1

Filed 5/15/14 P. v. Griffin CA1/3 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

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 This opinion has not been certified for publication 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 

FIRST APPELLATE DISTRICT 

DIVISION THREE 

THE PEOPLE, 

 Plaintiff and Respondent, 

v. 

JAMES EDWARD GRIFFIN, 

 Defendant and Appellant. 

 A136110 

 (Contra Costa County 

 Super. Ct. No. 51105733) 

 A jury convicted James Edward Griffin of second degree murder with personal use 

of a deadly weapon (a knife). (Pen. Code, §§ 187, 12022, subd. (b)(1).)1

 He is in prison 

serving 15 years to life for murder and an additional one year for weapon use. Defendant 

appeals his conviction on several grounds. He claims (1) the court wrongly admitted 

evidence of his connection with the Hell’s Angels Motorcycle Club; (2) the court erred in 

using a standard jury instruction defining voluntary manslaughter; (3) the prosecutor 

committed misconduct during closing argument to the jury by misstating the law and 

referring to facts not in evidence; and (4) the court erred in discharging a deliberating 

juror for misrepresentations made during voir dire. We shall affirm the judgment. 

Statement of Facts

 It is undisputed that defendant killed Robert Shaner by stabbing him with a knife. 

Defendant claimed the killing was justified as self-defense or defense of another. 

 

1

 All further section references are to the Penal Code unless otherwise noted. 
2

Alternatively, defendant claimed the killing was voluntary manslaughter as imperfect 

self-defense or because it occurred in the heat of passion or upon a sudden quarrel. 

The Parties 

 Robert Shaner was the estranged husband of Lesley Shaner, whom defendant was 

dating.2

 Robert and Lesley had a tumultuous five-year marriage. Robert suffered from 

mental illness and physically abused Lesley on multiple occasions. They separated in 

January 2010. Robert moved out of the couple’s house to live with a friend. Lesley 

started dating defendant, whom she knew from childhood. Defendant had also been a 

friend of Lesley’s brother who had recently died and who before his death had asked 

defendant to “take care” of Lesley. Robert told his neighbor that Lesley’s brother 

appointed defendant as her “guardian” and protector and he did not object to defendant’s 

relationship with Lesley. When the neighbor told Robert she had heard defendant was a 

Hell’s Angel and “didn’t care for that,” Robert replied: “I don’t know that he’s a Hell’s 

Angels, but he’s a biker and he’s a really nice guy.” The two men “always talked and got 

along” according to Lesley. 

The Stabbing 

 On March 10, 2010, Robert asked to stay overnight at the house occupied by 

Lesley because he had “nowhere else to go.” Lesley had “concerns” about Robert staying 

with her given his past abusive behavior and telephoned defendant to discuss the 

situation. Ultimately, Lesley agreed to let Robert stay because she “felt sorry for him.” 

Lesley slept in the bedroom and Robert stayed in the living room. 

 Defendant arrived at the house the following morning. Many of that morning’s 

events are in dispute. It is undisputed, however, that Robert called his brother on 

defendant’s cell phone around 10:00 a.m. Robert said he was at the Concord house and 

was leaving shortly to visit his brother in Alamo. About 30 minutes later, Robert 

stumbled to his next door neighbor’s house beaten and stabbed. 

 

2

 To avoid confusion, we shall refer to the Shaners by their first names. 
3

 The neighbor, Yasmeen Brown, testified that Robert banged loudly on her front 

door and, in an urgent voice, yelled out for her to call the police. Brown opened the door 

and found Robert “in terrible physical condition.” “[H]e had blood all over the top of his 

head running down the side of his head, his eyes were red and swollen, he had gashes in 

his face, he had marks on his neck, he had a large gash . . . [to] his right hand, and he was 

generally beat up all over.” 

 Brown called 911. A recording of the call was played for the jury. Brown told the 

911 operator, “I have a neighbor on my porch. He is gushing blood.” Robert told the 

operator “A Hell’s Angel stabbed me.” The operator asked Robert who stabbed him and 

Robert said James Griffin. The operator told Brown the police and medical personnel 

were on the way and then asked questions about the stabbing. Robert said defendant was 

next door and had stabbed him with a “K-bar.” Brown then told the operator defendant 

was leaving the premises. Brown relayed the make, color and license plate number of 

defendant’s vehicle and its direction of travel. When a police officer arrived, Brown said 

Robert told her “James attacked me. He went crazy on me. He hit me, beat me and knifed 

me.” Robert was unable to talk to the officer himself and lost consciousness before the 

paramedics arrived. The paramedics tried to revive Robert without success. 

The Autopsy 

 A forensic pathologist testified at trial that Robert died from a “stab wound to the 

left mid-back.” The wound measured a little more than one inch on the surface and 

penetrated about four inches into the chest cavity from the rear. The knife entered 

horizontally between the sixth and seventh ribs, punctured the left lung and caused 

extensive internal bleeding. 

 Robert also suffered additional injuries. The palm of his right hand had two 

lacerations, which the pathologist testified was “a characteristic location of . . . a defense 

wound, someone trying to defend themselves from a sharp force object.” One of the hand 

lacerations was a deep gash that “cut through some of the muscle.” On crossexamination, the pathologist conceded the possibility that one could suffer hand 
4

lacerations by “hastily grabbing the wrong side of the knife” during an altercation for 

control of the knife. 

 Robert had multiple bruises and abrasions on his face, neck, chest and legs and 

tears on his ear and lip. The lip tear was “[m]ost likely from a punch to the face.” 

