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Filed 6/6/16 P. v. Harris CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(El Dorado)

----

THE PEOPLE,

Plaintiff and Respondent,

v.
COLLEEN ANN HARRIS,

Defendant and Appellant. C079470 (Super. Ct. Nos. P13CRF0031, P13CRF0343)

Seventy

- one

- year

- old C olleen Ann Harris (defendant) sh ot dead her sleeping seventy

- three

- year

- old husband Robert Harris (Harris) , after she stewed for months about an affair he was having with a 35

- year

- old woman who lived in Mongolia . Over 20 years
before shooting Harris, defendant had also shot dead her then

- husband, but she was acquitted of murdering him after the jury hear d tha t defendant killed him after confronting him about molesting her daughter. This prior

- act evidence (which included her defense) was introduced to prove that Harris’s shooting her e was deliberate and2

premeditated and was not an accident. Her defense to Harris’s death was accident (without specifying who pulled the trigger). Regarding her defense of accident,
defendant testified she and Harris were wrestling in the bedroom, he had a gun, she blacked out, and when she came to, Harris was de ad. A jury found defendant guilty of the first degree murder of Harris. On appeal , defendant cont ends the court erred in admitting evidence of the prior shooting , trial counsel was ineffective in his examination of witnesses, and the prosecutor
committ ed misconduct during closing arguments. Disagreeing, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND
A Shooting Of Harris At 6:05 p.m. on January 6, 2013, attorney David Weiner (trial counsel) called 911 to report there had been a homicide on Wilderness Cou rt in Placerville. Trial counsel knew about Harris’s death because defendant had called him to report it, and trial counsel had just met with defendant in his car outside the Placerville house, and the two talked in person, while defendant “felt like [she ] was in a fog.” 1 When sheriff deputies came to the Placerville house, they saw defendant climb onto a countertop and put something on top of the kitchen cabinet. That something turned out to be a manila envelope with checkbooks inside. They then saw defendant

come out of the house. When police asked her what was going on, she initially said, “I can’t talk about it,” but she eventually said t hat her husband was dead inside the house, he had been shot, and she had covered him with a blanket.

1 Defendant later told police that she did not have any particular reason to call trial counsel that day and that she just called him every so often to find out how he and his kids were doing. As to being in a fog, defendant testified at trial that she met with her psychologist, Dr. Norman Tressor, for a total of 25 hours to help her remember exactly what happened on the night Harris was shot.3

Sheriff ’s deputies went inside the house. In the ma ster bedroom, they found Harris in bed with most of his face missing and blood, brain, and bone matter scattered throughout the room. There was no injury to Harris’s hand or arm , so the police did not
think the gunshot was self

- inflic ted. There was a significant pooling of Harris’s blood in the sleeping position in which he was found, which indicated he had been shot in his sleep. There was a reconfigured pistol

- grip style double barrel shotgun at Harris’s lef t leg, a substantial distance from where his arm would have been able to reach. The shotgun had been wiped down, so th e re were no fingerprints or blood o n it. The areas near Harris’s body that had blood spatter on them (the headboard and the ceiling abov e Harris ) also had been wiped down. There was no sign of a struggle or fight in the house.
Defendant was taken to a hospital and also interviewed by police . She answered the doctor’s questions coherently, did not have difficulty understanding the que stions, and did not complain about loss of memory or consciousness. Police noticed she had a bright red abrasion on her middle finger, but she could not explain to police how she got this injury. In the police’s opinion, defendant’s finger injury was con sistent with her having fired the shotgun. Defendant also had a bruise on the center of h er chest on her cleavage line. Based on the way this shotgun had been reconfigured, the gun could have
recoil ed on the person pulling the trigger, causing bruising i n the area where defendant
had been hurt. Prior to Harris’s death, Harris and defendant had been having marital troubles, caused by an affair he was having with a woman he met on a Mongolian business trip. Harris had gone to Mongolia in the summer of 2012, and defendant had learned of the affair during that t ime. At the beginning of September 2012, defendant began texting Harris ’s daughter, Pamela Stirling, expressing surprise, sadness , and anger about the affair

