Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. MA042406 Benny C. Osorio, Judge.
William L. McKinney for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
Defendant Cornelius Casey appeals from a judgment of conviction entered after a jury trial. Defendant was sentenced to an aggregate term of eight years in state prison after being convicted of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)) and possession of ammunition by a person prohibited from possessing firearms (§ 12316, subd. (b)(1)).
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends that the evidence was insufficient to support the convictions, the trial court improperly refused to grant a mistrial, the prosecutor committed multiple instances of prosecutorial misconduct, the suppression motion should have been decided in defendant’s favor and the evidence suppressed, and cumulative error requires reversal. We disagree and affirm the judgment.
FACTS
A. Prosecution Evidence
On June 5, 2008, at approximately 8:00 p.m., Deputies Daniel Farrell and Daniel Welle, with Operation Safe Streets Gang-Enforcement Team of the Los Angeles County Sheriff’s Department, were called to the residence of defendant’s wife, Ponciana Youelle (Youelle), in response to a report. Deputies Farrell and Welle were the first officers to arrive at the scene. Upon arrival, Deputy Farrell saw defendant through the front window. Defendant was sitting on the couch, watching television and eating. After the deputies yelled out defendant’s name, he came to the window. The deputies told defendant to come outside, but defendant began pacing back and forth and proceeded to the stairs of the residence.
Deputy Farrell noticed defendant was holding his right pants pocket, which was sagging and contained a bulge. Based on his background, training, and experience, Deputy Farrell concluded that the bulge was most likely a weapon. Deputy Welle also saw the bulge and concluded it was most likely a weapon. Defendant walked up the stairs and then turned right into the master bedroom. He was in the bedroom for about two minutes, walking back and forth as if he were talking to someone. The deputies lost sight of defendant when he went further into the bedroom.
Soon after, defendant came out of the bedroom, followed by Youelle, and went outside to speak to the deputies. Both Deputies Farrell and Welle noticed that the bulge in the right side of defendant’s pants was no longer there. Deputy Farrell asked defendant whether he had any weapons on him, and defendant responded, “Nah. It’s upstairs.” Both deputies assumed that defendant had hidden the gun upstairs in the bedroom.
After several more deputies arrived, they conducted a search of the premises and found a fully loaded.357 caliber handgun and two boxes of ammunition in the same upstairs bedroom that defendant had disappeared into earlier. They found it wrapped in a pair of jeans on a shelf in the master bedroom closet. The deputies found a man’s clothing in the same closet, as well as razors and a toothbrush that belonged to defendant. There were two children in the house, including a ten-year-old who was sleeping in the bedroom where the deputies found the gun.
Detective Richard Cartmill arrived at the home about an hour after the other deputies. He was the first to interview Youelle. Youelle told Detective Cartmill that defendant did not live in her house but that he occasionally stayed there. Detective Cartmill asked Youelle if she had ever seen the.357 caliber revolver or the ammunition. She said she did not know anything about either of them.
Detective Cartmill then went to the patrol car where defendant was being detained. He read defendant his Miranda rights before he questioned defendant. Defendant told Detective Cartmill that both the gun and ammunition belonged to him and explained that he had purchased the gun for $200. Defendant also said that he knew he was a convicted felon. When asked whether Youelle owned any weapons, defendant said that she did not. Defendant also confirmed that he lived in Los Angeles but occasionally stayed at Youelle’s home, as well as his mother’s home in Lancaster.
Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694].
B. Defense Evidence
A week and a half prior to the June 5 incident at Youelle’s home, Youelle found a gun and ammunition in her car. She had recently picked her car up from an auto body shop and was searching in the car for paperwork she had lost. She found the gun under the driver’s seat, and the box of ammunition in the back of the trunk.
Youelle was confused about how the gun and ammunition got into the car, but still decided to take both of them into her house. She did not want the gun or ammunition in the car, since she had children. Instead, she put the gun and the ammunition in a gift bag in the closet in the master bedroom. Youelle made sure to put the gift bag on the top shelf so it would not be within reach of the children.
Youelle did not get rid of the gun or ammunition because she was scared, nine months pregnant and her father was terminally ill. She said she was concerned because, “I knew where my car was, and I knew what was goin’ on with the owner of the auto body shop.”
On June 5, defendant was at Youelle’s residence visiting the children, since Youelle and defendant had been separated and living apart. The previous day, defendant took Youelle’s car into another body shop to finish the work on her car, but he was pulled over on his way there. The car was impounded because defendant’s license was suspended. Defendant stayed an extra night at Youelle’s home so he could make arrangements to get a ride back to Los Angeles.
