Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. BA279193, Robert J. Perry, Judge.
Daniel J. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Beverly K. Falk, Deputy Attorneys General, for Plaintiff and Respondent.
TURNER, P. J.
I. INTRODUCTION
Defendant, Gordon Lamar Nelson, appeals from his conviction for first degree murder (Pen. Code, § 187, subd. (a)) and the jurors’ gang enhancement and firearm use findings. (§§ 12022.53, subd. (d); 186.22, subd. (b)(1).) Defendant argues that the trial court improperly: found Yolanda Newell unavailable to testify; permitted a detective to give opinion testimony; and refused to instruct the jury with CALCRIM No. 306. Defendant further argues that the prosecutor committed misconduct. Other than modifying the judgment to add a section 1465.8, subdivision (a)(1) court security fee, we affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
II. FACTUAL AND PROCEDURAL BACKGROUND
We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) Tony Hundley and Steve Hutchins were former members of the local gang. Mr. Hundley knew defendant as a member of the local gang. Mr. Hutchins’s father and uncle, Robert Wingfield, were also local gang members. Mr. Wingfield, defendant’s uncle, is the victim of the murder in this case. Mr. Hutchins’s father and uncle were members of different “sets” of the local gang. Mr. Hutchins knew defendant to be a long-term member of the local gang. Mr. Hutchins saw defendant with Kyle Palmer on several occasions.
Mr. Hundley described himself between ages 11 and 23 as a “hard core” gang member, who: “shot at people”; “robbed people”; and “did everything in a sinful way like a gang member could.” Mr. Hundley was paroled in March 2003. Mr. Hundley saw defendant on a day-to-day basis. Mr. Hundley also saw defendant and Mr. Palmer together on several occasions.
Los Angeles Police Sergeant Steve Burciaga was familiar with the local gang based upon his assignments to the gang and homicide units. Sergeant Burciaga was trained in gang tattoos, signs, clothing, and other identifying characteristics. Sergeant Burciaga’s assignment to the gang unit involved daily contact with gang members and gathering gang intelligence. Sergeant Burciaga believed defendant was a member of the local gang. This opinion was based upon defendant’s: tattoos; phone conversations; and associates. Sergeant Burciago also relied upon the location of defendant’s arrest. Sergeant Burciaga knew Mr. Palmer was a member of the local gang. Defendant stipulated to the fact that Mr. Palmer was a member of the local gang. Defendant further stipulated to the fact that the area around 71st and Raymond Streets and Normandie Boulevard was within the heart of the local gang territory.
Ms. Newell had lived in the Florence and Normandie area of Los Angeles for approximately 20 years. Ms. Newell was familiar with the people in the neighborhood. Ms. Newell’s brother was a local gang member. Ms. Newell knew defendant and Mr. Palmer were members of the local gang. Ms. Newell also knew a local gang member named Lydell Williams. After dark on February 21, 2003, Ms. Newell was on 71st Street. A large group of individuals were also present. Ms. Newell saw defendant arrive in a blue truck, driven by his girlfriend, Georgia Murrell. Ms. Newell believed Ms. Murrell was pregnant with his child. Defendant got out of the truck near the group of people.
Before defendant arrived, Ms. Newell saw Mr. Williams talking on a cellular telephone. Ms. Newell heard Mr. Williams say, “He’s here.” Mr. Williams then turned to Ms. Newell and told her to get off the street. Defendant walked toward Mr. Wingfield who had been in the group of individuals. Everyone except defendant, Mr. Palmer, and Mr. Wingfield walked across the street. Defendant, who was holding a gun, told Ms. Newell, “Get the fuck off the street.” Ms. Newell remained at the corner behind a tree. Although Ms. Newell was blind in her left eye, she could see well with her right eye. Defendant was standing behind Mr. Wingfield. Defendant had a gun in his hand. Ms. Newell became afraid and ran on 71st Street to Raymond Avenue. As she ran, she heard “pow, pow, pow.” When Ms. Newell turned around, Mr. Wingfield was on the ground. Shortly thereafter, defendant and Mr. Palmer came running around the corner. The two men had removed their coats. Defendant said, “You see that motherfucker drop?” Defendant and Mr. Palmer ran into the previously assembled crowd. Ms. Newell no longer saw the gun in defendant’s hand. Ms. Murell “came speeding around the corner” in the blue truck after the shooting.
When the police arrived, the crowd on the corner had increased due to neighbors coming out of their homes. Ms. Newell saw defendant standing amongst the group. Defendant stayed at the corner until Mr. Wingfield was placed in an ambulance. Ms. Newell did not say anything to the police at the time because defendant knew she had seen what occurred. Ms. Newell was contacted by a detective in July 2003. At that time, Ms. Newell identified defendant and Mr. Palmer from photographs shown to her. Ms. Newell circled and initialed their photographs. Ms. Newell had used cocaine. However, Ms. Newell had not used cocaine on the day of the shooting. Ms. Newell later voluntarily went into a rehabilitation program. Ms. Newell knew defendant’s mother very well. Defendant’s mother confronted Ms. Newell at his hearing in October 2004. Ms. Newell was told that she better not “say nothing.” When she testified at the preliminary examination, Ms. Newell revealed for the first time defendant was armed at the time of Mr. Wingfield was shot. Prior to the preliminary examination, Ms. Newell was afraid to reveal this fact.
On February 21, 2003, Mr. Hutchins received a telephone call regarding the shooting from another local gang member. Mr. Hutchins went to the shooting scene which had already been taped off when he arrived. Mr. Hutchins saw defendant and Mr. Williams along with others at a house on 71st Street near Normandie Avenue. Mr. Hutchins asked defendant what happened. Defendant just shrugged his shoulders without speaking.
Los Angeles Police Sergeant Dana Adams arrived at the shooting scene at approximately 9 p.m. on February 21, 2003. Sergeant Adams saw several people on the corner at 71st Street and Raymond Avenue. Sergeant Adams saw Mr. Wingfield lying on the sidewalk. Sergeant Adams checked Mr. Wingfield’s body for signs of life. Mr. Wingfield had been shot several times, with one apparent head injury. Mr. Wingfield had no signs of breathing or movement. Sergeant Adams saw two shell casings from a semiautomatic firearm near Mr. Wingfield’s head. Sergeant Adams ordered other officers to tape off the crime scene and stand guard over any evidence present. A cellular telephone was found near Mr. Wingfield’s body.
Officers Alfred Corso and Ozzie Ramos also arrived at the crime scene. Officer Corso noted shell casings on the ground and one live nine millimeter round. Officer Corso also found a cellular telephone approximately two to three residences west of where Mr. Wingfield lay. Officer Corso notified his supervisor and remained close to the evidence to insure it was secured.
Sergeant Kevin Jolivette and Detective Rollin Seacrest were assigned to investigate the shooting. They arrived at the scene at approximately 10:40 p.m. Mr. Wingfield’s body was still lying uncovered. The coroner’s investigator, Brian Elias, arrived and removed the following items from Mr. Wingfield’s body: $1,220 in U.S. currency; a pager; a ring; a watch; earrings; car keys; and a bracelet. The car keys were later found to open a nearby automobile. A gunshot residue test of Mr. Wingfield’s hands was also completed. Detective Jolivette recovered the shell casings, a live round of ammunition, a plastic cup, and a sample of a droplet of blood from the scene. An autopsy revealed that Mr. Wingfield died of multiple gunshot wounds to the head and abdomen. Bullets or bullet fragments were recovered from each of the five gunshot wounds. No soot or stippling was found on Mr. Wingfield’s body. As a result, the deputy medical examiner believed the barrel of the gun was more than two feet away when Mr. Wingfield was shot.
