Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. BA264988 George G. Lomeli, Judge.
Richard A. Levy, 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, Assistant Attorney General, Victoria B. Wilson and Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST J.
A jury convicted Juan Rodriguez (defendant) of second degree murder (Pen. Code, § 187, subd. (a)) (count 1) and found true the allegation under section 12022, subdivision (b)(1) that he personally used a deadly and dangerous weapon in the commission of the offense. The trial court sentenced defendant to 15 years to life for the murder and one consecutive year for the weapon enhancement.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant appeals on the grounds that: (1) the trial court committed prejudicial error under federal constitutional and state law in failing to instruct sua sponte that voluntary intoxication may rise to the level of unconsciousness, in which case the homicide is reduced to involuntary manslaughter; and (2) the trial court committed reversible error under federal constitutional and state law in overruling defendant’s objections and denying his motion for a mistrial or lesser sanction after the prosecutor committed prejudicial misconduct.
FACTS
Prosecution Evidence
On May 6, 2004, Mayra Villalta (Mayra) lived with her mother and three siblings on South Kenmore Avenue in Los Angeles. Defendant was the boyfriend of Rhina Villalta (Rhina), Mayra’s mother. He lived in the garage of their apartment complex, although he had formerly lived with Rhina and her family. Rhina had made defendant move out because of his excessive drinking.
On the afternoon of May 6, 2004, Daniel Reyes (Reyes), the victim, knocked on defendant’s door and yelled for him to open it. Reyes and Mayra were friends, and when defendant did not answer, Reyes went to see Mayra. Mayra thought that Reyes was drunk, since he smelled of alcohol and stumbled. Mayra spoke with Reyes for a short time and went back inside. Reyes returned to the garage and yelled that this was his “hood,” and defendant had better open the garage. Reyes shouted that defendant had to do what Reyes told him to do. Reyes kicked the door and said, “Open the door, you fag.” Defendant opened the door and began arguing with Reyes.
Reyes returned to Mayra’s apartment and asked her to go with him to meet someone. The person never arrived at the meeting place, and they returned to Mayra’s where they sat on chairs in front of the apartment. Rhina came out and spoke with them for approximately 30 minutes. While they sat there, an individual went to the garage and gave something to defendant. Mayra believed that the person was delivering rock cocaine. Mayra knew that defendant used rock cocaine, and she had seen him buy it. Mayra believed defendant was under the influence of rock cocaine that night.
After Rhina left Mayra and Reyes, and approximately 15 minutes after the delivery, defendant left the garage and went inside Rhina’s apartment. Defendant seemed angry, and he told Rhina that he was “fed up with those fags who were bothering him.” Rhina told defendant to leave after listening to him rant for approximately 10 minutes.
Defendant left the apartment and stood behind Reyes. After standing there for approximately 20 seconds, defendant said, “I feel sorry for your mom.” Mayra saw that defendant was holding something shiny in his hand, and it looked like a knife. Reyes turned around, and defendant stabbed him two times in the side of his abdomen. Mayra asked defendant what he was doing, and defendant told her to go inside. Reyes stood up and walked down the stairs as he held his stomach. He looked at his hand, and Mayra saw that Reyes was bleeding. When Reyes fell to the ground, defendant walked past him and out the gate. Mayra screamed for her mother to call an ambulance, and she helped Reyes into a chair. Mayra told Rhina that defendant had injured Reyes.
Officer Robert Calzadillas responded to the scene and found Reyes sitting on a chair without a shirt. He had a stab wound on his upper right chest and two stab wounds on the lower left part of his chest. Reyes could not talk and he was gasping for air. His face was flushed. Mayra told Officer Calzadillas that a male Hispanic had wounded Reyes with a kitchen knife. She said that the man was called “Chanclas,” and she claimed she did not know the man’s real name. Mayra said that Chanclas and Reyes had argued and that Chanclas “gets crazy” whenever he is drunk. Mayra said she had seen Chanclas stab Reyes three times.
Reyes later died, and an autopsy revealed that the cause of death was multiple stab wounds. There were two fatal wounds to the abdomen, a double wound to the chest, and a wound to the neck. The knife used was single-edged, consistent with a kitchen knife.
Detective Carlos Silva interviewed Mayra at the police station on the following day. A tape recording of this interview was played to the jury. Mayra said that Reyes arrived at her apartment at approximately 5:00 p.m., and he was drunk. Defendant had been drinking and using drugs, and he seemed paranoid. She recounted the arguing that had gone on between Reyes and defendant. Later, she and Reyes sat outside, and defendant went inside her apartment. When he came out, he had something in his waistband. He said, “Oh, I feel bad for your mother,” and stabbed Reyes. Defendant then ran away.
On December 8, 2004, approximately seven months after the stabbing, Officer Julio Duarte was speaking with defendant about an unrelated matter. Defendant suddenly blurted out that he had killed someone. Officer Duarte had not known that defendant was wanted for murder. Officer Duarte attempted to follow up on defendant’s statement, but defendant stopped answering Officer Duarte’s questions.
