Opinion
F048726
4-24-2007
THE PEOPLE, Plaintiff and Respondent, v. MIKHIEL JAKOB LEINWEBER, Defendant and Appellant.
Susan D. Shors, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
A jury convicted appellant Mikhiel Jakob Leinweber of first degree murder (Pen. Code, § 187). The jury also found true the allegation that Leinweber personally discharged a firearm causing death (§ 12022.53, subd. (d)). In a bifurcated proceeding, the trial court found true that Leinweber had two prior serious felony convictions pursuant to section 667, subdivision (a), two prior felony convictions pursuant to section 667, subdivision (d), and one prior prison term pursuant to section 667.5, subdivision (b). The trial court sentenced Leinweber to 111 years to life in state prison as follows: 25 years to life, tripled to 75 years because of the prior strike convictions; a consecutive 25-year term for the section 12022.53, subdivision (d) enhancement; two consecutive five-year terms for two section 667, subdivision (a) prior convictions; and a consecutive year for a section 667.5, subdivision (b) prior prison term.
All further statutory references are to the Penal Code unless otherwise stated.
Leinweber contends the prosecutor committed numerous instances of misconduct throughout the trial, and the trial court erred in refusing to give a defense-drafted instruction and in imposing a one-year enhancement. We agree only with Leinwebers last contention, and in all other respects, affirm.
FACTUAL SUMMARY
Prosecution
On the afternoon of March 26, 2004, in Modesto, Levi Humphres, Michael Vickerman, and Leinweber were in Leinwebers car with 17-year-old Melissa G. and 15-year-old Heather Glover. As they drove, Vickerman saw that Leinweber had a gun with him. The group ended up in front of Brandy Browns house.
Brown, who had five young children, was outside when Leinweber and the others pulled up. Leinweber and Brown went inside and the two played dice. The people in the car smoked methamphetamine. When Leinweber sent Brown outside to get his wallet from the car, she told the group that they either had to come inside the house or leave. Glover said she wanted to go home. Vickerman took the car to drive Glover home, and the others went inside Browns house.
Vickerman drove Glover to where he thought Glover lived, but no one was home. While they were in the car, Leinweber called the cell phone he had left in the car and said he wanted his car back. Vickerman then drove Glover to her fathers house so that she could pick up some clothing before returning to Browns.
Brown testified that when Leinweber realized, about an hour or so after he arrived, that Vickerman had taken his car, he became "aggravated." He called his cell phone, which he had left in the car, but Vickerman hung up on him and then turned off the cell phone.
While in Browns house, Leinweber was carrying a gun, which one of Browns children asked to see. Brown overheard Leinweber say to Humphres, "Im gonna kill him."
When Brown heard Leinwebers car finally pull up, she was afraid something was going to happen and went outside to gather her children. Brown went back inside the house, but could see Leinweber yelling through the passenger side of the window, past Glover, and pointing at Vickerman in the drivers seat.
After Vickerman pulled up to the curb and turned off the car, Leinweber yelled and told the two of them to get out of the car. Leinweber was holding a gun in his right hand. Vickerman saw Leinweber transfer the gun into his left hand and then open the car door with his right hand. Leinweber said, "Get the fuck out of the car," and grabbed Glover, as if to pull her out. Vickerman heard a shot and saw the gun hit the ground. Glover turned toward Vickerman and laid her head down. Vickerman got out of the car and ran away, and, as he did, he saw Leinweber pick up the gun and chase him. As Leinweber was bent over, trying to run, he dropped the gun and said, "Mike, help me, dawg, help me."
Humphres described Leinweber as "pretty mad at [Vickerman]" and thought Leinweber and Vickerman would get into a physical fight. Humphres testified that Leinweber walked up to the car with the gun in his right hand and said, in a loud voice, "Get out of my car." Leinweber shifted the gun into his left hand and opened the door to the car. Humphres turned back toward the house and heard a shot. He did not see the shooting but then saw Glovers body. Humphres and Melissa G. left the scene together.
Russell Shaw, who had been at Browns house, was pulling away in his car just as Vickerman pulled up. Shaw heard Leinweber yell, "Get out of the car," and Vickerman say, "Dont, Bro, dont." Shaw heard a shot, and, in his rearview mirror, he saw Leinweber fumbling, as if trying to pick up something. Shaw testified that Leinweber was known to carry a .22-caliber pistol with a "wood handle."
Melissa G. was standing behind Leinweber as he tried to pull Glover out of the car. She heard a gunshot, after which Leinweber looked stunned, dropped the gun, and fumbled for it. Melissa G. thought that Leinweber had not meant to shoot Glover because his head went backwards as the gun went off and he had a surprised look on his face. Melissa G. thought both Leinweber and Vickerman were tugging on Glover, while Glover was trying to get out of the car. Melissa G. repeated this version of the event to two individuals one or two days after it occurred.
Brown, who was still in the house when she heard two or three shots, ran outside. She saw the cars passenger door open and a girl slumped in the seat. Browns children told her that Leinweber took off running. Browns 11-year-old son told her that Leinweber "just shot that girl." After the shooting, Brown gathered her children and left. She did not attempt to help Glover.
Browns 11-year-old son testified that Leinweber had been carrying a gun in a pouch, which the boy wanted to see. Later, when the boy was outside, he saw Leinweber holding the gun and heard two shots. The boy heard the man inside the car say "Mickey, dont shoot." The driver of the car got out and ran away, and Leinweber, holding the gun, ran after him.
Karen Keating, who knew Shaw, testified that Shaw told her shortly after the incident that Leinweber came out of the house with the gun in his hand, said "Ill teach you to take my car, bitch," walked over to the car, and fired a shot into the open door. Shaw also told her Leinweber then dropped the gun but picked it up and ran after another man who had been in the car. But Keating also testified that Shaw always maintained that the shooting could have been an accident. And Keating acknowledged that men call each other "bitch" when they are mad.
Keating, who also knew Brown, testified that Brown told her that prior to the shooting, Leinweber was highly agitated and paced with a gun in his hand "talking about when that bitch gets back here, ... he was gonna shoot her."
At sunset, a passerby noticed the car parked with both front doors open and a body inside. The police were called and Glover was found seated in the passenger seat but slumped toward the drivers side of the car. She was alive, but had a severe brain injury. A makeup kit containing syringes was found in the car, as were .22-caliber shell cartridges. Browns house was empty, but the front door was wide open and the lights were on. No gun ever was found.