When the deputies arrived, defendant was sitting on the couch eating and watching the television. He was surprised to hear the deputies calling his name, since he was not currently living at Youelle’s home. He slipped the remote control into his pocket and picked up his plate before he walked over to see what the deputies wanted. Defendant explained, “I wanted them to see ‘cuz I had a remote control in my hand, but I wanted them to see because I know what police do to, you know what I’m sayin’, -- people that they think they have any type of weapons or anything goin’ on. They might shoot.”
Youelle was in the master bedroom when the police arrived. After hearing banging on the door, Youelle went downstairs to see what was going on. She could see four deputies through the window. She told the deputies that she wanted to close the bedroom door because she did not want the children to hear all the commotion. When Youelle reached the bedroom, she remembered the gun.
The deputies asked defendant to step outside so they could talk to him. Defendant told the deputies that he did not live in the house and was not on probation or parole. After refusing to open the door, defendant proceeded up the stairs. As defendant was walking upstairs, he stopped to talk to Youelle. As he was telling Youelle about the deputies, he took the remote control out of his pocket and put it, along with the plate, on the banister. Youelle told defendant that the gun was in the master bedroom. Defendant asked her what she was talking about. Youelle explained that it was not hers and that she found it in the car. Youelle then decided to let the deputies into the house because she did not want to make the situation worse.
When defendant came outside, the deputies searched him and put him in the back of a patrol car. Deputy Farrell asked defendant, “Is there anything that you want to tell me?” Defendant said, “No.” Defendant watched the deputies search Youelle and put her up against a wall before putting her in the front seat of the patrol car. About an hour later, Detective Cartmill told defendant that if he admitted the gun was his, then they would not take his children away or charge Youelle with a crime. Defendant told Detective Cartmill that the gun belonged to him in order to protect his family.
The deputies told Youelle that defendant had confessed that the gun belonged to him. They believed there was a second gun in the house and threatened to take her children away and send her to jail if she did not tell the deputies where it was. Youelle lied and told the deputies that she did not know anything about the gun because she was scared, pregnant and did not want to lose her children or give birth in jail.
DISCUSSION
A. Sufficiency of the Evidence
Defendant contends that the evidence was insufficient to convict him because Youelle’s testimony, along with the circumstances of his confession, raised a reasonable doubt as to his guilt. We disagree.
When the sufficiency of the evidence is challenged, a reviewing court must determine “‘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.’” (People v. Ledesma (2006) 39 Cal.4th 641, 722, quoting from Jackson v. Virginia (1979) 443 U.S. 307, 319 [99 S.Ct. 2781, 61 L.Ed.2d 560].) Although the reviewing court must “‘ensure the evidence is reasonable, credible, and of solid value, ’” it must accord due deference to the trier of fact and not substitute its evaluation of a witness’s credibility for that of the fact finder. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The reviewing court may not reverse the trial court’s judgment for insufficient evidence unless there is no hypothesis under which the trier of fact could have found substantial evidence to support the jury’s verdict. (People v. Zamudio (2008) 43 Cal.4th 327, 357.) No matter how slight the prosecution’s evidence may appear in comparison to the defense’s evidence, the judgment cannot be reversed as long as it is supported by substantial evidence. (In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1497.)
Section 12021, subdivision (a)(1), prohibits possession of a firearm by a felon. The elements of the offense are (1) conviction of a felony, and (2) ownership, possession, custody or control of a firearm capable of being concealed on a person. (People v. Snyder (1982) 32 Cal.3d 590, 592.) Section 12316, subdivision (b)(1), prohibits possession of ammunition by a person prohibited from possessing firearms.
Defendant contends that the evidence was insufficient to convict him because the testimony of his wife, Youelle, along with the circumstances of his confession raised reasonable doubt. Youelle testified that she found the gun and ammunition in her car and did not inform defendant of their existence until the deputies arrived at her home. Defendant testified that he confessed to the deputies only because he was afraid that they would take his children away and lock up his wife.
However, the prosecutor introduced evidence that was contrary to defendant’s evidence. The prosecutor proved the first element of the crime, conviction of a felony, when defendant admitted during his testimony he had several prior felony convictions.
In regard to the second element of the crime, ownership, possession, custody or control of a firearm capable of being concealed on a person, Deputy Farrell and Deputy Welle testified that they observed defendant with a heavy object in his pants, which they both concluded was most likely a weapon. Defendant went upstairs to the master bedroom and came back down without the bulge in his pants. After replying to the deputies that a gun was upstairs, the deputies searched the house and found the.357 caliber handgun, along with ammunition, in the master bedroom, wrapped in a pair of men’s jeans. The deputies’ testimony supports the jury’s finding of guilt beyond a reasonable doubt. Additionally, defendant made a recorded confession that he had purchased the gun for $200. Defendant’s confession supports, but is not necessary for, the convictions.
