Opinion
B295760
05-08-2020
THE PEOPLE, Plaintiff and Respondent, v. DONALD FERREBEE, Defendant and Appellant.
Janet Uson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, William H. Shin and Nancy Lii Ladner, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. MA073458) APPEAL from a judgment of the Superior Court of Los Angeles County, Charles A. Chung, Judge. Affirmed. Janet Uson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, William H. Shin and Nancy Lii Ladner, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant Donald Ferrebee appeals from a judgment of conviction following a jury trial. Defendant was convicted of four counts of assault with a deadly weapon pursuant to Penal Code section 245, subdivision (a)(1) and one count of simple battery pursuant to sections 242 and 243, subdivision (a). He admitted to having sustained three prior serious felony convictions and received a 29-year sentence.
Further statutory references are to the Penal Code unless otherwise indicated.
Defendant raises several issues on appeal. He contends his conviction must be vacated because the prosecution failed to disclose a witness's prior misconduct in violation of Brady v. Maryland (1963) 373 U.S. 83 (Brady). Defendant also contends that the trial court erred in admitting a witness's preliminary hearing testimony and in admitting recordings of several jailhouse telephone calls. Defendant further contends the court erred by instructing the jury on consciousness of guilt and by failing to instruct jurors that evidence of other crimes should not be considered for the assault counts. He challenges the sufficiency of the evidence that supported three of the assault counts. Finally, defendant contends the prosecution committed misconduct during closing argument by disparaging defense counsel. We affirm.
II. BACKGROUND
A. Procedural History
On April 20, 2018, the Los Angeles County District Attorney (District Attorney) charged defendant by information with: four counts of assault with a deadly weapon, specifically, a machete and a baseball bat, on four victims, Rashaan Cole, Joseph Sassier, Cameryn Betsill, and Miah Betsill (§ 245, subd. (a)(1); counts 1 to 4); one count of simple battery on Miah (§§ 242, 243, subd. (a); count 5); and one count of criminal threats to R.C. (§ 422, subd. (a); count 6). The information alleged three prior strike convictions (§§ 667, subds. (b)-(j) and 1170.12, subds. (a)-(d)), which were also alleged as prior serious felony convictions (§ 667, subd. (a)(1)).
Because they share the same last name, we will refer to Cameryn and Miah by their first names for clarity.
On August 8, 2018, a jury acquitted defendant of making a criminal threat to R.C., but convicted him of the remaining counts.
On February 13, 2019, the trial court sentenced defendant to an aggregate term of 29 years. That same date, defendant filed a notice of appeal. B. Evidence at Trial
1. R.C.
a. Direct Testimony
Defendant and R.C. were in a romantic relationship and lived together for over 14 years. R.C. had two adult daughters from a prior relationship, Cameryn and Miah. On December 23, 2017, R.C. and defendant were in the garage of their home when Miah and Cameryn joined them. Defendant was drunk. Miah later told R.C. that defendant had punched her, but R.C. did not see the punch. Cameryn called the police. A sheriff's deputy, whom the jury later learned was Los Angeles County Sheriff's Deputy Jim Devoe, responded to the house. Deputy Devoe spoke to the members of the family and left without making an arrest.
At some point, Cameryn's boyfriend, Rashaan Cole, and Miah's boyfriend, Joseph Sassier, came to the house. They arrived angry. At R.C.'s suggestion, everyone but defendant went to the living room inside the house. R.C. then heard defendant mumbling, but did not hear what he said. Nor did R.C. hear the sound of metal against metal. R.C. eventually left the house and directed her daughters to follow her outside. She left the house because defendant was drunk and not because she was afraid of him. R.C. did not hear or see defendant do anything.
R.C. recalled having to come to court in connection with an incident between defendant, R.C., and R.C.'s sister in 2011, but the incident occurred so long ago that R.C. could not recall the details. R.C. did recall her sister yelling and cursing at defendant and throwing a bottle at him. She did not see defendant strike her sister. R.C. also recalled an incident in 2008 between defendant and R.C. but she could not recall the details. She remembered testifying at a trial in connection with the 2008 incident.
b. Jailhouse calls
The prosecutor played recordings of jailhouse calls between defendant and R.C. and between defendant and Cameryn. R.C. identified the voices on the calls. In one call, defendant told R.C. that he believed that Cole "pepper[-]sprayed [him] when [he] couldn't see them. The rest jumped [him] with bats." R.C. disagreed with defendant's description of events and told him that the reason he was pepper-sprayed was because he "came out with that stuff." R.C. added, "After the cops left, [o]k, I said, '[L]et's just all go inside.' We came inside. All you do is you're coming down the hallway with that stuff, you know what I'm saying[?] And, and, and, that's when I told the girls, 'Let's go.' And that's when the boys came out. Ok? Because of what you had. So it was—they were trying to protect us."
