Filed 11/30/15 P. v. Rachel CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

ANDREW MARK RACHAL,

Defendant and Appellant.

 H040306

 (Santa Clara County

 Super. Ct. No. C1107268)

I. INTRODUCTION

Defendant Andrew Mark Rachal appeals after a jury convicted him of first degree 

murder (Pen. Code, § 187, subd. (a))1and found true an allegation that he personally used 

a deadly or dangerous weapon in the commission of that offense (§ 12022, subd. (b)(1)). 

The trial court sentenced defendant to a prison term of 25 years to life for the murder, 

consecutive to a one-year term for the weapon use allegation.

On appeal, defendant contends: (1) there was insufficient evidence to support the 

jury’s first degree murder verdict; (2) the trial court erred by dismissing a juror for 

misconduct; (3) the trial court erred by failing to instruct on voluntary manslaughter; 

(4) the trial court erred by incorrectly instructing the jury on self-defense; (5) the trial 

court erred by admitting evidence concerning defendant’s ex-girlfriend; (6) the 

 

1 All further statutory references are to the Penal Code unless otherwise indicated.
2

prosecutor committed misconduct; and (7) trial counsel was ineffective. For reasons that 

we will explain, we will affirm the judgment.

II. BACKGROUND

On May 10, 2011, Ricky Patterson suffered multiple stab wounds at defendant’s 

residence, and he subsequently died. Defendant’s neighbors had heard cries for help 

coming from defendant’s house, and they saw defendant come out of his house and drive 

away. The next day, defendant fell or jumped off of a highway overpass in Santa Barbara 

County, resulting in serious injuries.

A. Defendant’s Relationship with Patterson

Patterson was an unlicensed contractor. In late 2010 and early 2011, Patterson 

was working with Kevin Johnson, another unlicensed contractor. Patterson and Johnson 

worked on various projects for Ronald Willoughby, who owned property in Berkeley. 

One of the projects required a licensed general contractor, so Patterson proposed that 

Willoughby hire defendant, who had his contractor’s license. Willoughby, his wife, 

defendant, Patterson, and Johnson subsequently agreed that Johnson would do the 

painting and drywall, Patterson would do carpentry and some other work, and defendant 

would “run the whole thing.”

During the weeks before Patterson’s death, Patterson and Johnson were working 

together on a different project. They commuted to the job site together in Patterson’s 

truck. During the commutes, Johnson often heard phone conversations between 

defendant and Patterson. Patterson would put his cell phone on speaker, so Johnson 

heard both sides of the conversations.

One month or more before Patterson’s death, Johnson overheard defendant tell 

Patterson that he was not going to use Patterson or Johnson for the Willoughby job. 

Johnson later overheard defendant say that he had started the job. He also heard 
3

Patterson tell defendant that the Willoughbys wanted their money back, referring to a 

$10,000 deposit or down payment.

At some point after learning that defendant was not going to use him for the 

Willoughby job, Johnson spoke to defendant on the phone. They argued, and defendant 

hung up on Johnson. Defendant then called Johnson back. Defendant said he did not 

have a problem with Johnson; his issues were with Patterson. Defendant told Johnson 

that he “could kill” Patterson.

Johnson never told Patterson about defendant’s statement, but he did advise 

Patterson to stay away from defendant. Johnson also advised Patterson to stop being 

upset about defendant not using them for the Willoughby job. As recently as two days 

before the stabbing incident, Johnson had told Patterson to “leave it alone,” but Patterson 

did not seem to be able to let it go.

According to Johnson, the arguments between defendant and Patterson were not 

just about the Willoughby job. Defendant and Patterson had “long-term issues,” one of 

which involved Patterson getting defendant fired from being a supervisor at another 

construction job. The conversations he overheard included “argumentative words” and 

“bickering back and forth.”

Between May 2, 2011 and May 10, 2011 (the day of the homicide), there were 

numerous phone calls between defendant’s cell phone and Patterson’s cell phone. There 

were seven calls on May 2, five calls on May 3, seven calls on May 4, three calls on 

May 5, no calls on May 6, 28 calls on May 7, four calls on May 8, six calls on May 9, 

and three calls on May 10.

B. Testimony of Defendant’s Neighbors

Manuel Brillantes lived on defendant’s street on May 10, 2011. Just before 

3:00 p.m. that day, he heard cries for help and followed the sound. He encountered 

Phuong Phan, who lived next door to defendant. Phan had just returned home with two 

of her children and was in her driveway.
4

After confirming that Phan had also heard the cries for help, Brillantes walked 

towards defendant’s house. Brillantes looked through a broken window and saw two 

men inside near the kitchen sink. Brillantes asked, “Is everything okay there?” He heard 

one of the men say, “Help, call 9-1-1.” The man sounded weak and in pain. The second 

man said, “He’s all right, he’s all right.” The second man was wiping something off of 

his hands.

Brillantes backed away from the house. He saw the garage door open, then saw a 

man in the driveway. Phan, who was in her driveway, saw that the person was defendant. 

Phan asked defendant, “Is he okay?” Defendant told her, “He’s okay, he’s okay.” 

Defendant’s hands were red, but he did not appear to be injured.

Meanwhile, Brillantes called 9-1-1. While on the phone with the dispatcher, 

Brillantes heard defendant say, “[H]e’s all right, he’s all right,” and then saw defendant 

leave in a white truck. The white truck had been parked across defendant’s driveway, 

blocking Patterson’s burgundy truck, which was parked in defendant’s driveway. 

Brillantes next saw a person standing up, then crawling, in defendant’s garage.

Patterson was found lying on the ground in defendant’s driveway, just outside of 

the garage, near the back of Patterson’s own truck. Patterson was treated by paramedics 

and taken to the hospital, where he died.

C. Defendant’s Fall or Jump from the Overpass

On the afternoon of May 11, 2011, Brian Kent and his wife were driving 

northbound on Highway 101 in Santa Barbara County. He saw a white truck come up 

behind him. The truck was speeding and almost hit Kent’s car two times. Kent wanted 

to call 9-1-1, and his wife wanted to call the number on the side of the truck. Kent 

followed the truck as it took an exit and went onto an overpass.

The white truck stopped on the overpass. Defendant was inside the truck. He 

appeared to be doing something—possibly writing. After about two or three minutes, he 
5

drove forward, stopped again, got out, and walked to the overpass railing. Defendant 

“toppled over” the railing, with his body “almost straight as a board.”

Ronald Jasso was also driving with his wife northbound on Highway 101 on 

May 11, 2011. Jasso saw defendant standing on the overpass. Defendant put his arms at 

his sides and “cartwheeled” over the railing. Defendant landed in the fast lane of the 

freeway, feet first, and then “crumpled.” Jasso pulled over and went to see if defendant 

was okay. Defendant appeared to be unconscious at first, but he later tried to stand up 

and crawl toward the center of the fast lane. Jasso did not hear defendant say anything. 

Defendant was wearing clear plastic gloves on both hands.

Detectives from the Santa Barbara County Sheriff’s Department searched 

defendant’s truck, finding a note inside. The note included “$5,000 Ricky stole my 

money” and “Chanda was fucking not faithful.” The note also listed a number of names 

of defendant’s friends and family members. Defendant’s truck also contained an empty 

Sominex box, Sominex pill wrappers, two empty Red Bull cans, and eight unopened cans 

of tuna fish.

D. Patterson’s Autopsy

After his death, Patterson’s body underwent an autopsy. The cause of Patterson’s 

death was complications of multiple stab wounds of the head and extremities—in other 

words, extreme blood loss. Patterson had 31 penetrating stab wounds, one of which had 

transected a large vein and an artery. Seven of the stab wounds were one-half inch deep; 

all of the others were deeper.

Patterson had a stab wound near his shoulder that was over three inches long and 

one inch deep. He had a stab wound in the back of his head that was one and a half 

inches long and one inch deep. Patterson’s skull had been chipped. This stab could have 

broken a knife blade.
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Patterson had several stab wounds in his face. One was on the right side of his 

face, one was in his forehead, and one was on the left side of his face. He also had a stab 

wound near his left ear.

Patterson had a number of stab wounds in or around his left arm. A stab wound in 

his left shoulder was three inches deep; it had both entry and exit wounds. Another stab 

wound was below that one. He had three stab wounds in his left arm. One of those 

wounds was three inches deep and was “probably the most significant” of all his wounds; 

it was the one that had transected a major vein and an artery.

There were three stab wounds in Patterson’s left hand, along with an incised 

wound on that hand. At least two of the stab wounds were in Patterson’s palm. One of 

the stab wounds in that hand was four inches long.

Patterson had two stab wounds in his right arm. Stab wounds in the back of his 

right upper arm and in his right forearm were both three inches deep. There was one stab 

wound and one incised wound on his right hand.

The remaining stab wounds were all in Patterson’s legs. Several of the stab 

wounds in his left leg were three or more inches deep. One of the stab wounds in 

Patterson’s right leg was four inches deep, and another one had gone through his leg.

Patterson also had blunt force injuries to his forehead, the bridge of his nose, and 

to his chest. He had abrasions on his abdomen, back, and arm.

Patterson was five feet, 11 inches tall and weighed 262 pounds at the time of his 

death. Defendant was five feet, 10 inches tall and weighed 228 pounds.

E. Defendant’s Injuries

Defendant’s hands were photographed on May 12, 2011, when he was in the 

hospital. There were horizontal defects on four fingers of defendant’s right hand. These 

appeared to be sharp force injuries, and they would have made it impossible for 
7

defendant to grip a knife handle.2 Defendant had similar damage to the pinkie finger of 

his left hand. The injuries on defendant’s hands were consistent with his hands sliding 

onto the blade of the knife after stabbing Patterson and hitting bone. The injuries could 

also have been defensive wounds.