Even if the defense has a contrary view of the facts, this does not demonstrate that the prosecutor’s evidence is insufficient. (People v. Earp (1999) 20 Cal.4th 826, 887-888.) The jury was free to disbelieve the testimony of Youelle and defendant and to believe the testimony of the deputies and defendant’s confession. There was a hypothesis under which the jury could have found the evidence consistent with guilt beyond a reasonable doubt. Thus, substantial evidence supports defendant’s conviction of possession of a firearm by a felon (§ 12021, subd. (a)(1)) and possession of ammunition by a person prohibited from possessing firearms (§ 12316, subd. (b)(1)). (People v. Zamudio, supra, 43 Cal.4th at p. 357.)
B. Refusal to Allow Defendant to Present Evidence That He Had Been “Set Up”
Defendant contends that the trial court erred in refusing to allow him to present evidence that he had been “set up” for an arrest with the gun by El Nathan Washington (Washington). We disagree.
Defendant sought to present evidence that on May 28, 2008, Washington and defendant had a heated argument in regard to cars Washington was doing work on for defendant in Washington’s auto body shop. Defendant pointed a gun at Washington, as well as Washington’s friends, and threatened to shoot them. Youelle’s car was one of the cars that Washington was working on for defendant. This was the same car that Youelle testified she found the gun and ammunition in prior to putting the gun and ammunition in her closet. Defendant asserts that evidence of Washington’s anger towards him, his opportunity to plant the gun and his notifying the police that defendant possessed the gun was wrongly refused by the trial court.
Except as otherwise provided by statute, all relevant evidence is admissible. (Evid. Code, § 351.) Relevant evidence is evidence that has “any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Id., § 210.) The test for relevancy 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. Hamilton (2009) 45 Cal.4th 863, 913, quoting from People v. Carter (2005) 36 Cal.4th 1114, 1166-1167.) The trial court’s ruling will not be overturned on appeal except for abuse of discretion. (People v. Cooper (1991) 53 Cal.3d 771, 816.)
In order for evidence of third-party culpability to be admissible, there must be “direct or circumstantial evidence linking the third person to the actual perpetration of the crime.” (People v. Hall (1986) 41 Cal.3d 826, 833.) Mere motive or opportunity is not sufficient to raise reasonable doubt as to the defendant’s guilt. (Ibid.)
Evidence that Washington had a motive and the opportunity to plant the gun is not sufficient to raise reasonable doubt as to defendant’s guilt. Absent evidence linking Washington to the gun, the evidence regarding Washington was not admissible. (People v. Hall, supra, 41 Cal.3d at p. 833.) Thus, there was no abuse of discretion by the trial court in refusing to admit the evidence regarding Washington. (People v. Hamilton, supra, 45 Cal.4th at p. 913.)
C. Denial of Motion for Mistrial
Defendant contends that the trial court violated his rights under the Fifth and Fourteenth Amendments when it improperly refused to grant a mistrial. Specifically, defendant contends that his motion for a mistrial should have been granted when (1) Deputy Farrell testified that he worked for the “Operation Safe Streets gang unit, ” and (2) Deputy Farrell testified the police were looking for defendant because he was involved in a “separate gun-related incident.” The court admonished the jury, but defendant asserts that it was ineffective since the trial was based on defendant’s credibility, and the statements painted defendant as a gang member with a prior gun conviction. We disagree.
In the pretrial proceedings, both parties agreed that the parties would refer to a “gun violation” or a “gun-related incident or investigation” as the reason that the deputies were at Youelle’s home. The parties could not mention any details of the altercation between defendant and Washington that led Washington to file a police report against defendant for assault with a firearm and criminal threats. The deputies were at Youelle’s home because they were responding to a call about this report. The charges against defendant were later dismissed. Additionally, the court stated that it would admonish the jury that they could not take this information into consideration for purposes of determining defendant’s guilt.
Deputy Farrell testified, without objection, that he worked for the “Operation Safe Streets Gang-Enforcement Team” and that his duties were to “keep track of gang members, targeted gang areas, and try to control gang-related crimes on the street.” In response to why Deputy Farrell was at Youelle’s residence, he responded, “we were there for a separate gun related incident that Mr. Casey was involved in.” The court then immediately admonished the jury, “Members of the jury, with regard to this matter, you’re not to speculate whether Mr. Casey was involved in another gun-related incident. There is going to be testimony, as Ms. Johnson said, that there was another gun-related incident, but not -- you’re instructed not to consider whether that pertains to Mr. Casey or not at this time, and we can address that issue later, is that correct?” Defendant’s counsel agreed but requested to address the issue later.
