Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F06397
ROBIE, J.
Defendant Willie Brown appeals after a jury found him guilty of theft and resisting arrest. Defendant urges us to reverse his conviction, contending that prosecutorial misconduct violated his right to due process. We disagree and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged by amended information with theft, making a criminal threat, and resisting a police officer. The information further alleged defendant had two prior convictions. Defendant pled not guilty and denied the prior conviction allegations. The case proceeded to a jury trial.
At trial, C. M. testified that on July 23, 2006, he was 16 years old and at the Zinfandel light rail station when he was approached by defendant on a bicycle. Defendant asked C. M. for change and C. M. told defendant that he would give him some change after he purchased his ticket. C. M. pulled out five $1 bills and defendant pushed or nudged C. M., grabbed the five dollars from C. M.’s hand, and scooted away on his bike. C. M. followed defendant and saw him enter a convenience store. After defendant came out of the store with three beers and handed two of the beers to two other individuals in the adjacent alleyway, C. M. confronted defendant about the money. Defendant told C. M. not to “come up on him like that” because he had killed or “shanked” someone before. C. M. testified that he was scared and felt his life was in danger.
C. M. then went back to the light rail station, called 911, and told the operator that someone had taken his $5 and threatened to kill him. C. M. gave a physical description of defendant to the operator. When a sheriff’s deputy arrived at the parking lot adjacent to the light rail station, defendant approached C. M. and offered him his bike or drugs if he would call off the police. C. M. told him to go away and as defendant began to leave, a sheriff’s deputy arrived at the station.
A recording of the 911 call was played at trial. A transcript of the call is included in the clerk’s transcript.
Sacramento County Sheriff’s Deputy Sean Barry testified that he was dispatched regarding a possible robbery. When he arrived at the light rail station, he saw defendant, who fit the physical description from dispatch. He told defendant to come over to talk to him. Defendant looked directly at the deputy as Deputy Barry repeated the command. Defendant then pedaled away while shaking his head “no” and the deputy repeated the command a third time. The deputy pursued defendant but was blocked by an arriving train. Deputy Barry radioed for assistance, describing defendant and the direction he was traveling. He then made contact with C. M. at the station to get a brief description of what had occurred.
Deputy Shannon Schumaker testified that she was dispatched to the area regarding a robbery and was in the adjacent parking lot when she received Deputy Barry’s call. She saw defendant, who matched the description. The deputy approached defendant as he was trying to put his bicycle into the trunk of a sedan. Deputy Schumaker told defendant she needed to talk to him. When defendant continued to get into the sedan, she put him in a twist lock and placed him in handcuffs. C. M. then arrived with Officer Barry, identified defendant, and gave the deputies a statement.
The jury returned a verdict finding defendant guilty of grand theft and resisting an officer but not guilty of making a criminal threat. At a subsequent hearing, the court found defendant had two prior convictions and sentenced defendant to state prison for two years for the theft plus two consecutive one-year terms for the prior convictions.
DISCUSSION
On appeal, defendant contends the prosecution engaged in misconduct during rebuttal closing argument by denigrating defense counsel and thereby violated defendant’s constitutional right to a fair trial. We find no prejudicial misconduct.
I
Background
During trial, defense counsel asked C. M. if he had asked defendant to buy him cigarettes and had given defendant money for that purpose. C. M. denied doing so. During closing argument, defense counsel argued that there were inconsistencies in C. M.’s testimony and that his version of events “did not make sense.” She stated that C. M. was lying when he denied giving money to defendant for cigarettes. Defense counsel then stated: “The reason he C[. M.] watched him [defendant] go into the AM/PM, again, I submit to you, is because he asked him to buy him cigarettes, and he gave him that money.” Defense counsel continued to repeat the suggestion that C. M. had given defendant money to purchase cigarettes several more times in her closing argument.
In rebuttal, the prosecutor argued as follows: “She made it very clear in opening and right here that you were going to hear multiple different stories and trying to disclaim what C[. M.] said, trying to put it in a fairy tale version that he’s making stuff up.