F. Evidence Found at Defendant’s Residence

Police investigators searched defendant’s residence, where Patterson’s burgundy 

truck was backed into defendant’s driveway. There was a “club” locking device on the 

steering wheel of Patterson’s truck, and the truck’s doors were locked.

A knife handle with a broken blade, which contained blood, was found in a 

garbage can in the garage. A broken knife blade was found on the kitchen floor. A 

broken coffee pot was also found on the kitchen floor. When police first arrived, the 

faucet in the kitchen sink was running. The bay window in the living room was broken, 

with a small kitchen drawer lodged in it. A chair in the dining room was overturned. A 

set of blinds in the bedroom was pulled down.

Blood was found in several locations throughout defendant’s residence. The 

“bloodletting” had begun in the master bedroom, where a lot of blood was lost. There 

was blood on the bed, pillows, and carpet. There was also blood in the hallway leading 

out to the living room and kitchen, including handprints on the hallway walls. Some of 

the handprints were near the ground, indicating a person may have been crawling. Other 

hand prints were higher up, suggesting that a second person had walked through the hall. 

The higher handprints appeared to have been from someone who had blood on his or her 

hands but whose own hands were not cut. The lower handprints appeared to have been 

from someone who had “quite a volume” of blood on his hands.

In the living room, there were bloody footprints leading from the kitchen to the 

front door and back. There was a blood smear on the front door’s dead bolt.

 

2 Defendant was right-handed.
8

A large amount of blood was in the kitchen. Blood was smeared on cabinets, 

appliances, and the floor. Blood droplets were on top of the smears, indicating that 

someone bloody was “being smeared around on the floor” and someone else was 

bleeding on top. There was a large pool of blood under a kitchen counter, indicating that 

someone lost a lot of blood in that location. A blood smear on a kitchen cabinet 

suggested that something—such as a head or knee—had been hit repeatedly against it. 

The blood on the kitchen floor was consistent with Patterson being stabbed there, and 

higher spatter indicated that was where he was stabbed in the back of the head.

Blood spatter near a light switch in the entry to the garage from the kitchen was 

consistent with the hand injury defendant had suffered. Blood stains on the floor going 

into and through the garage were consistent with someone crawling.

A number of items in defendant’s house were tested for DNA. Patterson was the 

major source of the DNA in samples taken from blood on the bedroom floor and from 

blood on items in the bedroom such as a quilt and two pillowcases. Patterson was also 

the source of the DNA in blood samples taken from the hallway. Samples of blood found 

in the kitchen contained mixtures of Patterson’s DNA and defendant’s DNA. Patterson’s 

DNA was on the knife blade along with other DNA, which could have come from 

defendant. Defendant’s DNA was on the knife handle, with Patterson as a possible 

contributor.

According to criminalist Cordelia Willis, the above evidence showed that 

defendant was not bleeding in the master bedroom, where there had been a struggle; he 

was injured in the kitchen, where there was a further struggle. The bloody footprints 

indicated that defendant had walked to the front door and back after the struggle in the 

bedroom and before being injured in the kitchen.

There was no sign of forced entry into defendant’s house, except where the police 

had broken down the front door. Patterson’s cell phone was found on the floor of 

defendant’s bedroom; it had Patterson’s blood on it.
9

G. Defense Testimony

Timothy Sutherland was driving his motorcycle north on Highway 101 in Santa 

Barbara County on May 11, 2011 when he saw defendant lying in the roadway. 

Sutherland pulled over and went to see if defendant was okay. Defendant told him, 

“He had a knife. He came at me.”

Forensic pathologist and consultant Dr. Judy Melinek testified that defendant’s 

hand wounds appeared to be defensive injuries. She thought it was unlikely, but possible, 

that the wounds were caused by defendant’s hand slipping onto the knife blade. She 

testified that if defendant had consumed the entire box of Sominex pills, he would have 

been disoriented and sleepy, and he possibly would have hallucinated and been delirious.

Private investigator Gregg Dietz took photos and video at defendant’s residence. 

From the location where Brillantes claimed to have been standing when he looked inside, 

a person could not see into the kitchen.

Santa Barbara Deputy Sheriff David Valadez was one of the officers who 

responded to the scene of defendant’s fall or jump from the overpass on May 11, 2011. 

Deputy Valadez had removed the plastic gloves from defendant’s hands, although 

defendant had tried to prevent him from doing so by clenching his fists. Deputy Valadez 

did not know what had happened to the gloves.

Defendant did not testify at trial.

H. Prior Misconduct Evidence – Chanda McClendon

Chanda McClendon had a two-year dating relationship with defendant that ended 

in May of 2011. At some point in April or May of 2011, defendant told McClendon, 

“I can’t take too much or I’m going to snap,” referring to “his pressures.”

On May 2, 2011, McClendon was parking in a garage at her school when 

defendant showed up. Defendant blocked McClendon’s car in with his white truck. He 

approached her, behaving “erratic” and “crazy.” Defendant threatened to kill himself.
10

Later that same day, defendant again blocked McClendon’s car, but he eventually 

allowed her to move her car. McClendon called 9-1-1 and drove towards a police station. 

Defendant followed her and pulled up alongside her when she parked. McClendon 

subsequently obtained a restraining order.

A search of defendant’s computer after the Patterson homicide showed that 

defendant had performed a number of Google searches following the McClendon 

incident. On May 2, 2011, defendant had searched for “how to commit suicide with 

sleeping pills.” On May 4, 2011, defendant had searched for “how to get out of a 

restraining order.” On May 6, 2011, defendant had performed a number of searches 

containing McClendon’s name as well as searches such as “how to disguise your looks.” 

On May 7, 2011, defendant had searched for “the death of Andrew Mark Rachal” and the 

definition of stalking.

I. Prior Misconduct Evidence – Diane Williams and Gail Seahorn

On March 28, 1998, San Jose Police officers were dispatched to a residence 

in response to a domestic dispute call. The officers contacted defendant and 

Diane Williams, and they handcuffed defendant. Defendant told an officer, “I was 

protecting her because someone attacked her.” Defendant asked Williams not to press 

charges. While one officer filled out paperwork and the other spoke with Williams in 

another room, defendant tried to dive head-first through a second story window. In 1999, 

defendant was convicted of felony false imprisonment by violence against Williams as 

well as infliction of corporal injury on a spouse or cohabitant.

In 2004, defendant was convicted of false imprisonment by violence against 

Gail Seaton. No facts of that offense were introduced at trial.

J. Verdicts and Sentencing

The jury was instructed on three theories of first degree murder: premeditation 

and deliberation, torture, and lying in wait. The jury was also instructed on second 
11

degree murder. In addition, the jury was instructed on self defense and defense against 

harm within the home.

The jury convicted defendant of first degree murder (§ 187, subd. (a)) and found 

true an allegation that he personally used a deadly or dangerous weapon in the 

commission of that offense (§ 12022, subd. (b)(1)). The trial court sentenced defendant 

to a prison term of 25 years to life for the murder, consecutive to a one-year term for the 

weapon use allegation.

III. DISCUSSION

A. Sufficiency of the Evidence

Defendant contends there was insufficient evidence to support the jury’s first 

degree murder verdict. He argues the prosecution failed to meet its burden to prove that 

defendant did not act in self defense, and he contends there was insufficient evidence that 

he committed the murder with premeditation and deliberation, by torture, or by lying in 

wait.

“The law we apply in assessing a claim of sufficiency of the evidence is well 

established: ‘ “ ‘ “[T]he court must review the whole record in the light most favorable 

to the judgment below to determine whether it discloses substantial evidence—that is, 

evidence which is reasonable, credible, and of solid value—such that a reasonable trier of 

fact could find the defendant guilty beyond a reasonable doubt.” ’ ” ’ [Citation.] . . . 

‘We presume “ ‘in support of the judgment the existence of every fact the trier could 

reasonably deduce from the evidence.’ [Citation.]” (People v. Gonzales and Soliz (2011) 

52 Cal.4th 254, 294.)

1. Self-Defense

A person has the right to use “all force necessary” in self-defense if, based on the 

“nature of the attack,” a reasonable person would be “justified in believing that his [or 

her] assailant intends to commit a felony upon him [or her].” (People v. Clark (1982) 
12

130 Cal.App.3d 371, 377 (Clark), overruled on other grounds by People v. Blakeley

(2000) 23 Cal.4th 82, 92.) When an intruder “unlawfully and forcibly enter[s]” a 

residence, there is “a rebuttable presumption that [the resident] was in reasonable fear 

of imminent danger when he [or she] used deadly force within his [or her] residence.” 

(People v. Brown (1992) 6 Cal.App.4th 1489, 1496.)

However, “a person may use only that force which is necessary in view of the 

nature of the attack; any use of excessive force is not justified and a homicide which 

results therefrom is unlawful. [Citation.]” (Clark, supra, 130 Cal.App.3d at p. 377.) 

“[A] person may be found guilty of unlawful homicide even where the evidence 

establishes the right of self-defense if the jury finds that the nature of the attack did not 

justify the resort to deadly force or that the force used exceeded that which was 

reasonably necessary to repel the attack.” (Id. at p. 380.)

“When the issue of self-defense is properly presented in a homicide case, the 

prosecution must prove the absence of the justification beyond a reasonable doubt. 