. In mid

- September , Harris flew fr om Mongolia to Stirling’s Los Angeles house, and then the two of them travelled up to the Placerville house together. Harris told4

Stirling he was worried about seeing defendant for the first time after she had learned of
the affair because of “ t he demise of her [ former ] husband.” He was “ afraid the defendant was going to do something horrible to him as she did to her [former] husband.
He was afraid that sh e was going to kill him.” Stirling did no t counsel her father against moving back in with defendant because Stirling had to “ let her [ father ] make his own
decisions , ” but “[t]he thought of him being injured never left [her] mind .” Stirling had known about defendant killing her former husband for over 20 years

. When Harris and Stirling arrived at the Placerville house, defendant was calm, sad, passive , and quiet. When Harris told defendant he was planning on stayin g at his Tahoe cabin, she was not pleased. Harris and Stirling left for Tahoe anyway. That weekend, Harris began moving his property to the Tahoe cabin and changed his mailing
addresses to the Tahoe cabin as well. During October, Stirling and Harris continued communicating , and Stirling and defendant did as well, although less th an before. Harris told Stirling that he was going to temporarily stay with defendant at the Placerville house to help her recover from a hip replacement surgery she was having in mid

- November.
In November , Harris was at the Placerville house through Tha nksgiving to
celebr ate the holiday with defendant. Stirling, her husband, and her three children joined

o n th e day after Thanksgiving

. Defendant told Stirling that she was frustrated that Harris was not giving her answers about whether he wanted to stay married, whether he was going to live permanently in Tahoe, and whether he was going to continue his affair. Over the Christmas holidays, defendant and Harris drove together down to Stirling’s house in Los Angeles. Defendant was very angry with Harris because he was not affectionate towards her and because she had found a receipt for a necklace Harris had bought his Mongolian girlfriend. Harris told Stirling that he intended to move out of
the Placerville house back to Tahoe after the new year and had started consulting a church counselor to help him separate from defendant.5

The last text message Stirling received from defendant was on January 5, 2013, the night before Harris died. In it, defendant wrote, “ Your dad just called his Mongolian love ten minutes ago.” “He still will not talk about anything that deals with he and I.” “I sit here wondering who I am married to.” Harris and defendant had been married for

a bout 23 years at the time Harris was shot

. B

Defendant’s 1985 Killing Of Her Former Husband, James Batten
Prior to defendant’s marriage to Harris , defendant was married to James (Jim)
Batten. At the time defendant and Batten met , defendant’s daughte r from a prior marriage , T. B., was about 11 ye ars old and really liked Batten. But after t he first year of marriage , Batten began sexually molesting T. B. , which quickly turned to intercourse
after defe ndant had a double mastectomy an d Batten claimed he “needed” T. B. because
he could n o t have sex wi th defendant anymore. At one point, T. B. told defendant about the molestation, and defendant and Batten assured her that it would not continue. But it did, although T. B. did not tell defendant b ecause defendant was becoming sick er with
the cancer treat ment. When T. B. turned 18 (and two years before defendant shot Batten in July 1985 ),
T. B. moved out of the family home. She would come back regularly, however, to do her laundry, and Batten would continue with his sexual advances. The day before defendant shot Batten, Batten tried to kiss T. B. and told her that
he and defendant were going to get a divorce , now she (T. B.) and he could “really be together,” and he would “never leave [her] alone.” T. B. told defendant that day about what had happe ned. Defendant went to see Batten. Batten held a gun to defendant’s head and forced her to orally copulate him while telling defendant she “did not do that nearly as well as her daughter did.” Defendant heard a click and thought that Batten had
shot her