Robert’s nose was bloody and “appeared to be deviated a little to the left.”The 

pathologist said Robert suffered at least four forceful blows to the face that “would have 

been painful.” 

 There were also signs of manual strangulation. There was hemorrhage in Robert’s 

eyes and circular bruises on his neck “consistent with fingertips putting pressure on the 

neck.” There was bleeding under the skin on each side of the neck and on the surface of 

the larynx, which were injuries the pathologist attributed to “compression of the neck by 

hands. In other words, strangulation.” 

Defendant’s Arrest 

 The police apprehended defendant minutes after the stabbing, driving away from 

the house with Lesley as a passenger. The police found a blood-stained fixed blade, K-bar 

brand “military-type knife” in a sheath on the car’s front floorboard, partially covered 

with a black leather vest. The sheath had a loop at the top allowing it to be worn on a belt 

and a snap to hold the knife in place. The sheath was unsnapped. The vest pockets 

contained postcards advertising Hell’s Angels events and stickers with the slogans 

“Support your local Hell’s Angels” and “Motorcycle Clubs Are Not Street Gangs.” 

Defendant was wearing a shirt with the number 81 on it that said “Support your local red 

and white.” A police officer testified that the shirt was affiliated with the Hell’s Angels. 

 Defendant had “one bleeding injury” – his right elbow was slightly cut by broken 

dish fragments. Broken dishes were found in Lesley’s kitchen that matched small 

fragments removed from defendant’s elbow by medical personnel. A photograph taken at 

the time of defendant’s arrest shows his face to be without injury and unmarked. 
5

 Defendant is six feet one inch tall and weighs 260 pounds. Robert was about five 

feet seven inches tall and weighed 187 pounds. Both men were in their early 40s at the 

time of the stabbing. 

Defendant’s Police Statement 

 The police interviewed defendant on the afternoon of the stabbing, beginning 

shortly after 4:00 p.m. and ending just before 6:00 p.m. A transcript of the interview is 66 

pages. The interview was videotaped and portions of the interview were admitted in 

evidence and viewed by the jury. Defendant did not testify at trial. 

 Defendant told the police that Robert was bipolar and abusive toward Lesley but 

that he and Robert had never fought or argued before that day. Defendant said Lesley’s 

dying brother asked him to “take care” of Lesley. Defendant said the brother meant that 

defendant “was to make sure that this guy didn’t keep abusing her.” 

 Defendant said he came to Lesley’s house in the morning to help “get her stuff out 

of there.” Defendant said Robert and Lesley started arguing so he went outside and sat in 

his car to wait for her. Lesley then came outside to get defendant because Robert stuck a 

knife in the wall. Defendant went in the house and saw a pocket knife stuck into Lesley’s 

carousel picture hanging on the bedroom wall.3

 Defendant gave changing accounts of the events that followed. Initially, defendant 

said Robert put a K-Bar knife to Lesley’s throat and he fought to get the knife. The police 

questioned that account and told defendant it was inconsistent with Lesley’s account. 

Defendant admitted, “I fucking lied” in “trying to save my ass.” The police asked 

defendant “what really happened.” 

 Defendant admitted that Robert did not put a knife to Lesley’s throat and that the 

two men fought in the kitchen while Lesley was in the bedroom. Defendant said Robert 

had stabbed the picture and was “throwing shit around.” Defendant wanted to “subdue” 

Robert and “get his attention” so he grabbed Robert and “threw him around the kitchen.” 

 

3

 A police officer testified that when he searched the house he saw an apparent knife-hole 

in the carousel picture. 
6

Robert “attacked back” and the men “wrestled.” At some point Robert hit defendant with 

a glass plate. Robert either grabbed defendant’s knife or the knife fell out of its sheath. 

The men fought for control of the knife. Defendant said he gained control of the knife 

and Robert immediately ran out the door. Defendant said if Robert was stabbed, it 

happened accidentally during the fight for the knife. The police told defendant Robert 

was dead and defendant needed to tell the truth. Defendant denied stabbing Robert and 

said Robert fell on the knife. 

 After additional questioning, defendant admitted threatening Robert with the 

knife. Defendant continued to claim the men wrestled and fought over a dropped knife 

but now admitted gaining control of the knife and gesturing with it to make Robert back 

away. Defendant said he was “trying to probe” Robert by poking the knife toward him to 

get him to “back the fuck off.” Defendant said Robert failed to move out of the way and, 

instead, “pivoted” or “spun.” The police asked “And that’s when the knife went in him?” 

Defendant answered, “Yeah. Maybe so far.” Defendant said the knife struck Robert on 

the left side. Defendant insisted. “it . . . wasn’t my intent to . . . stab him. My intent [was] 

to . . . regain control of the knife and intimidate him to get the fuck out of there.” The 

police asked defendant if he punched Robert during the altercation and defendant said 

“one time,” in the left eye. 

 When he was videotaped, defendant depicted the stabbing by holding an 

imaginary knife in a vertical position. Investigation revealed the stabbing wound to be 

horizontal. A police officer confronted defendant with this fact after the videotaped 

interview and defendant said he may have brought the knife around to the horizontal. 

Lesley’s trial testimony

 Lesley testified about Robert’s pervasive physical abuse of her and defendant’s 

knowledge of that abuse. On one occasion, Robert held a gun to her head. Another time, 

he held a knife to her throat and threatened to kill her. 

