1 Filed 5/15/14 P. v. Griffin CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 murd er and an additional one year for weapon use. Defendant appeals his conviction on several grounds. He claims (1) the c ourt 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 closi ng argument to the jury by misstating the law and referring to facts not in evidence; and (4) th e court erred in disc harging a deliberating juror for misrepresentations made during vo ir dire. We shall affirm the judgment.
Statement of Facts It is undisputed that defendant killed Robe rt Shaner by stabbing him with a knife. Defendant claimed the killing was justified as self-defen se or defense of another.

1 All further section references are to the Penal Code unless otherwise noted.2 Alternatively, defendant claimed the killin g was voluntary manslaug hter as imperfect
self-defense or because it occu rred in the heat of passion or upon a sudd en quarrel.

The Parties
Robert Shaner was the estranged husband of Lesley Shaner, whom defendant was dating. 2 Robert and Lesley had a tumultuous fi ve-year marriage. Robert suffered from mental illness and physically abused Lesley on multiple occasions. They separated in January 2010. Robert moved ou t of the couple’s house to live with a friend. Lesley started dating defendant, whom she knew fr om childhood. Defendant had also been a friend of Lesley’s brother wh o 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 pr otector 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,” Robertreplied: “I don’t know that he’s a Hell’s Angels, but he’s a biker and he’s a really ni ce guy.” The two men “always talked and got along” according to Lesley.
The Stabbing
On March 10, 2010, Robert asked to st ay 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 a busive behavior and telephone d 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 follo wing 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 wa s at the Concord house and was leaving shortly to visit his brother in Alamo. About 30 minutes later, Robert stumbled to his next door neigh bor’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 conditi on.” “[H]e had blood a ll 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 larg e 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 ju ry. Brown told the 911 operator, “I have a neighbo r 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 aske d 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 th e 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 offi cer himself and lost consciousness before the paramedics arrived. The paramedics trie d to revive Robert without success.
The Autopsy
A forensic pathologist testified at trial th at 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 cav ity from the rear. The knife entered horizontally between the sixth and seventh ri bs, punctured the left lung and caused extensive internal bleeding. Robert also suffered additional injuri es. 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 th rough some of the muscle.” On crossexamination, the pathologist conceded th e possibility that one could suffer hand4 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 a nd “appeared to be deviated a little to the left.”The pathologist said Robert suffered at least four forceful blows to the fa ce 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 “consis tent with fingertips putting pressure on the neck.” There was bleeding under the skin on each side of th e neck and on the surface of the larynx, which were injuries the patholog ist 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 po lice found a blood-staine d fixed blade, K-bar brand “military-type knife” in a sheath on the car’s front fl oorboard, partially covered
with a black leather vest. The sheath had a lo op 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 “M otorcycle Clubs Are Not Street Gangs.” Defendant was wearing a shirt w ith the number 81 on it that said “Support your local red and white.” A police officer tes tified that the shirt was aff iliated with the Hell’s Angels.
Defendant had “one bleedi ng 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 w ithout injury and unmarked.5 Defendant is six feet one inch tall a nd 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 vide otaped and portions of the interview were admitted in evidence and viewed by th e jury. Defendant did not testify at trial. Defendant told the police that Robert wa s 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 Lesl ey. 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 outsi de to get defendant because Robert stuck a
knife in the wall. Defendant went in the hous e and saw a pocket knife stuck into Lesley’s carousel picture hanging on the bedroom wall. 3 Defendant gave changing acc ounts of the events that followed. Initially, defendant said Robert put a K-Bar knife to Lesley’s thro at 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 fuckin g lied” in “trying to save my ass.” The police asked
defendant “what r eally happened.”
Defendant admitted that Robe rt did not put a knife to Le sley’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 “t hrew 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 defendan t’s knife or the knife fell out of its sheath. The men fought for control of the knife. Defe ndant said he gained control of the knife and Robert immediately ran ou t the door. Defendant said if Robert was stabbed, it happened accidentally during the fight for the knife. The police to ld defendant Robert
was dead and defendant needed to tell the truth. Defendant denied stabbing Robert and
said Robert fell on the knife. After additional questioni ng, defendant admitted thr eatening Robert with the
knife. Defendant continued to claim the me n wrestled and fought over a dropped knife but now admitted gaining control of the knife and gesturing w ith it to make Robert back away. Defendant said he was “trying to prob e” Robert by poking the knife toward him to get him to “back the fu ck off.” Defendant said Robert fa iled 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. Mayb e so far.” Defendant said th e 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 intim idate him to get the fu ck out of there.” The police asked defendant if he punched Robert during the alte rcation and defendant said “one time,” in the left eye. When he was videotaped, defendant de picted the stabbing by holding an imaginary knife in a vertical position. Inve stigation revealed the stabbing wound to be horizontal. A police officer confronted defend ant with this fact after the videotaped interview and defendant said he may have brought the knife arou nd to the horizontal.
