People v. Morgan CA2/3 ( 2023 )

Filed 3/27/23 P. v. Morgan CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B315231
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. TA146151
v.
DEAN MORGAN et al.,
Defendants and Appellants.
APPEALS from judgments of the Superior Court of Los
Angeles County, Kelvin D. Filer, Judge. Affirmed as modified.
Joanna McKim, under appointment by the Court of Appeal,
for Defendant and Appellant Dean Morgan.
Jean Ballantine and Valerie G. Wass, under appointment
by the Court of Appeal, for Defendant and Appellant Gerod
Harrison.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, David E. Madeo and Marc A. Kohm, Deputy
Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted defendants Dean Morgan and Gerod
Harrison of first degree murder (count 1). The jury also convicted
Morgan of possession of firearm by felon (count 2) and unlawful
possession of ammunition (count 3). As to count 1, the jury found
firearm allegations true as to Morgan and found true the
allegation that Harrison personally used a deadly and dangerous
weapon.
Defendants contend that the evidence was insufficient to
support that they premeditated and deliberated the murder and
raise various claims of prosecutorial misconduct. Morgan also
argues that the court erred in failing to instruct the jury on the
lesser included offense of voluntary manslaughter based on heat
of passion and in failing to instruct the jury that provocation
could negate premeditation and deliberation. He further contends
that counts 1, 2, and 3 were part of the same course of conduct,
that the sentences on counts 2 and 3 violate Penal Code1 section
654, and that we must remand for resentencing. Finally, he
argues that he should receive one additional day of actual
presentence custody credit.
We modify Morgan’s judgment to reflect that his sentence
on count 3 for unlawful possession of ammunition is stayed
pursuant to section 654 and to reflect an award of 1,210 days of
actual presentence custody credit rather than 1,209 days. We
otherwise affirm both judgments.
1 All undesignated statutory references are to the Penal Code.
2
PROCEDURAL BACKGROUND
An information dated October 23, 2018, charged Morgan
and Harrison with the murder of Albert Kyle (§ 187, subd. (a);
count 1). As to count 1, it was further alleged that Morgan
personally and intentionally discharged a firearm, which caused
great bodily injury and death to Kyle (§ 12022.53, subd. (d)), and
that he personally and intentionally discharged a firearm and
personally used a firearm (§ 12022.53, subds. (b), (c)), which
caused count 1 to be a serious felony (§ 1192.7, subd. (c)(8)) and a
violent felony (§ 667.5, subd. (c)(8)). It was also alleged that
Harrison personally used a deadly and dangerous weapon
(§ 12022, subd. (b)(1)), which caused the offense to be a serious
felony (§ 1192.7, subd. (c)(8)) and a violent felony (§ 667.5,
subd. (c)(8)). Additionally, Morgan was charged with possession
of firearm by felon (§ 29800, subd. (a)(1)); count 2), and unlawful
possession of ammunition (§ 30305, subd. (a)(1); count 3).
Morgan and Harrison pleaded not guilty and denied all
allegations.
A jury found Morgan and Harrison guilty of first degree
murder and found all allegations true. The jury also found
Morgan guilty of possession of a firearm by a felon and unlawful
possession of ammunition.
On count 1, the court sentenced Morgan to 25 years to life
plus 10 years for the firearm enhancement. On counts 2 and 3,
the court sentenced Morgan to the middle term of two years, to
run concurrently, for a total state prison commitment of 35 years
to life. The court sentenced Harrison to 26 years to life plus five
years consecutive for a prior offense, for a total state prison
commitment of 31 years to life.
3
FACTUAL BACKGROUND
1. Prosecution Evidence
1.1. Crystal Lozoya
In May of 2018, Crystal Lozoya lived in an apartment at
10700 South Main Street with her husband and children. On the
afternoon of May 26, 2018, Lozoya heard a fight break out in the
unit below hers. Her unit began to shake and she heard doors
slamming and things being thrown around. She and her children
went to look outside and, after stepping down onto the first step
of the stairwell and leaning over the balcony, Lozoya observed
blood in the doorway of the apartment below.
Lozoya was returning to her apartment with her children
when she observed a man with no shirt on, covered in blood, exit
the apartment. The bloodied man was stumbling and swaying.
While she was closing her screen door, she observed another man
follow the bloodied man out towards the front gate of the
apartment building. The second man was holding a gun in his
right hand with his arm extended. Lozoya was closing the solid
wood door to her apartment when she saw the second man shoot
at the injured man. She observed the injured man collapsing.
After she closed the door, she heard between three and five
additional shots. She testified that both the injured man and the
man with the gun were African American. Lozoya hid with her
children at the back of her apartment and called the police before
returning to the front of the apartment to look out the window.
She observed the injured man on the ground. Lozoya did not hear
any gunshots before the injured man was walking towards the
street and did not observe the injured man turn around to face
4
the man with the gun. The man with the gun fired at the injured
man’s back.
Lozoya also observed the man with the gun holding an
object in his left hand. She testified that she could not tell what it
was, but later testified that she remembered that it was a bag of
some kind.
1.2. Marvin Tart
On May 26, 2018, Marvin Tart was in an apartment at
10700 South Main Street, where he had been living for several
months. Different people lived in the unit during that period,
including Albert Kyle, whom Tart knew as “Tap.” Tart was part
of the Main Street Gang, but was no longer active, and did not
know whether Kyle had any gang affiliation.
Tart and Kyle were the only two people in the apartment.
Before Tart went to sleep in one of the bedrooms, he observed
Kyle lying on the couch in the living room. Tart was woken up by
a commotion and the sound of people fighting. Tart stuck his
head out of the bedroom and observed blood all over Kyle and on
the floor. Kyle looked at Tart, frightened. Tart initially testified
that he could not tell who Kyle was fighting with since he could
only see the back of their head. He heard male voices and
therefore believed the attacker was male.
Tart returned to the bedroom and sat there for a moment.
He then heard gunshots and hopped out the window to try and
get away. Tart ran to the back of the apartment complex and
opened the gate to the parking lot, but saw no way of getting out.
He returned to the apartment and re-entered through the
window. After putting on his shoes and his jacket, he exited
through the window again and headed towards the front gate of
the apartment complex, where he observed Kyle on the ground.
5
Tart walked away but later returned to the apartment complex to
make sure the police knew he had nothing to do with the crime.
He told an officer that he had not seen anything.
Tart had several past felony convictions, including for
burglary, possession of a firearm, and, most recently, vehicle
theft. When he was first arrested for the vehicle theft, detectives
spoke with Tart and he denied knowing anything about this case.
After he was in custody for several weeks, Tart spoke again with
detectives and informed them that he saw what happened inside
the apartment. He told a detective that he was in the apartment
during the incident and that men told him “to go to the front
while they handle their business.” Tart further told the detective
that he hid in a closet while the men were getting ready to leave.
He told the detective that Morgan had shot Kyle, and said the
other man present was “Deuce” from the Broadways gang, whom
he later identified as Harrison. He also stated that he heard one
of them say, “Shoot this motherfucker. Don’t let him out.”
Although Tart identified Morgan and Harrison to
detectives as the individuals who had committed the murder, he
initially testified that he identified them based on what he heard
from the streets and not his own observation of them in the
apartment. However, he later stated that he saw Morgan and
Harrison in the apartment and observed them fighting with Kyle.
He testified that he saw Kyle’s shirt mangled and then, while
hiding in the closet in the bedroom, saw them exit through the
bedroom window. He did not observe anyone else in the
apartment. He told the detective that Morgan was the shooter
because it looked like Morgan had something in his hand when
he was leaving the apartment. Although Tart had taken drugs
6
not long before the incident took place, he denied having
hallucinated any of the events he testified to. 2
1.3. The Investigation
10700 South Main Street is across the street from a police
station. After receiving a report of the incident, officers arrived
within approximately a minute and observed Kyle lying face
down on the street. Officers further observed a trail of blood
leading to the apartment complex and, once they entered the
gate, observed a large pool of blood near Kyle’s unit. While
inspecting the exterior of the apartment, officers identified
firearm casings in the grass at the front of the apartment
building and discovered a firearm in the back parking lot.
Officers also canvassed the area for suspects. They located
Morgan sitting on the porch of a home, looking “a little bit
nervous, kind of hyperventilating” and with “bloodstains on his
shirt.” Morgan was unarmed and complied with the officers’
commands. Later, officers located Harrison, who was wearing a
light gray shirt covered in blood. Harrison ran from the officers
for a short distance and did not comply with their orders. After
several minutes, officers were able to detain Harrison, who had a
2 After Tart’s arrest in the vehicle theft case, he worked as an
informant with the Los Angeles Police Department and conducted
controlled drug purchases. During the last drug buy he conducted for
the Department, Tart failed to return an ounce of methamphetamine
when the seller gave Tart an ounce more than the Department paid
him to purchase. He admitted this to the Department when confronted.
The District Attorney did not promise Tart anything in exchange for
his cooperation in the case. However, the parties stipulated that Tart
received $288 pursuant to the California Witness Relocation and
Assistance Program.
7
laceration to his right hand that was bleeding. Harrison was
“sweaty, nervous, out of breath, and upset.” Officers recovered a
folding knife from his front left pocket.
Later that evening, the investigating detectives, Pat
Flaherty and Rene Castro, conducted a recorded interview of
Morgan at the station. Morgan waived his Miranda3 rights and
agreed to speak with the officers. He told the detectives that he
had a backpack with him that he ditched in a sewage area. The
detectives conveyed this information to officers, who recovered
the backpack from a storm drain near the apartment building.
The backpack had red or brown stains on it. There were several
items inside the backpack, including a jacket, some shirts, jeans
that were the same brand as Morgan was wearing, and a folding
knife.
The detectives also booked into evidence the clothes the
defendants were wearing that day. The t-shirt worn by Morgan
had bloodstains, as did his shoes and his jeans. Morgan had no
injuries. The shirt worn by Harrison was covered in blood and
shoes worn by Harrison had blood on the outer sole and bottom.
Harrison had injuries above and below the left elbow, an injury to
his right hand, and bruising around his right elbow. He also had
dried blood under his fingernails.
The following day, the detectives spoke with Lozoya and
showed her a picture of the backpack officers had recovered,
which she identified as the bag the shooter was holding during
the incident. Based on their investigation, the detectives found no
evidence that anyone other than Kyle, Morgan, Harrison and
Tart was present in the apartment at the time of the incident.
3 Miranda v. Arizona (1966) 384 U.S. 436.
8
1.4. Physical Evidence
Andreh Aghajanian, a criminalist employed by the Los
Angeles Police Department and assigned to the Field
Investigation Unit, responded to the scene on the evening of May
26, 2018. Aghajanian collected four discharged cartridge cases
and booked them into evidence. He also observed red stains on
the sidewalk outside the apartment and inside the residence on
the floor and furniture in the living area, the floor of the hallway,
and the doorknob to the hallway closet. Aghajanian collected
samples from the reddish stains throughout the apartment and
booked those samples into evidence. He also examined the
exterior of the apartment and the parking lot. Aghajanian
collected samples from two additional reddish stains at the
exterior of the apartment. He also booked the gun from the
parking lot into evidence. The gun had four live rounds in it.
Huan Nguyen, a criminalist employed by the Los Angeles
Police Department and assigned to the Forensic Science Division,
Serology DNA Unit, conducted testing on certain of the samples
to determine whether they contained blood. Nguyen tested the
defendants’ shoes and clothes, a shirt from the backpack, the
backpack, the knife recovered from Harrison, and the gun
recovered from the parking lot for indications of blood and, upon
obtaining positive results, prepared swabs or cut samples from
the items and sent the swabs and samples for DNA testing.
Nguyen also swabbed the gun for touch DNA and swabbed the
shoes, backpack, and clothes for wearer DNA and submitted
samples for testing.
Robert Broderick, who was also assigned to the Serology
DNA Unit, analyzed the results of DNA testing on the samples
prepared by Nguyen. He determined that the sample taken from
9
the hooded shirt was consistent with Harrison’s DNA and that
the sample taken from Harrison’s shoes contained a mixture of
two individuals’ DNA and was consistent with the DNA of
Harrison and Kyle. Broderick further determined that the DNA
taken from the blood stain on the backpack matched Kyle’s DNA.
The DNA profile of the blood stain on the shirt from the backpack
was consistent with three contributors, one of which was
Harrison. The other contributors could not be determined. The
blood stains on Morgan’s left shoe contained DNA consistent with
two male contributors, one of which was Kyle, and the right shoe
contained DNA consistent with at least three male contributors
who could not be identified. Broderick further determined that
the blood sample taken from Harrison’s knife matched Kyle’s
DNA, and that the blood sample from the gun contained DNA
consistent with two male contributors, one of which matched Kyle
and the other of which could not be determined. The DNA swab
from the gun handle was inconclusive.
Fadil Biraimah, a criminalist employed by the Los Angeles
Police Department and assigned to the Firearm Analysis Unit,
compared the discharged cartridge cases found in front of the
apartment to the gun recovered at the scene. Biraimah concluded
that three of the four casings were fired by the recovered gun.
The remaining casing was inconclusive, though it had similar
configurations of marking as the test casings.
1.5. Medical Testimony
Dr. Scott Luzi, a forensic pathologist, performed the
autopsy and prepared an autopsy report. Dr. Luzi identified a
total of five gunshot wounds and 16 sharp force wounds on Kyle,
the latter of which were a combination of stab and incised
wounds. Of these wounds, one gunshot wound was fatal and four
10
of the stab wounds were independently fatal. The fatal gunshot
entered through the upper left back and had an up to downward
trajectory Dr. Luzi did not observe any soot or stippling from the
gunshot on Kyle, which suggested that he was shot from a
distance of more than three feet. The fatal sharp force wounds
were inflicted to Kyle’s lower left chest, upper right back, and
lower middle back. Dr. Luzi testified that four of the gunshot
wounds indicate that two bullets entered and exited on the same
side of the chest, which he stated would be consistent with the
victim being shot while lying on his stomach and rolling towards
the left. Dr. Luzi further testified that the incision wound to
Kyle’s right palm and the abrasions on his right arm were
consistent with defensive injuries.
2. Harrison’s Evidence
Harrison testified on his own behalf. He was a member of
the Broadway gang, which he joined when he was 13 years old.
Harrison had previously been convicted of carjacking in 2005, a
crime for which he was on parole at the time of trial. Kyle, whom
Harrison referred to as “Tap,” was Harrison’s gang uncle and had
been since he was a kid.
On the day of the incident, Harrison was at a hamburger
stand when he observed Morgan walking down the street.
Morgan said he was going to Tap’s place and Harrison joined
him. The apartment door was open and Harrison entered first,
followed by Morgan. Kyle was walking from the hallway to the
living room when he saw Harrison and Morgan, and asked
Harrison who Morgan was. After Harrison vouched for Morgan,
Kyle told Morgan to sit down. Harrison testified that Tart, whom
he called “Midnight,” was also present and that there was
somebody else in the back. Harrison did not know who the other
11
man was but recognized him from the neighborhood and said he
was from another gang. The man was African American, with
dark skin and braids, and was around 6 feet 1 inch tall and 200
to 220 pounds. Harrison was 5 feet 4 inches tall and weighed 140
pounds.