Glover was examined at the hospital, where she was found to have sustained a "nonsurvival injury" because the bullet had crossed her brain stem. Methamphetamine was found in her system. Glover was declared brain dead two days later.
The medical examiner opined that, based on the soot ring around the wound, the gun had been within one inch of Glovers temple when she was shot. The .22-caliber bullet traveled from the temple through the brain into the left sinus. At the time of the autopsy, Glovers head had been shaved. The examiner indicated that he could have given a more accurate opinion of how close the gun was to Glovers head when it was fired had he seen the wound right after Glover was shot. Because there was no stippling or tattooing, which does not wash off, the examiner knew for certain that the distance of the gun was less than a foot, but that he thought it was closer to an inch.
Leinweber surrendered and was arrested in Crescent City on April 7, 2004. A week or so later, while in jail, a fellow inmate, Derik Coronado, heard Leinweber say, "Yeah, I shot her in the head" and "She wasnt nothing to me, she was some bitch." Coronado had known Leinweber for about three or four years. Coronado repeated the conversation to two deputy sheriffs.
Inmate informants Robert Lopez and Erik Austin testified that they overheard the same conversation. Some of these statements were reported by the inmates to a deputy at the jail, but the term "bitch" was not used. A deputy and another inmate, who also were present at the time the purported statements were made, claimed not to have heard them.
Greg Finley, who had been in a cell with Humphres before and during the trial, testified that Humphres discussed the upcoming case with him. Before he testified, Humphres told Finley that Leinweber transferred the gun from one hand to the other and the gun went off accidentally. Later, after he testified, he told Finley that, prior to the shooting, Leinweber was "irate" and was going to "kill [Vickerman]" for taking the car.
Lance Laranjo testified to an event that occurred at Clay Hensons house prior to the shooting. Melissa G. and Glover also were present. Melissa G. thought someone had stolen her drugs and called Leinweber. When Leinweber arrived, he was holding a gun, but it was not pointed at anyone. When Laranjo asked to see the gun, Leinweber became threatening.
Defense
Leinweber testified that he picked up Vickerman and Humphres and the three drove around trying to arrange a trade of some methamphetamine for audio speakers. While they were driving, Melissa G. called for help from Hensons house because her drugs were missing. Leinweber drove to Hensons house. It was about 4:30 or 5:00 p.m.
He entered Hensons house with a gun in his hand since he knew there was a methamphetamine lab on the premises and that a gun was kept there. Because Melissa G. told him someone had taken methamphetamine from her purse, he searched Laranjo and his girlfriend, and Humphres searched their truck, looking for the drugs. When Laranjo asked to see the gun, Leinweber refused.
Glover arrived at some point and Leinweber left in his car with her, Humphres, Vickerman, and Melissa G. He followed Henson to a motel to deliver drugs.
Eventually, Leinweber, Humphres, Vickerman, Melissa G., and Glover went to Browns house because it was a safe place to do a drug deal. While there, Leinweber played dice with Brown. He kept his gun in a holster. The others stayed in the car and did drugs. He sent Brown out to the car to get his wallet. He assumed everyone in the car had followed Brown back inside.
When Leinweber discovered that Vickerman had taken his car to drive Glover home, he called his own cell phone, which he had left in the car, and argued with Vickerman. Leinweber, who had a drug deal waiting, became irate when Vickerman failed to return with the car and when Vickerman would not answer the cell phone. While he was standing in front of Browns house waiting for the return of his car, Vickerman and Glover pulled up. Leinweber thought only Vickerman would be in the car because Vickerman had borrowed the car to take Glover home.
Leinweber pulled out his gun, thinking there would be a fight, and he thought Vickerman had a gun as well. But as he approached the passenger side of the car, he could see that Vickerman did not have a gun. Leinweber moved the gun to his left hand. When he realized that Glover was still in the car, he yelled at both of them to get out. He tried to pull Glover out of the car.
Leinweber then testified, "I came to a ... stop and I lost the grip on the gun in my ... left hand and I tried to catch it with my left hand and pop, the gun went off, and I tried to catch it after it ... went off and I just dropped it. I just dropped the gun." Leinweber stated that he was still holding Glover with his right hand when the gun went off. He saw Glover lean to the left and her eyes roll back. Vickerman then said, "No, Mickey. Oh, my God, Mickey."
Leinweber had a difficult time picking up and holding onto the gun. He fled the scene because he was scared and on parole. He claimed to have thrown the gun in some ivy and the holster onto a roof. He fled to Oregon until his mother convinced him to turn himself in. He surrendered to officers in Crescent City. He denied he made any comment about the case while in jail. He acknowledged that he knew it was a crime for him to possess a gun because he was a convicted felon.
DISCUSSION
I. The prosecutors misstatement of the law
Leinweber contends his conviction should be reversed because the prosecutor misstated the law of involuntary manslaughter during closing and rebuttal argument. Leinweber claims the prosecutor repeatedly misstated the law by informing the jury that because Leinweber was an ex-felon in possession of a firearm at the time of the shooting, he was guilty of a felony dangerous to human life and could not, therefore, be convicted of involuntary manslaughter. Leinweber also argues that, if we find the argument waived, his trial counsel was ineffective for failing to object to the misconduct and request admonitions. Leinweber also contends that the trial court erred when it refused to give a clarifying instruction to rectify these misstatements. We conclude there was no prejudicial error.
The record
On cross-examination, Leinweber acknowledged that he had been convicted of two felonies and that he knew it was a crime for him to possess a gun.
During closing argument, the prosecutor used a PowerPoint presentation and argued that the killing of Glover was neither self-defense nor an accident, but was murder, and he proceeded to explain the elements of the unlawful killing of a human being with malice aforethought. The prosecutor also explained that, if the jury found that the killing was the result of a "cold and rash impulse," the killing would be second degree murder, not first degree murder.
After discussing the issue of transferred intent, the prosecutor stated:
"[Leinweber] did a lot of ... dangerous things that day. Its up to you to determine what acts he did which bothered you more than others, but I suggested a few things. He carried a loaded pistol with him everywhere. Thats a very dangerous act. Okay? There was certainly no need to do that. In fact, hes a felon. He admitted its a felony for him to even possess a gun, so that was very dangerous."
The prosecutor then explained that the jury had four possible verdicts: "first degree, second degree, voluntary manslaughter and involuntary manslaughter." The prosecutor proceeded to explain the three possible scenarios for finding second degree murder: that Leinweber intended to kill, but lacked premeditation; that Leinweber intentionally committed a dangerous act with conscious disregard for human life; or that Leinweber intentionally fired his gun into the occupied car.