Defense Evidence
Defendant testified that he lived with Rhina for approximately five years before the stabbing and had moved into the garage because he was using drugs and drinking too much. Defendant and Mayra had a strained relationship from the beginning because defendant objected when Mayra brought members of the 18th Street gang into the home. Mayra had used marijuana since the age of 13, and defendant saw her use cocaine about three months before the stabbing.
Members of the 18th Street gang sometimes brought their cars to defendant for repairs. Defendant was not friends with any of them, and they had only a business relationship. The gang members sometimes harassed him and stole his beer and tools. Approximately four months before the stabbing, Reyes and some other gang members asked to borrow defendant’s car. When defendant refused, Reyes beat him with a pool stick, fracturing defendant’s shoulder. They beat him again when he would not let them use his garage as a place for having sex. Other times, gang members had put a gun to defendant’s head to frighten him. There were eight or nine incidents in which defendant was assaulted by gang members within the nine months prior to the stabbing of Reyes.
On the day of the stabbing, defendant bought rock cocaine on the street and used some of it before buying some beer and returning home. He arrived at approximately 6:00 p.m., visited Rhina, and went to the garage. Reyes knocked on the door shortly thereafter. Defendant did not answer, and Reyes left. Reyes soon returned, however, and again told defendant to open up. When defendant refused, Reyes said it was his barrio and defendant would do what he was asked to do. Defendant replied that it was not Reyes’s house, and Reyes’s barrio was outside. Reyes then left.
Defendant went to Rhina’s and used the bathroom. He was feeling the effects of the cocaine he had used. He told Rhina he was going to leave because he was tired of “these guys harassing me.” Defendant returned to the garage and smoked more cocaine. When he left, he walked by the apartment and saw Reyes sitting on the stairs holding his stomach. At that point, Mayra came outside and asked defendant, “What are you doing, stupid?” Defendant saw that Reyes was bleeding. Defendant told Mayra he had not done anything. He then ran away because he was frightened.
Defendant telephoned Rhina later that night and asked her what had happened. Rhina told him that Mayra was saying defendant had stabbed Reyes. Defendant told Rhina he had not done anything. During the seven months between the stabbing and his arrest, defendant sometimes went to Rhina’s at night and brought her money, leaving early in the morning.
Defendant did not tell Officer Duarte that he had killed someone. He said only that, in an incident unrelated to the Reyes stabbing, some people had tried to rob him. He then explained that incident to the officer.
Rebuttal Evidence
Rhina testified that defendant did not call her the night of the stabbing to ask her what had happened. Defendant did not tell Rhina that he did not stab Reyes. After the stabbing, defendant never returned to the apartment to stay with Rhina, and he never gave her money. Defendant had never told Rhina that 18th Street gang members had injured his shoulder and chest.
DISCUSSION
I. Lack of an Instruction on Unconsciousness Caused by Voluntary Intoxication
A. Defendant’s Argument
Defendant contends he was so intoxicated that he was not conscious that it was he himself who had stabbed Reyes. Therefore, the trial court erred in failing to instruct sua sponte on unconsciousness based on voluntary intoxication, which would have reduced the homicide to involuntary manslaughter. According to defendant, the trial court’s failure was prejudicial for two reasons. First, the jury was instructed only with the principle that voluntary intoxication could negate express malice or the specific intent to kill, but not implied malice or conscious disregard of human life. The jury evidently found that defendant was too intoxicated to premeditate, since it rejected first degree murder. Had the jury known that voluntary intoxication was also admissible to prove unconsciousness, it likely would have found that defendant did not realize what he was doing. Second, without guidance on voluntary intoxication, the jury likely assumed defendant committed perjury when he claimed no involvement in the stabbing and therefore punished him for such perjury.
B. Relevant Authority
A trial court must sua sponte instruct the jury on lesser included offenses when there is evidence, substantial enough to merit consideration by the jury, to raise a question as to whether all of the elements of the charged offense were present, but not when there is no evidence that the offense was less than that charged. (People v. Barton (1995) 12 Cal.4th 186, 194–195; People v. Flannel (1979) 25 Cal.3d 668, 684–685 & fn. 12.) Involuntary manslaughter is a lesser offense included within the crime of murder. (People v. Lewis (2001) 25 Cal.4th 610, 645.)
“When a person renders himself or herself unconscious through voluntary intoxication and kills in that state, the killing is attributed to his or her negligence in self-intoxicating to that point, and is treated as involuntary manslaughter.” (People v. Ochoa (1998) 19 Cal.4th 353, 423.) “Unconsciousness for this purpose need not mean that the actor lies still and unresponsive.” (Id. at pp. 423–424.) Unconsciousness can occur when an individual acts but is not conscious of doing so at the time of his actions. (Id. at p. 424.)
Error through failure to instruct on a lesser included offense is evaluated under the standard of People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Breverman (1998) 19 Cal.4th 142, 177–178.) “In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.” (Id. at p. 177.) The question is whether it appears “‘reasonably probable’” that the defendant would have obtained a more favorable outcome in the absence of the error. (Id. at p. 178.)