In another telephone call, Miah spoke to defendant. She recounted that defendant had slapped her in the face. She also stated, "And then everyone walks into the house, and you say 'Any nigga in my house' like that's basically what happened. You said some stuff. Then you came through the hallway with your damn bat and your machete and you start trying to swing on people."
The prosecution also played three additional telephone calls, which form the basis for one of defendant's arguments on appeal. In the first call, R.C. told defendant: "'I keep telling you over and over again, but you don't seem to understand. So I can't make you think any sense, any different. I'm going to take a pencil and paper in there when I go so anything that I have to say, I can just write it out where you can see it. Because I'm not about to say anything—you know what I'm saying?[']" Defendant responded, "Even on this phone, right now, cause they know exactly who is talking." In the second call, R.C. told defendant: "The district attorney talked to Cameryn and Cole today. Ok? I tried to get them not to go, but they didn't listen to me, ok?" In the third call, R.C. stated to defendant: "The reason why I don't have no money is you know what I did. You know what I'm saying? [¶] . . . [¶] I'm just letting you know, like, it cost me at least 1, 2, 3, almost $400 to do what I had to do with you know what. [¶] . . . [¶] Yeah. Just to do what I had to do, that cost me a lot of money."
It is unclear from the record when the three additional telephone calls were made.
c. Cross-examination
On cross-examination, R.C. stated that she was on medications on the night at issue, which affected her memory. She repeated that she did not see what happened and explained that her statement to defendant that he was at fault was based only on what other people had told her.
On further cross-examination, R.C. testified that she saw defendant after the police arrived and placed him in a patrol car. She observed that his head was bleeding, he had been beaten up, and his eyes were red and inflamed. R.C. denied trying to avoid coming to court.
2. Miah
Miah testified that on December 23, 2017, defendant had been drinking and hit her in the face. Miah did not see defendant with any weapons that night and has never seen a machete inside the house. Further, she did not hear defendant use the "'N word'" on the night of the incident.
3. Cameryn
Cameryn testified that she saw defendant punch Miah in the face. Cameryn called 911 after seeing the punch. She also recalled walking out of the house quickly with her mother, but did not hear any noise in the house or defendant make a statement. She called 911 after walking out of the house, but claimed she did so because she did not know where her sister or mother were at the time the call was made. When the prosecutor played the 911 call for her, she identified herself as the caller.
In the recording of the 911 call, Cameryn stated multiple times that defendant had a "machete and a bat." Cameryn also stated that "he tried to come after us but my sister's boyfriend was here and he like kind of like pushed it out [of] the way you know cause he was trying to hit us with it." She continued, "he was threatening my, he was threatening us he said we were all about to go down or something like that and he just came running out with like trying to get everybody that was in the house." Despite hearing the 911 call, Cameryn denied that anything happened and claimed she could not remember the events to which she referred on the call.
4. Devoe
Deputy Devoe testified about the two times he responded to defendant and R.C.'s house. The first time he went to the house, Miah told him that defendant had punched her. Devoe left the house and received another call approximately 30 minutes later.
When Devoe returned to the house, he interviewed Cameryn, who told Devoe that defendant had swung a machete and a baseball bat at the family and that Cameryn's boyfriend was holding defendant down in the house. Cameryn also told Devoe that while she, Miah, R.C., Cole, and Sassier were in the living room, they heard: the garage door opening, two metal objects hitting each other, and a voice saying, "'I'm gonna end any niggas in my house.'" Cameryn saw defendant walk through the hallway towards the living room. He was holding a baseball bat and a machete above his head, as if ready to swing. As defendant entered the living room, Cole and Sassier defended the rest of the family members from defendant. Cameryn's boyfriend removed the items from defendant's hands. Cameryn then took the items, placed them on the front yard, and called 911.
Devoe also interviewed Miah. She provided a similar description of events as that provided by Cameryn.
Devoe interviewed R.C., who stated that while she was in the house, she heard the sound of two metal objects hitting one another and then heard defendant say, "'I'm gonna end any niggas in my house,'" which caused R.C. to run out of the house before she saw what defendant was holding.