Outside of the presence of the jury, the court asked the prosecutor why the information that the gun incident involved defendant was discussed when the court specifically ruled that the information should not be introduced. The prosecutor responded that she did inform the witness that he was only to say that the reason was a “separate gun-related incident, ” but he may have been confused due to an earlier discussion about the gun incident involving defendant. Deputy Farrell explained that he made a mistake and apologized to the court.
Defendant made a motion for mistrial based on Deputy Farrell’s statement about defendant’s involvement in a gun-related incident and his insinuation that defendant was somehow involved in gang activity. The court denied the motion and stated, “But the court will keep an eye as to this, any future violations, Ms. Johnson. It was stated that you did tell the deputy. The deputy did admit it was his mistake at this point in time. You know, again, there was this confusion back and forth as to what was going to be stated or not stated in this matter.
“The court did instruct the jury they’re not to consider this issue right here. As to regarding the gang-officer situation, I didn’t hear an objection at the time regarding that statement; so my -- the court assumption at that time was that was asking the deputy where he worked and where he works now as part of his assignment, and the court -- if counsel wishes, I could give a[n] admonition as to that to the jury also.”
Defense counsel asked the court to give a jury admonition. The court later stated to the jury, “I just want to advise you of -- instruct you on two matters: one, the fact that Deputy Farrell, the first deputy that testified, is assigned to a gang unit is not evidence of any gang affiliation on the part of the defendant or any part of the defense witnesses. Do not let that come into your deliberations. You’re instructed that it is not part of the evidence, and don’t speculate on that matter either.
“As also regard -- on the same matter -- not same matter but what I’ve instructed previously, again to remind you that the fact there was a gun violation for which the deputies came to the location is also not evidence that the defendant is guilty of the charge or that should not let -- that should not come into your deliberations. You’re not to speculate into that matter also.”
In reviewing rulings on motions for mistrial, the reviewing court applies the abuse of discretion standard. A trial court should grant a motion for mistrial only if the challenged evidence is so prejudicial that it cannot be cured by admonition or instruction. (People v. Wallace (2008) 44 Cal.4th 1032, 1068.) The trial court is “‘vested with considerable discretion in ruling on mistrial motions.’” (Ibid.)
The introduction of gang affiliation evidence is impermissible “if only tangentially relevant, given its highly inflammatory impact.” (People v. Cox (1991) 53 Cal.3d 618, 660, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421.) Although courts have long recognized gang membership evidence as potentially prejudicial, Deputy Farrell’s response to where he worked was not prejudicial. There was no mention of any relationship between Deputy Farrell’s job and his reason for being at Youelle’s residence. Deputy Farrell was merely stating his job description. The court admonished the jury, requiring them not to use Deputy Farrell’s job as evidence that defendant had any gang affiliation and not to let that information come into their deliberations. We presume that the jury followed that admonition. (See People v. Boyette (2002) 29 Cal.4th 381, 436 [statement was not prejudicial where prosecutor arguably misstated the law, because “the trial court properly instructed the jury on the law, and we presume the jury followed those instructions”].)
Additionally, Deputy Farrell’s testimony that defendant was involved in a separate gun-related incident was not prejudicial. The statement did not cause irreparable harm because the jury was fully admonished that they could not speculate as to the gun violation and could not consider it in their deliberations. We presume that the jury followed that admonition. (People v. Boyette, supra, 29 Cal.4th at p. 436.) Further, defendant later admitted several prior felony convictions. He also explained his familiarity with the procedure law enforcement officers used during an arrest since he had been “arrested a couple of times.” These statements make it highly unlikely that there was any prejudicial effect from the deputy’s statement.
We conclude there was no abuse of discretion when the trial court denied defendant’s motion for a mistrial because Deputy Farrell’s statements did not cause irreparable harm and the jury was promptly and thoroughly admonished. (People v. Wallace, supra, 44 Cal.4th at p. 1068; People v. Boyette, supra, 29 Cal.4th at p. 436.)
D. Prosecutorial Misconduct
Defendant asserts that the prosecutor committed several acts of misconduct, which resulted in the denial of defendant’s due process rights under the Fifth and Fourteenth Amendments. Specifically, defendant contends that the prosecutor committed misconduct by (1) failing to inform Deputy Farrell not to testify that defendant was involved in a separate gun-related incident and that he was from a gang unit; (2) “sandbagging” defendant during cross-examination; (3) referring to matters outside of the evidence during argument; (4) making improper arguments to the jury; (5) vouching for the credibility of prosecution witnesses; and (6) commenting on defendant’s post-arrest silence. We disagree.