Kyle went back to the hallway, where a commotion erupted.
Harrison heard someone being slammed against a wall. Harrison
went to see what was happening and saw Kyle fighting with the
unknown man. They were initially grappling, but Harrison
noticed that the unknown man had a knife. The man began
stabbing Kyle, who was holding onto the man’s shirt. Harrison
went to help Kyle and grabbed the attacker’s hand. Harrison
sliced his hand while attempting to hold the attacker back.
Harrison also sustained additional cuts and puncture wounds.
Kyle grabbed onto Harrison as Harrison was trying to
defend him and they stumbled into different furniture items in
the living room. Tart was also present in the living room. The
unknown man dropped the knife and Harrison picked it up and
put it in his pocket. Everyone then ran out of the apartment. The
unknown man ran towards the front gate. Harrison was the third
person to exit the apartment and heard shots when he got to the
door. He ran to the back of the apartment complex, towards the
parking area, and hopped the fence. He ended up at another
house and asked the people there to call the police, but was
unsure whether they did so, as he passed out.
During the fight, there was a gun on the table, but
Harrison never saw anyone pick it up and did not see who fired
it. Harrison did not see what Morgan did after the fight began.
During cross examination, the prosecutor asked why
Harrison and Morgan went to Kyle’s apartment. Harrison
12
testified that they intended to buy weed. The prosecutor
introduced a photograph showing the contents of Harrison’s
wallet when he was arrested, which contained only $1. The
prosecutor also asked Harrison whether Morgan had a backpack
on him that day. Harrison resisted answering the question but
agreed that, when Detective Flaherty had showed him a picture
of the backpack at the police station, he had stated that it was
Morgan’s and that Morgan had it with him that day.
3. Morgan’s Evidence
Morgan also testified on his own behalf. Morgan lived in
South Central his whole life but was not affiliated with any
gangs. On May 26, 2018, Morgan and his family were getting
kicked out of their apartment and were getting ready to move.
Morgan left to buy some cocaine. He carried a backpack with him
containing clothes that he intended to sell to help pay for a room
for his mother. He testified that the backpack that other
witnesses had described was the backpack he carried that day.
Morgan was also carrying $40.46.
Morgan met up with Harrison, whom he had known since
he was young and who was like family to him. The two met at a
hamburger stand and Morgan told Harrison that he was going to
buy some drugs. The first place they went did not have drugs, so
Morgan decided to go to Kyle’s apartment, which he had heard
about in the neighborhood. Although he had heard of Kyle,
Morgan had never met him before that day.
When they arrived at the apartment, Harrison went in
first. Kyle was sitting on the couch when they entered and, when
he saw Morgan, said, “Hold on,” and “Wait, I don’t know him.”
His tone was aggressive, which made Morgan feel scared and
nervous. Harrison vouched for Morgan and Kyle replied, “Okay.”
13
He then took out a pistol and set it on the ottoman, then pointed
at a chair and told Morgan to take a seat. He asked what Morgan
was trying to get. Morgan asked for cocaine and Kyle went
towards the back of the apartment.
Morgan then heard rumbling and yelling. Harrison went
back to see what was going on and Morgan heard him say, “Oh,
shit.” Morgan observed Harrison fighting with another man and
saw Kyle fighting as well. The fight moved from the hallway into
the living room. Morgan observed blood but did not see who was
bleeding. During the fight, he remained in the chair in the living
room, frightened. When the fight moved towards where he was
sitting, Morgan grabbed the gun from the ottoman, exited the
apartment, and moved to the walkway between the front door of
the apartment and the gate to the complex. The apartment door
then swung open and Kyle emerged. He looked “aggressive,”
“angry” and “pissed off,” and approached Morgan. Morgan closed
his eyes and shot at Kyle. When he saw Kyle lying on the ground,
he ran to the back of the apartment complex, jumped the gate,
and ran away. Morgan testified that he did not intend to kill
Kyle, but was “just trying to protect [himself]” because he “didn’t
know what [Kyle] was going to do to [him].”
Morgan testified that he also saw a dark-skinned man in
the hallway of the apartment and the man was not Tart.
On cross-examination, Morgan agreed that he had told
arresting officers that he had blood on his shirt because he was
leaning over Kyle to try and help him, before later admitting that
he shot Kyle. Morgan further agreed that he had told detectives
that Kyle had pulled out a bag of drugs and gave it to him and
Harrison but stated at trial that he had lied about this. Morgan
acknowledged that his testimony at trial was the first time he
14
claimed that another person was engaged in the altercation with
Kyle. He agreed that he had informed detectives that the only
people who were rumbling in the apartment were Kyle and
Harrison but testified that he had lied.
4. Prosecution Rebuttal Evidence
Detective Flaherty and his partner conducted recorded
interviews of Morgan and Harrison. Neither Morgan nor
Harrison mentioned a hamburger stand in their interviews.
Morgan stated that they left from his mother’s house. Further,
neither Morgan nor Harrison mentioned the fifth, unknown man
in their interviews with the detectives. Morgan told the
detectives that he observed Kyle rumbling with Harrison and
that he observed someone at the northwest bedroom window, the
room in which Tart had been hiding. During the interview with
detectives, Morgan stated that he had never been to the
apartment, but then admitted that he had been there before only
a few days prior.
CONTENTIONS
Morgan and Harrison contend that the evidence was
insufficient to support the finding that the murder of Kyle was
premeditated and deliberate because there was no substantial
evidence of prior planning or discussions about killing Kyle, or
that the killing was committed in the perpetration of, or an
attempt to perpetrate, robbery, as the prosecutor argued.
15
Separately, Morgan and Harrison raise several claims of
prosecutorial misconduct.4 Among other things, they argue that
the prosecutor improperly shifted the burden of proof, elicited
improper opinion testimony, erroneously referenced defendants’
post-arrest silence, argued facts not in evidence, and misstated
the law.
Morgan further contends that the court erred in failing to
instruct the jury on the lesser included offense of voluntary
manslaughter based on heat of passion and in failing to instruct
the jury that provocation could negate premeditation and
deliberation.
Morgan also argues that the sentences on the gun and
ammunition charges in counts 2 and 3 violate section 654 because
they were part of the same course of conduct as count 1, and that
he is entitled to resentencing based on a change in the law with
respect to section 654. He further argues that the court erred in
imposing sentence for the firearm enhancement because it may
have been unaware that it had discretion to strike the
4 In his briefs, Morgan makes a blanket statement that he joins in the
claims raised by Harrison “that accrue to his benefit.” Harrison made a
similar statement in his opening brief, but withdrew his joinder on
reply. The Attorney General argues that this attempt at joinder is
improper. His argument is well taken. Our high court has expressed
skepticism that “such cursory and unfocused statements are sufficient
under the California Rules of Court, rules 8.630(a) and 8.200(a)(5), to
permit joinder of appellate claims” in a multiple defendant appeal and
“strongly disapprove[d] of this seriously improper tactic.” (People v.
Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 363–364.) However,
we need not consider whether Morgan’s joinder was sufficient. As we
discuss, we conclude that Harrison was not prejudiced by any
prosecutorial misconduct. Thus, even if we presumed that Morgan is
identically situated, Harrison’s claims do not accrue to his benefit.
16
enhancement. Finally, Morgan contends that he is entitled to one
additional day of presentence custody credit.
We conclude that the evidence was sufficient to support
that the killing of Kyle by Morgan and Harrison was willful,
deliberate, and premeditated. We hold that any prosecutorial
errors, together or singly, were not prejudicial and do not require
the reversal of Morgan’s or Harrison’s murder conviction.
Further, we hold that the court did not err in failing to instruct
the jury that provocation can negate premeditation and
deliberation. To the extent that the court erred in failing to
instruct the jury on voluntary manslaughter based on heat of
passion, the error was harmless considering the jury’s
determination that the murder was premeditated and deliberate.
We further conclude there was sufficient evidence to
support that Morgan purposefully took possession of the gun
before the murder took place and that counts 2 and 3 were
therefore not part of the same course of conduct as count 1 under
section 654. However, we accept the Attorney General’s
concession that counts 2 and 3 were part of the same course of
conduct and will therefore modify the judgment to stay the
sentence for count 3. We reject Morgan’s contention that the
court erred in imposing a sentence for the firearm enhancement.
Finally, we accept the Attorney General’s concession that Morgan
is entitled to one additional day of presentence custody credit and
modify the judgment accordingly.
17
DISCUSSION
1. Substantial evidence supports that Morgan’s and
Harrison’s killing of Kyle was premeditated and
deliberate.
1.1. Standard of Review
In assessing the sufficiency of the evidence to support a
conviction, “we review the whole record to determine whether any
rational trier of fact could have found the essential elements of
the crime or special circumstances beyond a reasonable doubt.
[Citation.] The record must disclose substantial evidence to
support the verdict—i.e., evidence that is reasonable, credible,
and of solid value—such that a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt. [Citation.] In
applying this test, we review the evidence in the light most
favorable to the prosecution and presume in support of the
judgment the existence of every fact the jury could reasonably
have deduced from the evidence. [Citation.] ‘Conflicts and even
testimony [that] is subject to justifiable suspicion do not justify
the reversal of a judgment, for it is the exclusive province of the
trial judge or jury to determine the credibility of a witness and
the truth or falsity of the facts upon which a determination
depends. [Citation.] We resolve neither credibility issues nor
evidentiary conflicts; we look for substantial evidence. [Citation.]’
[Citation.] A reversal for insufficient evidence ‘is unwarranted
unless it appears “that upon no hypothesis whatever is there
sufficient substantial evidence to support” ’ the jury’s verdict.
[Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 357; see
also Jackson v. Virginia (1979) 443 U.S. 307; People v. Snow
(2003) 30 Cal.4th 43, 66.)
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1.2. Analysis
Morgan and Harrison contend that the evidence was
insufficient to support that they carefully weighed or considered
killing Kyle, and that the murder of Kyle was therefore neither
premeditated nor deliberate. We conclude that the evidence was
sufficient to support the jury’s findings.
Murder is of the first degree when it is willful, deliberate
and premeditated. (§ 189, subd. (a).) Premeditation and
deliberation require more than a showing of intent to kill. (People
v. Mendoza (2011) 52 Cal.4th 1056, 1069.) A killing is
premeditated and deliberate if it is considered beforehand and
occurred as the result of preexisting thought and reflection,
rather than as the product of an unconsidered or rash impulse.
(People v. Pearson (2013) 56 Cal.4th 393, 443.) “Deliberation”
refers to careful weighing of considerations in forming a course of
action; “premeditation” means thought over in advance. (Ibid.)
However, it is unnecessary to prove the defendant maturely and
meaningfully reflected upon the gravity of his act. (§ 189,
subd. (d).) Premeditation and deliberation do not require any
extended period of time. (People v. Salazar (2016) 63 Cal.4th 214,
245.) The issue is not so much the duration of time as it is the
extent of reflection, because thoughts may follow each other with
great rapidity, and cold, calculated judgment may be arrived at
quickly. (People v. Potts (2019) 6 Cal.5th 1012, 1027.)
“In People v. Anderson [(1968) 70 Cal.2d 15, 26] (Anderson),
[the Supreme Court] identified ‘three basic categories’ of evidence
[it] has generally found sufficient to sustain a finding of
premeditation and deliberation: (1) planning activity, or ‘facts
about how and what defendant did prior to the actual killing
which show that the defendant was engaged in activity directed
19
toward, and explicable as intended to result in, the killing’; (2)
motive, or ‘facts about the defendant’s prior relationship and/or
conduct with the victim from which the jury could reasonably
infer a “motive” to kill the victim’; and (3) manner of killing, or
‘facts about the nature of the killing from which the jury could
infer that the manner of killing was so particular and exacting
that the defendant must have intentionally killed according to a
“preconceived design” to take his victim’s life in a particular way
for a “reason” . . . .’ [Citation.]” (People v. Morales (2020) 10
Cal.5th 76, 88–89 (Morales).) “In the years since Anderson, ‘ “[the
Supreme Court] ha[s] emphasized that its guidelines are
descriptive and neither normative nor exhaustive, and that
reviewing courts need not accord them any particular weight.” ’
[Citation.]” (Id. at p. 89.) Further, “the Supreme Court has
described the various Anderson categories in the disjunctive,
inserting an ‘or’ in the series . . . .” (People v. Nazeri (2010) 187
Cal.App.4th 1101, 1113.)
Review of the sufficiency of the evidence to support a
premeditation finding involves consideration of the evidence
presented and all logical inferences in light of the above
definitions of premeditation. (People v. Perez (1992) 2 Cal.4th
1117, 1124.) We conclude that substantial evidence supports the
jury’s conclusion that Harrison and Morgan committed
premeditated and deliberate murder.
Beginning with the factor with the strongest evidentiary
support, the jury could have inferred premeditation and
deliberation from the manner of killing. The evidence supports
that Harrison inflicted 16 sharp force wounds, four of which were
independently fatal. A jury could infer from the location of the
fatal wounds—the lower left chest, upper right back, and lower
20
middle back—that Harrison was targeting vital areas of Kyle’s
body with the purpose of killing him. (See People v. Moore (2002)
96 Cal.App.4th 1105, 1114 [evidence that “defendant stabbed the
victim not in the arm or leg, but in the abdomen, an extremely
vulnerable area of the body” supported finding of premeditation
and deliberation].) The Supreme Court has recognized on
numerous occasions that the infliction of multiple stab wounds to
a victim tends to support a finding of premeditation. (See
Morales, supra, 10 Cal.5th at p. 102 [evidence that adult victims
suffered multiple fatal stab wounds was among the facts that
“bore most directly on whether [the defendant] acted with
premeditation and deliberation”]; People v. Elliot (2005) 37
Cal.4th 453, 471 [three potentially lethal knife wounds, together
with numerous other stab and slash wounds, implied a
preconceived design to kill]; People v. San Nicolas (2004) 34
Cal.4th 614, 658–659 [sheer number of stab wounds on victim
supported a finding of deliberation]; People v. Pride (1992) 3
Cal.4th 195, 247 [“A violent and bloody death sustained as a
result of multiple stab wounds can be consistent with a finding of
premeditation.”]; People v. Alcala (1984) 36 Cal.3d 604, 627
[evidence of multiple stab wounds and blunt force trauma to the
victim’s head “support[ed] the inference of a calculated design to
ensure death, rather than an unconsidered ‘explosion’ of
violence”].) The Supreme Court has also recognized that, even if
multiple wounds may suggest rage, that does not preclude an
inference of premeditation. (People v. Thomas (1992) 2 Cal.4th
489, 518.)
