1 Filed 3/26/13 P. v. Howell CA2/26 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication o r ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,
Plaintiff and Respondent,

v.
KENNETH HOWELL,
Defendant and Appellant. 2d Crim. No. B237884 (Super. Ct. No. MA046867) (Los Angeles County)

Kenneth David Howell appeals from the judg ment entered after his conviction by a jury of first degree murder (Pen . Code, §§ 187, subd. (a), 189), 1 two counts of aggravated sexual assault upon a child (§ 269, subds. (a)(4) & (a)(5)), and two counts of lewd act on a child by use of force. (§ 2 88. subd. (b)(1). Appellant admitte d that he had served one prior prison term. (§ 667.5, subd. (b).) He was sent enced to prison for an indeterminate term of 55 years to life plus a consecutive determinate term of 17 years. Appellant contends that the prosecutor im properly used his post-arrest silence to impeach him. He also contends that (1) the trial court erroneously instructed the jury, and (2) defense counsel was ineffective because sh e failed to object to some instructions and failed to request other instructions. We affirm. However, we direct the trial court to correct an omission in the abstract of judgment.

1 All statutory references are to the Penal Code.2 Facts People's Evidence In the evening on August 23, 2009, appellant and his wife, T., argued inside their
bedroom. H. exited the bedroom and walked into the kitchen to get something to drink. H.'s 15-year-old son, J. P., asked her if sh e was okay. She replied that she was okay and
walked back into th e bedroom. Before J.P. went to sleep in the living room, he heard T. yell to him to " 'please help.' " He did not intervene because he was scared of appellant. Appellant "used to beat [him]." That night, appellant forced T.'s daughter, S, to have sex with him. S was 13 years old, and appellant was not her biological father. (3RT 942, 944) ~ While S. was sleeping in the living room, appellant picked her up and ca rried her into her mother's bedroom. T. was lying on the bed with a blanket covering her head. She was not moving or making any sounds. Appellant placed S. on the bed next to her mother. Appellant kissed S. on the neck
and mouth and touched her breasts . He removed his and S.'s cl othing. Appellant placed his mouth on S.'s vaginal area. A ppellant then "put [her] legs on his shoulders." S. felt "something go inside [her] vagina." It was pain ful, and she started to cry. Appellant said that "if [she] didn't stop crying, he was going to duct tape [her] head next." Appellant was on top of S., moving his body back and forth. J.P. awoke at noon. He tried to open the door to his mother's bedroom, but "there was this chair in the way, which prevente d [him] from opening it." Appellant, who was inside the bedroom, asked J.P. what he wanted . J.P. replied that he was looking for S. Appellant said that S. was with him. J.P. went back into the living room. Appellant eventually exited the bedroom. He had a "big gr in on his face" and "pushed [J.P.] out of the way." Appellant went into the garage and drove away. J.P. entered his mother's bedroom. T. was lying in bed on her stomach "with her hands tied behind her back with duct tape." A plastic bag completely covered her head. The bag was secured with duct tape "from her neck to the top of her head." S. "was at the edge of the bed on he r knees, crying."3 T. was dead. The forensic pathologist who performed an autopsy opined that she had "died as a result of asphyxia, which is the lack of oxygen due to suffocation." The suffocation was caused by the pl astic bag over her head.
Defense Evidence Appellant testified as follows: On August 23, 2009, he and T. got into an argument about buying a car. T. wanted to buy the car, but appellant di d not want to buy it. The argument ended, and the couple ma de up. Appellant took drug s and had sex with T. He "wanted to get high some more ," but T. was "complaining and nagging" that he should take a shower and get ready for work. Appellant put his arm around T.'s neck "to put her to sleep." When her body went "limp," he "laid he r down [on] the bed." His "intent was just to put her to sleep for a while so [he could] continue and us e more drugs." He duct-taped