State and federal standards for prosecutorial misconduct “‘are well established. “‘A prosecutor’s... intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so “egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.”’” [Citations.] 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.”’”’” (People v. Navarette (2003) 30 Cal.4th 458, 506.) However, even if the prosecutor committed misconduct, the judgment will not be reversed if it is “not reasonably probable that a result more favorable to the defendant would have been reached in its absence.” (People v. Barnett (1998) 17 Cal.4th 1044, 1133.)
In order to be able to appeal prosecutorial misconduct, defendant must make a timely objection at trial and request an admonition, “‘“otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct.”’” (People v. Barnett, supra, 17 Cal.4th at p. 1133.)The reviewing court will not find prosecutorial misconduct unless there is an abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 213.) Abuse of discretion occurs when there has been an “‘arbitrary, capricious or patently absurd [ruling] that resulted in a manifest miscarriage of justice.’” (People v. Sanders (1995) 11 Cal.4th 475, 512.)
1. Failing To Inform Deputy Farrell Not To Testify That He Was From a Gang Unit and That Defendant Was Involved In a Separate Gun-Related Incident
Defendant contends that the prosecutor committed misconduct when she failed to admonish Deputy Farrell not to testify that he was from a gang unit and that defendant was involved in a separate gun-related incident. We disagree.
The prosecutor did inform Deputy Farrell that he was to state that the reason for arriving at Youelle’s residence was a separate gun-related incident. Deputy Farrell apologized to the court and said that he was confused because there were different discussions about what Deputy Farrell was allowed to say. The court went on to admonish the jury not to consider this information.
There was no prior agreement that Deputy Farrell was not allowed to state his occupation, i.e., that he worked with the Operation Safe Streets Gang-Enforcement Team. Further, defense counsel did not object when Deputy Farrell stated his occupation. Thus, defendant’s claim of prosecutorial misconduct was forfeited because defendant did not make a timely objection or request a jury admonition. (People v. Dykes (2009) 46 Cal.4th 731, 761 [“There was no objection and the claim is forfeited.”].) In sum, we find no prosecutorial misconduct.
2. “Sandbagging” Defendant During Cross-Examination
Defendant contends that the prosecutor “sandbagged” him during cross-examination by asking questions calling for inadmissible answers. We disagree.
The court instructed the parties not to mention Washington, who was involved in the dismissed charges against defendant, assault with a deadly weapon and intimidation. Defense counsel agreed and stated, “Yes, that’s fine, your Honor. I wasn’t intending on bringing any --.” Defendant interrupted his counsel and said that he strongly disagreed with his counsel’s position regarding Washington. Defendant believed that Washington had set him up and that not allowing in this evidence would hurt his case.
The prosecutor later cross-examined defendant as to why he lied to the police. The prosecutor asked, without objection, “Rather than lying to the police, could you have told them the truth? Couldn’t you have just told them about how the gun got in the house?” Defendant answered, “I didn’t know the gun was... in the house, and the reason why, you know, I told the police that it was my gun because my wife was pregnant and that they was threatening her to take her to jail and to take my kids. That’s the only reason.”
Defendant believed that Detective Cartmill was going to take his children away and his wife to jail if he did not confess that it was his gun and ammunition. When asked why he didn’t ask for an attorney or another deputy, defendant responded that there was another sergeant there but he had told defendant that he had to direct his questions to Detective Cartmill. Defendant also said, “we filed a complaint against Mr. Cartmill and the deputies for their misconduct.” The prosecutor objected, but the court stated that the answer would remain and the prosecutor should move on to the next question.
The prosecutor asked defendant if he had tried to explain the situation to anyone since the arrest. Defendant replied, “Well, I direct it to my attorney. I know that it’s -- it’s a process, you know, I have to go through, things could lead up to a juror, you know what I’m sayin’, to decide whether or not, you know, the police conduct was right, the whole situation.”
When further asked about why he did not tell the police before the trial, defendant responded, “No, I’ve been in custody, police don’t come down there and talk to you.” The prosecutor interjected, “Your Honor.” Defendant continued, “-- and this procedure that you have to go through.” The court asked the prosecutor to ask her next question.