5. Cole's prior testimony
After a hearing outside the presence of the jury, which we will describe further below, Cole's preliminary hearing testimony was read to the jury. Cole testified that while he, Miah, Cameryn, R.C., and Sassier were inside the house, he heard the sound of colliding metal coming from the garage. Cole then saw defendant approaching with a machete in his right hand and a baseball bat in his left hand; both were raised overhead. Sassier moved Miah, who had been standing in front of Sassier, out of the way and placed defendant in a chokehold. Cole then pepper-sprayed defendant. Cole and Sassier were able to subdue defendant before he could swing the weapons. Cole suffered a minor cut to his hand.
6. Prior incidents between defendant and R.C.
Detective Larry Pico of the Los Angeles County Sheriff's Department testified about responding to defendant and R.C.'s home in 2008. R.C. told Detective Pico that defendant hit her in the shin and punched her in the mouth after he came home drunk. R.C. also told Pico that R.C.'s adult son ran over to help R.C., that defendant hit the son with a bat, and that the son took the bat away from defendant. Pico observed that R.C. had a swollen upper lip and a bruised shin. Pico was not sure whether the trial ended in a misdemeanor conviction.
Los Angeles County Sheriff's Sergeant George Zamora testified about interviewing R.C. and defendant in 2011. R.C told Zamora that R.C.'s sister intervened in an argument between R.C. and defendant, during which R.C. tried to drive away from defendant and defendant followed her in his car. During the dispute, defendant punched R.C.'s sister in the face and threw a glass bottle at her, hitting her in the head. Zamora also interviewed defendant, who admitted to throwing a bottle at the sister and to chasing R.C.
III. DISCUSSION
A. R.C.'s Prior Misconduct
Defendant contends that the judgment must be reversed because the trial court erred in excluding evidence of R.C.'s prior misconduct, which the prosecution had failed to timely produce, resulting in a violation of defendant's due process rights under Brady, supra, 373 U.S. 83.
1. Background
Before trial began, defense counsel requested that the prosecution produce the criminal records of all witnesses. The prosecution produced no records. After R.C. testified, defense counsel learned that in 1997, R.C. had been charged with violating section 243.6, battery against a school employee, and section 415, disturbing the peace. Both charges stemmed from an accusation that R.C. and her sister had pushed and threatened a school principal (1997 misconduct). R.C. plead guilty to violating section 415.
During trial, and after R.C. testified, defendant filed a motion to dismiss the charges for the prosecution's violation of Brady. Defendant contended that he had been prejudiced by the prosecution's failure to earlier disclose R.C.'s 1997 misconduct. The trial court tentatively ruled that the underlying conduct of battery against a school official was a crime of moral turpitude and the defense, therefore, would be permitted to impeach R.C. about her prior misconduct. When, however, the prosecution argued that battery on a school employee was not a crime of moral turpitude, the court reconsidered its tentative ruling and decided to exclude evidence of R.C.'s 1997 misconduct. It also concluded that there was "no Brady error because I am excluding it at this point. Even if [the defense] were allowed to do research or investigation, I would not have allowed any potential witnesses to testify on that matter."
2. Analysis
"In Brady, the United States Supreme Court held 'that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.' [Citation.] The high court has since held that the duty to disclose such evidence exists even though there has been no request by the accused [citation], that the duty encompasses impeachment evidence as well as exculpatory evidence [citation], and that the duty extends even to evidence known only to police investigators and not to the prosecutor [citation]. Such evidence is material '"if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different."' [Citation]." (People v. Salazar (2005) 35 Cal.4th 1031, 1042; People v. Superior Court (Johnson) (2015) 61 Cal.4th 696, 709.)
"A 'reasonable probability' is one sufficient to 'undermine[ ] confidence in the outcome.' (United States v. Bagley[ (1985)] 473 U.S. [667,] 678 . . . .)" (People v. Ochoa (1998) 19 Cal.4th 353, 473.) It is the defendant's burden to show a reasonable probability—not merely a reasonable possibility—of a different result. (Strickler v. Greene (1999) 527 U.S. 263, 291; People v. Hoyos (2007) 41 Cal.4th 872, 922 ["'The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish "materiality" in the constitutional sense.'"], overruled on other grounds in People v. Black (2014) 58 Cal.4th 912, 919-920 and People v. McKinnon (2011) 52 Cal.4th 610, 637-643.)
