Filed 1/ 4/21 P. v. Carpenter CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v.
KWAME A DOM CARPENTER,

Defendant and Appellant

. G057661 (Super. Ct. No. 15NF1732)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Richard M. King, Judge. Affirmed.

Kimberly J. Grove, under appointment by the Court of Appeal, for
Defendant and Appellant

.

Xavier Becerra, Attorney General, Lance E. Winters , Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.2 Defendant Kwame A dom Carpenter killed his wife and six

- month

- old son
with a butcher knife. A jury convicted him of two counts of premeditated and deliberate first degree murder , found true a multiple

- murder special

- circumstance allegation , a nd
found he used a d angerous weapon in the commission of the murders

. T he trial court
sentenced him to two terms of life without the possibility of parole , with two concurrent

two

- year sentences for the knife

- use enhancements

.

Defendant r aises five claims on appeal: (1) There was insufficient evidence of premeditation and deliberation. (2) The prosecutor committed prejudicial misconduct during his closing argument. (3) The trial court prejudicially erred by instructing the jury
about mo tive. (4) The court also erred by giving consciousness of guilt instruction s regarding defendant’s false exculpatory statements , his hiding of evidence , and his flight

. (5) Finally, t he court improperly impos ed a parole revocation fine on defendant’s life without possibility of parole sentence s

. We reject all five contentions and affirm

. FACT S Because defendant raises a sufficiency of the evidence claim as to premeditation and deliberation, we lay out the unde rlying facts in some detail, doing so in the light most favorable to the jury ’ s verdict s

. ( People v. Abilez (2007) 41 Cal.4th 472,
504. ) Additional facts relevant to the specific issues defendant raises on appeal are found
in the discussion below.

D efendant liv ed in a two

- bedroom Anaheim apartment with his wife,
Moureen Wanjiku Gathua

- Carpenter (Moureen) , their six

- month

- old son , Kyan Adom
Gathua

- Carpenter (Kyan) , and his mother

- in

- law. D efendant moved out after Moureen accused him of having an affa ir. When he returned about a week later, Moureen and defendant went to church counseling in order to work on their marriage. A fter a month, defendant again moved out following another argument surrounding his extra

- marital relationship.3 Two weeks late r , after defendant had once more returned, Moureen approached a deliveryman at the apartment complex and pleaded with him to call 911. She was agitated and appeared to have been c rying. Defendant walked up and , in a normal speaking voice , said something like, “Oh, come here baby. Let’s talk about it. Let’s talk about it. Think about us. Think about our kid .” He grabbed Moureen’s arm to bring her back to their apartment. She tried to pull away , saying something like, “Fuck, no,” “Get away from me,” or “It’s over. We ’re done.”

The deliveryman went to the apartment complex office and told the apartment manager what had happened and asked her to call 911

. The apartment
manager grabbed her keys and phone and headed to defendant’s apartment. As she approached, she heard a baby crying very loudly and noticed a pair of shoes lying in the courtyard. Defendant was standing just o utside the apartment ’s open door , and the
manager asked him what was g oing on. He replied, “Call the police.” She asked, “How is the baby?” Defendant said the baby was fine, but again told her to call the police. S he

“ noticed that t he baby had stopped crying. ”

As she continued towards the apartment, d efendant went back inside and
closed the door

. S he could see the door was broken and there were drops of blood on it. The manager c alled 911 and then tried to get inside the apartment. D efendant resisted by holding the door shut. After less than a minu te, defendant let go and the door opened.
S he watched as h e picked up a key

- fob off the floor , left the apartment , and “ ca sua lly
walked down to the parking garage. ”

While still on the phone with the 911 operator, the manager approached the apartment . She saw “ a dark puddle of blood between the dining space and the living

room s pace , ” and “ heard a gurgling sound. ” S he went inside and found Moureen on the
floor , lying on her back with Kyan across her chest. S he checked Moureen for a p ulse,
but f ou nd n one. She picked up Kyan and saw he had two large lacerations across the4

back of his head ; she could see his skull showing through

. She started basic CPR , and the baby began to breathe.

Within a few minutes, police arrived

. They too checked Moureen for vital signs, but f

ou nd none. The officers helped render first aid to Kyan until paramedics
arrived . He was taken to the hospital , where he died.

Officers noticed damage to the front door and door frame consistent with a f orced entry. On the living room floor, they found a cell phone broken in to several pieces. On the stairway to the upper floor was a duffle bag containing men’s clothing. In the kitchen, the re was a knife block with empty slots for a steak knife and a bu tcher knife.

A forensic pathologist testified Kyan had two laceration wounds on the
back of his head

. One was four inches long and went through Kyan’s scalp and into his
skull. The other was about three inches long , but went through the dura mater and into
the brain. There were also fractures on the right side of the baby’s skull. In addition, Kyan had a stab wound on his back that went through his body and exited his chest, cutting his left lung and thymic gland. He die d as a result of the se “ [ s ] harp

- forced injuries of the head and left back.”

Moureen had a cut wound to her chin, a cut wound and stab wounds to her neck, stab wounds to her right chest and lower midline neck area, and two stab wounds to
her stomach area . One of the neck w ounds entered from the front and exited the back , completely severing her jugular vein

. One stomach wound near her navel was three to four inches deep , and the stab wound on her right abdomen was five to six inches deep

. There was also swelling and bruising on the right side of her face and forehead. Th e pathologist opined th ese head injuries likely caused some level of unconsciousness.
T here were no defensive wounds on Moureen’s hands. She die d as a result of these

“ [ s] harp

- force injuries of the face, neck, chest and abdomen.”

Early the next morning, a p olice officer was at a h ospital in Fountain Valley when a security guard approached and directed him to the parking lot where defendant’s5

car was parked. Defendant was asleep in the backseat. Other officers arrived a nd established a perimeter around the car

. T hey ordered defendant out , but he jumped into
the driver’s seat, started the car, and backed into a police car positioned behind him. He put the car in to drive, drove over a planter, t hrough some bushes, and collided with a minivan parked nearby. Undaunted, defendant then led officers on a high

- speed pursuit from the hospital to a nearby p ark where he finally crashed into a nother minivan, disabling his car

. Defendant got out and fled on f oot. He ran through the park and finally
dove into a lake. Police set up a perimeter around the lake and ordered defendant to

come out. He refused and , a fter about 15 minutes of noncompliance, a K9 officer sent his dog into the lake. The dog bit defendant on the shoulder and dragged him to shore. Once there, d efendant struggled with the officers , requiring them to use a Taser device to finally t ake him into custod y.