The prosecutor argued that, in order to find the shooting was an accident, the jury would need to find there was "no criminal intent" or "criminal negligence." As argued by the prosecutor:
"Its absolutely clear that [Leinweber] had all kinds of criminal intent out there .... [¶] [Leinweber] knew that he was a felon in possession, committing a felony, a status crime right there. [Leinweber] was brandishing around a gun. [Leinweber] was making threats to kill somebody. [Leinweber] admitted to you that he went over there to assault [Glover] and ... [Vickerman], to physically get them out of the car. Thats a battery. So theres all kinds of criminal intent here that would defeat an accident."
The prosecutor contrasted this situation with that of "some guy [who] could legally have a gun" which goes off accidentally.
The prosecutor then went through the elements of manslaughter, followed by the elements of involuntary manslaughter:
"Involuntary manslaughter, [defense counsel is] going to argue for involuntary manslaughter. Thats the lowest level of crime that youre instructed on here. I highlighted the requirements of this, that during the commission of the unlawful act not amounting to a felony which is dangerous to human life under the circumstances of its commission. So [defense counsel] would argue that hes brandishing a gun and that it just—it accidentally went off during the brandishing so it was an involuntary manslaughter, when, in fact, he was committing a felony just having a gun. Just having a gun, he was a felon in possession the whole day."
The prosecutor highlighted the involuntary manslaughter instruction by underlining the statement that the killing was an involuntary manslaughter if it was done during the commission of an unlawful act "not amounting to a felony." But, as argued by the prosecutor, Leinweber "was committing a felony just being there," and "[i]ts a violation of Penal Code Section 12021 for a felon to be in possession of a firearm."
Defense counsel did not object to any of the above statements by the prosecutor. Instead, in closing, defense counsel stated:
"And, yes, [Leinweber has] got prior felony convictions. And the fact that he has a prior felony, [the prosecutor] seems to think that somebody whos a felon loses all right to commit an involuntary manslaughter. Thats what he told you. Hes committing a felony by having a gun. That is not the law. If that was the law, you wouldnt receive the instruction that were going to talk about later and the judge is going to give you."
Defense counsel also stated that in order to find involuntary manslaughter, there must be an unlawful act. Defense counsel explained that an "[u]nlawful act is an act—you do something, not just the felon in possession of a gun. Thats not doing a physical act." Defense counsel told the jurors that if Leinweber was brandishing a firearm, tripped and fell and "it goes off on a reactionary trigger pull," then it was appropriate to convict Leinweber of involuntary manslaughter.
During rebuttal, the prosecutor addressed defense counsels suggestion that the shooting was an accident and that the jury find involuntary manslaughter, stating "You dont get down to invol[untary manslaughter], as I said to start with, if you go through the proper charging and you review the evidence." The prosecutor then again addressed the issue of Leinweber being a felon in possession of a firearm and stated:
"[Defense counsel] suggests that being a felon in possession is not a felony that would kick him out of the involuntary manslaughter. Thats for you to decide. I mean ... if you were asked to, you could certainly convict this man of simple assault. You can convict this man of brandishing. You could convict this man of making threats. Yeah, he did a lot of crimes that day, but what were talking about here is murder, and he was also committing a felony, as being a felon in possession, when he committed the murder, and that kicks him out of the involuntary manslaughter ...."
At this point, defense counsel objected, stating that the prosecutor had misstated the law. The trial court overruled the objection.
At the end of argument, defense counsel asked that the trial court instruct the jury "that the fact that a person is a felon in possession of a firearm does not preclude a finding—a verdict of involuntary manslaughter." The trial court instructed defense counsel to draft such an instruction "to see what it is exactly that you have in mind," and bring it to court the following day. The trial court expressed uncertainty because Leinweber had, on the stand, admitted that he was a felon in possession of a firearm, and "I think that is a correct statement of law, that a felon cant be in possession of a firearm ... but Im not sure."
The next morning, out of the presence of the jury, the trial court stated that it had received communication from both parties and that it was not going to include the additional instruction on "felon in possession" that defense counsel asked for. It then stated:
"When I saw the instructions or when the instructions were in a draft form, I did have a version that included the language about inherently dangerous felony and that was in the [CALJIC No.] 3.30 special instruction, so to speak, that I crafted. [Defense counsel] asked me to take that out and, in fact, specifically referenced [section] 246, so I did that at his request the other day. [¶] I think that [the prosecutors] reference to felon in possession goes not towards any of the murder counts but instead goes to the lawfulness of the act that supports the involuntary manslaughter that [defense counsel] had argued, [Leinweber] was acting lawfully when there was the discharge. So the felon in possession relates to that, and for purposes of the record, [the prosecutor] had asked the Court a long time ago never to even allow any instructions on involuntary manslaughter in the first place because he, on behalf of the People, took the view that involuntary manslaughter should not be allowed because it was always that [Leinweber] was acting unlawfully. So I think Ive collected a number of thoughts on that and Ill give each of you a chance to say what you want to."
Section 246 prohibits shooting at an occupied vehicle.
Defense counsel argued again that the mere status of being a felon in possession of a gun should not exclude the possibility that Leinweber could be convicted of involuntary manslaughter, citing to People v. Cunningham (2001) 25 Cal.4th 926 and People v. Satchell (1971) 6 Cal.3d 28, overruled on another ground in People v. Flood (1998) 18 Cal.4th 470, 484. The prosecutor argued that the cases cited by defense counsel
"only stand[] for the proposition that misdemeanor conduct can get you to implied malice murder.... [¶] In the case of the Felony Murder rule, the Courts have decided that certain felonies allow a finding of murder ... without the element of malice, and thats one of the theories in this case, of course, for the [section] 246. Theres a whole long litany of felonies that do not amount to a felony that is considered inherently dangerous that would allow automatic second-degree murder. None of these cases address the issue that [defense counsel] wanted this Court to address in instructions and so, therefore, he cited no law that supported his argument that was on point at all."
After argument, the trial court stated that it was going to stand by its earlier ruling.
The jury was subsequently instructed, in pertinent part, pursuant to CALJIC No. 8.45 as follows:
"Every person who unlawful[ly] kills a human being without malice aforethought and without an intent to kill and without conscious disregard for human life is guilty of the crime of involuntary manslaughter .... [¶] A killing in conscious disregard for human life occurs when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for human life. [¶] A killing is unlawful within the meaning of this instruction if it occurred: [¶] One, during the commission of an unlawful act not amounting to a felony which is dangerous to human life under the circumstances of its commission; or [¶] Number two, in the commission of an act ordinarily lawful which involves a high degree of risk of death or great bodily harm without due caution and circumspection. [¶] A violation of ... Section 417(a)(2) is an unlawful act not amounting to a felony. [¶] The commission of an unlawful act without due caution and circumspection would necessarily be an act that was dangerous to human life in its commission...."