Defendant’s claim that he was “sandbagged” was forfeited because defense counsel did not object and did not request a jury admonition. (People v. Dykes, supra, 46 Cal.4th at p. 761.) In any case, this claim is meritless. The prosecutor never asked defendant about Washington. He merely asked why defendant lied to the officers and why he did not come forward later to tell someone about the situation. Defendant answered that “the only reason” he told the police he owned the gun and ammunition was because he was afraid they would take away his children and take his wife to jail. The prosecutor was questioning the reasonableness of defendant’s testimony. At no time during the cross-examination did the prosecutor ask defendant about Washington or ask questions that defendant could only answer by discussing Washington. Thus, there was no prosecutorial misconduct. (People v. Navarette, supra, 30 Cal.4th at p. 506.)
3. Referring to Matters Outside of the Evidence
Defendant contends that the prosecutor committed misconduct by referring to matters outside the evidence. We disagree.
Defendant testified that he had never seen the gun. The prosecutor asked, “But you were able to estimate its value at $200 without even knowing what kind of gun it was.” Defendant replied, “Well, I just said ($200) because that’s what he wanted me to say.” The prosecutor asked, “would it surprise you to know that’s a reasonable value for this gun?” Defendant objected that the evidence was not before the court. The objection was sustained.
During closing argument, the prosecutor stated, “The defendant also -- again, he said he purchased the gun for $200. Isn’t it a coincidence that, without seeing the gun or the ammo, he knows a general range of prices for the gun on the street -- $200. Not every gun is worth $200. How does he know this gun was worth $200, and when the gun is found, it’s approximately a $200 gun?”
Defendant’s claim that the prosecutor committed misconduct by referring to matters outside the evidence was forfeited because defense counsel did not object and request a jury admonition. When the price of the gun was first brought up by the prosecutor, the court sustained defendant’s objection. The prosecutor wrongly brought up the price of the gun in closing argument, but defendant did not object. When there is not a timely objection at trial and request for admonition, the point is only reviewable if an admonition would not have cured the harm caused by the misconduct. (People v. Price (1991) 1 Cal.4th 324, 447.)
Any harm caused by the misconduct could have been cured by an admonition. Defendant could have easily objected and requested the court to reinforce the jury’s understanding that the price of the gun was not evidence that was before the jury. Therefore, defendant forfeited his claim that the prosecutor committed misconduct by referring to matters outside of evidence because defendant failed to object and the harm could have been cured by an admonition. (People v. Price, supra, 1 Cal.4th at p. 447.)
4. Making Improper Arguments to the Jury
Defendant contends that the prosecutor committed prosecutorial misconduct by making improper arguments to the jury. We disagree.
During closing argument, the prosecutor told the jury, “The defendant ignored the court’s order to omit certain things, but you’re not to -- you’re not to consider, for example, why were the deputies at the defendant’s house to investigate a separate gun-related crime. These are issues you’re not supposed to consider. Also the court and the defense and I all agreed as to the content and length of the audio tape.”
Defendant objected and the court overruled the objection. The prosecutor continued, “If the audio had information that showed the defendant in a favorable light that was -- showed the defendant was innocent, you know, Ms. Murayama she’s -- she’s a competent -- she’s a good attorney. She would not allow the court to limit the audio just to the part that incriminated the defendant.”
The court sustained the objection and said, “It’s stated that both parties agreed with the court’s consent that the certain part be played before the jury.” The prosecutor continued, “And certainly if Detective Cartmill had threatened the defendant in that audio, we would have heard it. Detective Cartmill would probably be sitting in the defendant’s chair if that had happened. If Detective Cartmill had threatened the defendant, certainly that would have to stay in the audio. We would not be allowed to exclude that because coercion would have been relevant in this trial.
“If the court had found that the defendant was coerced in any way by the deputies, again, Ms. Murayama would not allow things to proceed in that manner. And the court previously ruled that the defendant was not to make any legal conclusions about whether the search of his house was permissible. If it had been illegal, we would not be here.”
After defendant objected, the court admonished the jury, “As the court has stated before, any matters whether there was improper search and entry is before the court and not before the jury the court is advising, instructing the jury only to consider the facts in this case and be the... final arbiters of what happened. Okay? Thank you.”
After closing argument, defendant claimed prosecutorial misconduct in the prosecutor’s comments to the jury. Defendant argued it was improper to tell the jurors that there was nothing else on the tape that would have helped defendant. The court replied, “The court finds that when you originally made your objection the court didn’t have a problem with her alluding to the fact that both parties stipulated. When she stated to say, if there’s something that might -- you would have allowed the evidence if it were exculpatory, then that’s when I stopped, and I sustained the court’s own objection as to that.