[Citation.]” (People v. Pineiro (1982) 129 Cal.App.3d 915, 920.) “Issues arising out of 

self-defense, including whether the circumstances would cause a reasonable person to 

perceive the necessity of defense, whether the defendant actually acted out of defense of 

himself [or herself], and whether the force used was excessive, are normally questions of 

fact for the trier of fact to resolve. [Citations.]” (Clark, supra, 130 Cal.App.3d at p.

378.) However, a reviewing court may conclude that the prosecution failed to carry its 

burden to prove that a homicide was not justified if the evidence of adequate provocation 

or self-defense is “ ‘both uncontradicted and sufficient as a matter of law.’ ” (Ibid.) The 

issue is a question for the trier of fact “where some of the evidence tends to show a 

situation in which a killing may not be justified” or where “the evidence is 

uncontroverted, but reasonable persons could differ on whether the resort to force was 

justified or whether the force resorted to was excessive.” (Id. at p. 379.)
13

Here, defendant contends the prosecution did not present sufficient evidence from 

which the jury could have concluded that defendant did not act in self-defense when he 

killed Patterson. In other words, defendant contends that the evidence established he 

acted in self-defense as a matter of law. Defendant points out that there was evidence 

Patterson harbored “ill-will and animosity” towards him, that there was no evidence 

defendant had invited Patterson to his home, that the altercation apparently began in 

defendant’s bedroom, and that defendant subsequently claimed that Patterson had come 

at him with a knife.

The question of whether defendant was entitled to use deadly force was a question 

for the jury because at least some of the evidence tended to show that the homicide was 

not justified and that “the force resorted to was excessive.” (Clark, supra, 130 

Cal.App.3d at p. 379.) The evidence showed that the violent altercation began in the 

bedroom, but the evidence did not necessarily support the defense theory that defendant 

had been sleeping or was taken by surprise by Patterson. Patterson—not defendant—was 

the major source of the blood in the bedroom, where a lot of blood was lost. The 

evidence indicated that defendant suffered the injuries to his hands later, in the kitchen, 

where there was a mixture of defendant’s blood and Patterson’s blood. Patterson’s DNA 

was on the knife blade, and defendant’s DNA was on the knife handle. Thus, the jury 

could reasonably conclude that defendant had the knife from the very beginning of the 

altercation and that he initiated the use of force. The evidence of the two sets of bloody 

handprints coming from the bedroom strongly indicated—in light of the DNA 

evidence—that Patterson crawled out of the bedroom, while defendant walked out, and 

that Patterson suffered additional injuries in the kitchen, including the injury to his head, 

which likely caused the high blood spatter in the kitchen and possibly caused the knife 

blade to break. The evidence established that Patterson was stabbed more than 30 times, 

all over his body. The presence of Patterson’s cell phone on the bedroom floor, with 

Patterson’s blood on it, suggested that Patterson may have tried to call 9-1-1 when he was 
14

still in the bedroom, prior to the additional stab wounds he suffered in the kitchen. Based 

on this evidence, the jury could reasonably conclude that defendant continued to stab 

Patterson at a time when Patterson was not a reasonable threat to defendant—i.e., that 

even if Patterson initiated the altercation, defendant used force in excess of “that which 

was reasonably necessary to repel the attack.” (Id. at p. 380.)

Other evidence supported the jury’s finding that defendant did not act in selfdefense. Defendant’s neighbors heard cries for help, and the jury could reasonably find 

that those cries came from Patterson, in light of the severity of his injuries in comparison 

to those suffered by defendant, who was able to walk out of the house and drive away. 

Additionally, when defendant saw his neighbors, he did not say that he had been 

attacked. Instead, defendant claimed that Patterson was “all right” and “okay,” and he 

fled without calling the police.

On this record, a reasonable jury could have found beyond a reasonable doubt that 

defendant’s use of deadly force was not justified. Substantial evidence supports the 

jury’s finding that the homicide was not justified.

2. Premeditation and Deliberation

Defendant contends the evidence was insufficient to support a finding of

premeditated and deliberate murder. His argument is based on People v. Anderson

(1968) 70 Cal.2d 15 (Anderson), in which the court set forth three categories of evidence 

commonly present in cases of premeditated and deliberate murder: (1) planning activity, 

(2) preexisting motive and (3) manner of killing.3(Id. at pp. 26-27.)

 

3

The Anderson factors are not exclusive or exhaustive. “The Anderson analysis 

was intended as a framework to assist reviewing courts in assessing whether the evidence 

supports an inference that the killing resulted from preexisting reflection and weighing of 

considerations. It did not refashion the elements of first degree murder or alter the 

substantive law of murder in any way.” (People v. Thomas (1992) 2 Cal.4th 489, 517.)
15

Defendant first contends there was no evidence showing that he planned to attack 

or kill Patterson. According to defendant, there was no evidence that defendant “lured” 

Patterson to defendant’s house or to his bedroom and no evidence that defendant brought 

the knife to his bedroom before the violent altercation began. Defendant also argues that 

any inference of premeditation was negated by the fact that Patterson was still alive when 

defendant left.

On this record, the jury could have reasonably concluded that defendant planned a 

knife attack on Patterson. There was no evidence that Patterson forced his way into 

defendant’s home. Patterson parked and locked his car in defendant’s driveway in a 

manner suggesting he believed he was welcome at the residence. The blood spatter and 

DNA evidence supported a finding that defendant was the initial assailant, first stabbing 

Patterson with a knife in the bedroom, then following him through the hallway, and 

continuing to stab him in the kitchen until the knife broke when it hit Patterson’s skull. 

Based on these facts, the jury could have determined that the “most reasonable 

inference[s]” were that defendant either invited Patterson over as part of a plan to kill him 

or that defendant formed the plan to kill Patterson after allowing Patterson to enter the 

residence. (See People v. Perez (1992) 2 Cal.4th 1117, 1127.) Further, after the 

stabbing, defendant tried to convince his neighbors that Patterson was fine, and he fled; 

he did not seem “horrified and distraught about what he had done,” but rather like 

“someone who had just fulfilled a preconceived plan.” (People v. Boatman (2013) 221 

Cal.App.4th 1253, 1267 (Boatman).)

Defendant next contends there was no evidence of motive. He relies to a large 

extent on Boatman, supra, 221 Cal.App.4th 1253, in which the defendant shot his 

girlfriend in the face. The Boatman court found no evidence of motive from the victim’s 

text messages to a friend, which suggested the defendant was angry, nor from a loud 

argument that began about three minutes before the shooting. (Id. at pp. 1258-1259, 

1267-1268.) Defendant points out that according to the Boatman court, motive satisfies 
16

the Anderson test if it is “the kind of motive that ‘would in turn support an inference that 

the killing was the result of “a pre-existing reflection” and “careful thought and weighing 

of considerations” rather than “mere unconsidered or rash impulse hastily executed.” ’ 

[Citation.]” (Id. at p. 1268.)

Here, the evidence of motive was much stronger than in Boatman. In contrast to 

Boatman, the evidence here showed that defendant and Patterson had “long-term issues,” 

and that they had been arguing for weeks prior to the homicide, not merely for a few 

minutes beforehand. Over a month before the homicide, defendant said that he “could 

kill” Patterson. This evidence supported an inference that the homicide “ ‘was the result 

of “a pre-existing reflection” and “careful thought and weighing of considerations” rather 

than “mere unconsidered or rash impulse hastily executed.” ’ [Citation.]” (Boatman, 

supra, 221 Cal.App.4th at p. 1268.)

Last, defendant contends the “manner of killing” evidence did not support a 

finding that the murder was premeditated. Defendant contrasts the stabbing here with the 

“execution-style murder” in People v. Hawkins (1995) 10 Cal.4th 920, 956 (overruled on 

other grounds by People v. Lasko (2000) 23 Cal.4th 101), where the victim was shot at 

close range in the back of the head and neck, and with cases where the defendant stabbed 

the victim in the chest, where “crucial organs” are located. Defendant points out that the 

stab wounds suffered by Patterson were not to critical organs and that they were spread 

all over his body.

The evidence here strongly suggested that defendant surprised Patterson with the 

knife attack, indicating he premeditated the assault. Defendant’s blood was not found in 

the bedroom, where the assault began, and the upper hand prints in the hallway were not 

made by someone whose hands were bleeding. By contrast, Patterson lost a significant 

amount of blood in the bedroom, and his hands were apparently bleeding as he crawled 

through the hallway. This evidence indicates that defendant suffered no defensive 

wounds initially, and thus indicates that he brought the knife into the bedroom and took 
17

advantage of an opportunity to attack an unsuspecting victim. In addition, most of the 

stab wounds were very deep—many were three inches or more, which showed that 

defendant acted in a manner consistent with the premeditated decision to kill Patterson. 

The fact that Patterson’s wounds were not to vital organs does not detract from the 

strength of this evidence. The blood in the hallway indicated that Patterson’s hands were 

among the first body parts injured, suggesting he put his hands up to keep defendant from 

stabbing more serious body parts. Further, “[t]he attack occurred in a series of rooms, 

indicating that [Patterson’s] repeated attempts to break away . . . were consistently 

thwarted by [defendant’s] relentless pursuit of him, even after he was gravely wounded.” 