The jury was also instructed with CALJIC No. 3.30, which states:
"In the crime of involuntary manslaughter, which is a lesser crime, there is a union of joint operation of act or conduct and criminal negligence in either of the following: [¶] A, the killing occurred during the commission of an unlawful act of brandishing a firearm, ... Section 417a, which is dangerous to human life under the circumstances of its commission. This is a general intent crime. General intent does not require an intent to violate the law. When a person intentionally does that which the law declares to be a crime, one is acting with general criminal intent, even though the person may not know that the act or conduct is unlawful; or [¶] B, the killing occurred in the commission of an act which involves a high degree of risk or great bodily harm without due caution and circumspection. This is known as criminal negligence."
The instruction requested by defense counsel, but refused by the trial court, read:
"The crime of `ex-felon in possession of a firearm is not an inherently dangerous felony. Therefore, an ex-felon in possession of a firearm may be convicted of the crime of involuntary manslaughter."
Prosecutorial misconduct
It is misconduct for the prosecutor to misstate the applicable law, and particularly to attempt to release the prosecution from its obligation to overcome reasonable doubt on all elements. (People v. Marshall (1996) 13 Cal.4th 799, 831; People v. Gonzalez (1990) 51 Cal.3d 1179, 1215.) A prosecutors conduct violates the Fourteenth Amendment to the federal 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; accord, Darden v. Wainwright (1986) 477 U.S. 168, 181.) In other words, the misconduct must be "of sufficient significance to result in the denial of the defendants right to a fair trial." (United States v. Agurs (1976) 427 U.S. 97, 108 [addressing prosecutorial duty of disclosure].) A prosecutors misconduct, "`"that does not render a criminal trial fundamentally unfair"" violates California law "`"only if it involves `"the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.""" (People v. Farnam (2002) 28 Cal.4th 107, 167.) The ultimate question is whether it is reasonably probable that a result more favorable to the defendant would have occurred had the prosecutor refrained from such misconduct. (People v. Barnett (1998) 17 Cal.4th 1044, 1133, citing People v. Watson (1956) 46 Cal.2d 818, 836.)
Here, defense counsel failed to object to the claimed instances of improper argument during closing, and objected only to the claimed instance of misconduct during rebuttal. Leinweber has therefore forfeited his claims on the purported instances of misconduct made during closing for purposes of this appeal. (People v. Frye (1998) 18 Cal.4th 894, 970.) Leinweber asserts, however, that defense counsels failure to object constituted ineffective assistance. In any event, we find no prejudicial misconduct.
Leinweber claims that the prosecutor repeatedly misstated the law of involuntary manslaughter by arguing that by being a felon in possession of a firearm, he was guilty of a felony dangerous to human life.
The People concede that the mere possession of a firearm by a felon is not an inherently dangerous felony. In the abstract, possession of a firearm by a felon does not necessarily pose a threat to human life. Section 12021, subdivision (a)(1) simply prohibits a person convicted of a felony from having in his or her possession any firearm. Entirely different penal provisions punish concealing, using, and brandishing such a weapon. (See, e.g., §§ 12025, 245, 417.) While the use of a firearm is obviously inherently dangerous to human life, the simple act of carrying the firearm by a felon is not necessarily dangerous.
This conclusion is consistent with our Supreme Courts determination that a felon who owns or possesses a concealable firearm does not commit an inherently-dangerous-to-human-life felony for purposes of the felony-murder rule. (People v. Satchell, supra, 6 Cal.3d at pp. 40-41; see also People v. Cunningham, supra, 25 Cal.4th at pp. 1008-1009 [court noted, citing Satchell, that being a convicted felon in possession of a firearm was not a felony inherently dangerous to human life].)
We next address the words of the prosecutor to determine if he misstated the law to the jury. The record shows that the prosecutor stated numerous times that Leinweber committed a felony by being in possession of the gun. This is an accurate statement. (§ 12021, subd. (a)(1).) Leinweber admitted this. But the prosecutor never stated that mere possession of the gun by Leinweber was a felony inherently dangerous to life, although his words conveyed an ambiguous message and he "hedged" close to this statement several times.
For instance, the prosecutor argued that many of Leinwebers actions on the day of the shooting were dangerous, including his carrying a loaded pistol with him everywhere. The prosecutor argued, "He admitted its a felony for him to even possess a gun, so that was very dangerous."
While arguing that Leinweber had "all kinds of criminal intent" to "defeat an accident," the prosecutor stated that Leinweber "knew that he was a felon in possession, committing a felony, a status crime right there," but he also gave other examples of Leinwebers criminal intent: he brandished a gun, he made threats to kill, he admitted he went over to the car to assault Glover and Vickerman to get them out of the car, and he committed a battery when he did so.
In discussing the elements of involuntary manslaughter, the prosecutor argued that defense counsel would claim the gun accidentally went off while Leinweber was brandishing it, when "in fact, [Leinweber] was committing a felony just having a gun. Just having a gun, he was a felon in possession the whole day." The prosecutor then underscored that in order for the killing to be an involuntary manslaughter, it had to be done during the commission of an unlawful act not amounting to a felony, but that Leinweber "was committing a felony just being there."
After defense counsel claimed that the prosecutors argument that Leinweber "loses all right to commit an involuntary manslaughter" was "not the law," the prosecutor argued that it was for "you [the jury] to decide" whether Leinwebers possession was "a felony that would kick him out of involuntary manslaughter." As summed up by the prosecutor, "he did a lot of crimes that day, but what were talking about here is murder, and he was also committing a felony, as being a felon in possession, when he committed the murder, and that kicks him out of the involuntary manslaughter ...."
Whether the prosecutor meant that Leinweber, as a felon in possession of a gun, could not, as a matter of law, be found guilty of involuntary manslaughter, or whether he was attempting to urge the jury to find that the circumstances of the shooting precluded Leinweber from being found guilty of involuntary manslaughter, is not entirely clear. For the most part, the prosecutors remarks, taken in context, urged the jury to find that Leinwebers actions on the day of the shooting showed intent and in no way could be construed as accidental. "At closing argument a party is entitled both to discuss the evidence and to comment on reasonable inferences that may be drawn therefrom." (People v. Morales, supra, 25 Cal.4th at p. 44.)