C. No Error
In the instant case, we conclude there was not sufficient substantial evidence so as to require the trial court to give a sua sponte instruction on unconsciousness. According to defendant, the instruction that should have been given was CALJIC No. 8.47, which provides: “If you find that a defendant, while unconscious as a result of voluntary intoxication, killed another human being without an intent to kill and without malice aforethought, the crime is involuntary manslaughter. [¶] This law applies to persons who are not conscious of acting but who perform acts or motions while in that mental state. The condition of being unconscious does not require an incapacity to move or to act. [¶] When a person voluntarily induces [his] . . . own intoxication to the point of unconsciousness, [he] . . . assumes the risk that while unconscious [he] . . . will commit acts dangerous to human life or safety. Under those circumstances, the law implies criminal negligence.”
According to defendant, it is the combination of extreme intoxication and apparent blacking out that constitutes the substantial evidence of unconsciousness in this case. We believe sufficient substantial evidence is lacking for both parts of this combination.
Defendant testified that he bought some rock cocaine on the evening of the stabbing, and he also bought a six-pack of beer. Contrary to Mayra’s testimony, however, defendant stated that no one brought defendant any more drugs that evening. He smoked some of the cocaine he had purchased and then went to use the bathroom inside Rhina’s apartment. He said he was feeling the effects of the cocaine at that time. When asked what the effects of cocaine were, defendant replied that one becomes nervous and starts sweating. For a short while one does not feel good, begins shaking, and has red eyes. Referring to himself personally, defendant said that after being nervous, he would become relaxed, and the drug would take the pain of his fractures away.
Defendant testified that he felt nervous “most of the time” on the night of May 6, 2004, after smoking “too much,” although “not an exaggerated amount.” The prosecutor asked defendant, “And with regard to your state of intoxication—now, you were—you indicated that you had been using cocaine, right?” Defendant replied “Yes, but I would always do drugs and I would never do anything like that.” He later repeated. “I would always do drugs, but I would never behave that way against anybody.” When the prosecutor asked defendant if he was able to function and think even though he had used cocaine, defendant replied, “Yes.”
Defendant also recounted the details of his actions, observations, and decisions that evening with relative precision. All of the actions he described occurred after he had been smoking the drugs he bought. He remembered his movements—the going back and forth between the house and the garage—and he said he prepared a change of clothes to take to a friend’s house where he was going to stay that night. After he used the rest room, his “wife” asked him what he was doing, and he replied he was going to leave because he was tired of “these guys harassing me.” He returned to the garage and smoked more drugs and decided to leave. He locked the garage and saw “the guy” sitting on the steps and holding his stomach. He remembered that Reyes was sitting at the entrance to the house on the cement at the top of the stairs. He remembered phoning his wife from Beverly Boulevard to ask what happened, and his wife telling him that Mayra said he had committed the stabbing. He related that he had remained nearby for a time, watching the ambulance and patrol cars arrive. He then decided he had better leave. He did not tell the arriving authorities what he had seen because he did not wish to be blamed. In sum, there was no evidence in defendant’s testimony of either extreme intoxication or apparent blacking out so as to require the trial court to sua sponte instruct on unconsciousness.
Furthermore, any error in failing to give the instruction was harmless. (People v. Lewis, supra, 25 Cal.4th at p. 646 [failure to instruct on a lesser included offense is harmless when the jury necessarily decided the factual questions adversely to defendant under other properly given instructions].) The jury was instructed that the section 12022 enhancement allegation included a specific intent, which could be undermined by defendant’s voluntary intoxication. Because the jury found the enhancement allegation true, it necessarily concluded defendant’s voluntary intoxication did not prevent him from forming the intent to strike or hit Reyes with a deadly weapon. As a result, we can safely say the jury necessarily would have concluded defendant’s voluntary intoxication did not result in the mental state of unconsciousness. (See People v. Heard (2003) 31 Cal.4th 946, 982 [the jury’s finding that voluntary intoxication did not obviate defendant’s specific intent to commit certain sexual offenses meant that the jury “could not have concluded he was unconscious and therefore guilty only of involuntary manslaughter”].)
With respect to the section 12022 enhancement, the jury was instructed with CALJIC No. 17.16 as follows: “It is alleged in count 1 that in the commission of the felony charged, the defendant personally used a deadly or dangerous weapon. If you find the defendant guilty of the crime thus charged, you must determine whether the defendant personally used a deadly or dangerous weapon in the commission of that crime. ‘A deadly or dangerous weapon’ means any weapon, instrument, or object that is capable of being used to inflict great bodily injury or death. The term ‘personally used a deadly or dangerous weapon’ as used in this instruction means that the defendant must have intentionally displayed a weapon in a menacing manner or intentionally struck or hit a human being with it. The People have the burden of proving the truth of this allegation. If you have a reasonable doubt that it is true, you must find it not to be true. Include a special finding on that question in your verdict using a form that will be supplied for that purpose.”