The evidence further indicates that Morgan encountered
the victim after he had sustained 16 sharp force wounds and was
bleeding profusely. Lozoya testified that Kyle was staggering
21
when he exited the apartment, suggesting that he was weak from
the loss of blood caused by his severe injuries. Further, she
testified that the man with the gun followed Kyle towards the
street and shot him from behind. This is consistent with the
forensic examiner’s testimony, which suggested that the fatal
gunshot wound was inflicted to Kyle’s back when he was already
on the ground. The infliction of multiple gunshot wounds on an
unarmed and retreating individual is consistent with
premeditation and deliberation. (See People v. Silva (2001) 25
Cal.4th 345, 369 [“The manner of killing—multiple shotgun
wounds inflicted on an unarmed and defenseless victim who
posed no threat to defendant—is entirely consistent with a
premeditated and deliberate murder.”]; People v. Brito (1991) 232
Cal.App.3d 316, 323 [upholding a finding of premeditation and
deliberation where the defendant shot a retreating victim in the
back]; see also People v. Koontz (2002) 27 Cal.4th 1041, 1082
[“firing a shot at a vital area of the body at close range” is
“indicative of a deliberate intent to kill”].)
With respect to planning activity, the jury could have
reasonably inferred from the evidence that Harrison and Morgan
came to the victim’s apartment armed with a knife and gun,
respectively, which supports a finding of premeditation and
deliberation. (See People v. Lee (2011) 51 Cal.4th 620, 636 [that
defendant brought a firearm showed he considered the possibility
of a violent encounter]; People v. Steele (2002) 27 Cal.4th 1230,
1250 [“jury could infer that defendant carried the fatal knife into
the victim’s home in his pocket, which makes it ‘reasonable to
infer that he considered the possibility of homicide from the
outset’ ”].) Although both defendants testified that they
encountered these weapons at Kyle’s apartment, a rational trier
22
of fact could discredit these claims as improbable and self-
serving. Their claim that a fifth man was present was not
supported by the testimony of Tart or Lozoya or by any conclusive
DNA evidence, and the man was never identified. The jury could
reasonably doubt that Harrison disarmed a man 60 to 80 pounds
heavier and over half a foot taller and pocketed that man’s knife.
Similarly, a rational trier of fact could doubt Morgan’s claim that
Kyle, who appeared uneasy about his presence, left a gun sitting
out for Morgan to take, rather than keeping it on his person.
Further, Tart testified that he heard Harrison tell Morgan,
“Shoot this motherfucker. Don’t let him out.” The jury could infer
that Harrison told Morgan to shoot because he knew that Morgan
was armed with a gun.
With respect to motive, Harrison apparently intended to
buy weed, but had only $1 in his wallet. Morgan testified that he
intended to buy cocaine and that Kyle’s apartment was a place
that was known in the neighborhood to have drugs. Morgan had
$40, but his family had lost their home that day and he intended
to sell clothes for money to help pay for another place. Although
officers did not recover any drugs from the defendants or from the
apartment, Morgan told detectives that Kyle had pulled out a bag
of drugs and handed it to them. As discussed above, a rational
trier of fact could conclude that Harrison and Morgan were
armed when they arrived at Kyle’s apartment. Thus, taken all
together, the evidence permits the inference that Morgan and
Harrison went to Kyle’s apartment with the purpose of taking
drugs by force and that there was cocaine there for the taking,
whatever may have happened to it in the chaos that followed.
23
In sum, we cannot conclude that no rational trier of fact
could have found premeditation and deliberation beyond a
reasonable doubt based on the evidence presented.
Harrison argues that People v. Boatman (2013) 221
Cal.App.4th 1253 (Boatman) supports that the evidence is
insufficient to support the first degree murder conviction. In
Boatman, the defendant shot the victim, his girlfriend, once in
the face while they were together in his bedroom. (Id. at p. 1258.)
The defendant gave conflicting accounts of what happened but
was holding the victim in his arms when the police arrived and
was heard weeping in the background during the 911 call
reporting the incident. (Id. at pp. 1258–1261.) The court
concluded that insufficient evidence supported the conclusion
that the defendant’s killing of his girlfriend was premeditated,
citing the Anderson factors. First, the case lacked any evidence of
planning. “The house was occupied by four other people who
could identify him. There is no evidence that defendant left the
room or the house to get a gun, or that he even moved from his
squatting position on the floor. Indeed, the only evidence
regarding his possession of the gun was that he took it away from
Marth just prior to the shooting.” (Id. at p. 1267.)
The court also concluded that there was “little or no
relevant motive evidence.” (Boatman, supra, 221 Cal.App.4th at
pp. 1267–1268.) The court observed that shooting the victim in
the face supports a finding of malice, it does not necessarily
support that the gunshot “was pursuant to a ‘ “preconceived
design” to take his victim’s life . . . .’ ” (Id. at p. 1268.) The court
observed that, “[e]ven when manner of killing evidence is strong,
cases in which findings of premeditation and deliberation are
upheld typically involve planning and motive evidence as well.”
24
(Ibid.) “Cases that have found sufficient evidence of
premeditation and deliberation in the absence of planning or
motive evidence are those in which ‘[t]he manner of the killing
clearly suggests an execution-style murder.’ ” (Id. at p. 1269.) The
court in Boatman rejected the prosecution’s contention that
premeditation and deliberation were established because the
evidence supported an inference that the defendant “ ‘took the
time to pull back the hammer, point the pistol at [the victim’s]
face, and fire the weapon.’ ” (Id. at p. 1273.)
While the single gunshot to the face in Boatman was
insufficient to establish deliberation and premeditation under the
facts there (Boatman, supra, 221 Cal.App.4th at pp. 1268–1269),
the circumstances here support a contrary result. As discussed,
the evidence here permits the inference that Harrison stabbed
the victim sixteen times, including in the abdomen and back, and
Morgan fired at the victim’s back as he attempted to escape.
Moreover, unlike in Boatman, a rational trier of fact could
conclude that the defendants had prepared for the possibility of
violence and came to the apartment where Kyle was staying
armed with weapons. In Boatman, the gun was already present
in the room where the defendant and his girlfriend were. (Id. at
p. 1267.)
Morgan argues that People v. Wear (2020) 44 Cal.App.5th
1007 (Wear) supports the conclusion that his actions were not
premeditated or deliberate. In Wear, the defendant took a friend
to meet the victim, “apparently intend[ing] to buy or steal a gun
from [the victim] and possibly to supply him with heroin. The
evidence suggested that an argument arose during the meeting,
and [the victim], who had two guns with him, shot [the friend]
once with one of them. [The defendant], who was unarmed, then
25
seized that gun, shot [the victim] twice with it, and fled with the
other gun.” (Id. at pp. 1009–1010.) The defendant was convicted
of first degree murder. (Id. at p. 1010.) The Wear court held there
was insufficient evidence of premeditation and deliberation. (Id.
at p. 1023.) Circumstances supporting a finding that the
defendant “planned to obtain a gun from [the victim], do not, in
and of themselves, support a reasonable inference that [the
defendant] planned to kill [the victim].” (Id. at p. 1025.) The
defendant “had threatened to kill [the victim] months before the
shootings,” but the threat was both remote in time and “evinced
no particular plan to follow through.” (Id. at pp. 1028–1029.)
There was “some evidence of motive,” specifically, the defendant
and the victim “knew each other and had some sort of falling out
that may have been unresolved at the time of the shootings.” (Id.
at p. 1029.) The fact that the defendant shot the victim “twice in
the face from close range, at least once after [the victim] was
already lying on the ground” was evidence that the defendant
“intentionally killed [the victim]” but not evidence of
premeditation. (Id. at pp. 1029–1031.) Evidence that, after the
shooting, the defendant fled with the victim’s possessions and
attempted to avoid arrest “may tend to show guilt” but did not
“support the conclusion that [the defendant] committed
premeditated and deliberate murder as opposed to second degree
murder or any lesser homicide offense.” (Id. at p. 1031.) “In sum,
the lack of evidence of planning, weak evidence of motive, and
absence of any other evidence suggesting premeditation and
deliberation, combined with the strong evidence that [the
defendant] impulsively shot [the victim] after [the victim] shot
[the friend], leads us to conclude that insufficient evidence
supports a verdict of premeditated murder.” (Id. at p. 1032.)
26
Unlike in Wear, the evidence here does not suggest that
Kyle instigated the altercation that led to his death. Even by
Harrison’s account, it was the unidentified man who was armed
with the knife and started stabbing Kyle. A rational trier of fact
could reject the defendants’ claim that a fifth person was present
in the apartment and conclude that it was Harrison who attacked
Kyle with the knife without provocation. Similarly, a reasonable
jury could conclude from the evidence presented that Kyle did not
approach Morgan in a threatening manner, but that Kyle was
attempting to get away when Morgan pursued him and shot him
multiple times. Further, as discussed above, the evidence permits
the inference that the defendants were armed when they arrived
at the apartment, unlike the defendant in Wear.
As the court in Wear cautioned, “ ‘When we decide issues of
sufficiency of evidence, comparison with other cases is of limited
utility, since each case necessarily depends on its own facts.’
[Citation.]” (Wear, supra, 44 Cal.App.5th at p. 1030.) Given the
many factual differences between this case and Boatman and
Wear, we hold that neither case compels the conclusion that
insufficient evidence supported the jury’s finding of
premeditation and deliberation as to both Morgan and Harrison.
2. Morgan’s Claims of Prosecutorial Misconduct
“[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.” (People v. Hill (1998) 17
Cal.4th 800, 819.) “Under California law, a prosecutor commits
reversible misconduct if he or she makes use of ‘deceptive or
reprehensible methods’ when attempting to persuade either the
trial court or the jury, and it is reasonably probable that without
27
such misconduct, an outcome more favorable to the defendant
would have resulted. [Citation.]” Under the federal Constitution,
conduct by a prosecutor that does not result in the denial of the
defendant’s specific constitutional rights—such as a comment
upon the defendant’s invocation of the right to remain silent—but
is otherwise worthy of condemnation, is not a constitutional
violation unless the challenged action ‘ “so infected the trial with
unfairness as to make the resulting conviction a denial of due
process.” ’ [Citations.]” (People v. Riggs (2008) 44 Cal.4th 248,
298.)
“It is well settled that making a timely and specific
objection at trial, and requesting the jury be admonished (if jury
is not waived), is a necessary prerequisite to preserve a claim of
prosecutorial misconduct for appeal. [Citations.] ‘The primary
purpose of the requirement that a defendant object at trial to
argument constituting prosecutorial misconduct is to give the
trial court an opportunity, through admonition of the jury, to
correct any error and mitigate any prejudice.’ [Citation.]” (People
v. Seumanu (2015) 61 Cal.4th 1293, 1328.)
Morgan acknowledges that his counsel failed to object to
the prosecutor’s comments shifting the burden of proof and
criticizing appellant’s failure to remember details about the fifth
person in the apartment. He argues that appellate courts are not
prohibited from reaching questions that were not preserved for
review and, in the alternative, he received ineffective assistance
of counsel. We exercise our discretion to address these claims on
the merits to eliminate the need to address his alternative
ineffective assistance of counsel claim. (See In re Victor L. (2010)
182 Cal.App.4th 902, 928.)
28
2.1. Reference to Defendants’ Ability to Have
Materials Tested
Morgan contends that the prosecutor’s argument that
defendants could have requested access to evidence to perform
their own DNA testing improperly shifted the burden of proof to
defendants. We conclude that the prosecutor’s argument
constituted a fair comment on the evidence. Further, any error
was harmless considering the court’s instruction that the People
bear the burden of proof and the prosecutor’s repeated
acknowledgment that she had the burden.
2.1.1. Additional Background
During his cross-examination of criminalist Robert
Broderick, counsel for Morgan asked Broderick whether, in
addition to the samples he tested, he was aware of 29 additional
samples that were taken from the inside of the apartment and
two additional samples that were taken from the outside.
Broderick stated that he was not aware of the additional swabs
and that he had not been asked to test any samples beyond the
12 that he tested.
On redirect, the prosecutor asked Broderick whether the
defense has the ability to test samples from the case, including
those taken from the exterior of the apartment that Broderick did
not test. Broderick stated that the defense team can request that
evidence be released for testing and that he has made evidence
available to defense teams in the past.
During his questioning of Detective Flaherty, counsel for
Morgan once again raised the 29 blood samples collected from the
interior of the apartment and the two blood samples collected
from the exterior of the apartment. Detective Flaherty stated
29
that he did not request that those specific samples be tested. He
explained that he knew from other evidence that only four people
were present at the time of the murder and that, since the
apartment was used by many people and multiple people came
and went, it was likely that the samples could reflect DNA from
anybody.
The court instructed the jury: “A defendant in a criminal
case is presumed to be innocent. This presumption requires that
the People prove a defendant guilty beyond a reasonable doubt.
Whenever I tell you the People must prove something, I mean
they must prove it beyond a reasonable doubt.”
In her opening argument, the prosecutor stated: “My
opening argument is going to be a little bit lengthy because I
have the job, I have the burden. So—I also have the job of proving
to you not only the facts but explaining the law.” Later in her
opening argument, the prosecutor reiterated that “[t]he People
have the burden to prove this case to you beyond a reasonable
doubt. There is no question about that. It’s my burden, and I have
to prove it to you beyond a reasonable doubt.”
Counsel for Harrison argued during his closing that the
fact that one or two of the DNA samples came back inconclusive
“lends support to the idea that there was a fifth person there.”
During her rebuttal argument, the prosecutor explained, “I have
the burden; so I have the last argument.” She argued that there
was no evidence to support that a fifth person was present in the
apartment and explained that “only two items of DNA
evidence . . . came back inconclusive.” The first item was the gun
grip and the second item was the right shoe worn by defendant
Morgan, for which the DNA evidence said that there were at least
three male contributors who could not be identified. The
30
prosecutor argued: “How does that suddenly equal there’s a fifth
person inside the house? If there was truly a fifth person inside of
the house, ladies and gentlemen, and defendant Harrison had
said that to you, why didn’t they have any of the 29 swabs in the
house tested? Why didn’t they? You hear the DNA lab tell you
that they keep it for people if they want more testing, if they
want re-testing, if defense wants to request testing. If they had
information there was a fifth person inside of the house, why
didn’t they have the 29 swabs tested?” Defense counsel did not
object to this argument.
2.1.2. Analysis
A prosecutor may comment “ ‘on the state of the evidence,
or on the failure of the defense to introduce material evidence or
to call logical witnesses.’ [Citation.]” (People v. Turner (2004) 34
Cal.4th 406, 419.) “A distinction clearly exists between the
permissible comment that a defendant has not produced any
evidence, and on the other hand an improper statement that a
defendant has a duty or burden to produce evidence, or a duty or
burden to prove his or her innocence.” (People v. Bradford (1997)
15 Cal.4th 1229, 1340 [prosecutor’s comments did not
impermissibly shift the burden where prosecutor stated at the
outset the prosecution had the burden of proof].)
In People v. Cook (2006) 39 Cal.4th 566, the prosecution’s
expert witness testified that the bullets that killed two of the
murder victims came from the same gun. The defense theory was
that two different guns had been used. In closing, the prosecutor
addressed the defense theory, asking where the second gun was
and stating that the defense could have called experts, but did
not. (Id. at p. 607.) After the defense objected that the prosecutor
was burden shifting, the trial court reminded the jury that the
31
prosecutor had the burden of proof. The prosecutor acknowledged
this burden, but again argued the defendant had a right to
produce an expert who could have testified whether the bullets
were consistent with two different guns having been used to kill
the two victims. (Id. at p. 608.) After noting that “[a] prosecutor
may make fair comment on the state of the evidence,” the court
concluded the prosecutor’s statements were fair comment on the
absence of evidence of a second gun. Moreover, the trial court had
properly admonished the jury that the People bore the burden of
proof. (Ibid.)