A butcher knife with an eight

- inch blade was found o n the backseat driver’s
side floorboard of defendant’s car . Also inside was a hand written note on the back of the vehicle’s registration stating , “The rage, the anger built to a high. I must take a coward’s way out to meet the devil in hell.”

Interviewed the next day by police, d efendant said that he met Moureen about five years before the killings

. He explained they had an on

- again off

- again relationship, but were eventually married. Ky an was born soon thereafter

. Recently , he
had moved out of the house tw ice due to relationship issues. He said Moureen suspected he was having an affair with his coworker, A. B. Defendant explained he was planning on divorcing Moureen to be in a relation ship with A. B

. H e denied he and A. B. had a sexual relationship, but admitted his communications with her were “ not appropriate. ”

On the Saturday before the killings , defendant spent the day with Moureen and Kyan at the beach. He and Moureen talked about how they were going to work on their relationship and how he was going to change his ways. He said he deleted his Facebook account, removed A. B

. ’s number from his cell phone, and took all the6

passwords off his phone. He said he was done with A. B. and was not going to talk to her or see her anymore. However , he still th ought about A. B

.

On the Monday morning of the murders , defendant ’s mother

- in

- law left for the day. Defendant took Kyan into his mother

- in

- law’s bedroom and the two of them fell asleep while Moureen was getting ready for work. Defendant said he was awakened abruptly by Moureen, who had f ound his cell phone and was screaming at him. She told him that their relationship was over, and he neede d to pack his “shit” and get out of the
house. As defendant started to pack his belongings, Moureen called defendant’s father and told him that defendant needed to get out or “ either some body was going to go to jail or somebody was going to die. ” Mou reen started throwing defendant’s clothes out the front door. He retrieved his clothes, but she then threw a pair of his shoes outside.
When he went outside to retrieve the shoes, she closed the door and locked him out.
T his ang e r ed him , so he forced the door open. Moureen was talking to someone on the phone and h e took it from her and threw it to the floor , breaking it.

Defendant said Moureen then ran out of the apartment and headed towards the front of the complex, where she told a delive ryman to call the police. He grabbed Moureen and took her back to the apartment. He said he told her, “You can’t leave like that. The baby’s in the apartment by itself. We can’t walk away from the

- - leave the apartment empty.”

Defendant explaine d that , once back inside, they continued to argue in the dining room. Moureen hit him, which made him angry. That, h e said, was “when the knives come out.” He pulled a knife from the knife block sitting on the kitchen counter, showed it to her, and told her to stop hitting him. She said, “Don’t hurt me. Don’t do anything.” He said he told her , “We’re not going to argue anymore

. ” “ L et’s just leave
each other alone

. ” “ The police are probably coming because we made so much noise.”7

H e thought that would end the argument , so he put the knife back down on the kitchen

counter. Moureen went into the living room, picked up the baby from the couch , and went into the dining room. Defendant said she started hi tting him again while she was holding Kyan. Defendant told her, “Stop hitting me,” or “Stop doing all of this to me,” and “I just want to pack my things and leave.” Defendant insisted they were so involved in their arg ument that neither of them was paying attention to the baby.

At that point, defendant said he “threw [Moureen] down.” He was not sure if he pushed her or pulled her down ; h e might have grabbed her shoulder, or her hair , but she ended up on the floor

. Kyan went down with her, but defendant claimed he did not
hit the floor

. Defendant was asked if Moureen “fumble[d]” the baby and he replied, “Something like that.” Defendant maintained Kyan was actually laughing at that point

.

O nce Moureen was on the floor, defendant said he jumped in the air and stomped down on her head. He thought she lost consciousness. She did not say anything
after that , or even move; “she just laid there in the same spot , ” still holding the baby.

Defendant said he then went back to the kitchen and retrieved the knife
from the counter. He told police he was in a “different mode , ” and was “locked on
Mo u reen

. ” He returned to the dining room and started slashing at her with the knife. He demonstrated for police exactly how he had held the knife during the attack. Initially, he
said he slashed her throat, then her abdomen, and then back to the throat. La ter , he corrected himself to say the initial injuries were to Mou reen’s throat and neck area , and
later he moved on to her torso. Defendant remarked the knife w as dull. Based on defendant’s description of the attack, police concluded he admitted stabbing Moureen at
least six times.

Defendant described Moureen as ho lding Kyan face

- to

- face during the
attack

. He was aware Kyan was there, but his focus was on Moureen. He later corrected
himself and said he did not recall seeing Kyan as he was slashing at Moureen. He8

explained that , as he was assaulting Moureen, he no tice d Kyan had a laceration on the
back of his head. W hile standing over Moureen, he stood up and suddenly realized the knife was no longer in his hand. He l ooked over and saw Kyan crawling away crying,
with the knife stuck in his back. He pulled the knife out, picked up Kyan, and laid him on top of Moureen’s chest , and the baby stopped crying

.

Defendant said he then grabbed his car key, left the apartment, got into his car, and fled. He took his cell phone with him, but did not call 91 1. Instead, he said he

t old the apartment complex manager to call. He drove around all afternoon and finally ended up at the hospital . In the hospital parking lot, he wrote a suicide note on the back of the vehicle registration. He said he also wrote a similar text message to Moureen , but
it failed to send . He then fell asleep in the backseat.

Defendant said he woke up with the police surrounding his car. He thought of trying to commit “suicide by cop,” but said he could not find the knife. Instead, he drove away and decided to crash his car in an attempt to kill himself. H e got out of his
car and ran into the lake , where he claimed he unsuccessfully tri ed to drown himself.

Defendant told police he had lost control and was in a “fury mode.” The only thing that took him out of this “fury mode” was seeing the knife in Kyan’s back. He
insisted he did not know how Kyan got stabbed in the back, and that he “didn’t mean to kill the baby.” 1 H e did not deny intending to kill Moureen, but said he did not have any
control over himself. He admitted he and Moureen had prior arguments that had become physical , but said he never pulled out a knife before

.

