Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Philip H. Hickok, Judge. Los Angeles County Super. Ct. No. VA094143
Julie Sullwold Hernandez, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
KRIEGLER, J.
A jury convicted defendant Henry Bessera, Jr., of attempting to dissuade a witness, Brian Harris, (Pen. Code, § 136.1, subd (a)(2)) and found true the allegation that the offense was committed for the benefit of a criminal street gang with the specific intent to promote criminal conduct by gang members. In a bifurcated proceeding, defendant admitted he had suffered two prior strike convictions within the meaning of sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d), and two prior serious felony convictions within the meaning of section 667, subdivision (a)(1). The trial court granted defendant’s motion to strike one prior strike conviction and sentenced defendant to a prison term of 19 years. The sentence was calculated by imposing a midterm sentence of two years on the attempted dissuading of a witness charge, doubling that sentence under the three strikes law, and imposing five-year enhancements for the gang finding and each prior serious felony conviction.
Hereinafter, all statutory references will be to the Penal Code unless otherwise indicated.
The jury acquitted defendant of dissuading Harris by force or threat (§ 136.1, subd. (c)(1)) (count one).
Defendant contends: (1) substantial evidence does not support the true finding on the gang allegation; (2) the admission of letters found in his closet, the recording on his cell phone, and Harris’s testimony regarding the use of “ghosts” by the Mexican Mafia was an abuse of discretion; (3) the jury instruction on the elements of the gang enhancement was incorrect as a matter of law; and (4) the prosecutor committed misconduct. We find no reversible error and affirm.
STATEMENT OF FACTS
Prosecution Case
A. Brian Harris’s Testimony
Harris, age 41, had been an associate with the Mexican Mafia prison gang for 25 years. Harris made the decision to leave the gang. Harris explained how the prison gang controls territory where street gangs operate. The gang’s primary criminal activities were extorting money from criminal street gangs, murder, and assault for gang purposes.
Harris described the organizational structure of the gang. The 200 members who run the organization are “carnals.” Each carnal controls a particular territory. Immediately below the carnals are key holders. Torpedoes, who carry out shootings, tax collectors, who collect extortion money, and undercover organizers, who are called “ghosts,” are below the key holders. Ghosts are college students or individuals with regular employment as teachers, car dealers, or accountants. Ghosts are “not necessarily looked at as gang members, but they’re really active in . . . the drugs and the money. So they’re just like ghosts, like incognito people. Different. Separate.” “[Ghosts] are incognito. They just fit in. They’re not necessarily recognized as any kind of gang members because they don’t have . . . gang writing on them or—they’re good to use for a lot of things that are being done because they’re not recognized as gang members, but they’re really into doing the things that need to be done.” Ghosts are paid in money or methamphetamines, and the gang backs them up if they get into trouble. Becoming a key holder requires working your way up in the organization, building your reputation until you obtain a sponsor. Harris’s sponsor was a practicing attorney.
Calling the police on another street gang member or testifying against another street gang member, even if from a different street gang, is prohibited. Violation of the rule prohibiting testifying against a gang member will result in issuance of a green light by a carnal, which is an order to kill the violator. A green light will not issue except upon proof, including tangible proof, such as a document or a recording. The Mexican Mafia has runners who are the conduits to and from the carnals in prison. They carry the carnals’ communications to the outside world and bring communications to the carnals into prison. Cynthia Alvarado was a runner for the Mexican Mafia, with access to the carnals in Pelican Bay.
On December 28, 2004, Harris went into the territory of a rival street gang and was shot in the hip by Arthur Perez, a member of the rival gang. Perez is defendant’s cousin. Harris called the police.
On September 2, 2005, Harris testified in court against Perez at Perez’s preliminary hearing. The week before, Harris was stabbed in county jail and almost killed. Harris was suspicious of everyone in the courtroom, because he knew that the spectators represented Perez. Alvarado was present in the courtroom sitting next to defendant. Her report to a carnal would not be sufficient to put a green light on Harris for testifying. A second confirmation, such as a recording of Harris’s testimony, was necessary. Harris saw defendant recording Harris’s testimony on defendant’s cell phone. Defendant held the cell phone at chest level facing in Harris’s direction and appeared to be recording the testimony surreptitiously.
