Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County No. RIF125774, Helios (Joe) Hernandez, Judge. Affirmed.
Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Steve Oetting and Emily R. Hanks, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
Defendant Damien T. Doster drove to the In-N-Out Burger restaurant in Moreno Valley on September 3, 2005, with his friends Shariff Garrett and Rasheed Muslim. They arrived at the parking lot of the restaurant and parked near a large crowd that was assembled. Garrett, Muslim, and defendant exited the car, and Garrett got into a verbal altercation with someone in the crowd. As Garrett walked back to his car, presumably to get a gun that was secreted in the center console of his car, a man emerged from the crowd and shot him in the back of the head. Defendant armed himself with a gun and hid in the bushes. At the same time, Garrett’s friend, Damon Mabins, and another man, Melvin Banks, drove by and recognized Garrett’s truck. When Mabins and Banks approached Garrett’s body, defendant came out of the bushes and shot Mabins five or six times in the torso. Defendant discarded the weapon. Defendant ran to a nearby gas station where he encountered the police and told them he had no involvement in the shooting. Garrett and Mabins were pronounced dead at the scene.
Defendant was convicted of second degree murder and intentionally discharging a firearm causing great bodily injury, along with being a felon in possession of a firearm.
Defendant now contends:
1. The trial court erred by failing to sua sponte instruct the jury on unconsciousness.
2. The prosecutor committed prejudicial misconduct during cross-examination and closing argument.
We conclude that no error occurred and affirm the judgment.
I
PROCEDURAL BACKGROUND
A jury found defendant guilty of the second degree murder of Mabins (Pen. Code, § 187, subd. (a)), and the jury found true the allegations that he personally discharged a firearm causing great bodily injury in committing the second degree murder (§ 12022.53, subd. (d)). He was additionally convicted of being a felon in possession of a firearm. (§ 12021, subd. (a).) In a bifurcated proceeding, defendant admitted that he had suffered a prior conviction and served a prior prison term for that conviction. (§ 667.5, subd. (b).) The trial court sentenced defendant to the indeterminate sentence of 40 years to life for the second degree murder and gun enhancement, plus the determinate sentence of three years for being a felon in possession of a handgun and for the prior prison term enhancement.
All further statutory references are to the Penal Code unless otherwise specified.
The jury found defendant not guilty of the attempted murder of Banks.
II
FACTUAL BACKGROUND
A. Prosecution
On September 2, 2005, Thurman Schisler was working at the In-N-Out Burger restaurant located at the corner of Hemlock Avenue and Pigeon Pass Road in Moreno Valley. Sometime between 11:00 p.m. and 12:00 a.m., a large crowd (30 to 50 people) gathered in the parking lot. Most of the members of the crowd were teenagers or in their early 20’s. The police were called, and they dispersed the crowd.
Sometime in the evening of September 2, 2005, Rasheed Muslim met up with defendant and Shariff Garrett, who were in Garrett’s sports utility vehicle (SUV). At that time, Garrett asked Muslim if he had a gun, and Muslim told him no. Muslim got into the backseat of Garrett’s SUV. They all drove to a club in Colton but did not go in. They then drove to the Moreno Valley In-N-Out Burger.
As Muslim, Garrett, and defendant were walking into the restaurant, they encountered a crowd of young people whom Muslim did not know. Garrett got into a verbal confrontation with someone in the crowd. The man said something about shooting Garrett. Garrett responded, “They didn’t stop making guns when they made yours.” Garrett started walking back to the SUV; Muslim believed it was to retrieve a gun that Garrett kept in the center console. The man from the crowd screamed to his friends to get a gun.
Garrett leaned into the SUV. Another man then ran up and shot Garrett in the back of the head. Muslim tried to go toward Garrett to help him, but the man shot him in the leg. Muslim ran inside the restaurant. Muslim had no idea about defendant’s whereabouts during or after the shooting.