Defendant argues that we must vacate his conviction because he was prejudiced by his inability to impeach R.C. with the 1997 misconduct. We disagree. Even if we assume for purposes of this discussion that battery on a school official is a crime of moral turpitude (see People v. Wheeler (1992) 4 Cal.4th 284, 297, fn. 7 [conviction not necessary for admission of acts of moral turpitude to impeach]), the prosecution's failure to earlier disclose the 1997 misconduct was not material because R.C.'s testimony was favorable to defendant and there was little need for defendant to impeach her. R.C. denied hearing metal hitting metal or defendant threatening anyone. She also denied seeing defendant strike Miah. She claimed not to recall the details of the 2008 incident and denied seeing defendant strike her sister during the 2011 incident. Nor was defendant prejudiced by his inability to impeach R.C.'s earlier statement to Devoe that she heard the sound of metal on metal and defendant say, "I'm gonna end any niggas in my house." R.C.'s statement about hearing metal on metal was cumulative of Cole's testimony and Miah and Cameryn's statements to Devoe. Further, to the extent R.C.'s hearing of defendant's statement was relevant to the criminal threats charge, defendant was not prejudiced by such evidence as the jury acquitted him of that count. Defendant has thus failed to demonstrate a reasonable probability that the result of the proceeding would have been different had he been able to impeach R.C. about the 1997 misconduct. We find no Brady violation. (See Kyles v. Whitley (1995) 514 U.S. 419, 433-434.) B. Admission of Cole's Preliminary Hearing Testimony
Defendant next contends that his constitutional right to confrontation was violated when the trial court admitted Cole's preliminary hearing testimony.
1. Background
On January 11, 2018, Cole testified at a preliminary hearing in this matter. On August 6, 2018, the prosecution moved to admit Cole's preliminary hearing testimony on the grounds that he was unavailable under Evidence Code section 1291. Defendant objected, arguing the prosecution had failed to exercise reasonable diligence to obtain Cole's appearance at trial.
At a hearing conducted outside the presence of the jury on August 6, 2018, Javier Beltran, a senior investigator for the District Attorney's Office, testified that he had been trying to locate Cole since June 6, 2018. Beltran had gone to Cole's last known address in Lancaster seven times and had spoken with the people at the residence, none of whom would provide their names to Beltran. Beltran left his business card at the residence on each occasion. During a visit to the residence on June 11, 2018, Beltran left a subpoena with a man who agreed to deliver the subpoena to Cole. During another visit on July 31, 2018, the man told Beltran to check Antelope Valley College.
Beltran went to the college and spoke with an officer at "Sheriff Security." The officer provided Beltran with the same address and telephone number for Cole that Beltran already had. Beltran called Cole's telephone number and left two messages, but Cole did not return his calls.
Beltran also checked for information about Cole on all the law enforcement databases to which he had access. The only address that he found for Cole was the residence that Beltran had already visited. Beltran found no place of employment for Cole.
In order to locate Cole, Beltran asked Cameryn if he could ask her a few questions. Cameryn told Beltran that she did not want to speak to him. Beltran also asked Miah if he could ask her some questions and Miah responded that she did not want to answer. Beltran asked R.C. where he could find Cole, to which R.C. responded, "'I'm not telling you anything.'"
Beltran tried to go on social media sites to contact Cole, but did not find anyone who was connected with him. Beltran did not try to obtain Cole's e-mail address.
The trial court found that even assuming Cole was uncooperative, the District Attorney exercised due diligence to locate him. The court then permitted the prosecution to read Cole's preliminary hearing testimony to the jury.
2. Analysis
"'A defendant has a constitutional right to confront witnesses, but this right is not absolute. If a witness is unavailable at trial and has testified at a previous judicial proceeding against the same defendant and was subject to cross-examination by that defendant, the previous testimony may be admitted at trial. [Citations.] The constitutional right to confront witnesses mandates that, before a witness can be found unavailable, the prosecution must "have made a good-faith effort to obtain his presence at trial."' [Citations.] California law and federal constitutional requirements are the same in this regard. [Citation.] Moreover, for the prior testimony to be admissible, the defendant must have had the opportunity to cross-examine the witness at that hearing with an interest and motive similar to that which defendant has at the hearing at which the testimony is admitted. [Citations.] 'The proponent of the evidence has the burden of showing by competent evidence that the witness is unavailable.'" (People v. Valencia (2008) 43 Cal.4th 268, 291-292; see Evid. Code, § 1291, subd. (a)(2).)
"'Under [Evidence Code] section 240, subdivision (a)(5) . . . , a witness is unavailable when he or she is '[a]bsent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court's process.' (Italics added.) The term '[r]easonable diligence, often called "due diligence" in case law, "'connotes persevering application, untiring efforts in good earnest, efforts of a substantial character.'"' [Citation.] Considerations relevant to the due diligence inquiry 'include the timeliness of the search, the importance of the proffered testimony, and whether leads of the witness's possible location were competently explored.'" (People v. Herrera (2010) 49 Cal.4th 613, 622.) "We review the trial court's resolution of disputed factual issues under the deferential substantial evidence standard [citation], and independently review whether the facts demonstrate prosecutorial good faith and due diligence [citation]." (Id. at p. 623.)