Latent fingerprints were lifted from the evidence recovered from the crime scene on February 27, 2003, including the cellular telephone battery and the cup. Senior Forensic Print Specialist Denise Williams examined the latent prints from these items and compared them to the fingerprint cards of defendant and Mr. Hutchins on October 7, 2003. Defendant’s prints could not be eliminated as a donor to both of the latent prints. Two additional print specialists reexamined Ms. Williams’s work and formed the same opinion. Ms. Williams also “rerolled” defendant’s fingerprints before she testified. Ms. Williams compared those prints with the card she had used to match the latent prints. Ms. Williams concluded that the prints on both cards matched.
Los Angeles County Coroner Criminalist Steven Dowell conducted a physical and chemical examination of the gunshot residue samples taken from Mr. Wingfield’s hands. Mr. Dowell’s microscopic examination revealed highly specific particles on both Mr. Wingfield’s right and left hands. These particles indicated Mr. Wingfield may have discharged a firearm or had his hand in an environment of gunshot residue at the time he was shot. The parties stipulated that the blood sample recovered from the murder scene was that of Mr. Wingfield.
Los Angeles Police Department Criminalist Stella Chu examined six expended shell casings and one live round recovered from the crime scene. Ms. Chu made a microscopic comparison of each shell casing with the other five. Ms. Chu concluded the casings were fired from the same gun and to the exclusion of every other gun made. Ms. Chu also examined the bullet fragments recovered from Mr. Wingfield’s body. Ms. Chu concluded that the polygonal rifling on the bullets was inadequate to determine whether all of the bullets came from the same gun. The bullets could have been 9 millimeter,.38 caliber or.357 caliber. Ms. Chu believed they were more consistent with a nine millimeter Luger semi-automatic weapon.
Mr. Hundley saw defendant in Spokane, Washington in the year 2000. Mr. Hundley was staying in Spokane for approximately one month. Mr. Hundley returned to California from Spokane. But defendant did not return with Mr. Hundley. Mr. Hundley knew that defendant had two cellular telephones. One of the telephone numbers had a Spokane, Washington area code. Mr. Hundley was in prison when Mr. Wingfield was killed. Mr. Hundley was released from prison on March 5, 2003. After being paroled, Mr. Hundley spoke to defendant. In that conversation, Mr. Hundley said he had never been to Las Vegas. In mid-May 2003, defendant called Mr. Hundley. Defendant wanted to know if Mr. Hundley wanted to go to Las Vegas. Defendant picked Mr. Hundley up a few hours later. Defendant and Mr. Hundley drove to Las Vegas, where they spent four days. While they were in Las Vegas, defendant made cellular telephone calls to Mr. Hundley’s cousin, Elaine Braxton. At that time, defendant was dating Ms. Braxton.
While en route to Las Vegas, defendant and Mr. Hundley spoke about things occurring in the neighborhood. Mr. Hundley heard that Mr. Wingfield had been killed. But when the subject came up, Mr. Hundley claimed he had not heard about the killing. Defendant said, “You know I did that; right?” Mr. Hundley responded, “Nah.” Defendant explained why Mr. Wingfield was killed. According to Mr. Hundley, “He said that [Nathan Wheaton] and [Phillip Young] got life because [Mr. Wingfield] snitched on his family member.” Mr. Wingfield had testified against Mr. Wheaton and Mr. Young in the trial involving the murder of Mr. Ray. After testifying, Mr. Wingfield was relocated under the witness protection program.
Mr. Hundley was arrested on June 11, 2003, for assault. Mr. Hundley and two others had beaten Sammy Jones. They did so because Mr. Jones was labeled a “snitch.” While in custody, Mr. Hundley spoke to an investigator identified only as Detective Guzman. Mr. Hundley was later interviewed by Detective Dan Myers. Mr. Hundley described the conversation with defendant about the killing of Mr. Wingfield on their trip to Las Vegas. Mr. Hundley asked that he be released in exchange for the information because he was afraid. Mr. Hundley was fearful of being incarcerated in the future with defendant or other gang members.
At an August 3, 2003 gang celebration, Mr. Hutchins and Mr. Hundley got into a fist fight. Several people became involved. When the fight broke up, defendant was yelling at Mr. Hutchins. Defendant put a gun in Mr. Hutchins’s face. Defendant yelled to everyone to move out of the way. Defendant told everyone, “You are going to watch how I get down.” Everyone ran and took cover. Defendant then put his gun away and ran to his car. When Mr. Hutchins saw defendant in the neighborhood later, no words were exchanged. Several months later, Mr. Hutchins was driving in the neighborhood where defendant resided. Mr. Hutchins saw defendant and stopped to talk. Defendant said: “I know that you know what I did to [Mr. Wingfield] but I don’t have nothing - - you know, I have no problems with you. It had nothing to do with you or me and you.” Defendant then explained if someone in his family was to “snitch” and something happened to them: “Then that’s just how it went... There was nothing that [Hutchins] could complain about or nothing [defendant] could complain about. Just keep going. Just go on. That is how it goes. That was the code of the streets....” Mr. Hutchins was arrested on September 29, 2004 after a gun in his possession accidentally discharged while he was being chased by the authorities. Mr. Hutchins was charged with assault on a peace officer with a firearm. Thereafter, Detectives Myers and Burciaga visited Mr. Hutchins in the jail. Mr. Hutchins discussed what defendant had said following the August 2003 party incident. The assault on a peace officer charges were dismissed at the preliminary hearing. This occurred after the officer who chased Mr. Hutchins testified at the preliminary hearing. Mr. Hutchins testified at defendant’s preliminary hearing in this case. Thereafter, he pled guilty to negligent discharge of a firearm and felon in possession of a firearm in his own case. However, Mr. Hutchins did not believe he received any benefit for his testimony in this case. As a result of his testimony, Mr. Hutchins received death threats and his family was frightened.
About a month after the August 2003 party, Mr. Hundley was on 77th Street with other gang members. Defendant drove up. Defendant said “What’s up?” to Mr. Hundley. Mr. Hundley did not respond. Defendant said, “You got a problem with me?” Mr. Hundley responded, “Nah.” Defendant said, “You been acting kind of funny lately like we can set it up right now.” Defendant pulled out two guns and set them on the hood of the truck. Mr. Hundley walked away because he did not know if defendant’s guns were loaded. Defendant followed Mr. Hundley in his truck. Mr. Hundley arrived at the 79th Street apartment complex. Mr. Hundley told defendant to wait at the gate. Mr. Hundley went inside to get his gun. Defendant walked away. As noted, Mr. Hundley testified at defendant’s preliminary hearing. At defendant’s preliminary hearing, Mr. Hundley encountered several local gang members in the hallway. Mr. Palmer said, “I’m going to get you, bitch.”
Detective Myers served a search warrant on defendant’s residence on August 3, 2004. Defendant, Ms. Murrell, and another man were present. A cellular telephone was recovered at that time. A contact list generated by that cellular telephone was introduced at trial. A Kaiser Permanent Card and a Cigna Health Insurance envelope in Mr. Palmer’s name were also found in the course of the search. Detectives Myers, Jolivette, and Erik Baker examined the cellular telephone recovered at the murder scene. Detective Baker opened the phone while wearing gloves. Detective Baker utilized a pen to access the contact list as well as the number assigned to the cellular telephone.
Defendant’s jail visiting records were introduced at trial. Defendant’s jail telephone conversations were recorded. Two of those conversations were played at trial.
Detective Burciaga was familiar with Mr. Palmer. Counsel stipulated to the fact that Mr. Palmer was a member of the local gang. In his experience with the gang unit, Detective Burciaga believed that gang members work together to advance their activities such as selling drugs and committing crimes. The gang members also protect each other from rival gangs. The gang members might also intimidate witnesses by threats, bodily force, shootings, or death. If a gang member testifies against a fellow gang member, he or she or their family members might be assaulted or shot.
