The opinion
Filed 6/30/15 P. v. Brown CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D065711
Plaintiff and Respondent,
v. (Super. Ct. No. SCN247064)
ADAM JAMES BROWN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Harry M.
Elias, Judge. Reversed.
Ronda G. Norris, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Arlene A. Sevidal and Amanda E. Casillas, Deputy Attorneys General, for Plaintiff and
Respondent.
A jury convicted Adam James Brown of first degree murder (Pen. Code,1 § 187,
subd. (a)) and found true that he personally used a deadly weapon (a knife) in the
commission of the murder (§ 12022, subd. (b)(1)). After the trial court declared a
mistrial at the sanity phase of the trial, a new jury found that Brown was insane when he
committed the murder.
The court committed Brown to Patton State Hospital and sentenced him pursuant
to section 1026 with the term of confinement fixed to 25 years to life plus one year.
Brown appeals, contending the prosecutor committed prejudicial misconduct
during closing argument by repeatedly misstating the legal standard to be applied in
deciding whether provocation was legally sufficient to constitute heat of passion
voluntary manslaughter. We agree, and thus, reverse the judgment.
FACTUAL BACKGROUND
Beginning in 2003, Brown lived with his mother, Leonore Brown (Leonore), and
her significant other, Edward Gibbs, in Oceanside, and they continued to live together for
five years, until Leonore was killed. Leonore was practically bedridden and required
near constant care. She was on medication and experienced considerable pain on a daily
basis. Brown cared for his mother. He got her meals, helped her take showers, helped
her use the portable toilet, cleaned her toilet, and took care of most of his mother's other
needs around the clock. Brown and his mother did not argue or raise their voices at each
other. In all, Brown was very responsive to his mother's needs and treated her well.
1 Statutory references are to the Penal Code unless otherwise specified.
2
On the morning of June 8, 2008, after receiving his monthly social security check,
Gibbs left home to gamble for a few days, as was his usual monthly practice. Gibbs's
players card showed that he gambled all day on June 8 and 9 at Pala Casino.
After spending the night at a hotel in Oceanside on June 8, 2008, Brown went to
the Hall of Justice in downtown San Diego on June 9, 2008. He informed a deputy
sheriff at the Hall of Justice that he was there because a judge who shot him worked
there. Brown also told the deputy that about 7:00 p.m. on June 8, 2008, he stabbed his
mother with a knife, and the knife was still in her body. Brown claimed that he killed his
mother because "she was talking on behalf of somebody who shot him." He said he
killed her in the master bedroom of their home and that her body was still there. Brown
told the deputy that the key to the master bedroom was on a table inside his bedroom.
City of Oceanside police officers were sent to Brown's home to do a welfare
check. Nobody responded at the home, so the officers entered through a window. The
officers found Leonore's body on the bed in the master bedroom, which was locked. Her
legs were dangling off of the edge of the bed, and her feet were touching the ground.
There was also a pool of blood under her head and around her body. A knife was
protruding from her face, near her right eye. The blade of the knife was about three and
one half inches deep inside of her head, and it was embedded in her skull. The blade cut
through her carotid artery twice, causing her death. She also had six other knife-inflicted
injuries: three stab wounds, including one that went through her earlobe and another that
penetrated her scalp; and three cuts near her left ear. In addition, Leonore had defensive
wounds on her hands, which were consistent with her trying to grab the knife.
3
Police found a crossword puzzle near Leonore's feet. Her glasses were near her
left shoulder, and there was a pen under her body.
The officers later found the master bedroom key on a shelf inside Brown's
bedroom. The officers also found Brown's bloody shirt in his bedroom. The blood on
the shirt matched Leonore's DNA profile with a frequency of 1 in 13 quintillion.
Additionally, the officers discovered that the knife Brown used was taken from a block of
knives in the kitchen.
DISCUSSION
I
PROSECUTORIAL MISCONDUCT
Brown contends the prosecutor committed prejudicial misconduct by repeatedly
misstating the legal standard to be applied in deciding whether provocation was legally
sufficient to constitute heat of passion. The People concede that the prosecutor misstated
the law, but assert Brown was not prejudiced.
A. Background
Prior to closing arguments, Brown's counsel requested that the trial court instruct
the jury on heat of passion voluntary manslaughter as a lesser included offense. The
prosecution objected, arguing that there was no evidence to support the instruction.