1 Kyan’s murder was predicated on the common law doctrine of transferred intent, where defendant’s liability for th e baby’s killing is wholly derivative of Moureen’s murder

. ( People v. Bland (2002) 28 Cal.4th 313, 323

- 324 [“[A] person maliciously intending to kill is guilty of the murder of all persons actually killed. If the intent is premeditated, the murder or murders are first degree ”].) Defendant does not challenge th is aspect of his conviction.9 I n the defense case , d efendant introduced the testimony of five character
witnesses , all of whom described defendant as nonaggressive and mild

- mannered, and
stated he did not have a temper. He also introduced expert testimony from a psychologist. She testified she conducted a forensic evaluation of defendant and concluded he “went into a rage and in the state of rage had dissociative symptoms.” She explained , “Dissociation is a phenomenon that occurs when people are under extreme threat or other extreme emotion, anger, usually rage.” “In a state where there is dissociation, the person is often acting without control, sometimes without awareness or consciousness.”

The defense also introduced two audio files defendant recorded on his phone shortly before the murders. In the se recording s , Moureen c ould be heard accusing defendant of having taken another woman to lunch when he was supposed to be at work.
She told defendant to pack up and get out of the house. Defendant told Moure en to calm down, stop hitting and touching him, stop throwing his things, and leave him alone. She asked him why he was playing with people’s minds , and reminded him that he had hit her the previous day. Defendant warned Moureen that “ if you hit me one m ore time, we’re gonna have a problem.” He did not testify.
DISCUSSION 1. Sufficiency of the Evidence

Defendant first contends there was insufficient evidence of premeditation
and deliberation

. Not so

.

A. Standard of Review

“ In reviewing a sufficiency of evidence claim, the reviewing court ’ s role is

a l imited one. ” ( People v. Smith (2005) 37 Cal.4th 733, 738.) We “ evaluate the whole record in the light most favorable to the judgment to determine whether it discloses
substantial evidence

— ev idence that is reasonable, credible, and of solid value

— from which a reasonable trier of fact could find the defendant guilty beyond a reasonable10

doubt. ” ( People v. Ramos (2016) 244 Cal.App.4th 99, 104; Jackson v. Virginia (1979) 443 U.S. 307, 319 [ “ [T] he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt ” ] .)

In so doing, we “‘“presume [] in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”’ ” ( People v. Beck and Cruz (2019) 8 Cal.5th 548, 626.) “Review on appeal of the sufficiency of the evidence supporting the finding of premeditated and deli berate murder involves consideration of the evidence presented and all logical inferences from that evidence in light of the legal definition of premeditation and deliberation . . . .” ( People v. Perez (1992) 2 Cal.4th 1117, 1124 ( Perez ).)

“ A reversal for insufficient evidence ‘ is unwarranted unless it appears “ that upon no hypothesis whatever is there sufficient substantial evidence to support ” ’ the jury ’ s verdict. ” ( People v. Z amudio (2008) 43 Cal.4th 327, 357.) Simply put, given our
limi ted role, a “ defendant bears an enormous burden” to prevail on a sufficiency of the
evidence claim on appeal . ( People v. Sanchez (2003) 113 Cal.App.4th 325, 330.) This is
not such a case.

B. Analysis and Application “A murder that is premeditated and deliberate is murder in the first degree.” ( People v. Jurado (2006) 38 Cal.4th 72, 118 ; Pen. Code , § 189 ; undesignated statutory
references are to the Penal Code .) “‘In this context, “premeditated” means “considered beforehand,” and “deli berate” means “formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of
action. ’” [Citation.] ‘An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash
i mpulse.’ ” ( Jurado, at p. 118 .) Even so, “‘ [t] he process of premeditation and
deliberation does not require any extended period of time. ’ ” ( People v. Koontz (2002) 2711

Cal.4th 1041, 1080.) “ ‘ The true test is not the duration of time as much as it is the extent
of the reflection. Thoughts may follow each other with great rapidity and cold, calculated j udgment may be arrived at quickly

. . . . ’ [Citation.] Such reflection may be revealed by planning activity, motive, and the manner of the killings, among other things. ” ( People v.
Potts (2019) 6 Cal.5th 1012 , 1027 ( Potts ) .)

O ur Supreme Court has ide ntified t hree basic types of evidence generally found sufficient to sustain a finding of premeditation and deliberation: “ (1) planning activity, or ‘ facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing ’ ; (2) motive, or ‘ facts about the defendant’s prior relationship and/or conduct with the victim from which th e jury could reasonably infer a

“ motive ” to kill the victim ’ ; and (3) manner of killing, or ‘ facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intent ionally killed according to a “ preconceived design ” to take his victim’s life in a particular way for a “ reason” ’” ( People v. Morales (2020) 10 Cal.5th 76, 89 ( Morales ).) 2

Here, focusing on the three basic categories, defendant argues the prosecution failed to introduce evidence of planning activity, motive, or manner of killing sufficient to find he committed the murders with premeditation and deliberation, as

2 Even so, these three “ ‘“ guidelines are descriptive and neither normative nor exhaustive, and

. . . reviewing courts need not accord them any particular weight. ” ’” ( Morales , supra , 10 Cal.5th at p. 89; see People v. Combs (2004) 34 Cal.4th 821, 850 [“not exclusive, nor are they invariably determinative”].) They are “a framework to aid in appellate review,” but do not “define the elements of first degree murder or alter the substantive law of murder in any way.” ( Perez, supra , 2 Cal.4th at p. 1125.) By formulating the guidelines, the Supreme Court “did not purport to establish an exhaustive list that would exclude all other types and combinations of evidence that could supp ort a finding of premeditation and deliberation.” ( Ibid .) Rather, they did “no more than catalog common factors that had occurred in prior cases.” ( Ibid .)12

opposed to a s a rash impulse while under the heat of passion . We disagree

. A ll three types of evidence were present ed here

.

As for p lanning activity

— w hat defendant did prior to the actual killing
show ing activity directed toward, and explicable as intended to result in, Moureen’s killing

— after defendant broke her phone, guaranteeing she could not call for help, Moureen fled the apartment and asked the deliveryman to call 911

. Defendant followed, escorted Moureen back to the apartment, took a knife from the butcher block, and
threatened he r with it

. She became fearful, and told him “Don’t hurt me.” H e put the
knife back on the kitchen c ounter , leading her to believe the threat of violence was over. Instead, he returned to the living room, and when the argument resumed , he pus hed her to

t he floor and stomped on her head . This render ed her u nconscious and totally unable to call for help or protect herself. Only then did he return to the kitchen , pick the knife up off the counter , come back to the immobile Moureen , and proceed to stab her to death.