B. Daniel Evanilla’s Testimony
Special Agent Evanilla worked for the Department of Corrections and specialized in the Mexican Mafia. He testified that George Berry, a Mexican Mafia associate, was arrested in 2003 for murder and convicted of murder on May 24, 2005. This incident served as one of the predicate offenses supporting the gang enhancement.
C. Jack Tarasiuk’s Testimony
Los Angeles County Deputy Sheriff Tarasiuk, an expert in cell phone forensics, recovered the recording of Harris’s testimony from defendant’s cell phone. The recording lasted 3 minutes 43 seconds. The last phone call that was received or made on defendant’s cell phone on the day of the recording occurred at 10:11 a.m. The recording was made at 10:58 a.m.
D. George Martinez’s Testimony
Los Angeles County Sheriff’s Department Supervising Sergeant Martinez was present in the courtroom during Harris’s testimony. Sergeant Martinez observed defendant sitting in the first row next to the aisle holding a cell phone in his hand pointed directly toward the witness stand for 20 seconds before Sergeant Martinez confiscated the cell phone. Defendant did not look at the phone and did not put the phone to his ear to talk. The “record” setting was highlighted on the menu button.
E. Noel Furniss’s Testimony
Los Angeles County Sheriff’s Department Detective Furniss, a gang expert with the anti-crime unit, was present at Perez’s preliminary hearing. Sergeant Martinez alerted him to defendant’s cell phone and Detective Furniss observed the “recording” button highlighted.
Jimtown is a criminal street gang in Whittier. Jimtown pays taxes to the Mexican Mafia on drug sales.
Detective Furniss confirmed Harris’s testimony that those who rat on another gang member to the police will be ordered killed if the Mexican Mafia has tangible proof, such as a police report or a recording Detective Furniss testified, based on hypothetical facts drawn from the evidence, that the recording was made for the benefit of the Mexican Mafia to confirm that Harris was a rat.
F. Michael Enomoto’s Testimony
Enomoto, a deputy district attorney in the Hard Core Gang Division, was the prosecuting attorney in the case against Perez. He conducted the preliminary hearing. He recognized his voice on the recording asking Harris questions during the hearing. While the words spoken on the recording were largely unintelligible, he recognized the voices and the fact he was asking questions.
Defense Case
Harris did not know defendant. Defendant was not documented as a gang member by the Sheriff’s Department. Defendant did not make gang signs or glare at Harris during the hearing. While Harris was testifying, he did not tell Enomoto he was being intimidated.
DISCUSSION
Evidentiary Issues
A. The Letters Found in Defendant’s Closet Were Admissible
Defendant contends the trial court abused its discretion admitting four letters found in defendant’s closet into evidence because they lacked foundation, were hearsay, and were more prejudicial than probative under Evidence Code section 352. Defendant’s hearsay objection was forfeited by failure to raise it below. We reject the remaining contentions and conclude the letters were properly admitted.
“‘In accordance with [Evidence Code section 353 (no judgment shall be reversed by reason of the erroneous admission of evidence that was not objected to)], we have consistently held that the “defendant’s failure to make a timely and specific objection” on the ground asserted on appeal makes that ground not cognizable. [Citation.]’ [Citation.]” (People v. Partida (2005) 37 Cal.4th 428, 433-434.) “[A] trial objection must fairly state the specific reason or reasons the defendant believes the evidence should be excluded. If the trial court overrules the objection, the defendant may argue on appeal that the court should have excluded the evidence for a reason asserted at trial. A defendant may not argue on appeal that the court should have excluded the evidence for a reason not asserted at trial. . . . [¶] . . . To the extent, if any, he argues that due process required the court to exclude the evidence for a reason not included in the trial objection, that argument is forfeited because he did not object to the evidence on that basis at trial.” (Id. at p. 431.)
Because admission of the evidence was proper, due process was not violated.
1. The Contents of the Letters
During the execution of a search warrant of defendant’s home, the police recovered from defendant’s bedroom closet correspondence addressed to defendant from Walt Disney, Washington Mutual, and U.C.L.A., as well as four letters—People’s exhibits 8-11, and a sketch, People’s exhibit 12—in an accordion folder in the closet. Detective Furniss described and explained the content of these exhibits.