Detective Burciaga was posed with the hypothetical question of what the effect would be if a local gang member shot and killed another local gang member because the victim testified against other members. Detective Burciaga believed: the victim’s testimony would violate the gang’s rule against such cooperation with the authorities; the individual that testifies will suffer consequences for violating the rules; and the individual that takes the retaliatory action will elevate his status within the gang. Detective Burciaga produced documentation at trial which confirmed the arrest and conviction for second degree murder committed on July 18, 2000 by Damian Monroe Williams, a local gang member, in case No. BA206529, in addition, local gang member Jeremy Baycott was convicted of an October 17, 2001 murder in case No. A226685.
III. DISCUSSION
A. Trial Court’s Ruling Regarding the Unavailability of Ms. Newell
1. Factual and procedural background
Defendant argues that the trial court improperly found Ms. Newell, a prosecution witness, unavailable after she refused to return to court after one day of direct and cross-examination. Defendant argues that his federal and state constitutional rights to due process and the confrontation and cross-examination of witnesses against him were violated. As set forth above, Ms. Newell testified for the prosecution on Friday, June 8, 2007. Following her direct examination, Ms. Newell was cross-examined at length by defense counsel. When the court adjourned for the weekend, Ms. Newell was ordered back for Monday, June 11, 2007. On June 11, 2007, Detective Myers testified outside the presence of the jury that he went to Ms. Newell’s residence that morning to bring her to court. Ms. Newell was lying on the floor under some covers. When Detective Myers told Ms. Newell that they must leave for court, she responded: “I ain’t going to no mother fucking court. I’m done. You ruined my life.” Ms. Newell was very emotional. Detective Myers testified: “Her mother was able to get her up off the floor and she immediately ran to the bathroom. [¶]... She locked the door. I continued to talk with her mother and trying to get the mother to assist me in gaining her cooperation. [¶] The mom tried to calm her down but she just continued to yell profanities through the door and indicated numerous times that she’s done.” Ms. Newell told Detective Myers, “Get... the fuck out of [my] house.” Ms. Newell opened the bathroom door at one time. Ms. Newell had a telephone in her hand and took a combative stance, yelling obscenities at Detective Myers. Detective Myers feared there would be a physical altercation if he attempted to restrain Ms. Newell.
The trial court explored several possibilities, including arresting Ms. Newell and holding her in contempt. However, the trial court indicated: “My sense is, that at some point she’ll go along and answer the questions.... I feel the best way to proceed at this point would be to go ahead and have her physically brought before the court. And I will issue such an order.... [¶] And we’ll deal with her when she gets here. I think the experience we all have is that people often calm down when faced with an appropriate show of force. [¶]... [¶] I think what we should do is go on the [sic] with the trial. [¶] We’ll tell the jury that the witness is unavailable this morning and we’ll proceed.”
Subsequent extensive efforts to locate Ms. Newell were unsuccessful. Ms. Newell called Detective Myers on the evening of Wednesday, June 13, 2007. Ms. Newell again refused to return to testify. When Detective Myers informed Ms. Newell that she was legally obliged to testify, she responded, “Well, you are going to have to find me first.” On Thursday, June 14, 2007, the prosecutor indicated to the trial court that he had called the courtroom on Monday, June 11, 2007, to report Ms. Newell’s resistance to accompanying Detective Myers. The prosecutor intended to speak with the court clerk. However, the trial court answered the telephone. The trial court explained, “Mr. Stirling called the court on Monday morning and while Detective Myers... was still in the house and said, ‘What do you want us to do’, I said that I thought that since the witness had been cooperative up to that point, that it would be best to talk about it with counsel at nine o’clock on the record and we did so.”
Defense counsel, Matthew Fletcher, argued that defendant had been deprived of the opportunity to complete the cross-examination of Ms. Newell. The trial court then noted: “[I] made the wrong decision as the events have transpired. But that’s it. I mean, the decision was made. But it was not the detective’s decision and it was an emergency situation. The prosecutor called. I made the decision. [¶] I felt that having seen the witness flare and then calm down and then flare again in response to cross-examination and based on my experience in having tried literally hundreds of gang type murder case, I felt this witness, under the circumstances that she presented would be available and would frankly calm down once presented with a court order and the detective would be in a better position to use physical force, if necessary, if we allowed the witness to calm down. And that was all something that the court considered and the court was wrong. [¶] So where are we? [¶] We’ve got to move on. Jeopardy has attached. There is a motion to strike her testimony. [¶] I will strike her testimony, tell the jury not to consider it. And I will allow the People to read the preliminary hearing transcript into the record of her prior testimony.” The trial court later noted, “[R]egarding the defendant’s right to cross-examine, there is no violation of that because there was a preliminary hearing and you had a right to cross-examine at the preliminary hearing.” Thereafter, Mr. Fletcher moved to strike Ms. Newell’s testimony.
However, when discussions continued about various necessary redactions from the preliminary hearing testimony, Mr. Fletcher argued that there were areas not addressed at the preliminary hearing. Mr. Fletcher argued: “The right of cross-examination should mirror the duty of an attorney to cross-examine at trial. They have to be the same or similar motive gone into.” The trial court disagreed. Mr. Fletcher then asked that her testimony be stricken that a continuance be granted and an order that the prosecution continue to try to locate Ms. Newell. The trial court denied the continuance motion, noting that juror attrition issues and other matters had prolonged the trial. The trial court noted, “I don’t see the need to continue the case for a witness who is willfully evading when the prosecution agents have done what they have done to satisfy the court to look for her sufficiently.” The trial court agreed to issue an arrest warrant for Ms. Newell.
On Friday, June 15, 2007, the trial court inquired whether Mr. Fletcher had the opportunity to review Ms. Newell’s preliminary hearing transcript that had been redacted by the prosecutor. When Mr. Fletcher indicated he had not done so, the trial court requested that he do so before the next court day on Monday. The trial court noted that if Ms. Newell was found in the interim, it would be unnecessary for her preliminary hearing transcript to be read. On Tuesday, June 19, 2007, Detective Myers testified regarding his additional efforts to locate Ms. Newell by: repeatedly going to her residence; speaking to neighbors; knocking on doors; canvassing areas where he had previously seen her; and speaking to her mother by telephone. Mr. Fletcher argued that the prosecution had not shown due diligence in their attempts to locate Ms. Newell. The trial court again found Ms. Newell was unavailable and that reasonable efforts were made to secure her presence at trial.
When the prosecutor indicated he would be reading Ms. Newell’s preliminary hearing transcript, Mr. Fletcher argued: “I would object to that. It is an undue waste of time. [¶] I ask that we simply - - we get a negative admonition to the jury that the witness did not show back up and we stop. [¶] I cannot - - I think the People are attempting to drag this out to get a hung jury.... [¶] It’s not like this case can’t be done - - we’re going into the third week. We’re going to lose our last alternate today. And I just - - object to the reading of it. [¶] I would ask the court for a negative admonition regarding a failure to come back - - failure to cooperate or excuse me, a failure to follow a lawful court order, refusal to come back for cross-examination and that they may draw negative inferences from that.”
The trial court then indicated: “I will strike [Ms. Newell’s] entire testimony. The jury may consider her manner and demeanor as a witness but not what she said, the questions asked or the answers given. [¶] I will allow the prosecution to read into the record the prior testimony. I will give a jury instruction that I will have to fashion regarding the fact that the witness has refused to comply with the court process. And the jury will be advised that the witness has refused to come back to court.” Mr. Fletcher then asked the court to reconsider the motion to strike the testimony and “simply allow the testimony to remain as it is and to give an admonition.” The trial court responded:
“It was my recollection - - it is my recollection, [Mr. Fletcher], that the prosecution invited you to stipulate that the testimony was complete. But it was not complete. You did not agree to that. And I think that the only course is to do what we’re doing, which is to strike the testimony.” Mr. Fletcher again inquired: “If the court so decides. [¶] I am asking the court to reconsider. I am withdrawing that motion to strike the testimony. It has not been stricken at this point in time. [¶] We’re going to have a hung jury. We are one juror away.”