Schisler was in the back room of the restaurant when he heard at least three “popping” sounds. Schisler then heard employees from the kitchen area screaming. When Schisler entered the kitchen, Muslim was leaning on a wall. Muslim told Schisler he had been shot in the leg. Schisler wrapped the leg and waited for paramedics.
That same night, Damon Mabins and Melvin Banks were driving by the In-N-Out Burger and observed a group of people outside in the parking lot. Mabins slowed down. Just then, Banks observed a Black man chasing after another man, later discovered to be Garrett, who was one of Mabins’s friends. Banks saw the man chase Garrett and shoot Garrett in the head. Mabins then told Banks that he might have known the man who had been shot; he wanted to go back.
Melvin Banks was in custody at the time of his testimony for attempted murder in a different case.
Banks drove up and stopped either next to or behind Garrett’s SUV. Mabins walked up to Garrett, who was lying on the ground. He called to Banks to come over. Mabins bent over Garrett’s body. There was no one else near the body.
As they were standing near Garrett’s body, defendant came out of nowhere and shot Mabins. Banks could not recall if defendant came from inside the truck or a grass area in front of the truck. Banks ran. At trial, Banks admitted that he had told police after the shots were fired at Mabins that he heard a clicking sound from the gun before he ran. He denied he ever told police that defendant pointed the gun at him when he heard the clicking sound.
Maria Sneed was inside the In-N-Out Burger restaurant and heard what sounded like firecrackers outside. Muslim then walked into the restaurant limping. Sneed looked out the window and saw a man shooting another man who was lying on the ground. While the man was lying on the ground, Sneed observed the other man shoot him at least four times. She then saw the shooter run away. Mabins and Garrett ended up lying on the ground 10 feet from each other.
Banks told police officers who spoke with him after the incident that defendant jumped out of the bushes that were in front of the SUV and shot Mabins. He also told officers that defendant had pointed the gun directly at him, and he heard a click.
Earlier in the evening, Riverside County Sheriff’s Deputy Aron Wolfe had responded to the In-N-Out Burger restaurant to break up a disturbance. Some people in the crowd appeared to be ready to get into a fight, and Deputy Wolfe and other officers ordered them to disperse. The parking lot was cleared.
When Deputy Wolfe returned to the area in response to the shooting, he encountered defendant at a nearby gas station. Defendant was running, and Deputy Wolfe ordered him to stop. Defendant did not seem agitated and was calm. Defendant told Deputy Wolfe that he was inside the In-N-Out Burger restaurant when he heard a round of gunshots. When defendant heard a second round of gunshots, he exited the In-N-Out Burger and started running away to avoid being shot.
Defendant was interviewed by Detective Gary LeClair on September 4, 2005, at the police station. The shoes defendant was wearing at the interview were matched to shoeprints found in blood at the scene. The blood belonged to Garrett.
On rebuttal, the prosecution presented evidence that defendant lied to police that the shoes he had on during the interview were the ones he wore during the shooting.
An autopsy was performed on Mabins on September 7, 2005. He died as a result of five gunshot wounds. Mabins was shot from a distance of one to three feet. Based on the gunshot wounds, it was conceivable Mabins had been lying on the ground when he was shot, depending upon the location of the shooter.
A .38-caliber gun was found in the center console storage area of the SUV. In addition, .32- and .38-caliber shell casings and live rounds were found at the scene. During the autopsy performed on Garrett, .32-caliber bullets were recovered from his body; .38-caliber bullets were recovered from Mabins body. All of the .32-caliber casings and bullets recovered from the scene were from the same gun. A .38-caliber bullet recovered from Mabins’s body during the autopsy matched the .38-caliber gun found in the center console of Garrett’s SUV.
B. Defense
Defendant testified on his own behalf as follows.
At the time of the shooting, defendant was on parole for a conviction of child endangerment.
Muslim, Garrett, and defendant all got together between 10:30 or 11:00 p.m. on September 2, 2005. Sometime in the evening, Garrett wanted to go to the In-N-Out Burger.