“The only person [who] was making stuff up was the defense in this case, asking you to try to consider that the victim was shoulder tapping or trying to get the defendant to buy his cigarettes. Well, do we have any evidence of that whatsoever other than the questions that the defense asked? Not a single shred of evidence.
“And remember, the judge was very clear on the instruction, and you will have the packet, attorneys’ statements aren’t evidence. More importantly, attorneys’ questions are not evidence. And if this just wasn’t made out of whole cloth, if this just is in her imagination, why does she think it’s cigarettes? Why didn’t she think it was beer? Why didn’t she think C[. M.] wanted h[im] to buy, I don’t know, anything, beer, cigarettes, why? Because she had to pick something. And since she picked it out of nowhere, there’s no consistency. It doesn’t make sense. That’s what happens when you make up stories, and she’s the one making up a story for you, not C[. M.], in this situation.”
At this point defense counsel objected and the court sustained.
Later, the prosecutor argued as follows: “The other thing, the other misstatement that you heard from the defense was relating to C[. M.]’s call. She was trying to again paint C[. M.] in this manner that says that, oh, he was disrespectful and joking, and he called the defendant -- he didn’t even call him African American, he called him black. Listen to the tape. The defense just heard this yesterday and she got it wrong. Go back to the tape because it will be clear that it was the operator who said, let me get it right so I don’t make a mistake. And what does he look like, is he white, black, Asian or Hispanic? He’s, uh, he’s, uh, African American. It’s another case of where if you don’t do it right, if you just listen to the attorney, you won’t have the facts. And the facts are clear on the tape.”
Defendant did not object to the foregoing argument. At the conclusion of rebuttal argument, however, defense counsel asked to have the portions of the prosecutor’s argument “attacking [her] character” stricken. The court responded: “The objection was sustained.”
II
Analysis
Defendant asserts that his trial was prejudiced because the remarks about defense counsel “making stuff up” and stating that she “had to pick something” insinuated that defense counsel was a liar and her job was to fool the jury. He also contends that the prosecutor denigrated defense counsel by “casting her as a villain who was attacking C[. M.]” when the prosecutor stated that defense counsel was “‘paint[ing]’ him in a ‘disrespectful and joking manner.’” Defendant argues that these comments denigrated defense counsel, causing the jury to disregard defense counsel’s closing argument in which she attempted to persuade the jury to disbelieve C. M.’s testimony. According to defendant, this conduct violated his right to a fair trial and requires reversal of his conviction. We disagree.
In order to obtain reversal under the federal Constitution, any prosecutorial misconduct must be so egregious that it results in such unfairness as to constitute a denial of due process. (People v. Prieto (2003) 30 Cal.4th 226, 260.) Prosecutorial conduct that does not render a trial fundamentally unfair is misconduct under state law only when it attempts to persuade the trier of fact with reprehensible or deceptive methods. (Ibid.)
“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.” (People v. Samayoa (1997) 15 Cal.4th 795, 841.) “[O]therwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct.” (People v. Price (1991) 1 Cal.4th 324, 447.)
Defendant forfeited his claim of prosecutorial misconduct pertaining to the statements the prosecutor made after the sustained objection because defendant failed to object to the alleged misconduct. (People v. Samayoa, supra,15 Cal.4th at 841 .) To the extent that any of the remarks were objectionable, they were not so extreme that an admonition would not have cured any harm. (See, e.g., People v. Cunningham (2001) 25 Cal.4th 926, 1002-1003 [prosecutor’s statement that defense counsel’s job was to “‘create straw men’” and “‘put up smoke, red herrings’” would have been curable by an admonition].)
Although defense counsel objected to the remarks about “making stuff up,” she did not ask the court to admonish the jury, which is required to preserve a claim of prosecutorial misconduct. (People v. Montiel (1993) 5 Cal.4th 877, 914 [although counsel objected to prosecutor’s remarks at trial, the failure to request an admonition failed to preserve a claim of prosecutorial misconduct on appeal].) Even if we construe the request to strike at the end of rebuttal argument as sufficient to preserve the issue, defendant fails to show grounds for reversal based on prosecutorial misconduct.
