslaughter, even if error, was harmless.
    [Parts III (D)-(H) are deleted from publication. See post at
    page 28 where publication is to resume.]
    D. Prosecutorial Misconduct
    Defendant argues the prosecutor, Deputy District Attorney
    Bobby Zoumberakis, in his closing argument, prejudicially
    misstated the law of premeditation and deliberation. And
    because no objection was interposed to the prosecutor’s
    argument, defendant argues Ms. Lashley-Hayes was
    constitutionally ineffective. We find Mr. Zoumberakis committed
    no misconduct.
    Our Supreme Court has set forth the principles governing
    prosecutorial misconduct in argument to the jury. “‘“A
    prosecutor’s . . . intemperate behavior violates the federal
    Constitution when it comprises a pattern of conduct so ‘egregious
    that it infects the trial with such unfairness as to make the
    conviction a denial of due process.’”’ (People v. Gionis (1995) 
    9 Cal.4th 1196
    , 1214; People v. Espinoza (1992) 
    3 Cal.4th 806
    , 820.)
    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 of the jury.’”’ (People v.
    Espinoza, 
    supra,
     3 Cal.4th at p. 820.)’ (People v. Samayoa (1997)
    23
    
    15 Cal.4th 795
    , 841 . . . .)” (People v. Hill (1998) 
    17 Cal.4th 800
    ,
    819; accord, People v. Peoples (2016) 
    62 Cal.4th 718
    , 792.)
    Further, “‘“‘[A] prosecutor is given wide latitude during
    argument. The argument may be vigorous as long as it amounts
    to fair comment on the evidence, which can include reasonable
    inferences, or deductions to be drawn therefrom. [Citations.]’”’”
    (People v. Hill, supra, 17 Cal.4th at p. 819, accord, People v.
    Peoples, supra, 62 Cal.4th at p. 796.) To prevail on a claim of
    prosecutorial misconduct based on comments to a jury, the
    defendant must show a reasonable likelihood the jury understood
    or applied the challenged comments in an improper or erroneous
    manner. (People v. Frye (1998) 
    18 Cal.4th 894
    , 970 disapproved
    on another point in People v. Doolin, (2009) 
    45 Cal.4th 390
    , 421,
    fn. 22.); People v. Samayoa, 
    supra,
     15 Cal.4th at p. 841.)
    The jury was instructed on the definition of premeditation
    and deliberation. The jury was properly instructed: “The length
    of time the person spends considering whether to kill does not
    alone determine whether the killing is deliberate and
    premeditated. The amount of time required for deliberation and
    premeditation may vary from person to person and according to
    the circumstances. A decision to kill made rashly, impulsively, or
    without careful consideration is not deliberate and premeditated.
    On the other hand, a cold, calculated decision to kill can be
    reached quickly. The test is the extent of the reflection, not the
    length of time.” (CALCRIM No. 521; People v. Houston (2012) 
    54 Cal.4th 1186
    , 1216; People v. Lee (2011) 
    51 Cal.4th 620
    , 636.)
    Mr. Zoumberakis argued: “So when you look at first-degree
    murder, this is where I need to prove to you that it was willful,
    deliberate, and premeditated. The law defines it in a very
    common sense way. [¶] Willful means that the defendant
    24
    intended to do it. It wasn’t an accident. He did it willfully.
    Deliberate means that the defendant weighed the considerations
    for and against his choices and knowing the consequences,
    decided to kill. And premeditated means the defendant decided
    to kill before committing the act that caused death. Those are
    the definitions. [¶] You do this every day, and you do it often.
    You do it frequently when you’re driving. You’re in your car.
    You’re doing 55 on a 45 on the street, light turns to yellow and in
    a second you are able to think, one, ‘Am I going too fast to stop, or
    should I hit the gas?’ Two, what is the traffic lane like around
    me? Is it in the middle of the night? Is it late, or is it rush hour
    where people might be trying to come through? Three, who else
    is in my car? Am I by myself where I intend to drive a little more
    recklessly, or is there somebody in my car that I want to make
    sure gets somewhere safer than I do? All these things come into
    your mind in seconds, and the law understands that, and that’s
    why it tells you that willful, deliberate, and premeditated can be
    done in a matter of seconds.”
    Defendant asserts the prosecutor’s example misled the jury
    to believe the premeditation, deliberation and willfulness element
    of first degree murder did not require substantial pre-existing
    reflection. We disagree. Mr. Zoumberakis used the yellow light
    example to illuminate the amount of time in which a decision to
    kill could be reached. In Mr. Zoumberakis’s analogy, the driver
    considered whether to brake or speed up, whether there was
    traffic around him or her, what time of day it was, and whether
    he or she was alone in the vehicle. This was a proper example of
    a quick decision that is nevertheless considered and calculated.
