Opinion
D074849
05-01-2020
THE PEOPLE, Plaintiff and Respondent, v. DAVID NOEL McGEE, Defendant and Appellant.
Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Senior Assistant Attorney General, Michael Pulos and Seth M. Friedman, Deputy Attorneys General for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCN369219) APPEAL from a judgment of the Superior Court of San Diego County, Blaine K. Bowman, Judge. Affirmed. Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Senior Assistant Attorney General, Michael Pulos and Seth M. Friedman, Deputy Attorneys General for Plaintiff and Respondent.
A jury convicted David Noel McGee of first degree murder of his mother, Rebecca Apodaca. (Pen. Code, § 187, subd. (a).) It found true an allegation that he personally used a deadly and dangerous weapon, "to wit: a claw hammer." (§ 12022, subd. (b)(1).) The court sentenced McGee to 25 years to life for the murder conviction plus one year for the deadly weapon allegation.
Undesignated statutory references are to the Penal Code.
McGee concedes he killed his mother but contends: (1) insufficient evidence supported the jury's finding of premeditation to sustain the first degree murder conviction; (2) the prosecutor committed misconduct by intentionally eliciting expert testimony about his state of mind at the time of the killing, and arguing certain matters to the jury; and (3) his trial counsel was ineffective for not objecting to the prosecutor's asserted misconduct. We affirm.
FACTUAL BACKGROUND
Prosecution Case
On February 1, 2017, after Apodaca did not communicate with coworkers or her daughter during the workday, her daughter went to the apartment Apodaca shared with McGee. She discovered Apodaca's corpse on a bed. McGee was found sitting in a bedroom closet wet, bloody, naked, and "catatonic almost."
Firemen and paramedics responded to the apartment and saw blood-soaked bed linen and blood-splattered walls and ceiling. They found a bloody claw hammer close to the bed, and later learned it was usually kept in a tool kit in the living room. McGee was rambling and acting oddly and inappropriately, and had difficulty processing and understanding instructions from the authorities. The paramedics took him to a hospital.
The next day, upon McGee's arrest, a latent print examiner processed his fingerprints and saw cuts on McGee's fingers and left wrist. She asked him if he was all right, and he replied, "I've never hurt somebody like that before."
A treating doctor testified McGee's forearms, wrists and neck were lacerated. McGee exhibited confusion and other symptoms consistent with toxicity caused by Benadryl. The doctor testified that patients undergoing that condition are "classically not violent."
A forensic toxicologist testified McGee's blood sample taken on February 1, 2017, tested positive for 3,340 nanograms per milliliter of diphenhydramine (Benadryl). She estimated McGee had ingested between 80 and 148 Benadryl pills. According to the toxicologist, 4,000 nanograms per milliliter of Benadryl was considered lethal for adults. The toxicologist was not aware of studies linking Benadryl overdose and violent or homicidal behavior.
San Diego County's Chief Medical Examiner supervised Apodaca's autopsy and opined that Apodaca was initially hit in the head with an instrument like a hammer, and sustained at least 13 separate blows to the midface that crushed her skull and perforated an eye. The attack was "very focused. And it's not just a head. It's focused on the features that make that person that person, the eyes and the midface." He testified regarding the severity of her injuries: "This area, which is an area encompassing all of the lacerations and fractures, measures 4 inches by 4 inches. That's a 16th square-inch injury in which the skull is crushed. . . . And the injury extends into the left lobe of the brain and midbrain. [¶] This is what makes it a Category 6 AIS [Abbreviated Injury Scale] score for the trauma surgeon." He explained that "a [category] 6 is [a] crushing kind of injury with bone and underlying tissue crushed."