. Later, d efendant called trial counsel. Afterward, she called 911 and said she thought she shot her husband (from whom she was separated at the time) in the bedroom6

on Wilderness Way (the same Placerville house wher e defendant and Harris later lived ). She then backtracked to the dispatcher and said, “I don’t k n ow if I even shot him.” Defendant was charged with murdering Batte n, and trial counsel represented her in
that murder trial as well. Defendant was acquitted of murdering Batten. About 18 year s after defendant shot Batten , T. B. was married to someone she described as very controlling. T. B.’s husband did not like defendant , and he drafted a
declaration for T. B. to sign to support a temporary restraining order against defendant

. Some of the statements in the declaration were t rue and some were false, but T. B. signed
the declaration because she had two young children , and he r then

- husband was the sole provider for her family. In the declaration T. B. wrote she was “terrified of [her] mother because [she had] seen [her mother] pull guns on family members in the past” and that
she had “ seen her mother pull a pistol on [Batten] when she was 16 years old. ” She had
also seen her mother use a gun to ward off her biological father , who at the time was beating her infant brother “pretty bad.”
DISCUSSION
I The Court Acted Within Its Discretion And Did Not Violate Defendant’s Due Process

Right To A Fair Trial Or Dou ble Jeopardy Principles In Admitting Evidence Of Defendant’s Killing Of Her Former Husband
Defendant contends the trial court abused its discretion and violated her due
pro cess right to a fair trial by admitting evidence she killed her fo r mer husband . She argues that the evidence of her former husband’ s shooting “was not probative, was inflammatory, . . . was highly prejudicial,” and the incident was remote in time

. Defendant further contends admission of this evidence was a retrial of the 1985 murde r charge and violated her right to be free of double jeopardy and violated the collateral estoppel doctrine. We disagree on all points

.7

The court admitted evidence that def endant killed her former husband to show
intent to kill Harris , to show lack of accident or mistake, and to show she acted with
deliberation and with premeditation when killing Harris

. In doing so, the court did not
abuse its disc retion or violate defendant’s constitutional rights

. We explain below.
In People v. Steele ( 2002) 27 Cal.4th 1230 ( Steele ) , a case simila r in many
resp ects to this one, the trial court admitted prior

- act evidence that the defe ndant stabbed
to death a teenage babysitter 17 years before the current murder , which was the stabbing death of another young woman. ( Id . at pp. 1238

- 1239 , 1243

- 1244 .) On appeal, the defendant claimed the court erred in admitting evidence of the prior killing for many of the same reasons urged here (i.e., intent was not an issue, the prior killing was remote, and the prior killing was too prejudicial) , but our Supreme Court disagre ed. It explained as follows: “Here, the facts of intent to kill, premeditation, and deliberation were
material.

. . . The previous killing . . . had a tendency to prove these facts

. . . . The [babysitter] and [current] killings bore several similariti es. Both victims suffered manual strangulation and received a cluster of about eight stab wounds in the chest or abdomen. The victims resembled each other somewhat. Moreover, in both cases, defendant admitted the killing to the police shortly afterwar ds, but supplied an explanation

. . . . [¶] The two killings were similar enough to make the earlier one relevant to the mental state with which defendant committed the later one.” ( Id . at pp. 1243

- 1244.) “ There is also no
rule or policy requiring exclu sion

. . . . [E] vidence of other crimes is inherently prejudicial. [Citation.] But this circumstance means the court must exercise its discretion, not that it must always exclude the evidence. Here, the [babysitter’s] killing

was highly probative of def endant’s mental state when he ki lled [the current victim], a critical issue.” ( Id . at p. 1245.) “ Defendant [also] argues that the first killing, 17 years before the second, was too remote to ha ve significant probative value . . . . [G] iven the
similariti es of the killings, we do not believe the time factor compelled the court to
exercise its discretion in only one way.” ( Id . at p. 1245.)8