The prosecutor argued: “I would like to redirect [Ms. Newell]. I very much so would like to redirect her. [¶] Consequently, to have the record stricken would be the appropriate thing to do in light of my inability to redirect this witness.” The trial court noted: “It is my understanding that that was the offer you made to [Mr. Fletcher] originally, that if [Mr. Fletcher] just said my cross-examination is over, the People would have no redirect and we would go on with the trial.” The prosecutor responded, “That was a suggestion to him to avoid all the work that had to be done thereafter to make efforts to find this witness and then potentially put her through having to be arrested, brought to court, going to jail.... [¶] I spent, you know, hours going through the preliminary hearing transcript redacting things. The detective spent long periods of time looking for this witness.” The prosecutor concluded that the only thing to do at that point in the trial would be to read the preliminary hearing transcript because Ms. Newell had been fully examined at that time. Mr. Fletcher argued, “I just want the record to be clear. I have no further questions for Miss Newell. We’re at the status quo as we begin. [¶] Now the People then are going to get the benefit of two direct examinations and I think that’s what - - that’s done by their witness.” The trial court then struck Ms. Newell’s trial testimony and ruled the jury would be able to consider her manner and demeanor as well as having the preliminary hearing transcript read into the record. Later that day, the trial court indicated that he would like to do a little research before the preliminary hearing transcript was read into the record.
On Wednesday, June 20, 2007, the trial court inquired of Mr. Fletcher: “Is it still the defense request that first, that I strike [Ms. Newell’s] testimony in its entirety and not declare her to be an unavailable witness under Evidence Code 240 - - not declare her to be unavailable? [¶]... [¶] Your threshold position is, I did not finish my cross-examination and she is not available.” Mr. Fletcher responded, “Right.” The trial court noted for the record: “[I]n the court’s view sufficient evidence to convince the court that Miss Newell under the law is an unavailable witness under Evidence Code section 244 in that she is absent from the hearing and the court is unable to compel her attendance by its process. [¶] I find that neither side has done anything to keep her from the court. This is her own independent action. So, I have found that she is technically unavailable under 244.” The trial court then inquired of Mr. Fletcher, “[Y]ou would waive your right to any further right to cross-examine and confront her at this trial?” Mr. Fletcher responded, “Yes, just for record that decision - - this is for the appellate court. This is a strategic decision that I have made based upon, one, I do not want a mistrial. I think there is a real risk that the more time we go, the greater the likelihood of mistrial. The reading of the transcript will not [sic] take a lot time. [¶] Additionally, the only issue with Miss Newell is credibility and believability. I think from the defense perspective there have been more than a sufficient amount of cross-examination allowed by the court and that we were able to ascertain from Miss Newell to argue to the jury - - and I think there is no prejudice to [defendant] in regards to me making the strategic decision to say that there has been a sufficient amount of testimony.” (Italics added.)”
The trial court clarified: “So faced with the court’s finding of unavailability you feel the better avenue to pursue is to say, Judge, let the jury consider what they got from [Ms.] Newell. And I don’t want them getting the preliminary hearing transcript and being burdened with having to strike her live testimony.” Mr. Fletcher responded, “Correct.” The prosecution objected based on the inability to pursue redirect examination of Ms. Newell. The trial court concluded that after reading the preliminary hearing transcript, it believed there was nothing significant for either side that was not covered during the testimony the jury heard. The trial court ruled there would be little served in reading it to the jury. Thereafter, the prosecutor voiced extensive disagreement because he had been unable to pose additional questions of Ms. Newell on redirect and clarify issues raised during the extensive argumentative cross-examination by Mr. Fletcher. The trial court then ruled: “[O]n [Evidence Code] 352 grounds that since the defense has waived their further right to cross-examine the witness, that the jury has heard enough of Yolanda Newell to be able to gauge what she had to say and her evidence. I thought much of it was gone over in detail. I think the jury has enough of [Ms.] Newell to make the decision. I don’t think that reading the transcript will assist them. It is basically a rehash of what she gave us on the date she testified. And so I am going to, on 352 grounds, not allow the People to read the transcript.” When the prosecution rested its case, the trial court instructed the jurors as follows: “The prosecution has rested its case in chief. Before we go to the defense case, I want to tell you that Yolanda Newell was ordered to return to court on the Monday following the Friday that she testified. [¶] She refused to come to court and her present whereabouts are unknown. [¶] You may consider that for any purpose that you care to ascribe to that.”
2. Forfeiture
Defendant argues that he was denied his constitutional right to complete cross-examination of Ms. Newell because the trial court found her unavailable. However, defendant’s adamant strategic decision to forego any further cross-examination if the preliminary hearing transcript was not read to the jurors forfeits the issue on appeal. As noted, Mr. Fletcher specifically noted: “I think from the defense perspective there have been more than a sufficient amount of cross-examination allowed by the court and that we were able to ascertain from Miss Newell to argue to the jury - - and I think there is no prejudice to [defendant] in regards to me making the strategic decision to say that there has been a sufficient amount of testimony.” (Italics added.)
The defense’s clear tactical choice in declaring the cross-examination of Ms. Newell adequate amounts to invited error and bars consideration of the issue on appeal. (People v. Williams (2008) 43 Cal.4th 584, 629; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49 [“‘If [Mr. Fletcher] intentionally caused the trial court to err,’” acting for tactical reasons and not out of mistake, the claim is barred on appeal as invited error]; People v. Prieto (2003) 30 Cal.4th 226, 264-265 [Mr. Fletcher’s deliberate tactical choice to request an instruction bars consideration of error in the giving of the instruction on appeal]; see also People v. Rodrigues (1994) 8 Cal.4th 1060, 1193 [“Inasmuch as defendant both suggested and consented to the responses given by the court, the claim of error has been waived.”].)
B. Gang Testimony
1. Factual and procedural background
Defendant argues that the trial court improperly allowed Sergeant Burciaga to render an improper opinion regarding the motive of the person who shot Mr. Wingfield. Defendant reasons the opinions offered were tantamount to stating he was guilty of first degree murder. At trial, the prosecutor inquired of Sergeant Burciaga, “Do you - - the following question - - do you have an opinion if one member of the [local] gang shoots and kills another member of the same gang because the victim member previously testified against other members of the same gang, question one, what is the effect upon the gang?” Mr. Fletcher then objected: “The particulars of that hypothetical particularly that he shot him have not been proved in this case. Improper hypothetical.” The trial court overruled the objection. As set forth above, Sergeant Burciaga then responded that there would be retaliation in some form and the gang member who enforced the rules would gain status within the gang.
Mr. Fletcher next pursued the question of retaliation on cross-examination, inquiring of Sergeant Burciaga: “Okay. And in regards to your assertions that the hypothetical - - that if a person testified against another gang member that they would be retaliated against; is that your opinion?” Sergeant Burciaga responded, “Yes.” Mr. Fletcher then questioned whether Sergeant Burciaga had discussed this theory with other gang investigators.