People’s exhibit 8 is not dated and does not indicate to whom it was written. The letter is a series of questions and answers between two inmates. In the Los Angeles County Jail, the jail delivers letters from one inmate to another. The two authors of People’s exhibit 8, Mark Irrobali and “Loco,” signed the letter. Irrobali, whose gang moniker was Wolf Dog, is an active member of Jimtown, a criminal street gang in Whittier that paid taxes to the Mexican Mafia. Exhibit 8 contains a discussion about setting up a crew to run an illegal drug business in place of the crew of Cole Street gangsters. There is also a discussion regarding having two “nieces,” identified as Christine and Cathy, set up accounts in Palm Springs and Las Vegas, and set up phones.
People’s exhibit 9 is not dated. It is addressed to “‘Henry [or] should I say Loco?’” Henry is defendant’s first name. The letter states, “Well, homie, I didn’t have a chance to get a hold of you on the yard.” In both exhibits 8 and 9, Irrobali asks Henry to take care of Christine because Christine is going to have Irrobali’s child. Irrobali also asks Henry to set up a phone account for Christine and pay the phone bill.
People’s exhibit 10 is not dated and does not indicate to whom it was sent. It was written by Wolf Dog from Jimtown and has a gang moniker on it. This letter talked about taking care of and helping Christine. Wolf Dog wrote about getting a “burn-out” for him, which is a cell phone that can be used before it is shut off, or burned out, so that Wolf Dog can make money in prison. He also has further discussion about the subject of People’s exhibit 8 of setting up a crew to sell drugs.
People’s exhibit 11 is a letter to Christine and Cathy, dated March 3, 2003. The letter is signed Wolf Dog, Jimtown. The letter begins, “I’m having Henry go down to that area to take care of a lot of shit for me, so don’t trip on him.” This referred to Henry going to shut down the Cole Street operation and Christine and Cathy should trust him and he’ll take care of everything for them.
People’s exhibit 12 is a caricature drawing of a gangster with the label, “Henry Loco.”
Detective Furniss testified the four letters are related.
2. Foundation
The trial court found a proper foundation was established by the fact the letters were obtained during the execution of a search warrant of defendant’s residence and were found in defendant’s bedroom with letters bearing defendant’s name. Defendant contends proper foundation was not established because three of the four letters were undated, one letter was addressed to no one and signed by no one, and there was no showing defendant performed any of the actions discussed in the letters.
Evidence Code section 1400 provides in pertinent part: “Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is.” “Nothing in this article shall be construed to limit the means by which a writing may be authenticated or proved.” (Id., § 1410.) “Circumstantial evidence, content and location are all valid means of authentication. [Citations.]” (People v. Gibson (2001) 90 Cal.App.4th 371, 383.)
The letters were properly authenticated in this case by their location and the testimony of Detectives Furniss and Hank Ortega. The letters were found in defendant’s bedroom closet, circumstantially proving the letters were to him or involved him. (People v. Gibson, supra, 90 Cal.App.4th at pp. 382-383.) The two detectives identified People’s exhibits 8 through 11 as being among the letters they recovered from an accordion folder in defendant’s closet. People’s exhibits 9 and 11 refer to defendant by his first name. People’s exhibit 8 contains instructions written to Loco and questions written by Loco, the nickname the evidence suggests was defendant’s gang moniker. People’s exhibit 9 is written to Henry and provides further instructions to the person People’s exhibit 8 was written to, that is, defendant. The substance of the four letters shows they are part of a single series concerning the same topics. Thus, their contents and where they were found established that the letters are what the prosecutor claimed them to be: correspondence between defendant and a member of the Jimtown gang. (See People v. Olguin (1994) 31 Cal.App.4th 1355, 1373.)
Defendant contends the letters were of little or no relevance but were highly prejudicial and inflammatory evidence of gang activities and prior bad acts. He contends that, assuming the letters were written at the time of the only letter that was dated, the letters were over two years old and, thus, too remote in time to connect defendant to Jimtown. We have no trouble holding that the trial court did not abuse its discretion in finding prejudicial impact of the letters did not substantially outweigh their probative value.