(People v. Sanchez (1995) 12 Cal.4th 1, 34 [manner of killing tended to demonstrate the 

defendant acted with premeditation and deliberation], disapproved on another ground by

People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 (Doolin).) And finally, defendant 

eventually did stab Patterson in a major artery as well as in the back of the head. These 

facts supported a finding that defendant “must have intentionally killed according to a 

‘preconceived design’ to take his victim’s life in a particular way.” (Anderson, supra,

70 Cal.2d at p. 27.)

Because the evidence was sufficient to support a conviction of first degree 

premeditated murder, we need not consider whether it also supported a conviction under 

a torture-murder theory or a lying-in-wait theory. Any deficiency in the evidence of 

alternative first degree murder theories is harmless “absent an affirmative indication in 

the record that the verdict actually did rest” on one of those theories. (People v. Guiton

(1993) 4 Cal.4th 1116, 1129 [where case is given to jury on different factual theories, one 

of which is not supported by the evidence, court presumes the jurors rejected that theory 

and based the verdict on the factually supported theory].) The record here does not 

affirmatively indicate the jury relied on torture or lying in wait rather than premeditation 

as a basis for first degree murder.
18

B. Discharge of Juror No. 11

Defendant contends the trial court erred by discharging Juror No. 11 for 

misconduct. He contends the error violated his constitutional rights to a jury trial and to 

due process.

1. Proceedings Below

The jury retired to deliberate about an hour before the lunch break on August 8, 

2013.4 That afternoon, the prosecutor told the court that he had received a call from 

another deputy district attorney named Kevin Smith shortly after noon. Smith had 

overheard someone who matched the description of Juror No. 11 talking on his cell 

phone. The prosecutor represented that Smith would tell the court what he had heard.

The trial court asked defendant’s trial counsel if he wanted Smith to be sworn in. 

Defendant’s trial counsel responded in the negative, noting that Smith was “an officer of 

the court” who was expected to tell the truth.

Smith then addressed the court. He had been outside the county building at noon, 

waiting for some friends. He heard a male voice say, “not guilty,” and he looked up to 

see the person. The person then said, “And I’ll probably be the only not guilty after 

lunch too.” The person then walked away.

Neither the prosecutor nor defendant’s trial counsel had any questions for Smith. 

The trial court sent the bailiff into the jury room to ask Juror No. 11 to come to the 

courtroom and to instruct the other jurors to cease their deliberations.

The trial court addressed Juror No. 11, explaining that the juror had been 

overheard talking on his cell phone and discussing “the status of the deliberations in this 

case.” Juror No. 11 stated that he had been talking to his sister and that he had told her 

about “being in the jury deliberation,” but that he had not gone “into detail.”

 

4

The clerk’s minutes reflect that the deputy was sworn to take charge of the jury 

at 10:36 a.m., that the jury had begun deliberations by 10:44 a.m., and that the jury took 

the lunch break at 11:52 a.m.
19

The trial court told Juror No. 11 that according to Smith, Juror No. 11 had actually 

stated his position regarding whether defendant was guilty or not guilty with reference to 

the “position of the other jurors.” Juror No. 11 replied, “I didn’t – I didn’t say which 

position I had. I said, you know, I haven’t decided yet.”

The trial court asked, “So, are you saying that you did not discuss your position 

with respect to whether or not you felt the defendant was guilty or not guilty in this 

case?” Juror No. 11 replied, “No, I did not.” The trial court asked, “And it’s also your 

position that you did not state how the other 11 jurors were leaning with respect to guilty 

or not guilty or conviction?” Juror No. 11 replied, “No. I just said – I told my sister, 

‘We are in deliberation, you know, through this day, possibly tomorrow.’ ” According to 

Juror No. 11, his sister asked how long deliberations would last, and he told her “that it 

might take a couple of days.”

The trial court asked Juror No. 11 if he had said “the words ‘not guilty’ ” during 

the conversation with his sister. Juror No. 11 said, “Yes.” He had told his sister, “We are 

in jury deliberation now. We are going – we’ve got to prove if he’s guilty or not guilty, 

and it’s going to take some time, and everybody has got a chance to say what they 

believe, and it will be, you know, a period of deliberation.”

The trial court asked Juror No. 11 if he had told his sister that he “might be the 

only not guilty vote after lunch.” Juror No. 11 replied, “No, I didn’t state anything in that 

manner. Again, I just, you know, I was explaining that we’ve got to decide if he’s guilty 

or not guilty, and that, you know, we will be back into deliberation after lunch.”

The trial court asked Juror No. 11 to step out and then asked Smith more 

questions. Smith confirmed that Juror No. 11 was the person he had overheard. The 

trial court asked if Smith could have misheard Juror No. 11’s statements. Smith replied, 

“No. I heard him say ‘not guilty’ with no explanation after it. And then I heard, ‘and 

after lunch, I’ll probably be the only not guilty too.’ ” There was no question in Smith’s 

mind regarding what he had heard.
20

The prosecutor asked the trial court to make a finding regarding Juror No. 11’s 

credibility. The prosecutor argued that Smith was credible and that Juror No. 11 was not. 

The prosecutor also argued that Juror No. 11 had engaged in misconduct.

Defendant’s trial counsel argued that Juror No. 11 had not discussed the details of 

the case and thus had not violated the admonition the jury had been given. Defendant’s 

trial counsel asked the trial court to admonish Juror No. 11 instead of dismissing him.

In announcing its ruling, the trial court first addressed the issue of whether Juror 

No. 11 had committed misconduct. The trial court found it “clear” that Juror No. 11 had 

discussed the case with his sister in violation of the admonition the court had given 

pursuant to CALCRIM No. 3550.5

Regarding credibility, the trial court noted that Smith was a “veteran district 

attorney” who had tried at least three major cases before the trial court. Based on prior 

cases, the trial court felt that Smith had integrity and that he was ethical and believable. 

“So if Mr. Smith said he heard it, I know he heard it.” The trial court found that Smith 

was “very credible.”

On the other hand, Juror No. 11 was “clearly uncomfortable” when telling the trial 

court about his conversation. Juror No. 11 was “evasive” and gave different answers 

each time the trial court asked him questions. “[H]e was clearly not candid.” The trial 

court found that juror No. 11 was “not credible.”

The trial court found good cause to discharge Juror No. 11.

 

5 CALCRIM No. 3550 was read to the jury just prior to deliberations. In pertinent 

part, the jury was instructed: “As I told you at the beginning of the trial, do not talk about 

the case or about any of the people or any subject involved in it with anyone, including, 

but not limited to, your spouse or other family, or friends, spiritual leaders or advisors, or 

therapists. You must discuss the case only in the jury room and only when all jurors are 

present. Do not discuss your deliberations with anyone. Do not communicate using 

blogs, Facebook, Twitter, Tumblr, or any other social media during your deliberations.”
21

2. Legal Standards

The trial court may discharge a juror at any time, upon “good cause shown to the 

court,” if the juror “is found to be unable to perform his or her duty.” (§ 1089; see 

People v. Lomax (2010) 49 Cal.4th 530, 588 (Lomax).) Under section 1122, jurors must 

not “converse among themselves, or with anyone else, on any subject connected with the 

trial, or to form or express any opinion about the case until the cause is finally submitted 

to them.” (Id., subd. (b).) The admonition against forming an opinion requires jurors to 

consider all the evidence and precludes jurors from ignoring “further evidence, argument, 

instructions, or the views of other jurors.” (People v. Allen and Johnson (2011) 53 

Cal.4th 60, 73.) The admonition against discussing the case protects jurors from 

extraneous influence outside of the evidence and instructions. (See In re Carpenter 

(1995) 9 Cal.4th 634, 653.) “Violation of this duty is serious misconduct.” (In re 

Hitchings (1993) 6 Cal.4th 97, 118.)

“ ‘In determining whether juror misconduct occurred, “[w]e accept the trial court’s 

credibility determinations and findings on questions of historical fact if supported by 

substantial evidence.” ’ [Citations.]” (People v. Linton (2013) 56 Cal.4th 1146, 1194

(Linton).) The ultimate decision to discharge a juror is a matter within the trial court’s 

discretion. (Lomax, supra, 49 Cal.4th at p. 589.) However, “ ‘a somewhat stronger 

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

decisions on appeal. [Citation.]” (Ibid.) “[T]he basis for a juror’s disqualification must 

appear on the record as a ‘demonstrable reality.’ This standard involves ‘a more 

comprehensive and less deferential review’ than simply determining whether any 

substantial evidence in the record supports the trial court’s decision. [Citation.] It must 

appear ‘that the court as trier of fact did rely on evidence that, in light of the entire record, 

supports its conclusion that bias was established.’ [Citation.] However, in applying the 

demonstrable reality test, we do not reweigh the evidence. [Citation.] The inquiry is 
22

whether ‘the trial court’s conclusion is manifestly supported by evidence on which the 

court actually relied.’ [Citation.]” (Id. at pp. 589-590, fn. omitted.)

Defendant contends there was no evidence that Juror No. 11 could not perform his 

duties. He contends the trial court was required to presume that all jurors would follow 

the instructions given to them and that the trial court should have believed Juror No. 11 

rather than Smith. He contends the record does not provide a basis for the trial court’s 

credibility determination. He contends Juror No. 11 was credible because the 

conversation occurred shortly after deliberations had begun, a time when the jurors were 

“highly unlikely” to have already disclosed their votes for guilt.

Substantial evidence supports the trial court’s finding that Smith was credible. 

(See Linton, supra, 56 Cal.4th at p. 1194.) As defendant’s trial counsel observed, Smith 

was an officer of the court who was expected to tell the truth. Smith was definitive and 

consistent when reporting on the conversation he had overheard, and he told the trial 

court there was no question in his mind about what he had heard. The trial court heard 

Smith’s account of what he heard and thus was able to see Smith’s demeanor first-hand.