In order 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 statements in an improper or erroneous manner. (People v. Clair (1992) 2 Cal.4th 629, 663.) In conducting this inquiry, "we do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutors statements. (People v. Howard (1992) 1 Cal.4th 1132, 1192.)
Here, we do not think the prosecutors remarks caused the jury to misapply the law to Leinwebers detriment. Viewing the prosecutors comments in the context of the argument as a whole, we conclude that it is not reasonably likely that the jury construed or applied the complained-of remarks in an objectionable manner. (People v. Samayoa (1997) 15 Cal.4th 795, 841.)
The trial court instructed correctly on the various theories of first degree premeditated murder, second degree murder, voluntary manslaughter, and involuntary manslaughter. The jury also was instructed, in CALJIC No. 0.50, that any statement by an attorney inconsistent with the trial courts instructions as to the law must be disregarded. "`[W]e presume the jury treated the courts instructions as statements of law, and the prosecutors comments as words spoken by an advocate in an attempt to persuade." (People v. Seaton (2001) 26 Cal.4th 598, 646, quoting People v. Sanchez (1995) 12 Cal.4th 1, 70.) Consequently, there was no reasonable likelihood any juror would have applied the prosecutors comments erroneously. (People v. Frye, supra, 18 Cal.4th at p. 970.)
Failure to give additional instruction
Leinweber claims the trial court erred when it refused to give a defense-crafted clarifying or "pinpoint" instruction. Defense counsel requested the trial court to instruct the jury that the crime of "ex-felon in possession of a firearm" is not an inherently dangerous felony and that an ex-felon in possession of a firearm may be convicted of the crime of involuntary manslaughter. Although the requested instruction states a correct principle of law, we conclude the trial court did not err in refusing to give the instruction to the jury.
"`"It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jurys understanding of the case." [Citation.] ...." (People v. Breverman (1998) 19 Cal.4th 142, 154.) Here, the trial court gave the standard instructions on involuntary manslaughter.
We recognize that a defendant has a right on request to a pinpoint instruction on a particular defense theory, so long as it does not highlight specific evidence regarding the defense. (People v. Earp (1999) 20 Cal.4th 826, 886.) "But a trial court need not give a pinpoint instruction if it is argumentative [citation], merely duplicates other instructions [citation], or is not supported by substantial evidence [citation]." (People v. Bolden (2002) 29 Cal.4th 515, 558.) A trial court also may refuse to give an instruction if it is confusing. (People v. Gordon (1990) 50 Cal.3d 1223, 1275, disapproved on another point in People v. Edwards (1991) 54 Cal.3d 787, 835.)
In People v. Satchell, the court found prejudicial error when the trial court, while instructing on the theory of second degree murder, stated that the crime of possession of a concealable firearm by a felon was a felony inherently dangerous to human life. (People v. Satchell, supra, 6 Cal.3d at pp. 31-32.) But no such instruction was given here, and Leinweber has cited no authority requiring the giving of the requested instruction.
Assuming there was any error by the trial court in rejecting the pinpoint instruction, we will reverse the judgment only if we conclude there is a reasonable probability the error affected the verdict adversely to the defendant. (People v. Ervin (2000) 22 Cal.4th 48, 91.) The jury concluded beyond a reasonable doubt that Leinweber was guilty of first degree murder and also found that he personally and intentionally shot Glover. These findings necessarily preclude a finding of involuntary manslaughter because involuntary manslaughter requires there be no intent to harm. (See, e.g., People v. Earp, supra, 20 Cal.4th at p. 886 [by finding true two special circumstance allegations, jury necessarily determined the killing was first degree felony murder and not any lesser form of homicide; failure to give implied malice second degree murder and involuntary manslaughter instructions was harmless].) For this reason we conclude that, even assuming the propriety of the pinpoint instruction, any error in rejecting it was harmless.
II. Repeated misconduct by the prosecutor
Leinweber contends the prosecutor committed misconduct on numerous occasions during the trial, which resulted in an infringement of his federally guaranteed due process rights, his right to assistance of defense counsel, the right to confront witnesses against him, and the right to present a defense. (U.S. Const., 5th, 6th, & 14th Amends.) Leinweber acknowledges that he objected to some instances but not others because such objections would have been futile. In the alternative, Leinweber argues counsel was ineffective for failing to object. A review of the record reveals no prejudicial misconduct on the part of the prosecutor.
Attacks on the integrity of defense counsel
Leinweber cites to various instances where he contends the prosecutor "engaged in a reprehensible effort to persuade the jury through impugning [the] integrity of defense counsel." (Unnecessary capitalization omitted.) The statements Leinweber objects to are:
(1) After the prosecutor made a hearsay objection during defense counsels cross-examination of a witness, which the trial court sustained, the prosecutor added, "[Defense counsel] knows that thats improper."
(2) After the prosecutor elicited from Vickerman that he had told defense counsel, but not the police, that Leinweber after the shooting had said "Help me, dawg, help me," the prosecutor asked Vickerman whether he understood that defense counsel "only had a loyalty to try to help [Leinweber], not to try to do anything else?" Defense counsel did not object. Shortly thereafter the trial court sustained a defense objection to the prosecutors question to Vickerman whether, in light of his statement to defense counsel, his earlier statement to the officer that did not include this information, was a "bald-faced lie." According to Leinweber, "This set the theme that colored the rest of the trial: that defense counsel[s] ... loyalty to [Leinweber] caused him to suborn perjury and circumvent discovery rules to try to win [Leinwebers] case by any means."
(3) During redirect of Vickerman, the prosecutor asked him if, during his conversation with defense counsel, defense counsel had asked him questions "like he is here in court, like suggesting what might have happened and then you agreeing with him?" Vickerman responded that defense counsel had asked him to tell the truth. Leinweber contends the prosecutor obviously knew leading questions on cross-examination were permissible, but he made the comment to continue his "smear campaign" against defense counsel.
(4) The prosecutor asked Vickerman about the existence of any record of what Vickerman had said to defense counsel. Defense counsel then asked that the trial court take judicial notice that the defense was under no obligation to turn over any notes or statements taken of prosecution witnesses. The trial court stated, "So noted." When the prosecutor suggested to Vickerman that it would have been better to have had a record and been able to examine what had been said during his interview with defense counsel, Vickerman stated, "We are examining it right now." The prosecutor responded, "Well, if youre a credible person then were okay; right?" The trial court then sustained defense counsels objection that the prosecutor was being argumentative.
