Opinion
C068292
07-28-2015
THE PEOPLE, Plaintiff and Respondent, v. DAVID DENSON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 09F03004)
A jury convicted defendant David Denson of one count of first degree murder, two counts of willful, deliberate and premeditated attempted first degree murder, and one count of possession of a firearm by a felon. On appeal, defendant raises claims of trial court error and prosecutorial misconduct.
Defendant contends: (1) the trial court erred in denying his request for judicial use immunity for a proposed defense witness; (2) he is entitled to use immunity for that witness because the prosecutor intentionally distorted the factfinding process; (3) he is entitled to compel the government to grant that witness immunity because the prosecutor interfered with the witness's decision to testify; (4) the prosecutor engaged in misconduct by referring to facts not presented at the trial during his closing argument; (5) the prosecutor misstated the law on provocation; (6) the prosecutor intentionally deceived the jury by arguing that defendant came up with a defense at the last minute after spending two years in jail; (7) the trial court erred in refusing to instruct the jury with a pinpoint instruction on third party culpability; and (8) the cumulative effect of the erroneous rulings by the trial court, prosecutorial misconduct, and ineffective assistance of trial counsel requires reversal of the judgment.
We conclude (1) defendant has not shown he is entitled to use immunity for his proposed witness under his proposed test, which was articulated in Government of Virgin Islands v. Smith (3d Cir. 1980) 615 F.2d 964 (Smith), overruled in part, United States v. Quinn (3d Cir. 2013) 728 F.3d 243, 247 (Quinn); (2) defendant forfeited the claim that the prosecutor intentionally distorted the factfinding process by not raising it in the trial court; (3) defendant has not shown the prosecutor purposefully interfered with his right to present a witness on his behalf; (4) defendant did not preserve for appellate review his claim that the prosecutor engaged in misconduct by referencing facts not presented at the trial, and his alternative ineffective assistance of counsel claim is without merit; (5) defendant forfeited the claim that the prosecutor misstated the law on provocation, and he has not established ineffective assistance of counsel in connection with that claim; (6) defendant forfeited the claim that the prosecutor's closing argument is intentionally deceptive, and the related ineffective assistance claim lacks merit; (7) no instructional error occurred because the instructions given adequately conveyed that evidence of third party culpability raises a reasonable doubt concerning defendant's guilt; and (8) because there was no prejudicial error, defendant's cumulative error claim lacks merit.
We will affirm the judgment.
BACKGROUND
Dusty Vasquez and her friend Donann Fox went to a club with Vasquez's brother Daniel Sewell on the evening of April 9, 2009. Sewell drove Fox home because Vasquez was very drunk. Instead of taking Fox directly home, Sewell took her to a motel. Sewell and Fox stayed in a motel room for one or two hours and, according to Sewell, the two had sex.
After he dropped Fox off at her home, Sewell realized his wallet and marijuana were missing. He and Vasquez asked Fox to help them look for Sewell's things. The three eventually went to the house Vasquez and Sewell shared with their mother Betty Marvos.
Sometime after 7:00 a.m., Vasquez announced to Sewell from outside the house, "CC wants to talk to you." Defendant's nickname was CC and he was Fox's boyfriend.
Sewell and Marvos were in the living room at the time. Marvos was about 10 feet from the front door and saw defendant, whom she had met once prior to that date, at the front door. Fox, whom Marvos had also previously met, stood behind defendant. Marvos saw defendant pull out a gun and shoot Vasquez in the eye. Vasquez fell to the ground and died from the gunshot wound. Sewell, who was standing about 16 feet away, also saw defendant shoot Vasquez. Sewell had a clear view of defendant.
Defendant then shot Marvos, hitting her above her left breast and arm, and he also shot Sewell, hitting him in the leg and hip. Defendant fired between 7 and 10 shots.
Marvos called 911 at 7:11 a.m. She told the 911 operator "Cece" shot her, and he shot her daughter in the head and her son in the leg. Sacramento Police officers arrived on scene at about 7:16 a.m. Marvos and Sewell told responding officers defendant was the shooter. Marvos said Fox was with defendant. Marvos and Sewell also positively identified defendant at the trial.
Witnesses heard gunshots shortly after 7:00 a.m. on April 10, 2009. Shaunda Cisneros saw a woman running from the direction of Marvos's house after Cisneros heard gunshots. The woman wore a pink hooded jacket. Seconds after she saw the woman, Cisneros saw a man with a gun running from the same direction the woman came from. The woman got into the passenger's side of a silver vehicle and the vehicle headed toward Del Paso Boulevard. Cisneros identified defendant as the man with the gun. She was probably 98 percent sure of her identification.
Lawanda Lowe saw a grey vehicle back into her driveway the morning of April 10, 2009. Lowe saw a woman get out of the rear passenger side of the vehicle and run to the corner of Del Paso Boulevard. The woman wore a pink bathrobe. The woman reached into the breast area of her robe and took out what looked like a gun. Seconds later Lowe heard gunshots. Lowe gave authorities the license plate number of the grey vehicle. The vehicle shown in People's exhibit numbers 78, 79 and 80 has the same license plate number Lowe gave to authorities.
Defendant was a passenger in the vehicle depicted in People's exhibit numbers 78, 79 and 80 when the driver of that vehicle was arrested for felony assault with a vehicle a week before the shooting. Defendant told police the vehicle was his girlfriend's rental car. Police released that car to defendant.
John Hogan was in his backyard when he heard two gunshots the morning of April 10, 2009. Within a few seconds, he heard five to seven more gunshots. He ran toward Del Paso Boulevard. He saw a man get into the driver's side of a vehicle parked alongside Marvos's house. The vehicle "[t]ook off really fast." That vehicle looked like the one depicted in People's exhibit numbers 78, 79 and 80. Hogan saw a man and a woman inside the vehicle. Defendant looked like the man Hogan saw. Hogan did not see anyone else run from the house.
Patricia La Rue heard gunshots the morning of April 10, 2009. She saw a man and a woman running up the street from Del Paso Boulevard. La Rue had seen the couple in the neighborhood previously. La Rue went to the house across the street and saw someone laying in the doorway and a woman who was on the phone and hysterical. The woman on the phone said at least four or five times that her children were dying over drugs.
Law enforcement officers apprehended defendant at a motel in San Leandro on April 28, 2009. Fox was with defendant. Fox told the police Vasquez owed the Mexican cartel $20,000. Fox said she was afraid of "some pretty bad people" in Mexico, and she did not want to say anything to give those people a reason to go after her. Fox denied that defendant had done anything wrong. She denied the shooting was over a relationship and denied she had a relationship with someone other than defendant. When asked if defendant knew she had a relationship with someone the night this all happened, Fox responded she did not know what the interviewing detective was talking about.
Police recovered the vehicle with the license plate number Lowe gave authorities in Sacramento County on April 30, 2009. The vehicle had been set on fire.
The People charged defendant with murder with malice aforethought (§ 187, subd. (a) -- count one), willful, deliberate and premeditated attempted murder with malice aforethought (§§ 187, subd. (a), 664 -- counts two and three), and possession of a firearm by a felon (§ 12021, subd. (a)(1) -- count four). The People alleged in connection with counts one, two and three that defendant personally discharged a firearm and proximately caused great bodily injury or death (§ 12022.53, subds. (b), (c), (d)). The People further alleged that defendant suffered a prior serious felony conviction.
Defendant testified at the trial. He provided the following account which blamed the April 10, 2009 shooting on the Mexican Mafia: Vasquez was "pretty big in the drug game in Sacramento." Defendant met Vasquez in November 2008, and began selling methamphetamine for her shortly thereafter.
Vasquez introduced defendant to a "Hispanic" man named Azul in December 2008. Azul had a tattoo of three dots above two lines on his right hand. In defendant's experience from prison and as a tattoo artist, Azul's tattoo indicated membership in the Mexican Mafia. According to defendant, a person earned the right to wear that tattoo by committing murder or other violent act for the Mexican Mafia. Defendant believed Azul was part of the Mexican Mafia. Defendant bought a pound of methamphetamine from Azul and did "business" with Azul thereafter.