Brown's counsel asserted that Brown's statement explaining why he killed his mother and
the inference that there was no other motive for the killing supported the instruction. The
court determined that the jury could infer provocation based on the evidence presented at
trial: "I think the content of [Brown's] statement to the deputy at the Hall of Justice is a
4
fact upon which the jury, should they decide could raise -- create an inference that there
was some sort of provocation." Therefore, the trial court instructed the jury on first
degree murder, second degree murder, and heat of passion voluntary manslaughter.2 The
trial court also instructed the jury that they were to follow the law as the court explained
it, even if they believed an attorney's comments conflicted with the court's instructions.
During closing argument, the prosecutor told the jury that the standard for
provocation in heat of passion voluntary manslaughter requires the jury to find that an
average reasonable person would have acted the "very same way" Brown did. Brown's
counsel objected, arguing that the prosecutor misstated the law. The trial court did not
rule on the objection, but told the jury, "Ladies and gentlemen, the instruction gives you
the format in which you are to analyze the elements. That's the law you're supposed to
follow."
While still discussing provocation, the prosecutor later argued that the provocation
must be "so terrible that reasonable person in that situation would have also killed." The
prosecutor continued with similar statements throughout her closing argument:
"There has to be an element of Leonore Brown provoking Adam into
that extremely murderous rage in which an average reasonable
person would have killed, too."
***
"Leonore Brown has to provoke Adam Brown in such a way that
heat of passion clouded his every judgment and an average
reasonable person would have also killed. . . . Leonore Brown did
2 There is no contention that the jury instructions were not proper as given.
5
not provoke Adam Brown in such a way that he had to stab her
multiple times."
***
"Where is the provocation? . . . There has to be provocation that is
so passionate that he could not do anything but to stab her four
different times."
During this argument, the prosecutor used a power point slide that said, "show me
provocation." Brown's counsel objected to the use of the slide. The court responded by
informing the jury, "Well, again, ladies and gentlemen, this is argument. Each lawyer is
going to tell you their perspective, how they interpret the facts and how they think you
should interpret the facts as relates to the law. You are the ultimate judges of what
factually occurred. The law you follow is going to be in this brown book, and that's your
obligation."
Outside of the presence of the jury, Brown's counsel moved for a mistrial, arguing
that the People improperly shifted the burden of proof to the defendant by using the slide
that stated "show me provocation" and by implying that voluntary manslaughter provided
a "license to kill." Brown's counsel emphasized that the prosecutor misstated the law.
The court overruled the motion, finding that the court's admonishments and instructions
provided the correct law to the jury, and there was no reason for the court to believe the
jury would deviate from the instructions.
In closing argument, Brown's counsel argued that the prosecution had the burden
of proving the absence of a sudden quarrel or heat of passion. He also asserted that
voluntary manslaughter is not a justified killing. Brown's counsel focused on his primary
6
defense in the case that Brown was provoked and responded rashly, stabbing his mother:
"In deciding whether the provocation was sufficient, consider whether a person of
average disposition -- and that's what it is, average disposition -- in the same situation.
Well, when it says in the same situation, it means the 24 hour a day, seven day a week
care for his ailing mother where, I don't know, is he sleeping a lot? Is he happy with it?
Is he getting tired with it? Is his mom complaining? Is she saying things to him?"
In rebuttal, the prosecutor argued that the evidence was insufficient to show
provocation, which would have driven an average person to act "exactly" as Brown did.
Brown's counsel objected again, and the trial court overruled the objection and told the
jury to "follow the instructions. You decide the facts."
B. Analysis
Brown asserts the prosecutor committed misconduct during her closing argument
by repeatedly misstating the law and shifting the burden of proof. The People concede
that the prosecutor misstated the law regarding the requirements of provocation, but
denies that the burden of proof was shifted or that Brown was prejudiced.
We agree the prosecutor committed misconduct by misstating the law regarding
the proper standard for assessing the legal sufficiency of provocation. In People v.