We conclude that the circumstances here are comparable to
those present in People v. Cook, supra, 39 Cal.4th 566, and that
the prosecutor did not commit error. Counsel for Morgan
questioned multiple witnesses about the untested samples, and
counsel for Harrison argued that the fact that certain DNA
analyses were inconclusive supported that a fifth person was
present. As Morgan acknowledges, the defense’s theory “was that
Tart was wrong and a fifth person was in that apartment.” The
prosecutor could fairly comment on the absence of any material
evidence supporting this theory. Morgan concedes that the
prosecutor did not state that defense counsel was obligated to
perform additional testing but argues that her statements
suggested that the defendants had the burden to prove innocence.
We disagree. The prosecutor did not argue defendants were
required to present any evidence and repeatedly stated that she
bore the burden of proof.
Although Morgan contends that the circumstances of
People v. Frye (1998) 18 Cal.4th 894 are distinguishable from
those present here, we believe that Frye supports the conclusion
that the prosecutor did not commit error. In Frye, the prosecutor
32
pointed out in closing argument that the jury had been told that
they would hear from a neuropsychologist who did not end up
testifying for the defense. (Id. at p. 973.) The prosecutor argued,
“ ‘[Y]ou may reasonably infer, if that psychologist had some real
helpful information to the defense, you would have heard from
her.’ ” (Ibid.) Our Supreme Court “conclude[d] that the
prosecutor’s reference to the defense team’s failure to call [the
neuropsychologist] was proper. Here, the prosecutor’s remark
was a comment on a weakness in defendant’s theory of the case,
in no way suggesting defendant had the burden of proving his
innocence. To the contrary. She told jurors the People had the
burden of proof on each and every count. Moreover, the trial court
instructed the jury defendant was presumed innocent until his
guilt was proven, and that this presumption placed on the
prosecution the burden of proving him guilty beyond a reasonable
doubt.” (Ibid.) These same mitigating factors are present here.
Even if we concluded that the prosecutor’s argument was
improper, we would find no prejudice considering the court’s
instructions and the prosecutor’s acknowledgment that she had
the burden. Thus, there is no “ ‘ “reasonable likelihood that the
jury construed or applied any of the complained-of remarks in an
objectionable fashion.” [Citation.]’ ” (People v. Carter (2005) 36
Cal.4th 1215, 1263.)
2.2. Eliciting Improper Opinion Testimony
Morgan argues that the prosecutor improperly sought
opinion testimony from Detective Flaherty concerning Lozoya’s
demeanor. We conclude that this claim was forfeited. Even if we
reached this contention, we would conclude that any error was
harmless because the court sustained defense counsel’s objections
and ordered the jury to disregard the questions.
33
2.2.1. Additional Background
During her redirect examination of Detective Flaherty, the
prosecutor asked several questions about Lozoya’s statements to
Detective Flaherty in her prior interview and played portions of
that interview for the jury. The prosecutor then inquired whether
Detective Flaherty had observed her demeanor when she testified
at trial, and whether he was present when she approached
Morgan’s mother. He answered both questions in the affirmative.
The prosecutor asked whether Lozoya “wanted [Morgan’s mother]
to know that she wasn’t in any way implicating anyone in this
case.” Counsel for Morgan objected and the court sustained the
objection. The prosecutor then asked, “Based on her demeanor
and how you saw her testify—and I’m assuming the hundreds of
trials that you’ve been part of involving gang-related incidents—
is that uncommon, her behavior to you?” Counsel for Morgan
objected and the court sustained the objection. The prosecutor
asked, “Well, was it surprising to you that she was—” Counsel for
Morgan again objected, and the court sustained the objection.
The prosecutor asked no further questions.
The court instructed the jury, “You must decide what the
facts are. It is up to all of you and you alone to decide what
happened based only on the evidence that has been presented to
you in this trial.” It further instructed, “During the trial the
attorneys may have objected to questions or moved to strike
answers given by the witnesses. I ruled on the objections
according to the law. If I sustain an objection, you must ignore
the question. If the witness was not permitted to answer, do not
guess what the answer might have been or why I ruled as I did.”
34
2.2.2. Analysis
As discussed above, a defendant may not complain on
appeal of prosecutorial misconduct unless the defendant made a
timely objection and requested that the jury be admonished to
disregard the impropriety. (People v. Seumanu, supra, 61 Cal.4th
at p. 1328.) This requirement is excused only if an objection
would have been futile or an admonition would not have cured
the harm. (People v. Dykes (2009) 46 Cal.4th 731, 760.)
Morgan’s trial counsel objected to the prosecutor’s
questions to Detective Flaherty regarding Lozoya, but he did not
request that the court admonish the jury. Morgan fails to argue
on appeal that an admonition would have been futile. Thus, the
claim of prosecutorial misconduct was not preserved.
Even if we reached this issue, we would not find the
prosecutor’s questions to be prejudicial. The court sustained trial
counsel’s objections before Detective Flaherty even responded to
the questions that Morgan contends solicited inappropriate
opinion testimony. Considering the court’s instructions and
admonition, it is unclear how the questions could have
improperly influenced the jury or prejudiced Morgan when
Detective Flaherty did not even respond. (See People v. Greeley
(2021) 70 Cal.App.5th 609, 620 [even assuming misconduct,
prosecutor’s question was harmless where “defense counsel’s
objection was sustained before the prosecutor even finished the
question or [the witness] responded].)
2.3. References to Defendants’ Post-Arrest Silence
Morgan contends that certain lines of questioning and
argument by the prosecutor were error under Doyle v. Ohio
(1976) 426 U.S. 610 (Doyle), which held that a defendant’s
35
postarrest silence after Miranda warnings are given may not be
used to impeach the defendant’s trial testimony, or at trial to
imply guilt from that silence. (See People v. Hollinquest (2010)
190 Cal.App.4th 1534, 1555.) We conclude that the sole comment
concerning Morgan was not improper under Doyle. Even
assuming that the prosecutor committed error by commenting on
Harrison’s silence, we perceive no prejudice to Morgan.
2.3.1. Additional Background
During her cross-examination of defendant Harrison, the
prosecutor asked Harrison why he had not mentioned the six-foot
tall, 200-pound man who was purportedly also in the apartment
to Detective Flaherty while making his statement. After receiving
no direct response to the question, the prosecutor asked again:
“Everything you’ve testified today in court in front of this jury
you never told Detective Flaherty in your interview. Isn’t that
true? Yes or no.” Harrison agreed that it was true and stated that
he “[n]ever told [Detective Flaherty] nothing” and “never will tell
him nothing.” The prosecutor asked whether it was true that
Harrison had never told anyone what he testified to in court that
day. Harrison replied that he “never talked to the detective about
nothing that happened in that apartment.”
The prosecutor then asked Harrison whether he had been
in court on at least 20 occasions over the last year and a half,
including the preliminary hearing, during which the prosecution
put on evidence. Harrison agreed. The prosecutor then asked:
“And you have never, ever told this story in court ever before this
date. Isn’t that true?” Defense counsel objected and the court
sustained the objection and instructed the jury to ignore the
question and the answer.
36
Outside the presence of the jury, the judge stated: “I’m just
going to put all counsel on notice there should not be any
reference to the fact that Mr. Harrison did not say anything or
talk or mention or give any information regarding him testifying
because he has the right to remain silent. So, now, if he can be
impeached with a prior statement, that’s different. But he has—
has the right to remain silent up until this point. So that’s why I
sustained that objection. That’s why I admonished the jury to
ignore not only the question but to disregard the question and
response. [¶] So are we—everyone on the same footing as to that
matter I’m assuming?”
The prosecutor argued that Harrison had waived that right
by testifying, but the court disagreed and stated, “You can cross
examine him, but you can’t question him about the fact that he
previously exercised his right to remain silent . . . .” The court
further warned the prosecutor that “if you choose to go there in
closing argument, you’re committing reversible error.”
During her closing argument, the prosecutor argued that
there was no evidence of a fifth person in the apartment “[o]ther
than [Harrison’s] statement, other than his testimony.” She
further stated, “And it’s funny how he never mentioned during
his interview to Detective Flaherty that there was this fifth
person stabbing a victim who was six feet tall, 220 pounds with
braids. He kept that. He kept that in his heart, ladies and
gentlemen, and made sure he was only going to say it a year and
a half later when he was sitting in trial [in] front of you guys
because that makes sense. I’m going to sit here a year and a half
pending a murder investigation, a murder charge, but I’m not
going to tell anybody who did it, and I’m only going to bring out
this man with the braids in court.” Counsel for Harrison and
37
Morgan objected and the court held a side bar. Counsel for
Morgan argued that the prosecutor was “hinting and going at the
fact that he did not make any statements prior to that which he
doesn’t have to. It’s his Fifth Amendment right.” The court
echoed this concern and advised the prosecutor: “You know,
whether he may have said it was somebody else, that’s fine. You
can argue that. But stay away from any hint that because
someone exercised their right to remain silent that the jurors can
consider that.”
The prosecutor argued that once a defendant takes the
stand, he waives his Fifth Amendment right. The court replied, “I
indicated previously my position on this. If you want to continue
to go that route, you can. It’s up to you. But I think that what you
said out there in terms of what he said to the detective, that’s
fine. You can argue that he didn’t mention it to the detective. But
you can’t imply to the jurors find him guilty or find that he was
guilty or that there’s evidence of his guilt because they exercised
their right to remain silent. It’s akin to Doyle error.”
The prosecutor argued again that Harrison had waived his
right to remain silent by waiving his Miranda rights and giving a
statement to detectives. The court replied, “So you can talk about
that statement. I agree with you there, But I’m suggesting and I
said earlier why you would want to create an issue, I don’t know
in that area when it’s not necessary. And as I’ve indicated, I
directed you—I would suggest you stay away from there . . . . But
the inference that I don’t want the jury to think about is they
consider the fact that he may have chosen to remain silent at
that time because he had the right at that time.” Counsel for
Morgan asked that the court find that the prosecutor had
engaged in misconduct, that it was error, and asked that the
38
court admonish the jury about Harrison’s Fifth Amendment
rights. Counsel for Harrison joined in the request. After further
argument from the prosecutor, the court denied the request for
mistrial but warned the prosecutor, “[I]f you go there again, I’m
sure we’ll have another side bar. It’s up to you.” The prosecutor
stated that she was done pursuing that line of argument and
stated, “I made it clear that I was taking about [Harrison] never
said it to the detective.” The court agreed that “[t]hat part is
fine.” The court further stated that it would not admonish the
jury, explaining, “I’d rather not have the jury think about that
issue and have them discuss it . . . It was a quick reference. It
was slight. You objected. We dealt with it at side bar. I think
we’re okay.”
Later in her argument, the prosecutor stated, “It’s funny
also that defendant Morgan never told the detectives about this
unknown assailant. He told you in the trial, but we know from
his interview he told the detectives that two people were fighting
with Tap and Gerod. Those were his exact words. And that was
the part of the interview that you heard yesterday. [¶] So why
would he lie to the detective when he’s actually trying to get
himself out of trouble during the interview and say it was Tap
and Gerod but then come to court and say no, it actually wasn’t
Gerod. It was somebody else? That doesn’t make any sense.”
Defense counsel did not object to these statements.
Following the conclusion of the prosecutor’s closing
argument, the court stated that it wanted to “put a couple things
on the record” with regards to the side bar conversation. The
court explained, “The prosecutor may point out the
inconsistencies between the defendant’s statement to the police
and his jury trial testimony which is exactly what I’ve said you’re
39
free to do, but it is Doyle error to do so by showing that the
defendant did not talk to police again after giving a statement
and before trial.”
2.3.2. Analysis
“In Doyle, the United States Supreme Court held that it
was a violation of due process and fundamental fairness to use a
defendant’s postarrest silence following Miranda warnings to
impeach the defendant’s trial testimony. [Citation.] However,
Doyle does not apply when a defendant presents exculpatory
testimony at trial inconsistent with a voluntary post-Miranda
statement. [Citation.]” (People v. Collins (2010) 49 Cal.4th 175,
203 (Collins).)
The United States Supreme Court addressed Doyle error in
Anderson v. Charles (1980) 447 U.S. 404 (Anderson v. Charles). In
Anderson v. Charles, the defendant waived his Miranda rights
and said that he had stolen the murder victim’s car from a
particular location. (Id. at p. 405.) At trial, he testified that he
stole the car from a different location. (Ibid.) The prosecutor
questioned the defendant about his opportunity to change the
facts and then asked: “ ‘Don’t you think it’s rather odd that if it
were the truth[,] that you didn’t come forward and tell anybody
at the time you were arrested, where you got the car?’ ” (Id. at
pp. 405–406.) In a per curiam opinion, the court held that “Doyle
bars the use against a criminal defendant of silence maintained
after receipt of governmental assurances. But Doyle does not
apply to cross-examination that merely inquires into prior
inconsistent statements. Such questioning makes no unfair use of
silence because a defendant who voluntarily speaks after
receiving Miranda warnings has not been induced to remain
40
silent. As to the subject matter of his statements, the defendant
has not remained silent at all. [Citations.]” (Id. at p. 408.)
In Collins, the defendant argued that the prosecutor had
violated Doyle by questioning the defendant about his failure to
reveal an alibi to a detective or during his prior court
appearances, and by commenting on his failure to raise his alibi
in her closing argument. (Collins, supra, 49 Cal.4th at pp. 199–
202.) Our high court concluded that no Doyle error had occurred.
(Id. at p. 203.) The court observed that, as in Anderson v.
Charles, the “[d]efendant was not ‘silent’ on his whereabouts at
the time of the murder; he chose to provide varied explanations
that differed from his trial testimony. The Supreme Court stated
in Anderson that each of the ‘inconsistent descriptions of events
may be said to involve “silence” insofar as it omits facts included
in the other version. But Doyle does not require any such
formalistic understanding of “silence,” and we find no reason to
adopt such a view in this case.’ [Citation.]” (Id. at p. 204.) The
Collins court further explained that the defendant’s complaint
“that the prosecutor did not question him about inconsistencies in
his statements, but instead focused on his failure to reveal his
alibi” had similarly been addressed in Anderson v. Charles. (Ibid.)
The Supreme Court rejected the federal appeals court’s
conclusion “that the exchange regarding the defendant’s ‘ “failure
to tell arresting officers the same story he told the jury” ’ was an
unconstitutional inquiry about postarrest silence . . . explaining
that the prosecutor’s cross-examination could not be ‘bifurcated
so neatly’ and must be considered as a whole” and concluding
“that questions regarding the defendant’s failure to tell the police
the same story ‘were not designed to draw meaning from silence,
41
but to elicit an explanation for a prior inconsistent statement.’
[Citation.]” (Ibid.)
The California Supreme Court concluded that “the
prosecutor properly questioned defendant about the different
explanations he gave [the detective]” and her “questions
regarding defendant’s failure to come forward earlier with his
alibi were asked in the context of those interview statements.”