Defendant was out with a coworker and a friend named B the evening of April 9, 2010. He knew Fox had gone out with other people, and he had no problem with that. Defendant sent Fox a text message at 4:32 a.m. on April 10, to say he was on his way to the house he shared with Fox. Fox told defendant Vasquez had passed out and Fox could not get home. Fox later told defendant she was at home but was leaving again to help Vasquez and Sewell look for something. When defendant got home, Azul was at his house with a Mexican man who had tattoos defendant associated with the Mexican Mafia. It was about 6:30 a.m. Azul asked defendant if he knew where Vasquez was and where Vasquez's mother lived. Defendant believed Vasquez owed Azul $35,000 to $40,000. Defendant did not tell Azul where Vasquez was.
When Azul and his companion left his house, defendant asked B to drive Fox's rental car, which is the vehicle depicted in People's exhibit numbers 78, 79 and 80, and to follow defendant to pick up Fox so that defendant could return Fox's rental car on his way out of town. Defendant intended to leave town with Fox because he was worried something bad was about to happen. Defendant drove B's car, a Toyota Camry.
Defendant called Vasquez's cell phone to speak with Fox. Cell phone records show a cell phone associated with defendant was in the general location of the shooting when it was used to call a cell phone associated with Vasquez at 7:01 a.m. Fox gave defendant directions to Marvos's house.
When defendant arrived at Marvos's house he saw a Mexican man walking toward a white truck and holding the hand of a child defendant recognized as Vasquez's daughter. Defendant saw Fox on the sidewalk in front of the house and Vasquez on the front porch speaking with a Mexican man. Nothing defendant saw caused him to be alarmed. Fox wanted to leave immediately, but defendant told Vasquez he needed to speak with Sewell. Defendant intended to tell Sewell he was not going to help Sewell get guns because he did not want to be involved in Vasquez and Sewell's problem with Azul. Defendant did not tell Vasquez Azul was looking for her.
Defendant noticed the man on the porch with Vasquez had the same tattoo Azul had on his hand. Defendant realized something was wrong. He left the porch before the front door opened. As he walked toward Fox, he heard two gunshots. Fox ran. Defendant ran behind her. Fox got into the rental car and B drove away. Defendant heard additional gunshots. He got in B's car and drove off. He met Fox at a friend's house later that day. He exchanged the rental car for a car belonging to Fox's friend. Defendant knew the police were looking for him. But he and Fox fled to the Bay Area because he was afraid of the Mexican Mafia.
Defendant's expert on the Mexican Mafia said the Mexican Mafia trafficked drugs for the Mexican drug cartel. The tattoo of three dots above two lines indicated a person had done work, such as murder, for the Mexican Mafia. A person who was not a member of the Mexican Mafia but had tattoos associated with the Mexican Mafia could be killed. Shooting the victim in the eye was a signature murder by the Mexican Mafia and the Mexican cartel.
The jury found defendant guilty on all counts. It concluded defendant committed the attempted murders willfully, deliberately and with premeditation and found all of the section 12022.53 (personal use of firearm) allegations to be true. In addition, the trial court found true the allegation that defendant had a prior serious felony conviction.
The trial court sentenced defendant as follows: 25 years to life on count one, doubled to 50 years to life for the prior serious felony conviction; a consecutive term of seven years to life on count two, doubled to 14 years to life; a consecutive term of seven years to life on count three, doubled to 14 years to life; 25 years to life on each section 12022.53, subdivision (d) enhancement in counts one, two and three; a concurrent term of two years on count four, stayed; and a consecutive term of five years for the section 667, subdivision (a) (prior serious felony conviction) enhancement. Defendant received an aggregate indeterminate term of 153 years to life, plus a determinate consecutive term of five years.
DISCUSSION
I
Defendant asked the trial court to exercise its authority to grant Fox use immunity when the prosecutor declined to give her immunity and Fox invoked her Fifth Amendment right against self-incrimination. Defendant argues the trial court erred in denying his request for judicial use immunity for Fox. Defendant's claim is based on Smith, supra, 615 F.2d 964.
Although defendant requested use immunity for Fox and another witness, his appellate claims are limited to the denial of use immunity to Fox. Use immunity prevents the prosecution from using a witness's testimony and the evidence derived therefrom against the witness. (People v. Hunter (1989) 49 Cal.3d 957, 973, fn. 4 (Hunter).)
The prosecution has a statutory right, incident to its charging authority, to grant immunity to a witness and thereby compel the witness's testimony. (In re Williams (1994) 7 Cal.4th 572, 609.) A defendant cannot force the prosecution to grant immunity to a witness. (Ibid.)
Although the California Supreme Court has said "it is possible to hypothesize cases where a judicially conferred use immunity might possibly be necessary to vindicate a criminal defendant's rights to compulsory process and a fair trial," the Supreme Court has also said it is doubtful that a trial court has the authority to grant use immunity. (Hunter, supra, 49 Cal.3d at p. 974; People v. Lucas (1995) 12 Cal.4th 415, 460 (Lucas) [the vast majority of federal circuit court and state cases reject the notion of an inherent judicial authority to confer immunity]; People v. Cudjo (1993) 6 Cal.4th 585, 619 ["there is no authority in this state for the proposition that a prosecutor must request or the trial court must grant immunity to a witness on the ground that the witness's testimony could be favorable to the defense"].) The Supreme Court has, nonetheless, assumed without deciding that there is judicial authority to grant use immunity and applied the stringent test the Third Circuit Court of Appeals articulated in Smith, supra, 615 F.2d 964. (See, e.g., People v. Samuels (2005) 36 Cal.4th 96, 127-128; People v. Stewart (2004) 33 Cal.4th 425, 468 (Stewart); Lucas, supra, 12 Cal.4th at p. 460; In re Williams, supra, 7 Cal.4th at p. 610; Hunter, supra, 49 Cal.3d at pp. 974-975.) The Third Circuit Court of Appeals was the only federal appellate court that recognized an inherent judicial authority to grant immunity for a defense witness if necessary to vindicate the defendant's constitutional right to present an effective defense. (Quinn, supra, 728 F.3d at pp. 247, 251-252.) But the Third Circuit Court of Appeals recently overruled that part of Smith which recognizes a judicial authority to grant immunity, stating that "[i]mmunity is a statutory creation, bestowed by Congress on the Executive Branch" and "[t]he decision to immunize a witness to obtain his [or her] testimony is a core prosecutorial function." (Id. at p. 247) Defendant cites no other case holding that a trial court has the power to grant use immunity. And defendant concedes no California case has ruled that a trial court erred in refusing to grant judicial use immunity.
Even if the relevant portion of Smith, supra, 615 F.2d 964, is still good law, defendant has not shown he is entitled to use immunity for Fox. Under Smith, a trial court may confer use immunity only when the defendant makes a convincing showing of all of the following: (1) the proffered testimony is clearly exculpatory; (2) the proffered testimony is essential to the defendant's case; and (3) there is no strong governmental interest which countervails against a grant of immunity. (Hunter, supra, 49 Cal.3d at p. 974.)