Beltran (2013) 56 Cal.4th 935 (Beltran), the California Supreme Court explained that
heat of passion is a state of mind that "precludes the formation of malice and reduces an
unlawful killing from murder to manslaughter," and heat of passion is "caused by legally
sufficient provocation that causes a person to act, not out of rational thought but out of
7
unconsidered reaction to the provocation." (Beltran, supra, at p. 942.) The court
explained:
"Adopting a standard requiring such provocation that the ordinary
person of average disposition would be moved to kill focuses on the
wrong thing. The proper focus is placed on the defendant's state of
mind, not on his particular act. To be adequate, the provocation
must be one that would cause an emotion so intense that an ordinary
person would simply react, without reflection. To satisfy [the proper
standard], the anger or other passion must be so strong that the
defendant's reaction bypassed his thought process to such an extent
that judgment could not and did not intervene. Framed another way,
provocation is not evaluated by whether the average person would
act in a certain way: to kill. Instead, the question is whether the
average person would react in a certain way: with his reason and
judgment obscured." (Id. at p. 949; italics omitted.)
The court further clarified that, under the proper standard, "[p]rovocation is
adequate only when it would render an ordinary person of average disposition 'liable to
act rashly or without due deliberation and reflection, and from this passion rather than
from judgment.' " (Beltran, supra, 56 Cal.4th at p. 957, quoting People v. Logan (1917)
175 Cal. 45, 49.) The Supreme Court rejected the Attorney General's argument in that
case that the proper standard for assessing the adequacy of provocation is whether an
ordinary person of average disposition would be moved to kill. (Beltran, supra, at
pp. 946, 949.)
Here, the prosecutor misstated the law by essentially arguing, like the prosecutor
in Beltran, supra, 56 Cal.4th 935, that the proper standard for assessing the adequacy of
provocation is whether an ordinary person of average disposition would be moved to kill.
Indeed, the prosecutor went so far as to tell the jury, not only would an ordinary person
be moved to kill, but would also have stabbed the victim four times. By misstating the
8
law, as the parties correctly acknowledge, the prosecutor in this case committed
misconduct. (People v. Boyette (2002) 29 Cal.4th 381, 435 ["[I]t is misconduct for the
prosecutor to misstate the applicable law."].)
Similarly, in consideration with the prosecutor's consistent misstatements of the
law, we also are very concerned with the slide stating, "show me provocation" and its
impact on the jury. This slide implies that it is not the prosecution that needs to prove a
lack of provocation beyond a reasonable doubt, but Brown who must prove provocation.
Showing this slide while misstating the applicable law further exacerbated the
prosecutorial misconduct.
Having concluded that the prosecutor committed misconduct, we next must
determine whether reversal is warranted. A prosecutor's remarks can " ' "so infect[ ] the
trial with unfairness as to make the resulting conviction a denial of due process." ' "
(People v. Frye (1998) 18 Cal.4th 894, 969.) In such cases, the misconduct amounts to
federal constitutional error and reversal is required unless we conclude the misconduct
was harmless beyond a reasonable doubt. (People v. Estrada (1998) 63 Cal.App.4th
1090, 1106-1107, citing Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).) If
the prosecutor's remarks did not rise to that level, we will not reverse unless we conclude
it is reasonably probable that a result more favorable to the defendant would have been
reached in the absence of the misconduct. (People v. Barnett (1998) 17 Cal.4th 1044,
1133, citing People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) Under either
standard, we must reverse the judgment in this matter.
9
Here, the crux of Brown's defense was that he was provoked and responded by
killing his mother. His attorney stressed there was no motive whatsoever for the killing.
He presented evidence that Brown loved and cared for his mother, who was practically
bedridden, on a lot of medications, and was in considerable pain. Brown cared for his
mother by getting her meals, helping her take showers, helping her use the portable toilet,
cleaning her toilet, and taking care of most of her other needs around the clock. There
was evidence presented that Brown and his mother did not argue or raise their voices at
each other. In all, Brown was very responsive to his mother's needs and treated her well.
Against this back drop, Brown's counsel argued that Brown must have been
provoked before he killed his mother. To this end, Brown's counsel argued that Brown
was stressed from having to care nonstop for his dying mother. He reminded the jury that
Brown said he killed his mother because "she was talking on behalf of somebody who
shot him." Also, Brown's counsel stressed the way in which Leonore was killed as
evidence that Brown was provoked. He stabbed her with a knife multiple times. Brown's
counsel maintained the method of the killing indicated that Brown was acting "rashly and
without due deliberation, that is from passion rather than judgment."