2. Forfeiture
Preliminarily, defendant failed to preserve the claim that an answer to the hypothetical was tantamount to saying he was guilty of the murder. As set forth above, defendant’s trial objection was: “The particulars of that hypothetical particularly that he shot him have not been proved in this case. Improper hypothetical.” The California Supreme Court has held: “‘“[Q]uestions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal. [Citation.]”’ [Citations.]” (People v. Williams, supra, 43 Cal.4th at p. 620, quoting People v. Seijas (2005) 36 Cal.4th 291, 301; see People v. Partida (2005) 37 Cal.4th 428, 434-435.) No such objection was interposed here.
3. The challenged opinion testimony could properly be admitted into evidence
Notwithstanding the forfeiture of the issue, defendant’s argument is meritless. Our Supreme Court has held: “‘Trial courts exercise discretion in determining both the admissibility of evidence under Evidence Code section 352 [citation] and a witness’s expert status [citation].’ [Citation.]” (People v. Gonzalez (2006) 38 Cal.4th 932, 944.) In People v. Gardeley (1996) 14 Cal.4th 605, 617, our Supreme Court held Evidence Code section 801 permitted a trial court to admit testimony concerning “the culture and habits” of criminal street gangs. (See also People v. Gonzalez, supra, 38 Cal.4th at p. 944; People v. Champion (1995) 9 Cal.4th 879, 919-922; People v. Killebrew (2002) 103 Cal.App.4th 644, 653; People v. Olguin (1994) 31 Cal.App.4th 1355, 1370; People v. Gamez (1991) 235 Cal.App.3d 957, 965-966, overruled in part in People v. Gardeley, supra, 14 Cal.4th 605, 624.) We review the trial court’s admission of gang evidence for abuse of discretion. (People v. Gonzalez, supra, 38 Cal.4th at p. 944; People v. Carter (2003) 30 Cal.4th 1166, 1194.)
Evidence Code section 801 provides in relevant part: “If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: [¶] (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact...”
In People v. Ward (2005) 36 Cal.4th 186, 210, our Supreme Court found that the content of the opinions introduced in that trial involved gang culture and habit evidence approved in Gardeley: “The substance of the experts’ testimony, as given through their responses to hypothetical questions, related to defendant’s motivation for entering rival gang territory and his likely reaction to language or actions he perceived as gang challenges. [Citations.] This testimony was not tantamount to expressing an opinion as to defendant’s guilt. [Citation.]” The same was true in this case. The trial court could reasonably permit answers to the hypothetical question regarding the typical gang reaction to members who become witnesses against fellow gang members.
4. Any error in admitting the hypothetical evidence was harmless
Even if the trial court improperly admitted Sergeant Burciaga’s testimony regarding the likelihood of retaliation based upon his experience with gangs, any such error was harmless. As set forth above, evidence was introduced that defendant told two other gang members that he committed the charged killing. In addition, Ms. Newell testified that she saw defendant pointing a gun at Mr. Wingfield while hiding behind a tree and immediately heard the gunshots. Ms. Newell then saw Mr. Wingfield on the ground and defendant and Mr. Palmer crossed the street to blend into the crowd. Defendant’s fingerprints were on the cellular phone and a cup dropped at the murder scene. Even absent the hypothetical evidence, it is not reasonably probable that defendant would have had a more favorable outcome. (People v. Doolin (2009) 45 Cal.4th 390, 439; People v. Riggs (2008) 44 Cal.4th 248, 300-301 People v. Watson (1956) 46 Cal.2d 818, 836.)
C. Trial Court’s Refusal to Instruct with CALCRIM No. 306
1. Factual and procedural background
Defendant argues the trial court improperly refused to instruct the jurors with CALCRIM No. 306 regarding the prosecutor’s failure to produce records regarding all relocation expenses paid to Ms. Newell and the rolling of his fingerprints during trial. When cross-examined at the preliminary hearing on April 14, 2005, Mr. Hundley testified he was offered relocation expenses by the Los Angeles Police Department. On redirect examination, Mr. Hundley stated he had never been offered money or leniency in exchange for his testimony. In addition, Sergeant Myers testified that fingerprints recovered from the cellular telephone found at the scene of the shooting matched defendant’s. On August 2, 2006, defendant filed a common law motion to dismiss the information for the prosecution’s failure to “provide discovery” on the criminal records and pending prosecutions of Mr. Hundley and Mr. Hutchins. No claim was made regarding relocation expenses for witnesses or fingerprint evidence. Also on August 2, 2006, defendant filed a motion to suppress intercepted communications. In the statement of facts related to that motion, defendant acknowledged that his fingerprints were matched to those found on a cup and cellular phone battery found at the scene.
The trial court asked the prosecutor, Phillip S. Stirling, if he had an “up-to-date amount” as to the moneys paid to Ms. Newell. Mr. Stirling responded, “Total amount is $11,000. The number counsel threw out, I have never heard that before.” During cross-examination of Ms. Newell, Mr. Fletcher, argued outside the presence of the jury: “Your honor, I ask to have the discovery of what [Ms. Newell] received. I have been asking for it and there were discovery requests made.” The prosecutor responded the California Department of Corrections assisted Ms. Newell with her rehabilitation and that had nothing to do with the case at trial. In addition, the relocation receipts were with the Department of Justice relocation program. When asked what was spent on her relocation, the prosecutor indicated the $11,000 was spent for rent, food, and relocation expenses. When Mr. Fletcher demanded to know the specific amounts spent for each item, the prosecutor indicated the detective could be cross-examined on that subject. The prosecutor noted that Mr. Fletcher had requested the detailed accounting just two days earlier. The trial court noted: “I agree that you’re entitled to know what benefits a witness has received, particularly a critical witness, such as this witness in this case. [¶] But in terms of the fact as to whether or not she was paid rent versus grocery money, I’m not sure that that’s a great amount and nor is it something that is essential to effective cross-examination.”
Ms. Newell was then cross-examined about the $11,000. Initially, Ms. Newell testified that Detective Myers gave her the money. Then Ms. Newell testified, “He gave it to my momma.” When asked if Detective Myers gave the $11,000 all at once, Ms. Newell responded: “I can’t - - I don’t know. I can’t count. [¶]... [¶] Whatever they gave her, I’m not on the streets no more.” Ms. Newell subsequently testified that she did not know how much money was paid because it was given to her in an envelope. Ms. Newell stated that after the shooting she was found in violation of parole. Ms. Newell requested and was sent to a six-month rehabilitation program. Thereafter, the police gave Ms. Newell’s mother money when they needed it to pay for rent and food.
Prior to the testimony of the latent print examiner, Ms. Williams, the prosecutor directed her to roll defendant’s fingerprints. Ms. Williams had utilized a fingerprint card with defendant’s name that was on file from a previous arrest to identify the latent prints on the cup and cellular telephone battery. Mr. Fletcher objected that he was entitled to have his own latent print expert examine the new prints before they were presented at trial. The trial court agreed that the fingerprints could have been rolled before trial, but overruled the defense objection. The trial court indicated it would consider a jury instruction regarding late disclosure. Ms. Williams testified that she compared defendant’s fingerprints from police records to the latent prints on the cup and cellular phone battery. Ms. Williams determined that there was a match. Ms. Williams’s findings were confirmed by two other latent print specialists. Ms. Williams then rolled defendant’s fingerprints and compared them to his fingerprint card on file. Ms. Williams then confirmed that defendant’s fingerprints rolled at trial were, to the exclusion of every other person on the planet, the same as those from the fingerprint card on file.
During the discussion of proposed instructions, Mr. Fletcher requested the trial court give CALCRIM No. 306, regarding delayed disclosure. The trial court noted that a document related to Ms. Newell was produced. The document indicated $10,820 was paid between December 10, 2004 and May 10, 2005. Mr. Fletcher argued that the document had inadequate detail. The trial court noted: “The basic point is, she got money. She acknowledged she got money. It is quite a lot of money for someone in her capacity who acknowledges a drug habit and no employment.” With regard to the fingerprinting issue, the trial court acknowledged that although it should have been done prior to trial, defendant was not protected from having his fingerprints disclosed. The trial court concluded neither incident constituted late disclosure and refused to give CALCRIM No. 306.