(Collins, supra, 49 Cal.4th at p. 204.) Thus, “[t]he questions were
a legitimate effort to elicit an explanation as to why, if the alibi
were true, defendant did not provide it earlier. As such, neither
the questions nor the prosecutor’s remarks in closing argument
were ‘designed to draw meaning from silence.’ [Citation.]” (Ibid.)
Much of the questioning and argument that Morgan cites
pertained to Harrison, who does not raise this issue or join in
Morgan’s argument. With respect to the comment pertaining to
Morgan, we perceive no error. The prosecutor pointed out that
Morgan, who waived his Miranda rights and agreed to speak
with detectives, told them that he had witnessed Kyle and
Harrison fighting. At trial, he claimed that Kyle was fighting
with a different man whom he had not mentioned to the
detectives. As in Anderson v. Charles, Morgan was not silent
about the subject matter of his later testimony, and thus Doyle
does not apply to the prosecutor’s argument addressing his prior
inconsistent statements.
We next turn to whether the prosecutor’s statements
concerning Harrison were error and, if so, whether those errors
prejudiced Morgan. With respect to the prosecutor’s commentary
on Harrison’s failure to mention the unidentified fifth man
during his various appearances in court, we will assume for the
sake of argument that the prosecutor improperly commented on
42
Harrison’s post-arrest silence. However, the court sustained the
objection from defense counsel and admonished the jury to
disregard the question and answer. “The United States Supreme
Court has explained that a Doyle violation does not occur unless
the prosecutor is permitted to use a defendant’s postarrest silence
against him at trial, and an objection and appropriate instruction
to the jury ordinarily ensures that the defendant’s silence will not
be used for an impermissible purpose.” (People v. Clark (2011) 52
Cal.4th 856, 959.) Morgan fails to argue that the court’s
instruction to the jury was inadequate. Thus, we conclude that
there was no Doyle violation.
We also perceive no error in the prosecutor’s statement
concerning Harrison during her closing argument. “[T]he Doyle
rule [does] not prohibit the prosecution’s use of [the defendant’s]
selective silence as adoptive admissions” where the defendant
“voluntarily spoke with a police detective after receiving Miranda
warnings.” (People v. Bowman (2011) 202 Cal.App.4th 353, 364.)
The prosecutor commented on the fact that Harrison spoke with
Detective Flaherty yet did not mention the presence of the fifth
man. The record indicates that Harrison waived his Miranda
rights, agreed to speak with defendants, and responded to certain
of their questions, including whether the backpack belonged to
Morgan. There is no basis in the record to conclude that
Harrison’s failure to inform detectives of the presence of the fifth
man was because he invoked his right to remain silent. Thus, the
brief portion of the prosecutor’s argument addressing Harrison’s
postarrest silence was not an attempt to draw attention to that
silence as substantive evidence of guilt, but to point out that
Harrison willingly spoke with detectives yet failed to inform them
of exculpatory information on which he later relied. The
43
circumstances here are thus comparable to Collins, where the
defendant spoke with detectives but did not mention the alibi on
which he later relied. Considered in context, it does not appear
that the prosecutor’s remarks during argument were meant to
draw meaning from a post-Miranda or post-appointment-of-
counsel invocation of silence by Harrison. The prosecutor’s
commentary on Harrison’s silence concerning the fifth man was
raised “in the context of [his prior] interview statements” and was
not a Doyle violation. (Collins, supra, 49 Cal.4th at p. 204.)
Assuming for the sake of argument that the prosecutor did
commit a Doyle violation with respect to her questioning or
argument, we conclude any such error was harmless beyond a
reasonable doubt and, therefore, does not require reversal. (See
People v. Quartermain (1997) 16 Cal.4th 600, 621; People v.
Galloway (1979) 100 Cal.App.3d 551, 559; Chapman v. California
(1967) 386 U.S. 18.) To determine whether reversal is necessary
based on a Doyle error, we must consider the extent of the
comments made, how the statement would have been understood
by a reasonable juror in context, whether the prosecutor
suggested an inference of guilt based on the invocation, and the
overall strength of the case. (People v. Benson (1990) 52 Cal.3d
754, 793; People v. Hollinquest, supra, 190 Cal.App.4th at p.
1559.) We will not assume that the jury drew the most damaging
meaning possible from the disputed comments; instead, the
defendant must establish a reasonable likelihood that the jury
understood and applied the comments in an improper manner.
(People v. Frye, supra, 18 Cal.4th at p. 970; People v. Spector
(2011) 194 Cal.App.4th 1335, 1403.)
The evidence against Morgan was very strong. He admitted
to shooting Kyle. There was also substantial evidence to support
44
that Morgan pursued Kyle, who had already sustained four fatal
wounds, while he attempted to stagger away and shot him
multiple times. Whether the fifth man was present or not had far
more bearing on Harrison’s case than Morgan’s. Thus, it is
unlikely that the jury would place much, if any, weight on the
fact that Morgan did not mention the fifth man during his
interview with detectives when determining whether he was
guilty. To the extent that the prosecutor erroneously used
Harrison’s selective silence during questioning with detectives or
during prior court appearances to undermine his credibility, it is
unclear what impact this would have had on Morgan’s case.
Harrison testified that he did not notice Morgan after the fight
began, and thus said nothing that corroborated Morgan’s claim
that he shot Kyle out of fear and to defend himself.
2.4. Prosecutor’s Purported Misstatement of the Law
Concerning Self-Defense
Morgan argues that the prosecutor misstated the law of
imperfect self-defense by stating that the standard was
subjective. We conclude that any error was harmless, as the jury
was correctly instructed on the law and was instructed to follow
the court’s instructions over the argument of counsel.
2.4.1. Additional Background
The court instructed the jury: “You must follow the law as I
explain it to you even if you disagree with it. If you believe that
the attorneys’ comments on the law conflict with my instructions,
you must follow my instructions.”
With respect to justifiable homicide, the jury was
instructed with CALCRIM No. 505. In relevant part, the
instruction stated: “The defendant Dean Morgan is not guilty of
45
murder if he was justified in killing someone in self-defense. The
defendant acted in self-defense if: [¶] 1. The defendant reasonably
believed he was in imminent danger of being killed or suffering
great bodily injury; [¶] 2. The defendant reasonably believed that
the immediate use of deadly force was necessary to defend
against that danger; [¶] AND [¶] 3. The defendant used no more
force than was reasonably necessary to defend against the
danger. [¶] . . . Defendant’s belief must have been reasonable and
he must have acted only because of that belief. The defendant is
only entitled to use that amount of force that a reasonable person
would believe is necessary in the same situation. If the defendant
used more force than was reasonable, the killing was not
justified. [¶] When deciding whether the defendant’s beliefs were
reasonable, consider all the circumstances as they were known to
and appeared to the defendant and consider what a reasonable
person in a similar situation with similar knowledge would have
believed. If the defendant’s beliefs were reasonable, the danger
does not need to have actually existed.”
During her closing argument, while discussing Morgan’s
claim of self-defense, the prosecutor stated that complete self-
defense requires that the defendant was “confronted with the
immediate threat of great bodily injury or death.” She continued,
“We have an individual who is bleeding to death having been
stabbed 15 times walking towards you. Where is the imminent
danger of great bodily injury to you? You’re the one holding the
gun. [¶] Still, if you want to believe that, an unarmed individual
having been stabbed 15 times taking his last few breaths coming
at you, you find that to be terrifying? If you even believe it
happened that way, you have to shoot them four times? Is that
reasonable use of deadly force? And this—this complete self-
46
defense is what a reasonable person in the same situation as the
defendant would do, not what the defendant would do. So it’s not
subjective.”
Counsel for Morgan objected that this argument misstated
the law. The court overruled the objection and informed the jury,
“Just keep in mind, as I already indicated if the attorneys say
something in their arguments that conflicts with my instructions
on the law, you’re to follow my instructions.”
2.4.2. Analysis
“ ‘[I]t is improper for the prosecutor to misstate the law
generally [citation] . . . . Improper comments violate the federal
Constitution when they constitute a pattern of conduct so
egregious that it infects the trial with such unfairness as to make
the conviction a denial of due process. [Citation.] Improper
comments falling short of this test nevertheless constitute
misconduct under state law if they involve use of deceptive or
reprehensible methods to attempt to persuade either the court or
the jury. [Citation.] To establish misconduct, defendant need not
show that the prosecutor acted in bad faith.” (People v. Cortez
(2016) 63 Cal.4th 101, 130.) “But a prosecutor is allowed to
vigorously argue the case and is afforded ‘significant leeway’ in
discussing the facts and the law in closing argument. [Citations.]”
(People v. Azcona (2020) 58 Cal.App.5th 504, 516.)
It is a close question whether the prosecutor misstated the
law in the portion of her argument identified by Morgan. The
prosecutor’s statement that the standard is “not subjective” is
correct in the sense that the jury must “consider what a
reasonable person in a similar situation with similar knowledge
would have believed” and cannot conclude that a homicide was
justifiable based only on what the defendant subjectively
47
believed. However, to the extent that the prosecutor’s argument
suggested that the defendant must have been objectively correct
about the presence of danger, her argument was contrary to the
law. As the instruction states, a danger need not have existed so
long as the defendant’s beliefs regarding it were reasonable.
Assuming the prosecutor misstated the law, Morgan has
failed to show prejudice. He has not demonstrated there is a
reasonable probability that the result of the proceeding would
have been more favorable to him but for counsel’s failure to
object. There is no dispute that CALCRIM No. 505 accurately
stated the law of justifiable homicide. The jury was instructed
that, if the attorneys’ comments on the law conflicted with the
trial court’s instructions, they must follow the law as the trial
court explained it to them. The court also reminded the jury of
this instruction when the prosecutor made the arguments
concerning justifiable homicide to which Morgan’s counsel
objected. “ ‘When argument runs counter to instructions given a
jury, we will ordinarily conclude that the jury followed the latter
and disregarded the former, for “[w]e presume that jurors treat
the court’s instructions as a statement of the law by a judge, and
the prosecutor’s comments as words spoken by an advocate in an
attempt to persuade.” [Citation.]’ ” (People v. Centeno (2014) 60
Cal.4th 659, 676 (Centeno); see also People v. Cortez, supra, 63
Cal.4th 101, 131–132 [“ ‘Juries are warned in advance that
counsel’s remarks are mere argument, missteps can be
challenged when they occur, and juries generally understand that
counsel’s assertions are the “statements of advocates.” ’ ”].)
Finally, the prosecutor’s misstatement was brief, and the
evidence indicating that Morgan did not act in self-defense was
strong.
48
2.5. Statement Pointing Out Morgan’s Failure to
Remember Details
Morgan argues that the prosecutor committed error by
denigrating his failure to remember the details of what happened
the day of the murder. This claim is without merit.
2.5.1. Additional Background
During closing argument, the prosecutor stated: “There’s no
corroboration that there was a fifth person inside the house. The
only evidence that there was a fifth person inside of [the] house is
defendant Harrison’s testimony. Even defendant Morgan initially
said there was nobody else in the house. When he testified in
front of you at trial he also said there was somebody else, but
what’s interesting is defendant Harrison remembered this person
had braids but Morgan could just remember that he was tall. If
you’re both standing trial because somebody else murdered your
homie or tried to murder your homie, you don’t remember? You’d
remember the details about this person.”
2.5.2. Analysis
As discussed above, a prosecutor is given wide latitude
during argument and may argue vigorously so long as her
commentary on the evidence is fair. (People v. Hill, supra, 17
Cal.4th at p. 819.) The prosecutor argued that Morgan’s inability
to describe the purported fifth person in the apartment in any
detail called the credibility of his testimony into doubt. This was
a fair commentary on the evidence and fell within the wide
latitude given to prosecutors during closing argument. (See
People v. Edwards (2013) 57 Cal.4th 658, 763 [prosecutor’s
closing argument that defendant’s assertion he did not remember
the murders should not be credited was fair comment on the state
49
of the evidence]; see also People v. Schmeck (2005) 37 Cal.4th
240, 298 [no misconduct in referring to defendant as a “ ‘dope
dealing lying rat’ ”]; People v. Edelbacher (1989) 47 Cal.3d 983,
1030 [the prosecutor’s argument that defendant was a “ ‘snake in
the jungle,’ ” “ ‘slick,’ ” “ ‘tricky,’ ” a “ ‘pathological liar,’ ” and
“ ‘one of the greatest liars in the history of Fresno County’ ” was
not misconduct].)
3. Harrison’s Claims of Prosecutorial Misconduct
Harrison raises three claims of prosecutorial misconduct in
connection with statements made by the prosecutor during
closing argument. His trial counsel objected to none of these
statements during trial. He argues that the claims are
nevertheless cognizable and, to the extent they are forfeited, he
received ineffective assistance of counsel. We again exercise our
discretion to address these claims on the merits. (See In re Victor
L., supra, 182 Cal.App.4th at p. 928.)
3.1. Facts Not in Evidence
Harrison contests that the prosecutor argued facts not in
evidence when she asserted several times during closing
argument that Morgan and Harrison intended to steal from the
victim. We conclude that the prosecutor did not err and that any
error was not prejudicial.
3.1.1. Additional Background
The court instructed the jury: “Evidence is the sworn
testimony of witnesses, the exhibits admitted into evidence, and
anything else I told you to consider as evidence. Nothing that the
attorneys say is evidence. In their opening statements and
closing arguments the attorneys discuss the case but their
50
remarks are not evidence. Their questions are not evidence. Only
the witness’s answers are evidence.”
At the beginning of her opening argument, the prosecutor
argued: “We’re here because of the defendants’ actions. The two
defendants that sat before you throughout this trial chose to
conduct a series of actions that they chose themselves. Waking up
that morning, setting out to 107th and Main knowing why they
were going there, knowing who lived there, knowing what Tap
had to offer, and knowing what they wanted to gain. [¶] . . . [¶]
They made their way to apartment number five, and they made
sure that they didn’t leave until they got what they wanted. And
what you see, the state that you see this apartment is what they
did, ladies and gentlemen.”
Later in her opening argument, the prosecutor argued,
“[Marvin Tart] says, ‘They told me to get in the room so they
could handle their business.’ This is important because it’s
consistent with what we know that they went over there with the
express intent to rob victim Albert Kyle.” She also stated: “Did
they think about their decision before they went into Mr. Kyle’s
house to kill him? Did they think about what they were doing
every time they stabbed or shot at him. Absolutely. How do we
know that? They armed themselves with weapons before they
left . . . . They went there together knowing that they were going
there to get the drugs and to leave without paying for the drugs.”
Finally, she asserted that the defendants’ version of events was
not plausible and that, “[o]n May 26th, 2018, the two of them
went there with the express intent to take advantage of Tap, to
leave with what they could. And when they couldn’t get what
they wanted, they killed him.”
51
During the rebuttal argument, the prosecutor asserted:
“We know that they went there together from defendant
Morgan’s mother’s home. They left her home, and they went
there together with a plan . . . . [¶] We know that they went there
to rob him because their actions were coordinated. Once the
drugs were turned over, defendant Harrison went in the back
with the victim, and that’s where the stabbing began and
defendant Morgan always stayed in the front and looked,
remained as a lookout. Their actions were coordinated, and the
drugs were gone. [¶] Defendant Morgan said in his statement to
the defendant [sic] that Tap pulled out the drugs, pulled out the
drugs and gun and was staring at him while he was divvying up
the drugs. That’s what he told Detective Flaherty in the
statement. So where were the drugs?”