For the purposes of our analysis, we will assume that defendant's offer of proof regarding Fox's anticipated testimony -- which was based solely on what defendant told his trial counsel Fox would say rather than on a statement by Fox -- does not pose a barrier to a grant of judicial use immunity. (Contrast People v. Rodrigues (1994) 8 Cal.4th 1060, 1176 ["An offer of proof must consist of material that is admissible. . ."]; 3 Witkin, Cal. Evid. (5th ed. 2012) Presentation, § 414, p. 569 [where required, an offer of proof must consist of matter that would be admissible].) Even so, defendant has not established trial court error because, as the trial court said, the government had a strong interest in not giving immunity to a possible accomplice of murder and attempted murder. The prosecutor believed Fox was present during the shooting, she was in the vehicle that left the scene of the shooting, and she may have been the catalyst for what happened. And there was evidence from which the prosecution could reasonably believe Fox was culpable in the shooting. Fox refused to admit she was present during the shooting when police questioned her on April 28, 2009. But Marvos saw Fox standing behind defendant before defendant began shooting. A witness saw a woman wearing a pink bathrobe hold something that looked like a gun and run toward Marvos's house before gunshots rang out. Another witness saw defendant run from the direction of Marvos's house with a gun after shots were fired. That witness said defendant ran behind a woman wearing a pink hooded jacket, and the woman fled the scene. Fox wore a pink bathrobe the morning of the shooting. A third witness saw a man fitting defendant's description drive away from the site of the shooting with a female passenger. Fox gave defendant directions to Marvos's house. She fled town with defendant. They were together when police apprehended defendant almost three weeks after the shooting.
As the trial court noted, if Fox was granted immunity she could say that she was the shooter or that she was involved in the shooting. Giving Fox use immunity would place a heavy burden on the People to prove in a subsequent prosecution that its evidence against Fox had not been obtained as a result of her immunized testimony. (Stewart, supra, 33 Cal.4th at pp. 469-470 [there is a strong countervailing governmental interest in not granting use immunity when a grant of immunity would substantially burden the People in a later prosecution against the witness to prove the evidence offered was not obtained or derived from the witness's immunized testimony]; Lucas, supra, 12 Cal.4th at pp. 460-461 [it is contrary to the People's interest to grant immunity to one potentially involved in a double murder]; United States v. Angiulo (1st Cir. 1990) 897 F.2d 1169, 1191 (Angiulo) [the government's intent to possibly prosecute the proposed defense witness for a variety of crimes constitutes a strong governmental interest in withholding immunity].)
Defendant claims the government had no interest against giving Fox immunity. He argues the People could not charge Fox with aiding and abetting murder or attempted murder because she could not have shared defendant's intent to kill under a heat of passion provoked by jealousy. But, as we shall explain, Fox could be liable as an aider and abettor even if she does not have a heat of passion defense against a charge of murder or attempted murder. Aider and abettor liability is premised on the aider and abettor's mens rea and the acts of all the principals. (People v. McCoy (2001) 25 Cal.4th 1111, 1120 (McCoy).) When the intended crime is murder or attempted murder, the aider and abettor must know and share the murderous intent of the actual perpetrator. (Id. at p. 1118.) But a direct perpetrator may be acquitted or convicted of a lesser offense based on a defense personal to him, whereas the aider and abettor, who has no such defense, might be convicted of a greater crime than the direct perpetrator. (Id. at p. 1121.) The Supreme Court provided the following example of a circumstance where an aider and abettor may be guilty of a greater crime than the direct perpetrator: the aider and abettor falsely tells the direct perpetrator his wife is having an affair, hoping the direct perpetrator would kill his wife in a fit of jealousy, and the direct perpetrator kills his wife without the defendant's further involvement. (Ibid.) In that case, the direct perpetrator might be guilty of the lesser offense of manslaughter, rather than murder, based on a heat of passion defense. (Id. at p. 1122.) And the aider and abettor who acted with malice would be guilty of murder. (Ibid.)
Defendant has not demonstrated trial court error in refusing to grant use immunity to Fox, even were we to apply the test articulated in Smith, supra, 615 F.2d 964.
II
Defendant next contends he is entitled to use immunity for Fox because the prosecutor intentionally distorted the factfinding process by not disclosing to the trial court (a) that there was evidence Sewell had sex with Fox hours before the shooting, and (b) the prosecution's theory was that defendant shot Vasquez, Sewell and Marvos because he found out Fox cheated on him.
As defendant recognizes, he did not raise this contention in the trial court. The claim is forfeited for that reason. (Lucas, supra, 12 Cal.4th at p. 460; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 400, p. 458 [an appellate court will ordinarily not consider a point not raised in the trial court].) But we would reject the claim even if we were to consider it on the merits.
Some federal appellate courts have held that a defendant is entitled to immunity for a defense witness when the evidence sought from that witness is relevant and the government distorted the judicial factfinding process by denying that witness immunity. (United States v. Westerdahl (9th Cir. 1991) 945 F.2d 1083, 1086-1087 (Westerdahl); Smith, supra, 615 F.2d at pp. 968-969.) A defendant may establish that the government intentionally distorted the judicial factfinding process by showing the following: that the prosecutor granted immunity to a witness in order to obtain his or her testimony, but denied immunity to a defense witness whose testimony would directly contradict that of the government witness, and the prosecutor did so to keep exculpatory evidence from the jury. (Westerdahl, supra, 945 F.2d at pp. 1086-1087; Smith, supra, 615 F.2d at pp. 968-969.) It has been held in such a case that the court has the power to order a judgment of acquittal if the government refuses to grant immunity to the defense witness. (Westerdahl, supra, 945 F.2d at p. 1088.)
With the exception of Westerdahl, supra, 945 F.2d 1083, the cases defendant cites at pages 88 through 92 of his opening brief do not discuss use immunity.
The prosecutor in this case did not grant any witness immunity and did not favor a governmental witness over a defense witness. Moreover, although Fox's alleged anticipated testimony is relevant, we find nothing in the record to suggest the prosecutor denied Fox immunity in order to suppress exculpatory evidence. As we have explained, the government had a strong interest against granting Fox immunity.
Nonetheless, pointing to the prosecutor's recitation of the evidence during a February 22, 2011 hearing, defendant says the prosecutor lied by omission when he failed to disclose to the trial court that Fox and Sewell had sex hours before the shooting and that the People's theory was defendant shot the victims in a heat of passion. But the topic of the February 22, 2011 hearing was defendant's motion to admit third party culpability evidence. The discussion at that hearing focused on the eyewitness identifications of defendant as the shooter and defendant's contradictory evidence that a Mexican man with a Mexican Mafia tattoo shot the victims. There was no discussion during that hearing concerning the prosecutor's theory about defendant's motive. Defendant had not yet filed his motion requesting use immunity for Fox. Evidence of the sexual encounter between Sewell and Fox was before the trial court when it later ruled on defendant's motion for judicial use immunity. There is no indication the prosecutor misrepresented the facts during the February 22, 2011 hearing.
Moreover, the trial court was made aware of the premise that defendant may have acted out of jealousy as early as February 17, 2011, when defense counsel told the trial court defendant needed a cell phone expert to examine the text messages between defendant and Fox to show that defendant was not jealous and had no motive to punish Vasquez, Sewell and Marvos. The trial court was also made aware that the sexual encounter between Sewell and Fox was part of the prosecution's case by the time it denied defendant's motion to reconsider its refusal to grant use immunity to Fox. In his opening statement to the jury, the prosecutor said Sewell and Fox ended up at a motel, and a few hours later defendant went to Marvos's house and shot the victims. Sewell testified at the trial that he and Fox went to a motel and "messed around." The trial court noted, in the context of discussing defendant's objection to the prosecutor's voir dire questioning of defendant, that Fox was in a motel room with Sewell shortly before the shooting. The trial court appeared aware of the prosecution's theory of the case.
Defendant also accuses the prosecutor of lying to the trial court about whether he would call Sewell as a trial witness. The prosecutor said on February 22, 2011, that he had not yet decided whether he would call Sewell as a witness. The prosecutor did not, however, seek to exclude evidence relating to Sewell. On February 25, 2011, the prosecutor said Sewell, who was in custody, would be present whenever anyone needed him at the trial. Sewell testified at the trial. And the trial court considered Sewell's statements to police in deciding defendant's motion for judicial use immunity for Fox. Those statements included Sewell's claim that he had sex with Fox hours before the shooting. The trial court also had before it the alleged anticipated testimony by Fox, which indicated Fox and Sewell did not have sex. There is no indication that the prosecutor's February 22, 2011 statement distorted the evidence.