The medical examiner further testified about Apodaca's extensive brain injuries: "It's like mashed potatoes. It's what they call 'pulpified.' There's nothing but mush there. A good portion of that is on the bed along with the bone fragments. This is a forceful directed assault to the midface." He testified the attack lasted less than one minute and she died instantly: "So [Apodaca's] heart stopped and the respiration stopped early on in this assault. . . . I don't think this is a prolonged assault. I think it's very rapid and speaks to a frenzy-type attack and is sufficient enough to actually stop central cardinal functions, heart and lungs." The medical examiner estimated Apodaca was dead for 15 hours to as much as 22 hours before he examined the body. He concluded her cause of death was blunt-force injuries to the head and face likely caused by a hammer, and the manner of death was homicide.
McGee later wrote a letter describing his thought process while the incident was unfolding: "I was at my computer getting ready for bed. I had taken a small handful of Benadryl a bit earlier to help me sleep. I was thinking about my depression as I went into the kitchen to make myself a snack before bed. [¶] Before I could open the fridge, I had just decided, that for whatever reason, I was going to kill myself and I didn't want to break my mother's heart when she found out. So my fogged mind decided that killing her beforehand was the answer. [¶] As I argued with myself over how stupid that thought was, I went into autopilot. And by the time I had reordered myself, I was standing over her after the fact. At which point I took the rest of the bottle of Benadryl and 'tried,' and failed to kill myself. By the time my sister found us, I was too out of it from the Benadryl to remember much of anything. . . . Sorry this letter has been so dark. I just needed to tell someone about this." (Italics added.)
Defense Case
Psychologist Clark Clipson evaluated McGee and testified: "My opinion before seeing [McGee's] letter was that there was no psychological motivation for the killing." But he subsequently concluded that "there [was] a psychological motivation. That if, indeed, [McGee] was depressed and suicidal and wanting to spare his mother the pain of finding him, and so that was the motivation, the psychological motivation [sic]." Dr. Clipson stated that assuming the letter was true, "[McGee] went through a decision-making process prior" to killing his mother.
On cross-examination, the prosecutor asked Dr. Clipson whether McGee was undergoing a "Benadryl-toxic delirium" while he was killing his mother. Dr. Clipson replied, "I would have to say I don't know. Because I don't—I have witnessed accounts of what his behavior was like once the police arrived and everything they're describing makes it very clear he was in a state of delirium and that we can see it a few hours later. [¶] At the time that he killed his mother, again, with the increased tolerance, it's hard—'I don't know' is my answer. I don't know when the delirium started." (Italics added.)
Three character witnesses testified they were friends with McGee and played video games with him. They testified he was not aggressive or violent. They believed he had a good relationship with his mother. Rebuttal Testimony
Dr. Ankur Bindal, a psychiatrist who treated McGee in jail, testified on rebuttal that McGee did not kill his mother under a Benadryl-toxic delirium; rather, he engaged in "multiple activities before, during, and after the act of killing that were very planned and goal-directed." Dr. Bindal specified: "Before the act, [McGee] localized [sic] the hammer, held the hammer, went all the way from the kitchen where the hammer was placed to the scene, the site of scene, and hit the mother multiple times in a localized area. After performing that act, [McGee] went back and did multiple activities potentially, as per review of records, to kill himself."
Responding to the prosecutor's question about the significance of McGee attacking his mother's face and head, Dr. Bindal said, "It's very significant. If anyone was to kill someone with a hammer, the most lethal spot to hit and kill the person is the head. [¶] In a patient undergoing delirium, the swing of the hammer could have been anywhere on the body. It could have been the hand. It could have been the leg. It could have been the stomach[.]"
Defense counsel argued to the jury that McGee was under a Benadryl-induced toxic delirium when he killed his mother; therefore, he did not act with premeditation or malice.
Defense counsel argued in closing: "It is not unreasonable, in fact, it is more than reasonable to believe that Mr. McGee killed his mother in an unconscious state under the influence of Benadryl. That is reasonable. That is more than reasonable. And if it is reasonable, you must conclude that he did not have the required mental state." She continued, "Involuntary manslaughter can be proven in this case if you find the following things—and again, you can read this jury instruction when you go back there. . . . '[A]s a result of voluntary intoxication, David McGee was not conscious of his actions or the nature of those actions.' Right there. We have evidence. We have doctors testifying about the effects of Benadryl. We know that [McGee] was on Benadryl."