her hands behind her back so that she wo uld be unable "to stop [him] from doing more drugs." Appellant then went into the bathroom, where he smoked and injected methamphetamine. When he exited the bathroom , T. was dead. Appellant put a plastic bag
over her head because he could no t bear to look at her face. He put some duct tape around the bag to hold it in place. Appellant denied having sex with S. He testified that she was not inside the bedroom
with him. The defense retained a forensic pathol ogist to review the autopsy report and photographs. He opined that the cause of death was "consistent with a carotid compression," which occurs when a person uses his forearm to compre ss the carotid artery in the neck of another person. Peace officers occasionally use this technique to subdue an arrestee. "[Y]ou block blood flow into the he ad and into the brain without blocking the airway. And the purpose of that is to render the person rapidl y unconscious so they can be controlled or handcuffed." If the compression co mpletely obstructs th e carotid artery for approximately one minute, the person will die "unless they get defibrillated." Impeachment of Appellant by Post-Arrest Silence After appellant had testified as to his ve rsion of events, on cross-examination the prosecutor asked, "The first that we hear this version as to what happened from you is today;4 correct?" Appellant answered, "Yes, Ma'am." Appellant contends that the prosecutor used his post-arrest silence to impeach him in violation of the principles of Doyle v. Ohio (1976) 426 U.S. 610 [96 S.Ct. 22 40, 49 L.Ed.2d 91]. "In Doyle, the United States Supreme Court held that it was a violation of due process and fundamental fairness to use a defendant's postarrest silence following Miranda warnings [ 2 ] to impeach the defendant's trial testimony. [Citation.]" ( People v. Collins (2010) 49 Cal.4th 175, 203.) Appellant "did not object on Doyle grounds below, and thus has forfeited this claim." ( People v. Tate (2010) 49 Cal.4th 635, 692.) But ap pellant argues that defense counsel's failure to object denied him his constitutional ri ght to the effective a ssistance counsel. The standard for evaluating a claim of in effective counsel is set forth in Strickland v. Washington (1984) 466 U.S. 668, 687 [104 S.Ct. 2052, 80 L.Ed.2d 674] : "First, [appellant] must show that counsel's perfo rmance was deficient. . . . Second, [appellant] must show that the deficient performance prejudiced the defense." Appellant has not shown that counsel was deficient. Doyle error occurs only when the prosecutor impeaches "a defendant's exculp atory trial testimony with cross-examination about his or her postarrest silence after receiving Miranda warnings. [Citation.]" ( People v.
Tate , supra , 49 Cal.4th at pp. 691-692.) The record is devoid of any evidence that appellant was given Miranda warnings. Appellant concedes that "the re is no mention in the record of appellant specifically being advised of his Miranda rights." But he argues that it must be assumed he was so advised because "[s]uch a dvisements are mandated." We disagree. "A defendant who is never questioned ne ed not be Mirandized . . . ." ( People v. Delgado (1992) 10 Cal.App.4th 1837, 1843.) Appellant has not referred us to any evidence in the record showing that he was questioned by law enforcement officials. Thus, "we have no
basis whatsoever to assume th at [appellant] was given his [ Miranda ] rights." ( Ibid .) "Because there was no sound legal basis for obj ection, counsel's failure to object to the
admission of the evidence cannot establish ineffec tive assistance." ( People v. Cudjo (1993) 6 Cal.4th 585, 616.)