CALCRIM No. 306 provides in pertinent part: “Both the People and the defense must disclose their evidence to the other side before trial, within the time limits set by law. Failure to follow this rule may deny the other side the chance to produce all relevant evidence, to counter opposing evidence, or to receive a fair trial. [¶] An attorney for the (People/defense) failed to disclose: ___________ [within the legal time period]. [¶] In evaluating the weight and significance of that evidence, you may consider the effect, if any, of that late disclosure. [¶] [However, the fact that the defendant's attorney failed to disclose evidence [within the legal time period] is not evidence that the defendant committed a crime....]”
2. The trial court could reasonably refuse to give CALCRIM No. 306
A trial court is obliged to instruct, even without a request, on the general principles of law which relate to the issues presented by the evidence. (§§ 1093, subd. (f), 1127; People v. Abilez (2007) 41 Cal.4th 472, 517; People v. Wims (1995) 10 Cal.4th 293, 303, limited on another ground in People v. Sengpadychith (2001) 26 Cal.4th 316, 326.) In addition, we review a trial court’s ruling on disclosure matters under an abuse of discretion standard. (People v. Ayala (2000) 23 Cal.4th 225, 299; People v. Breaux (1991) 1 Cal.4th 281, 312.) Section 1054.1 states in relevant part: “The prosecuting attorney shall disclose to the defendant or his or her attorney all of the following materials and information, if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies: [¶]... [¶] (c) All relevant real evidence seized or obtained as a part of the investigation of the offenses charged. [¶]... [¶] (e) Any exculpatory evidence. [¶] (f) Relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial, including any reports or statements of experts made in conjunction with the case, including the results of physical or mental examinations, scientific tests, experiments or comparison which the prosecutor intends to offer in evidence at the trial.” (See also Verdin v. Superior Court (2008) 43 Cal.4th 1096; 1103-1104; People v. Superior Court (Meraz) (2008) 163 Cal.App.4th 28, 47.) In addition, our Supreme Court has held, “‘The prosecution has a duty under the Fourteenth Amendment’s due process clause to disclose evidence to a criminal defendant’ when the evidence is ‘both favorable to the defendant and material on either guilt or punishment.’ [Citations.] Evidence is ‘favorable’ if it hurts the prosecution or helps the defense. [Citation.] ‘Evidence is “material” “only if there is a reasonable probability that, had [it] been disclosed to the defense, the result... would have been different.”’ [Citations.]” (People v. Earp (1999) 20 Cal.4th 826, 866; see United States v. Bagley (1985) 473 U.S. 667, 674-678; Brady v. Maryland (1963) 373 U.S. 83, 87; People v. Superior Court (Meraz), supra, 163 Cal.App.4th at p. 47.) However, the California Supreme Court has held: “[E]vidence that is presented at trial is not considered suppressed, regardless of whether or not it had previously been disclosed during discovery. [Citations.]” (People v. Morrison (2004) 34 Cal.4th 698, 715; see People v. Superior Court (Meraz), supra, 163 Cal.App.4th at p. 51.)
In this case, the total amount provided Ms. Newell for relocation expenses was disclosed to defendant. But, the exact amounts allotted to rent, food, and the like were of little consequence to Mr. Fletcher’s ability to cross-examine her on the topic. In fact, Mr. Fletcher questioned Ms. Newell at length about having received money from the authorities and suggested that her testimony may have been tainted by that benefit. Defendant was not prejudiced by his inability to obtain a detailed accounting statement. Likewise, defendant was not prejudiced by the fact that the latent print specialist obtained his fingerprints during the course of the trial. Defendant’s prior fingerprint card had been utilized to match the latent prints found on the cup and cellular telephone battery found at the scene of the murder. The midtrial fingerprint evidence served only to confirm that the forensic specialist verified that the original fingerprints were indeed taken from defendant. As the trial court noted, defendant was not protected from having his fingerprints disclosed. The trial court could reasonably rule that the gravamen of the relocation expenses and fingerprint evidence were made available to Mr. Fletcher prior to trial. As a result, the trial court could reasonably determine that the relevant evidence was presented to the jury and no instruction regarding delayed disclosure was required. Moreover, any error in failing to instruct the jury regarding delayed discovery was harmless under any standard of reversible error. (Chapman v. California (1967) 386 U.S. 18, 22; People v. Watson, supra, 46 Cal.2d at p. 836.)
D. Alleged Prosecutorial Misconduct
1. Overview
Defendant argues that the prosecutor committed misconduct during closing argument. The alleged misconduct consists of: improperly personally attacking Mr. Fletcher; commenting on defendant’s exercising his jury trial right; shifting the burden of proof to defendant; and improperly telling the jury what the witnesses would have testified to had they been called by the defense.
In reviewing the principles governing findings of prosecutorial misconduct our Supreme Court has consistently noted: “‘“The applicable federal and state standards regarding prosecutorial misconduct are well established. ‘“A prosecutor’s... intemperate behavior violates the federal Constitution when it comprises a pattern of conduct ‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.’”’ [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ‘“‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’”’ [Citation.]” (People v. Carter (2005) 36 Cal.4th 1215, 1263, quoting People v. Ochoa (1998) 19 Cal.4th 353, 427; People v. Hill (1998) 17 Cal.4th 800, 819; People v. Samayoa (1997) 15 Cal.4th 795, 841; see also Donnelly v. DeChristoforo (1974) 416 U.S. 637, 642-643; People v. Harris (1989) 47 Cal.3d 1047, 1084, criticized on other grounds in People v. Wheeler (1992) 4 Cal.4th 284, 299, fn. 10.)
Our Supreme Court has held: “‘“‘[A] prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.]...’... ‘[He]... “... is not limited to ‘Chesterfieldian politeness’” [citation], and he may “use appropriate epithets....”’” (People v. Wharton [(1991)] 53 Cal.3d [522] 567-568 [].)’ [Citation.]” (People v. Hill, supra, 17 Cal.4th at p. 819, quoting People v. Williams (1997) 16 Cal.4th 153, 221; People v. Brown (2003) 31 Cal.4th 518, 554.) The Supreme Court recently held: “[W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.” (People v. Morales (2001) 25 Cal.4th 34, 44; People v. Ayala, supra, 23 Cal.4th at pp. 283-284.)
1. Alleged attacks on Mr. Fletcher
a. Mr. Fletcher’s behavior during closing argument
Defendant argues that the prosecutor’s argument involved a “theme of attacking” Mr. Fletcher. The prosecutor was summarizing the relevance of the phone calls made from the cellular phone found at the murder scene. The prosecutor argued: “So what, you may say? I am getting there. And counsel is laughing at it. He’s reading the paper and laughing at it. Are we seeking the truth? [¶] I am trying to make a point to you. I am going to read the paper so you all think this is meaningless to me. That is what is being stated to you nonverbally. [¶] It is the sports section. It may be interesting, but this should be more important, don’t you think? [¶] So next issue - - and he laughs as he did throughout the entire trial. Are we seeking the truth to convey to the jury?” Mr. Fletcher objected, “It is improper to attack counsel.” The trial court instructed the prosecutor, “Just stick to the evidence.” The prosecutor then discussed the telephone records and their connection with defendant.