Finally, no due process violation can be found given the absence of any substantial evidence to support the requested instruction. (See People v. Avena (1996) 13 Cal.4th 394, 416.)
II. Alleged Prosecutorial Misconduct
A. Proceedings Below
The record shows that after a preliminary hearing, an information was filed charging defendant not only with the murder of Reyes (count 1), but also with assault with a deadly weapon (count 2) and attempted murder (count 3) on a Marcos Molina (Molina) on December 8, 2004. On December 28, 2006, defendant pleaded “not guilty” to all counts. Prior to trial on May 2, 2007, the prosecutor announced she was unable to proceed with counts 2 and 3 because the People could not locate Molina, and the trial court granted the defense motion to dismiss counts 2 and 3.
During a mid-trial evidentiary hearing, defense counsel moved to exclude Officer Duarte’s expected testimony regarding defendant’s statement that he had killed someone before. Counsel stated, “they’re trying to parse out one sentence out of an entire interview that related to the attempted murder charge, and there is no way to understand the context of the last statement that the officer inserted in his report, that my client said sometime in the past he had already killed somebody, not with respect to this case, but it’s in the content of being interviewed about the attempted murder charge.”
The prosecutor explained that when defendant was being interviewed by Officer Duarte about the Molina stabbing, he claimed he had been confronted by two men. He said there was a verbal confrontation and then an attack on defendant. Defendant denied that he had said he wanted to kill a taxicab driver. The prosecutor stated she wanted to introduce defendant’s statements that he wanted to kill the two men who had jumped him and that he had already killed someone. The trial court found the latter statement relevant.
Defense counsel argued that the statement about killing someone could not be excised without taking it out of the context in which it had been given. The prosecutor gave the trial court a copy of defendant’s statement, and the trial court took the matter under consideration.
The trial court subsequently ruled that it was inclined to allow into evidence defendant’s statement that he had already killed someone, without elaboration. The trial court allowed defense counsel to interview Officer Duarte before he testified in order to satisfy counsel’s concerns.
As recounted in the facts portion of this opinion, Officer Duarte testified that he had contact with defendant on December 8, 2004, about a matter unrelated to the Reyes murder. The contact was in the area of York Boulevard and Avenue 56. Officer Duarte stated that when interviewed, defendant blurted out that he had killed someone before and then stopped answering the officer’s questions.
During direct examination of defendant, defense counsel brought up Officer Duarte’s testimony, and the following exchange ensued: “Q. There—if you recall, there was an officer, Officer Duarte, who came and said that back in December of 2004, he had a conversation with you where you supposedly made a statement about having killed someone before. Do you recall him testifying to that? A. I didn’t say that I had killed anybody. Q. Well, my question was: Do you recall him testifying about that? A. I don’t understand that. Q. Okay, let me rephrase it. Do you remember hearing the officer say that you said that you had killed someone before? Do you remember saying that? A. Yes, I heard what he said. Q. Okay. Remembering the conversation that you had with Officer Duarte—well, let me ask you the first question. Have you ever killed anyone? A. No. Q. What was the context of the conversation—or what were you talking to Officer Duarte about back in December of 2004? A. He had asked me what had happened with the people, umm, those persons that were attempting to rob me. Q. Okay. Is this—does this have anything to do with the incident with Mr. Reyes? A. No. Q. So you—were you talking to Officer Duarte about a completely unrelated incident? A. Yes. Q. And what were you telling Officer Duarte about that incident? A. I had—I was explaining to him that those—those—those individuals that—those persons wanted to kill me, and I was explaining how that was happening. Q. At any time during the conversation with Officer Duarte did you ever make a statement anywhere close to you had killed someone before? A. No. Mr. Acevedo [defense counsel]: I have nothing further.”
Prior to cross-examination, the prosecutor told the trial court at sidebar that she “just wanted to clarify with the defendant the context of that conversation with Officer Duarte. He’s saying that it was a situation where he was explaining about people trying to rob him. I’d like to ask wasn’t it in fact about a situation where another individual had been stabbed in the neck and he was being spoken to after he had been arrested.” The trial court replied, “Okay, just don’t spend a lot of time on it, if you will.” Defense counsel raised no objection.