 On the day of the stabbing, Robert became agitated, argued with her and stabbed a 

picture on the bedroom wall. The picture was the last birthday present she received from 
7

her father who died when she was a child. Lesley was in the bedroom when Robert 

stabbed the picture and was afraid Robert was going to stab her. Lesley ran outside to get 

defendant. Defendant entered the house and Lesley told him Robert stabbed the picture 

and she was “scared for [her] life.” Lesley took her small dog into the bedroom to calm it. 

She heard scuffling from the kitchen but did not see the altercation. 

Discussion

1. Evidence of the victim’s belief that defendant was associated with the Hell’s Angels 

was admissible to show the victim’s state of mind during his altercation with defendant. 

Moreover, any error in admitting the evidence or related evidence connecting defendant 

with the Hell’s Angels was not prejudicial. 

 Defendant contends the trial court prejudicially erred when it refused to exclude 

evidence of his connection to the Hell’s Angels. Defendant’s counsel filed an in limine 

motion to exclude “any statements or other evidence concerning [defendant’s] alleged 

membership or association with the Hell’s Angels Motorcycle Club or that he was 

assigned to be Lesl[ey] Shaner’s ‘protector.’ ” The prosecution opposed the motion, 

arguing the evidence relevant to Robert’s state of mind and thus his likely response to 

defendant’s attack. The prosecutor also maintained “the fact that the defendant held 

himself out [as Lesley’s] Hell’s Angels protector before this incident goes to his motive 

and intent, for he apparently felt duty bound to eliminate Robert Shaner from Lesley 

Shaner’s life for her future safety.” The court denied the motion, finding the evidence 

relevant to Robert’s state of mind, defendant’s position as a protector, and the 

identification of the defendant in Robert’s 911 call. 

 Defendant argues that evidence of his connection with the Hell’s Angels was 

slight, of limited relevance, and should have been excluded as more prejudicial than 

probative. (Evid. Code, § 352.) It is true that there was little evidence connecting 

defendant to the Hell’s Angels. The record shows only that he drove a motorcycle, wore a 

Hell’s Angels shirt and possessed Hell’s Angels stickers and event advertisements. In 

fact, defendant was not a member of the Hell’s Angels, as the Attorney General concedes 

on appeal. Moreover, whatever defendant’s connection to the group, there was no 

allegation that the stabbing was motivated by that connection. Defendant stabbed his 
8

girlfriend’s estranged husband during a domestic altercation, not to further the purposes 

of the Hell’s Angels. 

 The Attorney General argues that evidence of defendant’s connection to the Hell’s 

Angels was relevant to prove the identity of the stabber, noting that Robert told the 911 

operator he was stabbed by a Hell’s Angels. But Robert also told the operator he was 

stabbed by James Griffin, making Robert’s reference to the Hell’s Angels superfluous on 

the issue of identity. Moreover, defendant admitted stabbing Robert. Identity was never at 

issue. 

 The Attorney General asserts that defendant was Lesley’s “gang-designated 

‘protector,’ ” which explains “why he may have felt duty bound to eliminate Robert and 

may have acted more quickly than permissible for the protection of Lesley’s safety.” The 

record does not support that assertion. Defendant was not a “gang-designated 

‘protector.’ ” The evidence established only that Lesley’s dying brother — who had no 

ties to the Hell’s Angels — asked defendant to take care of Lesley, whom defendant had 

known since childhood. 

 Nevertheless, the Hell’s Angels evidence was relevant for one of the reasons 

offered by the Attorney General: to prove Robert believed defendant was associated with 

the Hell’s Angels and would have been fearful of initiating or escalating a fight with a 

motorcycle club associate, contrary to defendant’s police account. Defendant argues that 

for this purpose the evidence was “only tangentially relevant” and its scant relevance was 

outweighed by the prejudicial impact of suggesting gang affiliation. 

 Gang affiliation “ ‘may have a highly inflammatory impact on the jury’ ” and thus 

trial courts “ ‘should carefully scrutinize such evidence before admitting it.’ ” (People v. 

McKinnon (2011) 52 Cal.4th 610, 655, quoting People v. Williams (1997) 16 Cal.4th 153, 

193.) “[A]dmission of evidence of a criminal defendant’s gang membership creates a risk 

the jury will improperly infer the defendant has a criminal disposition and is therefore 

guilty of the offense charged.” (Williams, supra, at p. 193.) 

 However, our review of a trial court’s evidentiary rulings are deferential. “On 

appeal, we review for abuse of discretion a trial court’s ruling on whether evidence is 
9

relevant, not unduly prejudicial, and thus admissible.” (People v. McKinnon, supra, 52 

Cal.4th at p. 655.) We cannot say the trial court abused its discretion in admitting 

evidence of defendant’s connection to the Hell’s Angels. Robert apparently believed 

defendant was a member of Hell’s Angels and that belief was at the forefront of his mind 

when he reported the stabbing to the 911 operator. Defendant’s claim of self-defense put 

at issue Robert’s conduct and his likely reaction to the altercation. We do have concerns, 

however, about the extent of the evidence admitted. While Robert’s statement to the 911 

operator describing defendant as a Hell’s Angel and defendant’s Hell’s Angel shirt worn 

at the time of his confrontation with Robert were relevant, evidence of the Hell’s Angels 

stickers and advertisements in defendant’s vest pocket were out of Robert’s view and 

presented a stronger case for exclusion. 