“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.” (Evid. Code, § 352.) “A trial court’s exercise of discretion in admitting or excluding evidence [under Evidence Code section 352] is reviewable for abuse [citation] and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation].” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
The letters were highly probative of the charges in this case. They circumstantially present a tie between defendant and a criminal street gang, Jimtown, which is affiliated with the Mexican Mafia. As the evidence established, the Jimtown’s discipline requires carrying out the Mexican Mafia’s instructions. There was evidence that the Mexican Mafia prohibited gang members from testifying against other gang members, and the gang was considering issuing a green light on Harris for violating this rule. Defendant’s presence in the courtroom, sitting next to an individual who was a direct conduit to the upper echelons of the Mexican Mafia, bolstered the inference that he was acting for the benefit of a criminal street gang. Proof that defendant was associated with Jimtown tending to establish defendant’s intent and purpose in recording Harris’s testimony. Intent and purpose are elements of the substantive offenses of dissuading a witness by force or threat and attempting to dissuade a witness by force or threat. They are elements of the further allegation that the offense was committed for the benefit of a criminal street gang with the specific intent to promote criminal conduct by gang members.
The potential for undue prejudice from the letters was minimal. “‘The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, “prejudicial” is not synonymous with “damaging.”’ [Citation.]” (People v. Karis (1988) 46 Cal.3d 612, 638.) The letters were not so remote in time to be irrelevant. The letters did not discuss inflammatory actions by the gang, such as murders or other violent offenses. Testimony regarding the letters did not consume an undue amount of time. Absent these traditional characteristics of undue prejudice, we cannot say the trial court abused its discretion in ruling the letters admissible. Moreover, the jury was instructed this evidence “may not be considered by you to prove that . . . defendant is a person of bad character or that he has a disposition to commit any crime. It may be considered by you only for the limited purpose of determining if it tends to show that a crime or crimes charged were committed for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further or to assist in any criminal conduct by gang members.”
B. The Cell Phone Recording and Testimony About “Ghosts”
Defendant contends it was an abuse of discretion to admit the cell phone recording, because the recording was unintelligible, and Harris’s testimony about “ghosts,” because the testimony was improper profile evidence. The contentions are forfeited. Defendant did not object to the admission of this evidence at trial on these grounds. (Evid. Code, § 353; People v. Partida, supra, 37 Cal.4th at pp. 433-435.)
Defense counsel’s failure to object in the trial court was entirely reasonable, as the contentions are devoid of merit. Trial counsel did a thorough and competent job presenting defendant. He was under no obligation to make meritless objections.
Sufficient Evidence Supports the Gang Enhancement
Defendant argues there was insufficient evidence to support the jury’s findings that he committed the attempted witness intimidation to promote a criminal street gang, pursuant to section 186.22, subdivision (b)(1). Defendant contends there was insufficient evidence that he specifically intended his crime to benefit the gang and insufficient evidence to prove two predicate offenses. We disagree.
“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) The federal standard of review is to the same effect: under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320.) The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792.)” (People v. Rodriguez, supra, 20 Cal.4th at p. 11.) “Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1181.) “The substantial evidence standard of review applies to section 186.22 gang enhancements.” (People v. Augborne (2002) 104 Cal.App.4th 362, 371.)
A. Evidence Defendant Had a Gang Purpose
The gang enhancement requires proof a defendant committed the offense “for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b)(2).) While there was no evidence defendant was a self-reported gang member, had gang tattoos, used gang signs, or was known by Harris to be a gang member, the evidence was strong that defendant recorded Harris’s testimony for the benefit of a criminal street gang. The letters and drawing found in defendant’s closet indicating defendant had a gang moniker and was assisting an incarcerated Jimtown gang member with criminal and personal activities, and defendant’s presence in court sitting next to a known Mexican Mafia courier, establish defendant’s involvement with Jimtown. Defendant’s surreptitious recording of Harris’s testimony, beginning at the time Harris spelled his name for the record, indicate the recording was made intentionally, not accidentally. Harris was a member of the Mexican Mafia; Jimtown and the gang Perez belonged to were within the jurisdiction and authority of the Mexican Mafia. Harris broke the rule against testifying against another gang member. The Mexican Mafia operated by sending people to investigate infractions of gang rules and obtain hard evidence, such as a recording, of any violation. The Mexican Mafia used people, known as ghosts, whose outward appearance was law-abiding, to secretly work for the gang. Detective Furniss was of the opinion, based on hypothetical facts rooted in evidence at the trial, that the recording was for the benefit of the Mexican Mafia to confirm Harris was a rat. The foregoing constitutes substantial evidence that defendant made the recording for the benefit or at the direction of the Mexican Mafia with the specific intent to assist the Mexican Mafia in disciplining its member.