Lesley’s trial testimony
Lesley testified about Robert’s pervasiv e physical abuse of her and defendant’s knowledge of that abuse. On one occasion, Ro bert held a gun to her head. Another time,
he held a knife to her throatand threatened to kill her. On the day of the stabbing, Robert beca me agitated, argued with her and stabbed a picture on the bedroom wall. The picture was the last birthday pres ent she received from7 her father who died when sh e 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 hi m Robert stabbed the picture and she was “scared for [her] lif e.” 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 defen dant was associated w ith the Hell’s Angels was admissible to show the victim’s state of mind during his alterc ation with defendant. Moreover, any error in admitti ng the evidence or related evidence connecting defendant with the Hell’s Angels was not prejudicial. Defendant contends the tria l 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 ‘prote ctor.’ ” The prosecution opposed the motion, arguing the evidence relevant to Robert’s stat e of mind and thus his likely response to defendant’s attack. The prosecu tor also maintained “the fa ct that the defendant held himself out [as Lesley’s] Hell’s Angels protec tor before this incide nt goes to his motive and intent, for he apparently felt duty bou nd to eliminate Robert Shaner from Lesley
Shaner’s life for her future sa fety.” The court denied the motion, finding the evidence relevant to Robert’s state of mind, de fendant’s position as a protector, and the
identification of the defenda nt 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 show s 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 his8 girlfriend’s estranged husband during a domestic altercation, not to further the purposes of the Hell’s Angels. The Attorney General argue s that evidence of defendant ’s connection to the Hell’s Angels was relevant to prove the identity of the stabber, noti ng 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 th e Hell’s Angels superfluous on the issue of identity. Mo reover, defendant admitted stabbing Robert. Identity was never at
issue. The Attorney General asserts that de fendant 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 asserti on. Defendant was not a “gang-designated ‘protector.’ ” The evidence es tablished only that Lesley’s dying brother — who had no ties to the Hell’s Angels — aske d defendant to take care of Lesley, whom defendant had
known since childhood. Nevertheless, the Hell’s Angels eviden ce was relevant for one of the reasons offered by the Attorney Genera l: to prove Robert believed de fendant was asso ciated with the Hell’s Angels and would have been fearfu l of initiating or escalating a fight with a motorcycle club associate, contrary to de fendant’s police account. Defendant argues that for this purpose the evidence was “only tangen tially relevant” and its scant relevance was outweighed by the prejudicial impact of suggesting gang affiliation. Gang affiliation “ ‘may have a highly inflammatory impa ct on the jury’ ” and thus trial courts “ ‘should carefully scrutinize such evidence befo re 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 ru ling on whether evidence is9 relevant, not unduly prejudicial , and thus admissible.” ( People v. McKinnon, supra, 52 Cal.4th at p. 655.) We cannot say the tria l 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 oper ator. Defendant’s claim of self-defense put at issue Robert’s conduct and his likely reacti on to the altercation. We do have concerns, however, about the extent of the evidence admitted. While R obert’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. Th e 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 purpos e 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 ev idence of defendant’s guilt independent of the Hell’s Angels evidence. There was essen tially uncontradicted ev idence of a savage beating and intentional stabbing wholly inc onsistent with defendant ’s account. Defendant claimed he punched Robert “o ne time” and accidentally st abbed Robert when Robert “pivoted” into the knife defenda nt 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, hi s eyes were red and sw ollen, he had gashes in his face, he had marks on hi s neck, he had a large gash . . . [to] his right hand, and he was generally beat up all over.” The autops y confirmed the nei ghbor’s observations, finding that Robert had been strangled, rep eatedly punched in the face with great force, and suffered deep cuts to his hand characte ristic of defensive wounds incurred by a10 person resisting knife thrusts. The fatal inju ry could not have been incurred by Robert turning into a knife held stationary in defe ndant’s hand. The knife went into Robert’s back and penetrated four inch es. 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 defe ndant’s connection to the Hell’s Angels was
harmless.

2. The standard jury instruction on voluntar y manslaughter correc tly 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 h eat of passion and sudden quarrel are “two different concepts” and that victim-caused pr ovocation 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 cau se of the passion that can reduce a homicide from murder to manslaughter” and thus provoca tion should not be liste d as an element of a sudden quarrel manslaughter defense.