    (People v. Avila (2009) 
    46 Cal.4th 680
    , 715.) Mr. Zoumberakis’s
    argument was consistent with the relevant jury instruction. The
    25
    jury would have understood the point—that premeditation and
    deliberation can occur quickly. Moreover, the jury was instructed
    that, “If you believe that the attorneys’ comments on the law
    conflict with my instructions, you must follow my instructions.”
    ~(CT 2:383)~ We presume the jury followed that instruction.
    (People v. Charles (2015) 
    61 Cal.4th 308
    , 324, fn. 8; People v.
    Bryant, Smith and Wheeler (2014) 
    60 Cal.4th 335
    , 447.) It is not
    reasonably likely the jury misconstrued or misapplied the
    example in an objectionable fashion. (People v. Thomas (2012) 
    53 Cal.4th 771
    , 797; People v. Cole, 
    supra,
     33 Cal.4th at pp. 1202-
    1203.) And because Mr. Zoumberakis’s argument was a proper
    example of a decision reached quickly, defense counsel was not
    ineffective for failing to make an unmeritorious objection. (People
    v. Lucero (2000) 
    23 Cal.4th 692
    , 734; People v. Ochoa, 
    supra,
     19
    Cal.4th at p. 431; People v. Lucas (1994) 
    12 Cal.4th 415
    , 475.)
    In People v. Avila, 
    supra,
     our Supreme Court considered a
    similar comparison and found no misconduct. There, “[T]he
    prosecutor used the example of assessing one’s distance from a
    traffic light, and the location of surrounding vehicles, when it
    appears the light will soon turn yellow and then red, and then
    determining based on this information whether to proceed
    through the intersection when the light does turn yellow, [as] an
    example of a ‘quick judgment’ that is nonetheless ‘cold’ and
    ‘calculated.’” (Ibid.) In Avila, the prosecutor also added:
    ‘Deciding to and moving forward with the decision to kill is
    similar, but I’m not going to say in any way it’s the same. There’s
    great dire consequences that have a difference here.’ (Ibid.)
    Defendant asserts this final comment saved an otherwise
    improper argument. But our Supreme Court did not so hold.
    26
    Instead, our Supreme Court found the final comment was an
    additional reason the argument was not misconduct.
    E. Cumulative Error
    Defendant contends he is entitled to reversal because of
    cumulative error. We find no prejudicial legal error. Therefore,
    we reject defendant’s argument the cumulative effect of all the
    errors requires reversal. (People v. Jones (2013) 
    57 Cal.4th 899
    ,
    981; People v. Edwards (2013) 
    57 Cal.4th 658
    , 746.)
    F. Confidential Prison Records
    Defendant has asked we independently review confidential
    Department of Corrections and Rehabilitation records to
    determine whether the trial court correctly refused to disclose to
    him. On April 13, 2016, we ruled: “The court has read the sealed
    documents. The request of defendant . . . to view any of the
    sealed documents is denied. Any disclosure to the defense or the
    public is barred by the official privilege. (Evid. Code, § 1040,
    subds. (a)-(b).)” It follows that the trial court did not err in ruling
    the records were not discoverable.
    G. Restitution
    The trial court orally imposed a $300 restitution fine. (§
    1202.4, subd. (b)(1).) The trial court erred in failing to orally
    impose a parole revocation restitution fine in the same amount.
    (§ 1202.45; People v. Rodriguez (2000) 
    80 Cal.App.4th 372
    , 378.)
    27
    The judgment must be modified to so provide. The abstract of
    judgment is correct in this regard and need not be amended.
    H. Abstract of Judgment
    The trial court orally imposed a $30 assessment under
    Government Code section 70373, subdivision (a)(1). The abstract
    of judgment reflects a $300 such assessment. The abstract of
    judgment must be amended so that it is consistent with the oral
    pronouncement of judgment. (People v. Delgado (2008) 
    43 Cal.4th 1059
    , 1070; People v. Farell (2002) 
    28 Cal.4th 381
    , 384,
    fn. 2.)
    [The balance of the opinion is to be published.]
    28
    IV. DISPOSITION
    The oral pronouncement of judgment is modified to impose
    a $300 parole revocation restitution fine under Penal Code
    section 1202.45. The judgment is affirmed in all other respects.
    Upon remittitur issuance, the clerk of the superior court is to
    prepared an amended abstract of judgment reflecting a $30
    assessment under Government Code section 70373,
    subdivision(a)(1) instead of a $300 such assessment, and deliver a
    copy to the Department of Corrections and Rehabilitation.
    CERTIFIED FOR PARTIAL PUBLICATION*
    TURNER, P.J.
    We concur:
    BAKER, J.
    KUMAR, J.
    Judge of the Los Angeles Superior Court, assigned by the
    Chief Justice pursuant to article VI, section 6 of the California
    Constitution.
    29