The California Supreme Court held: “A prosecutor commits misconduct if he or she attacks the integrity of [Mr. Fletcher], or casts aspersions on [Mr. Fletcher]. [Citations.] ‘An attack on the defendant’s attorney can be seriously prejudicial as an attack on the defendant himself, and, in view of the accepted doctrines of legal ethics and decorum [citation], it is never excusable.’ (5 Witkin & Epstein, [Cal. Criminal Law (2d ed. 1989)], Trial § 2914, p. 3570).” (People v. Hill, supra, 17 Cal.4th at p. 832; People v. Young (2005) 34 Cal.4th 1149, 1193; People v. Wash (1993) 6 Cal.4th 215, 265; People v. Thompson (1988) 45 Cal.3d 86, 112; People v. Williams (2009) 170 Cal.App.4th 587, 637.) However, our Supreme Court also held: “‘[A]s a general rule, to preserve a claim of prosecutorial misconduct, the defense must make a timely objection and request an admonition to cure any harm.... [Citations.]’ [Citation.]” (People v. Gurule (2002) 28 Cal.4th 557, 657, quoting People v. Frye (1998) 18 Cal 4th 894, 969, overruled on another point in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22; see also People v. Prieto, supra, 30 Cal.4th at p. 259-260.) Here, although Mr. Fletcher objected to the comment, no admonition was requested. Moreover, the objection was not raised in the new trial motion. Thereafter, the trial court’s comments directed the prosecutor’s comments back to the evidence. Even if the prosecutor improperly commented on Mr. Fletcher’s activities, no prejudice resulted.
In addition, when Mr. Fletcher gave his closing argument it was fraught with disparaging comments. For example, Mr. Fletcher argued: “It is not a question whether or not you want [defendant] to be your son-in-law.... That is not what it is but that is what the People tried to turn it into”; “[The prosecutor]’s telling you that he played that tape in a search for the truth? [¶]... [¶] [The tapes of jail telephone calls] had nothing - - nothing to do with your sacrifice. Nothing. It’s to piss you off”; “Every single thing the district attorney did is for a reason. Everything. [¶] When he wheels in carts of boxes, of books and nothing comes out of it, it’s to make you think, well, look at all that stuff”; and “[T]he prosecution in this case thinks you are fools” “What [the prosecutor] has done is called throw the spaghetti against the wall. [¶] [Y]ou throw it against the wall and hope that something sticks.” Any disparagement by Mr. Sterling was entirely harmless.
b. Mr. Fletcher’s interaction with Mr. McClain
Defendant also objects to the prosecutor’s reference to Mr. Fletcher’s interaction with witness Mr. McClain. The prosecutor argued that Mr. Fletcher discredited the prosecutor because Mr. McClain was called as a witness: “Lastly he mentioned Willie McClain, that he says that I referenced Willie McClain to you in opening statement when he ultimately came into court and wouldn’t speak a word. [¶] Opening statement is a road map. It is ‘I believe the evidence will show.’ Willie McClain walks into court. Who is the first person that walks up and whispers something to him? [¶] Was it me? [¶] Did I walk and approach and say --... - - or was it [Mr. Fletcher]?” At trial, when Mr. McClain was brought in to testify he was in custody. Mr. McClain entered the courtroom. Mr. Fletcher approached Mr. McClain and they spoke. When the prosecutor objected, the trial court ordered Mr. Fletcher to be seated. Mr. Fletcher responded, “I asked him if this was a letter he wrote.” Thereafter, Mr. McClain refused to testify. At a bench conference, the trial court found Mr. Fletcher’s behavior to be inappropriate. After excusing the jury, the trial court indicated it did not want any attorney approaching witnesses in the courtroom before they took the witness stand with the jury present. Mr. Fletcher’s objection to the prosecutor’s rebuttal was overruled. Again, Mr. Fletcher requested no admonition and has therefore waived the issue on appeal. In any event, the jurors saw what occurred. As a result, the prosecutor’s reference to the incident did not reveal anything that was not already apparent to them.
c. Ms. Newell’s eyesight
Defendant argues, “[T]he prosecutor discredited Mr. Fletcher’s characterization of [Ms.] Newell’s eyesight as being ‘50-50’ instead of what he really meant, ‘20-20.’” The prosecutor argued: “Then you go to Miss Newell. Before I go into her, a couple of brief points. When she said 50-50 eyesight, she meant 20-20 eyesight. Counsel [siezes] upon that point.” Mr. Fletcher objected, “That is testimony.” The trial court responded: “This is argument. He can argue it. Ladies and gentlemen, it’s up to you to decide what the facts have proven or not. The attorneys may argue what they believe are reasonable inferences.” The prosecutor’s remarks constituted a reasonable interpretation of Ms. Newell’s meaning when she said she had 50-50 vision. Moreover, any prejudice caused by the prosecutor’s comment was overcome by the trial court’s admonition, along with the instruction that the arguments of counsel are not evidence. (People v. Young, supra, 34 Cal.4th at p. 1194; People v. Stewart (2004) 33 Cal.4th 425, 499.)
2. Alleged comment on defendant’s failure to testify
In his closing argument, the prosecutor reviewed defendant’s recorded phone conversations at length. Here, defendant objects to the following argument: “[Defendant] says ‘I am going to have her call you because I don’t want to put it on the phone. You feel me?’ [¶] If you’re innocent - - and again, what we’re dealing with here is innocence and guilt. There is no middle ground.” Mr. Fletcher objected, “That is a misstatement of the law.” The trial court responded, “Innocence?” [¶]... [¶] It’s his argument. He can argue that.” The prosecutor, quoting defendant in an intercepted telephone conversation, then continued to argue: “Phones ain’t cool. I can’t tell you. I have got to tell you through somebody else. Think about this when you are assessing the credibility of the witnesses. [¶] What do you have to be afraid of? Just say it how it is. If you are innocent, the truth will free you.” Mr. Fletcher then demanded a “side bar” conference and the trial court denied his request. After the trial court said that Mr. Stirling’s analysis was argument, Mr. Fletcher stated, “That my client has to say nothing?” The following ensued: “THE COURT: No, your client does not have to say anything. [¶] MR. FLETCHER: Then he can’t argue -- [¶] THE COURT: No, please, that is not what is being argued here. [¶] Ladies and gentlemen, I will remind you the defendant doesn’t have to prove innocence. The state has to prove guilt. [¶] I did not interpret Mr. Stirling’s argument to be suggesting that Mr. Nelson had any obligation under the law to say certain things on that phone call. [¶] These are phone calls that were intercepted. And we’re not talking about the legal responsibilities in a courtroom. It is up to the jury to decide if the state has proven guilt. This is as Mr. Stirling was saying, an investigative tool. You may consider this as evidence. Go ahead, Mr. Stirling. [¶] MR. STIRLING: I am referring to these calls and only these calls.”
At a subsequent discussion outside the presence of the jury, the trial court addressed the issue: “Okay, Mr. Fletcher I understand your objection to be you thought [the prosecutor] was commenting on the fact that your client had to prove his innocence. [¶] I do not feel that he was.” The prosecutor stated, “My comment was voicing aspiration to [defendant].” The trial court continued, “That is how I interpreted it.” When Mr. Fletcher argued that innocence did not need to be proven, the trial court continued: “But I don’t think he was saying that. He was just saying that you are overhearing conversations. And if the person was making statements that are not consistent with innocence, the jury can consider that. That’s all that was, and that is all I interpreted it to be.” Thereafter, Mr. Fletcher objected that defendant need not say anything.
Griffin v. California (1965) 380 U.S. 609, 614-615, prohibits prosecutorial comment on a defendant’s exercise of the Fifth Amendment right not to testify. Our Supreme Court has held: “Griffin forbids argument that focuses the jury’s attention directly on an accused’s failure to testify and urges the jury to view that failure as evidence of guilt. [Citation.]” (People v. Avena (1996) 13 Cal.4th 394, 443; People v. Hardy (1992) 2 Cal.4th 86, 153-154.) The Griffin decision has been interpreted as follows, “[T]he decision has been interpreted as prohibiting the prosecution from so much as suggesting to the jury that it may view the defendant’s silence as evidence of guilt.” (People v. Guzman (2000) 80 Cal.App.4th 1282, 1287-1288; citing United States v. Robinson (1988) 485 U.S. 25, 32; accord, Baxter v. Palmigiano (1976) 425 U.S. 308, 319.)