B. Evidence of Two Predicate Offenses
As noted above, the gang enhancement of section 186.22, subdivision (b) also required the prosecution to prove defendant committed the attempted witness intimidation for the benefit of “a criminal street gang.” Establishing this element requires proof that the gang “members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” (§ 186.22, subd. (f).) “[A] ‘pattern of criminal gang activity’ means the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of the [enumerated] offenses, provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons.” (§ 186.22, subd. (e).) Acts committed at the time of the current offense may serve as one of the predicate offenses. (People v. Sengpadychith (2001) 26 Cal.4th 316, 322-323.)
Defendant contends the record does not contain sufficient evidence of two predicate offenses, which was required to prove his offense was for the benefit of a criminal street gang. First, he contends that the two predicate offenses were not connected to the same gang. Defendant is mistaken. The two predicate offenses in this case were the current offense, which was committed for the purposes of the Mexican Mafia, and the murder committed by Berry when he was an associate of the Mexican Mafia. Thus, both offenses establish that the Mexican Mafia engaged in a pattern of criminal gang activity.
Second, defendant contends section 186.22, subdivision (e) requires the two predicate offenses be committed within three years of each other, and there was no evidence concerning when the Berry crime was committed. Defendant’s statutory interpretation is mistaken. The statute does not require that the two offenses be committed within three years of one another. A pattern of criminal activity can be proved by conviction or commission of the two predicate offenses within three years of one another. (People v. Duran (2002) 97 Cal.App.4th 1448, 1461, fn. 5.) “[F]ormer subdivision (e) [of section 186.22] defined ‘pattern of criminal gang activity’ as ‘“the commission, attempted commission, or solicitation of two or more’ of the offenses enumerated therein. [Citation.] In 1996, however, the Legislature amended the relevant portion of section 186.22 to read ‘commission of, attempted commission of, or solicitation of, sustained juvenile petition for, or conviction of two or more”’ predicate offenses. (Italics added; [citation].) This change in language plainly indicates the Legislature’s intent that the section 186.22 predicate offenses may be proved by a showing of the fact of the convictions, rather than proof of the underlying conduct, if the People so choose. Were it otherwise, the amended language would have served no purpose. [Citation.] Moreover, even if the statutory language could be considered ambiguous, support for our reading of the amendment to section 186.22 is found in a summary prepared for an April 16, 1996 hearing before the Assembly Committee on Public Safety. That summary explained that the addition of the language to section 186.22 would ‘“make it more practical for prosecutors to apply the [Street Terrorism Enforcement and Prevention] Act by allowing the use of previous court records as proof of the predicate acts instead of requiring witnesses to the original crime to testify anew,”’ in order to ‘“provide[] for a more efficient and expeditious delivery of justice to the victims of criminal street gang violence.”’ [Citation.]” (Ibid.)
As defendant made the recording in September 2005 and Berry was convicted of murder in May 2005, the two predicate offenses satisfy the three-year requirement of section 186.22, subdivision (e).
The Jury Was Properly Instructed on the Elements of the Gang Enhancement
Defendant contends he was deprived of due process because the trial court, instructing on the gang enhancement in the language of CALJIC No. 17.24.2, failed to instruct the jury it must find the elements of the definitions of “criminal street gang,” “pattern of criminal gang activity,” and ‘primary activities” beyond a reasonable doubt. Defendant is mistaken.
Under due process, the prosecution must prove beyond a reasonable doubt every element of the offense charged. (Clark v. Arizona (2006) __ U.S. __ [165 L.Ed. 842, 853].) The jury was fully instructed on the elements of the gang enhancement in the language of CALJIC No. 17.24.2. Included in the definition of the enhancement was the following statement: “The People have the burden of proving the truth of this allegation. If you have a reasonable doubt that it is true, you must find it to be not true.”
In assessing whether instructional error occurred, we consider the instructions as a whole and operate under the assumption that the jurors are intelligent and capable of understanding and correlating all the given jury instructions. (People v. Guerra (2006) 37 Cal.4th 1067, 1148-1149.) The jury was specifically instructed to “[c]onsider the instructions as a whole and each in light of all the others.” The jury received the standard instruction on the presumption of innocence and proof beyond a reasonable doubt. No other burden of proof is mentioned in the instructions. We are satisfied that the jury fully understood, from the totality of the jury instructions, that each element of the gang enhancement had to be proved beyond a reasonable doubt.