(5) During the presentation of the defense, the prosecutor complained that he had received no discovery of witness Randall Walkers statement that Leinweber had not made any comment to the jail inmates. Following a sidebar conference, Walker testified that he had spoken to defense counsel three weeks earlier.
(6) During redirect questioning of Melissa G., a defense witness, the trial court twice admonished the prosecutor to stop making reference to what he thought defense counsel was doing wrong. In the first instance, the trial court told the prosecutor—when he complained that defense counsel was asking a leading question—that he need not propose how to ask questions. In the second instance, when the prosecutor again complained that defense counsel was asking a leading question, he stated "Whos testifying here?" to which the trial court responded, "Just state your objection[.]"
(7) According to Leinweber, the prosecutor used a PowerPoint presentation during closing argument. It included a slide that defined the interviews by defense counsel as "suspicious" as they were not recorded, were not close in time to the shooting, and stated that the witnesses "all came up with the same accident story after talking with [defense counsel]." According to Leinweber, the prosecutor used the PowerPoint presentation to "further develop[] his theme for the jury that the prosecution witnesses had created or changed their stories after speaking with defense counsel."
(8) During closing, the prosecutor argued that defense counsel had acted suspiciously because he had not generated reports or recordings of his interviews, and that defense counsel had interviewed people of "low character who werent telling the whole story[.]" Defense counsel objected, and the prosecutor explained that he was not saying defense counsel had broken the law, only that the jury should question the authenticity of the witnesses statements. Defense counsel objected again, and the trial court sustained the objection "to inferences to improper conduct on the part of [defense counsel]." Immediately thereafter, the prosecutor stated that defense counsel had demonstrated his ability to guide witnesses to say what he wanted them to say and that the jury should "extrapolate that back to talking to a witness multiple times, for whatever length of time you want to talk to, without any record of what was said or how it was said. Okay?" Following a renewed objection by defense counsel, an unreported sidebar was held. The prosecutor then listed for the jury the witnesses who had spoken with defense counsel and whose testimony the prosecutor questioned. During closing, defense counsel told the jury he had not told the witnesses what to say.
(9) During rebuttal, Leinweber contends the prosecutor disparaged both defense counsel and the defense theory by stating that defense counsel had managed to keep a straight face while arguing in favor of a manslaughter conviction, that he had never heard of a defense counsel who conducted unrecorded interviews, and that defense counsel was not honorable, but unprofessional and unreliable. Defense counsel made various objections, which were overruled.
Following closing argument, the trial court disclosed a request from defense counsel for "an instruction on prosecutorial misconduct," and that the prosecutor had objected to such an instruction, but that the prosecutor did acknowledge that there "might be some instruction that could be offered on the believability of witnesses[.]" The trial court then revealed that a discussion was had in chambers with the attorneys, and that there was "plenty of evidence that there was opportunity that [Leinweber] had to contact people in advance, which was long before anybody met [defense counsel], and so there was ample evidence on that subject, that these were not versions that were created by [defense counsel]." The trial court also indicated that it was including an instruction on defense counsels concerns "about interview with or without a recording."
Defense counsel then argued that the prosecutor had, in essence, told the jury defense counsel had suborned perjury by telling the witnesses what to say. Although defense counsel had objected to the misconduct before the jury, he "got to a point where I couldnt do much." Defense counsel then asked that the jury be admonished that the prosecutor committed misconduct, and he also moved for a mistrial. The motion for mistrial was denied. Subsequently, the trial court instructed as follows:
"That a witness has been interviewed by an attorney or an investigator, with or without recording, must not prejudice you for or against any party. You may consider this for the issue of the credibility of the witnesss testimony only. The personal integrity of [defense counsel] who, like [the prosecutor], is an officer of the court, is not in dispute."
The People do not address any of the particular statements highlighted by Leinweber, but state that "[t]his is a case of the pot calling the kettle black," and list numerous instances where defense counsel used similar tactics in his defense of Leinweber.
For instance, during closing argument, defense counsel suggests that the prosecutor was saying, "Lets see if we can snooker some jury into making this a murder because [Leinwebers] got prior felony convictions and he runs with a rough crowd and they do bad things. Lets ignore the evidence." Defense counsel told the jury the prosecution "was taking the case they had solved in 11 days and using the next 11 months to distort, manipulate and misrepresent what had occurred." A number of times, defense counsel accused the prosecution of "trying to distort the evidence." Defense counsel told the jury that inmates who face long prison sentences gladly fabricate lies in order to get a deal and "the DA is more than happy to bring in somebody that says I got a confession or I got an admission from a witness or a defendant or whatever." Finally, defense counsel told the jury the prosecutor "knows hes going to get a conviction for involuntary manslaughter. Hes going for all this other stuff because he says this is a bad guy and if I can get the jury to convict him not because of what he did but who he is, well, Ill get something more[.]"
Before addressing the statements made by the prosecutor, we first address the issue raised by the People—that somehow defense counsels actions excused any misconduct on the part of the prosecutor. If a prosecutors remarks are responsive to defense counsels arguments and do not go beyond the record, no misconduct can be charged. (People v. Hill (1967) 66 Cal.2d 536, 562.) But lapses of behavior by defense counsel do not excuse professional misconduct by a prosecutor. (E.g., People v. Bain (1971) 5 Cal.3d 839, 849 ["A prosecutors misconduct cannot be justified on the ground that defense counsel `started it with similar improprieties"].)
"A prosecutor commits misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel." (People v. Hill (1998) 17 Cal.4th 800, 832.) It is generally improper for the prosecutor to accuse defense counsel of fabricating a defense, or to imply that counsel is free to deceive the jury, although a prosecutor has wide latitude in describing the deficiencies in opposing counsels tactics and factual account. (People v. Bemore (2000) 22 Cal.4th 809, 846.)
Leinweber relies on People v. Bain, where our Supreme Court found prosecutorial misconduct when the prosecutor asserted that defense counsel assisted the defendant in fabricating a defense, and then attacked counsels integrity. (People v. Bain, supra, 5 Cal.3d at pp. 845-846.)