Although defendant ’ s final interaction with Moureen was brief, it was more than momentary. This is fully consistent with an inference of a “ ‘ cold, calculated judgment ’ ” to kill Moureen, arrived at “ ‘ with great rapidity. ’ ” ( Potts, supra, 6 Cal.5th at p. 1027; c f. People v. Brady (2010) 50 Cal.4th 547, 563 ( Brady ) [“ [P] remeditation and deliberation can occur in a brief period of time” and “ [t]he lack of evidence of extensive planning does not negate a finding of premeditation” ] ; see also People v. Wharton (1991) 53 Cal.3d 522, 547 [ the defendant removed murder weapon from toolbox ahead of time and placed it nearby, perhaps “‘planning to be in a rage’”] .)

Regarding motive

— facts about defendant’s prior relationship and conduct
with the victim

— d efendant’s motive for killing Moureen was his festering anger and
frustration . She had caught him cheating yet again , but this time she was ending their relationship and kicking him out of the house, all the while insulting and be rating him. On the morning of the murders he had finally had enough , and in fact t hreatened Moureen that if “you hit me one more time, we’re gonna have a problem.” She did, and13

l ater that day, h e made good on that threat

. ( See People v. Cruz (1980) 26 C al.3d 233, 245 [“Defendant’s pent

- up resentment toward his victim[] establishes the prior relationship from which the jury reasonably could infer a motive for the killing[]”] ; People v. Disa (2016) 1 Cal.App.5th 654, 666 [motive based in part on anger that victim was trying to kick him out of the house and had been insulting him].) Although defendant’s motivation “ was totally unreasonable, this is true of any senseless killing, [and] the incomprehensibility of the motive does not mean that the jury could not reasonably infer that the defendant entertained and acted on it. ” ( People v. Pensinger (1991) 52 Cal.3d 1230, 1238.)

Finally, t he manner of Moureen’s killing

— in a particular way for a

reason

— also supports an inference of premedita tion and deliberation , and demonstrat es “a calculated design to ensure death rather than an unconsidered explosion of violence .” ( People v. Horning (2004) 34 Cal.4th 871, 902

- 903 ( Horning ) .) The pathologist testified
M o ureen was s tabbed and slashed multi ple times , with injuries throughout her body. Kyan was also slashed and stabbed as he l ay on his mother’s chest ; wounds that would have been inflicted on Moureen had the baby not been positioned on her chest. Indeed,

o ne of Kyan’s wounds was a through

- and

- through stab wound into his back that exited through his chest , indicating a deliberately aimed stabbing motio n toward Moureen’s

torso that was partially blocked by the baby’s body

.

Thus, t he nature of th e injur ies suggests that they were deliberately designed to kill the incapacitated M oureen . (See People v. Booker (2011) 51 Cal.4th 141, 152, 173 [multiple sta b and cut wounds to the neck that severed right carotid artery and jugular vein indicate s victim was killed deliberately]; see also People v. A nderson ( 1968 )
70 Cal.2d 15 , 27 [“[D]irectly plunging a lethal weapon into the chest evidences a
deliberate inten tion to kill .

. . .”]; Potts , supra , 6 Cal.5th at p. 1028 [multiple stab wounds to chest suggest s killing was premeditated and deliberate].)14 Mo re importantly, Mo ureen was lying on the floor, unconscious and
immobile , before defendant returned to the kitchen, retrieved the knife off the counter , returned to the dining room , and then proceeded to slash and stab her to death. T h is
shows defendant paused, retrieved his choice of weapon, and after a moment, resumed
his attack on Moureen wh ile s he was already down

. It also supports a n inferen ce of a premeditated and deliberate intent to kill. (Cf. Brady, supra , 50 Cal.4th at p. 565 [“ The manner of the shooting

— approaching a prone victim, stopping over him, and then aiming

— ‘ shows a calculated design to ensure death rather than an unconsidered explosion of violence ’”] ; Horning, supra , 34 Cal.4th at pp

. 902

- 903 [same for a bound,
blindfol d ed, i.e., “unresisting” victim ]. )

As he argued to the jury below, d efendant now c ontends the evidence
instead points to a contrary conclusion that he was only guilty of voluntary manslaughter because he was so provoked by Moureen that his reason ing was obscured, and he killed her in the heat of passion. He therefore insists he killed her without due deliberation and
reflection in “ an explosion of violence.”

However, “[t] o the extent [defendant] cite [s] evidence or inferences that
would have supported a contrary finding regarding [his] intent ,” this “misconstrue[s]
and/or misappl[ies] the substantial evidence standard of review.” ( People v. Ortiz (2012) 208 Cal.App.4th 1354, 1366, italics added .) Whether provocation was adequate to negate malice is not a question of law, but r ather a fact ual matter for the jury to decide. ( People
v. Beltran (2013) 56 Cal.4th 935, 950

- 951 ( Beltran ) .) Here the jury was fully instructed on heat of passion, and they rejected it. As a reviewing court on a sufficiency challenge ,

w e must accept any logical inferences the jury might have drawn from th e evidence, because “it is the jury, not the appellate court that must be convinced of the defendant’s guilt beyond a reasonable doubt.” ( People v. Kraft (2000) 23 Cal.4th 978, 105 4 .) Put simply, “[w]here the circumstances support the trier of fact’s finding of guilt, an appellate court cannot reverse merely because it believes the evidence is reasonably reconciled15

with the defendant’s innocence , ” or his guilt of a lesser charge. ( People v. Meza (1995) 38 Cal.App.4th 1741, 1747 ; cf. Brady, supr a , 50 Cal.4th at p. 565 [“ The mere possibility of a contrary finding as to defendant ’ s mental state does not warrant a reversal of the guilt judgment ”] .) 3

T he evidence was sufficient to support the jury’s finding that defendant
committed deliberate preme ditated murder.
2. Prosecutorial Misconduct

Defendant next contends the prosecutor committed prejudicial misconduct during his closing argument in his characteriz ation of the law of provocation, and how it
affect ed whether defendant should have be en convicted of murder or manslaughter. We find the claim forfeited, but even were we to reach the merits, we find the error was harmless. A. Background

