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Filed 3/3/15 P. v. Boulware CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

ADRIENNE MARQUIS BOULWARE,

Defendant and Appellant.

C075063

(Super. Ct. No. 11F07238)

A jury convicted defendant Adrienne Marquis Boulware of torture and second 

degree murder, acquitting her of first degree murder. Sentenced to 15 years to life in 

state prison, defendant appeals, contending the prosecutor committed prejudicial 

misconduct during closing and rebuttal arguments to the jury. Recognizing defense 

counsel failed to object to the prosecutor’s statements thereby forfeiting her claim of 
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prosecutorial misconduct, she contends, in the alternative, counsel rendered ineffective 

assistance by failing to object. We reject this contention and affirm the judgment.1

FACTS

On September 14, 2011, the body of Audie Hogue was discovered in the parking 

lot of an abandoned car wash on Marysville Boulevard. He had been beaten to death. He 

had blunt force injuries to his head, neck, and torso and sustained internal injuries 

including multiple rib fractures, a pancreas almost split in two, and lacerations to his 

small intestines. His blood-alcohol content was 0.30 percent. 

A mini mart’s surveillance videotape from the night before showed defendant and 

Dawson going back and forth between the mini mart and the car wash several times, 

purchasing beverages during each visit to the mini mart. The videotape also showed 

Hogue, who had been panhandling earlier in the day in the mini mart’s parking lot, 

staggering and barely able to get up off the curb, waving to someone across the street and 

then walking across the street to the car wash just after defendant and Dawson were seen 

walking towards the car wash. Hogue was never to be seen again on the videotape. 

Sometime between 8:30 and 9:30 a.m. the next day, the videotape showed defendant and 

Dawson at the mini mart, watching the officers investigate the crime scene at the car 

wash. 

The jury heard tapes of a police interview with defendant, a pretext call defendant 

made to Dawson, and a secretly recorded conversation at the jail between defendant and 

Dawson and thereafter with police officers. Initially, defendant told officers she was not 

in the area but identified Dawson as beating Hogue. She then changed her story and 

denied responsibility, claiming she left with her friend Tennessee when Dawson started 

 

1 Codefendant Amoura Dominique Dawson was charged with and convicted of the 

same offenses as defendant and received the same sentence. They were tried together 

with separate juries. This appeal does not include Dawson. 
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to beat Hogue after he called Dawson a name. Defendant knew that Dawson had 

stomped Hogue “real bad,” punching him more than 30 times and kicking him 50 to 65 

times in the face and head. Defendant bought a beer for Dawson after the beating. When 

officers told defendant that her shoeprints were at the scene and her shoes would be 

checked for blood, defendant claimed she went back to the car wash to check on Hogue 

and sat him up. She said he had been injured on a cement block. During the pretext call, 

when defendant told Dawson the police were looking for her, Dawson disputed 

defendant’s statement that defendant and Tennessee had left, claiming defendant had 

done the “most damage” to Hogue and they both had blood on their clothes and shoes. 

After the pretext call, defendant continued to deny to the police that she participated in 

the beating. During the subsequent jailhouse conversation, defendant admitted that she 

punched Hogue twice and kicked him in the stomach once. While defendant claimed 

Hogue hit Tennessee first, Dawson said defendant hit Hogue first and then Dawson and 

defendant both kicked and hit Hogue until he could not get up. Dawson stated that she 

had to pull defendant off of Hogue, that Hogue never got up, and that he was half dead 

when they left. 

DISCUSSION

Defendant contends that the prosecutor committed prejudicial misconduct during 

closing and rebuttal arguments to the jury by misstating the law and by urging the jury to 

convict based on her character. She recognizes that defense counsel failed to object and 

contends in the alternative that defense counsel rendered ineffective assistance. We 

reject her contention.

Background

In closing argument, the prosecutor did not discuss voluntary manslaughter. 