In Bain, the defendant, a Black man, was prosecuted for forcible rape. The defendant and the victim were the only witnesses. The victim testified the defendant raped her in a bus station after a bus ride. The defendant testified that he "picked-up" the victim and that the encounter was consensual. (People v. Bain, supra, 5 Cal.3d at pp. 843-844.) At trial, the prosecutor repeatedly asserted that the defendant and his counsel fabricated the "pick-up" defense, and that he, as a Black man, would not be prosecuting a Black defendant unless he personally believed the man to be guilty. The prosecutor also attacked the integrity of the defense attorney, and he repeatedly referred to racial matters. (Id. at p. 845.) Defense counsel objected to the statements about a fabricated defense and the prosecutions expression of personal belief in the defendants guilt, but did not object to the attack on his integrity or the racial comments. (Ibid.) When the prosecutor repeated the accusation of fabrication in closing, the trial judge did not reprimand the prosecutor, but instead told the jury that defense counsel had "acted properly" and was not "drumming up any stories." (Ibid.) In rebuttal, the prosecutor reiterated his personal belief that the defendant was guilty of the crime charged. The prosecutor also referred to defense counsel as the "Golden Boy," and vilified the public defenders office several times.
The Bain court held it to be prejudicial misconduct "in the circumstances" of that particular case. (People v. Bain, supra, 5 Cal.3d at p. 849.) As explained by the Bain court,
"In most sex offense cases the alleged perpetrator of the crime and the alleged victim are the sole or principal witnesses, and as in the instant case, there is a sharp conflict between their testimony. In these circumstances, there is grave danger that misconduct of counsel may tip the scales of justice. In the circumstances of the instant case, there is a reasonable probability that absent the prosecutors misconduct objected to by the defense the jury might have reached a different result. [¶] The combination of the two elements of such misconduct—the unsupported assertion that the defendant and his counsel fabricated the `pick-up story and the statements of personal belief in defendants guilt, built on a racial foundation—may well have swayed the jury in what was otherwise a close case." (Ibid.)
While several of the comments made by the prosecutor here could be labeled misconduct, we do not think that the statements deprived Leinweber of a fair trial nor caused a miscarriage of justice.
First, the trial court admonished the jury not to take into consideration whether the interview of a witness had been recorded. This instruction was in direct response to a number of the statements Leinweber now objects to. It is presumed that jurors understood and followed instructions, and Leinweber has not established otherwise. (People v. Delgado (1993) 5 Cal.4th 312, 331; People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.)
Second, while there were statements that implied that defense counsel coaxed the witnesses to change their story to help Leinweber, there are other statements, which, when read in context, do not so much claim that defense counsel fabricated a story, but rather that the witnesses, who were friends of Leinwebers and afraid of him, did so after he contacted them. The prosecutors bases for asserting defense counsel "lied" were alleged discrepancies between various witnesses statements right after the shooting and at trial. Whether such discrepancies existed could be determined by the jury. Because the factual basis for the prosecutors disparaging comments could be evaluated by the jury, the comments do not carry the risk of an unfair trial as much as the kind of "unsupported implication" by the prosecutor that defense counsel fabricated a defense present in People v. Bain, supra, 5 Cal.3d at page 847.
Finally, the case here, unlike that in Bain, was not close. The evidence against Leinweber was strong. Numerous witnesses, including Leinweber, testified that, prior to the shooting, he was upset, angry, and had a gun in hand. He was reported to have made several comments to the effect that he was either going to kill Vickerman or Glover. Most of the witnesses to the shooting expected "something" was going to happen when Vickerman returned with Leinwebers car. The medical evidence showed that Glover was shot at very close range. On such a record only egregious error at trial could be deemed prejudicial.
We conclude that any arguable prosecutorial misconduct did not prejudice Leinwebers case, and any misconduct on the part of the prosecutor does not require reversal of the judgment of conviction.
Improper use of evidence
In arguing for admission of evidence that Leinweber had been at Hensons house prior to the shooting, the prosecutor stated that he would use this evidence to prove absence of mistake or accident, Leinwebers state of mind, and the reckless handling of the gun that later killed Glover. Defense counsel opposed the admission, stating there was nothing to indicate a common scheme or plan, and the identity of the shooter was not at issue. The trial court admitted the evidence to show an absence of mistake as "it appears that that may be part of the defense in this case ...."
Leinweber now contends that the prosecutor committed misconduct through "purposeful misuse" of Evidence Code section 1101, subdivision (b) evidence. The challenged evidence includes the following:
(1) During the cross-examination of Melissa G., the prosecutor asked whether she had seen Leinweber with a gun before. She stated that she had. The trial court overruled defense counsels objections on grounds of "relevance," "352," and "collateral." The trial court stated it thought the issue went to "accident issues." The prosecutor then asked if Melissa G. had seen Leinweber shoot a gun before, but she claimed she had not. Defense counsel made another objection on grounds of "402" and, outside the presence of the jury, the trial court stated that it thought the questioning was appropriate "because of the defense of accidental discharge." The prosecutor argued the evidence was relevant to show bias toward Leinweber, in that Melissa G. was lying to help Leinweber. Defense counsel objected, stating the evidence was collateral and an attempt to get character evidence in through the back door. The prosecutor added that he wanted to use the evidence to prove that the shooting was not an accident, but intentional. The trial court allowed the evidence, and Melissa G. later testified that she had seen Leinweber shoot a gun before.
(2) During cross-examination, the prosecutor asked Leinweber about a statement he supposedly made to police about scaring people. Defense counsel objected and the trial court asked the prosecutor to "move on from that particular question" and that the issue would be taken up during recess. The prosecutor then asked Leinweber "who makes the rules" in a 12-man jail cell. Defense counsel objected, but the prosecutor stated that he wanted to show "what kind of person this is." Outside the presence of the jury, defense counsel argued that the prosecutor was trying to bring in improper character evidence. The prosecutor argued that, since intimidation was a "big issue" in the case, he wanted to show "what kind of person he is." After some research, the trial court determined that the statements made were not offered for the purpose of establishing conduct on a specific occasion, and it would allow questioning Leinweber about "three comments that are related to the issue of potential intimidation of witnesses." Two statements subsequently were read to the jury during cross-examination of Leinweber—one where Leinweber stated to an officer that the officer "should take some lessons from me ... on pumping fear into people," and one where Leinweber stated "I make up my own rules when Im in [jail]."
(3) During closing argument, the prosecutor referred to Leinwebers "callous nature" and his intimidation of witnesses.
We fail to follow Leinwebers argument. Leinweber makes no assertion that the trial court erred in admitting the challenged evidence, only that the prosecutor committed misconduct by "openly and repeatedly" using the evidence to show "what a bad person [Leinweber] was." We do not agree. In any event, the trial court specifically instructed the jury that:
"Evidence has been introduced for the purpose of showing that the defendant committed acts similar to those constituting a crime other than that for which he is on trial. This evidence, if believed, may not be considered by you to prove that the defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining if it tends to show the existence of the intent, which is a necessary element of the crime charged, or the absence of mistake or accident by the defendant."