“As to the other issue, when you asked for a side bar, the court had heard this matter before. The court instructed the jury and the court believes that the jury will follow the instruction based on that; so I do not find prosecutorial misconduct; so that motion is denied.”
We conclude that the trial court acted within its discretion and there was no prosecutorial misconduct. The prosecutor accurately stated that both parties agreed to the length of the audiotape. This statement was not prejudicial or incorrect. When the prosecutor went on to say that if there was exculpatory evidence on the audiotape, the defense counsel would have made sure to bring it in, the court sustained the objection and admonished the jury. The jury was told that both parties agreed to what would be heard from the tape. We presume that the jury followed that admonition. (People v. Boyette, supra, 29 Cal.4th at p. 436.) There was no prosecutorial misconduct.
5. Vouching for the Credibility of the Prosecution’s Witnesses
Defendant contends that the prosecutor committed misconduct by vouching for the credibility of the prosecution’s witnesses. We disagree.
During closing argument, the prosecutor stated, “Do not allow your hearing and vision to be confused by a story that -- that the defendant has had months to create. This case simply comes down to the credibility. Who do you believe?
“Do you believe the deputies, who spend years cultivating their -- their jobs and their careers so that they could rise in the ranks and would be prosecuted and fired had they lied on the stand, or do you believe the defendant who has something at stake in this case? Who do you believe?”
The prosecutor also stated, “The defendant said that he filed a complaint against Detective Cartmill. But we see no evidence of that.” Defendant failed to object to this argument or request the jury to be admonished. When there is not a timely object at trial and request for admonition, the point is only reviewable if an admonition would not have cured the harm caused by the misconduct. (People v. Price, supra, 1 Cal.4th at p. 447.)
Any harm caused by the misconduct could have been cured by an admonition. Defendant could have easily objected and requested the court to admonish the jury to disregard the prosecutor’s comments about the deputies’ credibility.
In sum, defendant forfeited his claim that the prosecutor committed misconduct by vouching for the credibility of the prosecution’s witnesses because defendant failed to object and the harm could have been cured by an admonition. (People v. Price, supra, 1 Cal.4th at p. 447.)
6. Commenting on Defendant’s Post-arrest Silence
Defendant contends that the prosecutor committed misconduct by commenting on defendant’s post-arrest silence. We disagree.
During closing argument, the prosecutor stated, “And they’ve had months to put this story together. When they actually spoke to the deputies, they had no time. The defendant testified it was seconds. They had no time to talk about it, and that’s probably most likely where the truth actually came out, when they didn’t have time to talk about it. It’s been months since then at this point. And if their story is so true, if what they say is so plausible, if it was so reasonable, why not tell someone before now?”
Defendant objected on the ground the prosecutor misstated the evidence. The court sustained the objection and said, “Not misstating the evidence, but the court will strike the last sentence.”
Defendant forfeited his claim of prosecutorial misconduct by failing to request a jury admonition. Although defendant did object to the statement, there was no request for admonition. When there is not a request for admonition, the point is only reviewable if an admonition would not have cured the harm caused by the misconduct. (People v. Price, supra, 1 Cal.4th at p. 447.) Defendant could have requested that the court admonish the jury not to take into account defendant’s post-arrest silence. Any harm caused by the misconduct could have been cured by an admonition.
In any case, the claim is meritless because there was no misconduct. Commenting on a defendant’s post-arrest silence is a violation of the Due Process Clause of the Fourteenth Amendment. This is based on the “‘“‘notion that it is fundamentally unfair to use post-Miranda silence against the defendant at trial in view of the implicit assurance contained in the Miranda warnings that exercise of the right of silence will not be penalized. [Citation.]’”’” (People v. Delgado (2010) 181 Cal.App.4th 839, 853.) Delgado does not apply to the present case because defendant never invoked his right to remain silent. Defendant chose to confess to Detective Cartmill. The prosecutor was commenting on defendant’s nine months of silence after his confession, not his post-Miranda silence. Thus, there was no prosecutorial misconduct.
E. Suppression Motion
Defendant contends that in the pretrial hearing, the trial court erroneously denied his motion to suppress evidence on the ground the deputies unlawfully entered Youelle’s home, where they found the gun and ammunition. We disagree.
1. Prosecution Evidence
Deputy Farrell and Deputy Welle arrived at Youelle’s home in response to a report that a victim had been assaulted with a deadly weapon and intimidated. They saw defendant through the window and noticed he was holding his right pocket, which was sagging and contained a bulge. Both deputies concluded the bulge was most likely a weapon. Defendant refused to come outside and went upstairs. When he came back down, there no longer was a bulge on the right side of his pants.