 However, any error in admitting evidence of defendant’s Hell’s Angels connection 

was not prejudicial in light of instructions limiting use of the evidence that were given 

and the state of the evidence as a whole. The court gave a limiting instruction advising 

the jury that Hell’s Angels items found on defendant when he was arrested were 

“admitted for the limited purpose of determining what may or may not have been in the 

mind of the decedent, Mr. Shaner.” The court cautioned the jury that the evidence should 

not be used to conclude that defendant is, in fact, “associated or affiliated with the Hell’s 

Angels.” Moreover, there was compelling evidence of defendant’s guilt independent of 

the Hell’s Angels evidence. There was essentially uncontradicted evidence of a savage 

beating and intentional stabbing wholly inconsistent with defendant’s account. Defendant 

claimed he punched Robert “one time” and accidentally stabbed Robert when Robert 

“pivoted” into the knife defendant was holding to fend him off. Yet, Robert’s neighbor 

testified that when Robert came to her door seeking help “he had blood all over the top of 

his head running down the side of his head, his eyes were red and swollen, he had gashes 

in his face, he had marks on his neck, he had a large gash . . . [to] his right hand, and he 

was generally beat up all over.” The autopsy confirmed the neighbor’s observations, 

finding that Robert had been strangled, repeatedly punched in the face with great force, 

and suffered deep cuts to his hand characteristic of defensive wounds incurred by a 
10

person resisting knife thrusts. The fatal injury could not have been incurred by Robert 

turning into a knife held stationary in defendant’s hand. The knife went into Robert’s 

back and penetrated four inches. The autopsy findings were consistent with Robert’s 

dying words: “James attacked me. He went crazy on me. He hit me, beat me and knifed 

me.” Any error in admitting evidence of defendant’s connection to the Hell’s Angels was 

harmless. 

2. The standard jury instruction on voluntary manslaughter correctly states the law. 

 Defendant claims the standard jury instruction on voluntary manslaughter, 

CALCRIM No. 570, misstates the law of “by suggesting that victim-caused provocation 

is essential to reduce murder to manslaughter” for killing in the heat of passion or during 

a sudden quarrel. Defendant argues that heat of passion and sudden quarrel are “two 

different concepts” and that victim-caused provocation is required for a heat of passion 

defense but not for a sudden quarrel defense. Defendant maintains that “ ‘sudden quarrel’ 

replaces provocation by the victim as a cause of the passion that can reduce a homicide 

from murder to manslaughter” and thus provocation should not be listed as an element of 

a sudden quarrel manslaughter defense. 

 Defendant did not raise this claim in the trial court and thus has forfeited it on 

appeal. Defendant did not object to CALCRIM No. 570 nor seek modification of the 

instruction. In closing argument to the jury, defendant claimed self-defense or voluntary 

manslaughter without differentiating, as he does on appeal, between heat of passion and 

sudden quarrel. 

 The claim also fails on the merits because it is based on a misunderstanding of 

voluntary manslaughter and the role of provocation. Voluntary manslaughter is properly 

defined by CALCRIM No. 570, which states in relevant part: “A killing that would 

otherwise be murder is reduced to voluntary manslaughter if the defendant killed 

someone because of a sudden quarrel or in the heat of passion. [¶] The defendant killed 

someone because of a sudden quarrel or in the heat of passion if: [¶] 1. The defendant 

was provoked; [¶] 2. As a result of the provocation, the defendant acted rashly and under 
11

the influence of intense emotion that obscured (his/her) reasoning or judgment; [¶] AND 

[¶] 3. 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. [¶] Heat of 

passion does not require anger, rage, or any specific emotion. It can be any violent or 

intense emotion that causes a person to act without due deliberation and reflection. [¶] In 

order for heat of passion to reduce a murder to voluntary manslaughter, the defendant 

must have acted under the direct and immediate influence of provocation as I have 

defined it. While no specific type of provocation is required, slight or remote provocation 

is not sufficient. Sufficient provocation may occur over a short or long period of time. 

[¶] It is not enough that the defendant simply was provoked. The defendant is not allowed 

to set up (his/her) own standard of conduct. You must decide whether the defendant was 

provoked and whether the provocation was sufficient. In deciding whether the 

provocation was sufficient, consider whether a person of average disposition, in the same 

situation and knowing the same facts, would have reacted from passion rather than from 

judgment.” 

 The instruction correctly states that provocation is an essential element of 

voluntary manslaughter. “An intentional, unlawful homicide is ‘upon a sudden quarrel or 

heat of passion’ (§ 192(a)), and is thus voluntary manslaughter (ibid.), if the killer’s 

reason was actually obscured as the result of a strong passion aroused by a ‘provocation’ 

sufficient to cause an ‘ “ordinary [person] of average disposition . . . to act rashly or 

without due and reflection, and from this passion rather than from judgment.” ’ ” (People 

v. Breverman (1998) 19 Cal.4th 142, 163.) Defendant misconstrues provocation as 

“victim-caused provocation” and, from that misconstruction, reasons that provocation is 

not required for a killing upon a sudden quarrel. In fact, legal provocation within the 

meaning of voluntary manslaughter is broader than victim-generated provocation and 

encompasses acts or circumstances that would “ ‘render an ordinary person of average 

disposition “liable to act rashly or without due deliberation and reflection, and from this 

passion rather than from judgment.” ’ ” (People v. Duff (2014) 58 Cal.4th 527, 562.) As 

CALCRIM No. 570 correctly states, “no specific type of provocation is required.” “Heat 
12

of passion does not require anger, rage, or any specific emotion. It can be any violent or 

intense emotion that causes a person to act without due deliberation and reflection.” 

(Ibid.) 