Defendant also says the prosecutor lied when he said on February 17, 2011, that he did not know the nature of the relationship between defendant and Fox. The prosecutor said, "I have no idea what relationship [Fox] has with the defendant." On this record we cannot say that the statement was untrue, but in any event the statement did not affect the ruling on defendant's motion for judicial use immunity because the prosecutor made the statement at a pretrial hearing before a judge who did not decide defendant's motion or preside over defendant's trial. Evidence of Fox's long-term relationship with defendant was before the judge who decided defendant's motion for judicial use immunity. In ruling on that motion, there is no indication the judge was misled about the nature of Fox's relationship with defendant.
Defendant further argues the trial court would have granted Fox immunity had it known the People's theory: that defendant committed the charged offenses in a heat of passion after discovering Fox's infidelity. Defendant claims the trial court would have known Fox could not be charged with murder or attempted murder because she could not have shared defendant's alleged state of mind "to get back at the man who cuckolded him." As we explained ante, however, Fox can be an aider and abettor of murder and attempted murder even though defendant acted in the heat of passion and she did not. (McCoy, supra, 25 Cal.4th at pp. 1121-1122.)
Defendant has not shown that the prosecutor intentionally distorted the judicial factfinding process. Accordingly, there is no merit to his claim that he is entitled to use immunity for Fox, and there is no merit to his related ineffective assistance of counsel claim. (People v. Ochoa (1998) 19 Cal.4th 353, 432 [counsel does not perform deficiently by failing to make a meritless motion]; People v. Thomas (1992) 2 Cal.4th 489, 531 (Thomas) [defense counsel is not ineffective for failing to make an objection that would have been overruled].)
III
Defendant further contends the prosecutor interfered with Fox's decision to testify, thereby violating defendant's Fifth and Fourteenth Amendment rights to due process and a fair trial. Defendant says the prosecutor's misconduct entitles him to compel the government to grant immunity to Fox.
"The state and federal Constitutions guarantee the defendant a meaningful opportunity to present a defense. [Citations.] . . . 'A defendant's constitutional rights to compel the attendance of witnesses, as guaranteed by the Sixth Amendment, and to due process, as guaranteed by the Fourteenth Amendment, are violated when the prosecution interferes with the defendant's right to present witnesses.' " (Lucas, supra, 12 Cal.4th at p. 456.) The government violates a defendant's constitutional right to present a defense when the prosecutor's conduct causes a defense witness to refuse to testify. (In re Martin (1987) 44 Cal.3d 1, 30.) To prevail on a claim of interference with his or her right to present a defense, a defendant must establish (1) prosecutorial misconduct -- i.e., conduct that was wholly unnecessary to the proper performance of the prosecutor's duties and was of such a character as to transform a defense witness from a willing witness to one who would refuse to testify; (2) the prosecutor's misconduct was a substantial cause in depriving the defendant of the witness's testimony; and (3) the witness's testimony was material and favorable to the defense. (Stewart, supra, 33 Cal.4th at p. 471; Lucas, supra, 12 Cal.4th at p. 457.) The defendant need not show that the prosecutor acted in bad faith or with improper motives. (In re Martin, supra, 44 Cal.3d at p. 31.) The defendant also need not establish that the prosecutor's statements were the direct or exclusive factor in the witness's decision not to testify. (Lucas, supra, 12 Cal.4th at p. 457.) The necessary causal link is established when the prosecutor's misconduct carries significant coercive force and is soon followed by the witness's refusal to testify. (Ibid.)
It has also been held that the government intentionally distorts the judicial factfinding process and violates the defendant's right to due process when it intimidates a potential defense witness in order to discourage the witness from testifying. (Quinn, supra, 728 F.3d at p. 258; Angiulo, supra, 897 F.2d at p. 1192.) The defendant must establish a causal nexus between the government's conduct and the witness's refusal to testify. (Angiulo, supra, 897 F.2d at p. 1193.) "Where such intimidation tactics cause a potential witness to invoke the fifth amendment and withhold testimony that otherwise would have been available to the defendant, a court may order the prosecutor to grant immunity to the witness or face a judgment of acquittal." (Id. at p. 1192)
Defendant points to the prosecutor's statement at a March 7, 2011 hearing as an instance of interference with his constitutional rights. At that hearing, defendant requested use immunity for Fox. The prosecutor refused to give Fox immunity. The prosecutor explained, outside the presence of Fox and her appointed counsel, "as I have indicated to her attorney, I believe Ms. Fox will incriminate herself. And if she incriminates herself in any way, the People will file murder charges against her. [¶] She -- I believe that she was present at the scene. She was in the vehicle, and she may have been the catalyst for everything that happened that night. [¶] I told -- if she testifies to incriminate herself, we'll file murder charges against her."
Defendant claims he has established that the prosecutor engaged in activity that was wholly unnecessary to the proper performance of his duties. We disagree. The prosecutor's statements were addressed to the trial judge and defense counsel in response to defense counsel's request for use immunity for Fox. Fox was not present. Even if the prosecutor's statements were later communicated to Fox, there is no evidence the statements caused Fox to refuse to testify. Fox did not indicate she was willing to testify and then change her mind soon after the prosecutor made the March 7, 2011 statements. After the March 7, 2011 hearing, Fox's attorney twice asked the trial court for more time to review the case and to confer with Fox. Fox's attorney indicated Fox had not yet decided whether she would testify. The trial court granted the requests by Fox's attorney. Fox said she had enough time to seek her attorney's advice and to decide whether she would invoke her Fifth Amendment right when she ultimately invoked her right against self-incrimination on April 1, 2011. When Fox took the stand and was questioned, she looked to her attorney (not the prosecutor) for advice. She invoked her Fifth Amendment right after conferring with her attorney. Defendant has not shown that coercive conduct by the prosecutor was a substantial cause of Fox's decision not to testify at trial.
After a recess was taken, Fox's attorney appeared before the trial court to ask for a copy of the entire case file so that he could properly advise Fox on what to do in light of the prosecutor's statement about a possible homicide charge against Fox. Defense counsel said there were 2,700 pages of discovery in the case. The trial court asked the prosecutor about Fox's alleged involvement in the charged offenses in the context of discussing counsel's request for the entire case file. The prosecutor replied, "I have no doubt that Ms. Fox will place herself at the scene of the crime. [¶] . . . [¶] I have witnesses who essentially place her at the scene. [¶] As far as her involvement and her knowledge, that is the only reason why charges were not filed against her at this time. [¶] And once I believe she testifies, I do believe there will be ample evidence to incriminate herself, which there has been no doubt about my intentions, as I explained to Mr. Head that I would file charges against her. And that was murder charges and nothing else, no accessory after the fact. That has not been [a] secret from the moment that she was appointed an attorney. [¶] And, as far as the file, I have no objection to her getting the entire file . . . ."
Defendant says those statements interfered with his right to present Fox as a witness. It appears Fox was in the courtroom when the prosecutor made the statements. However, the prosecutor's remarks were directed to the trial court and Fox's attorney. And the prosecutor's statements were responsive to the trial court's inquiry. We agree with the trial court's assessment that the prosecutor's statements provided information and did not constitute impermissible witness intimidation.
Defendant nonetheless argues the prosecutor's comments were unnecessary because Fox could not be prosecuted as an aider and abettor for a heat of passion murder. We rejected that contention ante. Moreover, for the same reasons we described in relation to the prosecutor's initial March 7, 2011 statements, there is no evidence the subsequent statements were a substantial cause of Fox's decision not to testify.