DISCUSSION
I. Sufficiency of the Evidence
On appeal, McGee concedes he intentionally killed his mother but denies having " a premeditated intent." Relying on his letter, he argues "there is a complete absence of evidence as to what [he] did between the time he formed the intent to kill while standing at the refrigerator to get a 'snack before bed' and [his mother's] death." Based on the factors set forth in People v. Anderson (1968) 70 Cal.2d 15, 26-27 (Anderson), McGee argues, "The facts in this case do not show planning, minimal motive, and the manner of killing suggests a violent and rash impulse hastily executed as opposed to a calculated design." McGee requests that this court reduce his conviction to second degree murder. A. Applicable Law
"Murder is the unlawful killing of a human being with malice aforethought. [Citation.] Malice may be either express or implied. Express malice exists when there is a deliberate intention unlawfully to take away the life of a fellow creature. [Citation.] It is implied when no considerable provocation appears or when the circumstances attending the killing show an abandoned and malignant heart." (People v. Boatman (2013) 221 Cal.App.4th 1253, 1263.)
In order for a killing with malice aforethought to be first rather than second degree murder, the intent to kill must be formed on a preexisting reflection and must have been the subject of actual deliberation or forethought. (Anderson, supra, 70 Cal.2d at p. 26.) A verdict of first degree murder on a theory of willful, deliberate and premeditated killing is proper only if the defendant killed " ' "as a result of careful thought and weighing of considerations; as a deliberate judgment or plan, carried on coolly and steadily, [especially] according to a preconceived design." ' " (Ibid.) " 'Deliberation' refers to careful weighing of considerations in forming a course of action; 'premeditation' means thought over in advance. [Citations.] 'The process of premeditation and deliberation does not require any extended period of time. "The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly." ' " (People v. Koontz (2002) 27 Cal.4th 1041, 1080.)
"Whether a defendant possessed the requisite intent to kill is, of course, a question for the trier of fact. While reasonable minds may differ on the resolution of that issue, our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (People v. Lashley (1991) 1 Cal.App.4th 938, 946.)
" ' "Generally, there are three categories of evidence that are sufficient to sustain a premeditated and deliberate murder: evidence of planning, motive, and method. [Citations.] When evidence of all three categories is not present, 'we require either very strong evidence of planning, or some evidence of motive in conjunction with planning or a deliberate manner of killing.' [Citation.] But these categories of evidence, borrowed from [Anderson, supra,] 70 Cal.2d [at pages] 26-27, 'are descriptive, not normative.' [Citation.] They are simply an 'aid [for] reviewing courts in assessing whether the evidence is supportive of an inference that the killing was the result of preexisting reflection and weighing of considerations rather than mere unconsidered or rash impulse.' " ' " (People v. Prince (2007) 40 Cal.4th 1179, 1253.) If the Anderson factors are not present, a finding of premeditation and deliberation can still be upheld based on substantial evidence from which rational jurors could have found that the killing was the result of preexisting thought and the careful weighing of considerations. (People v. Boatman, supra, 221 Cal.App.4th at p. 1270.)
Even if the evidence regarding some of the Anderson factors is weak, "[i]n reviewing sufficiency of evidence claims, each case of necessity must turn on its own particular facts." (People v. Smith (2005) 37 Cal.4th 733, 745.) Further, "[e]vidence of all three elements is not essential . . . to sustain a conviction." (People v. Edwards (1991) 54 Cal.3d 787, 813.) Rather, "[t]hese three categories are merely a framework for appellate review; they need not be present in some special combination or afforded special weight, nor are they exhaustive." (People v. Booker (2011) 51 Cal.4th 141, 173.)
In assessing a claim of insufficiency of the evidence, we review "the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Snow (2003) 30 Cal.4th 43, 66.) Circumstantial evidence may be sufficient to prove a defendant's guilt beyond a reasonable doubt. (People v. Pierce (1979) 24 Cal.3d 199, 210.)