Defendant did not raise th is claim in the trial court and thus has forfeited it on appeal. Defendant did not obj ect to CALCRIM No. 570 nor seek modification of the instruction. In closing argumen t 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 becau se it is based on a misunderstanding of voluntary manslaughter and the role of provoc ation. Voluntary mans laughter is properly defined by CALCRIM No. 570, which states in relevant part: “A killing that would
otherwise be murder is reduced to volunt ary 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 pa ssion if: [¶] 1. The defendant was provoked; [¶] 2. As a result of the provo cation, the defendant acted rashly and under11 the influence of intense emotion that obscu red (his/her) reasoning or judgment; [¶] AND [¶] 3. The provocation would have caused a person of average disposition to act rashly and without due deliberation, th at is, from passion rather than from judgment. [¶] Heat of passion does not require anger, rage, or any sp ecific emotion. It can be any violent or intense emotion that causes a person to act w ithout due deliberation and reflection. [¶] In order for heat of passion to reduce a murd er to voluntary manslaughter, the defendant
must have acted under the direct and imme diate influence of provocation as I have defined it. While no specific type of provocati on 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, unlawfu l 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 di sposition . . . 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.) Defe ndant misconstrues provocation as “victim-caused provocation” and, from that mi sconstruction, reasons that provocation is not required for a killing upon a sudden quarrel. In fact, legal provocation within the meaning of voluntary manslaught er is broader than victim-generated provocation and encompasses acts or circumstances that woul d “ ‘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 specif ic type of provocation is required.” “Heat12 of passion does not require anger, rage, or any specific emoti on. 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 k illing committed “in the heat of passion, excited by a quarrel, sudden, and of sufficien t 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 offens e, 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 cl osing argument to the jury but the errors were not prejudicial. Defendant contends the prosecutor committed misconduct during closing argument to the jury by misst ating the law and referring to facts not in evidence. We
discuss each claimed instance in turn. Voluntary Manslaughter The prosecutor discussed voluntary ma nslaughter extensively in her closing argument. She explained that the jurors had to decide if defendant “was provoked and you have to decide if you th ink that provocation was suffi cient.” 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 ga ng 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 killin g 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 acknowl edge that anyone in
this circumstance would have had the same reaction.” Defense counsel objected that the argument misstated the law. The court overru led the objection and in formed the jurors that attorneys are allowed to argue their view of the law but the jurors mu st follow the instructions given by the court.13 Defendant contends the pr osecutor misstated the law by implying that legally adequate provocatio n is found only if every person, even “saintly individuals,” would react rashly to a given situ ation when the correct sta ndard requires only that a reasonable person be provoked. Standing alone, the prosec utor’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 situati on.” Judged as a whole, the prosecutor did not misstate the law and, if she did, any mi sstatement 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 m eaning 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 de fendant acted from passion rather than from judgment. The prosecutor argued that de fendant acted with conscious thought in removing Robert’s knife from Lesley’s carous el 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.” De fendant claims the argument was improper because one may exercise judgm ent while acting in the heat of passion.
Defendant is mistaken. One kills in a heat of passion if one “simpl y reacts from emotion due to the provocation, withou t 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 mans laughter. 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 sc aring her. Would the reasonabl e 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 kil l.” ( People v. Beltran, supra, 56 Cal.4th at p. 938.) The court explained that “provocation is not evaluated by whether the averag e person would act in a certain way: to kill. Instead, the question is whether the average person would r eact in a certain way: with his reason and judgment obscured.” ( Id. at p. 949.) Defendant failed to object to the prosec utor’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 a ttention to determining whether “the defendant acted rashly and under the influence of inte nse 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 la w but that the jury mu st follow the court’s instructions. We presume the jury followed that instruction. (Najera, supra, at p. 224.)
Self-defense The prosecutor addressed defendant’s clai ms 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 maintain ed that defendant pursued Robert into the kitchen, attacked him by throwing him agains t 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 situ ation, self-defense doesn’t apply and imperfect self-defense doesn ’t apply. They are both off the table.” Defendant contends the prosecutor misr epresented the law of self-defense. The
contention is forfeited for failure to object in the trial court a nd, in any event, is meritless. The prosecutor correctly stated the law. As the jury was in structed, “The right to use15 force in self-defense or defense of another co ntinues only as long as the danger exists or reasonably appears to exist. Wh en the attacker withdraws or no longer appears capable of inflicting any injury, then th e right to use force ends.” (CALCRIM No. 3474.) Also, “A person does not have the right to self-defense or defense of ot hers 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 homic ide was committed.” (§ 197, subd. (3).) The prosecutor did not misrepresent the law in re ferring 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 ev idence but not admitted. The e xhibit 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 perj ury, 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 de fendant to have “an honesty problem.” The prosecutor proceeded to question the truthfulness of defenda nt’s other assertions to the police.