3.1.2. Analysis
“A prosecutor engages in misconduct by misstating facts or
referring to facts not in evidence, but he or she enjoys wide
latitude in commenting on the evidence, including urging the jury
to make reasonable inferences and deductions therefrom.
[Citation.]” (People v. Ellison (2011) 196 Cal.App.4th 1342, 1353;
People v. Farnam (2002) 28 Cal.4th 107, 169 (Farnam)
[“ ‘Prosecutors have wide latitude to discuss and draw inferences
from the evidence at trial.’ [Citation.] ‘Whether the inferences the
prosecutor draws are reasonable is for the jury to decide.’
[Citation.]”].)
In Farnam, the defendant argued that the prosecutor
misstated evidentiary facts and misled the jury on whether the
victim’s killing was premeditated and deliberate. (Farnam,
supra, 28 Cal.4th at p. 169.) The evidence showed that the victim
had telephoned a friend for an hour prior to the attack. (Ibid.)
52
The victim’s children testified that she would use the telephone
in the living room downstairs for long calls and often left the
living room screen door open and the curtains to that door
partially open. (Id. at pp. 169–170.) The interior of the living
room was visible from street level. (Id. at p. 170.) The evidence
further supported that the telephone cords had been cut, the
victim had been attacked on the upstairs level of the residence,
and the lower rooms (which contained entertainment equipment
and envelopes of cash) “were relatively undisturbed despite the
intruder’s entry through the living room screen door.” (Ibid.) “On
this record, [the court could not] say that the prosecutor acted
improperly in presenting her theory of premeditation and
deliberation by arguing that defendant, from the street, watched
the victim through open curtains in her living room and waited
for an opportune time to enter the residence to commit a planned
sexual attack and murder. [Citation.] The argument was neither
deceptive nor reprehensible. [Citation.]” (Ibid.)
We similarly conclude the prosecutor acted within the wide
latitude permitted to her in presenting her theory concerning the
defendants’ motive. As in Farnam, the prosecutor relied on
evidence in the record to support the inference that the attack on
Kyle took place in connection with a robbery, including the
testimony of Tart and Morgan, which supported that the
defendants had drug-related business with the victim and drugs
were present.
Even if we determined that the prosecutor’s statements
constituted misconduct, Harrison has failed to establish the
existence of any prejudice. Shortly before the prosecutor began
her closing argument, the court instructed the jury that the
arguments made by counsel are not evidence. “We presume jurors
53
‘generally understand and follow instructions.’ [Citation.]”
(People v. Myles (2012) 53 Cal.4th 1181, 1212.) We have no reason
to believe that the jury would have been persuaded by the
prosecutor’s theory even if it concluded the theory had no basis in
the evidence presented at trial.
3.2. Prosecutor’s Purported Misstatement of the Law
Concerning Premeditation and Deliberation
Harrison further contends that the prosecutor’s analogy of
premeditation and deliberation to the decision to go through a
stop sign was prejudicial error, and that the prosecutor’s
argument improperly conflated intent with deliberation and
premeditation. We perceive no error.
3.2.1. Additional Background
As discussed above, the jury was instructed to follow the
law given to it by the court, even if the comments of the attorneys
conflicted with the court’s instruction.
With respect to first degree murder, the jury was instructed
with CALCRIM No. 521, which states in relevant part: “The
defendant is guilty of first degree murder if the People have
proved that he acted willfully, deliberately, and with
premeditation. The defendant acted willfully if he intended to
kill. The defendant acted deliberately if he carefully weighed the
considerations for and against his choice and, knowing the
consequences, decided to kill. The defendant acted with
premeditation if he decided to kill before completing the acts that
caused death. [¶] The length of time the person spends
considering whether to kill does not alone determine whether the
killing is deliberate and premeditated . . . . A decision to kill
made rashly, impulsively, or without careful consideration is not
54
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.”
During closing argument, the prosecutor analogized
premeditation to the decision-making process one makes when
coming to a stop sign: “And so the example I use to explain
[premeditation] is coming to a stop sign. We come to a stop, and
we stop. When we stop, we weigh all the consequences of whether
or not we should move forward. We look left. We look right. We
look for pedestrians. We look for oncoming cars. We’re
deliberating. Should we move forward. Once we’ve weighed all
those consequences and deliberated that it’s safe because there
are no pedestrians, there are no cars, we then choose to move
forward by actually putting our foot on the gas. So now we’ve
premeditated. We’ve decided to move forward before taking the
action to actually move forward.”
The prosecutor further explained: “Now, the decision to kill
an individual while similar is not the same as obviously coming
to a stop sign because you’re killing a human being. That has dire
consequences. So I’m not saying it’s identical. What I’m saying is
we actually deliberate, premeditate decisions in our everyday life
all the time. The law doesn’t say you have to have thought about
it for a day, two days, 15 days or ten seconds. What the law is
saying is a cold, calculated decision can be reached quickly.” The
prosecutor explained that premeditation is covered in CALCRIM
No. 521, which they would have a chance to review while
deliberating.
While discussing the requirements of first degree murder in
the context of the evidence, the prosecutor argued: “Defendant
Harrison didn’t just stab [the victim] once, not twice, not three
55
times, not four times, not five, not six. I could go on. But fifteen
times. You think he didn’t know what he was doing? You think
you take that knife you stab into a human being in vital areas
puncturing their lungs that you’re not killing them? Not a
warning shot in the air. Not a warning shot in his leg. Directly
into his back, puncturing his lung.” Defense counsel did not object
to these arguments.
3.2.2. Analysis
Harrison argues that Boatman, supra, 221 Cal.App.4th
1253 demonstrates that the prosecutor misstated the law when
she relied on a stop sign analogy to illustrate the concepts of
premeditation and deliberation. As discussed above, the
defendant in Boatman killed his girlfriend by shooting her a
single time in the face. (Id. at p. 1258.) The court in Boatman
rejected the contention that premeditation and deliberation were
established because the evidence supported an inference that the
defendant “took the time to pull back the hammer, point the
pistol at [the victim’s] face, and fire the weapon.” (Id. at p. 1273.)
The court noted that “cocking, aiming, and firing a revolver
essentially describes the act of shooting with a revolver. If these
actions could, without more, constitute premeditation and
deliberation, we would effectively add killing perpetrated by a
revolver to the list of crimes specifically enumerated in section
189 and thereby substantially broaden the scope of first degree
murder and eliminate the purposeful division created by the
Legislature.” (Id. at p. 1274, fn. 4.)
Harrison argues that Boatman supports that the physical
act of firing a gun is insufficient to establish premeditation and
that the decision to go through a stop sign is a comparably
instinctual action. Harrison contends that, “[a]s jurors who were
56
not subject to the prosecutor’s improper arguments would likely
recognize from their own personal experience, stopping at,
pausing, or rolling through a stop sign does not require ‘careful
consideration and examination’ or ‘engaging in reflection’ about
possible dire consequences.” We disagree. Although the
prosecutor used “we” in her explanation, she did not suggest that
everyone who has ever stopped at a stop sign and decided to pass
through has done so in a premeditated and deliberate manner.
Rather, the prosecutor described various assessments that a
driver may make at a stop sign and argued that a driver who
runs through this mental checklist and decides to move forward
has premeditated that decision and acted deliberately. The
prosecutor did not argue that a person who does not pause to
consider any of the risks and instead blindly or instinctively rolls
through the stop sign has acted in a premeditated manner. Thus,
the stop sign analogy illustrated how a premeditated and
deliberate decision to kill could happen quickly, but that
premeditation and deliberation nevertheless require at least
some degree of weighing the consequences. This analogy
accurately reflects the law in that a defendant can quickly make
a deliberate, premeditated decision to kill. (People v. Solomon
(2010) 49 Cal.4th 792, 812 [“ ‘ “Premeditation and deliberation
can occur in a brief interval” ’ ”].)
The prosecutor’s stop sign analogy is comparable to yellow
light analogies that have consistently been found proper. (See
People v. Avila (2009) 46 Cal.4th 680, 715; People v. Son (2020) 56
Cal.App.5th 689, 698–700; People v. Azcona, supra, 58
Cal.App.5th at pp. 516–517.) For example, in Avila, the Supreme
Court rejected the defendant’s contention that the prosecutor had
argued “that ‘the “cold, calculated” judgment of murder is the
57
equivalent of deciding whether to stop at a yellow light or proceed
through the intersection.’ Rather, the 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.’ He then
immediately said, ‘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.’ ” The court therefore concluded that the prosecutor had not
engaged in any misconduct. (Avila, at p. 715.)
Harrison concedes that, as in Avila, the prosecutor made
clear that she was not suggesting that deciding to pass through a
stop sign and the decision to kill are of similar weight, but
instead that both can involve cold and calculated decision making
achieved in a short amount of time. He nevertheless argues that
the prosecutor improperly suggested “that [the jury] could decide
the issue of premeditation and deliberation by comparing that
process to their own everyday decision-making, including their
thought process at a stop sign.” We see nothing improper about
this. Avila supports that a prosecutor may analogize to everyday
decision-making to help the jury understand the concept of
premeditation, so long as she does not misrepresent the law while
doing so.
Citing Centeno, supra, 60 Cal.4th at page 671, Harrison
argues that “[c]ounsel trying to clarify the jury’s task by relating
it to a more common experience must not imply that the task is
less rigorous than the law requires.” Although we do not dispute
58
this general proposition, Centeno does not assist Harrison. In
Centeno, the prosecutor attempted to illustrate the People’s
burden of proof by showing the jury an outline of the state of
California and posited a hypothetical criminal trial in which the
issue was, “ ‘[W]hat state is this[?]’ ” (Id. at p. 665.) The
prosecutor described the testimony of hypothetical witnesses who
imparted some accurate information but also some incomplete or
inaccurate information about the state. (Ibid.) She then argued
that regardless of the incomplete, inaccurate, or missing
information, the jury could “ ‘still reach a decision beyond a
reasonable doubt’ ”that the state was California. (Ibid.) The court
reasoned that the “use of an iconic image like the shape of
California . . . [was] a flawed way to demonstrate the process of
proving guilt beyond a reasonable doubt.” (Id. at p. 669.) The
image and the hypothetical drew on the jurors’ preexisting
knowledge rather than on the evidence, trivialized the
deliberative process, encouraged the jurors to guess or to jump to
a conclusion, and thus misstated the burden of proof. (Id. at
pp. 669–671.) Harrison has failed to demonstrate that the stop
sign metaphor suggests that it was a foregone conclusion that
Harrison’s killing of Kyle was willful, deliberate, and
premeditated.
Turning to Harrison’s second contention, we do not agree
that the prosecutor improperly conflated the issues of
premeditation and intent. First, it is not clear that the prosecutor
was speaking to the issue of premeditation during the portion of
argument Harrison argues was improper. Even if she was, her
argument that the fact that the victim was stabbed 15 times
supports a finding of premeditation was not inconsistent with the
law. As discussed above, evidence that a defendant has inflicted
59
multiple fatal wounds on the victim can support a finding of
premeditation. (See, e.g., Morales, supra, 10 Cal.5th at p. 102;
People v. Pride, supra, 3 Cal.4th at p. 247; People v. Alcala, supra,
36 Cal.3d at p. 627.) Although Harrison is correct that an
intentional act need not be premeditated, the situation here is
not comparable to Boatman, on which he once again relies. The
defendant in Boatman shot his girlfriend a single time. Here, the
victim was stabbed 16 times and four of the wounds, including
two inflicted to the victim’s back, were fatal. Considering the
vastly different facts, we do not find Boatman instructive as to
whether the prosecutor could fairly argue that the circumstances
of the stabbing were indicative not only of intent, but of
premeditation. (See People v. Williams (2018) 23 Cal.App.5th
396, 411 [Boatman was “not at all similar” to case where “victim
was stabbed twice in the neck, had a defensive cut on her thumb,
and had recent blunt force injuries”].)
Even if we assumed error with respect to either contention,
Harrison has failed to show prejudice. He has not demonstrated
there is a reasonable probability that the result of the proceeding
would have been more favorable to him but for counsel’s failure to
object to these portions of the prosecutor’s closing argument. The
court correctly instructed the jury on the concept of
premeditation and deliberation and told the jury that they must
follow the law as the trial court explained it to them. We presume
the jury followed the law as instructed. (Centeno, supra, 60
Cal.4th at p. 676.)
60
3.3. Prosecutor’s Purported Misstatement of the
“Beyond a Reasonable Doubt” Standard
Finally, Harrison contends that the prosecutor
misrepresented her burden of proof during closing argument. We
conclude that any error was harmless.
3.3.1. Additional Background
With respect to proof beyond a reasonable doubt, the court
instructed the jury with CALCRIM No. 220. In relevant part,
CALCRIM No. 220 provides: “A defendant in a criminal case is
presumed to be innocent. This presumption requires that the
People prove a defendant guilty beyond a reasonable doubt.
Whenever I tell you the People must prove something, I mean
they must prove it beyond a reasonable doubt. [¶] Proof beyond a
reasonable doubt is proof that leaves you with an abiding
conviction that the charge is true. The evidence need not
eliminate all possible doubt because everything in life is open to
some possible or imaginary doubt. [¶] In deciding whether the
People have proved their case beyond a reasonable doubt, you
must impartially compare and consider all the evidence that was
received throughout the entire trial. Unless the evidence proves
the defendants guilty beyond a reasonable doubt, they are
entitled to an acquittal and you must find them not guilty.” As we
have discussed, the court further instructed the jury that it must
follow the law as the court explained it and, if the attorneys’
comments on the law were in conflict with the court’s
instructions, it must follow the court’s instructions.
Counsel for Morgan addressed the prosecution’s burden
and proof beyond a reasonable doubt at length in his closing
argument, including by rereading portions of CALCRIM No. 220.
61
During her rebuttal argument, the prosecutor stated: “Do
you have a reasonable doubt as to what happened? Find the
defendants not guilty. But you always have to ask yourselves,
what’s reasonable. Just because you hear two stories, two,
different stories, that doesn’t automatically equal reasonable
doubt. You still determine which one you believe to be
reasonable.”
3.3.2. Analysis
“Section 1096, codifying the standard of proof, expressly
provides that a ‘reasonable’ doubt is not a mere ‘ “possible” ’ or
‘ “imaginary” ’ doubt.” (Centeno, supra, 60 Cal.4th at p. 672.) The
Supreme Court has therefore approved a “prosecutor’s argument
that the jury must ‘ “decide what is reasonable to believe versus
unreasonable to believe” and to “accept the reasonable and reject
the unreasonable.” ’ [Citation.]” (Ibid.) “ ‘The prosecution must
prove the case beyond a reasonable doubt, not beyond an
unreasonable doubt.’ [Citation.]” (Ibid.) “Conversely, it is error for
the prosecutor to suggest that a ‘reasonable’ account of the
evidence satisfies the prosecutor’s burden of proof.” (Ibid.)