Direct evidence of premeditation and deliberation is not required in prosecution for first degree murder; "the elements of deliberation and premeditation may be inferred from proof of such facts and circumstances as will furnish a reasonable foundation for such an inference." (People v. Miller (1969) 71 Cal.2d 459, 477; see People v. Dale (1936) 7 Cal.2d 156, 159-160.) Reversal on insufficiency of the evidence grounds is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." (People v. Redmond (1969) 71 Cal.2d 745, 755.) B. Analysis
We conclude all of the Anderson factors are met here and the prosecution presented overwhelming evidence that McGee acted with the intent necessary to sustain the first-degree murder charge. Specifically, the jury could reasonably infer from his letter that after some deliberation, McGee developed a plan to kill himself. Subsequently, contemplating his mother's reaction to his death, he came up with a reason to kill her to spare her the pain of dealing with his suicide. He stated he "argued with [him]self " about the matter before proceeding to kill her. The jury could reasonably infer that McGee decided to retrieve the claw hammer from its usual place, and in a violent manner inflicted several blunt force injuries to Apodaca's face and neck, causing her death. McGee never sought medical attention for Apodaca or informed the police of her injuries. Instead, the record suggests a consciousness of guilt in that he concealed evidence of his attack some number of hours. The medical examiner's testimony also showed that McGee's attack was not random but focused. The jury heard Dr. Clipson, McGee's own witness, undermine McGee's theory that he committed the killing while undergoing a Benadryl-induced delirium. Dr. Clipson instead stated he did not know when McGee's Benadryl toxicity began. Separately, Dr. Bindal concluded McGee's attack was not random; rather, he acted deliberately before, during and after the attack. We conclude the above evidence permitted the jury to infer McGee had the intent necessary to commit first-degree murder.
McGee concedes that his use of the claw hammer and his letter's contents "might arguably show planning activity," but he explains away their importance while denying he engaged in premeditation before committing the murder: "[S]ubstantial evidence raised a reasonable inference that [he did] not have to go anywhere to get the claw hammer; it was within ready access by being in the living room of the small apartment where [he] slept. [¶] Further, if the jury credited his letter, there is a complete absence of evidence as to what [he] did between the time he formed the intent to kill while standing at the refrigerator to get a 'snack before bed' and [his mother's death]."
We decline McGee's invitation to reweigh the evidence. We are not bound by those "competing inferences he wishes the jury had drawn." (People v. Casares (2016) 62 Cal.4th 808, 827.) "Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment." ' " (People v. Bean (1988) 46 Cal.3d 919, 932-933; accord, People v. Abillar (2010) 51 Cal.4th 47, 60 [holding that when "the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding"].)
McGee additionally argues: "No witness testified to what occurred during the hours leading to [his mother's] death. The bulk of evidence established [he] was non-aggressive. . . . He had no animosity toward his mother. In fact, everyone who knew them testified they got along well. . . . The family was very close. . . . [He] suffered a stroke at age 14 and suffered major brain damage. . . . The stroke at such a young age changed the course of his life. . . . But there was no indication that [he] had ever been violent by those who knew him; in fact, he was the exact opposite. An extensive forensic evaluation that included psychological testing by Dr. Clipson, and was not conducted by any of the other three doctors who testified in this case, bore this out; [McGee] was not at risk for violence. . . . Thus, substantial evidence sheds no light on planning activity and in fact, dictates away from a rational juror concluding [he] is a man with a predisposition toward violence or harbored a premeditated plan to kill on these facts."