Instead, the prosecutor discussed first and second degree murder, focusing on the secretly 

taped discussion between defendant and Dawson, the subsequent simultaneous 

questioning of defendant and Dawson by the officers and the video surveillance tapes 
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from the mini mart. The prosecutor argued that while Dawson was at the mini mart after 

stomping Hogue (surveillance videotape showed Dawson had limped across the street to 

the mini mart), defendant was still at the car wash with Hogue “as he’s laying on the 

ground, bleeding from his head, blood gushing everywhere, hanging out with Tennessee 

like it is nothing. You get the picture of what type of people you are dealing with. [¶] A 

man is laying there, head busted open, bleeding, blood everywhere, she is hanging out 

like it is nothing. These are the type of people you are dealing with.” The prosecutor 

also argued, “Remember, for the last 15 minutes after Dawson walks across the street, 

they are hanging out at the car wash. Again, Audie Hogue’s head plastered. 15 minutes 

they are hanging out chilling, while this man is laying there looking like this. This is the 

type of people the defendants are. This is who they are.” There was no objection. 

Defense counsel argued that the evidence was wanting and that defendant did not 

commit the crimes. The defense theory was that after defendant left the car wash, 

Dawson returned and continued to beat Hogue or someone else went to the car wash and 

killed Hogue. Defense counsel argued that the prosecutor had not proven what happened 

or when the injuries were inflicted on Hogue. Defense counsel disputed the prosecutor’s 

description of the crimes, stating it was “conjecture” that defendant stood by and watched 

Hogue die. Defense counsel claimed that the detectives used deception to obtain 

defendant’s statements and that defendant used deception in return. He argued the jury 

could not find defendant guilty because it believed she was an evil person and that the 

trial was not about her character but about her state of mind. He argued only briefly that 

the jury should consider voluntary manslaughter based on heat of passion because 

defendant did not act with a reasonable and sober mind in reaction to Hogue’s verbal 

assault of Dawson and physical assault on Tennessee. 

In rebuttal, the prosecutor argued that second degree murder at a minimum had 

been proven. The prosecutor did not discuss the type of person he believed defendant to 

be. In discussing voluntary manslaughter, the prosecutor argued:
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“[Defense counsel] briefly mentioned voluntary manslaughter.

“I’m going to briefly tell you why it doesn’t apply.

“Three elements. The defendant was provoked. Okay. Someone calls you a 

name, a n[-----], a b[----], that’s some provocation. Subjective.

“Number two, as a result of the provocation, the defendant acted rashly and under 

the influence of intense emotion that obscured her reasoning or judgment. Subjective. 

So it is possible, okay?

“Number three is the objective part, objective. The provocation would have 

caused a person of average disposition to act rashly and without due deliberation. That 

is, from passion rather than from judgment. That’s the average person, not the average 

drinking person, average Jane, average Joe.

“Now, would the average person react the way the defendants did? Somebody 

calls you a n[-----], somebody calls you a b[----], how would the average person react? 

The average person might get mad. The average person might throw a punch, but the 

average person does not stomp a man up to 60 times. An average woman does not stomp 

a man up to 60 times. You can think of the worse name anybody could ever call you, but 

the average Joe and the average Jane does not stomp a man to lacerate his pancreas. 

Average Jane, average Joe gets mad, throws a punch, but you don’t beat and punch a man 

where your hands get bloody, where you hurt your foot, kick him in the nuts, stomp him 

in the head, 40, 50, 60 times? No, that’s why.

“See, number three is, I call it the ‘I get it’ section because the average Jane, 

average Joe says I get it. I can see how that can happen. I can see how a person based 

upon why they did snapped and did all these things. You can’t say that simply because 

somebody calls you a name. You can’t say that because the average person doesn’t go 

off like that and go off like that and go off like that. They don’t. That’s why [defense 

counsel] didn’t want to talk about it, because it doesn’t apply.” Defense counsel did not 

object.
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The court properly instructed the jury on voluntary manslaughter in the language 

of CALCRIM No. 570. The jury did not have any questions during deliberations.

Analysis

Defense counsel did not object or seek a curative admonition at trial and nothing 

suggests an admonition would have been futile; thus, defendant forfeited her claim of 

prosecutorial misconduct. (People v. Linton (2013) 56 Cal.4th 1146, 1205.) 

Nevertheless, since defendant contends counsel rendered ineffective assistance by failing 

to object to the misconduct, we also consider and reject her claim challenging counsel’s 

performance.

To establish ineffective assistance of counsel, defendant must demonstrate 

counsel’s performance was deficient and that defendant suffered prejudice as a result.

(Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 [80 L.Ed.2d 674, 693, 

696]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218 (Ledesma).) 

“In evaluating a defendant’s claim of deficient performance by counsel, there is a 

‘strong presumption that counsel’s conduct falls within the wide range of reasonable 

professional assistance’ [citations], and we accord great deference to counsel’s tactical 

decisions. [Citation.]” (People v. Frye (1998) 18 Cal.4th 894, 979, disapproved on other 

grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Moreover, “ ‘ “[if] the 

record on appeal sheds no light on why counsel acted or failed to act in the manner 

challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, 

or unless there simply could be no satisfactory explanation,” the claim on appeal must be 

rejected.’ [Citation.] A claim of ineffective assistance in such a case is more 

appropriately decided in a habeas corpus proceeding. [Citations.]” (People v. Mendoza 

Tello (1997) 15 Cal.4th 264, 266-267.)

“ ‘ “[F]ailure to object seldom establishes counsel’s incompetence” ’ ” (People v. 

Majors (1998) 18 Cal.4th 385, 403) and counsel is not required to make meritless 

objections. (People v. Anderson (2001) 25 Cal.4th 543, 587.)
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To demonstrate prejudice, defendant must show that “ ‘there is a reasonable 

probability that, but for counsel’s unprofessional errors, the result of the proceeding 

would have been different. A reasonable probability is a probability sufficient to 

undermine confidence in the outcome.’ [Citations.]” (Ledesma, supra, 43 Cal.3d at pp. 

217-218; People v. Maury (2003) 30 Cal.4th 342, 389.) “Generally, . . . prejudice must 

be affirmatively proved.” (Ledesma, supra, 43 Cal.3d at p. 217.)

The prosecutor correctly recited the objective part of the state of mind required for 

voluntary manslaughter. But immediately thereafter, in discussing the objective part, the 

prosecutor argued that there was insufficient provocation for the average person to have 

stomped, kicked, and hit Hogue 40, 50, or 60 times. This may have caused confusion 

since “[t]he proper focus is on the defendant’s state of mind, not on his particular act.” 

(People v. Beltran (2013) 56 Cal.4th 935, 949; see also People v. Najera (2006) 138 

Cal.App.4th 212, 223 [“[h]ow the killer responded to the provocation and the 

reasonableness of the response is not relevant to the sudden quarrel or heat of passion”].) 

The record does not reflect the reason for defense counsel’s failure to object but there is 

an explanation. Defendant’s defense was that after defendant left the car wash, Dawson 

returned or someone else went to the car wash and inflicted the fatal blows to Hogue and 

that defendant was not guilty of murder or manslaughter.

In any event, we do not find any prejudice. The prosecutor’s discussion was brief. 

Further, the trial court properly instructed the jury on the objective element for the state 

of mind for voluntary manslaughter (CALCRIM No. 570; People v. Beltran, supra, 56 

Cal.4th at pp. 954-956) and instructed that where counsels’ comments conflicted with the 

instructions, the jury was to follow the instructions. (CALCRIM No. 200.) We presume 

the jury followed the instructions. (People v. Boyette (2002) 29 Cal.4th 381, 436.) 

Moreover, there was not any evidence that Hogue’s use of a racial and sexist slur towards 

Dawson or Hogue’s use of force upon Tennessee provoked anger in defendant. Further, 
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after beating Hogue, defendant and Dawson fled from the car wash. Defendant has failed 

to demonstrate prejudice from counsel’s failure to object to the prosecutor’s argument.

The prosecutor’s reference to defendant and Dawson as people who were cold and 

callous was fair comment on the evidence. The evidence supported the prosecutor’s 

argument that after beating Hogue to a pulp, defendant and Dawson calmly went back to 

the mini mart for another beverage. Any objection would have been meritless. Further, 

in closing, defense counsel responded to the prosecutor’s statements, arguing that the trial 

was not about defendant’s character but about her state of mind and claiming defendant 

was not an evil person. Defendant has failed to demonstrate that counsel’s performance 

was deficient.

We reject defendant’s claim of ineffective assistance of counsel.

DISPOSITION

The judgment is affirmed.

 NICHOLSON , Acting P. J.

We concur:

 HULL , J.

 MURRAY , J.