During his first closing statement , the prosecutor argued: “Murde r has a
lesser charge of manslaughter. Manslaughter in this case simply does not apply. It doesn’t apply, not because I’m saying it, because the facts don’t support it. Heat of passion, defendant was provoked. Once again, the question of who provoked w ho is one that you guys can answer. As a result, he acted rashly and under the influence of intense
emotion that obscured his reasoning and judgment, and the provocation would have
caused a person of average disposition to act rashly without due deliberat ion from passion rather than judgment. The limits of voluntary manslaughter, it’s not enough the

3 The defense expert opined defendant was in a “dissociative state” during the murders but, even if true, this evidence at most described defendant’s subjective reaction to his pent

- up anger. A s discussed in more detail below, “ [a] lthough the defense evidence was probative of whether defendant subjectively killed in the heat of passion, ” from an objective standpoint, the evidence “did not establish the requisite provocation necessary for conviction of voluntary manslaughter, rather than murder.” ( People v. Gutierrez (2002) 28 Cal.4th 1083, 1144.)16

defendant simply was provoked. [¶] He is not allowed to set up his own standard of conduct. That is why we look at what a person of average disposition would do in that
situation. ” Up to this point, the prosecutor ha d correctly stated the relevant law.

However, he then continued and said , “ Would the average person of average disposition at any point pull down his wife and son, stomp on her head, and then stab ending

. ” At that point, defense counsel objected on the ground that the prosecutor
had misstated the law. She was correct, but t he objection was overruled

.

The prosecutor continued , “ stab, ending their two lives because she wanted
him to leave? The a nswer is no. It’s emphatically no. S l ight or remote provocation is
not sufficient. [¶] Consider whether the person of average disposition, in the same situation, knowing the same set of facts reacted from passion rather than judgment. If enough time has passed between the provocation and the killing for a reasonable person to cool off, then the killing is not reduced to voluntary manslaughter. Voluntary manslaughter, when you guys go into that jury room, should be rejected within 30

secon ds in this case. ” T hese comments d id not misstate the law or the relevant focus of inquiry. But once more, the prosecutor went too far, and sa id , “ That person of average disposition, how would they react? It’s nowhere near what this man did

. ” (Italics added.)
T hese comments were improper, but no objection or request for admonishment was made

. Instead, d efense counsel directly responded to the prosecutor’s
characterization of provocation in her closing comments , and correctly told the jury , “You have h eard the prosecutor talk about provocation, a person of average disposition. The instruction does not tell you that what you need to determine is whether this would cause a person of average disposition to kill. That’s not what the law says. What the la w specifically says is whether it would cause a person to act rashly. That’s what the law says.” She returned to this point later, stating, “More importantly, for voluntary manslaughter, the focus is on whether [defendant] was provoked and whether, because of17

the provocation, he acted rashly under that intense e motion.” Notably, the prosecutor did not object to her remarks.

In stead, in his r ebuttal, the prosecutor stated , “ Defense argues, well, it’s a manslaughter because a person of average disposition would act rashly. It’s the act. Would a person of average disposition act the way the defendant did on that day ? You
look at that whole da y, the knocking down

– knocked down the phone. Would they break the phone? Would they pull the person back a couple hundred yards? Would they show
him the knife? Would they knock down the wife and the child on the ground? Would they stomp on the head? And the answer is no, and the defense knows it. The defense
knows it. ” (Italics added.) These remarks were legally incorrect , but no objection or request for admonishment was made.

The prosecutor ’s arguments interspersed accurate statements of the la w of provocation with patently incorrect ones

. (See People v. Najera ( 2006) 138 Cal.App.4th 212, 223

- 224 ( Najera ) [same provocation error in closing argument ] .) The correct “ focus is on the provocation

— the surrounding circumstances

— and whether it was sufficient to cause a reasonable person to act rashly. How the killer responded to the provocation and the reasonableness of the response is not relevant to sudden quarrel or hea t of passion. ” ( Id. at p. 223 , italics added ; Beltran , supra , 56 Cal.4th at p. 949 [“ The proper focus is placed on the defendant’s state of mind , not on his particular act ” (italics added) ].) Simply put, provocation is assessed by whether the average person would react to the provocation with his reason and judgment obscured, not by the manner in which he then

act ed

. 4 ( Beltran , at p. 949

. )

4 Nevertheless, a killing reaction “is [an] extraordinary reaction, the unusual exception to the general expectation that the ordinary person will not kill even when provoked.” ( Beltran , supra , 56 Cal.4th at p. 949 .)18 T he trial court i nstructed the jury on the correct analysis to employ in assessing provocation and heat of passion, and that it was to follow the court ’ s instructions, not the attorneys ’ description of the law, to the extent there was a ny conflict.

B. Forfeiture To preserve a claim of prosecutorial misconduct at trial, “‘ “ a criminal defendant must make a timely and specific objection and ask the trial court to admonish the jury to disregard the impropriety. ”’ ” ( People v. Powell (2018) 6 Cal.5th 136, 171 .) The obj ection must specifically identify the claim of prosecutorial misconduct and its grounds. ( People v. Hill (199 2 ) 3 Cal.4th 959 , 1011

- 1012 , overruled on another ground
in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13 .) A defendant is excused
f rom the necessity of objecting and requesting an admonition if either would have been
futile. ( People v. Farnam (2002) 28 Cal.4th 107, 167.)

Here, defendant objected once , to remark s that w ere only partially incorrect, but did not request an admonit ion. T he prosecutor later misstate d the law again , but defendant did not object, and thus, never gave the trial court an opportunity to

correct the prosecutor’s mis characterizations of the law of provocation. A “point is reviewable only if an admonition would not have otherwise cured the harm caused by the misconduct.’ [Citations.]” ( People v. Earp (1999) 20 Cal.4th 826, 858.) Here, posing an additional objection and requesting an admonition would not necessarily have been futile19

and w ould h ave cured any harm caused by the prosecutor’s misstatement s

. D efendant’s
misconduct claim is forfeited. 5

C. The Prosecutor’s M

isstatements Were Harmless
E ven had defendant preserved this claim, it would still lack merit. The prosecutor’s partial miss tatements of the legal meaning of provocation were cured by both defense counsel’s correct statement of the law and the trial court’s instructions to the jury . As such , we conclude it is not reasonabl y likel y the jury understood or applied the complained

- of comments in an improper or erroneous manner.