 It has long been recognized that a killing committed “in the heat of passion, 

excited by a quarrel, sudden, and of sufficient violence to amount to provocation” is 

manslaughter. (People v. Freel (1874) 48 Cal. 436, 437.) A sudden quarrel does not 

replace provocation as an element of the offense, as defendant claims, but is a type of 

provocation. (People v. Beltran (2013) 56 Cal.4th 935, 946.) The jury was properly 

instructed. 

3. The prosecutor misstated the law in her closing argument to the jury but the errors 

were not prejudicial. 

 Defendant contends the prosecutor committed misconduct during closing 

argument to the jury by misstating the law and referring to facts not in evidence. We 

discuss each claimed instance in turn. 

 Voluntary Manslaughter 

 The prosecutor discussed voluntary manslaughter extensively in her closing 

argument. She explained that the jurors had to decide if defendant “was provoked and 

you have to decide if you think that provocation was sufficient.” The prosecutor said 

“defendant is not allowed to set up his own standard of conduct for heat of passion or 

provocation” and offered the example of a gang member who identifies with one color 

who angrily and impulsively kills a person dressed in another color associated with a 

rival gang. The prosecutor said such a killing is based on an individual standard of 

conduct and is not manslaughter, which uses “a community standard.” She argued: “the 

idea behind manslaughter . . . is that we as a community all acknowledge that anyone in 

this circumstance would have had the same reaction.” Defense counsel objected that the 

argument misstated the law. The court overruled the objection and informed the jurors 

that attorneys are allowed to argue their view of the law but the jurors must follow the 

instructions given by the court. 
13

 Defendant contends the prosecutor misstated the law by implying that legally 

adequate provocation is found only if every person, even “saintly individuals,” would 

react rashly to a given situation when the correct standard requires only that a reasonable

person be provoked. Standing alone, the prosecutor’s reference to “anyone” is unclear 

and arguably capable of the interpretation defendant proffers. But the prosecutor soon 

clarified matters by explaining that the jury must decide “if a reasonable person would 

have been so impassioned in the same situation.” Judged as a whole, the prosecutor did 

not misstate the law and, if she did, any misstatement was slight, quickly corrected and 

unlikely to mislead the jury. “[A] court should not lightly infer that a prosecutor intends 

an ambiguous remark to have its most damaging meaning or that a jury, sitting through a 

lengthy exhortation, will draw that meaning from the plethora of less damaging 

interpretations.” (Donnelly v. DeChristoforo (1974) 416 U.S. 637, 647; accord People v. 

Tully (2012) 54 Cal.4th 952, 1048.) 

 Nor did the prosecutor misstate the law in arguing that a verdict of voluntary 

manslaughter requires a finding that the defendant acted from passion rather than from 

judgment. The prosecutor argued that defendant acted with conscious thought in 

removing Robert’s knife from Lesley’s carousel picture, folding the knife, confronting 

Robert, beating him, stabbing him, and fleeing the scene: “He is not so impassioned that 

he is not exercising judgment and flying off the handle.” Defendant claims the argument 

was improper because one may exercise judgment while acting in the heat of passion. 

Defendant is mistaken. One kills in a heat of passion if one “simply reacts from emotion 

due to the provocation, without deliberation or judgment.” (People v. Beltran, supra, 56 

Cal.4th at p. 950.) 

 Defendant is correct, however, in noting one misstatement in the prosecutor’s 

discussion of voluntary manslaughter. The prosecutor asked the jurors: “Would a 

reasonable person have been so impassioned that they would have killed in this situation? 

. . . We could expect you to be upset if you think someone is putting your girlfriend down 

and calling her bad names and scaring her. Would the reasonable person be so upset that 

they would kill? That’s for you to decide.” 
14

 The California Supreme Court has rejected the view that “provocation must be of 

a kind that would cause an ordinary person of average disposition to kill.” (People v. 

Beltran, supra, 56 Cal.4th at p. 938.) The court explained that “provocation is not 

evaluated by whether the average person would act in a certain way: to kill. Instead, the 

question is whether the average person would react in a certain way: with his reason and 

judgment obscured.” (Id. at p. 949.) 

 Defendant failed to object to the prosecutor’s misstatement of the law, thus 

forfeiting the issue on appeal. (People v. Najera (2006) 138 Cal.App.4th 212, 223.) 

Moreover, the error was harmless. Most of the prosecutor’s recitation of the law on 

manslaughter was correct and properly focused on the defendant’s state of mind. The jury 

was also properly instructed to direct its attention to determining whether “the defendant 

acted rashly and under the influence of intense emotion that obscured his reasoning or 

judgment.” (CALCRIM No. 570.) The court cautioned the jury that the prosecutor and 

defense counsel may argue their view of the law but that the jury must follow the court’s 

instructions. We presume the jury followed that instruction. (Najera, supra, at p. 224.) 

 Self-defense 

 The prosecutor addressed defendant’s claims of self-defense and imperfect selfdefense in closing argument to the jury. The prosecutor argued that Robert’s vandalism of 

Lesley’s picture was “mean” but that Robert presented no present physical danger to 

Lesley or defendant. The prosecutor maintained that defendant pursued Robert into the 

kitchen, attacked him by throwing him against the refrigerator, and proceeded to beat and 

stab him without any real or perceived threat from the far smaller Robert. The prosecutor 

said self-defense and imperfect self-defense “cannot be contrived, it does not apply to the 

aggressor. If you do indeed find that the defendant in seeking out Mr. Shaner and 

throwing him against the refrigerator, is the aggressor in this situation, self-defense 

doesn’t apply and imperfect self-defense doesn’t apply. They are both off the table.” 