The first four sentences of the portion of the prosecutor’s
closing argument cited by Harrison are unobjectionable. They
constitute a permissible statement that a jury may reject
unreasonable explanations for the defendants’ conduct and need
not conclude that any unreasonable story offered by a defendant
is sufficient to create a reasonable doubt. However, we agree that
the final sentence could suggest to the jury that prosecutor met
her burden if she offered a reasonable explanation for what
happened, or at least the more reasonable explanation.
In evaluating the degree of prejudice arising from a
prosecutor’s misstatements of the law, courts may consider
62
whether the misstatements were fleeting or pervasive, whether
the evidence of the defendant’s guilt on the issue affected by the
misstatement was close or overwhelming, and whether other jury
instructions obviated the effect of the error. (See People v. Fayed
(2020) 9 Cal.5th 147, 205; People v. Cortez, supra, 63 Cal.4th 101,
133–134; People v. Otero (2012) 210 Cal.App.4th 865, 873; People
v. Bryden (1998) 63 Cal.App.4th 159, 182.)
We conclude that each of these considerations supports
that any error was harmless. The misstatement was not a
running theme of the prosecutor’s argument but was fleeting. The
court properly instructed the jury on the standard of proof beyond
a reasonable doubt and counsel for Morgan also discussed the
standard at length during his argument. The court also
instructed the jury that it must follow the court’s instructions if
any of the attorneys’ comments conflicted with the jury
instructions given. The court reiterated that the jury must follow
its instructions during the prosecutor’s closing argument and the
prosecutor stated that the jurors would have access to the law
and that they did not have to accept the law as she explained it.
Unlike Centeno, on which Harrison relies, this was not a
very close case that depended on the testimony of a single
witness. In Centeno, the prosecutor repeatedly asked the jury if it
was more reasonable to believe the defendant or the victim as to
various aspects of the case, and urged the jury to conclude the
defendant was “good for” the charged crimes because “that is
what is reasonable.” (Centeno, supra, 60 Cal.4th at pp. 671–672.)
The prosecutor also used a visual aid and hypothetical which,
together, encouraged the jurors to guess or to jump to a
conclusion, and thus misstated the burden of proof. (Id. at
pp. 669–671.) Further, Centeno was a “a very close case”
63
concerning an alleged molestation. (Id. at p. 677.) “The
prosecution depended almost entirely on Jane Doe’s credibility,
which was called into question in several respects,” including
because her trial testimony was inconsistent with her forensic
interview testimony and she did not answer any of defense
counsel’s questions about the alleged touching. (Ibid.)
The case against Harrison was strong. When Harrison was
arrested, he had a bloody knife in his pocket that had DNA
matching Kyle’s, and samples taken from blood stains on his
shoes also matched Kyle’s DNA. Moreover, Morgan initially told
detectives that he saw Harrison fighting with Kyle. The defense
theory that a fifth man was present was not supported by any
evidence other than the defendants’ testimony. Thus, it is not
reasonably probable that a result more favorable to Harrison
would have been reached absent the prosecutor’s misstatement of
the law.
4. Cumulative Prejudice
Morgan and Harrison contend that the cumulative effect of
the errors they have raised undermined the fundamental fairness
of the trial and that reversal is therefore required. We disagree.
Defendants have “ ‘ “demonstrated few errors, and we have found
each error or possible error to be harmless when considered
separately. Considering them together, we likewise conclude that
their cumulative effect does not warrant reversal of the
judgment.” [Citation].’ ” (People v. DeHoyos (2013) 57 Cal.4th 79,
155.)
5. Morgan’s Claims of Instructional Error
Morgan further contends that the court prejudicially erred
in failing to instruct the jury on voluntary manslaughter based
64
on heat of passion and that provocation can negate premeditation
and deliberation. We conclude that the court did not err in either
respect.
5.1. Standard of Review
“ ‘We review a claim of instructional error de novo.’
[Citation.] A trial court ‘is obligated to instruct the jury on all
general principles of law relevant to the issues raised by the
evidence, whether or not the defendant makes a formal request.’
[Citation.]” (People v. Parker (2022) 13 Cal.5th 1, 66.)
5.2. The court did not err in not instructing the jury
on voluntary manslaughter based on heat of
passion.
5.2.1. Additional Background
The court instructed the jury on second degree murder,
first degree premeditated murder and, as to Morgan, self-defense
and imperfect self-defense voluntary manslaughter. The
instruction for first degree murder made clear that, if the People
had failed to prove beyond a reasonable doubt that the killing
was committed willfully, deliberately, and with premeditation,
they must find the defendant not guilty and conclude that the
murder is second degree murder. Similarly, the jury was
instructed that the People have the burden of proving beyond a
reasonable doubt that the killing was not justified and that the
defendant was not acting in imperfect self-defense. If the People
failed to meet that burden, the jury was instructed to find
defendant not guilty of murder.
65
5.2.2. Analysis
“The trial court has a duty to instruct the jury sua sponte
on all lesser included offenses if there is substantial evidence
from which a jury can reasonably conclude the defendant
committed the lesser, uncharged offense, but not the greater.”
(People v. Brothers (2015) 236 Cal.App.4th 24, 29.)
“ ‘ “Manslaughter, an unlawful killing without malice, is a
lesser included offense of murder.” [Citations.] “Although [Penal
Code] section 192, subdivision (a), refers to ‘sudden quarrel or
heat of passion,’ the factor which distinguishes the ‘heat of
passion’ form of voluntary manslaughter from murder is
provocation.” ’ [Citation.] ‘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.’ [Citation.] ‘ “ ‘[I]f sufficient time
has elapsed for the passions of an ordinarily reasonable person to
cool, the killing is murder, not manslaughter.’ ” ’ [Citation.]”
(People v. Rangel (2016) 62 Cal.4th 1192, 1225; cf. People v. Lee
(1999) 20 Cal.4th 47, 59 [“provocative conduct by the victim may
be physical or verbal, but . . . must be sufficiently provocative
that it would cause an ordinary person of average disposition to
act rashly or without due deliberation and reflection”].) Because
“[t]he test of adequate provocation is an objective one,” the fact
that a defendant was intoxicated and thus may have been prone
to emotional instability or lacked critical judgment is not
relevant; rather, “[t]he provocation must be such that an average,
sober person would be so inflamed that he or she would lose
reason and judgment.” (Lee, at pp. 59–60, italics added.) Further,
66
“[p]redictable and reasonable conduct by a victim resisting
felonious assault is not sufficient provocation to merit an
instruction on voluntary manslaughter. [Citations.]” (People v.
Enraca (2012) 53 Cal.4th 735, 760.)
We will assume for the sake of argument that Morgan’s
testimony that “[i]nstinct kicked in” and he acted according to a
“[f]ight or flight” response constitutes substantial evidence that
Morgan was so overcome by fear that his “ ‘reaction bypassed his
thought process to such an extent that judgment could not and
did not intervene.’ [Citation.]” (People v. Rangel, supra, 62
Cal.4th at p. 1225.) However, we doubt whether the average
person would be so overcome by the sight of an unarmed and
mortally wounded man as to lose reason and judgment and shoot
instinctively. We also consider Kyle’s conduct and demeanor at
the time he was shot to be “[p]redictable and reasonable conduct
by a victim resisting felonious assault,” and thus insufficient
provocation to merit an instruction on voluntary manslaughter.
(People v. Enraca, supra, 53 Cal.4th at p. 760.) Nevertheless, we
will further assume for the sake of argument that there was
substantial evidence to support that the objective requirement
was also satisfied.
Morgan argues that we must apply the federal
constitutional standard for assessing prejudice, which requires
reversal unless it appears beyond a reasonable doubt that an
error did not contribute to the verdict, applies to this claim.
(Chapman v. California, supra, 386 U.S. at p. 24.) The Attorney
General argues that any error was harmless under either the
federal standard or the state constitutional standard, which
requires reversal only if there is a reasonable probability that the
67
error contributed to the verdict. We agree that any error was
harmless even under the more stringent Chapman standard.
“[I]n some circumstances it is possible to determine that
although an instruction on a lesser included offense was
erroneously omitted, the factual question posed by the omitted
instruction was necessarily resolved adversely to the defendant
under other, properly given instructions. In such cases the issue
should not be deemed to have been removed from the jury’s
consideration since it has been resolved in another context, and
there can be no prejudice to the defendant since the evidence that
would support a finding that only the lesser offense was
committed has been rejected by the jury.” (People v. Sedeno
(1974) 10 Cal.3d 703, 721, abrogated on other grounds in People
v. Breverman (1998) 19 Cal.4th 142.) In other words, “[e]rror in
failing to instruct the jury on a lesser included offense is
harmless when the jury necessarily decides the factual questions
posed by the omitted instructions adversely to [the] defendant
under other properly given instructions.” (People v. Lewis (2001)
25 Cal.4th 610, 646.)
The jury here found Morgan guilty of first degree murder.
“By finding defendant was guilty of first degree murder, the jury
necessarily found defendant premeditated and deliberated the
killing. This state of mind, involving planning and deliberate
action, is manifestly inconsistent with having acted under the
heat of passion—even if that state of mind was achieved after a
considerable period of provocatory conduct—and clearly
demonstrates that defendant was not prejudiced by the failure to
give his requested instruction.” (People v. Wharton (1991) 53
Cal.3d 522, 572; People v. Peau (2015) 236 Cal.App.4th 823, 832
[“failure to give a heat-of-passion instruction here was harmless
68
beyond a reasonable doubt because the jury found that
[defendant’s] murder was willful, deliberate, and premeditated”].)
People v. Manriquez (2005) 37 Cal.4th 547 is also
instructive. The defendant in that case contended that the trial
court’s refusal to instruct the jury on voluntary manslaughter
constituted reversible error. (Id. at p. 583.) The court concluded
that the record supported that the outcome would have been the
same even if the instruction had been given. (Id. at p. 586.) The
court gave “pattern instructions informing the jurors that if they
harbored a reasonable doubt as to whether defendant committed
first degree or second degree murder, or harbored a reasonable
doubt as to whether the killing was murder or manslaughter,
they must give defendant the benefit of the doubt and return a
verdict of guilty of the lesser offense.” (Ibid.) The court therefore
“conclude[d] the jury would have returned the same verdict of
first degree murder . . . even if the voluntary manslaughter
instruction refused by the trial court had been given.” (Ibid.)
“Accordingly, even if [the court] were to assume for the sake of
discussion that the trial court erred in refusing the instruction
requested by defendant, any error clearly would have been
harmless. [Citation.]” (Ibid.)
Similarly, the court here instructed the jury that it must
find that murder was second degree murder if it had any
reasonable doubt as to whether the murder was willful,
deliberate, and premeditated. If the jury had any reasonable
doubt as to whether the killing was justified or whether Morgan
was acting in imperfect self-defense, it was required to find that
he had not committed murder. Because the jury returned a first
degree murder verdict for both defendants, we conclude that the
69
jury did not harbor any reasonable doubt as to whether the
defendants acted coldly and deliberately.
We reject Morgan’s contention that People v. Wharton,
supra, 53 Cal.3d 522 and People v. Peau, supra, 236 Cal.App.4th
823 do not assist the Attorney General because other instructions
were given in those cases relating to the issue of heat of passion.
It was clear from the court’s instructions here that the jury
should not find Morgan guilty of first degree murder if it had any
reasonable doubt as to whether he had acted “rashly, impulsively,
or without careful consideration,” as one overcome with fear or
emotion would. We also find Morgan’s reliance on People v.
Millbrook (2014) 222 Cal.App.4th 1122 and People v. Dominguez
(2021) 66 Cal.App.5th 163 unavailing. In Millbrook, the jury did
not find that the attempted murder was willful, premeditated,
and deliberate, which “would have been ‘manifestly inconsistent
with having acted under the heat of passion.’ [Citation.]”
(Millbrook, at p. 1138.) In the absence of such a finding, the court
“observe[d] that there is nothing in the jury’s verdict that is
inconsistent with the need for a heat-of-passion instruction.”
(Ibid.) In Dominguez, the jury “acquitted Defendants on first
degree premeditated murder and found ‘not true’ that the
attempted murders were ‘willful, deliberate and premeditated,’ ”
and thus “rejected the People’s theory of a planned ambush, and
seemingly accepted that Defendants were provoked in some
degree or manner.” (Dominguez, at p. 184.)
Morgan cites People v. Sedeno, supra, 10 Cal.3d 703, for the
proposition that substantial evidence does not support the jury’s
finding of guilt as to the issue resolved against him. Sedeno does
not support his claim. The court in Sedeno concluded that there
was substantial evidence to support that the killing in that case
70
was deliberate. (Id. at p. 711.) When addressing the court’s
failure to instruct on involuntary manslaughter, the court
observed that “the jury necessarily rejected defendant’s evidence
that his diminished capacity negated intent to kill when it found
the shooting to be first degree rather than second degree murder”
and that “the failure to give an instruction on involuntary
manslaughter could not have been prejudicial to defendant since
the offense could have been no less than voluntary
manslaughter.” (Id. at p. 721.) However, because the trial court’s
instructions had implied that, if the jury found that the death
occurred during the commission of an escape, they must conclude
that the crime was at least second degree murder, the jury did
not necessarily make a finding of malice. (Id. at p. 722.) The
Supreme Court reversed on this ground. (Id. at p. 724.) Morgan
identifies no comparable confusion in the instructions given by
the trial court here.
In sum, we conclude that any error was harmless beyond a
reasonable doubt because “[w]e cannot see how a determination
that [Morgan] carefully weighed his choice to act and did not
decide rashly or impulsively can coexist with the heat of passion,
which ‘arises when “at the time of the killing, the reason of the
accused was obscured or disturbed by passion to such an extent
as would cause the ordinarily reasonable person of average
disposition to act rashly and without deliberation and reflection,
and from such passion rather than from judgment.” ’ [Citation.]”
(People v. Franklin (2018) 21 Cal.App.5th 881, 894.)
71
5.3. The court did not err in failing to sua sponte
instruct the jury with CALCRIM No. 522 and
Morgan was not prejudiced by the fact it was not
given.
Morgan argues that the court erred in not instructing the
jury with CALCRIM No. 522, which provides: “Provocation may
reduce a murder from first degree to second degree [and may
reduce a murder to manslaughter]. The weight and significance
of the provocation, if any, are for you to decide. [¶] If you conclude
that the defendant committed murder but was provoked, consider
the provocation in deciding whether the crime was first or second
degree murder. [Also, consider the provocation in deciding
whether the defendant committed murder or manslaughter.] [¶]
[Provocation does not apply to a prosecution under a theory of
felony murder.]” We hold that there was no error.
“Provocation may indeed reduce murder from first to
second degree. [Citation.] But an instruction that provocation
may be sufficient to raise reasonable doubt about premeditation
or deliberation, such as CALJIC No. 8.73 or CALCRIM No. 522,
is a pinpoint instruction to which a defendant is entitled only
upon request where evidence supports the theory. [Citation.] The
trial court is not required to give such an instruction sua sponte.