2 Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694].5 Limiting Instruction for Fr esh-Complaint Evidence Pursuant to the fresh-complaint doctrine, the trial court permitte d the prosecutor to present evidence that, several days after appellant 's sexual assault, S. complained about it to law enforcement officials. "[T] he trial court upon request must instruct the jury to consider
such evidence on ly for the purpose of establishing th at a complaint was made, so as to dispel any erroneous inference that the victim wa s silent, but not as proof of the truth of the
content of the victim's st atement. [Citations.]" ( People v. Brown (1994) 8 Cal.4th 746, 757.) Appellant contends that his counsel wa s ineffective because she failed to request a limiting instruction. To establish deficient performance by coun sel, "the defendant must show that counsel's representation fell below an obje ctive standard of reasonableness." ( Strickland v. Washington
, supra , 466 U.S. at p. 688.) Appellant has failed to make the requisite showing. A reasonable attorney could have concluded that a limiting instruction would be detrimental to appellant because it wo uld highlight the fresh-complaint evidence. (See People v. Hinton (2006) 37 Cal.4th 839, 878 ["Defendant also co mplains that counsel's failure to request a limiting instruction concerning his prior mu rder conviction demonstrated ineffective assistance, but counsel may ha ve deemed it unwise to call further attention to it"]; People v.
Ferraez (2003) 112 Cal.App.4th 925, 934 ["th e decision not to request [a limiting instruction] was a reasonable ta ctical choice by defense counsel to avoid directing the jury
to focus on the ev idence . . . ."].)
CALCRIM No. 318 Appellant maintains that the trial cour t erred in giving CALCRIM No. 318, which provided: "You have heard evidence of statements that a witness made be fore the trial. If you decide that the witness made those stat ements, you may use those statements in two ways: [¶] 1. To evaluate whether the witness's testimony in court is believable; [¶] AND [¶] 2. As evidence that the information in those earlier statements is true ." (Italics added.)
The Bench Notes to CALCRIM No. 318 state that it should be used "when a testifying
witness has been confronted w ith a prior inconsistent statem ent." (1 Judicial Council of Cal., Crim. Jury Instns. (2012) p. 96.) Appe llant argues that the italicized portion of the6 instruction wrongly informed "the jury that they could in fact consider [S.'s fresh-complaint evidence] as proof of the alleged misc onduct." (Bold and capitalization omitted.) The evidence supported the giving of CA LCRIM No. 318 because S. had made prior inconsistent statements to Serg eant Kenneth Clark and a social wo rker. In his opening brief, appellant acknowledges that S. "gave inconsistent accounts" of the incident. On the same day that her mother was killed, S. told Clark that she "went to her parents' bedroom around sunrise," "got into bed with he r mother and father," and "slept there." S. did not say that appellant had carried her into the bedroom a nd had sexually assaulted her. She explained
that she had not disclosed this information to Clark because she was embarrassed and scared of appellant. On the same day that S. spoke to Clark, sh e told a social worker that she was in her own bedroom when she heard appellant leave the house. At that point, she went into her
mother's bedroom and found he r mother dead on the bed. S. mentioned nothing about appellant's sexual assault. Two days later, S. told the social worker that appellant had "just touch[ed] her on the surface." At trial, on th e other hand, S. testified that she felt "something go inside [her] vagina" wh en appellant was on top of her. Appellant is in effect contending that the trial court should have modified the instruction sua sponte to make clear that it did not apply to S. 's fresh-complaint evidence.
The contention is forfeited because defense coun sel did not object below. "[D]efendant is
not entitled to remain mute at trial and scream foul on appeal for the court's failure to expand, modify, and refine standa rdized jury instructions." ( People v. Daya (1994) 29 Cal.App.4th 697, 714.) We reject appellant's contention that defe nse counsel was deficient because she failed to object. As discussed in the preceding secti on of this opinion, couns el may have had good reason for not wanting to highlight the fresh-complaint evidence. No Duty to Instruct Sua Sp onte on Voluntary Manslaughter Appellant argues that the trial court had a duty to instruct sua sponte on the lesser included offense of voluntary manslaughter. Appellant "submits there was sufficient evidence to warrant sua sponte vo luntary manslaughter instructi ons predicated on either an7 unintentional killing committed with conscious disregard for human life upon a sudden quarrel or in the heat of passion or an intentional killi ng committed under such