Defendant contends the re ferenced exhibit was not admitted in evidence. The exhibit list, however, shows th e evidence as both marked fo r identification and admitted on March 23, 2012, during witness testimony. De fendant says the exhibit list is in error and points to the trial judge’s st atement, recorded in the reporte r’s transcript for that day, deferring a ruling on admissib ility. Defendant overlooks the po ssibility 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 ha d been admitted “after the cross.”
Even if defendant is correct and the ex hibit was not admitted on the day indicated in the exhibit list, it was certainly admitted be fore the prosecutor referenced it in closing16 argument. When the prosecutor began to disc uss the exhibit, defense counsel objected
and a discussion between court and counsel was held off th e record. A record of the objection was later made outside the presence of the jury. In objec ting, defense counsel
said he did not think the e xhibit had been admitted and que stioned its relevancy. The
court said the exhibit was admitted and ove rruled the objection. If the document had not been admitted previously, it was admitted duri ng closing argument, be fore the prosecutor commented upon it. Defendant’s credibility The prosecutor returned to the issue of defendant’s cr edibility 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 defenda nt’s statement, but it applies to any other witnesses.” Defense counsel objected and, following a discussion at the bench, the objection was overruled. The pr osecutor continued her argum ent: “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 defenda nt’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 ju rors were instructed
to determine if there were conflicts in the ev idence and to “decide wh at evidence, if any, to believe.” (CALCRIM No. 302. ) The jurors were also inst ructed 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 ma y 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 stat ement 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 signif icant in this case, you should consider not believing anything that witness says.” (C ALCRIM No. 226.) But th e instruction also provides: “[I]f you think the witness lied abou t some things, but to ld the truth about others, you may simply accept the part that you think is true and ignore the rest.” (CALCRIM No. 226.) The instruc tion did not relieve the jury of its obligation to evaluate the credibility of defendant’s various statem ents 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 tria l court violated his right to due process by removing a juror during deliberations. The Attorney General mainta ins that removal was proper because the juror conceal ed material facts during voir dire that raised an inference of
bias.
Facts On the second day of deliberations, th e foreperson sent a note to the judge complaining that two jurors were not following instructi ons. The judge questioned the foreperson with the prosecutor and defense co unsel 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 qu estioned both jurors. Relevant here is Juror
No. 36. The court asked Juror No. 36 if sh e had any concerns with the instruction requiring her “not to speculate or consider th ings that are not in th e record” and she said
“no.” The court noted that a murder case ca n 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.” Th e judge advised her, “we all have our life experiences . . . [b]ut . . . you can’t bring in thoughts of what you’ve experienced in life18 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 comme nt about experiencing “a lot of stuff” led the prosecutor to investigate. The next day, the prosecutor to ld 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 th e prospective jurors’ personal experiences with crime: “Have you[,] a fa mily member[,] or household memb er or close friend ever been a victim, witness, or de fendant in a criminal matter?”; “Have you or any of your immediate family members or close friends ev er been a victim of a serious physical assault?”; and “Have you or an y of your immediate family members or close friends ever been a suspect or charged with a crime?” Juror No. 36 answ ered “no” to each question. In fact, the juror had been arrested in September 2009 for in fliction of personal injury on a spou se. (§ 273.5, subd. (a)) The arres ting 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 dead ly weapon. (§ 245, subd. (a )(1).) The prosecutor had not recalled during voir dire that she had filed a criminal complaint ag ainst 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 or der remained in effect at
the time of defendant’s trial. The juror had also been arrest ed, but not convicted, in 2004
for domestic violence and in the 1990s for drunk driving a nd driving with a suspended
license. The court questioned Juror No. 36. The co urt said the juror’s comments led it to check the files, where it was discovered she ha d been arrested for domestic violence.The court asked Juror No. 36 why sh e said “no” when asked on th e 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? Becau se when I went to court for that it was dismissed so I was under the assumption th at, you know, that was beside me and no longer a question of — because it was dismis sed.” The juror further explained that the19 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 lo ng time.” The court asked “How about in 2004?” and the juror, at first, said he did not remember bei ng 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 he r process as a juror. The juror said “Absolutely not.” The court asked if a weapon was involved in the 2009 incide nt. The juror said a knife was involved. Asked to explain, the juro r gave a long descripti on 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 bitc h.’ 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 pe rson — I did not thrust the knife at him in a stabbing manner, so it was ju st something like that.” The prosecutor asked the court to remove Juror No. 36. The pr osecutor said “We had many discussions with the panel about do mestic 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’tthrust the knife at him . . . in a stabbing manner, it was an accident, it sounds like such a si milar issue as to what ’s at issue in this
case that I can tell the court th at had we had truthful answers . . . the People would have sought to excuse her for cau se. And we find that her fail ure to tell the truth on the questionnaire is very problematic.” The prosec utor said Juror No. 36 falsely answered no to multiple questions, including the question “H ave 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 questionnai re. As for the knife, counsel not ed that Juror No. 36 said20 she accidentally cut her husband. Defense counsel argued that the “ bottom line is whether
she can deliberate what’s in front of he r” and the juror indicated she could. The court removed Juror No. 36 and repl aced her with an alternate. The court explained the basis for its decision: “I watche d her carefully while we were talking and I noted a number of things. One, she was speaki ng 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 knif e 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 a nd her explanation, she didn’t really explain, well, how she could misunde rstand [questions asking about criminal] charges . . . or [being a] susp ect in a criminal matter when sh e had been arrested twice on
domestic violence matters. I do believe th at she was untruthful in her response.”