McGee also argues that the third Anderson factor, the manner of killing, does not support a finding of premeditation. He maintains his actions were "consistent with an emotional explosion or an 'unconsidered or rash impulse hastily executed.' " McGee argues nothing in the record suggests "he considered his actions beforehand outside of a formation of an intent to kill," and "[h]e took the most readily available instrument and beat his mother to death." McGee suggests the evidence shows "an extremely brutal murder without more," which proves only second degree murder. The California Supreme Court stated in People v. Raley (1992) 2 Cal.4th 870, "Even if we were to agree that it could only be concluded that the many stab wounds defendant inflicted on each woman were part of an unreflective explosion of violence, his calculated decision to let them bleed for the next 18 hours, to refuse medical attention, to beat them about the head and to dump them on a winter night into an isolated ravine supports the conclusion that he premeditated the death of [the murder victim]." (Id. at p. 888.) Likewise here, although the evidence regarding post-murder conduct is not as extreme as in Raley, the jury nonetheless could reasonably conclude that after McGee inflicted at least 13 major impact blows on Apodaca, he intended to and did leave her to bleed and die. That calculated decision supports a finding of premeditation, and is supported by McGee's statement in his letter that provides a motive for the killing. Viewing the totality of the circumstances in the light most favorable to the judgment, we conclude sufficient evidence supported the jury's premeditation and deliberation finding.
II. Prosecutorial Misconduct Claim
McGee contends the prosecutor committed various acts of misconduct by improperly eliciting expert testimony regarding his state of mind during the killing. Specifically, he argues the prosecutor ran afoul of sections 28 and 29, which permit the introduction of evidence of mental illness when relevant to the issue of whether a defendant actually formed a mental state that is an element of a charged offense, but do not permit an expert to offer an opinion on whether a defendant had the mental capacity to form a specific mental state or whether the defendant actually harbored such a mental state. A. Applicable Law
Section 28, subdivision (a), states: "Evidence of a mental disease, mental defect, or mental disorder shall not be admitted to show or negate the capacity to form any mental state, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act. Evidence of mental disease, mental defect, or mental disorder is admissible solely on the issue of whether or not the accused actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged." (Italics added.)
Section 29 states: "In the guilt phase of a criminal action, any expert testifying about a defendant's mental illness, mental disorder, or mental defect shall not testify as to whether the defendant had or did not have the required mental states, which include, but are not limited to, purpose, intent, knowledge, or malice aforethought, for the crimes charged. The question as to whether the defendant had or did not have the required mental states shall be decided by the trier of fact." (Italics added.)
We need not decide if these two statutes apply here. They relate to mental illness, not to Benadrylinduced toxicity. (See People v. Adan (2000) 77 Cal.App.4th 390, 393, fn. 3; People v. Rangel (1992) 11 Cal.App.4th 291, 300303 [noting that it is an open question if these statutes apply to an intoxication case].)
" 'A prosecutor commits misconduct when his or her conduct either infects the trial with such unfairness as to render the subsequent conviction a denial of due process, or involves deceptive or reprehensible methods employed to persuade the trier of fact.' " (People v. Rangel (2016) 62 Cal.4th 1192, 1219.) Generally, a defendant must object at trial on the same ground to preserve the error for appeal. (Ibid.) A prosecutor's error can result in reversal even if the error was unintentional and in good faith. (People v. Potts (2019) 6 Cal.5th 1012, 1036; People v. Crew (2003) 31 Cal.4th 822, 839; People v. Alvarez (1996) 14 Cal.4th 155, 213.)
McGee concedes and we agree that his trial counsel did not object to the various instances of alleged prosecutorial misconduct. We therefore conclude the claims are forfeited. Nonetheless, we address them on the merits in light of McGee's ineffective assistance of counsel claim. B. Cross-Examination of Dr. Clipson
McGee contends the prosecutor committed misconduct by indirectly eliciting testimony regarding premeditation during Dr. Clipson's cross-examination. We first set forth background information elicited by defense counsel on direct examination:
"[Defense Counsel:] If [McGee's] letter was deemed an inaccurate reflection of what happened that night, how would that change your opinion?
"[Dr. Clipson:] Well, it certainly suggests to me that he had a much more active suicidal plan that night than he had conveyed to me. It reflects the kind of narrow focus that people get into when they are suicidal. [¶] In other words, they don't see options. His self-centeredness became strikingly evident in the sense that all he can think about was: [']I don't want my mom, who I love, to wake up and find me. So the solution is to kill her and then kill myself.['] [¶] And so again, this says that he went through a decision-making process prior to what he calls going on autopilot, in which he actually thought . . . [']I'm going to kill my mom to spare her finding me dead.['] " (Italics added.)