The following exchange ensued: “By Ms. Knight [prosecutor]: Q. Sir, when you spoke to Officer Duarte on December 8 of 2004, you indicated here a moment ago that you were telling him about some people that had tried to rob you; is that correct? A. Yes. Q. Sir, in fact, wasn’t the officer speaking to you about an incident in which another individual had been stabbed in the neck? A. No. Q. Another person had not been stabbed in the neck, a person named Marcos Molina? A. Where? Q. When you were contacted, you were—well, let me ask you this. On December 8 of 2004, at sometime around 6:30 P.M. or a little bit before that, weren’t you in the area of Aldama and York Boulevard? Mr. Acevedo: Objection, relevance. The court: Overruled. The witness: May I answer? It wasn’t at that time, that I recall. Q. (By Ms. Knight): When was it? A. That must have been around 9:00 P.M. The little market that’s there on the corner was already closed. Q. Okay. And, sir, at that time was there another individual out there that you spoke to? A. No. Q. Was there another individual who you stabbed in the neck, sir? A. I never—I never did that. Q. Did you ever tell a man ‘I want to kill a taxi driver’? Mr. Acevedo: Objection, relevance at this point. The court: Overruled. The witness: No. Q. (By Ms. Knight): Now, sir, you were—did you ever see another man bleeding from the neck in that general area? A. No, I—I really did not. Q. Were you taken over to the location where there was an ambulance and someone was being treated? A. When I was arrested at the bus stop, I was taken to where there was an ambulance in front of a restaurant and, uh, I saw, uh, a young man who was having a wound dressed, but I—I don’t know anything about that, I was just taken there. Q. You didn’t see that individual indicate toward you and say in Spanish ‘That’s the motherfucker that stabbed me’? Mr. Acevedo: Objection, Your Honor. The Court: All right, Counsel. Mr. Acevedo: Can we approach? The Court: No. Sustained. Let’s move on Counsel. Q. (By Ms. Knight): Sir, in the context of your conversation with Officer Duarte, you had been arrested; is that correct? A. Yes, I was under arrest. Q. In other words, were you not making a report as a victim, correct? A. No, because, I mean, I didn’t think anything had happened. Q. So you weren’t making a report of some people robbing you? Interpreter Millaruelo: I’m sorry, Counsel, can you repeat that for the interpreter? Ms. Knight: Yes. Q. You were not making a report of some people having robbed you? A. No. Simply when those people attacked me, I ran to the bus stop, and the—and that’s where I was arrested; I was waiting for the bus.”
During the next break, which occurred during defendant’s cross-examination, defense counsel moved for a mistrial. Counsel stated he could think of no good-faith basis for the prosecutor to be able to ask defendant if the man being treated said that defendant was the one who stabbed him. Counsel said that the prosecutor should not have gotten into this matter because she did not have a witness to support it. Since the jury had heard it, there was no way to unring the bell.
The prosecutor responded that the defendant himself “put it into issue” by saying he did not know what she was talking about and saying he was the victim of a robbery. She was trying to put into context the nature of the way he made the statement, and defendant kept answering “no” to her questions.
The trial court stated it appeared that the prosecutor was trying to refresh defendant’s memory, since he said he did not know anything. The trial court stated, “I think she has some good faith, in that the officer purportedly took that statement from victims.”
Defense counsel insisted that without a witness to testify to the injured person’s statement, the prosecutor could not reasonably think that she could in good faith ask that question. The trial court replied that the officer took the victim’s statement, and that furnished a degree of good faith even though the report would perhaps not come into evidence. The trial court pointed out that defense counsel “got into that area, as well,” and the prosecutor had a right to cross-examine defendant with respect to that area.
Defense counsel argued that the prosecutor acted in bad faith because there was no reference in defendant’s statement to Officer Duarte about defendant having any personal knowledge of whatever injury was sustained by the alleged victim in that case. Nor was there anything to suggest that anyone reading the police report would have any indication that defendant had any personal knowledge of it. Defense counsel reiterated his request for a mistrial or, in the alternative, sanctions against the prosecutor for “asking a bad question.”
The prosecutor pointed out that Molina’s statement identifying defendant could have come in as an excited utterance. The court replied “Perhaps. That is neither here nor there. There are no witnesses with which they can establish the foundation for an excited utterance. That appears to be the characterization; we don’t know that.” The court denied the mistrial and the request for sanctions.
B. Defendant’s Argument
Defendant asserts that the prosecutor committed misconduct by asking questions of a witness while knowing that the answer would be inadmissible. The prosecutor knew defendant would answer her question regarding the December 2006 stabbing in the negative and that she had no independent means of proving the contrary. He contends that the prosecutor thus insinuated that defendant had committed a crime identical to the one in the instant case—stabbing someone in the neck. The prosecutor also insinuated that the victim of that stabbing had identified defendant and that defendant had threatened to kill a taxi driver. According to defendant, although he denied the premise of the questions, they destroyed his defenses of voluntary intoxication, heat of passion, and noninvolvement. The trial court therefore erred in overruling defendant’s relevance objections and in denying his motion for a mistrial or a lesser sanction based on the prosecutor’s questions.
The misconduct and errors also constituted a violation of defendant’s right to due process, to confrontation, and to trial by jury under the Sixth and Fourteenth Amendments. The misconduct and errors were not harmless beyond a reasonable doubt, since the other crime disclosed by the prosecutor’s questions was the same crime with which defendant was currently charged.
C. Relevant Authority
“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.] As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]” (People v. Samayoa (1997) 15 Cal.4th 795, 841.) If the defendant did request an admonition, or the failure to request an admonition is considered excused, we look to see whether the prosecution’s conduct was prejudicial. (People v. Herring (1993) 20 Cal.App.4th 1066, 1074.)