Defendant contends the prosecution began its search for Cole unreasonably late. According to defendant, the prosecution should have known that locating Cole would require more time because the original case was purportedly dismissed due to a lack of witnesses. Substantial evidence supports the trial court's contrary finding. Beltran's search for Cole began on June 6, 2018, and trial did not commence until July 26, 2018. Under the circumstances of this case, the prosecution did not unreasonably delay in beginning its search for Cole. (See People v. Saucedo (1995) 33 Cal.App.4th 1230, 1237-1239, disapproved in part on other grounds by People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3 [reasonable diligence finding upheld when witness search began on same date as trial]; People v. Benjamin (1970) 3 Cal.App.3d 687, 697-698, disapproved in part on other grounds by People v. Cromer, supra, 24 Cal.4th at p. 901, fn. 3 [reasonable diligence finding upheld when witness search began four days before trial].)
After Cole testified at the preliminary hearing, the prosecution dismissed the case but then refiled it. In arguing that Cole's testimony should not be introduced at trial, defense counsel stated that the case had been dismissed because witnesses could not be located.
Defendant also contends that Beltran did not exercise reasonable efforts to procure Cole's attendance at trial. Defendant asserts Beltran should have: acquired Cole's e-mail address, asked law enforcement to issue bulletins for Cole, and followed Cameryn. We find Beltran's efforts were reasonable. (People v. Cromer, supra, 24 Cal.4th at p. 904.) Beltran visited Cole's last known residence seven times; delivered a subpoena to that address; visited the college that Cole attended to obtain possible leads; left voice messages on Cole's telephone number; tried to interview Cameryn, Miah, and R.C. about Cole; and conducted a criminal database search. Many cases have affirmed a finding of due diligence based on similar efforts. (See, e.g., People v. Lopez (1998) 64 Cal.App.4th 1122, 1124, 1128 [prosecution subpoenaed witness but did not know she would not appear until trial began; investigator went to residence of grandfather of witness, learned she had gone to Las Vegas, but was unable to verify address before hearing on unavailability]; People v. Wise (1994) 25 Cal.App.4th 339, 344 [prosecution attempted three times to serve witness at one address, tried two other addresses, and contacted the post office, local jail, hospital, and coroner].) We find the court did not err in concluding the prosecution exercised reasonable diligence to procure Cole's attendance at trial. C. Admission of Jail Calls and Consciousness of Guilt Instructions
Defendant asserts that the trial court erred by admitting the three jailhouse calls between R.C. and defendant described above, arguing the evidence was more unduly prejudicial than probative. Specifically, defendant contends the telephone calls were not sufficiently probative of defendant's purported attempt to suppress or fabricate evidence. In a related argument, defendant contends that there was insufficient evidence that defendant attempted to suppress or fabricate evidence to support the court's delivery of jury instructions on consciousness of guilt. We first address the admissibility of the telephone calls.
1. Admissibility
"The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) "'We have described the "prejudice" referred to in Evidence Code section 352 as characterizing evidence that uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues.'" (People v. Thomas (2012) 53 Cal.4th 771, 807.) "'A trial court's exercise of discretion under [Evidence Code] section 352 will be upheld on appeal unless the court abused its discretion, that is, unless it exercised its discretion in an arbitrary, capricious, or patently absurd manner.'" (People v. Johnson (2019) 8 Cal.5th 475, 521.)
Defendant contends that because the three telephone calls do not demonstrate attempts by defendant to suppress or fabricate evidence, it was unduly prejudicial to admit the calls into evidence. We disagree. First, R.C.'s statements during the telephone calls were admissible to demonstrate her bias. (Evid. Code, § 780, subd. (f).) As we discussed above, R.C.'s trial testimony was favorable to defendant: she claimed not to have seen or heard defendant engage in any of the charged conduct. The prosecution was entitled to demonstrate through the three telephone calls that R.C.'s trial testimony was not credible because she wished to avoid implicating defendant at trial. In the first call, R.C. told defendant that, at trial, "'I'm not about to say anything—you know what I'm saying?'" During the second call, R.C. admitted to telling Cameryn and Cole not to meet with the prosecutor. And during the third call, R.C. stated that she had to spend $400 "to do what I had to do . . . ." When considered together with another recorded call in which R.C. stated that she was in South Carolina before the trial date, the jury was entitled to infer that "what [she] had to do" was leave California for South Carolina, and thereby avoid testifying against defendant.