 Defendant contends the prosecutor misrepresented the law of self-defense. The 

contention is forfeited for failure to object in the trial court and, in any event, is meritless. 

The prosecutor correctly stated the law. As the jury was instructed, “The right to use 
15

force in self-defense or defense of another continues only as long as the danger exists or 

reasonably appears to exist. When the attacker withdraws or no longer appears capable of 

inflicting any injury, then the right to use force ends.” (CALCRIM No. 3474.) Also, “A 

person does not have the right to self-defense or defense of others if he or she provokes a 

fight or quarrel with the intent to create an excuse to use force.” (CALCRIM No. 3472.) 

By statute, one may not claim self-defense if one was the aggressor absent an effort “to 

decline any further struggle before the homicide was committed.” (§ 197, subd. (3).) The 

prosecutor did not misrepresent the law in referring to this well-established principle. 

Food Stamp Application 

 Defendant claims the prosecutor referred to facts not in evidence in discussing an 

exhibit that was marked in evidence but not admitted. The exhibit was, in fact, admitted 

in evidence and thus a proper subject of closing argument. 

 At issue is People’s exhibit 48, which is a packet of papers found at defendant’s 

home with his name on them used as indicia of residency. Among the papers is a food 

stamp application defendant signed a week before the stabbing in which defendant 

declared, under penalty of perjury, that he had no income. The prosecutor noted that 

defendant told the police he was working and argued that defendant lied either to the 

police or to the welfare agency, showing defendant to have “an honesty problem.” The 

prosecutor proceeded to question the truthfulness of defendant’s other assertions to the 

police. 

 Defendant contends the referenced exhibit was not admitted in evidence. The 

exhibit list, however, shows the evidence as both marked for identification and admitted 

on March 23, 2012, during witness testimony. Defendant says the exhibit list is in error 

and points to the trial judge’s statement, recorded in the reporter’s transcript for that day, 

deferring a ruling on admissibility. Defendant overlooks the possibility that a ruling was 

made later that was not transcribed by the court reporter. We note that the court, on 

March 26, 2002, said the exhibit had been admitted “after the cross.” 

 Even if defendant is correct and the exhibit was not admitted on the day indicated 

in the exhibit list, it was certainly admitted before the prosecutor referenced it in closing 
16

argument. When the prosecutor began to discuss the exhibit, defense counsel objected 

and a discussion between court and counsel was held off the record. A record of the 

objection was later made outside the presence of the jury. In objecting, defense counsel 

said he did not think the exhibit had been admitted and questioned its relevancy. The 

court said the exhibit was admitted and overruled the objection. If the document had not 

been admitted previously, it was admitted during closing argument, before the prosecutor 

commented upon it. 

 Defendant’s credibility 

 The prosecutor returned to the issue of defendant’s credibility in her rebuttal. The 

prosecutor quoted a portion of CALCRIM No. 226: “If you decide that a witness 

deliberately lied about something significant in this case, you should consider not 

believing anything that witness says.” The prosecutor remarked: “This is an important 

principle. It applies not only to the defendant’s statement, but it applies to any other 

witnesses.” Defense counsel objected and, following a discussion at the bench, the 

objection was overruled. The prosecutor continued her argument: “So ultimately, ladies 

and gentlemen, you are going to be the judges of credibility of everybody that testified, 

and even of the defendant when you look at his statement.” 

 The prosecutor erred by including defendant’s police statement within the ambit of 

CALCRIM No. 226, which is concerned with witnesses who testify under oath. But we 

reject defendant’s contention that the error was prejudicial. The jury was called upon to 

evaluate the credibility of defendant and trial witnesses alike. The jurors were instructed 

to determine if there were conflicts in the evidence and to “decide what evidence, if any, 

to believe.” (CALCRIM No. 302.) The jurors were also instructed that if defendant 

“made a false or misleading statement before this trial relating to the charged crime, 

knowing the statement was false or intending to mislead, that conduct may show he was 

aware of his guilt of the crime and you may consider it in determining his guilt.” 

(CALCRIM No. 362.) 

 Defendant argues that CALCRIM No. 226 encourages the jury to disregard the 

entire testimony of a witness who lied about one thing and, in invoking that instruction, 
17

the prosecutor subjected defendant’s police statement to an exacting standard that should 

not apply to unsworn statements. CALCRIM No. 226 is not as exacting as defendant 

represents. The instruction does provide, as the prosecutor noted: “If you decide that a 

witness deliberately lied about something significant in this case, you should consider not 

believing anything that witness says.” (CALCRIM No. 226.) But the instruction also 

provides: “[I]f you think the witness lied about some things, but told the truth about 

others, you may simply accept the part that you think is true and ignore the rest.” 

(CALCRIM No. 226.) The instruction did not relieve the jury of its obligation to evaluate 

the credibility of defendant’s various statements to the police, both exculpatory and 

inculpatory. 

4. The trial court did not err in removing a juror during deliberations upon learning the 

juror concealed material information on voir dire. 

 Defendant contends the trial court violated his right to due process by removing a 

juror during deliberations. The Attorney General maintains that removal was proper 

because the juror concealed material facts during voir dire that raised an inference of 

bias. 