“It is improper for a prosecutor to ask questions of a witness that suggest facts harmful to a defendant, absent a good faith belief that such facts exist. [Citations.]” (People v. Warren (1988) 45 Cal.3d 471, 480; see also People v. Mooc (2001) 26 Cal.4th 1216, 1233; People v. Price (1991) 1 Cal.4th 324, 481.)
D. No Misconduct; Forfeiture; Any Error Harmless
We conclude that some of the questions that defendant now alleges constituted prosecutorial misconduct did not amount to misconduct. Other instances of alleged prosecutorial misconduct in this case were forfeited, and any misconduct that may have occurred was not prejudicial to defendant.
The record shows that, prior to questioning defendant, the prosecutor informed the trial court and defense counsel at a sidebar that she intended to ask if the circumstances surrounding Officer Duarte’s questioning of defendant were not “in fact about a situation where another individual had been stabbed in the neck and he was being spoken to after he had been arrested.” The trial court allowed the questioning, although it told the prosecutor not to “spend a lot of time on it.” Defense counsel made no objection at all to the proposed line of questioning.
The prosecutor’s first question on cross-examination was introductory, and the second question posed to defendant was whether Officer Duarte was speaking to defendant “about an incident in which another individual had been stabbed in the neck.” Defense counsel did not object to this question, and certainly did not argue that the prosecutor was committing misconduct. Defendant answered “No.” Thus, the first question regarding a stabbing in the neck, the question about which defendant now most strenuously complains due to the fact that Reyes suffered a stab wound in the neck, was not met with an objection. Therefore, defendant’s claim of improper questioning on this fact is forfeited. (People v. Earp (1999) 20 Cal.4th 826, 858.)
It cannot be said that defense counsel needed time to grasp the significance of the prosecutor’s question due to the heat of trial, as defendant asserts, citing People v. Carrillo (2004) 119 Cal.App.4th 94, 101 [defense counsel needed a short time to “catch the prosecutor’s drift” and bring it to the trial court’s attention]. Counsel received ample warning of the prosecutor’s intent at a sidebar conference and made no comment. Had counsel believed the prosecutor’s question to be outside the trial court’s ruling or improper for any reason, an admonition at this stage would have cured the harm. Furthermore, the question was not contrary to the trial court’s ruling. (See People v. Silva (2001) 25 Cal.4th 345, 373 [no misconduct when trial court had not yet ruled on admissibility of evidence prosecutor attempted to elicit]; People v. Price, supra, 1 Cal.4th at p. 451 [several allegations of prosecutorial misconduct not supported by record when prosecutors did not frequently or systematically disobey trial court rulings].)
Moreover, it cannot be said with certainty that the prosecutor had no good-faith belief that defendant would answer in the affirmative and clarify the circumstances under which Officer Duarte spoke with him, once he was asked a point-blank question about the true circumstances. Defendant did eventually acknowledge that he was under arrest when interviewed. In addition, although the admissibility of any evidence regarding the Molina incident was not litigated, both the prosecutor and defense counsel had heard Officer Duarte testify at the preliminary hearing that he himself had responded to the scene of the Molina stabbing. And it was Officer Duarte who heard Molina exclaim upon seeing defendant brought before him that defendant was the one who stabbed him. (See People v. Mooc, supra, 26 Cal.4th at p. 1234 [because record showed defense had received police report describing statement that had been shouted out, reviewing court surmised the prosecutor had a good faith belief that he could have produced a witness to prove a factual basis for the questioning].)
The prosecutor next asked defendant, “Another person had not been stabbed in the neck, a person named Marcos Molina?” To this question, defendant did not answer in the negative, but rather responded, “Where?” The prosecutor then asked defendant if he was in the area of Aldama Street and York Boulevard on December 8, 2004, at approximately 6:30 p.m. At this point, defense counsel interposed a relevance objection, which the trial court overruled. The record shows that the evidence of the York Boulevard location where Officer Duarte first made contact with defendant had already been testified to by Officer Duarte. We see no error in the trial court’s overruling the defense objection. At that point, defendant asked if he could answer, and he essentially answered the question in the affirmative by volunteering that the prosecutor was incorrect only as to the time.
The prosecutor then asked defendant if he had spoken to another individual in that area, which defendant denied, and if there had been another individual whom he stabbed and defendant said he “never did that.” Defense counsel did not object to these questions on relevance or any other ground. Therefore any misconduct allegation based on these questions is forfeited. The prosecutor then asked if defendant had told a man “I want to kill a taxi driver.” Defense counsel objected on the ground of relevance, and the trial court overruled the objection. Defendant answered “No.” Defense counsel’s objection, based solely on relevance, lacked the specificity required for a claim of prosecutorial misconduct based on an improper question. (See People v. Price, supra, 1 Cal.4th at p. 481; People v. Carrillo, supra, 119 Cal.App.4th at p. 101 [objection must fairly apprise the trial court of the issue it is being asked to decide].) Any error in overruling the relevance objection was ultimately harmless, as discussed post.