When they got to the In-N-Out Burger, Garrett parked near a large crowd of people. As the three of them were walking to the restaurant, Garrett got into an argument with someone in the crowd. When Garrett walked back to his car and leaned in (presumably to get a gun he kept in the center console), he got shot in the back of the head by someone from the crowd. Defendant ran and hid. Defendant came back and got in the truck with Garrett to try to hold him up to stop the bleeding. Defendant found a gun on the seat and picked it up.
Defendant heard footsteps behind him and saw someone walking toward the truck. He panicked. He thought he was going to get killed. Defendant was still holding onto Garrett and dropped him; Garrett fell to the ground. Defendant started shooting. He then threw the gun back in the truck and ran.
On rebuttal, the prosecution presented evidence that defendant had initially told police he had thrown the gun on the ground.
Defendant lied to the police after the shooting because he was afraid and confused. He claimed he never saw Banks, even though he told police prior to trial that he saw Banks approach him. Defendant denied that he had been at the In-N-Out Burger during the initial crowd disturbance or that Garrett and Muslim had had a discussion about guns.
III
UNCONSCIOUSNESS INSTRUCTION
Defendant contends the trial court erred by failing to sua sponte instruct the jury on unconsciousness as a complete defense to the offenses. Defendant never requested that the jury be instructed on unconsciousness as a defense. Instead, the jury was instructed on justifiable homicide or perfect self-defense as a complete defense to the charges, and imperfect self-defense to reduce Mabins’s killing to voluntary manslaughter. Hence, we review defendant’s claim on the basis of whether the trial court had a sua sponte duty to instruct the jury on unconsciousness when the defendant proceeds on a theory of self-defense.
Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 3425 is the unconsciousness instruction and provides, in part: “The defendant is not guilty . . . if (he/she) acted while legally unconscious. Someone is legally unconscious when he or she is not conscious of his or her actions. [Someone may be unconscious even though able to move.] [¶] Unconsciousness may be caused by (a blackout . . . an epileptic seizure . . . involuntary intoxication . . . sleepwalking . . .). [¶] The People must prove beyond a reasonable doubt that the defendant was conscious when (he/she) acted. If there is proof beyond a reasonable doubt that the defendant acted as if (he/she) were conscious, you should conclude that (he/she) was conscious. If, however, based on all the evidence, you have a reasonable doubt that (he/she) was conscious, you must find (him/her) not guilty.”
“A court must instruct sua sponte on general principles of law that are closely and openly connected with the facts presented at trial.” (People v. Ervin (2000) 22 Cal.4th 48, 90.) A trial court must instruct on an affirmative defense, specifically including unconsciousness, even in the absence of a request, “if it appears the defendant is relying on the defense, or if there is substantial evidence supporting the defense and the defense is not inconsistent with the defendant’s theory of the case.” (People v. Rogers (2006) 39 Cal.4th 826, 887; People v. Wickersham (1982) 32 Cal.3d 307, 326, disapproved on other grounds in People v. Barton (1995) 12 Cal.4th 186, 200-201.)
“An unconscious act within the contemplation of the Penal Code is one committed by a person who because of somnambulism, a blow on the head, or similar cause is not conscious of acting and whose act therefore cannot be deemed volitional. [Citation.]” (People v. Sedeno (1974) 10 Cal.3d 703, 717, italics added, overruled on other grounds in People v. Breverman (1998) 19 Cal.4th 142, 149.) Unconsciousness “need not reach the physical dimensions commonly associated with the term (coma, inertia, incapability of locomotion or manual action, and so on); it can exist . . . where the subject physically acts in fact but is not, at the time, conscious of acting.” (People v. Newton (1970) 8 Cal.App.3d 359, 376, fn. omitted.)