circumstances." " '[T]he factor which distinguishes th e "heat of passion" form of voluntary manslaughter from murder is provocation. Th e provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim. [Citations]. The provocative conduct by the victim . . . must be suffici ently provocative that it would cause an ordinary person of averag e disposition to act rashly or without due deliberation and reflection. [Citations.]" ( People v. Manriquez (2005) 37 Cal.4th 547, 583- 584.) "[A] trial court errs if it fa ils to instruct, sua sponte, on all theories of a lesser included offense which find substantial suppor t in the evidence. On the other hand, the court is not obliged to instru ct on theories that have no such evidentiary support. Accordingly, we . . . consider whether there wa s substantial evidence in this case to support a verdict of manslaughter based on heat of passi on. In our view, [no] such evidence existed here." ( People v. Breverman (1998) 19 Cal.4th 142, 162.) According to appellant, he applied pressure to T.'s caro tid artery because she was "com plaining and nagging" that he should stop taking drugs and ge t ready for work. T.'s co nduct was not "sufficiently provocative that it would cause an ordinary pe rson of average disposition to act rashly or
without due deliberation and re flection. [Citations.]" ( People v. Manriquez
, supra , 37 Cal.4th 583-584.) Furthermore, appellant's "testimony co ntained no indication that [his] actions reflected any sign of heat of passion . . . . Th ere was no showing that [he] exhibited anger, fury, or rage; thus, there was no evidence th at defendant 'actually, subjectively, kill[ed] under the heat of passion.' [Citation.]" ( Ibid .) ( People v. Manriquez
, supra , 37 Cal.4th at p. 585.) Appellant testified that the argumen t about the car had ende d and he and T. had "ma[d]e up." Appellant conti nued: "We weren't even arguing in the bedroom." "[M]y mind was just focused on I want to do more drugs." "8 In any event, "[b]y finding [appellant] wa s guilty of first degr ee murder, the jury necessarily found [appellant] pr emeditated and deliberated the k illing. This state of mind, involving planning and deliberate action, is mani festly inconsistent with having acted under the heat of passion . . . and clearly demonstrat es that [appellant] was not prejudiced by the failure" to instruct sua sponte on voluntary manslaughter. ( People v. Wharton (1991) 53 Cal.3d 522, 572.)
Counsel's Failure to Re quest CALCRIM No. 522
and an Instruction on Vo luntary Manslaughter CALCRIM No. 522 provides: "Provocation ma y reduce a murder from first degree to second degree [and may reduce a murder to ma nslaughter]. The weight and significance of the provocation, if any, are for you to deci de. [¶] If you conclude that the defendant committed murder but was prov oked, consider the provoca tion in deciding whether the crime was first or second degree murder. [A lso consider the provocation in deciding
whether the defendant committed murder or manslaughter.]" CA LCRIM No. 522 "is a pinpoint instruction that need not be given on the court's own motion." ( People v. Rogers (2006) 39 Cal.4th 826, 880.) Appellant claims that his counsel was in effective for failing to request this instruction as well as an instruction on voluntary manslaughter. Counsel's performance was not deficient be cause, as explained above, the evidence does not support a theory of provocation. Moreov er, as a matter of trial tactics, a reasonably competent attorney could have decided not to request the inst ructions because they were inconsistent with the defense theory. As coun sel explained in closing argument, the defense theory was that appellant was guilty of involunt ary manslaughter because he had no intent to kill T. This theory was based on appellant's testimony that he had in tended "just to put her to sleep for a while so [he could] continue and use more drugs." " ' "Reviewing courts defer
to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation] . . . ." ' " ( People v. Jones (2003) 29 Cal.4th 1229, 1254.) In any event, appellant has failed to establish the requisite prejudice because he has not shown "that there is a reasonable probability that, but for counsel' s [allegedly] unprofessiona l errors, the result9 of the proceeding would ha ve been different." ( Strickland v. Washington
, supra , 466 U.S. at p. 694.) Abstract of Judgment Neither party has directed this court's at tention to an omission in the abstract of judgment. Both parties agree th at, as to the indeterminate term, appellant was sentenced to 25 years to life for first degree murder (count 1) plus a consecutive term of 15 years to life
for each of the two counts of aggravated sexual assault upon a child (counts 2 and 3). Thus,
the total indeterminate term is 55 years to life. The abstract of judgment does not show that
the indeterminate terms on counts 2 and 3 are consecutive to the i ndeterminate term on
count 1. Disposition The judgment is affirmed. The trial cour t is directed to amend the abstract of judgment to show that each i ndeterminate term of 15 years to life for the two counts of aggravated sexual assault upon a child (counts 2 and 3) sh all run consecutively to the indeterminate term of 25 years to life for first degree murder (count 1). The court is further directed to transmit a certified copy of the ame nded abstract of judgment to the Department
of Corrections and Rehabilitation.
NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

PERREN, J.10 Lisa M.Chung, Judge
Superior Court County of Los Angeles

________________ ______________

Edward H. Schulman, under appoin tment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney Genera l, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney Gene ral, Scott A. Taryle, Supervising Deputy Attorney Gene ral, Pamela C. Hamanaka, De puty Attorney General, for Plaintiff and Respondent.