The prosecutor then asked defendant if he had seen another man bleeding from the neck and defendant said he had not. When asked if he was taken to an ambulance, defendant acknowledged that he was arrested at the bus stop and taken to an ambulance and he saw a young man having a wound dressed, although he did not know anything about that. Defendant’s acknowledgment thus shows that the prosecutor had a good faith basis for her questioning of defendant, for he acknowledged some of the circumstances surrounding his encounter with Officer Duarte.
This response led to the final question regarding the alleged stabbing: “You didn’t see that individual indicate toward you and say in Spanish, ‘That’s the motherfucker that stabbed me’?” At that point defense counsel made an unspecified objection and the trial court sustained the objection and told the prosecutor to move on. Defense counsel asked for a sidebar, and the trial court refused this request. During the next break, defense counsel told the court it could not think of one good faith basis for the prosecutor to ask this one specific question. Therefore, assuming counsel’s objection was based on prosecutorial misconduct, it was timely and specific in this instance.
It is well established that the issue of whether the prosecutor committed misconduct depends upon the particular circumstances of each case. (People v. Gomez (1976) 63 Cal.App.3d 328, 338.) It is true that the prosecutor could not bring in Molina, for she had been unable to locate him at that point. The prosecutor did have, however, a good faith basis for knowing the information in the statement was true, for Officer Duarte had heard Molina make the exclamation. Moreover, in his response just prior to this question, defendant had acknowledged being taken to the ambulance and seeing a young man having a wound dressed. The prosecutor could reasonably have believed defendant would further clarify the circumstances leading to his interview with Officer Duarte.
Moreover, the prosecutor was attempting to counter the false impression defendant had attempted to leave with the jury about the context of his admission, which was an important piece of the prosecution case. Defense counsel had specifically asked defendant what the context of his conversation with Officer Duarte was. Defendant had tried to explain away his admission by saying he had been the victim of a robbery and an attempted murder. Defendant implied that Officer Duarte had misheard or misrepresented what defendant had said. In the context of the entire cross-examination on this issue, which had been allowed by the trial court, the prosecutor’s questions were not improper. We see no “‘“‘“deceptive or reprehensible”’”’” method of persuasion at work and no conduct so egregious so as to render the trial fundamentally unfair. (People v. Hill (1998) 17 Cal.4th 800, 819.)
Even assuming prosecutorial misconduct occurred, reversal is not required unless the defendant can show he suffered prejudice. (See People v. Arias (1996) 13 Cal.4th 92, 161.) Defendant must show it is reasonably probable he would have obtained a result more favorable in the absence of the misconduct. (Ibid.) Under this standard, we conclude no prejudice resulted from the prosecutor’s question. The trial court sustained the defense objection to the last question, and, as stated in People v. Pinholster (1992) 1 Cal.4th 865, 943, a party is not harmed by a question to which an objection is sustained. (See also People v. Price, supra, 1 Cal.4th at p. 482.)
In addition, any error in the prosecutor’s question or questions was harmless in light of the overwhelming evidence of defendant’s guilt. (People v. Welch (1999) 20 Cal.4th 701, 735 [no prejudice resulted from prosecutor’s comments in light of the evidence against defendant]; see also People v. Bolton (1979) 23 Cal.3d 208, 215.) Defendant’s testimony was shown to be unworthy of belief, especially as to his defense of noninvolvement. Contrary to defendant’s assertion, Mayra’s eyewitness testimony did not suffer from extreme credibility problems, and she was consistent on the most important point—that she saw defendant stab Reyes after telling Reyes he felt sorry for his mother. In several cases, courts have held that improper admission of evidence of uncharged bad acts is not prejudicial when the defense is one that was not likely to be believed. (See People v. Blanco (1992) 10 Cal.App.4th 1167, 1176 [defendant claimed he shot victim in self-defense when victim was shot in the back from a distance]; People v. Kelley (1990) 220 Cal.App.3d 1358, 1375–1376 [admission of uncharged homicides not prejudicial when evidence of charged murder was strong]; People v. Lankford (1989) 210 Cal.App.3d 227, 241 [defendant claimed injured stranger whom he had taken to a hospital had probably left firearm in defendant’s car].)
Furthermore, the jurors were instructed that they should not guess what the answer might be to a question for which an objection was sustained, and that they must decide the facts based upon the evidence received at trial, and from no other source. (CALJIC Nos. 1.02, 1.03.) The jurors were also told that the statements and questions of the attorneys during trial are not evidence, and they must not assume to be true any insinuation suggested by a question asked of a witness. (CALJIC No. 1.02.) We presume the jurors followed the court’s instructions. (People v. Osband (1996) 13 Cal.4th 622, 714.) Moreover, the prosecutor made no reference to the Molina matter during closing argument, a further indication that the questions were not evidence in this case. (See People v. Mooc, supra, 26 Cal.4th at p. 1234 [any prosecutorial misconduct not prejudicial when prosecutor did not mention allegedly improper subject in closing argument and jury was instructed with CALJIC No. 1.02].) The jury’s verdict demonstrates that it carefully reviewed the evidence, since it did not accept the prosecution’s case in its entirety and found defendant not guilty of first degree premeditated murder. We conclude that the prosecutor’s question was harmless and defendant suffered no prejudice under any standard. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson, supra, 46 Cal.2d at p. 836.)