Substantial evidence also supports the trial court’s finding that Juror No. 11 was 

not credible. Juror No. 11 was vague and inconsistent when reporting on his statements 

to his sister. Juror No. 11 first told the trial court only that he had told his sister about 

“being in the jury deliberation.” Upon prodding from the trial court, Juror No. 11 then 

added that he had also told his sister that he had not decided yet. Upon still further 

questioning, he admitted using the term “not guilty,” but he denied stating a position. 

The trial court was able to observe Juror No. 11’s demeanor in making these statements. 

With respect to defendant’s claim that that the jurors were unlikely to have taken a vote at 

the beginning of deliberations, we observe that it is common for a jury to take a 

preliminary vote soon after they have retired to deliberate. (See, e.g., People v. Mendoza

(2000) 24 Cal.4th 130, 194; Vomaska v. City of San Diego (1997) 55 Cal.App.4th 905, 

909.)
23

On this record, the trial court could reasonably conclude that Juror No. 11 was less 

credible than Smith, and that Juror No. 11 had in fact violated his duty not to discuss the 

case or the deliberations with anyone. As the basis for Juror No. 11’s disqualification 

appears on the record “as a ‘demonstrable reality,’ ” the trial court did not abuse its 

discretion by dismissing that juror. (Lomax, supra, 49 Cal.4th at p. 589.)

C. Failure to Instruct on Voluntary Manslaughter

Defendant contends the trial court erred by failing to instruct the jury, sua sponte, 

on voluntary manslaughter. The Attorney General contend that this claim was waived 

under the doctrine of invited error.

1. Proceedings Below

During the jury instruction conference, defendant’s trial counsel explained that 

“an election was made to not include manslaughter as a lesser included.” Defendant’s 

trial counsel noted that he had met with defendant and defendant’s family and that he had 

explained to them his “strategic reasons and factual reasons for not wanting to have a 

lesser included of either voluntary or involuntary manslaughter.” Defendant’s trial 

counsel acknowledged that defendant disagreed with that strategy, but defendant’s trial 

counsel did not think that defendant would insist on a voluntary manslaughter instruction 

being given over counsel’s advice.

Defendant’s trial counsel conferred with defendant, then reported that defendant 

agreed that his “best interest is served by having the case go to the jury about a murder or 

not guilty by reason of self-defense, period. No manslaughter.”

The trial court noted “that giving the manslaughter instruction as a lesser included 

offense is sua sponte to the court” and asked the prosecutor for his position. The 

prosecutor noted that the evidence supporting provocation was “essentially” the same as 

the evidence supporting self-defense, and that a finding of self-defense would “lead to a 

not guilty entirely as opposed to a partial victory of voluntary manslaughter.” Thus, the 
24

prosecutor agreed that it was “a sensible tactical choice” to forego voluntary 

manslaughter instructions.

The trial court asked defendant’s trial counsel if he had discussed the matter with 

defendant on previous occasions. Defendant’s trial counsel explained that he had 

discussed the “ramifications” of the strategy with defendant previously as well as in court 

that day. Defendant’s trial counsel reiterated that “from a strategic standpoint,” he was 

choosing not to argue that provocation should reduce the homicide to voluntary 

manslaughter because he wanted the jury to find that Patterson’s attack justified 

defendant committing the homicide in self-defense. Defendant’s trial counsel also 

explained that arguing imperfect self-defense would “detract” from his self-defense 

argument.

The trial court agreed not to give the manslaughter instructions.

After the trial court instructed the jury, dismissed Juror No. 11, replaced Juror 

No. 11 with an alternate, and instructed the jury to begin deliberations anew, defendant’s 

trial counsel reported that defendant was now requesting involuntary and voluntary 

manslaughter instructions. Defendant’s trial counsel reiterated that he had discussed the 

issue with defendant on “numerous occasions,” including an hour-long conversation 

before the jury was instructed. The trial court found that defendant’s request was

untimely.

2. Analysis

“ ‘ “ ‘It is settled that in criminal cases, even in the absence of a request, the trial 

court must instruct on the general principles of law relevant to the issues raised by the 

evidence. . . .’ [Citation.] That obligation has been held to include giving instructions on 

lesser included offenses when the evidence raises a question as to whether all of the 

elements of the charged offense were present [citation], but not when there is no evidence 

that the offense was less than that charged. [Citations.] The obligation to instruct on 

lesser included offenses exists even when as a matter of trial tactics a defendant not only 
25

fails to request the instruction but expressly objects to its being given.” ’ [Citations.]” 

(People v. Souza (2012) 54 Cal.4th 90, 114 (Souza), quoting People v. Breverman (1998) 

19 Cal.4th 142, 154; see also People v. Birks (1998) 19 Cal.4th 108, 118.)

Nevertheless, a claim that the trial court failed to comply with its obligation to 

instruct on lesser-included offenses “may be waived under the doctrine of invited error if 

trial counsel both ‘ “intentionally caused the trial court to err” ’ and clearly did so for 

tactical reasons. [Citation.] Invited error will be found, however, only if counsel 

expresses a deliberate tactical purpose in resisting or acceding to the complained-of 

instruction. [Citations.]” (Souza, supra, 54 Cal.4th at p. 114.) “ ‘The doctrine of invited 

error is designed to prevent an accused from gaining a reversal on appeal because of an 

error made by the trial court at his [or her] behest.’ ” (People v. Coffman and Marlow

(2004) 34 Cal.4th 1, 49.) Thus, “a defendant may not invoke a trial court’s failure to 

instruct on a lesser included offense as a basis on which to reverse a conviction when, for 

tactical reasons, the defendant persuades a trial court not to instruct on a lesser included 

offense supported by the evidence. [Citations.]” (People v. Barton (1995) 12 Cal.4th 

186, 198.)

An example of how the invited error doctrine applies to a trial court’s failure to 

instruct on a lesser included offense is provided by People v. Cooper (1991) 53 Cal.3d 

771 (Cooper). In that case, the defendant was charged with several counts of first degree 

murder, but the trial court indicated it was considering giving instructions on second 

degree murder as well. (Id. at p. 825.) The defendant’s trial counsel objected to the 

second degree murder instructions, repeatedly stating that he did not want the jury to 

reach a compromise verdict. (Id. at p. 826.) The defendant’s trial counsel indicated he 

had obtained the defendant’s agreement with respect to that decision, and the defendant 

confirmed he did agree. (Ibid.)

On appeal, the Cooper defendant argued that the trial court had erred by failing to 

instruct on second degree murder, but the California Supreme Court held that “any error 
26

was invited” because the record showed that “[d]efense counsel had a deliberate tactical 

purpose for his objection.” (Cooper, supra, 53 Cal.3d at p. 827.) The record showed that 

the defendant’s trial counsel “believed it was in his client’s interest not to have the 

second degree murder instructions” and that counsel was aware that without an objection, 

the trial court would have given the lesser included offense instruction. (Id. at p. 831.) 

The court also noted that the defendant’s “personal waiver” was not required for 

application of the invited error doctrine. (Id. at p. 827) Rather, “the action of ‘counsel’ ” 

is “the critical factor.” (Ibid.)

In this case, the record similarly shows that defendant’s trial counsel made a 

deliberate, tactical choice to refuse manslaughter instructions. As in Cooper, defendant’s 

trial counsel made it clear he did not want the jury to have a basis upon which it could 

reach a compromise verdict. Defendant’s trial counsel believed it was in defendant’s best 

interest to pursue such a strategy, and he understood that the trial court would have given 

manslaughter instructions but for his objection. Under the circumstances, the invited 

error doctrine applies. Even though defendant himself later changed his mind, “the 

action of ‘counsel’ ” is “the critical factor” with respect to application of the invited error 

doctrine. (Cooper, supra, 53 Cal.3d at p. 827.)

D. Self-Defense Instruction

Defendant contends the trial court erred by including the word “and” instead of the 

word “or” when instructing the jury pursuant to CALCRIM No. 506, which is entitled 

“Justifiable Homicide: Defending Against Harm to Person Within Home or on Property.”

1. Instruction

The trial court instructed the jury pursuant to CALCRIM No. 506 as follows: 

“The defendant is not guilty of murder if he killed to defend himself in the defendant’s 

home. Such a killing is justified, and therefore not unlawful, if: [¶] One, the defendant 

reasonably believed that he was defending his home against Ricky Patterson who 

intended to or tried to commit the crime of assault with a deadly weapon and tried to 
27

enter or did enter that home intending to commit an act of violence against someone 

inside; [¶] Two, the defendant reasonably believed that the danger was imminent; [¶] 

Three, the defendant reasonably believed that the use of deadly force was necessary to 

defend against the danger; [¶] and [¶] Four, the defendant used no more force than was 

reasonably necessary to defend against the danger. [¶] Belief in future harm is not 

sufficient, no matter how great or how likely the harm is believed to be. The defendant 

must have believed there was imminent danger of violence to himself. Defendant’s belief

must have been reasonable and he must have acted only because of that belief. The 

defendant is only entitled to use the amount of force that a reasonable person would 

believe is necessary in the same situation. If the defendant used more force than was 

reasonable, then the killing was not justified. [¶] When deciding whether the defendant’s 

beliefs were reasonable, consider all the circumstances as they were known to and 

appeared to the defendant and consider what a reasonable person in a similar situation 

with similar knowledge would have believed. If the defendant’s beliefs were reasonable, 

the danger does not need to have actually existed. [¶] A defendant is not required to 

retreat. He is entitled to stand his ground and defend himself and, if reasonably 

necessary, to pursue an assailant until the danger of death or bodily injury has passed. 