The prosecutor returned to this issue during cross examination in this colloquy that McGee challenges:
"[Prosecutor:] So you would agree that in this type of murder-suicide situation, the decision to kill the victim is made before doing the actual act?
"[Dr. Clipson:] Yes.
"[Prosecutor:] In other words, [McGee] thought about it beforehand and then did the act?
"[Dr. Clipson:] Correct.
"[Prosecutor:] We don't know how long [McGee] thought about it beforehand, but he did think about it beforehand?
"[Dr. Clipson:] That's correct."
The prosecutor later asked Dr. Clipson: "When you read [McGee's] letter, did you view this as a confession of murder-suicide?" Dr. Clipson replied in the affirmative. Based on the above, McGee contends, "This question was subtle, but nonetheless amounted to misconduct. [¶] The prosecutor was asking Dr. Clipson to decide an ultimate factual issue that was for the jury to decide."
We conclude the prosecutor did not commit misconduct by asking Dr. Clipson about McGee's letter. First, "expert testimony is permitted even if it embraces the ultimate issue to be decided." (People v. Vang (2011) 52 Cal.4th 1038, 1049.) Further, McGee's counsel initiated the line of questioning. "Having chosen to raise this subject, the defense could not reasonably insulate it from cross-examination." (People v. Winbush (2017) 2 Cal.5th 402, 479 [holding that prosecutor could cross-examine defense expert on area that was otherwise off limits if expert discussed it on direct examination]; see also People v. Steele (2002) 27 Cal.4th 1230, 1247 [rejecting defendant's argument that an expert should not have been able to testify "to the effect" that killing was premeditated where "[t]he defense, . . . not the prosecution, initiated this 'whole line of testimony' "].)
Finally, the letter speaks for itself, and the jury could independently evaluate McGee's assertions made in it and conclude that he indeed confessed to planning a murder-suicide, thereby evincing premeditation and deliberation. Accordingly, we conclude that even absent the challenged testimony, it is not reasonably likely the jury would have reached a different conclusion.
Based on the following colloquy between the prosecutor and Dr. Clipson, McGee contends, "Once again, the prosecutor was specifically seeking to have this witness address [McGee's] state of mind:"
"[Prosecutor:] If I understand your testimony correctly, you said near the time of the incident [McGee] had Benadryl-toxic delirium, right?
"[Dr. Clipson:] Correct. That's right.
"[Prosecutor:] That can include after the killing?
"[Dr. Clipson:] Yes.
"[Prosecutor:] Well, what is your opinion as to at the time of the killing? I'm talking at the moment that he's killing the victim, whether or not he was undergoing a Benadryl-toxic delirium?
"[Dr. Clipson:] I would have to say I don't know. Because I don't—I have witnessed accounts of what his behavior was like once the police arrived and everything they're describing makes it very clear he was in a state of delirium and that we can see it a few hours later. [¶] At the time that he killed his mother, again, with the increased tolerance, it's hard—[']I don't know['] is my answer. I don't know when the delirium started." (Italics added.)
Assuming without deciding that the prosecutor committed misconduct by inquiring regarding McGee's state of mind at the time of the killing, McGee was not prejudiced because Dr. Clipson never gave an answer harmful to McGee; rather, he repeatedly stated that he did not know when McGee's Benadryl delirium started. The jury thus reached its own conclusion on the issue of McGee's state of mind. C. Dr. Bindal's Rebuttal Testimony
McGee contends the prosecutor improperly sought to elicit state-of-mind testimony from Dr. Bindal.
Background
Earlier in Dr. Bindal's testimony, defense counsel successfully challenged the prosecutor's inquiry regarding McGee's state of mind. The prosecutor asked Dr. Bindal, "Would you say that the area that was the target, that being the head and the face, does that show anything about the precision of this killing?" Dr. Bindal replied in the affirmative and added, "It shows that Mr. McGee was fully aware and awake at that particular time[.]" The court sustained defense counsel's objection made on grounds of "an improper conclusion."