Discussion “The trial court may discharge a juror fo r good cause at any time, including during deliberations, if the court finds that the ju ror is unable to perform his or her duty. (§ 1089.) ‘When a court is info rmed 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 inve stigate juror misconduct an d 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 California21 Supreme Court has held that “the basis for a juror’s disqualification must appear on the
record as a ‘demonstrable rea lity.’ This standard involves ‘a more comprehensive and
less deferential review’ than simply determining whether a ny substantial evidence in the record supports the trial court’s decision. [Cita tion.] It must appear ‘t hat the court as trier
of fact did rely on evidence that, in light of the en tire 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 evid ence on which the court actually relied.’ ” ( Ibid. ) The evidence fully supports the juror’s removal. “ ‘[I ]ntentional concealment of material information by a pote ntial juror may constitute implie d 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 mu ltiple questions on the subject and her unequivocal denials. In finding intentional co ncealment, the trial c ourt noted that Juror No. 36 wrote “Don’t understand” on the juror questionnaire when responding to some questions yet expressed no lack of unders tanding when answering “no” to questions asking if she had ever been a defendant in a cr iminal matter or charged with a crime. The court concluded that the juror’s response s were deliberate misrepresentations, not inadvertent errors caused by misunderstandin g the questions. “ ‘Whether a failure to
disclose is intentional or unintentional and wh ether 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 po tential juror on voir di re examination.’ ” ( Ibid. ) The evidence also supports the trial cour t’s finding that the concealed information
was material to the case. Ju ror No. 36 had been twice a rrested for domestic violence, including an incident involving use of a knife . Domestic violence wa s 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 for22 removing the juror “appear[s] on the re cord as a ‘demonstrable reality.’ ” ( People v. Lomax, supra, 49 Cal.4th at p. 589.)
Defendant maintains that Ju ror No. 36 was discharged because she may have been holding out for acquittal. The discharge of a hol dout juror raises special concerns because
“ ‘a unanimous criminal verdic t is an important safeguard [t hat] rests on the premise that each individual juror must exer cise his or her own judgment in evaluating the case.’ ” ( People v. Harrison (2013) 213 Cal.App.4th 1373, 1382.) These conc erns do not arise
here because Juror No. 36 was not a holdout juror and her eval uation of the case played
no role in the decision to remove her from the jury. The investig ation of Juror No. 36 occurred early in the deliberation proce ss and was prompted by the foreperson’s complaint that two jurors we re not following the law as instructed by the judge. No deadlock in the jury’s deliberations was reported and th e individual jurors’ views on the
merits of the case were never revealed. Ju ror No. 36’s removal was not based on her position on the merits, which was unknown to court and co unsel. Nor was her removal based on the complaints of some of her fellow jurors that sh e was not following the court’s instructions. Defendant suggests that such complain ts may derive from disagreement on the merits of the case and th us provide weak support for juror removal. ( United States v. Symington (9th Cir. 1999) 195 F.3d 10 80, 1088.) In this case, complaints that Juror No. 36 was not following instructions initiated an investigation but those complaints were not the basis for re moval. Juror No. 36 was removed because further investigation disclosed the juror in tentionally concealed material information during voir dire. The impetus for Juror No. 36’s removal ca me from misrepresentations she made during voir dire, not from her pos ition 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 po sition 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.