This is so even if safety can [be] achieved by retreating. [¶] The People have the burden 

of proving beyond a reasonable doubt that the killing was not justified. If the People 

have not met this burden, you must find the defendant not guilty of murder.” (Emphasis 

added.)

2. Analysis

The defense described in CALCRIM No. 506 is based on section 197, 

subdivision (2), which provides that a homicide is justifiable “[w]hen committed in 

defense of habitation, property, or person, against one who manifestly intends or 

endeavors, by violence or surprise, to commit a felony, or against one who manifestly 

intends and endeavors, in a violent, riotous or tumultuous manner, to enter the habitation 
28

of another for the purpose of offering violence to any person therein.” (Emphasis added.) 

In contrast to the instruction given here, the standard version of CALCRIM No. 506

contains the word “or” where the word “and” appears in italics in the quoted instruction 

above.6

The Attorney General concedes and we agree that the trial court here erred by 

replacing the word “or” with the word “and” in the first element of CALCRIM No. 506. 

Thus, the question is whether the error requires reversal.

We will assume that a court’s misinstruction on an element of a defense is akin to

a court’s misinstruction on an element of an offense, which is subject to harmless error 

review under the beyond-a-reasonable-doubt standard of Chapman v. California (1967) 

386 U.S. 18, 24 (Chapman). (See People v. Flood (1998) 18 Cal.4th 470, 502-503.) 

Under this standard, the error is harmless only if we can declare “beyond a reasonable 

doubt that the error complained of did not contribute to the verdict obtained.” (Chapman,

supra, at p. 24.) “To say that an error did not contribute to the verdict is, rather, to find 

that error unimportant in relation to everything else the jury considered on the issue in 

question, as revealed in the record.” (Yates v. Evatt (1991) 500 U.S. 391, 403 (Yates) 

disapproved on another ground by Estelle v. McGuire (1991) 502 U.S. 62, 73, fn. 4.)

As given, the instruction required the jury to find that Patterson both (1) “intended 

to or tried to commit the crime of assault with a deadly weapon” and (2) “tried to enter or 

did enter that home intending to commit an act of violence against someone inside.” The 

instruction should have required the jury to find only one of these two facts. On this 

record, however, the error was harmless beyond a reasonable doubt. The defense theory 

was that Patterson went to defendant’s residence with the intent to commit an act of 

violence against him, and then proceeded to assault defendant with the knife while 

 

6

The written version of CALCRIM No. 506 provided to the jury also contained 

the word “and” instead of the word “or.”
29

defendant was in his bed. Defendant’s trial counsel never argued that Patterson formed 

the intent to commit an act of violence against defendant after entering the residence. If 

the jury believed the defense theory that Patterson assaulted defendant with a knife while 

defendant was in bed, it would have found that Patterson both “intended to or tried to 

commit the crime of assault with a deadly weapon” and “tried to enter or did enter that 

home intending to commit an act of violence against someone inside.” Because the 

defense theory relied on the existence of both facts, the instructional error was 

“unimportant in relation to everything else the jury considered on the issue in question, as 

revealed in the record.” (Yates, supra, 500 U.S. at p. 403.)

Moreover, the defense of section 197, subdivision (2) as defined in CALCRIM 

No. 506 required the jury to find that defendant “used no more force than was reasonably 

necessary to defend against the danger.” The evidence overwhelmingly established that 

defendant used more force than necessary, even if Patterson did initiate the assault by 

coming towards defendant with a knife. The incident began in the bedroom, where only 

Patterson’s blood was found. This evidence established that defendant either initiated the 

assault with the knife or quickly disarmed Patterson of the knife. Further, Patterson was 

stabbed more than 30 times, including a likely final blow to the back of the head that was 

hard enough to break the knife. Many of Patterson’s wounds were inflicted in the 

kitchen, after he was so wounded he could only crawl out of the bedroom. On this 

record, no reasonable juror would find that defendant “used no more force than was 

reasonably necessary to defend against the danger.” Thus, beyond a reasonable doubt, 

the instructional error with respect to Patterson’s intent and entry “did not contribute to 

the verdict obtained.” (Chapman, supra, 386 U.S. at p. 24.)

E. Prosecutorial Misconduct

Defendant contends the prosecutor committed misconduct during closing 

argument by (1) misstating the law of self-defense within the home, (2) appealing to the 
30

sympathy of the jurors, (3) injecting his personal opinion of the evidence into the trial, 

and (4) attacking defense counsel.

The general rules applying to claims of prosecutorial misconduct are as follows: 

“Under the federal Constitution, to be reversible, a prosecutor’s improper comments must 

‘ “so infect[ ] the trial with unfairness as to make the resulting conviction a denial of due 

process.” ’ [Citations.] ‘ “But conduct by a prosecutor that does not render a criminal 

trial fundamentally unfair is prosecutorial misconduct under state law only if it involves 

‘ “the use of deceptive or reprehensible methods to attempt to persuade either the court or 

the jury.” ’ ” [Citations.]’ [Citation.]” (People v. Cunningham (2001) 25 Cal.4th 926, 

1000.) When the claim of prosecutorial misconduct “is based upon ‘comments made by 

the prosecutor before the jury, the question is whether there is a reasonable likelihood 

that the jury construed or applied any of the complained-of remarks in an objectionable 

fashion. [Citation.]’ [Citations.]” (Id. at p. 1001.)

“A defendant generally ‘ “ ‘may not complain 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. [Citation.]’ ” [Citation.]’ [Citation.] A defendant’s failure to object and to 

request an admonition is excused only when ‘an objection would have been futile or an 

admonition ineffective.’ [Citation.]” (People v. Fuiava (2012) 53 Cal.4th 622, 679

(Fuiava).)

Here, defendant’s claims of prosecutorial misconduct all involve prosecutorial 

argument to which his trial counsel failed to object. As to some of the claims, he asserts 

that an objection would have been futile, and he argues that his trial counsel was 

ineffective for failing to object in each instance.

1. Alleged Misstatement of Law

Defendant first contends that the prosecutor misstated the law of self-defense 

within the home by stating that the defense applied only if the jury found that Patterson 
31

broke into defendant’s residence “with murder on his mind.” Defendant points out that 

the instructions and law required the jury to find that Patterson intended to assault 

defendant, not murder him.

The challenged comment was made in the context of the prosecutor’s discussion 

of the presumption set forth in section 198.5: that a person held “a reasonable fear of

imminent peril of death or great bodily injury” if he or she used “force intended or likely 

to cause death or great bodily injury within his or her residence” against a person who 

“unlawfully and forcibly entered” the residence. The prosecutor told the jurors, “[Y]ou 

don’t need [that presumption]. If you find that Ricky Patterson broke into that house with 

murder on his mind, send [defendant] home. That’s not what happened.”

“[I]t is misconduct for the prosecutor to misstate the applicable law [citation].” 

(People v. Boyette (2002) 29 Cal.4th 381, 435.) Here, the prosecutor’s comment did not 

state that the jury could find defendant acted in self-defense within his home only if 

Patterson broke in with “murder on his mind.” In context, the prosecutor was telling the 

jury that it did not need to even consider whether the section 198.5 presumption applied if 

Patterson was thinking of killing defendant when he entered defendant’s residence.

Even assuming the prosecutor misstated the law, an objection would not have been 

futile and an admonition would have been effective. (See Fuiava, supra, 53 Cal.4th at 

p. 679.) Defendant’s trial counsel could have requested the trial court tell the jury the 

correct legal standard. However, defendant’s trial counsel was not ineffective for failing 

to object and request an admonition. “[D]eciding whether to object is inherently tactical, 

and the failure to object will rarely establish ineffective assistance. [Citations.]” (People 

v. Maury (2003) 30 Cal.4th 342, 419.) The record indicates defendant’s trial counsel 

made a tactical decision to respond to the prosecutor’s comments by reading the jury the 

requirements for CALCRIM No. 506 during his own argument. (See People v. Welch

(1999) 20 Cal.4th 701, 764 (Welch ).) This decision was reasonable, particularly since 

the jury was also instructed to follow the trial court’s instructions on the law and that if 
32

“the attorneys’ comments on the law conflict with [the] instructions, you must follow 

[the] instructions.” (See CALCRIM No. 200.)

2. Alleged Appeals to Jurors’ Sympathy

Defendant next contends the prosecutor improperly appealed to the sympathy of 

the jurors by (1) asking the jurors to consider what they would think if “someone did this 

to a dog or cat” and saying that only a “sadistic evil person” would do such a thing; 

(2) referring to self-defense as a “license to kill;” and (3) repeatedly reminding the jury 

how much defendant’s expert (Dr. Melinek) was being paid.

“A prosecutor may ‘vigorously argue his [or her] case and is not limited to 

“Chesterfieldian politeness” ’ [citation], and he [or she] may ‘use appropriate epithets 

warranted by the evidence.’ [Citations.]” (People v. Fosselman (1983) 33 Cal.3d 572, 

580.) When a defendant claims that a prosecutor made outrageous or prejudicial 

comments, we “view the statements in the context of the argument as a whole. 

[Citation.]” (People v. San Nicolas (2004) 34 Cal.4th 614, 665-666.)

a. References to Animals and Use of Term “Sadistic”

The prosecutor’s comments about animals came in the context of his argument 

about first degree murder by torture. The prosecutor argued that the elements of torturemurder—including the requirement that the defendant “intended to inflict the pain for 

any sadistic reason”—were met. (See CALCRIM No. 733; People v. Jennings (2010) 

50 Cal.4th 616, 676, fn. 28.) The prosecutor stated, “Just look at what happened to 

Mr. Patterson and ask yourself this question: Is it anything but sadistic to do this to your 

friend? Or any other person? [¶] You know, sometimes I think we, in the [B]ay [A]rea, 

a lot of us are animal lovers. Imagine what you might think if someone did this to a dog 

or a cat. Who would think for one millisecond that that was anything but a sadistic, evil 

person? [¶] Ricky Patterson is a human being. Of course it’s sadistic.”