[Citation.] In this case, [the defendant] did not make a request for
an instruction on provocation. The trial court did not err by
failing to so instruct the jury.” (People v. Rivera (2019) 7 Cal.5th
306, 328–329; cf. People v. Rogers (2006) 39 Cal.4th 826, 878
(Rogers) [CALJIC No. 8.73, analogue to CALCRIM No. 522, is a
pinpoint instruction and need not be given on court’s own
motion].)
72
Neither People v. Thomas (1945) 25 Cal.2d 880 nor People
v. Valentine (1946) 28 Cal.2d 121, on which Morgan relies, are
instructive here. In both cases, multiple erroneous instructions
were given: “(1) The jury were told that the existence of a specific
intent to kill (which, of course, exists in voluntary manslaughter
and in second degree murder as well as in some types of first
degree murder) constitutes a homicide murder of the first degree;
(2) the effect of provocation and passion as reducing the class of a
homicide from murder to manslaughter was emphasized and the
effect of provocation and passion as possibly precluding or
making doubtful the formation of a deliberate and premeditated
intent to kill was ignored; and (3) the jury were told, in effect,
that the burden of proving circumstances which would mitigate
the offense from murder of the first to murder of the second
degree was upon the defendant.” (Valentine, at pp. 130–131,
citing Thomas; see also Rogers, supra, 39 Cal.4th at pp. 879–880
[conclusion that CALJIC No. 8.73 is a pinpoint instruction is not
inconsistent with Valentine, where the court “reversed based on a
host of instructional errors”].)
Morgan does not contend that any comparable errors are
present in this case. “In the absence of instructional errors such
as were present in Valentine, the standard manslaughter
instruction is not misleading, because the jury is told that
premeditation and deliberation is the factor distinguishing first
and second degree murder. Further, the manslaughter
instruction does not preclude the defense from arguing that
provocation played a role in preventing the defendant from
premeditating and deliberating; nor does it preclude the jury
from giving weight to any evidence of provocation in determining
whether premeditation existed.” (Rogers, supra, 39 Cal.4th at
73
p. 880.) Thus, we hold that there was no error in failing to
instruct the jury with CALCRIM No. 522.
Morgan argues that, if the court did not commit error in
failing to instruct the jury with CALCRIM No. 522, he received
ineffective assistance of counsel because his attorney did not
request the instruction. To resolve the ineffective assistance of
counsel claim, we need not determine whether his counsel’s
performance was deficient. “ ‘If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient
prejudice, . . . that course should be followed.’ [Citation.]” (People
v. Jacobs (2013) 220 Cal.App.4th 67, 75.) We find no prejudice.
The jury was correctly instructed that Morgan could not be
guilty of first degree murder unless he deliberated and
premeditated. CALCRIM No. 522 is “relevant only to the extent it
‘bears on the question’ whether defendant premeditated and
deliberated” and thus merely elaborates on how the first degree
murder instructions apply to the evidence. (Rogers, supra, 39
Cal.4th at pp. 878–879.) By finding Morgan guilty of first degree
murder, the jury necessarily rejected that any provocation by
Kyle negated deliberation and premeditation. The requisite
showing of prejudice is lacking since the record shows no
reasonable probability that, even if his attorney had requested
CALCRIM No. 522, the result of the proceeding would have been
more favorable to Morgan.
6. Morgan’s Claim of Error under Section 654
Section 654 “prohibits multiple punishments for a single
act or course of conduct. [Citation.] Whether an offense is an
indivisible course of conduct is a fact question. We uphold the
trial court’s ruling when substantial evidence supports it.
74
[Citations.] This standard of review is exceedingly deferential.
[Citation.]” (People v. Venegas (2020) 44 Cal.App.5th 32, 38.)
Morgan contends that the acts underlying counts 2 and 3,
possession of firearm by felon (§ 29800, subd. (a)(1)), and
unlawful possession of ammunition (§ 30305, subd. (a)(1)), took
place during the same course of conduct as Morgan’s murder of
Kyle, and that the court violated section 654 by imposing
sentences for counts 2 and 3. He further argues that, under
Assembly Bill No. 518, he was no longer required to be punished
under the provision that provided for the longest possible term
(i.e., murder under § 187, subd. (a); count 1) but could be
punished under the shorter terms for possession of firearm by
felon or unlawful possession of ammunition, and that we should
therefore remand for resentencing.
We conclude that there is substantial evidence that Morgan
purposefully took possession of the pistol before the murder took
place and that the court did not err in failing to stay the sentence
for count 2. However, we accept the Attorney General’s
concession that the sentence for count 3 should have been stayed
because it was part of the same course of action as count 2. We
conclude that a remand for resentencing is not required.
6.1. Failure to Stay Punishment for Possession of
Firearm by Felon (Count 2)
“With respect to additional punishment for possessing a
gun, the conduct is divisible, and additional punishment
therefore proper, so long as [the defendant] purposefully
possessed the gun before the murder took place. [Citation.]”
(People v. Venegas, supra, 44 Cal.App.5th at p. 38; see, e.g.,
People v. Ortiz (2012) 208 Cal.App.4th 1354, 1378–1379
[defendant who arrived at the scene of a kidnapping already in
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possession of firearm was properly subject to separate
punishments]; People v. Jones (2002) 103 Cal.App.4th 1139(Jones), 1147–1148 [defendant who drove to ex-girlfriend’s home
in possession of gun and then shot into the home 15 minutes later
was properly subject to separate punishments].)
However, “multiple punishment is improper where the
evidence ‘demonstrates at most that fortuitous circumstances put
the firearm in the defendant’s hand only at the instant of
committing another offense . . . .’ [Citation.]” (Jones, supra, 103
Cal.App.4th at p. 1144.) For example, where a defendant wrested
a gun away from a highway officer and shot at the officer, our
Supreme Court found punishment for both assault with a deadly
weapon upon a peace officer and possession of a firearm by an ex-
felon was prohibited by section 654. (People v. Bradford (1976) 17
Cal.3d 8, 13, 22–23.) Similarly, in a case where the defendant
shot a companion at a bar and the evidence suggested that the
defendant obtained the gun during a struggle at the bar moments
before the shooting, section 654 barred punishment for possession
of a firearm by an ex-felon in addition to punishment for assault
with a deadly weapon because “the possession [was] physically
simultaneous” and “was incidental to only one objective, namely
to shoot [the victim].” (People v. Venegas (1970) 10 Cal.App.3d
814, 818–821.)
Morgan argues that there is no evidence to support that he
arrived at the scene armed with a gun. According to his
testimony, he fortuitously came across the gun after Kyle placed
it on the ottoman. However, we review the trial court’s
determination in the light most favorable to the respondent,
presume the existence of every fact the trial court could
reasonably deduce from the evidence, and will not reverse if there
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is any substantial evidence to support the finding. (Jones, supra,
103 Cal.App.4th at p. 1143.) Even accepting Morgan’s account of
events, the evidence does not suggest that Morgan wrested the
gun from Kyle and simultaneously shot him. Morgan testified
that, while the others present were fighting, he picked up the gun
from where it was sitting on the ottoman, exited the apartment,
and stood outside on the walkway. At that point in time, he had
no reason to expect that Kyle, who was by all accounts the victim
of the brutal attack, would come towards him in a threatening
manner. Thus, a rational trier of fact could conclude that his
possession of the gun was not “physically simultaneous” and
incidental to the objective of shooting Kyle. (People v. Venegas,
supra, 10 Cal.App.3d at p. 821.)
Moreover, the trier of fact could reasonably discredit
Morgan’s testimony that Kyle left a gun sitting out for the taking.
Tart told detectives that Morgan and Harrison told him “to go to
the front while they handle their business,” and that he later
heard one of them say, “Shoot this motherfucker. Don’t let him
out.” The court could reasonably infer that Harrison instructed
Morgan to shoot Kyle because he knew that Morgan had armed
himself with a gun before coming to Kyle’s apartment.5 Thus,
under the deferential standard of review, we conclude multiple
punishment for the murder and for possession of a firearm was
proper in this case.
5Morgan’s assertion that the only DNA located on the gun was Kyle’s
does not rule out the possibility that Morgan brought the gun to Kyle’s
apartment. The DNA from the gun handle was inconclusive; the DNA
matching Kyle’s DNA came from a blood stain on the gun. That Kyle’s
blood was on the gun is not a particularly strong indicator that he
owned the gun, much less a conclusive one.
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6.2. Failure to Stay Punishment for Unlawful
Possession of Ammunition (Count 3)
We accept the Attorney General’s concession that multiple
punishment for possession of a firearm by a felon (count 2) and
unlawful possession of ammunition (count 3) was not proper.
“While there may be instances when multiple punishment
is lawful for possession of a firearm and ammunition, the instant
case is not one of them. Where, as here, all of the ammunition is
loaded into the firearm, and ‘indivisible course of conduct’ is
present and section 654 precludes multiple punishment.” (People
v. Lopez (2004) 119 Cal.App.4th 132, 138.) There is no evidence
that supports an inference that Morgan had different or multiple
objectives in possessing the loaded pistol and possessing the
ammunition. Indeed, the prosecutor argued with respect to
possession of ammunition, “[W]e know he did because the gun
was loaded. So if he’s possessing the gun, the ammunition is
inside. He’s possessing that as well. He knew he had the
ammunition. He knew the gun was loaded.” Thus, the trial court
erred in failing to stay the sentence for either count 2 or count 3
under section 654.
6.3. Assembly Bill No. 518’s Amendment to Section 654
“At the time of sentencing, section 654, former subdivision
(a) required that a defendant who committed an act punishable
by two or more provisions of law be punished under the provision
that provided for the longest possible term. (Stats. 1997, ch. 410,
§ 1.) Effective January 1, 2022, Assembly Bill 518 amended
section 654, subdivision (a) to permit an act or omission
punishable under two or more provisions of law to ‘be punished
under either of such provisions.’ (§ 654, subd. (a); Stats. 2021,
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ch. 441, § 1.) Thus, under newly amended section 654, a trial
court is no longer required to punish under the longest possible
term of imprisonment when multiple offenses are based on the
same act or omission. [Citation.] Section 654 ‘now provides the
trial court with discretion to impose and execute the sentence of
either term, which could result in the trial court imposing and
executing the shorter sentence rather than the longer
sentence.’ [Citation.]” (People v. White (2022) 86 Cal.App.5th
1229, 1236.) As the parties here agree, “Assembly Bill 518
‘applies retroactively to defendants . . . whose convictions were
not yet final when the law became effective January 1, 2022.’ ”
(Ibid., quoting People v. Sek (2022) 74 Cal.App.5th 657, 673.)
Morgan argues that counts 2 and 3 are part of the same
course of action as count 1, and that we should on remand direct
the trial court to exercise its newly granted discretion as to which
of the sentences to stay. Having concluded that the court’s
implied finding that counts 2 and 3 were not part of the same
course of conduct as count 1 was supported by substantial
evidence, we reject this argument. Although we have concluded
that counts 2 and 3 were part of a single act or course of conduct,
the trial court imposed identical concurrent terms of two years to
those counts. We may refuse to remand a case for resentencing if
the record shows that to do so would be futile. (See People v.
Lopez (2019) 42 Cal.App.5th 337, 342.) Thus, rather than
remand, we will modify the judgment to stay the two-year term
imposed on count 3.
7. Morgan’s Claim of Error as to the Firearm
Enhancement
Section 12022.53, subdivision (h) allows a trial court to
strike a firearm enhancement under that section “in the interest
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of justice pursuant to section 1385.” Morgan argues that the court
erred in imposing a sentence of ten years for the firearm
enhancement because he only had one prior non-violent felony
conviction and because it had discretion not to impose the
charged enhancement under the statute. He argues that the trial
court may not have been aware of its sentencing discretion and
that we should therefore remand. We are not persuaded.
7.1. Additional Background
At the sentencing hearing, counsel for Morgan argued that
Morgan was young and did not have a lengthy criminal history,
and therefore asked that the court exercise its discretion and not
impose the firearm enhancement.
The court recounted the firearm allegations and the jury’s
findings, then noted “that relatively speaking [Morgan] doesn’t
have a prior record.” The court also observed that his girlfriend
had previously spoken on his behalf and that “[h]is mom made
some comments today. He made some comments, although all of
them weren’t necessarily positive.”6 The court also “listened to
the points that [Morgan’s] attorney has made.”
The court then announced its sentence on the firearm
enhancement: “[T]he court is now aware that I can exercise my
discretion. I no longer have to choose the high term of 25 years
pursuant to the (d) subsection. [¶] And the court is going to take
into account all the points that have been raised by defense
counsel and the fact that [Morgan] doesn’t really have that much
6 Referring to Kyle’s family, Morgan stated, “I don’t care how the
family feel. I understand they lost a loved one. But not as far as I
caring about how they feel. But what I feel is me being—as being
guilty is not it. I’m not guilty of it.”
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of a record. [¶] So I’m going to impose the 10 years consecutive
pursuant to Penal Code section 12022.53(b). [¶] So, again,
although the People were asking for 50 years to life as to count 1,
the court is going to order that 10 years to be consecutive. So it’s
going to be 35 years in state prison to life.”
7.2. Analysis
“[I]n light of the presumption on a silent record that the
trial court is aware of the applicable law, including statutory
discretion at sentencing, we cannot presume error where the
record does not establish on its face that the trial court
misunderstood the scope of that discretion.” (People v. Gutierrez
(2009) 174 Cal.App.4th 515, 527.) We find nothing in the record
that suggests that the court was not aware that it had discretion
under section 12022.53, subdivision (h) to strike the firearm
enhancement. In arguing otherwise, Morgan relies on People v.
Lua (2017) 10 Cal.App.5th 1004. The Court of Appeal in Lua
found that the record was ambiguous as to whether the trial
court understood the scope of its discretion to strike certain drug-
related enhancements where the trial court appeared to
characterize 17 years as “ ‘the lowest sentence possible’ ” even
though striking the enhancements would result in a sentence of
less than 17 years. (Id. at pp. 1021–1022.) There is no comparable
statement here. The court acknowledged that it had discretion
and that it was not obligated to give the highest sentence.
Although it did not explicitly refer to its discretion to strike the
enhancement, the court did not indicate that it was trying to give
Morgan the lowest sentence possible, or suggest that it would
strike the enhancement, as Morgan’s attorney requested, if it
thought it had the discretion to do so.
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Thus, we reject Morgan’s contention that the court
committed error or that we should remand to permit the court to
exercise its discretion.
8. Morgan’s Custody Credit
The record indicates that Morgan was arrested on May 26,
2018 and sentenced on September 16, 2021. Morgan contends
that the court awarded 1,209 days actual presentence custody
credit when he was entitled to 1,210 actual days custody credits.
The Attorney General concedes that he is correct. We accept this
concession.7
7Harrison was arrested and sentenced on the same dates and his
amended abstract of judgment reflects a credit for time served of 1,210
days.
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DISPOSITION
Appellant Dean Morgan’s judgment is modified to reflect an
award of 1,210 days of actual presentence custody credit rather
than 1,209 days and that his sentence on count 3 for unlawful
possession of ammunition is stayed pursuant to section 654. The
trial court shall issue an amended abstract of judgment for
Morgan reflecting these modifications. With the exception of
these modifications, the judgments are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
EGERTON, J.
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