In a March 22, 2018, call with defendant, R.C. said: "I'm in South Carolina. Are they gonna come all the way to South Carolina to come get me? If that's the case, they'll pay for my plane ticket to get back. So it is what it is. So if they do get me there's nothing that I'm gonna say anyways." R.C. also stated she was in South Carolina because her grandmother had passed away.
In addition to being probative of R.C.'s credibility, the calls also suggested that defendant had dissuaded R.C. from testifying and had implicitly encouraged her to dissuade others from testifying against him. During a March 22, 2018, telephone call, defendant, while discussing the April 2018 preliminary hearing, stated, "[I]f nobody shows up then it just, it goes away right then." R.C.'s statement, "[T]here's nothing that I'm gonna say anyways," could reasonably be inferred, in context, as confirmation that R.C. would not incriminate defendant at trial. The jury was also entitled to infer from R.C.'s statement that she had discouraged Cameryn and Cole from speaking to the prosecutor as an assurance that she had tried to discourage others from incriminating defendant at trial.
The probative value of the telephone calls was not outweighed by any potential undue prejudice to defendant. "'Prejudice for purposes of Evidence Code section 352 means evidence that tends to evoke an emotional bias against the defendant with very little effect on issues, not evidence that is probative of a defendant's guilt.'" (People v. Valdez (2012) 55 Cal.4th 82, 133.) Here, the telephone calls were probative of R.C.'s bias; defendant's efforts to dissuade R.C. from appearing at trial; and R.C.'s efforts to discourage other witnesses from incriminating defendant at trial, outweighing any potential undue prejudice. Thus, the trial court did not abuse its discretion in admitting the three calls.
2. Consciousness of Guilt Instructions
In a related argument, defendant contends the trial court erred by instructing the jury on consciousness of guilt with CALJIC Nos. 2.04, 2.05, and 2.06 because the jailhouse calls did not support an inference that he attempted to fabricate or suppress evidence. "'"'It is an elementary principle of law that before a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference.'"'" (People v. Gomez (2018) 6 Cal.5th 243, 287-288.) "'[T]here need only be some evidence in the record that, if believed by the jury, would sufficiently support the suggested inference. [Citations.]'" (People v. Alexander (2010) 49 Cal.4th 846, 921.) "'Whether or not any given set of facts may constitute suppression or attempted suppression of evidence from which a trier of fact can infer a consciousness of guilt on the part of a defendant is a question of law.'" (People v. Kerley (2018) 23 Cal.App.5th 513, 565.) As we discussed above, there was sufficient evidence in the record for the jury to infer that defendant had attempted to suppress evidence by dissuading R.C. from testifying at trial and that R.C., in turn, had dissuaded others from testifying. The court did not err by instructing the jury on consciousness of guilt with CALJIC Nos. 2.04, 2.05, and 2.06. D. Failing to Instruct that Evidence of Other Crimes Should Not be Considered for Assault Charges
The trial court instructed the jury with CALJIC No. 2.04 as follows: "If you find that a defendant attempted to or did persuade a witness to testify falsely or attempted to or did fabricate evidence to be produced at the trial, that conduct may be considered by you as a circumstance tending to show a consciousness of guilt. However, that conduct is not sufficient by itself to prove guilt and its weight and significance, if any, are for you to decide."
The court also delivered CALJIC No. 2.05: "If you find that an effort to procure false or fabricated evidence was made by another person for the defendant's benefit, you may not consider that effort as tending to show the defendant's consciousness of guilt unless you also find that the defendant authorized that effort. If you find the defendant authorized the effort, that conduct is not sufficient by itself to prove guilt and its weight and significance, if any, are for you to decide."
Finally, the court delivered CALJIC No. 2.06 as follows: "If you find that a defendant attempted to suppress evidence against himself in any manner such as by an offer to compensate a witness[,] by destroying or by concealing evidence, this attempt may be considered by you as a circumstance tending to show a consciousness of guilt. However, this conduct is not sufficient by itself to prove guilt and its weight and significance, if any, are for you to decide."
Defendant contends the trial court erred by failing to instruct the jury that evidence of the prior domestic violence incidents between defendant and R.C. could be considered only for the criminal threats count and not for the assault counts.