The above argument did not amount to an improper appeal to the jury’s 

sympathies. The prosecutor did not argue that defendant had inflicted animal abuse; he 
33

argued that defendant had inflicted pain on Patterson, a human being. Further, the term 

“sadistic” was in the jury instruction on torture-murder. (See CALCRIM No. 733.) 

Moreover, even if the comments did cross the line of permissible argument, an objection 

and admonition would have cured the harm. (See Fuiava, supra, 53 Cal.4th at p. 679.) 

And finally, trial counsel was not ineffective for failing to object, as the record reveals he 

made a reasonable tactical decision to respond to the prosecutor’s remarks in his own 

argument.7 (See Welch, supra, 20 Cal.4th at p. 764.)

b. Use of Phrase “License to Kill”

The prosecutor used the term “license to kill” several times when discussing selfdefense. The prosecutor equated “lawful self-defense” with “a right to kill someone” and 

a “license to kill.” Even if the prosecutor’s use of the phrase “license to kill” amounted 

to an improper attempt to persuade the jury, an objection and admonition would have 

cured any harm. (See Fuiava, supra, 53 Cal.4th at p. 679.) And on this record, trial 

counsel’s failure to object appears to be the result of a tactical decision. During his own 

argument to the jury, defendant’s trial counsel discussed each element of self-defense as 

provided by CALCRIM No. 505. Defendant’s trial counsel appears to have determined 

that it would be more effective to respond to the prosecutor’s argument by focusing on 

the facts and the wording of the self-defense instruction. (See Welch, supra, 20 Cal.4th 

at p. 764.) This was a reasonable tactical decision, particularly since the jury was told to 

follow the trial court’s instructions rather than the arguments of counsel. (See 

CALCRIM No. 200.)

 

7 Defendant’s trial counsel argued that the prosecutor “tried to appeal to your 

emotions by comparing to what happened to [Patterson] to your feelings if the knife 

wounds had been used on a dog or a cat in the hope that you would consider [Patterson] 

in the same way you would feel for a dog or a cat. A dog and a cat are defenseless 

animals. They love people, by and large. They don’t carry knives. They don’t sneak 

into a house trying to kill you. Why would he use that example? Just to pull at your 

heart strings, to hope that you will make an emotional decision rather than one based on 

facts.”
34

c. Comments About Defense Expert

When cross-examining Dr. Melinek, the prosecutor elicited the fact that she had 

put in about 10 hours of work on defendant’s case and the fact that she charged $600 per 

hour. During argument to the jury, the prosecutor referred to Dr. Melinek’s “$6,000 

worth of testimony.” The prosecutor noted that he had not asked Dr. Melinek “how 

much more she would make over that lunch hour” and that she would make $864,000 a 

year by working only 30 hours per week for 40 weeks out of the year. The prosecutor 

also noted that her “over $6,000 of testimony” had informed the jury that “sometimes 

people run out of fear from future consequence,” and he commented, “As if we needed a 

$600-an-hour expert to tell us that.” The prosecutor later argued that Dr. Melinek had an 

“incentive” to give testimony that was helpful to the defense because she was getting 

“paid $600 an hour.”

“[T]he prosecutor has considerable leeway in suggesting an expert may testify a 

certain way for financial gain or other reasons, without committing misconduct. 

[Citation.]” (People v. Salcido (2008) 44 Cal.4th 93, 154 (Salcido).) Here, an objection 

and admonition would have cured any harm (see Fuiava, supra, 53 Cal.4th at p. 679), and 

trial counsel’s failure to object appears to be the result of a tactical decision to respond 

during his own argument, rather than due to ineffective assistance.8 (See Welch, supra,

20 Cal.4th at p. 764.)

 

8 Defendant’s trial counsel responded to the prosecutor’s comments as follows: 

“I’m not going to dignify [the prosecutor’s] attack on Doctor Melinek’s compensation. 

That was paid to her by the county. Those fees were paid only after [the presiding judge] 

was satisfied that the fees were reasonable and proper. To suggest that she earns 

$840,000 a year and, therefore, for some reason you should disregard her testimony is 

absurd.”
35

3. Alleged Injection of Personal Opinion

Defendant next contends the prosecutor improperly injected his personal opinion 

of the evidence into the trial. Defendant identifies six comments as objectionable on this 

basis.

“ ‘[A] prosecutor may not . . . vouch personally for the appropriateness of the 

verdict he or she urges.’ [Citation.]” (People v. Ayala (2000) 24 Cal.4th 243, 288.) “A 

prosecutor is [also] prohibited from vouching for the credibility of witnesses or otherwise 

bolstering the veracity of their testimony by referring to evidence outside the record. 

[Citaitons.]” (People v. Frye (1998) 18 Cal.4th 894, 971, disapproved on another ground 

by Doolin, supra, 45 Cal.4th at p. 421, fn. 22.)

First, defendant criticizes the prosecutor for telling the jury, “I can’t think of a 

more idiotic, stupid way to go over to your friend’s house with an intent to injure or kill 

him than to do it in your own truck, lock the doors so you can’t make a speedy 

getaway . . . .” Second, he criticizes the prosecutor for saying, “I think probably the thing 

that illustrates the lack of Mr. Patterson’s intent [to harm defendant]” is that “the phone 

was on the speaker.” As to both of these comments, the gist of defendant’s criticism is 

the prosecutor’s use of the pronoun “I.” However, “[s]uch phraseology hardly establishes 

impermissible expression of personal belief in the defendant’s guilt. [Citation.] 

Examination of the prosecutor’s closing argument demonstrates that he was merely 

presenting his views of the deductions and inferences warranted by the evidence. 

[Citation.]” (People v. Allison (1989) 48 Cal.3d 879, 894 (Allison).)

The third challenged comment was made when the prosecutor discussed the length 

of time that defendant’s trial counsel spent cross-examining Phan, one of the two 

neighbors who testified. The prosecutor told the jury, “I honestly can’t explain why 

[defense] counsel took so much time with Miss Phan when it’s corroborated by Mr. 

Brilliantes’ testimony.” While “ ‘[p]ersonal attacks on opposing counsel are improper 

and irrelevant to the issues,’ ” in this instance “ ‘[t]he prosecutor did not engage in such 
36

forbidden tactics as accusing defense counsel of fabricating a defense or factually 

deceiving the jury.’ ” (People v. Friend (2009) 47 Cal.4th 1, 31 (Friend).) In context, a 

reasonable jury would have understood the prosecutor to be arguing about the strength of 

the evidence.

The fourth challenged comment was made when the prosecutor was discussing 

Dr. Melinek’s testimony. The prosecutor noted that he had asked Dr. Melinek whether 

credible experts have legitimate differences of opinion and that Dr. Melinek had agreed. 

The prosecutor then stated, “What Doctor Melinek needs to add to that statement is: 

experts who are paid $600 an hour to wait in the hallway to tell you people run out of 

fear.[] Okay. I agree.” By expressing his personal agreement with Dr. Melinek’s 

testimony that “people run out of fear,” the prosecutor did not overstep the bounds of 

permissible argument. As noted above, “[t]he prosecutor has considerable leeway” in 

discussing the testimony of a defense expert (Salcido, supra, 44 Cal.4th at p. 154) and in 

context, the prosecutor’s reference to his agreement with Dr. Melinek did not amount to 

an impermissible expression of personal belief in defendant’s guilt. (See Allison, supra,

48 Cal.3d at p. 894.)

The final two challenged comments occurred during the prosecutor’s closing 

argument. The prosecutor noted that although the defense had called Deputy Valadez, 

defendant’s trial counsel had criticized parts of his testimony. The prosecutor stated, 

“I just don’t understand [that].” Later, the prosecutor referred to a statement by 

defendant’s trial counsel that his job was not to tell the jury “what the facts are,” but “to 

give you possibilities, to give you a perspective, to ask you to look carefully at what the 

evidence was in this case . . . .” The prosecutor told the jury, “I agree. Counsel’s here to 

come up with possibilities, not reasonable doubt.” Neither of the these comments was 

improper; the prosecutor did not express a personal belief in defendant’s guilt, imply 

there were additional facts not in evidence, vouch for the credibility of a witness, or make 

a personal attack on defendant’s trial counsel.
37

4. Alleged Attacks on Defendant’s Trial Counsel

Finally, defendant contends the prosecutor improperly attacked defendant’s trial 

counsel during argument by stating that the job of defendant’s trial counsel was “just to 

point out possibilities, whether they are reasonable or not” and “to come up with 

possibilities, not reasonable doubt.” As noted above, these comments were made in 

response to statements made by defendant’s trial counsel, who had previously told the 

jury, “My job is to give you possibilities, to give you a perspective, to ask you to look 

carefully at what the evidence was in this case . . . .” The prosecutor’s responsive 

comments did not amount to improper “ ‘[p]ersonal attacks on opposing counsel’ ” or 

“ ‘such forbidden tactics as accusing defense counsel of fabricating a defense or factually 

deceiving the jury.’ ” (Friend, supra, 47 Cal.4th at p. 31.)