“A criminal defendant has the burden of producing evidence that he was unconscious if he wishes to rely upon that defense.” (People v. Froom (1980) 108 Cal.App.3d 820, 829-830.) When unconsciousness is not the result of voluntary intoxication, it is a complete defense. (People v. Ochoa (1998) 19 Cal.4th 353, 423.)
Initially, it is clear that defendant was not relying upon the defense of unconsciousness. Although defendant testified in his defense that he “blacked out” during the shooting, he presented no expert testimony as to his mental state at the time of the shooting or any other mental deficiency that would have caused such blackout. Further, he continually testified that he committed the shooting because he was “scared” and thought that Mabins was going to shoot him. Defense counsel did not request unconsciousness instructions but rather proceeded on a self-defense theory. Defense counsel argued in closing that defendant was justified in shooting Mabins because he reasonably was in fear of his life, and if such fear was unreasonable, it was voluntary manslaughter. The trial court could not have been alerted to the fact that defendant was relying on an unconsciousness defense. Accordingly, since defendant did not rely on the defense below, we must determine whether there was substantial evidence supportive of the defense, and whether the defense was consistent with defendant’s theory of the case, in deciding whether the trial court erred by failing to sua sponte instruct the jury on unconsciousness.
The only evidence of unconsciousness came from defendant’s testimony that he “blacked out” during the time he shot Mabins and that he could not remember how many shots he fired. Although evidence of lack of memory may furnish some proof of unconsciousness, “[t]here must be something more than [a defendant’s] mere statement that he does not remember what happened to justify a finding that he was unconscious at the time of [the] act.” (People v. Coston (1947) 82 Cal.App.2d 23, 40.) Defendant’s statement was not enough to support an instruction on unconsciousness in light of his remaining testimony.
Defendant stated several times during his testimony that he shot at Mabins in order to protect his life and that he was panicked. He also remembered all of the events in detail just prior to and after the shooting. Defendant recalled Garrett’s statements just prior to Garrett being shot. Defendant remembered the exact angle at which he was holding Garrett prior to Mabins approaching him, and he remembered where he obtained the gun. He remembered that he dropped Garrett just prior to the shooting. He recalled that he was standing by the door of the SUV while Mabins was at the rear of the truck at the time of the shooting. He recalled that immediately following the shooting, he threw the gun and he denied that he put the gun back in the car’s center console. He then ran from the scene and lied to police regarding his involvement in the shooting because he was afraid, not because he did not remember the shooting.
This isolated moment that defendant claimed that he “blacked out” was simply not enough to warrant the instruction on unconsciousness. All other evidence pointed to defendant either intending to kill Mabins or shooting Mabins in self-defense. Either way, defendant was conscious of his actions at the time of the shooting.
Defendant relies on the fact that he had no motive to shoot Mabins and that he was calm, which he equates with shock, after the shooting, to support an unconsciousness instruction. These facts have no bearing on unconsciousness. The fact remains that defendant could recall every detail of the shooting except for actually pulling the trigger, and the only testimony that he “blacked out” came from defendant himself.
Further, the cases cited by defendant are factually distinguishable or support the conclusion reached in this case. (Compare People v. Rogers, supra, 39 Cal.4th at pp. 887-888 [instruction on unconsciousness not warranted by the evidence since no expert testimony on unconsciousness and defendant’s testimony only supported that he did not recall the events of several killings]; People v. Heffington (1973) 32 Cal.App.3d 1, 7-10 [the trial court did not err in failing to instruct on unconsciousness, even though defendant was relying on it as a defense and requested the instruciton, where no expert testimony on lack of awareness was presented, and defendant’s testimony displayed ability to remember some parts of incident but not others]; to People v. Wilson (1967) 66 Cal.2d 749, 755-756, 760-763 [error to refuse requested instructions on unconsciousness, especially in a capital case, where raised as defense; defendant able to recall some surrounding objects and events, but not firing fatal shots or what happened during and after shootings]; People v. Newton, supra, 8 Cal.App.3d at pp. 373, 375-377 [requested instructions on unconsciousness should have been given where some evidence supported inference that defendant was shot in abdomen before firing any shots himself, that such a wound was likely to produce shock, and that defendant remembered certain sensations and noises, but nothing else].)