Here, Steele’s analysis controls in many respects. Int ent to kill and premeditation
and deliberation were central is sues at trial because the defense was an accident. The previous killing had a tendency in reason to prove these facts because, as the trial court noted when admitting the evidence, there were “very significant similarities between the two shootings.” Tho se similarities included that the victims were defendant’s husbands,
defendant shot them while in the be droom during a time when they were having marital difficulties, there was a delay in reporting the shootings, defendant called other people prior to cal ling police (namely, trial counsel) , and she claimed she did no t remember what had happened. There also was no policy against excluding the evidence even though the prior killing was remote (28 years separa ted the two killings) and no conviction resulted (unlike in Steele ). The trial court here was careful to instruct the jurors that there was a different standard of proof applicable to prior

- act evidence and that the People had the burden of proving by clea r and convincing evidence defendant murdered her first husband and that if they had not met their burden, the jurors must disregard the evidence entirely. Finally, Steele’s analysis also controls defendant’s federal constitutional claims. As to defendant’ s claim that admission o f the prior killing violated her due process right to a fair trial, Steele holds that where evidence of a prior killing “supported the permissible inference that the second killing was intended and premeditated,” there is no
due pro cess violation. ( Steele , supra , 27 Cal.4th at p. 1246

. ) As to defendant’s collateral estoppel and double jeopardy claims , “no one is seeking to relitigate [the prior] murder.” “This case involves solely defendant’ s guilt for killing [the current victim] . Both [the California Supreme Court] and the United States Supreme Court have held that principles of double jeopardy, including its collateral estoppel component, permit the admission of otherwise proper evidence of a prior crime even if the person had been entirely acquitted of that prior crime. ” ( Steele , at p. 1245, fn. 2.)9

In summary, there was no error, federal or otherwise, in admitting evidence of the prior killing

. II Trial Counsel Was Not Ineffective For Failing To Object To Evidence About Guns And

Defendant’s Dangerousness And For Referring To Defendant As A “Murderess” And The Prior Killing As “Murder”
Defendant contends her counsel was i neffective during various points of witness
examination

. We take each in turn, keeping in mind t he following standard. To establish
ineffective assistance of counsel , defendant bears the b urden of establishing both that trial counsel’ s performance fell below an objective standard of reasonableness and, absent
trial counsel’ s error, it is reasonably probable that the verdict would have been more
favorable to her

. ( Strickland v. Washington (1984) 466 U.S. 668, 688 , 694 [80 L.Ed.2d 674, 694, 698].) We give g reat deference to trial counsel’ s reasonable tactical decisions ( People v. Weaver (2001) 26 Cal .4th 876, 925) and reverse “ ‘only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or
omission ’ ” ( People v. Frye (1998) 18 Cal.4th 894, 980 )

. A Trial Counsel Was Not Deficient In Failing To Object To Relevant Evidence Regarding Defendant’s Use Of Guns
, And Her Strategy Of Trying To Minimize That Evidence

During Cross

- Examination Was Reasonable
Defendant contends her trial counsel was deficient in failing to object to the prosecutor’s cross

- examination of T. B. regarding statements T. B. made about defendant’s use of guns. The statement s were made in T. B. ’s 2003 declaration in support of a temporary restraining order against defend ant

. Specifically, T. B. testified that she wrote she was “terrified of [her] mother because [she had] seen her pull guns on family members in the past” and that she had seen her mother pull a pistol on de fendant’s
former husband Batten when she was 16 years old.10

Defense counsel was not deficient for failing to object because defendant’s familiarity with guns was relevant to the People’s the ory of this case that she used the shotgun to shoot Harris . Moreover, def ense co unsel used a reasonable strategy to

m inimize the impact of this evidence . Specifically, i n redirect examination of T. B. , counsel elicited that at the time T. B. signed th o se declarations, she was going through postpartu m depression, she designed those declarations to “make [her] mother loo k like a terrible person,” she would not sign the declarations today, and she had seen her mother use a gun to ward off T. B.’s biological father, who at the time was beating her infant brother “pretty bad.” While the prosecutor came back in re cross

- examin ation and pointed out that T. B. said harmful things about defendant in her declaration , including that her mother “pulled a shotgun on [her] biological father