The Prosecutor Did Not Commit Misconduct
Defendant argues the prosecutor committed misconduct during argument by improperly vouching for Harris’s credibility and misstating the law on intimidation and attempted intimidation. Defendant did not object on the ground the prosecutor improperly vouched for a witness, thereby forfeiting the issue, but had it been preserved it is without merit. Assuming the prosecutor’s attempt to summarize the law was inaccurate, there is no reason to believe the jury was mislead or that it did not follow the court’s instructions, which properly set forth the elements of the charged offenses.
A. Improper Vouching
Defendant points to three brief comments in the prosecutor’s lengthy argument in which the prosecutor told the jury it could believe Harris’s testimony about the organization and workings of the Mexican Mafia, even though Harris had an extensive criminal history because Harris had intimate knowledge of the Mexican Mafia. Defendant contends the comments conveyed that the prosecutor had prejudged Harris’s credibility and determined he was trustworthy. Defendant failed to preserve the contention because he did not object in the trial court and request an admonition that the jury disregard the remarks. Such failures prevent appellate review of prosecutorial misconduct claims. (People v. Valdez (2004) 32 Cal.4th 73, 123 [claim of prosecutorial misconduct is forfeited where defendant did not object and an admonition could have cured any harm]; People v. Hill (1998) 17 Cal.4th 800, 820 (Hill) [“‘As a general rule a defendant 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.]”]; see also People v. Rodrigues (1994) 8 Cal.4th 1060, 1125.)
Had an objection been made, it would have been without merit. The prosecutor did nothing more than urge the jury to find Harris credible based upon the state of the evidence. This is permissible argument. (People v. Frye (1998) 18 Cal.4th 894, 971-972.)
B. Misleading Statements on the Law
As to misstating the law, defendant points to the following argument made by the prosecutor: “[Prosecutor]: If you believe that Harris when he was on the stand didn’t see what [defendant] was doing, but believe everything else as it relates to the gang stuff that we talked about earlier -- [¶] [Counsel]: That’s a misstatement of the law. [¶] [Prosecutor]: Then you go ahead and convict him with attempted intimidation, because the act wasn’t completed because Harris didn’t see the recording. Because it’s immaterial whether -- his subjective state of mind is immaterial to what he does independently on his own. [¶] I don’t know if I confused you, but those are the two charges.” This argument immediately followed upon two other attempts by the prosecutor to state the elements of the offenses in layman’s words, which counsel objected to on the ground the argument misstated the law, and each time the trial court ordered the prosecutor to rephrase. This last time, however, counsel failed to follow up on his objection and obtain a ruling. Thus, he did not preserve the issue for review. (See People v. Braxton (2004) 34 Cal.4th 798, 813 [a party who fails to obtain a ruling on a motion forfeits review of the merits of the motion].)
As defense counsel too had trouble explaining the elements of the offenses unobjectionably, he reread the instruction in CALJIC No. 7.14 on the elements of the offenses to the jury.
Assuming the issue was preserved, the trial court instructed the jury that the court’s instructions were the law and must be followed, regardless of the arguments of counsel. The jury was specifically instructed: “If anything concerning the law said by the attorneys in their arguments or at any other time during the trial conflicts with my instructions on the law, you must follow my instructions.” There is simply no reason to believe the juror’s disregarded the trial court’s clear instructions on the law in favor of the prosecutor’s inartful attempt to discuss the law. We presume the jury followed the trial court’s instructions. (People v. Boyette (2002) 29 Cal.4th 381, 436 [“In any event, the trial court properly instructed the jury on the law, and we presume the jury followed those instructions. Indeed, the jury was instructed that, to the extent the law as given by the trial court conflicted with the description of the law as given by the attorneys, the jury was to follow the court’s instructions.”].)
Cumulative Impact of the Errors
Defendant contends the cumulative impact of the errors at trial deprived him of his due process right to a fair trial. “Because we have found no errors, his claim of cumulative error fails.” (People v. Seaton (2001) 26 Cal.4th 598, 639.)
DISPOSITION
The judgment is affirmed.
We concur: TURNER, P. J., ARMSTRONG, J.