F. Ineffective Assistance of Counsel

Defendant contends his trial counsel was ineffective for (1) requesting the jury not 

be instructed on manslaughter, (2) failing to object to the erroneous instruction on selfdefense within the home, and (3) failing to object to the above-identified instances of 

prosecutorial misconduct. 

“ ‘In order to establish a clim of ineffective assistance of counsel, defendant bears 

the burden of demonstrating, first, that counsel’s performance was deficient because it 

“fell below an objective standard of reasonableness [¶] . . . under prevailing professional 

norms.” [Citations.] Unless a defendant establishes the contrary, we shall presume that 

“counsel’s performance fell within the wide range of professional competence and that 

counsel’s actions and inactions can be explained as a matter of sound trial strategy.” 

[Citation.] If the record “sheds no light on why counsel acted or failed to act in the 

manner challenged,” an appellate claim of ineffective assistance of counsel must be 

rejected “unless counsel was asked for an explanation and failed to provide one, or unless 

there simply could be no satisfactory explanation.” [Citations.] If a defendant meets the 

burden of establishing that counsel’s performance was deficient, he or she also must 
38

show that counsel’s deficiencies resulted in prejudice, that is, a “reasonable probability 

that, but for counsel’s unprofessional errors, the result of the proceeding would have been 

different.” [Citation.]’ [Citation.]” (People v. Lopez (2008) 42 Cal.4th 960, 966

(Lopez); see Strickland v. Washington (1984) 466 U.S. 668, 690, 694.)

1. Refusal of Manslaughter Instructions

Defendant first contends his trial counsel was ineffective for requesting the jury 

not be instructed on manslaughter. We have previously concluded that to the extent the 

trial court had a sua sponte duty to give manslaughter instructions, any error in failing to 

so instruct was invited by defendant’s trial counsel.

The decision to forego manslaughter instructions in this case, in order to avoid a 

compromise verdict, was a reasonable tactical decision “in light of the evidence.” 

(Cooper, supra, 53 Cal.3d at p. 832.) Most significantly, after his fall or jump from the 

overpass, defendant stated, “He had a knife. He came at me.” Trial counsel could 

reasonably determine that this statement was consistent with a self-defense verdict but

inconsistent with a manslaughter verdict. That is, if the jury had believed defendant’s 

statement, it would necessarily have believed that defendant did not kill Patterson in a 

sudden quarrel or heat of passion or due to an unreasonable belief in the need to defend 

himself. (See People v. Manriquez (2005) 37 Cal.4th 547, 583 [“an intentional killing is 

reduced to voluntary manslaughter if . . . the defendant acts upon a sudden quarrel or heat 

of passion on sufficient provocation . . . , or kills in the unreasonable, but good faith, 

belief that deadly force is necessary in self-defense”].) To have argued for a 

manslaughter verdict might have “undercut the credibility of the defense.” (Cooper, 

supra, 53 Cal.3d at p. 832.) As defendant’s trial counsel’s actions “ ‘ “can be explained 

as a matter of sound trial strategy,” ’ ” we conclude that “ ‘ “counsel’s performance fell 

within the wide range of professional competence” ’ ” and that defendant did not receive 

ineffective assistance of counsel when his trial counsel requested that the trial court not 

give manslaughter instructions. (Lopez, supra, 42 Cal.4th at p. 966.)
39

2. Failure to Object to Wording of CALCRIM No. 506

Defendant next contends his trial counsel was ineffective for failing to object to 

the erroneous instruction on self-defense within the home. We have previously 

concluded that the erroneous instruction was harmless beyond a reasonable doubt. 

(Chapman, supra, 386 U.S. at p. 24.) As there was no prejudice from that instruction, 

defendant’s trial counsel was not ineffective for failing to object.

3. Failure to Object to Prosecutorial Misconduct

Finally, defendant contends his trial counsel was ineffective for failing to object to 

the prosecutor’s comments that defendant alleges to have constituted prosecutorial 

misconduct. As to each instance, we have previously concluded there was no 

prosecutorial misconduct or that defendant’s trial counsel was not ineffective for failing 

to object.

G. Admission of Evidence Relating to McClendon

Defendant contends the trial court erred by allowing the prosecution to introduce 

evidence concerning defendant’s relationship with his ex-girlfriend, McClendon. That 

evidence included defendant’s behavior on May 2, 2011 (when he blocked McClendon’s 

car, exhibited “erratic” behavior, and threatened to kill himself), the fact that McClendon 

obtained a restraining order, and the evidence of defendant’s various Google searches.

1. Proceedings Below

During trial, defendant objected “as to its relevance” regarding the admission of 

testimony about the incident involving McClendon. The prosecutor argued that the 

evidence was relevant to defendant’s mental state around the time of the offense. The 

trial court found that the proposed testimony would be “highly relevant” and that it was 

admissible.

Following McClendon’s testimony, the prosecutor noted that pursuant to a 

discussion with defendant’s trial counsel, the prosecutor had purposely avoided asking 
40

McClendon questions that would have elicited that defendant had made “some threats 

[of] violence.”

During argument to the jury, the prosecutor told the jury that in order to 

understand what defendant did, “you have to understand what’s going on in the 

defendant’s mind.” The prosecutor referred to defendant’s reaction to his recent breakup 

with McClendon and reminded the jury that defendant’s “mind state at the time” included 

suicidal thoughts. The prosecutor argued that defendant’s Google searches gave the jury 

“a window” into what defendant was thinking at the time and argued that the evidence 

showed that “[t]hings are spiral[]ing out of control to such a degree that he’s 

contemplating suicide . . . .” The prosecutor also argued that some of defendant’s Google 

searches showed him contemplating “doing things that aren’t that different from what 

happened to Mr. Patterson.” He reminded the jury that defendant had told McClendon, 

“I can’t take too much or I’m going to snap,” and he argued, “That’s what happened on 

May 10th, 2011, at defendant’s house. He snapped. He couldn’t take it anymore, and he 

took someone with [him], his friend, Ricky Patterson . . . .”

2. Analysis

Defendant first contends the evidence relating to McClendon was not relevant to 

the issues at trial.

“ ‘Relevant evidence’ means evidence, including evidence relevant to the 

credibility of a witness or hearsay declarant, having any tendency in reason to prove or 

disprove any disputed fact that is of consequence to the determination of the action.” 

(Evid. Code, § 210.) “The test of relevance is whether the evidence tends ‘ “logically, 

naturally, and by reasonable inference” to establish material facts such as identity, intent, 

or motive. [Citations.]’ [Citation.] The trial court has broad discretion in determining 

the relevance of evidence [citations], but lacks discretion to admit irrelevant evidence. 

[Citations.]” (People v. Scheid (1997) 16 Cal.4th 1, 13-14.)
41

As the prosecutor argued during trial, the evidence of defendant’s reaction to the 

breakup with McClendon was relevant to his state of mind on the day of the stabbing. 

That evidence showed that defendant was experiencing intense feelings of frustration to 

the extent that he was contemplating suicide. These feelings provided a possible motive 

for defendant’s commission of the charged offense. Thus, the trial court did not abuse its 

discretion by determining that the evidence was relevant.

Defendant next contends the evidence of his relationship with McClendon was 

improper character evidence under Evidence Code section 1101, subdivision (a). While 

Evidence Code section 1101, subdivision (a) prohibits the introduction of “evidence of a 

person’s character or a trait of his or her character (whether in the form of an opinion, 

evidence of reputation, or evidence of specific instances of his or her conduct) . . . when 

offered to prove his or her conduct on a specified occasion,” Evidence Code 

section 1101, subdivision (b) specifies that such evidence is admissible “when relevant to 

prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, 

identity, absence of mistake or accident . . .) other than his or her disposition to commit 

such an act.” As just discussed, the evidence showed that defendant was experiencing 

intense feelings of frustration, which provided a possible motive for his commission of 

the charged offense. This motive evidence was admissible under Evidence Code 

section 1101, subdivision (b).

Finally, defendant contends the probative value of the challenged evidence was 

substantially outweighed by its prejudicial effect. (See Evid. Code, § 352.) Evidence 

Code section 352 provides: “The court in its discretion may exclude evidence if its 

probative value is substantially outweighed by the probability that its admission will 

(a) necessitate undue consumption of time or (b) create substantial danger of undue 

prejudice, of confusing the issues, or of misleading the jury.” Prejudicial evidence means 

“ ‘evidence which uniquely tends to evoke an emotional bias against defendant as an 

individual and which has very little effect on the issues.’ ” (People v. Bolin (1998) 
42

18 Cal.4th 297, 320.) “ ‘In applying [Evidence Code] section 352, “prejudicial” is not 

synonymous with “damaging.” ’ [Citation.]” (People v. Karis (1988) 46 Cal.3d 612, 

638.)

The evidence concerning McClendon was not particularly inflammatory and thus 

was not the type of evidence that would tend to evoke an emotional bias against 

defendant. Defendant did not commit any actual physical violence against McClendon, 

whereas in the charged offense he committed a brutal stabbing. The Google searches 

showed defendant’s frustration, but nothing about the searches was likely to inflame the 

jury or suggest defendant had a propensity to commit violent acts against others. The 

evidence was presented without consuming a great deal of time, and there was no danger 

the jury would confuse the issues involving McClendon with the issues it had to resolve 

in determining defendant’s guilt at trial. The trial court therefore did not abuse its 

discretion under Evidence Code section 352.

IV. DISPOSITION

The judgment is affirmed.
___________________________________________

BAMATTRE-MANOUKIAN, ACTING P.J.

WE CONCUR:

__________________________

MIHARA, J.

__________________________

MÁRQUEZ, J.