. . . when [she] was nin e years old,” trial counsel elicited from T. B. that the whole point of those declarations was to make her mother look terrible, and in reality, her mother was no t terrible. In sum, there was nothing deficient about trial counsel ’s performance wi th regard to how he handled this gun evidence.
B Trial Counsel Was Not Ineffectiv e For Failin g To Object To Hearsay Evidence
That Defendant Was Dangerous And For Referring To Defendant As A “Murder ess”

And The Prior Killing As A “Murder”
Defendant raises a number of contentions regarding trial counsel’s handling of questions and evide nce regarding defendant’s alleged dangerousness and the terminology he used when questioning Stirling. We explain and analyze these contentions below.
Defendant contends trial counsel was deficient in failing to object on hearsay grounds to two questions the prosecutor asked Stirling that elicited hearsay statements that defendant was dangerous

. The first question was, “ Did your father [i.e. , Harris ] tell you why he was worried about seeing the defendant for the first time?” Stirling responded, among oth er things, that Harris told her, “you know, Pam, you remember t he11

demise of her [former] husband .” The second question was, “Can you te ll me what his
concerns were?” Stirling replied, among other things, “the defendant was going to do something horrible to him as she did to her [former] husband. He was afraid that she was going to kill him. And we talke d in great detail about safety

. . . . [¶] . . . [¶] He was
scared that when he was asleep that he wouldn’t h ear her if she came through the door at
T ahoe

. . . . ”
Defendant further contends trial counsel was deficient for suggesting defendant was dangerous in his cross

- examination of Stirling by eliciting further references to defendant being dangerous and referring to defendant ’ s 1985 shooting of her former husband as “murder” and calling her a “murderess

. ” Specifically, during cross

examination of Stirling, trial counsel asked why she did no t counsel her father against moving back in with defendant to care for her. Stirling res ponded that she had to let her
father make his own decisions , but “[t]he thought of him being in j ured never left [her] mind” and that she was “always concerned for his safety.” Trial counsel followed up by asking whether she asked her father if he felt sa fe around defendant and that “obviously”
he must have or el se he would not have gone there. Stirling replied that he said he was “not comfortable and often sleeps with one eye open.” Trial counsel followed up by asking if Stirling asked her father whethe r he thought defendant was a danger to him. Stirling responded, “he didn’t say yes,” and “he did not think she would do anything , but considering the demise of her [former] husband, it was always a possibility,” “that concerned him,” and “ [ h ] e said that t o [Stirling ] very often.” Trial counsel then elicited from Stirling that she had known about defendant killing her former husband for over 20 years and then asked why she did not “counsel him” once she learned he was marrying a “murderess” or ask him why he was marrying somebody who had been acquitted of “murder .” Stirling responded that it was defendant who fir st told Stirling she had killed
her former husband (and it was after she and her father had been m arried for four or five years) and that her f

orm er husband was a “very bad man , who did awful things to her12

daughter” and Stirling added that Harris was “very, very happy with the defendant during this time” so she “did not approach the subject with him.” While defendant on app eal claims that trial c ounsel’s failure to object to the hearsay evidence about defendant’s dangerousness and eliciting evidence that St ir ling and her father thought defendant was dangerous and calling defendant a “murderess” and referring to the killing of her former husband as “murder” was “prejudicial and inflammatory,” there was a sound tactical reason for counsel’s actions. Counsel was demonstrating to the jury that Stirling and her father were really not afraid of defendant and indeed had nothing to fear. They had known f or decades about her killing her former
husband , had not taken precautionary action to show they were afraid of her, and that
Harris really could not have been afraid of defendant because he returned to the
Placerville house voluntarily to care for her. In closing argument, trial counsel also pointed out that it seemed “odd” th at Stirling would bring herself , her children, and Harris’s grandchildren to the Placerville house if Stirling really believed that defendant posed a danger and i t was just as odd that she would invite defendant a long with her
father to Christmas at her house later that year if she truly feare d defendant. Under these circumstances, trial counsel’s performance was not deficient.
III
The Prosecutor Did Not Commit Misconduct In Closing Arguments
Defendant conte nds the prosecutor committed numerous acts of misconduct in closing arguments , violating her federal and state due process right to a fair trial. We take each in turn, keeping in mind the following standard. “When a prosecutor’ s intemperate behavior is sufficiently egregious that it infects the trial with such a degree of unfairness as to render the subsequent conviction a denial of due process, the federal
Constitution is violated. Prosecutorial misconduct that falls short of rendering the trial fundamentally unfair may still constitute misconduct under state law if it involves the use13