The prosecutor next asked Dr. Bindal several questions based on a "hypothetical situation that exactly mirrors the facts of this case, including what we know about that person's history and relationships with his mother and online friends and all of that."
"[Prosecutor:] Focusing on the acts itself [sic] though, is it significant that a person or the attacker did not hit any other surfaces either leading into the bedroom or anywhere else on a victim's body?
"[Dr. Bindal:] It is very significant.
"[Prosecutor:] Why is that?
"[Dr. Bindal:] Because that shows the hypothetical person in the hypothetical situation is acting in a very goal-directed planned way."
We conclude Dr. Bindal's rebuttal testimony was permissible, and the prosecutor did not commit misconduct based on the above colloquy. People v. Edwards (2013) 57 Cal.4th 658 is applicable here. In that case, the defendant argued that "the jury's function as the trier of fact on the issue of intent was usurped by [the psychiatrist's] impermissible expert opinion that defendant was in a conscious and deliberate frame of mind at the time of the homicide." (Edwards, at p. 757.) The California Supreme Court disagreed, explaining that "[t]he testimony was relevant to rebut the apparent defense that because defendant was experiencing a blackout when he committed the offenses, he was less culpable . . . [and] was in response to a hypothetical question by the prosecutor, and hence was not an expert opinion regarding defendant's state of mind." (Ibid.) Here, McGee's defense was that he committed the homicide while under a Benadryl-induced delirium. Dr. Bindal's testimony was therefore relevant to rebut that defense. The prosecutor's specific question dealt with the significance of the attacker targeting a specific area of the victim's body, not McGee's state of mind. Dr. Bindal responded to that question by concluding the hypothetical, goal-directed actions were inconsistent with those expected from someone experiencing delirium.
D. Prosecutor's Closing Argument
McGee contends the prosecutor violated his constitutional right to confront witnesses by suggesting to the jury that there was additional evidence about McGee's past that the prosecutor knew but which the jury did not.
The prosecutor argued to the jury without objection: "And we know that the day before, which is Tuesday, January 31st, [Apodaca] was alive at some point, in fact, most of that day and evening. We know that because she worked that day, and she spoke to her supervisor at 5:00 p.m. They had a conversation about her timecard. [¶] We know that after that, she went to her good friend['s] trailer park in San Marcos, showed up unexpectedly and had a conversation with her. And although you didn't get to hear the content of the conversation due to the Rules of Evidence, we know that she showed up. They had a conversation, and [Apodaca] was somber, stressed, and upset. We know that [Apodaca] left that conversation enlightened by whatever [her friend] told her. She was in a better mood. And afterwards she went out with [McGee's sister]. . . . [Apodaca] was alive and well. And did you notice that [Apodaca] didn't say anything to [McGee's sister] or make any complaints about [McGee]. [¶] Now, look, I know you don't know—because of the Rules of Evidence, you didn't get to hear the content of the conversation between [Apodaca's friend] and [McGee]. So I can argue to you though from the circumstantial evidence, from the facts and the time line in this case, what do you think the conversation may have been about? [¶] If you're a parent, you understand one rule of parenting, is that if you have a complaint about one child, the one person in the world you don't complain about them to is their sibling. And you know that [McGee's sister] says she thought everything was fine. Her mom didn't seem somber, stressed, and upset to her. [Apodaca] didn't talk to her about any problem that was going on in the home. But we know that there was some somber, stressed, and upset conversation [between Apodaca and her friend]." (Italics added.)
Relying on People v. Bolton (1979) 23 Cal.3d 208, McGee contends: "When a prosecutor asserts a fact not in evidence, there is a strong probability that the jury will accept the prosecutor's statement as fact, regardless of any pattern instruction to the contrary, and assume that the fact is within the prosecutor's personal knowledge: Statements of supposed facts not in evidence, either because never offered, or offered and excluded or stricken, or admitted for a limited purpose outside the scope of the comment, are a highly prejudicial form of misconduct, and a frequent basis for reversal. The effect of such remarks is to lead the jury to believe that the district attorney, a sworn officer of the court, has information which the defendant insists on withholding; or that they may consider matters which could not properly be introduced in evidence."