 Facts 

 On the second day of deliberations, the foreperson sent a note to the judge 

complaining that two jurors were not following instructions. The judge questioned the 

foreperson with the prosecutor and defense counsel present. The foreperson said she and 

about six other jurors were concerned that Jurors Nos. 36 and 92 were speculating and 

not focusing on the instructions. The court questioned both jurors. Relevant here is Juror 

No. 36. The court asked Juror No. 36 if she had any concerns with the instruction 

requiring her “not to speculate or consider things that are not in the record” and she said 

“no.” The court noted that a murder case can affect people emotionally and asked if the 

case was “tough” for her. Juror No. 36 replied: “No, I’m fine with it. I’ve been around a 

lot, so it’s – you know, I’ve experienced a lot of stuff so it’s not bothering me 

emotionally or mentally or anything.” The judge advised her, “we all have our life 

experiences . . . [b]ut . . . you can’t bring in thoughts of what you’ve experienced in life 
18

and apply it as evidence.” The juror said she understood. The court saw no cause to 

excuse Juror No. 36 and deliberations resumed. 

 Juror No. 36’s comment about experiencing “a lot of stuff” led the prosecutor to 

investigate. The next day, the prosecutor told the court the juror had arrests for domestic 

violence and other criminal offenses that the juror concealed during voir dire. A jury 

questionnaire asked several questions about the prospective jurors’ personal experiences 

with crime: “Have you[,] a family member[,] or household member or close friend ever 

been a victim, witness, or defendant in a criminal matter?”; “Have you or any of your 

immediate family members or close friends ever been a victim of a serious physical 

assault?”; and “Have you or any of your immediate family members or close friends ever 

been a suspect or charged with a crime?” Juror No. 36 answered “no” to each question. 

 In fact, the juror had been arrested in September 2009 for infliction of personal 

injury on a spouse. (§ 273.5, subd. (a)) The arresting agency was the same as the 

investigating agency in the present case. The prosecutor in the present case had 

“personally reviewed” the file and charged Juror No. 36 with four criminal counts, 

including assault with a deadly weapon. (§ 245, subd. (a)(1).) The prosecutor had not 

recalled during voir dire that she had filed a criminal complaint against the juror. Juror 

No. 36 had been referred to the public defender and appeared in court on the 2009 

incident. The case was ultimately dismissed but a restraining order remained in effect at 

the time of defendant’s trial. The juror had also been arrested, but not convicted, in 2004 

for domestic violence and in the 1990s for drunk driving and driving with a suspended 

license. 

 The court questioned Juror No. 36. The court said the juror’s comments led it to 

check the files, where it was discovered she had been arrested for domestic violence.The 

court asked Juror No. 36 why she said “no” when asked on the juror questionnaire if she 

had ever been charged with a crime. The juror replied, “Okay. Um, are you under the 

impression that I was involved in something? Because when I went to court for that it 

was dismissed so I was under the assumption that, you know, that was beside me and no 

longer a question of — because it was dismissed.” The juror further explained that the 
19

2009 arrest involved an “accident” with her ex-husband. The juror did not remember who 

the Deputy District Attorney was on the case. The court asked Juror No. 36 if she had 

other arrests for domestic violence and she said, “Um, no. Not that I recall ever” but also 

said “I had a very rocky marriage for a long time.” The court asked “How about in 

2004?” and the juror, at first, said he did not remember being arrested but then said her 

husband called the police because she threw a salt shaker at him. The court asked Juror 

No. 36 if the arrests and allegations against her were influencing her process as a juror. 

The juror said “Absolutely not.” 

 The court asked if a weapon was involved in the 2009 incident. The juror said a 

knife was involved. Asked to explain, the juror gave a long description of her relationship 

with her husband then said: “one morning I got up and he was sleeping on the couch and 

he had been very, very, very nasty, cutting me with words like a knife, and I got a knife 

out and said, ‘Good morning, son of a bitch.’ He woke up and hit the knife and cut 

himself. Then he calls the cops and made a big scene and everything, but it was truly an 

accident.” The juror said, “I’m not a violent person — I did not thrust the knife at him in 

a stabbing manner, so it was just something like that.” 

 The prosecutor asked the court to remove Juror No. 36. The prosecutor said “We 

had many discussions with the panel about domestic violence and those sorts of things 

and none of this was brought up. It was like it didn’t exist. And then to hear her say . . . 

that she stabbed him with a knife but she didn’t thrust the knife at him . . . in a stabbing 

manner, it was an accident, it sounds like such a similar issue as to what’s at issue in this 

case that I can tell the court that had we had truthful answers . . . the People would have 

sought to excuse her for cause. And we find that her failure to tell the truth on the 

questionnaire is very problematic.” The prosecutor said Juror No. 36 falsely answered no 

to multiple questions, including the question “Have you or anyone in your household ever 

owned, carried or used a knife as a weapon?” 

 Defense counsel said the juror had not been deliberately evasive but mistakenly 

thought that dismissed charges were “water under the bridge” that did not have to be 

reported on the juror questionnaire. As for the knife, counsel noted that Juror No. 36 said 
20

she accidentally cut her husband. Defense counsel argued that the “bottom line is whether 

she can deliberate what’s in front of her” and the juror indicated she could. 

 The court removed Juror No. 36 and replaced her with an alternate. The court 

explained the basis for its decision: “I watched her carefully while we were talking and I 

noted a number of things. One, she was speaking very fast and I was trying to interact 

with her and she wouldn’t really let me get in on some of my comments to her. She tells a 

big story. I also consider the previous comments by the jury foreperson about her 

conduct. And in listening to her story it sounds vaguely familiar. An incident involving 

domestic violence with her spouse where her spouse was apparently not a very good 

person in her mind. A knife comes out. A knife is used. He’s cut. This has so much 

similarity to our case here that I don’t see how it cannot affect her ability to be fair. And 

honestly, after looking at her responses to the questions and her explanation, she didn’t 

really explain, well, how she could misunderstand [questions asking about criminal] 

charges . . . or [being a] suspect in a criminal matter when she had been arrested twice on 

domestic violence matters. I do believe that she was untruthful in her response.” 