of deceptive or reprehensible methods to persua d e the trial court or the jury.” ( People v.
Panah (2005) 35 Cal.4th 395, 46 2.) As we will explain below, there was no misconduct.
A The Prosecutor Did Not Impugn The Integrity Of Trial Counsel
Defendant claims the prosecutor committed misconduct by arguing that she and
her trial counsel fabricated her defense in the 1985 murder trial and again in this trial. Specifically, the prosecutor argued in closing the following: There were times in defendant’s testimony where she “couldn’t answer a question directly or where she changed her answer, had to be put back on script by her attorney.” She “selectively forg[ot]” she was no t just a suspect in the 1985 killing , she was the defendant in that case and “ [ s ] he was represented by the same defense attorney she met with for 90 minutes earlier that day.” “We didn’t know the defense’s theory after [trial counsel’s] opening statement. He said, ‘My client will tell you what happened i n the bedroom, whether it
was homicide or su icide or accident. . . . .’ [¶] We ll if you’re telling the truth, you don’t need to figure out what you’re going to say or what you’re going to do, you just tell the truth.” Defendant claimed her relationship with trial counsel was social, but that was not her entire relationship with him, as h e represented her in the prior murder trial. Defendant claimed she was in a fog and “ [ s ] he didn’t want to say she met with her criminal defense attorney from the last time her husband got killed.” Defendant claimed to be moving valuables around the house after trial counsel left but before the sheriff’s department arrived and “testified to putting some valuables up on a shelf. She doesn’t want you to think she is writing a check to [trial counsel].” “ [ T ] he defense is something that is being made up on t he fly in response to the People’s evidence. . .

. This is not a game. Might be to the defense team, but it’s not for the prosecution team.”
These comments were fair argument s based on the state of the evidence. “A criminal prosecutor has much latitud e when making a closing argument. H[is] argument may be strongly worded and vigorous so long as it fairly comments on the evidence14

admitted at trial or asks the jury to draw reasonable inferences and deductions from that evidence.” ( People v. Seumanu (20 15) 61 Cal.4th 1293, 1330.) Here, the prosecutor accurately noted that trial counsel had represented defendant in her prior murder trial and that was the primary basis for their relationship. Moreover, there was evidence from
which a reasonable inference could be drawn that she was trying to hide a checkbook right after she had talked with trial counsel . When police first arrived at defendant’s house in response to trial counsel’s 911 call, they saw defendant climb onto a countertop and put something on top of the kitchen cabinet. That something turned out to be a manila envelope with checkbooks inside.
B

The Prosecutor Did Not Misstate The Law Defendant on appeal points to a number of arguments made by the prosecutor in closing that s he claims misstated the law . We take each in turn, explaining why there
was no misconduct.
1