McGee's reliance on People v. Bolton, supra, 23 Cal.3d 208 is unavailing. That case is distinguishable on the facts as the prosecutor there made what the court called an "improper" closing argument by "twice hint[ing] that, but for certain rules of evidence that shielded appellant, he could show that appellant was a man with a record of prior convictions or with a propensity for wrongful acts." (Id. at p. 212.) In fact, the appellant had no criminal record. (Ibid.) By contrast, here, the prosecutor's challenged statement related to evidence regarding what might have been discussed when Apodaca, who had been stressed, somber and upset, visited her friend the evening before McGee murdered her. That claim is less prejudicial because of the subject matter, and because it is at least based on the trial evidence. We point out McGee's sister testified her mother was seemingly fine when she saw her mother after that meeting. On the law, the Bolton court concluded that in light of the abundant evidence establishing the defendant's guilt, any prosecutorial error was harmless beyond a reasonable doubt. (Id. at pp. 214-215.) After pointing out the appellant himself admitted at trial that he did the shooting and the only question for the jury was whether it was done in self-defense, the Bolton court concluded, "Appellant's own admissions torpedoed his defense." (Id. at p. 215.)
The prosecutor's comments regarding matters not in evidence showed a regrettable lapse in judgment. But as in Bolton, supra, even assuming arguendo the prosecutor erred, any error was harmless beyond a reasonable doubt. McGee's own words in his letter undermined his defense. Moreover, in light of the complete record, "we see no reasonable probability that the prosecutor's brief and isolated comments could have influenced the jury's guilt determination." (People v. Medina (1995) 11 Cal.4th 694, 760.)
III. Cumulative Error Claim
McGee contends that the cumulative impact of the errors at trial warrants reversal of the judgment. A "series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error." (People v. Hill (1998) 17 Cal.4th 800, 844.) However, "[l]engthy criminal trials are rarely perfect, and this court will not reverse a judgment absent a clear showing of a miscarriage of justice." (Ibid.) As we have " 'either rejected on the merits defendant's claims of error or have found any assumed errors to be nonprejudicial,' " we reject McGee's contentions as to the cumulative effect of any purported errors. (People v. Cole (2004) 33 Cal.4th 1188, 1235-1236.)
IV. Ineffective Assistance of Counsel Claim
McGee contends his trial counsel provided ineffective assistance by failing to object to the prosecutor's claimed misconduct: "[B]ut for counsel's ineffectiveness particularly with the fallibility of the state's case in terms of a lack of premeditation . . . a defendant with no history of violence, and strong evidence of delirium due to Benadryl toxicity, there is a reasonable probability that at least one juror would have struck a different balance regarding the nature of this homicide."
To prevail on an ineffective assistance claim on appeal, a defendant must demonstrate that counsel's performance was deficient such that it "fell below an objective standard of reasonableness" and that the deficient performance resulted in prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692.) To show prejudice, a defendant must establish by a reasonable probability that if counsel's performance was not deficient, he would have received a more favorable result. (Id. at p. 694.) In considering a claim of ineffective assistance of counsel, it is not necessary to determine " 'whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.' " (In re Fields (1990) 51 Cal.3d 1063, 1079, quoting Strickland, at p. 697.)
We have already concluded either the prosecutor did not commit misconduct (in which case defense counsel was not ineffective for failing to object), or McGee was not prejudiced by any of the alleged prosecutorial errors either individually or cumulatively. We conclude as a result that he cannot establish ineffective assistance of counsel; he cannot show a reasonable probability that but for his counsel's asserted error, he would have received a more favorable result. (Strickland, supra, 466 U.S. at pp. 693-694.)
DISPOSITION
The judgment is affirmed.
O'ROURKE, J. WE CONCUR: BENKE, Acting P. J. DATO, J.