First, defendant fails to show that the remarks were so egregious that they infected the trial with fundamental unfairness. “At closing argument a party is entitled both to discuss the evidence and to comment on reasonable inferences that may be drawn therefrom.” (People v. Morales (2001) 25 Cal.4th 34, 44.) However, “Casting uncalled for aspersions on defense counsel directs attention to largely irrelevant matters and does not constitute comment on the evidence or argument as to inferences to be drawn therefrom.” (People v. Thompson (1988) 45 Cal.3d 86, 112.)
Here, the prosecutor should have limited herself to saying that there was no evidence to support defense counsel’s cigarette theory, rather than accuse defense counsel of “making stuff up.” However, the remarks were isolated to a brief part of rebuttal argument and just crossed the line from properly pointing out that there was no evidence supporting the theory. This is not sufficiently egregious to constitute a denial of due process under federal law.
We also reject defendant’s claim under state law that the prosecutor’s remarks were prejudicial misconduct. Under state law, misconduct justifies reversal only if it is reasonably probable that a result more favorable to the defendant would have occurred absent the prosecutor’s conduct. (People v. Barnett (1998) 17 Cal.4th 1044, 1133, citing People v. Watson (1956) 46 Cal.2d 818, 836.)
We consider the statements in the context of the entire argument and “‘do not lightly infer’ that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements.” (People v. Dennis (1998) 17 Cal.4th 468, 522; People v. Frye (1998) 18 Cal.4th 894, 970.) Here, the prosecutor’s remarks, viewed in context, could reasonably be understood by the jury as admonishing them not to be misled by defense counsel’s unsupported cigarette theory and not as impugning the integrity of defense counsel generally. (See People v. Cummings (1993) 4Cal.4th 1233, 1302.)
Moreover, any prejudice that may have flowed from the remarks was cured. First of all, defense counsel’s objection to the remarks was sustained. Although there was no request for a formal jury admonition, defense counsel’s objection and the court’s response, signaled the jury to disregard the remarks. Secondly, the jurors were also given CALCRIM No. 222 instructing them to determine the case only upon the evidence before them and that the attorneys’ remarks were not evidence. Moreover, it is apparent that defense counsel was not generally discredited before the jury as the jury found for defendant on the criminal threat charge.
We disagree with defendant’s assertion that had the prosecutor not accused defense counsel of “making stuff up,” it is reasonably probable that the jury might have disbelieved C. M. because there were “noticeable” inconsistencies in C. M.’s testimony. The inconsistencies noted by defendant went only to minor, immaterial details: whether it was a $5 bill or five $1 bills that were taken, and whether C. M. was going to give defendant 15 cents or 25 cents in change. The primary details about the theft in C. M.’s testimony remained untouched: that C. M. was at the light rail station when approached by defendant; defendant asked for money; defendant took the money; defendant left with the money and refused to give it back. The evidence was against defendant, despite the noted discrepancies.
Furthermore, contrary to defendant’s claim, the case was not a close one that turned exclusively on defendant’s ability to raise doubt about C. M.’s testimony. In addition to C. M.’s testimony, there was evidence of flight, and the jury was given CALCRIM No. 372 regarding defendant’s flight. A jury may infer consciousness of guilt from evidence that the defendant fled immediately after committing a crime or being accused of committing a crime. (People v. Mendoza (2000) 24 Cal.4th 130, 179-180.)
Here, Deputy Barry testified that defendant peddled away on his bicycle shaking his head “no” after the deputy repeatedly attempted to make contact with him. Deputy Schumaker testified that when she came upon defendant putting his bicycle into the trunk of a sedan, he continued to get into the sedan even after she made repeated attempts to make contact with him. Although this evidence of flight was not sufficient to prove guilt by itself, it did tend to corroborate C. M.’s testimony that defendant took his money. This case, therefore, did not turn exclusively on defense counsel’s ability to discredit C. M.’s testimony in closing argument.
Under all of the foregoing circumstances, we conclude that defendant has failed to demonstrate a reasonable probability that he would have obtained a more favorable outcome absent the prosecutor’s isolated improper remarks.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, Acting P.J., MORRISON, J.