The California Supreme Court has suggested that an instruction on involuntary unconsciousness may be inconsistent with a theory of self-defense. (People v. Ray (1975) 14 Cal.3d 20, 27, abrogated on other grounds in People v. Lasko (2000) 23 Cal.4th 101, 110.) We need not decide whether this observation holds true in the present case, since we have concluded there was no substantial evidence supportive of the defense of unconsciousness.
Even if we were to find the trial court erred in failing to instruct sua sponte on unconsciousness, we must conclude that any error was harmless both because “the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions” (People v. Sedeno, supra, 10 Cal.3d at p. 721; accord, People v. Coffman and Marlow (2004) 34 Cal.4th 1, 96-97 [error in omitting instruction harmless when factual question posed by that instruction was necessarily resolved adversely to defendant under other, properly given instructions]; see also People v. Breverman, supra, 19 Cal.4th at p. 175), and additionally because defendant has failed to prove that but for such asserted error he would have received a more favorable result (Breverman, at p. 175 [applying People v. Watson (1956) 46 Cal.2d 818, 836 standard of reversal for instructional error on lesser included offenses].)
Here, the jury was instructed that in order for it to find defendant guilty of violating section 12022.53, subdivision (d), it must conclude that defendant intentionally discharged the firearm and that act caused great bodily injury. The jury necessarily concluded that defendant intended to shoot the gun and that act caused injury to Mabins, necessarily rejecting that he unconsciously shot the gun. Furthermore, even had the jury been instructed on unconsciousness, it is inconceivable the jury would have found he was unconscious based on his recollection of all of the details of the events surrounding the shooting and his subsequent lies to the police.
Defendant also raises a claim of ineffective assistance of counsel. Because a trial court is obligated to instruct on unconsciousness sua sponte, defendant did not waive this contention by failing to raise it in the trial court, and necessarily did not receive ineffective assistance of counsel for failing to request the instruction. (See People v. Frazer (2003) 106 Cal.App.4th 1105, 1116, fn. 5.) Further, since we concluded both that defendant’s testimony did not support unconsciousness and that the failure to instruct was not prejudicial, defendant has failed to show his counsel was ineffective for choosing to pursue the defense of self-defense when evidence of unconsciousness was minimal at best, and such instructional error was harmless. (People v. Staten (2000) 24 Cal.4th 434, 450-451 [“defendant must show that trial counsel’s performance was deficient under a standard of reasonableness . . . [and] that prejudice resulted”; see also Strickland v. Washington (1984) 466 U.S. 668, 698 [104 S.CT. 2052, 80 L.Ed.2d 674].) We conclude the trial court did not have a duty to instruct the jury on unconsciousness.
IV
PROSECUTORIAL MISCONDUCT
Defendant contends that the prosecutor committed prejudicial misconduct during cross-examination of him and in closing argument.
A. Standard of Review
A prosecutor’s conduct violates California law if it involves the use of deceptive or reprehensible methods to attempt to persuade the jury. (People v. Benavides (2005) 35 Cal.4th 69, 108.) It violates the United States Constitution “when it infects the trial with such unfairness as to make the conviction a denial of due process.” (People v. Morales (2001) 25 Cal.4th 34, 44.) To establish prosecutorial misconduct, a defendant need not show that the prosecutor acted in bad faith, but he must show that his right to a fair trial was prejudiced. (People v. Nguyen (1995) 40 Cal.App.4th 28, 35.) “In either case, only misconduct that prejudices a defendant requires reversal [citation], and a timely admonition from the court generally cures any harm. [Citation.]” (People v. Pigage (2003) 112 Cal.App.4th 1359, 1375.)