1. Background
At trial, defense counsel objected to the court delivering CALJIC No. 2.50. The trial court overruled the objection and concluded that the instruction was appropriate for the "very limited purpose of showing a necessary element" of the criminal threats count, namely, whether R.C. was in sustained fear. The court instructed the jury as follows: "Evidence has been introduced for the purpose of showing that the defendant committed crimes other than that for which he is on trial. [¶] Except as you will otherwise be instructed, this evidence, if believed by you, may be considered for the limited purpose of determining if it tends to show: [¶] The existence of a necessary element of the crime charged. [¶] For the limited purpose for which you may consider such evidence you must weigh it in the same manner as you do all other evidence in this case." (Italics added.)
The elements of the crime of criminal threats are: "'(1) that the defendant "willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person," (2) that the defendant made the threat "with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out," (3) that the threat—which may be "made verbally, in writing, or by means of an electronic communication device"—was "on its face and under the circumstances in which it [was] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat," (4) that the threat actually caused the person threatened "to be in sustained fear for his or her own safety or for his or her immediate family's safety," and (5) that the threatened person's fear was "reasonabl[e]" under the circumstances.' (People v. Toledo (2001) 26 Cal.4th 221, 227-228 . . . .)" (People v. Roles (2020) 44 Cal.App.5th 935, 941-942.) --------
Over defense counsel's objection, the trial court also read CALJIC No. 2.50.02, evidence of other domestic violence, to the jury. The jury was instructed that "[e]vidence of uncharged crimes involving domestic violence has been received. If you find by a preponderance of the evidence that the defendant committed any such uncharged offense involving domestic violence, you may, but are not required to, infer that the defendant had a disposition to commit other offenses involving domestic violence. If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crime or crimes of which he is accused."
2. Analysis
The Attorney General argues defendant forfeited his argument because he did not seek a limiting instruction below. We agree. "In the absence of a request, a trial court generally has no sua sponte duty to give a limiting instruction. Under [Evidence Code] section 355, 'when evidence is admissible . . . for one purpose and is inadmissible . . . for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly.' (Italics added.) Under this provision, a court has no duty to give a sua sponte instruction limiting the purpose for which evidence may be considered." (People v. Jennings (2000) 81 Cal.App.4th 1301, 1316; accord, People v. Mateo (2016) 243 Cal.App.4th 1063, 1071.) "Because defendant failed to request a limiting instruction below, he has forfeited his claim that it was error for the court not to so instruct." (People v. Clark (2011) 52 Cal.4th 856, 942.) Further, even if defendant had not forfeited the argument on appeal, we would reject it on its merits. (See, e.g., People v. Jones (2013) 57 Cal.4th 899, 969 [rejecting defendant's argument that the court's delivery of CALJIC No. 2.50 was "flawed for failing to guide the jury on how to use evidence of the other charged crimes"].) E. Sufficiency of Evidence to Support Counts 1, 3, and 4
Defendant argues there was insufficient evidence to support his convictions for assault with a deadly weapon as to Miah, Cameryn, and Cole. "When a defendant challenges the sufficiency of the evidence, '"[t]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." [Citation.]' [Citations.] 'Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence. [Citation.]' [Citation.] We '"'presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.'" [Citation.]'" (People v. Clark, supra, 52 Cal.4th at pp. 942-943; accord, People v. Brooks (2017) 3 Cal.5th 1, 57.)
"Assault is 'an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.' (§ 240 . . . .)" (People v. Williams (2001) 26 Cal.4th 779, 785, italics removed.) "[A]ssault requires actual knowledge of those facts sufficient to establish that the offending act by its nature would probably and directly result in physical force being applied to another." (Id. at p. 784; People v. Murray (2008) 167 Cal.App.4th 1133, 1139.) Defendant disputes whether he had actual knowledge of facts that would lead a reasonable person to realize that his acts would apply physical force to another person, in this case, Cameryn, Miah, and Cole. Defendant asserts that no one other than Sassier saw defendant enter the hallway from the garage. Defendant further contends that the layout of the hallway was an L-shape and that defendant therefore could not see Miah, Cameryn, and Cole in the living room.
Substantial evidence supports the verdict. In her 911 call, Cameryn stated that "he tried to come after us . . . he was trying to hit us with it." (Italics added.) She added that he was "trying to get everybody that was in the house." Cameryn told Devoe that she saw defendant enter the living room. Miah provided a similar description of events to Devoe. Further, Cole testified that he saw defendant approaching Sassier and Miah with the raised machete and bat and that Sassier physically pushed Miah, who stood in front of him and therefore presumably closer to defendant, out of the way. Based on the evidence that all four victims were together in the living room and all saw defendant enter it, the jury could reasonably infer that defendant also saw all four victims. There was sufficient evidence to support the verdicts. F. Prosecutorial Misconduct
Finally, defendant contends that the prosecution committed reversible error during closing argument by disparaging defense counsel.