 Discussion 

 “The trial court may discharge a juror for good cause at any time, including during 

deliberations, if the court finds that the juror is unable to perform his or her duty. 

(§ 1089.) ‘When a court is informed of allegations which, if proven true, would constitute 

good cause for a juror’s removal, a hearing is required. [Citations.] [Citation.] If the trial 

court has good cause to doubt a juror’s ability to perform his duties, the court’s failure to 

conduct a hearing may constitute an abuse of discretion on review. [Citations.] ‘Grounds 

for investigation or discharge of a juror may be established by his statements or conduct, 

including events which occur during jury deliberations and are reported by fellow 

panelists.’ ” (People v. Lomax (2010) 49 Cal.4th 530, 588.) 

 “Although decisions to investigate juror misconduct and to discharge a juror are 

matters within the trial court’s discretion [citation], we have concluded ‘a somewhat 

stronger showing’ than is typical for abuse of discretion review must be made to support 

such decisions on appeal.” (People v. Lomax, supra, 49 Cal.4th at p. 589.) The California 
21

Supreme Court has held that “the basis for a juror’s disqualification must appear on the 

record as a ‘demonstrable reality.’ This standard involves ‘a more comprehensive and 

less deferential review’ than simply determining whether any substantial evidence in the 

record supports the trial court’s decision. [Citation.] It must appear ‘that the court as trier 

of fact did rely on evidence that, in light of the entire record, supports its conclusion that 

bias was established.’ [Citation.] However, in applying the demonstrable reality test, we 

do not reweigh the evidence. [Citation.] The inquiry is whether ‘the trial court’s 

conclusion is manifestly supported by evidence on which the court actually relied.’ ” 

(Ibid.) 

 The evidence fully supports the juror’s removal. “ ‘[I]ntentional concealment of 

material information by a potential juror may constitute implied bias justifying his or her 

disqualification or removal.’ ” (People v. San Nicolas (2004) 34 Cal.4th 614, 644.) The 

trial court reasonably concluded that Juror No. 36’s failure to disclose her arrests for 

domestic violence was intentional given multiple questions on the subject and her 

unequivocal denials. In finding intentional concealment, the trial court noted that Juror 

No. 36 wrote “Don’t understand” on the juror questionnaire when responding to some 

questions yet expressed no lack of understanding when answering “no” to questions 

asking if she had ever been a defendant in a criminal matter or charged with a crime. The 

court concluded that the juror’s responses were deliberate misrepresentations, not 

inadvertent errors caused by misunderstanding the questions. “ ‘Whether a failure to 

disclose is intentional or unintentional and whether a juror is biased in this regard are 

matters within the discretion of the trial court. . . . . [T]he trial judge is in the best position 

to assess the state of mind of a juror or potential juror on voir dire examination.’ ” (Ibid.) 

 The evidence also supports the trial court’s finding that the concealed information 

was material to the case. Juror No. 36 had been twice arrested for domestic violence, 

including an incident involving use of a knife. Domestic violence was a central issue in 

the case being tried, as was use of a knife by one claiming accidental infliction of injury. 

The court found the incident involving Juror No. 36 shared “so much similarity to our 

case here that I don’t see how it cannot affect her ability to be fair.” A proper basis for 
22

removing the juror “appear[s] on the record as a ‘demonstrable reality.’ ” (People v. 

Lomax, supra, 49 Cal.4th at p. 589.) 

 Defendant maintains that Juror No. 36 was discharged because she may have been 

holding out for acquittal. The discharge of a holdout juror raises special concerns because 

“ ‘a unanimous criminal verdict is an important safeguard [that] rests on the premise that 

each individual juror must exercise his or her own judgment in evaluating the case.’ ” 

(People v. Harrison (2013) 213 Cal.App.4th 1373, 1382.) These concerns do not arise 

here because Juror No. 36 was not a holdout juror and her evaluation of the case played 

no role in the decision to remove her from the jury. The investigation of Juror No. 36 

occurred early in the deliberation process and was prompted by the foreperson’s 

complaint that two jurors were not following the law as instructed by the judge. No 

deadlock in the jury’s deliberations was reported and the individual jurors’ views on the 

merits of the case were never revealed. Juror No. 36’s removal was not based on her 

position on the merits, which was unknown to court and counsel. Nor was her removal 

based on the complaints of some of her fellow jurors that she was not following the 

court’s instructions. Defendant suggests that such complaints may derive from 

disagreement on the merits of the case and thus provide weak support for juror removal. 

(United States v. Symington (9th Cir. 1999) 195 F.3d 1080, 1088.) In this case, 

complaints that Juror No. 36 was not following instructions initiated an investigation but 

those complaints were not the basis for removal. Juror No. 36 was removed because 

further investigation disclosed the juror intentionally concealed material information 

during voir dire. The impetus for Juror No. 36’s removal came from misrepresentations 

she made during voir dire, not from her position on the merits of the case. Federal 

authority criticizing the removal of a juror where it is “reasonably possible that the 

impetus for . . . dismissal came from her position on the merits of the case” is thus 

inapplicable. (Ibid.) Juror removal was proper. 
23

Disposition 

 The judgment is affirmed. 

 _________________________ 

 Pollak, J. 

We concur: 

_________________________ 

McGuiness, P. J. 

_________________________ 

Siggins, J.