B. Questioning During Cross-examination
Defendant contends for the first time on appeal that the prosecutor committed misconduct in his cross-examination of him during trial. The specific cross-examination to which defendant relies in support of his claim is set forth, post.
The prosecutor assumed in his cross-examination that Mabins was lying on the ground when defendant shot at him. Although defendant objected that this misstated the testimony, the trial court felt there was conflicting evidence so it was proper questioning.
The prosecutor then inquired regarding defendant’s testimony that he blacked out. The prosecution asked, “Because right now you want us to believe you blacked out?” Defendant objected as argumentative, which was overruled. Defendant responded, “I did. I panicked. I was afraid, I mean.” Defendant responded “I guess so,” to an inquiry that he had the consciousness to pull the trigger on the gun. The following exchange then occurred:
“[Prosecutor]: And each time you pulled the trigger it was aimed at the person we seeing [sic] lying on the ground there, Mr. Mabins; right?”
“[Defendant]: Yes
“[Prosecutor]: You had absolutely no reason to shoot him; did you?
“[Defense counsel]: Objection, Your Honor. Misstates the evidence.
“[Trial Court]: Sustained.”
Defendant explained after further cross-examination that he shot Mabins because he was in fear.
The prosecutor then inquired of defendant regarding statements made to the police that before shooting Mabins, defendant observed Garrett’s shooter leave the parking lot. Defendant testified that he looked back when he ran after Garrett was shot, but he did not see the shooter. The prosecutor then asked, “But you did see the shooter leave; isn’t that true?” Defense counsel objected that it misstated the evidence, which was sustained. The prosecutor followed up that defendant had told the police he saw the shooter leave in a white car. Defendant testified that he saw the car leave, but not the shooter. Defense counsel then objected on relevance grounds; there was an unreported sidebar conference. The objection was overruled.
The prosecutor then inquired about defendant lying to police after the shooting and when he formulated the idea to lie about the shooting. Defense counsel’s “argumentative” objection was overruled. Defendant claimed he was afraid, so he lied. The prosecutor stated, “So whenever you’re afraid you lie?” Another argumentative objection was overruled.
The prosecutor inquired about where defendant was standing and holding Garrett prior to shooting Mabins. When defendant did not understand the time to which the prosecutor was referring, the prosecutor clarified, “When you started shooting at Mr. Mabins.” Defense counsel objected that this misstated defendant’s testimony, but it was overruled.
The prosecutor again inquired about shooting Mabins while he was on the ground. Defense counsel advised the trial court that it wanted an ongoing objection that this misstated the testimony. The trial court overruled the objection finding that Sneed’s testimony supported the questioning. Defense counsel responded that he objected to testimony that he was “standing over him” and the trial court responded, “So noted.”
The prosecutor asked again when defendant first decided to lie to the police. Another argumentative objection was overruled. The prosecutor asked, “And when you were afraid—when you are afraid you lie?” Defense counsel’s objection on argumentative and asked and answered grounds was overruled. The prosecutor then asked, “And that situation is that you don’t want to get in trouble?” Defendant responded, “Who would[?]” The prosecution stated, “Good question.” Defense counsel interjected an objection as improper commentary, and the prosecutor apologized. The trial court advised the prosecutor, “Keep to the questions.”
After questioning defendant regarding the descriptions given to police of Garrett’s shooter and Mabins, the prosecutor asked if he would have shot anyone who came upon him. Defendant responded he would have if they came up “without making his self [sic]announced.” The prosecutor then asked, “So they have to announce themselves?” and defendant responded yes. Defense counsel objected that the question had been asked and answered and that the prosecutor was badgering the witness. The trial court sustained the objection.
Defendant later stated that he was afraid of testifying. The prosecutor stated, “You remember what you said when you’re afraid? You lie; right? Defendant responded, “I’m not lying now.” Defense counsel’s objection that it misstated his testimony was not ruled upon, as the prosecutor ended questioning.