Again, we presume the jurors understood and followed the instructions, and Leinweber has not shown otherwise. (People v. Mickey, supra, 54 Cal.3d at p. 689, fn. 17.)
Additional acts of prosecutorial misconduct
Leinweber contends that, in addition to the prosecutorial misconduct discussed above, "there were a host of other errors" by the prosecutor, especially during examination of the witnesses. According to Leinweber, the prosecutor committed misconduct by being offensive not only to defense counsel, but to his own witnesses, by repeatedly asking improper questions despite successful objections by defense counsel, and by vouching for witnesses.
Leinweber presents a litany of instances in which he claims the prosecutor committed misconduct. They are: six instances where the trial court sustained defense counsels objections after the prosecutor asked a witness to speculate; 11 instances where the trial court sustained defense counsels objections to the prosecutor being argumentative; an instance where, after the trial court ruled that Leinweber could be impeached with one nonviolent prior felony and a sanitized violent prior felony, the prosecutor elicited from Leinweber that he had three prior felonies; one instance where the trial court sustained defense counsels objection to the prosecutor "testifying rather than asking a question"; one instance where the trial court asked the prosecutor not to engage in dialogue with Leinweber during cross-examination; one instance where the trial court sustained defense counsels objections to the prosecutor asking Leinweber why people were afraid of him; one instance when the trial court sustained a defense objection to improper rebuttal; and one instance where the prosecutor brought a photograph of Glover into court before defense counsel had a chance to object to its admission.
Each of Leinwebers allegations of misconduct has been waived for purposes of appeal as Leinweber did not object to any of them on that ground. Defense counsel did not object, on any possible grounds, to numerous instances about which Leinweber now complains. Even assuming the objections that were made were sufficient to raise a misconduct claim, there was no request that the jury be admonished. Since an admonition could have cured any harm, the matter has not been preserved. (People v. Cooper (1991) 53 Cal.3d 771, 822; People v. Simon (1989) 208 Cal.App.3d 841, 849.)
In any event, we do not think there was any misconduct. While the prosecutor should have refrained from asking argumentative questions or questions that asked the witness to speculate, we are satisfied that, under any standard of prejudice, those questions did not affect the outcome of the trial. The trial court sustained the defense objections on these grounds, and a party is generally not prejudiced by a question to which an objection has been sustained. (People v. Mayfield (1997) 14 Cal.4th 668, 755; People v. Johnson (2003) 109 Cal.App.4th 1230, 1236.)
Leinweber also lists four instances where we fail to see misconduct. They are: the prosecutor tried to intimidate Humphres (Humphres actual words were that the prosecutor tried to "kind of" intimidate him when he first got to his office); Vickerman stating during testimony that the prosecutor was trying to confuse him by the way he questioned him; (Vickerman stated "you keep asking different questions to mix me up and Im not trying to get mixed up here"); The trial court had to tell the prosecutor once to stop asking Vickerman to repeat his testimony (when Vickerman asked, in response to a question, if he was to repeat the whole thing again, the trial court stated, "No, no, not the whole thing again, so get your question in mind, [prosecutor])"; And, in another instance, Vickerman asked, when referring to the prosecutor, "Can this guy get out of my face?" (the trial court noted the prosecutor was trying, apparently vigorously, to refresh Vickermans responses, but had then moved back and "thats appropriate").
We also reject Leinwebers contention that the prosecutor committed misconduct by "vouching" for several witnesses. Leinweber points to testimony where the prosecutor "elicited" from an officer that he believed the inmate informants. And, during closing, the prosecutor himself vouched for Greg Finley, because he stated Finleys story "rings true."
In the first instance, the record shows that the prosecutor, in questioning the officer who spoke with the inmate informants, asked whether "there [was] anything about you not believing what they were telling you?" The officer responded, stating, "Well, I mean, Ill be honest with you, I was suspicious. I had to—thats my job is to figure out what the truth is and—but by the time I interviewed every one of them in that cell, I believed them." This was not the personal opinion of the prosecutor, but of a witness.
As to the second instance, during closing, the prosecutor argued that it was clear "to anybody that was awake that ... Humphres was lying in trial, but what wasnt clear was what he saw. Okay? It wasnt clear what he saw until you heard that out of ... Finleys mouth, and it rings true. It has the ring of truth to it, even though you didnt hear that from other people, and were going to talk about that."
The instances complained of by Leinweber were not improper vouching on the part of the prosecutor. A prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record. (People v. Sully (1991) 53 Cal.3d 1195, 1235; People v. Anderson (1990) 52 Cal.3d 453, 479.) But, as long as a prosecutors assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the "facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief," those comments cannot be characterized as improper vouching. (People v. Medina (1995) 11 Cal.4th 694, 757.)
Cumulative error
Finally, Leinweber argues that the cumulative impact of the prosecutors "pervasive" misconduct deprived him of a fair trial. We disagree. We have either rejected Leinwebers claims of error or found any errors, assumed or not, not to be prejudicial on an individual basis. Viewing the errors as a whole, we conclude that the errors do not warrant reversal of the judgment. (People v. Stitely (2005) 35 Cal.4th 514, 560.)
III. The section 667.5, subdivision (b) enhancement
Leinweber contends that the trial court acted in excess of its jurisdiction when it imposed two 5-year enhancements under section 667, subdivision (a) and a one-year additional term under section 667.5, subdivision (b) for the same underlying prior convictions and asks that the one-year enhancement be stricken.
The People concede this point and we accept the concession. A trial court is not permitted to impose enhancements both pursuant to section 667, subdivision (a), for a prior conviction, and pursuant to section 667.5, subdivision (b) for a prison term served for the same conviction. (People v. Jones (1993) 5 Cal.4th 1142, 1152-1153.) The record here shows the two 5-year enhancements and the additional one-year enhancement under section 667.5, subdivision (b) are all based on the same underlying 2002 assault with a firearm conviction (§ 245, subd. (a)(1)). Under Jones, this is forbidden, and we will order the one-year enhancement stricken.
DISPOSITION
The matter is remanded to the trial court with direction to strike the prior prison term enhancement based on Leinwebers 2002 assault conviction and to amend the abstract of judgment accordingly. In all other respects, the judgment is affirmed.
WE CONCUR:
GOMES, J.
KANE, J.