In countering Brown's defense theory, the prosecutor argued there was no
evidence to support the defense's theory of provocation. However, she also consistently
misstated the law throughout closing argument and the trial court explicitly or implicitly
overruled all of Brown's counsel's objections to the misstatements. Therefore, the jury
reasonably could have concluded that the evidence of provocation had to show that a
reasonable person would have killed Leonore if under the same circumstances as Brown
10
faced. In light of the fact that Brown's only real defense in this case was provocation and
the trial court believed sufficient evidence existed that a heat of passion voluntary
manslaughter instruction should be given, we cannot conclude the misconduct was
harmless beyond a reasonable doubt.
Based on the record before us, we also conclude it is reasonably probable that a
result more favorable to Brown would have been reached in the absence of the
misconduct. Our high court has emphasized "that a 'probability' in this context does not
mean more likely than not, but merely a reasonable chance, more than an abstract
possibility. ([Watson, supra, 46 Cal.2d] at p. 837; cf. Strickland v. Washington (1984)
466 U.S. 668, 693-694, 697, 698 ['reasonable probability' does not mean 'more likely than
not,' but merely 'probability sufficient to undermine confidence in the outcome'].)"
(College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 715; italics omitted.) A
more favorable outcome under this analysis includes a hung jury. (Cf. People v. Soojian
(2011) 190 Cal.App.4th 491, 519-521.)
Here, the jury heard several times during closing argument the wrong legal
standard to be applied in deciding whether provocation was legally sufficient to constitute
heat of passion. Moreover, despite multiple objections by Brown's counsel, the court
allowed these misstatements. Citing Beltran, supra, 56 Cal.4th 935, the People argue
there is no prejudice because the record does not demonstrate that the jury was confused.
The People's reliance on Beltran is misplaced on this point.
In Beltran, supra, 56 Cal.4th 935, the jury asked a question regarding provocation
and the court correctly responded:
11
"The jury asked for additional guidance and the trial court gave it. It
was not reasonably probable that the jury here was misled to
defendant's detriment. Although counsel's argument may have
created ambiguity about the nature of sufficient provocation, the jury
directly requested clarification of the standard. The jury's note
pinpointed the issue, inquiring if it should consider whether an
ordinary person would 'commit the same crime (homicide) or can it
be other, less severe, rash acts.' The trial court responded with a
correct statement of law, that '[t]he provocation involved must be
such as to cause a person of average disposition in the same situation
and knowing the same facts to do an act rashly and under the
influence of such intense emotion that his judgment or reasoning
process was obscured.' (Italics added.) This response properly
refocused the jury on the relevant mental state, properly set out in
CALCRIM No. 570, and away from whether an ordinary person of
average disposition would kill in light of the provocation. Because
of the trial court's clarifying instruction, it was not reasonably
probable that any possible ambiguity engendered by counsel's
argument misled the jury." (Beltran, supra, at pp. 955-956.)
In contrast to Beltran, here the jury made no inquiry regarding heat of passion, and
thus, the court did not respond by directing the jury to or otherwise reinforcing the heat of
passion voluntary manslaughter jury instruction. At best, the court referred the jury to the
jury instructions in general, but did so without sustaining any of Brown's counsel's
objections to the prosecutor's misstatements of the law. As such, the jury reasonably
could have been led to believe, by the trial court's tacit approval of the prosecutor's
statements during closing argument, that it could only find provocation if it determined
that a reasonable person under Brown's circumstances would have killed Leonore. This
is not correct, and the trial court here took no corrective action. (See Beltran, supra, 56
Cal.4th at pp. 949, 955-956.)
Finally, the People argue there was not sufficient evidence of provocation in any
event. We disagree. There was enough evidence that the trial court believed a
12
manslaughter instruction was warranted. Further, provocation was Brown's only defense
at trial. As set forth above, we conclude there was evidence to support Brown's theory.
Based on this evidence and the prosecutor's misconduct (approved by the trial court) we
cannot say that there is no reasonable chance that at least one juror could have found
Brown was provoked. (See Watson, supra, 46 Cal.2d at p. 837; cf. People v. Soojian,
supra, 190 Cal.App.4th at pp. 519-521.) Simply put, the prosecutorial misconduct
coupled with the trial court's tacit approval of same sufficiently undermines our
confidence in the outcome of this matter. (See College Hospital, Inc. v. Superior Court,
supra, 8 Cal.4th at p. 715.) Therefore, we must reverse the judgment.
DISPOSITION
The judgment is reversed.
HUFFMAN, Acting P. J.
WE CONCUR:
McINTYRE, J.
O'ROURKE, J.
13