During recross-examination, the prosecutor asked, “You were firing wildly, that’s what you want us to believe; right?” Defense counsel’s objection on argumentative grounds was sustained. The prosecutor then asked, “You were firing indiscriminately”; defense counsel made the same objection, and it was sustained. The following exchange then occurred:
“[Prosecutor]: How were you firing, in a panic?
“[Defendant]: In a panic, turned and panic—turning and firing.
“[Prosecutor]: Waving the gun and boom, boom, boom; right?
“[Defense counsel]: Objection. Misstates the testimony.
“[Trial court]: Stop, [prosecutor]. That objection is sustained.”
Later, the prosecutor asked defendant, “Okay. And then you—it’s indicated you were being rehabilitated earlier by [defense counsel]—that’s what it’s called?” Defense counsel asked to approach the bench. When the prosecutor began questioning again, the trial court stated, “[Prosecutor], stop for a second. Do it right. Don’t make me take a little break to talk to you.” The prosecutor responded, “I don’t want you to take a break. I apologize. Here you go.” Defense counsel objected that the “commentary is absolutely improper.” The trial court responded, “Just ask your questions. Get to the point.”
“Generally, a claim of prosecutorial misconduct is not reviewable on appeal unless the defendant makes a timely objection and asks the trial court to admonish the jury to disregard the prosecutor’s improper remarks. [Citation.] In the absence of an objection, ‘“the point is reviewable only if an admonition would not have cured the harm caused by the misconduct.”’ [Citation.]” (People v. Tafoya (2007) 42 Cal.4th 147, 176, quoting People v. Earp (1999) 20 Cal.4th 826, 858.)
Here, although defendant objected to the above questioning as argumentative and misstating the testimony, he never alerted the trial court that he believed that the questioning constituted prosecutorial misconduct. Defendant never asked that the jury be admonished. An admonition to the jury would have cured any potential prejudice. (People v. Stansbury (1993) 4 Cal.4th 1017, 1056.)
Further, for those questions that were objected to, but overruled, they constituted proper questioning. “‘When a defendant voluntarily testifies, the district attorney may fully amplify his testimony by inquiring into the facts and circumstances surrounding his assertions, or by introducing evidence through cross-examination which explains or refutes his statements or the inferences which may necessarily be drawn from them.’ [Citation.]” (People v. Smith (2003) 30 Cal.4th 581, 614.) The tough questioning of defendant was within the prosecutor’s proper exercise of his duty to present the case to the jury. Although it would have been a better practice for the prosecutor to stop questioning when the trial court was ruling on objections, we cannot say that such vigorous cross-examination constituted misconduct.
Finally, several of defendant’s objections were sustained. Although at one point the trial court sustained an objection that the prosecutor was badgering the witness, such conduct did not rise to the level of prosecutorial misconduct.
C. Closing Argument
Defendant also claims that the prosecutor committed misconduct during closing argument.
In his closing argument, the prosecutor advised the jury that it was his job to put together the facts and the reasonable inferences from those facts. The prosecutor then reminded the jurors of Deputy Wolfe’s testimony that there had been a large crowd in the parking lot about one hour prior to the shooting that had almost got into a fight. Garrett and Muslim had discussed guns prior to going to the In-N-Out Burger. Also, when they got to the restaurant, Garrett parked in the middle of the crowd. The prosecutor asked the jury to consider why Garrett parked there and that it could be inferred that he parked there because they had been there earlier and he knew there was going to be a confrontation.
The prosecutor argued that defendant was standing over Mabins when he shot him based on Sneed’s testimony and because the bullets were going straight down. Defendant was standing over the body, so it was not self-defense. Defendant was mad and was going to shoot anyone who approached him.
Although defendant made no objections to the aforementioned arguments, he now claims they constituted misconduct because, even though they were “technically proper” arguments, it was very “damaging speculation.” We find that defendant waived any claim of prosecutorial misconduct based on these arguments by failing to object to the arguments in the lower court. Had the trial court been alerted to the fact that defendant found the statements constituted misconduct, it could have admonished the jury to disregard the statements or that these were just arguments that should not be considered in the jury’s determination of guilt.