“Prosecutorial misbehavior ‘violates the federal Constitution when it comprises a pattern of conduct “so egregious that it infects the trial with such unfairness
as to make the conviction a denial of due process.”’” ( People v. Rhoades (2019) 8 Cal.5th 393, 418 ; Darden v. Wainwright (1986) 477 U.S. 168, 181 .) Similarly, “ [u] nder state law, a prosecutor ’ s action that does not cause fundamental unfairness is prosecutorial miscondu ct only if it involves “‘“‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’”’” [Citation.] ” ( People v. Duong (2020) 10 Cal.5th 36 , 69 , italics added

. )

Defendant has not claimed the prosecutor used “ ‘ deceptive or reprehensible
methods ’ ” in an attempt to persuade the jury, or that his mis statement s “ ‘“so infected the trial with unfairness as to make the resulting conviction a denial of due process. ” ’” ( People v. Riggs (2008) 44 Cal.4th 248, 298.) In a ddition, defendant makes no allegation

5 F or the first time on appeal, defendant argues the prosecutor’s closing arguments also denied him his constitutional rights to “due process, equal protection and an impartial jury.” As discussed , “a defendant may not com plain on appeal of prosecutorial misconduct unless in a timely fashion

— and on the same ground

— the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.” ( People v. Samayoa (1997) 15 Cal.4th 795, 841 , italics added .) Here, defendant “made no objections expressly or even impliedly referring to the federal Constitution and thus forfeited the issue.” ( People v. Seumanu (2015) 61 Cal.4th 1293, 1332.)20

the jury was misinstructed by the trial court , and points to nothing concrete in the record indicating the jury understood or applied the prosecutor’s statement s in any improper or

erroneous manner.

“W hen attacking t he prosecutor’s remarks to the jury, the defendant must show that, ‘[i]n the context of the whole argument and the instructions’ [citation], there was ‘a reasonable likelihood the jury understood or applied the complained

- of comments in an improper or erro neous manner. [Citations.] In conducting this inquiry, we “do not lightly infer” that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements.’” ( People v. Centeno (2014) 60 Cal.4th 659,
667 .) Instead, “ w e presume that the jury relied on the instructions, not the arguments, in convicting defendant. ‘ [I]t should be noted that the jury, of course, could totally disregard all the arguments of counsel. ’ [Citation.] Though we have focused on the prosecutor ’ s closing arguments, we do not do so at the expense of our presumption that

‘ the jury treated the court ’ s instructions as statements of law, and the prosecutor ’ s comments as words spoken by an advocate in an attempt to persuade. ’ [Citation.] The
trial cou rt emphasized this rule when , as s tated, it instructed the jury to follow its instructions and to exalt them over the parties ’ arguments and statements. ” ( People v,
Morales (2001) 25 Cal.4th 34, 47 ( Morales ) ; see Najera, supra , 138 Cal.App.4th at p.
224 [prosecutor interspersed similar correct and incorrect statements on provocation and heat of passion] .) And t hat is what happened here.

Before closing arguments began, the trial court pre instructed the jury

. Th ose instructions included CALCRIM No s

. 200 and 222 , which told the jury it was to base its decision on ly on the evidence presented , that the attorneys’ arguments were not evidence, and that the jury must follow the law as stated by the court, even if the attorneys ’ comments conflicted with th e court’s instructions. In addition, defense
counsel directly responded to the prosecutor’s mis characterization of provocation in her closing comments, and correctly told the jury : “ The instruction does not tell you that21

what you need to determine is whether this would cause a person of average disposition to kill. That’s not what the law says. What the law specifically says is whether it would cause a person to act rashly. That’s what the law says .” Therefore, h er comments were bolster ed by the trial court’s correct previous instructions to the jury regarding the law of provocation and heat of passion.

In these circumstances, w e find no “reasonable likelihood that the jury construed or applied” the prosecutor’s remarks “in an objecti onable fashion.” ( Morales,

supra , 25 Cal.4th at p. 44.) In the context of the entire closing arguments of both counsel, and the instructions the court gave to the jury, defendant has failed to “ show a reasonable likelihood the jury understood or applied the complained

- of comments in an improper or erroneous manner

. ” ( People v. F rye (1998) 18 Cal.4th 894, 97 0 ) , disa pproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 .) Therefore, “[t] o the extent the alleged instances of miscon duct were not forfeited by defendant’s failure to object, we conclude none infected the trial with unfairness or deceived the court or jury. ” ( People v. Hoyt (20 20 ) 8 Cal.5th 892, 943. )
3. Motive ( CALCRIM No. 370 )

Defendant next contends the trial court erroneously instructed the jury with
CALCRIM No. 370 regarding the inferences they may draw from the presence or
absence of motive evidence

. He argues , “ [A] n instruction informing the jury evidence of motive was evidence of guilt was misleading and confusing in the extreme” and should not have been given “ under the facts of this case .” (Italics added.) We are not persuaded. A. Standard of Review

We review claims of instructional error de novo. ( People v. Mitchell (20 19 ) 7 Cal.5th 561, 579 ( Mitchell ) .) In so doing, “‘“ ‘ w e must assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given. ’ ” ’ ” ( People v. Covarrubias (2016) 1 Cal.5th 838, 915.) We also22

presume the jury followed the court’s instructions. ( People v. Edwards (2013) 57 Cal.4th 658, 746.) When conducting our inquiry, “ ‘ [a] single instruction is not viewed in isolation, and the ultimate decision on whether a specific jury instruction is correct and adequate is determined by consideration of the entire instructions given to the jury. ’ ” ( Covarrubias , at p. 906; People v. R ichardson (2008) 43 Cal.4th 959, 1028 [ challenged jury instruction is reviewed in context, and not in “‘“ ‘ artificial isolation ’”’ ” ] .)

Errors in jury instructions are typically reviewed under the standard set
forth in People v. Watson (1956) 46 Cal.2d 818, 836. ( People v. Breverman (1998) 19 Cal.4th 142, 172

- 178.) In this regard , we “ consider whether there is a reason able
likelihood that the trial court ’ s instructions caused the jury to misapply the law in
violation of the Constitution. ” ( Mitchell, supra, 7 Cal.5th at p. 579 ; Estelle v. McGuire (1991) 502 U.S. 62, 72 & fn. 4 .) As such , an instructional error requires reversal only where “an examination of the entire record establishes a reasonable probability that the error affected the outcome.” ( Breverman, at p. 165, citing W atson , at p. 836 , and Cal. Const., art. VI, § 13.)

