1

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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 Colleen Ann Harris (defendant) shot 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 heard that 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 here was deliberate and 
2

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 dead. A jury found defendant guilty of 

the first degree murder of Harris. 

On appeal, defendant contends the court erred in admitting evidence of the prior 

shooting, trial counsel was ineffective in his examination of witnesses, and the prosecutor 

committed 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 Court 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 that 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 master 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-inflicted. 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 left 

leg, a substantial distance from where his arm would have been able to reach. The 

shotgun had been wiped down, so there were no fingerprints or blood on it. The areas 

near Harris’s body that had blood spatter on them (the headboard and the ceiling above 

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 questions, 

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 consistent with her 

having fired the shotgun. Defendant also had a bruise on the center of her chest on her 

cleavage line. Based on the way this shotgun had been reconfigured, the gun could have 

recoiled on the person pulling the trigger, causing bruising in 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 time. 

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 from Mongolia to Stirling’s Los Angeles house, 

and then the two of them travelled up to the Placerville house together. Harris told 
4

Stirling he was worried about seeing defendant for the first time after she had learned of 

the affair because of “the 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 she was going to kill him.” Stirling did not 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 staying 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 than 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 Thanksgiving to 

celebrate the holiday with defendant. Stirling, her husband, and her three children joined 

on the 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 

about 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 daughter from a prior 

marriage, T. B., was about 11 years old and really liked Batten. But after the first year of 

marriage, Batten began sexually molesting T. B., which quickly turned to intercourse 

after defendant had a double mastectomy and Batten claimed he “needed” T. B. because 

he could not have sex with 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 because defendant was becoming sicker with 

the cancer treatment. 

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 happened. 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, defendant 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 bedroom 
6

on Wilderness Way (the same Placerville house where defendant and Harris later lived). 

She then backtracked to the dispatcher and said, “I don’t know if I even shot him.” 

Defendant was charged with murdering Batten, and trial counsel represented her in 

that murder trial as well. Defendant was acquitted of murdering Batten. 

About 18 years 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 true and some were false, but T. B. signed 

the declaration because she had two young children, and her 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 Double 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 

process right to a fair trial by admitting evidence she killed her former 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 murder 

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 defendant 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 discretion or violate defendant’s constitutional rights. We explain below.

In People v. Steele (2002) 27 Cal.4th 1230 (Steele), a case similar in many 

respects to this one, the trial court admitted prior-act evidence that the defendant 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 disagreed. 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 similarities. 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 afterwards, 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 exclusion. . . . [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 defendant’s mental state when he killed [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 have significant probative value. . . . [G]iven the 

similarities 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. Intent to kill and premeditation 

and deliberation were central issues 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.” Those similarities included that the victims were defendant’s husbands, 

defendant shot them while in the bedroom during a time when they were having marital 

difficulties, there was a delay in reporting the shootings, defendant called other people 

prior to calling police (namely, trial counsel), and she claimed she did not remember what 

had happened. There also was no policy against excluding the evidence even though the 

prior killing was remote (28 years separated 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 clear 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 of 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 process 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 ineffective during various points of witness 

examination. We take each in turn, keeping in mind the following standard. To establish 

ineffective assistance of counsel, defendant bears the burden 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 great 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 statements were made in T. B.’s 2003 declaration in 

support of a temporary restraining order against defendant. 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 defendant’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 theory of this case that she used the

shotgun to shoot Harris. Moreover, defense counsel used a reasonable strategy to 

minimize the impact of this evidence. Specifically, in redirect examination of T. B., 

counsel elicited that at the time T. B. signed those declarations, she was going through 

postpartum depression, she designed those declarations to “make [her] mother look 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 recross-examination 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 nine 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 not terrible. In sum, there 

was nothing deficient about trial counsel’s performance with regard to how he handled 

this gun evidence.

B

Trial Counsel Was Not Ineffective For Failing To Object To Hearsay Evidence

That Defendant Was Dangerous And For Referring To Defendant As A “Murderess”

And The Prior Killing As A “Murder”

Defendant raises a number of contentions regarding trial counsel’s handling of 

questions and evidence 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 other things, that Harris told her, “you know, Pam, you remember the 
11

demise of her [former] husband.” The second question was, “Can you tell 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 talked in great detail about safety . . . . [¶] . . . [¶] He was 

scared that when he was asleep that he wouldn’t hear her if she came through the door at 

Tahoe . . . .” 

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 crossexamination of Stirling, trial counsel asked why she did not counsel her father against 

moving back in with defendant to care for her. Stirling responded that she had to let her 

father make his own decisions, but “[t]he thought of him being injured 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 safe around defendant and that “obviously” 

he must have or else 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 whether 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 to [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 first told Stirling she had killed

her former husband (and it was after she and her father had been married for four or five 

years) and that her former husband was a “very bad man, who did awful things to her 
12

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 appeal claims that trial counsel’s failure to object to the 

hearsay evidence about defendant’s dangerousness and eliciting evidence that Stirling 

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 for 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” that Stirling would bring herself, her children, and 

Harris’s grandchildren to the Placerville house if Stirling really believed that defendant 

posed a danger and it was just as odd that she would invite defendant along with her 

father to Christmas at her house later that year if she truly feared defendant. Under these 

circumstances, trial counsel’s performance was not deficient.

III

The Prosecutor Did Not Commit Misconduct In Closing Arguments

Defendant contends 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 use 
13

of deceptive or reprehensible methods to persuade the trial court or the jury.” (People v. 

Panah (2005) 35 Cal.4th 395, 462.) 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 not 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 in the bedroom, whether it 

was homicide or suicide or accident. . . . .’ [¶] Well 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 he 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 the 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 arguments based on the state of the evidence. “A 

criminal prosecutor has much latitude when making a closing argument. H[is] argument 

may be strongly worded and vigorous so long as it fairly comments on the evidence 
14

admitted at trial or asks the jury to draw reasonable inferences and deductions from that 

evidence.” (People v. Seumanu (2015) 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 she claims misstated the law. We take each in turn, explaining why there 

was no misconduct.

1

The Prosecutor Did Not Make Improper Propensity Arguments

Trial counsel argued, “the more often one kills, especially under similar 

circumstances, the more reasonable it is to believe the killing was intended and 

premeditated.” Defendant on appeal contends this was improper propensity argument, 

“nothing more than a statement of probabilities.” Not so. The California 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 premeditated, 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 that the People have the burden of proof. I have to prove my case beyond a 

reasonable doubt in order for you to vote to convict. [¶] But if 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 obtain a witness, the 

Court would grant that continuance. There was no motion to 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 reasonable 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 produce 

any evidence, so long as the prosecutor does not state a defendant has the burden of 

proving her innocence. (People v. Bradford (1997) 15 Cal.4th 1229, 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 the 
16

prosecutor never 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 manslaughter, 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 reason, 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 the prosecutor “told the jury provocation 

could only arise over a short period of time.” She quotes the jury instruction here, 

CALCRIM No. 570, which actually demonstrates there was no error. As the jury was 

instructed, “In order for heat of passion to reduce 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 theory is that the defendant waited until 

[Harris] was asleep to shoot and kill him. That’s a cooling off period.” Defendant was 

still upset, frustrated, angry, and obsessing about the affair but months passed between 

learning about the affair 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 judgment is affirmed.

/s/ 

Robie, Acting P. J.

We concur:

/s/ 

Duarte, J.

/s/ 

Renner, J.