However, the Griffin rule does not apply to statements that are not directed at the defendant’s failure to testify, but to the lack of evidence presented by the defense. The Court of Appeal has held: “‘Under the rule in Griffin, error is committed whenever the prosecutor or the court comments, either directly or indirectly, upon defendant’s failure to testify. It is well established, however, that the rule prohibiting comment on defendant’s failure to testify “does not extend to comments on the state of evidence or on the failure of the defense to introduce material evidence or to call logical witnesses.”’” (People v. Font (1995) 35 Cal.App.4th 50, 57, quoting People v. Morris (1988) 46 Cal.3d 1, 35, disapproved on other grounds by In re Sassounian (1995) 9 Cal.4th 535, 543-544, fn. 5; accord, People v. Cornwell (2005) 37 Cal.4th 50, 90, disapproved on another point in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22; People v. Turner (2004) 34 Cal.4th 406, 419; People v. Lewis (2001) 25 Cal.4th 610, 670-671; People v. Dominguez (1992) 11 Cal.App.4th 1342, 1351.) A comment on a failure to present logical evidence may constitute Griffin error if the referenced missing matter could only have been provided by the defendant’s testimony. (People v. Clair (1992) 2 Cal.4th 629, 662; People v. Vargas (1973) 9 Cal.3d 470, 476.)
We review the prosecutor’s comments to determine whether there is a reasonable likelihood that the jury would be misled about the inference to be drawn from defendant’s silence. (People v. Lewis, supra, 25 Cal.4th at pp. 670-671; People v. Mayfield (1993) 5 Cal.4th 142, 178; People v. Clair, supra, 2 Cal.4th at p. 663.) Here, the prosecutor did not directly or indirectly suggest to the jury that defendant’s silence at trial was evidence of guilt. Rather, as the trial court concluded, the prosecutor could argue that the jurors consider the recorded statements as inconsistent with innocence. Our Supreme Court has held: “‘[W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.’ [Citation.]” (People v. Prieto, supra, 30 Cal.4th at p. 260, quoting People v. Samayoa, supra, 15 Cal.4th at p. 841.) It is not reasonably likely that the jurors construed these remarks as a reference to defendant’s failure to testify or suggest that he must prove his innocence. Moreover, any such inference was cured by the trial court’s admonition to the jurors.
3. Burden of proof
Defendant argues that the prosecutor improperly shifted the burden of proof by commenting: “The defendant had a right to call witnesses also. Think about this when you are judging what is the truth of the case. [¶] So you have a witness like [Ms.] Newell, [Mr.] Hutchins and others that say things happened a certain way. If those things aren’t true and there are people that can come testify that those things are not true, why wouldn’t you do it?” Mr. Fletcher objected: “We didn’t have to call any witness.” The trial court then instructed the jury: “Ladies and gentlemen, the defendant has no obligation to call witnesses. The burden of proof starts and stops with the prosecutor. But I don’t believe that is what [the prosecutor] was saying.” The prosecutor continued, “It is clearly the burden of proof of the People. This is - - it needs to be that way in this country, in a good system of justice. The burden of proof rests right here. He has no obligation to do a single thing. [¶] [Mr. Fletcher] could have asked no questions. Could have never given a closing argument and so forth. That is the law. This is the way it needs to be and should be. [¶] He is presumed innocent. But they have the right to call people to impeach the People’s witnesses.” Thereafter, the prosecutor named specific witnesses who might have refuted the prosecution witnesses’ testimony, including a fingerprint examiner. Mr. Fletcher continued to object. Following a recess in proceedings, Mr. Fletcher objected: “I find this shocking, you can’t shift the burden like that. It is not even close.” The trial court reviewed the prosecutor’s argument and concluded that it suggested the defendant failed to call reasonable witnesses to impeach the prosecution witnesses. The trial court further commented: “I think he’s probably going overboard as to what they would say. I think that is speculation. But certainly to point out that under the circumstances of this case where there is some evidence in the court’s mind of close association with the defendant, he can comment on that.” The trial court added: “I don’t think this is a shifting of the burden that is impermissible. It is a commenting on a failure to call a logical witness.”
When the trial resumed, the trial court instructed the jurors: “The district attorney made several references to the [fact that] defendant did not call certain witnesses. I interpreted those and you should interpret that statement as the defense did not call, not the defendant personally. [¶] I also want to say that the defendant - - a defendant in a criminal case is presumed to be innocent. And, of course, this presumption requires - - and I think I told you this yesterday. And please keep this in mind - - that the People prove each element of the crime beyond a reasonable doubt.” The trial court then reread the instruction that a defendant has an absolute constitutional right not to testify and neither side is required to call all witnesses. The trial court also informed the jury that the defense did not have an opportunity to call a fingerprint examiner. This was because defendant’s fingerprints were taken during the trial. Again, the prosecutor is allowed to comment on the failure to present evidence and logical witnesses. The trial court properly clarified any possible misconceptions the jury had regarding the prosecutor’s comments by repeatedly instructing the jury on the burden of proof and the fact that defendant need not testify or present evidence or witnesses. Any purported misconduct was harmless in light of those instructions.
Moreover, when the trial court reviewed the allegations of prosecutorial misconduct at the new trial motion, it concluded: “The court was uncomfortable with portions of the prosecutor’s closing argument. It was my belief that many of the statements made were unnecessary and not particularly effective. [¶] But taken collectively, the actions of the prosecutor, if they constituted misconduct in the court’s mind, did not constitute sufficient misconduct to warrant a new trial. [¶] I remain satisfied the defendant’s conviction was based on and fully supported by the evidence at trial. And it’s the court’s view that my rulings did not deprive the defendant of his right to a fair trial.” We agree. Defendant’s further argument that the totality of the prosecutor’s misconduct requires reversal of his conviction is meritless. As set forth above, even if the prosecutor’s argument constituted misconduct, it did not involve either a deceptive or reprehensible method to persuade the jury. As a result the trial was not fundamentally unfair. (People v. Carter, supra, 36 Cal.4th at p. 1263; People v. Ochoa, supra, 19 Cal.4th at p. 427.)
E. Court Security Fee
The trial court refused is impose a section 1465.8, subdivision (a)(1) court security fee. The trial court reasoned that the murder in this case occurred prior to the effective date of section 1465.8, subdivision (a)(1). However, section 1465.8, subdivision (a)(1) applies to offenses occurring prior to its effective date. (People v. Alford (2007) 42 Cal.4th 749, 754-759; People v. Wallace (2004) 120 Cal.App.4th 867, 875-878.) Thus, a $20 section 1465.8, subdivision (a)(1) court security fee is to be added to the judgment. The trial court is to actively and personally insure the clerk accurately prepares a correct amended abstract of judgment which reflects the modification to the judgment we have ordered. (People v. Acosta (2002) 29 Cal.4th 105, 109, fn. 2; People v. Chan ((2005) 128 Cal.App.4th 408, 425-426.)
IV. DISPOSITION
The judgment is modified to add the imposition of a Penal Code $20 section 1465.8, subdivision (a)(1) court security fee. The judgment is affirmed in all other respects. The superior court clerk is to prepare a correct amended abstract of judgment which reflects the modification to the judgment we have ordered and forward it to the Department of Corrections and Rehabilitation.
We concur: MOSK, J. KRIEGLER, J.