B. Analysis and Application Without objection, the trial court instructed the jury with the standard jury instruction regarding motive, CALCRIM No. 370

. The jury was told : “The People are not required to prove that the defendant had a motive to commit the crime charged. In
reachin g your verdict you may, however, consider whether the defendant had a motive. [¶] Having a motive may be a factor tending to show that the defendant is guilty. Not having a motive may be a factor tending to show the defendant is not guilty.”

“The lon g

- standing general rule is that the failure to request clarification of an instruction that is otherwise a correct statement of law forfeits an appellate claim of error based upon the instruction given.” ( People v. Rundle (2008) 43 Cal.4th 76, 151, disapp roved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 ; People v. Hillhouse ( 2002) 27 Cal.4th 469, 503 [ “A party may not argue on appeal that23

an instruction correct in law was too general or incomplete, and thus needed clarification, without first requesting such clarification at trial ” ]

. )

Here, defendant did not object to CALCRIM No. 370, and did not request
any clarifying modification s. Moreover, defendant does not now assert that the jury
instruction is a n in correct statement of the law ; rather, only that it should not have been given in this case

. After all, the instruction is neutral as to the jury’s use of such evidence, and motive is not an element of the crime of murder

. If defendant had thought the instruction should be clarified to avoid any implication that motive could only be used

to establish guilt, he should have so requested. Accordingly, defendant ha s forfeited this contention on appeal. But e ven we re we to con sider the claim on its merits, we would
find instructing with CALCRIM No. 370 here was n either erro neous n or prejudicial

.

Defendant first argues the prosecution failed to produce any evidence of
motive relevant to guilt and insists the only motive evide nce adduced actually supported
the defense theor y of manslaughter

. T he instruction was therefore misleading , he argues , b ecause his “motivation” was evidence of his innocence, not his guilt , a nd since the instruction only speaks to using motive to establish guilt , the instruction should not have been given. The argument fails because the first premise is false . As discussed above, the prosecution did introduce motive evidence to support its theory of first degree murder liability

. I n his closing argument, the prosecutor discussed motive, stating in part: “Motive does not

– and I repeat

– does not need to be a good reason. It just needs to be [defendant’s reason] because, I submit to you, murder, th e killing of your wife, the killing of your son, is never a good reason. He was angry. He didn’t want to leave. He didn’t want to be told what to do by his wife, the wife that he thought about leaving on the Friday he got back because he was really inte rested in being with someone else.”

Motive is ordinarily the incentive for criminal behavior ; “why” the crime
was committed

. Here, t he evidence showed defendant was motivated to kill Moureen by24

his festering anger and pent

- up resentment of Moureen’s d omineering , and his desire to
control the marriage, including whether he should stay in i t , leave Moureen for A. B., or juggle a relationship with both women. When Moureen had finally had enough of defendant’s conduct, she confronted him , ordered him out of the house for good , and thereby motivated his lethal response.

Thus, defendant’s underlying “motive” was circumstantial evidence as to whether d efendant killed Moureen with d eliberation and premeditation. (See People v.
Walker (2006) 139 Cal.App.4th 782, 796 [ i n a murder prosecution, proof of motive is material to a finding of premeditation and deliberation ] ; People v. Thomas (1992) 2 Cal.4th 489, 517 [motive can suppo rt an inference of “ “‘a pre

- existing reflection ” ’” and

“ “‘careful thought and weighing of considerations ” ’” rather than “ “‘mere unconsidered or rash impulse hastily executed ” ’”]; cf. People v. Lewis (2001) 26 Cal.4th 334, 370 [ motive
is an intermediate f

act that may be probative of such ultimate issues as intent ] ; People v. Sykes (1955) 44 Cal.2d 166, 170 [ “M otive is a material fact ” in a ny criminal
p rosecution ] .) Or, a s defendant told Moureen earlier that day, “ if you hit me o ne more time, we’re gonna have a problem.” She did , and they did indeed have a “ problem

. ”

Defendant’s second argument, that the motive instruction conflicted with the instructions on voluntary manslaughter , is similarly misplaced because it c onflates

m ot ive with intent, malice , and premeditation and deliberation , all of which are separate and distinct mental states.

“ The Penal Code defines manslaughter as ‘ the unlawful killing of a human being without malice. ’ [Citation.] The offense is voluntary manslaughter when the killing is ‘ upon a sudden quarrel or heat of passion. ’ [Citation.] ” ( People v. Lee (1999) 20 Cal.4th 47, 58.) “[A] n intentional killing is reduced to voluntary manslaughter if other evidence negates malice

. Malice is presumptively absent when the defendant acts upon a sudden quarrel or heat of passion on sufficient provocation .” ( Id. at p. 59.) “[T] he factor which distinguishes the ‘ heat of passion ’ form of voluntary manslaughter from murder is25

provocati on .” ( Ibid. ) “ The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. [Cita tions.]

‘ Heat of passion arises when “ at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberatio n and reflection, and from such passion rather than from judgment.” ’” ( Ibid. )

T he question is not whether defendant subjectively believed himself to be so provoked that he went into “fury mode,” as he phrased it to police , and thus acted
without deliberation and reflection in killing Moureen. Rather, “ [t] he test of adequate provocation is an objective one

. . . . The provocation must be such that an average, sober person would be so inflamed that he or she would lose reason and judg ment. ” ( People v. Lee, supra , 20 Cal.4th at p. 60 , italics added .) This is “ ‘ because “ no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the fa cts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man. ” ’ ” ( People v. Manriquez (2005) 37 Cal.4th 547, 584.)

But the motive instruction does not conflict with the heat of passion
instructions. “ ‘[ M ] otive describes the reason a person chooses to commit a crime. The reason, however, is different from a required mental state such as intent or malice. ’ ” ( Covarrubias, supra, 1 Cal.5th at p. 913.) “ Motive, intent, and malice

. . . are separate and disparate mental states. The words are not synonyms. ” ( People v. Snead (1993) 20 Cal.App.4th 1088, 1098 , disapproved on other grounds in People v. Letner and Tobin (2010) 50 Cal.4th 99, 181

- 182 .)