The circumstances present in People v. Warren (1984) 161 Cal.App.3d 961 (Warren), People v. Robinson (1983) 144 Cal.App.3d 962 (Robinson), and United States v. MacCloskey (4th Cir. 1982) 682 F.2d 468 (MacCloskey), where improper prosecutorial conduct was found, do not appear here. In Warren, the prosecutor told a critical defense witness there was fingerprint evidence connecting him to the theft for which the defendant was on trial and the District Attorney was likely to charge the witness with that theft and use his testimony against him, whereas if he refused to testify no one could force him to say anything about the crime. (Warren, supra, 161 Cal.App.3d at pp. 968-969.) The witness immediately invoked his Fifth Amendment right. (Id. at p. 970.) In Robinson, the prosecutor told the defense witness the District Attorney would file charges against her if she took the stand and her criminal record would be considered in sentencing if she were to be convicted. (Robinson, supra, 144 Cal.App.3d at pp. 969-970.) In MacCloskey, the prosecutor called the defense witness's attorney and told the attorney he would be well-advised to remind his client that she could be reindicted if she testified at the defendant's trial and incriminated herself. (MacCloskey, supra, 682 F.2d at p. 475.) The witness thereafter refused to testify because she feared her indictment would not be dismissed. (Id. at pp. 475-476.)
In contrast with Warren and Robinson, the prosecutor's remarks in this case were not directed to the witness. And unlike the witness in Warren, Fox was represented by separate counsel. There is no evidence here, like that in MacCloskey, that Fox invoked her right against self-incrimination because of the prosecutor's statements. Fox's conduct on the witness stand and intervening circumstances, namely counsel's review of the case file and discussions with Fox and the passage of more than three weeks, indicate Fox's decision not to testify was not a product of the prosecutor's March 7, 2011 statements.
Defendant has not shown the prosecutor interfered with defendant's right to present a witness on his behalf.
IV
Defendant also contends the prosecutor engaged in misconduct by referring to facts not presented at the trial which pointed to defendant's guilt. Specifically, he says it was misconduct for the prosecutor to argue that (1) a Mexican Mafia member given the task of killing someone who owed the organization money would be a professional hit man who would not kill the target at 7:00 a.m. and in front of witnesses; (2) Marvos knew defendant was a drug dealer; and (3) defendant learned on the day of the shooting that Fox had sex with Sewell. Defendant contends the above statements by the prosecutor find no support in the evidence presented at trial. He further argues it was misconduct for the prosecutor to tell the jury that defense counsel would not talk about voluntary manslaughter because he and defendant knew voluntary manslaughter did not apply. Defendant says the latter statement suggested defense counsel had conceded, outside the presence of the jury, that voluntary manslaughter did not apply.
In general, it is misconduct for a prosecutor to refer to matters not in evidence. (People v. Hill (1998) 17 Cal.4th 800, 819 (Hill).) But we will not review a prosecutorial misconduct claim if the defendant did not object to the misconduct in the trial court on the ground raised on appeal and ask the trial court to admonish the jury to disregard the impropriety, unless an objection would be futile or an admonition would not have cured the harm. (Id. at p. 820.) " 'The purpose of the rule requiring the making of timely objections is remedial in nature, and seeks to give the [trial] court the opportunity to admonish the jury, instruct counsel and forestall the accumulation of prejudice by repeating improprieties, thus avoiding the necessity of a retrial.' " (People v. Brown (2003) 31 Cal.4th 518, 553.)
Defendant did not preserve his claims for appellate review by objecting, in the trial court, to the comments by the prosecutor which he now contends are improper. Defendant says he was not required to object and request an admonition in the trial court because an objection would have been futile. Defendant claims his trial counsel could have reasonably believed any objection to the prosecutor's unsworn testimony would be overruled because the trial court, which considered itself an expert on the Mexican Mafia, was openly dubious of his Mexican Mafia defense.
Defendant sought to testify, based on his knowledge of the Mexican Mafia, that Vasquez associated with members of the Mexican Mafia and someone with that organization was responsible for the April 10, 2009 shooting. Defendant said he learned about the Mexican Mafia from being around Mexican Mafia members on the street and in jail, talking with Sureños when he was in Juvenile Hall, and speaking with members of the Mexican Mafia when he was in prison. The trial court permitted defendant to testify as an expert on the Mexican Mafia. Defense counsel thereafter objected to the prosecutor's eliciting testimony that defendant spent time in jail and in Juvenile Hall. The trial court overruled the objection, stating that the prosecutor could inquire about the basis of defendant's expertise on the Mexican Mafia when defendant offered himself as a Mexican Mafia expert. Defense counsel then sought to limit the scope of cross-examination by limiting the direct examination to defendant's knowledge about Mexican Mafia tattoos and the structure of the Mexican Mafia. In response, the trial court said, "I don't know if it's a -- I mean, obviously, you are trying to make a record here, but I'm going to make a record also." The trial court said the prosecution's case was "inordinately strong" "[s]o the options for defense in this case, at least based upon the evidence as it existed moments after this crime happened, is [sic] greatly limited." There was no further comment by counsel or the trial court on the subject.
Defendant points to the trial court's comments about the strength of the prosecution's evidence as an expression of doubt concerning his Mexican Mafia defense. But the trial court was addressing defense counsel's objection to the prosecutor's voir dire questions, which elicited testimony that defendant gained his knowledge about the Mexican Mafia when he was in Juvenile Hall and in jail. In that context, the trial court did not indicate or even suggest it would have overruled a meritorious objection that the prosecutor's closing argument remarks referred to matters outside the record.
The trial court allowed defendant to testify as an expert on the Mexican Mafia and to present the testimony of another gang expert, who bolstered defendant's testimony regarding the significance of the tattoo defendant described on the alleged shooter, and that shooting someone in the eye was a signature execution method used by the Mexican Mafia. When defense counsel interposed his sole objection to the prosecutor's closing remarks, the trial court promptly reminded the jury that the attorneys were merely giving their interpretation of the evidence, and nothing the attorneys said was evidence. The trial court's admonition indicated it was not hostile to objections by defense counsel and it would have likely admonished the jury if it believed the prosecutor committed misconduct. We are not persuaded that it would have been futile for defense counsel to raise a meritorious objection to the prosecutor's closing statement remarks.
When the prosecutor commented on the testimony of a defense expert during his rebuttal argument, defense counsel objected that the prosecutor's statement went beyond the scope of defense counsel's summation. Defense counsel never objected to the prosecutor's closing remarks on the ground raised on appeal, i.e., that the prosecutor stated facts not in evidence.
Defendant next claims he was excused from objecting in the trial court because no admonition could have cured the prosecutor's suggestion that the People had "special knowledge of the bigger and more truthful picture." We disagree. Even if the prosecutor's comments had constituted misconduct, the trial court could have admonished the jury in a manner similar to that suggested by the California Supreme Court in People v. Bolton (1979) 23 Cal.3d 208 if defense counsel had objected in the trial court. The prosecutor in Bolton suggested to the jury that certain court rules precluded him from introducing evidence that the defendant had previously committed a crime. (Id. at p. 212.) But the defendant did not have a criminal record. (Ibid.) The California Supreme Court held that the prosecutor's statement was misconduct but did not result in prejudice. (Id. at pp. 214-215.) The Supreme Court said a sharply worded on-the-spot instruction to the jury to ignore the attorney's improper remark may counteract whatever prejudice resulted from the remark. (Id. at p. 215, fn. 5.) The Supreme Court gave the following sample instruction: "Ladies and Gentlemen of the jury, the prosecutor has just made certain uncalled for insinuations about the defendant. I want you to know that the prosecutor has absolutely no evidence to present to you [to] back up these insinuations. The prosecutor's improper remarks amount to an attempt to prejudice you against the defendant. Were you to believe these unwarranted insinuations, and convict the defendant on the basis of them, I would have to declare a mistrial. Therefore, you must disregard these improper, unsupported remarks." (Ibid.)
Here there is no indication that if misconduct had occurred, a similar sharply worded instruction would not have discouraged improper remarks by the prosecutor and adequately cured any harm caused by the misconduct. (People v. Dennis (1998) 17 Cal.4th 468, 521 [a timely objection and admonition by the court at the outset might have tempered the prosecutor's aggressiveness before it became extreme].) Defendant has not demonstrated that he is excused from making a timely objection and request for a curative admonition in the trial court.