Further, we find that such arguments did not constitute misconduct. There was ample testimony to support such inferences. There was evidence that Garrett asked Muslim about whether he had a gun prior to going to the In-N-Out Burger. Further, it could be reasonably inferred that Garrett parked near the crowd because he wanted to get into a confrontation. The timeline provided by the parties made it possible that they had previously been at the restaurant. Further, Sneed testified she saw defendant stand over Mabins when he shot him; the coroner testified that it was possible Mabins was lying down when shot; and he was shot from one to three feet away, supporting the prosecutor’s argument that Mabins was helpless and was essentially executed by defendant.
“[A] prosecutor is free to give his opinion on the state of the evidence, and in arguing his case to the jury, has wide latitude to comment on both its quality and the credibility of witnesses. [Citations.]” (People v. Padilla (1995) 11 Cal.4th 891, 945-946, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1; see also People v. Cole (2004) 33 Cal.4th 1158, 1203.) “‘“The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom.”’” (People v. Ward (2005) 36 Cal.4th 186, 215.) Here, the arguments by the prosecutor were not outside the permissible inferences from the evidence and did not constitute mere speculation. It was up to the jury to decide if such interpretation of the facts was reasonable.
Defendant also objects to the prosecutor’s statements regarding self-defense. The prosecutor argued that defendant never thought his life was in imminent peril, “and that, basically, means you have to be facing down the barrel of a gun . . . .” Defense counsel objected on the ground that it misstated the law. The trial court advised the jurors, “The jury—if the attorneys stray a little bit from the law—remember the jury instructions, they control. Jury will put it in the proper perspective. You may proceed.” The prosecutor then argued to the jury that defendant had no other reason to kill Mabins except revenge.
The jury was admonished that, as to self-defense, it should rely on the instructions. The jury was fully instructed on the law of self-defense. “A jury will generally be presumed to have followed an admonition to disregard improper evidence or comments, as ‘[i]t is only in the exceptional case that “the improper subject matter is of such a character that its effect . . . cannot be removed by the court’s admonitions.” [Citation.]’” (People v. Pitts (1990) 223 Cal.App.3d 606, 692.) We believe the admonition cured any potential prejudice from the prosecutor’s argument.
Defendant also objects to the prosecutor’s statements regarding his testimony. The prosecutor argued to the jury, “You’re here to make sure that justice is done by evaluating all of the evidence, not just some—not just because you feel sorry for this guy, and you’re going to place more credibility on somebody who takes the stand because, you know, what[] I would want to take the stand if I were innocent.” Defense counsel objected that such argument was “improper.” The trial court ruled, “Sustained. Jury is to ignore that comment.”
We find that it was unlikely the jury construed the prosecutor’s remarks in an objectionable fashion. (People v. Cole, supra, 33 Cal.4th at pp. 1202-1203.) Further, the trial court admonished the jury to disregard the comment.
D. Prejudice
In any event, even if we were to conclude that the prosecutor committed misconduct during cross-examination of defendant and during closing argument, “we may not reverse the judgment if it is not reasonably probable that a result more favorable to the defendant would have been reached in its absence. [Citation.]” (People v. Barnett (1998) 17 Cal.4th 1044, 1133.) The jury necessarily rejected the argument that defendant had been at the In-N-Out Burger restaurant during the prior altercation in finding him not guilty of premeditated and deliberate murder. Further, there was sufficient evidence (and defendant does not claim otherwise) that defendant intentionally shot Mabins to support his conviction of second degree murder and that he was a felon in possession of a firearm. The jury could reasonably reject that defendant acted in self-defense. Nothing in the cross-examination of defendant or during closing argument prejudiced that finding.
V
DISPOSITION
We affirm the judgment.
We concur: McKINSTER, Acting P.J., KING, J.