As discussed, w e assess the entire char ge to the jury as a whole , and view the challenged instruction in context with the other i nstructions to determine whether there was a reasonable likelihood the jury applied the challenged instruction in an26

impermissible manner. Here, t he trial court i nst ructed the jury on both murder and voluntary manslaughter. In addition , it instructed regarding provocation and heat of passion. (CALCRIM Nos. 522 [provocation] & 570 [heat of passion].) These instructions, when read together with CALCRIM No. 370, corre ctly conveyed to the jury
that it could consider defendant’s motive in determining whether he was guilty of
murder

. (See People v. Cash (2002) 28 Cal.4th 703, 73 9 [“[T] he instructions as a whole
did not use the terms ‘ motive ’ and ‘ intent ’ interchangeably, and therefore there is no reasonable likelihood the jury understood those terms to be synonymous ” ].) Thus, i t was up to the jury to determine whether defendant ’s motiv e tended to establish premeditation
and deliberation for purposes of first degree murder , not to ass ist it with the distinct inquiry in to the mitigated offense of voluntary manslaughter

. There was no instructional
conflict. Consequently, even assuming th e claim was not forfeited, giving the standard
i nstructi on on motive here was not error. 6

4

. Consciousness of Guilt ( CALCRIM No s

. 362 , 371 & 372 )

Defendant next contends the trial court erred by giving three instructions relating to consciousness of guilt: CALCRIM Nos. 362 [ “ Consciousness of Guilt: False
Statements ” ]; 371 [ “ Consciousness of Guilt: Suppression and Fabrication of Evidence ” ];
and 37 2 [ “ Defendant’s Flight ” ]. The instructions related to the e vidence defendant lied to the apartment manager about Kyan being fine, took the butcher knife he used to kill the victims with him and hid it in his car, fled from the murder scene , and later from police
when surrounded . The prosecut or argued this evidence supported inference s of defendant’s consciousness of guilt , i.e. that “he was aware of his guilt

. ”

6 In support of his contention s about the motive instruction , defendant cites People v . Lee (1990) 219 Cal.App.3d 829, and People v. Martinez (1984) 157 Cal.App.3d 660. Neither case is of any assistance here because both were entrapment defense cases , where a motive instruction should never be given since motive is irrelevant in an entrapment case

. ( Lee , at p. 841 ; Martinez , at p. 669 .)27 D efendant claims giving the se instructions was improper because he admitted he stabbed the victims, and the only disputed issue was whether he committed
the killings with p remeditation and deliberation, or in the heat of passion. Thus, he
insists , the instructions should not have bee n given because they were “confusing, misleading, and inappropriate.”

Our Supreme Court has repeatedly rejected s imilar cl aim s

. In People v.
Thornton (2007) 41 Cal.4th 391, the trial court gave the CALJIC versions of the three
CALCRIM instructions defen dant contests here. ( Id. at pp. 437

- 438.) On appeal, t he defendant argued the instructions were improper because his identity was not at issue. The Supreme Court disagreed, stating “[i] nstructions on consciousness of guilt are proper not only when ident ity is at issue, but also when ‘ the accused admits some or all of the charged conduct, merely disputing its criminal implications. ’ ” ( Id. at p. 438; see also People v. Martinez (2009) 47 Cal.4th 399, 450 [ “ ‘ [W]e have repeatedly rejected the argument that instructions on consciousness of guilt ” are “ inappropriate where mental state, not identity, is the principal disputed issue ’ ”]; People v. Moon (2005) 37 Cal.4th 1, 28 [ same for flight instruction] .)

By pleading not guilty, defendant put in issue all of the elements of the charged offenses and allegations

. Even though he essentially conceded his guilt of some
form of criminal homicide at trial , “ ‘ the prosecution [was] still entitled to prove its case and especially to prove a fact so central to the basic question of guilt as intent. ’ ” ( People v. Moon, supra , 37 Cal.4th at p. 28 ; see People v. Henriquez (2017) 4 Cal.5th 1, 29

- 30 [same] ; People v. Turner ( 1990) 50 Cal.3d 668, 694 , fn. 10 , and cases cited there [ “ the prosecution was entitled to use evidence of guilty flight to help prove the defendant ’ s criminal state of mind ” ] ; cf. People v. Burton (2018) 29 Cal.App.5th 917, 925 [“ any consciousness of guilt evidenced by defendant’s [ lies to police] would operate as to any28

degree of homicide, not merely first degree murder ”]

. ) 7 The court did not err by g iving
the c onsciousness of guilt instructions

. 5. The Parole Revocation Fine

Finally , defendant contends the imposition of a parole revocation fine on
his life witho ut the possibility of parole sentences was error, and it must be stricken. The Attorney General agrees. Both have misread the record

.

It is true that a parole revocation fine can only be imposed where a defendant’s sentence includes a possible future period of parole. ( S ee § 1202.45, subd. (a)

. ) By definition, a life without parole sentence d o es not include a potential period of parole , so any such fine here would have be en i mproper

. ( People v. McWhorter (2009) 47 Cal.4th 318, 380

. ) However , the record shows no such fine was imposed. T he trial

court initially did impose a $ 3 00 parole revocation fine under section 1202.45. However, at a later hearing , the court recalled the case for resentencing and, among other things, granted defendant’s motion to waive all previously imposed fines and fees based on his inability to pay them

— i ncluding the parole revocation fine

. The abstract of judgment
further confirms no parole revocation fine was imposed

.

The parties both refer to a $10,000 “ parole revocation fine

. ” However, t h at fine was a restitution fund fine, imposed to reimburse “the Victims Compensation and Government Claims Board” for “money that ha s been forwarded to the victims’ family by the

. . . Victims C ompensation Claims Board.” (See §1202.4, subd. (f)(4)(A) .)
S ection 1202.45 does not limit restitution fund fines based on a defendant’s parole

7 Defendant also a rgu es that because he did not contest that he stabbed the victims to death, the se instructions allowed the jury to draw constitutionally impermissible i nferences from the facts. However, this claim is based on the same faulty premise that consciousness of guilt instructions should only be given “where the defendant denies guilt.” O ur Supreme Court has rejected similar constitutional claim s in People v. Mendoza (2000) 24 Cal.4th 130, 179

- 181 , superseded by statute on oth er grounds in People v. Brooks (2017) 3 Cal.5th 1, 63, fn. 8 , and People v. Smithey (1999) 20 Cal.4th 936, 983. ) As do we.29

possibilities . Defendant’s contention is therefore factually misplaced, and the Attorney General’s similar ly flawed concession is rejected. There was no sentencing error

. DISPOSITION The judgment is affirmed.

THOMPSON, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

ARONSON , J.