Perhaps anticipating that his appellate claim is forfeited, defendant also argues his trial counsel rendered ineffective assistance by not objecting when the prosecutor provided unsworn testimony.
To establish a claim of ineffective assistance of counsel, the defendant must prove that (1) trial counsel's representation was deficient because it fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficiency resulted in prejudice to the defendant. (People v. Maury (2003) 30 Cal.4th 342, 389 (Maury); Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 692-693] (Strickland).) If defendant makes an insufficient showing on either one of these components, his ineffective assistance claim fails. (People v. Holt (1997) 15 Cal.4th 619, 703; Strickland, supra, 466 U.S. at p. 687 .)
With regard to whether counsel's performance was deficient, the California Supreme Court has "noted on countless occasions, the decision facing counsel in the midst of trial over whether to object to comments made by the prosecutor in closing argument is a highly tactical one," and the Supreme Court is unwilling "to second-guess defense counsel's apparent decision not to object." (People v. Padilla (1995) 11 Cal.4th 891, 942, overruled on another ground in Hill, supra, 17 Cal.4th at p. 823, fn. 1.) Trial counsel's failure to object or seek a jury admonition seldom establishes ineffective assistance of counsel. (People v. Collins (2010) 49 Cal.4th 175, 233 (Collins); People v. Avena (1996) 13 Cal.4th 394, 421 (Avena) [" '[a]n attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel.' "]; People v. Ghent (1987) 43 Cal.3d 739, 772-773 (Ghent).) The Supreme Court recently observed, "[i]t is particularly difficult to prevail on an appellate claim of ineffective assistance. On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding." (People v. Mai (2013) 57 Cal.4th 986, 1009, italics omitted.)
The record does not show why defense counsel did not object to the portions of the prosecutor's closing argument which defendant contends are improper. But defense counsel could have reasonably decided not to object for tactical reasons. Regarding the prosecutor's statement, "I think Betty Marvos knows the defendant is a criminal. That's why she thought he was a drug dealer," defense counsel could have decided not to object because an objection and request for admonition would highlight the fact that defendant was a drug dealer. (People v. Wharton (1991) 53 Cal.3d 522, 567 [defendant did not establish his trial counsel was ineffective in failing to object to the prosecutor's statement where trial counsel might not have wanted to highlight the prosecutor's point].) The thrust of defense counsel's summation was that the Mexican Mafia was responsible for the shooting. Defense counsel told the jury defendant was a "likeable guy" and the jury would find his story credible. For tactical reasons, defense counsel could have chosen not to object to the prosecutor's remark in order to avoid drawing the jury's attention to defendant's connection with the Mexican Mafia and methamphetamine sales.
Regarding the other challenged statements, defense counsel could have reasonably concluded there was no basis for objection because the prosecutor's argument that the shooting was inconsistent with a Mexican Mafia hit and consistent with defendant acting out of anger or jealousy was a fair comment on the evidence or because there was no reasonable likelihood the jury would construe the prosecutor's remark about voluntary manslaughter as suggesting that defendant had conceded the point (that it was not a voluntary manslaughter case). Because there are possible reasonable explanations for defense counsel's failure to object we cannot find on this record that counsel's performance was deficient. (Avena, supra, 13 Cal.4th at p. 421 [there is no reason for trial counsel to object if there is no prosecutorial misconduct].
Defendant must also affirmatively prove prejudice in order to prevail on his ineffective assistance claim. (Maury, supra, 30 Cal.4th at p. 389; Strickland, supra, 466 U.S. at p. 693 .) He must show a reasonable probability that, but for counsel's unprofessional errors, he would have obtained a more favorable result. (People v. Ledesma (1987) 43 Cal.3d 171, 217-218; Strickland, supra, 466 U.S. at pp. 693-694 [80 L.Ed.2d at pp. 697-698].) A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Maury, supra, 30 Cal.4th at p. 389.)
It is not reasonably likely the jury would have reached a different result in this case had defense counsel objected to the prosecutor's arguments. Defense counsel told the jury everything he and the prosecutor said was an attempt to sway the jury to view the case in a particular way. The trial court instructed the jury, at the start of the trial, the jury must decide what happened based only on the evidence that will be presented at the trial, and evidence is the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else the trial court told the jury to consider as evidence. The trial court said the attorneys' opening statements and closing remarks are not evidence. The trial court repeated these instructions before the attorneys delivered their closing arguments. The trial court told the jury a third time, during the prosecutor's rebuttal argument, that the attorneys' argument is not evidence. We presume the jury followed these instructions. (People v. Boyette (2002) 29 Cal.4th 381, 448 (Boyette).)
Additionally, the evidence of defendant's guilt was compelling. Three witnesses identified defendant as the shooter. Marvos and Sewell saw defendant shoot Vasquez. Defendant was not a stranger to Marvos or Sewell. Cisneros saw defendant run from the direction of Marvos's house with a gun after she heard gunshots. Hogan saw a man and a woman flee the scene in a car after he heard gunshots. Hogan said defendant looked like the driver of the fleeing vehicle. Hogan did not see another man flee from Marvos's house, contradicting defendant's story that another man shot Vasquez. Defendant admitted he was at Marvos's house at the time of the shooting, and he told Vasquez he wanted to speak with Sewell.
Moreover, defendant's Mexican Mafia story is not credible. Defendant said he felt something bad was about to happen after he spoke with Azul. He drove at a speed of at least 100 miles per hour to get to Marvos's house. He considered the situation "pretty urgent." Yet when he got to Marvos's house, defendant did not tell Vasquez the Mexican Mafia was looking for her, and defendant did not leave right away. Contrary to defendant's testimony that Vasquez was on the front porch having a conversation with a Mexican man, Marvos did not hear any conversation taking place outside the house before Vasquez announced that defendant wanted to talk with Sewell.
There was also evidence indicating consciousness of guilt. Defendant fled the scene after the shooting. He knew the police were looking for him but he left town. He exchanged Fox's rental car for a different car because he thought the rental car had been seen at the shooting. He did not register under his name at the motel where law enforcement authorities eventually located him.
There is no reasonable probability the jury would have reached a result more favorable to defendant had defense counsel objected to the challenged portions of the prosecutor's closing argument. Accordingly, we reject defendant's ineffective assistance of counsel claim.
V
Defendant also argues the prosecutor misstated the law on provocation. He claims it was improper for the prosecutor to tell the jury that in assessing whether there was legally adequate provocation, the jury should consider whether a reasonable person would have killed or attempted to kill the victims because Fox had sex with Sewell.
"Heat of passion is a mental state that precludes the formation of malice and reduces an unlawful killing from murder to manslaughter. Heat of passion arises if, ' " 'at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment.' " ' [Citation.]" (People v. Beltran (2013) 56 Cal.4th 935, 942 (Beltran).) Whether the provocation suffices to constitute heat of passion focuses on the defendant's state of mind, not his particular act. (Id. at p. 949.) The prosecutor correctly stated, "The provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment. This is the average Joe, average Jane. Average Joe. Average Jane. [¶] It works like this: Somebody does something. Would an average person of average disposition react to that? Basically, would they lose their mind? [¶] Dan Sewell had sex with the defendant's girlfriend. Would that cause the average person of average disposition to basically lose their mind? The answer is no. The answer is no."
However, the prosecutor continued, "Unfortunately, in this society, people who are with other people have sex with other people all the time. The average person of average disposition gets mad. They don't kill. They don't kill. [¶] Let's think about Betty Marvos and Dusty Vasquez. Somebody had sex with a person you're with. Would the average person with the average disposition want to kill somebody? Would the average person with the average disposition want to shoot up the entire house? No. [¶] That's why this doesn't apply. That's why it's not the defense, because you can't meet the elements."