The deputies decided to do a protective sweep because the defendant was becoming increasingly agitated, and they became aware that there possibly were children inside the home. They detained defendant and asked him whether he had any weapons on him, and defendant responded, “Nah. It’s upstairs.” The deputies explained to Youelle that there was a gun in the house and they were afraid if the children got to the gun something might happen.
The deputies performed a protective sweep and brought both children outside. Deputy Welle explained the situation to Detective Cartmill. Detective Cartmill talked to Youelle and got her written consent to go into the house to search for the gun. During the search of the home, Deputy Welle recovered a fully loaded.357 caliber handgun and two boxes of ammunition.
2. Defense Evidence
Youelle testified that she was nine months pregnant and having mild contractions when the deputies arrived at her home at around 8:00 p.m. She asked the deputies if they had a search warrant. They ignored her and yelled that if she did not open the door, they would come in. They continued yelling until they broke the door down. One of the deputies slammed her against the wall and searched her. He handcuffed her, put her in the back of the patrol car and told her she was going to jail. After over an hour in the car, Detective Cartmill came to talk to Youelle. He told her that they found a gun in the house and that she needed to sign a consent form because they believed there was a second gun in the house. He told Youelle that since they found the first gun, it was child endangerment, and she would go to jail if she did not sign a consent form. Youelle signed the consent form at 12:33 a.m. because she did not want the deputies to take her children away, and she did not want to have her baby in jail.
3. Trial Court Findings
The court denied the motion to suppress the.357 caliber handgun and two boxes of ammunition. The court found that the deputies were presented with exigent circumstances and a situation in which a protective sweep was justified. The court also found through witness testimony that the prosecution proved by a preponderance of the evidence that Youelle had given the deputies consent to search her house for the gun.
4. Analysis
When reviewing a denial of a motion to suppress evidence, we must defer to the trial court’s findings in regard to the credibility of witnesses and conflicts in testimony as long as they are supported by substantial evidence. We must independently assess whether, under the facts found, the search was reasonable or unreasonable. (People v. Leyba (1981) 29 Cal.3d 591, 596-597.)
There is substantial evidence to support the trial court’s finding that the deputies lawfully entered Youelle’s home. The deputies were at the home in response to a report that a victim had been assaulted with a deadly weapon. They believed defendant was in possession of a gun that he had hidden upstairs; he seemed agitated, and the deputies believed there were children in the home that were in danger. The officers did a protective sweep to get the children out of the home. After obtaining written consent from the owner of the home, they did another search and found the gun and ammunition. This court is satisfied that the deputies’ search of Youelle’s residence for the gun was lawful because the deputies obtained written consent. (People v. Rivera (2007) 41 Cal.4th 304, 311 [the Fourth Amendment’s prohibition against warrantless searches does not apply when a homeowner gives proper consent to search the premises].)
Defendant relies on the recent case of People v. Strider (2009) 177 Cal.App.4th 1393 to support his contention that the trial court erred in denying his suppression motion. In Strider, the officer saw the defendant in the gated front yard of a private residence. The officer saw a gun in the defendant’s pocket and ran after the defendant. The defendant ran into the house, and the officer followed. (Id. at pp. 1396-1397.) The appellate court observed, “The only suspected criminal activity suggested by the parties was Strider’s carrying of a loaded firearm in a public place in violation of section 12031. Thus, the reasonableness of the detention turns on whether the People established at the suppression hearing that the fenced front yard was a public place within the meaning of the statute. We conclude it was not.” (Id. at pp.1400-1401, fn. omitted.)
Defendant’s reliance on Strider is misplaced. In Strider, the officer followed the defendant into the home merely because the officer saw the defendant in possession of a weapon. Here, the deputies entered the home because they deemed it necessary to perform a protective sweep for the safety of the children. After performing the protective sweep, the deputies obtained written consent from Youelle to search the home for weapons.
In sum, the trial court correctly denied defendant’s motion to suppress evidence because the deputies lawfully entered Youelle’s residence where they found the gun and ammunition. (People v. Rivera, supra, 41 Cal.4th at p. 311.)
F. Cumulative Error
Defendant contends that it is reasonably possible that the jury would have reached a result more favorable to defendant had the claimed errors not occurred. We disagree.
A defendant is “entitled to a fair trial but not a perfect one.” (People v. Cunningham (2001) 25 Cal.4th 926, 1009.) In this case, defendant received a fair trial. Therefore, reversal for cumulative error is not required. (People v. Sanders (1995) 11 Cal.4th 475, 565.)
DISPOSITION
The judgment is affirmed.
We concur: WOODS, Acting P. J., ZELON, J.