1. Background
During opening statements, defense stated: "You will also hear evidence of crimes that happened a decade ago. Counsel referred to them. He was talking about incidents with [R.C.] and her son and [R.C.] and her sister. Now, that happened about a decade ago. Nothing with Miah or Cameryn involved in those cases. There's never been any cases involving Cameryn or Miah. In those cases a jury, just as yourselves, listened to the facts at that time and found that his conduct was misdemeanor conduct and dismissed a lot of the allegations in those cases, not believing what the police and the People had put forward." The prosecutor objected that this was a misstatement of the evidence; and the trial court overruled the objection.
During the summation portion of closing argument, the first prosecutor stated: "[T]he defense said in opening statement that the priors are old and that they were misdemeanor convictions, which means that the juries in those cases didn't believe the evidence. That's false. There were convictions in those cases."
Defense counsel objected, stating, "Misstates the evidence as presented." The trial court stated: "It's overruled. [¶] Folks, what the attorneys say are not evidence. That is for you to decide." The prosecutor continued: "First of all, the fact that there were convictions in the prior cases show that the juries did believe beyond a reasonable doubt that the defendant had committed a crime. [¶] There is absolutely no evidence of the reasoning behind those convictions. We didn't hear from any of the jurors. That statement is false." Defendant did not object to this statement.
During the rebuttal portion of closing argument, the second prosecutor stated: "[Cameryn] couldn't go down the jump and frame theory, because she had already given a different cover story [at the preliminary hearing]. And, of course, my theory is she couldn't testify about the jump and frame at the preliminary hearing, because the [defendant's] lawyer at that time . . . hadn't come up with it yet. This lawyer came up with it. [Prior defense counsel] didn't ask any questions about jump and frame because they hadn't come up with that theory yet." Defendant did not object.
2. Analysis
A claim of prosecutorial misconduct is governed by the abuse of discretion standard of review. (People v. Alvarez (1996) 14 Cal.4th 155, 213.) "'"A prosecutor commits misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel." [Citations.] "In evaluating a claim of such misconduct, we determine whether the prosecutor's comments were a fair response to defense counsel's remarks" [citation], and whether there is a reasonable likelihood the jury construed the remarks in an objectionable fashion [citation].' [Citation.] 'To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.'" (People v. Seumanu (2015) 61 Cal.4th 1293, 1336-1337.)
"[T]o preserve a claim of prosecutorial misconduct for appeal, '"'a criminal defendant must make a timely and specific objection and ask the trial court to admonish the jury to disregard the impropriety.'" [Citation.] The lack of a timely objection and request for admonition will be excused only if either would have been futile or if an admonition would not have cured the harm.'" (People v. Hoyt (2020) 8 Cal.5th 892, 942-943.) As defendant concedes, he did not object to the second prosecutor's statement during rebuttal argument, but contends that his failure to object was excusable because an objection would have been futile as the trial court had previously overruled his objection during the first prosecutor's closing argument. Defendant's failure to object to the second prosecutor's statement forfeits defendant's argument on appeal. (Ibid.) The futility exception to the forfeiture rule does not save this claim. That exception applies in "unusual" or "extreme" circumstances like those in People v. Hill (1998) 17 Cal.4th 800, where defense counsel's failure to object was excused by the prosecutor's "continual misconduct, coupled with the trial court's failure to rein in her excesses, [which] created a trial atmosphere so poisonous" that further objections "would have been futile and counterproductive" to the defendant. (Id. at p. 821; see also id. at p. 838.) No such "unusual" or "extreme" circumstances were present here.
As to the first prosecutor's statement, to which defendant did object, we conclude the statement was a fair response to defense counsel's opening statement which suggested that a jury did not believe the evidence presented by the police and the prosecution against defendant. The prosecutor's statement clarified that defendant was convicted of a misdemeanor and there was no evidence in the record of what the jury did or did not believe regarding the prior convictions. "'Prosecutors may attack the defense case and argument. "Doing so is proper and is, indeed, the essence of advocacy."'" (People v. Krebs (2019) 8 Cal.5th 265, 342.) In any event, any error in the prosecutor's argument was cured by the trial court's instruction to the jury that argument is not evidence. (People v. Cash (2002) 28 Cal.4th 703, 734.)
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J. We concur:
RUBIN, P. J.
BAKER, J.