Contrary to the prosecutor's suggestion, "provocation is not evaluated by whether the average person would act in a certain way: to kill. Instead, the question is whether the average person would react in a certain way: with his reason and judgment obscured." (Beltran, supra, 56 Cal.4th at p. 949, italics omitted; see also People v. Najera (2006) 138 Cal.App.4th 212, 223-224.) It is improper for a prosecutor to misstate the law before the jury. (Hill, supra, 17 Cal.4th at p. 829.)
But defendant did not preserve his claim for appellate review. (People v. Gray (2005) 37 Cal.4th 168, 217; Hill, supra, 17 Cal.4th at p. 820.) He did not object or request a curative admonition in the trial court. Defendant does not claim an objection would have been futile or an admonition would not have cured the harm caused by the prosecutor's misstatement of the law. The claim is forfeited.
Defendant says if appellate review of the prosecutor's misconduct is forfeited, he was denied his Sixth Amendment right to effective assistance of counsel. As we have explained, trial counsel's failure to object to misconduct during summation seldom establishes ineffective assistance of counsel. (Collins, supra, 49 Cal.4th at p. 233; Avena, supra, 13 Cal.4th at p. 421; Ghent, supra, 43 Cal.3d at pp. 772-773.) Defense counsel could have decided not to object because defendant was not claiming he shot the victims in the heat of passion. Alternatively, defense counsel could have concluded the prosecutor's misstatement was brief and adequately addressed in the trial court's instructions. The record does not affirmatively disclose that defense counsel had no rational tactical purpose for his failure to object to the prosecutor's comments concerning provocation.
Even if defense counsel had no rational tactical reason for not objecting to the prosecutor's statement, any error in the failure to object is harmless. The prosecutor correctly stated the test for provocation elsewhere in his summation. The prosecutor asked whether discovering infidelity would cause a person of average disposition to "basically lose their mind," i.e., act out of passion rather than judgment. In addition, the arguments of counsel generally carry less weight with a jury than do the instructions from the trial court (Boyde v. California (1990) 494 U.S. 370, 384 [108 L.Ed.2d 316, 331]; People v. Osband (1996) 13 Cal.4th 622, 717), and the trial court here properly instructed the jury on the heat of passion theory of voluntary manslaughter. (Beltran, supra, 56 Cal.4th at p. 949.) The trial court said a defendant kills someone in the heat of passion if the provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment. The trial court told the jury that in deciding whether the provocation was sufficient, to consider whether a person of average disposition in the same situation and knowing the same set of facts would have reacted from passion rather than judgment. The trial court gave similar instructions with regard to attempted voluntary manslaughter. The trial court further instructed the jury to follow the law as the trial court explained it, and if the attorneys' comments on the law conflict with the trial court's instructions, the jury must follow the trial court's instructions. Absent contrary indication, we presume the jury followed those instructions. (Boyette, supra, 29 Cal.4th at p. 436.)
Moreover, although the trial court instructed the jury on voluntary manslaughter, neither defendant nor the prosecutor argued that defendant shot the victims in the heat of passion, and the evidence does not support a heat of passion theory. As the prosecutor pointed out to the jury, there is no evidence Vasquez or Marvos did anything to provoke defendant. (People v. Moye (2009) 47 Cal.4th 537, 549-550 [" 'The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim.' "].) Defendant engaged in planning activity before the shooting, which indicates reflection. Defendant made plans to leave town with Fox. He packed money and things he thought he would need before he drove to Marvos's house. He did not know how to get to Marvos's house, so he followed Fox's directions to the house. He planned to return a rental car on his way out of town because he did not want to continue paying for it. Recognizing that he did not have a valid driver's license, he recruited a friend to drive the rental car because he thought "it would be better if something was to happen with the rental car for a licensed driver to have it." The prosecutor argued defendant "thought about it, debated it. He knew exactly what he was going to do." In addition, "[i]f sufficient time has elapsed for one's passions to 'cool off' and for judgment to be restored," the killing is not committed in the heat of passion. (Beltran, supra, 56 Cal.4th at p. 951.) Sufficient time passed for defendant to calm down. Defendant spoke with Fox sometime between 4:30 a.m. and 6:00 a.m. and found out Fox was leaving their home to help Vasquez and Sewell look for something. Five or 10 minutes after 6:20 or 6:30 a.m., he packed his things, planning to leave town, and went to find Fox. It took him about 15 minutes to reach Marvos's house.
The prosecutor argued defendant shot the victims because he found out Fox had sex with Sewell, but that the murder and attempted murder were not committed under the influence of an intense emotion caused by provocation because a person of average disposition would not "lose their mind" under the circumstances, and defendant had "plenty of time to think about it, come to his senses" and "cool off" as he drove to Marvos's house. The jury concluded defendant acted willfully, deliberately, and with premeditation. It necessarily rejected any theory that defendant acted in the heat of passion. Under the circumstances, the prosecutor's remarks did not lessen his burden of proof. Defendant has not shown deficiency or prejudice and his ineffective assistance claim lacks merit.
VI
In addition, defendant claims the prosecutor intentionally deceived the jury by arguing that defendant came up with the Mexican Mafia defense at the last minute after spending two years in jail.
Defendant did not object to the challenged remarks and he did not seek an admonition from the trial court. Nevertheless, he repeats his argument that an objection would have been futile because the trial judge, an apparent Mexican Mafia expert, was openly dubious of his Mexican Mafia defense. We reject the claim for the reasons we have stated ante.
Defendant further argues the trial judge was extremely irritated by the fact that his Mexican Mafia defense did not surface until mid-February 2011. Our review of the record shows the trial court expressed concern that defense counsel was attempting to delay the trial without good cause when defense counsel requested multiple trial continuances and gave changing reasons for the need for a continuance. However, the trial court still granted defense counsel's requests to continue the trial date. The trial court also admonished the jury when defense counsel objected during the prosecutor's rebuttal argument. We are not persuaded it would have been futile for defendant to object to improper closing argument remarks by the prosecutor or that no admonishment from the trial court could have cured the harm caused by an improper comment. Defendant's failure to object to the asserted misconduct and to request a curative admonition in the trial court forfeited his prosecutorial misconduct claim. (Hill, supra, 17 Cal.4th at p. 820.)
Defendant argues, in the alternative, that he received ineffective assistance of counsel because his attorney did not object to the prosecutor's reference to defendant's version of the events as a "last-minute made-up story." The claim lacks merit.
The prosecutor began his summation by saying, "The facts are exactly as I said they would be. But now you have the defendant's last minute made-up story . . . ." Defense counsel told the jury it took two years for defendant to tell his story to defense counsel because defendant was afraid of retaliation from the Mexican Mafia. In rebuttal, the prosecutor said, "let's talk about the defendant's testimony in regards to common sense. Did any of it make sense? [¶] Two years in jail, and that's the best he can come up with, the Mexican Mafia? Do you actually think he sat on critical evidence for two years, risking being sent to prison for the rest of his life? Of course not. [¶] You know I asked him on the stand, did you go over the evidence, all of the evidence against you? He kind of hemmed and hawed, and finally admitted, I went over the summaries. [¶] Ladies and gentlemen, he has got nothing but time. Do you know he went over every single bit of evidence that the People have against him? And what he did was adapted some of his testimony to some of the witnesses. That's all."
The prosecutor asked defendant during cross examination why he did not talk to law enforcement authorities to help police gather as much evidence as possible to help prove his innocence. Defendant now argues the prosecutor committed error under Doyle v. Ohio (1976) 426 U.S. 610, 618 [49 L.Ed.2d 91, 98], which held it would be fundamentally unfair and a deprivation of due process to allow an arrested person's silence to be used to impeach an explanation subsequently offered at trial. But defendant acknowledges his failure to object in the trial court forfeited any Doyle claim. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 118.) Accordingly, we do not address any claim under Doyle.