The Prosecutor Did Not Mak e Improper Propensity Arguments Trial counsel argued, “the more often one kills, especially under similar circumstances, the more reasonable it i s to believe the killing was intended and premeditated .” Defendant on appeal contends this was improper propensity argument, “nothing more than a statement of probabilities.” No t so. The Californi a Supreme Court
has sanctioned this statement of the law in a very similar circumstance (i.e., evidence of a prior murder introduced in a current murder prosecution), stating, “the doctrine of chances teaches that the more often one does something, the more likely that something was intended, and even premeditat ed, rather than accidental or spontaneous. Specifically, the more often one kills, especially under similar circumstances, the more reasonable the inference the killing was intended and premeditated.” ( People v. Steele , supra , 27 Cal. 4th at p. 1244.)15 2 The Prosecutor Did Not Shift The Burden Of Proof To Defendant The prosecutor argued that in looking at the defense case, “ importantly, . . . keep[] in mind, first t hat the People have the burden of pro o f. I have to prove my case beyond a
reasonable doubt in order for you to vote to convict. [¶] But i f the defense asserts or claims something in her defense, the defense team has the burden of production.” The prosecutor explained that defendant claimed a “ memory issue for traumatic events,”
noted that her psychologist Dr. Tressor was “not available as a witness to the defense
because of a medical issue, ” “so I’m not going to . . . mislead you and suggest that they could have called Dr. Tressor,” “ [ b ] ut there are many, many experts that they could call to evaluate the defendant and talk about this.” “The law is clear that if the defense isn’t prepared to go forward because they lost a witness, or they need to obtai n a witness, the Court would gr ant that continuanc e. There was no motion t o continue filed in this case by the defense” and “ [ i ] f you can’t afford an expert witness that you need in your defense, the Court will appoint one for you.” The prosecutor also mentioned the current condition of the shotgun and noted that trial counsel was “asking you to go back into that jury room and just speculate. And the reason why he is doing that is because if you focus on the defense evidence, if you challenge the defense’s evidence, you see it doesn’t add up to reasonab le doubt.” Defendant on appeal contends that these arguments shifted the
burden of proof to defendant and gave defense the burden of production. These arguments were well within the permissible range. The California Supreme Court has explained that a prosecutor ’s statements do not constitute impermissible burden shifting simply because the prosecutor correctly notes that a defendant did not produc e any evidence , so long as the prosecutor does not state a defendant has the bur den of proving her innocenc e. ( People v. Bradford (1997) 15 Cal. 4th 1 2 29, 1340.) Here the prosecutor correctly noted the defense did not back up its own defense even though it could have brought in an expert to testify about her alleged failure to recall , and the16

prosecutor ne ver stated or suggested that defendant had the burden of proving her
innocence. In fact, the “[p] rosecutor

. . . reiterated that the prosecution had the burden of proof by sufficient evidence [ of ]

. . . defendant’s guilt . . . .” ( Bradford , at p. 1340.) Thus, “the prosecutor’ s comments [did not] impermissibly shift the burden of proof to
defendant. ” ( Ibid .)
3
The Prosecutor Did Not Misrepresent
The Law Of Voluntary Manslaughter The prosecutor argued that as to the lesser offense of voluntary manslaught er, the so called “heat of passion manslaughter ,” the “ instructions . . . are very specific . . . as to the degree of provocation.” It “has to be a degree of provocation that would rob a person of average temperament [of] their ability to essentially reas on, their ability to premeditate and deliberate. It has to be a provocation that is somewhat immediate and does not allow for a cooling off period.” (Italics added.) Defendant on appeal contends this was a
material misrepresentation of the law because t he prosecu tor “told the jury provocation

c ould only arise over a short period of time.” She quotes the jury instruction here, CALCRIM No. 570, which actually demo nstrates there was no error . As the jury was instructed, “In order for heat of passion to re duce a murder to voluntary manslaughter, the
defendant must have acted under direct and immediate influence of provocation

. . . . Sufficient provocation may occur over a short or long period of time.” ( Italics added.) The prosecutor’s point was that “the People’s t heory is that the defendant wai ted until [Harris] was asleep to shoot and kill him. That’s a cooling off period.” D efendant was still upset, frustrated, angry , and obsessing abou t the affair but months passed between learning about the aff

air and her deciding to kill him, which was “more than sufficient time for a reasonable person of average temperament to cool off.” This argument was
within the law and indeed supported by the voluntary manslaughter instruction given.17 DISPOSITION The jud gment is affirmed.

/s/ Robie, Acting P. J.

We concur:

/s/ Duarte, J.

/s/ Renner, J.