Given this lack of prejudice, the trial court did not err in refusing to grant the mistrial motion. “A trial court should grant a mistrial only when a party’s chances of receiving a fair trial have been irreparably damaged, and we use the deferential abuse of discretion standard to review a trial court ruling denying a mistrial.” (People v. Bolden (2002) 29 Cal.4th 515, 555; see also People v. Williams (2006) 40 Cal.4th 287, 323.) As for the failure to give a lesser sanction, such as an admonition, we believe the trial court did not abuse its discretion in that respect either, since we have found that any misconduct was not prejudicial.
With respect to defendant’s claims regarding his federal constitutional rights to due process, confrontation of witnesses, and trial by jury, we note that defendant did not object at trial on the basis of any federal constitutional violation, and therefore any such issue is forfeited. (See People v. Lucero (2000) 23 Cal.4th 692, 715; People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1028, fn. 19; Evid. Code, § 353.) Defendant cites People v. Partida (2005) 37 Cal.4th 428, 435 for the proposition that the Sixth Amendment violation issue is preserved because the trial court did not give counsel the opportunity to approach the bench and expand upon his objection. In the instant case, counsel had ample opportunity to expand upon his objections to the prosecutor’s questioning at the next break in the cross-examination. Moreover, People v. Partida states that, “[a] defendant may not argue on appeal that the court should have excluded the evidence for a reason not asserted at trial. A defendant may, however, argue that the asserted error in overruling the trial objection had the legal consequence of violating due process.” (People v. Partida, supra, at p. 431.) Under People v. Partida, therefore, defendant’s Sixth Amendment arguments are forfeited, since he failed to assert them at trial. And based on our analysis of prejudice, any error in allowing the questioning regarding the Molina stabbing circumstances did not amount to a violation of due process. Any misconduct or error did not render the trial fundamentally unfair. (People v. Partida, supra, at p. 439.)
Defendant’s recourse in his reply brief to Parle v. Runnells (9th Cir. Cal. 2007) 505 F.3d 922 (Parle) is also to no avail. In that case, numerous, serious evidentiary errors were found by the California Court of Appeal but held harmless. (Id. at p. 925.) Parle held that the “cumulative effect of multiple errors can violate due process even where no single error rises to the level of a constitutional violation or would independently warrant reversal. [Citation.]” (Id. at p. 927.) The court stated that all of the improperly excluded evidence in Parle’s case supported Parle’s defense that he lacked the requisite state of mind for first-degree murder, and, at the same time, all of the erroneously admitted evidence (which included that of Parle’s prior violent threats to a police officer) undermined Parle’s defense and credibility and bolstered the State’s case. (Id. at p. 930.) Parle determined that the test of whether the combined effect of evidentiary errors violated a defendant’s due process rights is whether the errors made the defense “‘far less persuasive’ [citation]” and thereby had a “‘substantial and injurious effect’ on the jury’s verdict [citation].” (Id. at p. 928.)
The number and significance of the evidentiary errors in Parle are clearly on a different scale entirely than the alleged prosecutorial misconduct and evidentiary error in the instant case. (See Parle, supra, 505 F.3d at p. 930.) In that case a multitude of evidence regarding Parle’s mental state was erroneously admitted and excluded in a manner that permeated the entire trial, unlike the brief interlude in this case. Parle admitted killing his wife, and his only claim at trial was that his state of mind precluded his being found guilty of anything more than second-degree murder. (Id. at p. 925.) In this case, we have concluded that any error in allowing the questioning on the Molina matter did not make defendant’s defense “‘far less persuasive’” than it otherwise would have been.
Defendant’s arguments are without merit.
DISPOSITION
The judgment is affirmed.
We concur: BOREN P. J., DOI TODD J.
With respect to voluntary intoxication, the jury was instructed with CALJIC No. 4.21.1 that: “It is the general rule that no act committed by a person while in the state of voluntary intoxication is less criminal by reason of that condition. However, there is an exception to this general rule, namely, where a specific intent or mental state is an essential element of a crime. In that event, you should consider the defendant’s voluntary intoxication in deciding whether the defendant possessed the required specific intent or mental state at the time of the commission of the alleged crime. Thus, in the crime charged in count 1, as well as the lesser crimes referenced in these instructions, a necessary element is the existence in the mind of the defendant of a certain specific intent or mental state which is included in the definition of the crimes set forth elsewhere in these instructions. If the evidence shows that the defendant was intoxicated at the time of the alleged crime, you should consider that fact in deciding whether or not that defendant had the required specific intent or mental state. If, from all the evidence, you have a reasonable doubt whether the defendant had the required specific intent or mental state, you must find the defendant did not have the specific intent or mental state in question.”