The prosecutor's statements were not improper in light of the evidence presented at the trial. According to defendant, law enforcement authorities were aware since April 2009 the defense was likely going to be the Mexican Mafia killed Vasquez and shot Sewell and Marvos. But defendant never told law enforcement authorities what happened. Defendant did not share the Mexican Mafia story with defense counsel until mid-January 2011. Defendant testified he had two years to prepare to tell his story implicating the Mexican Mafia. Defendant agreed he had been in custody since April 28, 2009, had read all of the witness statements or summaries, and had "all of this time" to think about what he was going to say. Defendant acknowledged he could go to prison for the rest of his life for the charged crimes. Based on defendant's testimony, it was not improper for the prosecutor to argue defendant "sat on critical evidence for two years . . . ." The prosecutor's remark was a fair response to defense counsel's statement that it took two years for defendant to tell his story. The prosecutor's reference to defendant's story as "last minute" was not improper in light of defendant's testimony that he did not decide to tell his story until February 2011.
" 'The prosecutor is permitted to urge, in colorful terms, that defense witnesses [including the defendant] are not entitled to credence . . . [and] to argue on the basis of inference from the evidence that a defense is fabricated . . . .' " (Boyette, supra, 29 Cal.4th at p. 433; People v. Earp (1999) 20 Cal.4th 826, 862 (Earp).) As we have explained, there is compelling evidence defendant shot Vasquez, Sewell and Marvos. Under the circumstances, it was not misconduct for the prosecutor to argue defendant was untruthful. (People v. Wilson (2005) 36 Cal.4th 309, 338 [the prosecution may properly refer to a defendant as a liar if it is a reasonable inference based on the evidence]; Boyette, supra, 29 Cal.4th at p. 433.)
Defendant adds that the prosecutor's closing statement was misconduct because the prosecutor took "unfair advantage" of the trial court's decision to deny any evidence, other than an expert's general testimony about Mexican Mafia symbols and practices, that could corroborate defendant's account. Any claim that the trial court erred in excluding evidence is forfeited by the failure to provide a record citation. (Cal. Rules of Court, rule 8.204(a)(1)(C); Miller v. Superior Court (2002) 101 Cal.App.4th 728, 743.) In any event, the trial court did not exclude Fox's trial testimony. Fox elected to invoke her Fifth Amendment right against self-incrimination and the trial court thereafter refused to grant use immunity to Fox, after determining that immunity was not warranted under Smith, supra, 615 F.2d 964. The trial court did not decide the admissibility of the proposed testimony. We concluded ante the trial court did not err in refusing to grant use immunity to Fox. Defendant has not shown how the prosecutor's closing remarks took "unfair advantage" of the denial of defendant's motion for judicial use immunity.
Defense counsel is not ineffective for failing to object to the prosecutor's closing remarks because the prosecutor did not engage in misconduct. (People v. Farnam (2002) 28 Cal.4th 107, 173 [no ineffective assistance due to defense counsel's failure to object to prosecutorial misconduct if no such misconduct occurred]; Thomas, supra, 2 Cal.4th at p. 531.) Further, given the strength of the evidence against defendant, it is not reasonably probable that, but for defense counsel's failure to object, the defendant would have obtained a more favorable result. Defendant's ineffective assistance claim fails without proof of deficient representation and resulting prejudice. (Maury, supra, 30 Cal.4th at p. 389; Strickland, supra, 466 U.S. at p. 687 [80 L.Ed.2d at pp. 692-693].)
VII
Defendant assigns as error the trial court's refusal to instruct the jury with his proposed third party culpability instruction.
In People v. Hartsch (2010) 49 Cal.4th 472 (Hartsch), the California Supreme Court concluded there was no prejudicial error in the trial court's refusal to give third party culpability instructions similar to those defendant requested in this case. (Id. at p. 504.) The Supreme Court said the requested pinpoint instructions "add little to the standard instruction on reasonable doubt" and "their omission is not prejudicial because the reasonable doubt instructions give defendants ample opportunity to impress upon the jury that evidence of another party's liability must be considered in weighing whether the prosecution has met its burden of proof." (Ibid.) "It is hardly a difficult concept for the jury to grasp that acquittal is required if there is reasonable doubt as to whether someone else committed the charged crimes." (Ibid.)
Defendant asked the trial court to instruct the jury on third party culpability with one of two instructions. The first proposed instruction reads, "You heard evidence that a person other than the defendant committed the offense with which the defendant is charged. [¶] The defendant is not required to prove the other person's guilt. It is the prosecution that has the burden of proving the defendant guilty beyond a reasonable doubt. Therefore, the defendant is entitled to an acquittal if you have a reasonable doubt as to the defendant's guilt. [¶] Evidence that another person committed the charged offense may by itself raise a reasonable doubt as to the defendant's guilt. However, its weight and significance, if any, are matters for your determination. [¶] If, after considering all of the evidence including any evidence that any other person committed the offense, you have a reasonable doubt that the defendant committed the offense, you must find the defendant not guilty."
The second proposed instruction reads, "The defendant in this case has introduced evidence for the purpose of showing that another person committed the crime for which he is here on trial. [¶] If, after a consideration of all the evidence, you have a reasonable doubt that the defendant committed the charged offense, you must find him not guilty."
The proposed pinpoint instructions in Hartsch, supra, 49 Cal.4th 472 stated, " 'If the evidence presented in this case convinces you beyond a reasonable doubt that the defendant is guilty, you should so find, even though you may believe that one or more other persons are also guilty. [¶] On the other hand, if you entertain a reasonable doubt of the defendant's guilt after an impartial consideration of the evidence presented in the case, including any evidence of the guilt of another person or persons, it is your duty to find the defendant not guilty.' " (Id. at p. 504.) And " '[e]vidence has been presented during the course of this trial indicating or tending to prove that someone other than the defendant committed, or may have had a motive and opportunity to commit, the offense(s) charged. In this regard, it is not required that defendant prove this fact beyond a reasonable doubt. [¶] The weight and significance of such evidence are matters for your determination. If after consideration of all of the evidence presented, you have a reasonable doubt that the defendant committed the offense(s) charged, you must give the defendant the benefit of the doubt and find him not guilty.' " (Ibid.) --------
It is not error for a trial court to refuse a pinpoint instruction on a point that is adequately covered by other instructions. (People v. Hughes (2002) 27 Cal.4th 287, 362-363.) The trial court here instructed the jury that it must consider all of the evidence, and the jury must find the defendant not guilty unless the People have proved the defendant guilty beyond a reasonable doubt. The trial court gave the jury a list of factors to consider in evaluating eyewitness testimony identifying defendant as the perpetrator. The trial court also instructed the jury on the elements of the charged offenses. The trial court told the jury it must find defendant not guilty if the People have not proved beyond a reasonable doubt that defendant committed the charged crimes. Given these instructions, the jury could not have understood that it could convict defendant if it believed someone else was responsible for the shooting. No instructional error occurred because the instructions given adequately conveyed that evidence of third party culpability raises a reasonable doubt concerning defendant's guilt. (Hartsch, supra, 49 Cal.4th at 504.)
Additionally, the closing arguments by the prosecutor and defense counsel outlined the contradictory theories about the identity of the shooter. Even if the trial court had committed instructional error, any error was harmless. (Hartsch, supra, 49 Cal.4th at p. 504; Earp, supra, 20 Cal.4th at p. 887 [the defendant suffered no prejudice from the trial court's refusal to give third party culpability instruction because the jury was instructed on the prosecution's burden of proof and the jury knew from defense counsel's argument the defense theory was someone other than the defendant committed the crimes].)
VIII
Defendant contends the cumulative effect of the erroneous rulings by the trial court, prosecutorial misconduct, and ineffective assistance of trial counsel requires reversal of the judgment. Having found no prejudicial error, we reject defendant's cumulative error claim.
DISPOSITION
The judgment is affirmed.
MAURO, Acting P. J. We concur: DUARTE, J. HOCH, J.