Opinion
A154858
01-14-2020
THE PEOPLE, Plaintiff and Respondent, v. CALEB DAIN SILVER, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. Nos. 16-86028, 17-91955)
A jury—the third jury sworn to try the case—convicted Caleb Dain Silver of murdering Denis Boardman in his home in Fort Bragg on or about December 26, 2015. On appeal Silver raises two issues: (1) improper admission of unfavorable character evidence under Evidence Code section 1101, subdivision (b), and (2) prosecutorial error in closing argument.
Further undesignated statutory references are to the Evidence Code. Designations of subdivisions without section designation are to subdivisions of Evidence Code section 1101.
The prosecutor introduced evidence that Silver had committed three unrelated burglaries and an auto theft, all of which occurred in the days just before the murder. Though the evidence was damaging, it was admitted for a nonpropensity purpose. Silver admitted being on Boardman's property on December 26, 2015, but denied entering Boardman's home. The disputed evidence showed that Silver, who was homeless, had established a recent pattern of breaking into vacant houses or getting friends to let him spend the night so he could keep a roof over his head. The prosecutor also presented evidence that Silver was in Fort Bragg on or about Christmas night, possibly looking for someplace to stay. The evidence of Silver's other crimes tended to support the prosecutor's theory that Silver did enter Boardman's house and to counter Silver's statement to the authorities that he never entered.
Silver's prosecutorial error claim—which objects to words the prosecutor used, such as "vicious" and having a "propensity for violence," and the prosecutor's suggestion that Silver's attorney "wasted" the jury's time—was forfeited by failure to object at trial, and in any case lacks merit. We shall affirm.
I. BACKGROUND
A. The Death of Denis Boardman
In December 2015, Denis Boardman, 67 years old, was living in a house on Morrow Street in Fort Bragg. Boardman rented his upstairs bedroom to his close longtime friend, Cynthia Buckmaster. Buckmaster's boyfriend, Michael Salo, was also an old friend of Boardman's who visited frequently and often spent the night. Boardman was a recovered alcoholic, sober for seven or more years, and he often invited alcoholics, both recovering and active, into his home. Both Buckmaster and Salo were active alcoholics, but Buckmaster was a close friend of Boardman's and she took care of him.
Caleb Silver, then 25 years old, was one of the active drinkers and drug users who had been invited into Boardman's home in the past. Silver had known Boardman most of his life because Boardman had lived with his family in Boonville when he was growing up. Boardman, then a severe alcoholic, had performed handyman chores in exchange for a room in their basement. Silver considered Boardman to be a grandfather or uncle figure. In fact, Silver was the grandson of Boardman's best friend.
In December 2015 Silver was homeless. About two years earlier, he and his then-girlfriend had lived with Boardman for about five months. The girlfriend described Silver being "mean" and "abusive" to Boardman, including physically attacking him once after Boardman refused to let some drug addicts into his house that Silver had invited. Silver and his girlfriend moved out separately after Boardman insisted they leave. Silver said he left Boardman's home and Fort Bragg in about February 2014. He told the district attorney's investigator he spent most of 2015 on the street in the Haight Ashbury district of San Francisco and had not been back to Fort Bragg or in Boardman's house and had not seen Boardman since February 2014.
Both Silver and Boardman had dogs to which they were deeply attached. Boardman's was a Rottweiler mix named Bugsy. Boardman and Bugsy were "crazy about each other" and were "always together"; Bugsy even slept in Boardman's bed. Silver's dog was a mutt named Woozle that had been given to him as a puppy by his friend La'Esha Stevens-Cooper. Woozle ran away around December 20, 2015, and Silver was distraught about it.
Boardman was found dead on his bedroom floor on January 2, 2016, after police were asked by his daughter to do a forced-entry welfare check. Fort Bragg Police Officer Angelica Wilder found Boardman's body on the floor next to his bed, in a pool of blood, covered with blankets. Upon inspection it was apparent Boardman had suffered an unnatural death; his throat had been slashed in three places, cutting the carotid artery and the jugular vein, and he had several small crescent-shaped injuries on his scalp at the back of his head, which were determined to have been inflicted with a hammer. Boardman's pickup truck and dog were missing.
Boardman had recently had his voice box removed at a VA hospital, and home visits were to be scheduled for follow-up care. When the scheduling nurse called to set up the appointments on December 26 and 27, 2015, she was unable to reach Boardman. On December 28th or 29th, she arranged for a welfare check and the police complied, but Boardman's body was not found because the police did not enter his home.
Police searched the crime scene and found, among other things, two knives under the bed and a hammer in the garage that had some white hairs attached. These were believed to be the murder weapons. Boardman's wallet was found on a television stand in his bedroom. His keys to his truck were found in his pants pocket. B. Boardman's Truck and Dog Are Found in Santa Barbara
DNA tests were later conducted on the weapons. Boardman's DNA and four alleles from another donor were found on the first knife, but Silver was excluded as that DNA donor. The second knife revealed a partial profile of Boardman and no foreign DNA. Silver's DNA also was not found on the hammer. Thus, DNA on the two knife handles and DNA from the hammer totally excluded Silver as a donor. The criminalist testified that a person who wore gloves could avoid leaving DNA behind.
The day Boardman's body was found, Wilder sent out a be-on-the-lookout (BOLO) email to other police departments in the state regarding Boardman's truck, indicating it was sought in connection with a homicide in Fort Bragg. Boardman's truck was a distinctive-looking red pickup with a homemade shingle-sided camper on the back. He and his truck were well-known in Fort Bragg.
In late December 2015 Boardman's truck came to the attention of authorities in Santa Barbara, nearly 500 miles south of Fort Bragg. On December 30th, there was a complaint about a dog, inferably Bugsy, tied to a truck parked at the beach in Santa Barbara. Animal Control Services picked up the dog and took it to an animal shelter on December 30, 2015, at 7:12 p.m. The truck remained parked there for several days, apparently because it had broken down, and Sergeant Brad Welch of the Santa Barbara County Sheriff's Office had taken notice of it. When he saw the BOLO on January 3, 2016, Welch immediately recognized Boardman's truck as the one he had seen parked at the beach, though the truck by then had been spray-painted black. He impounded the vehicle and contacted the police in Fort Bragg.
We take judicial notice, here and throughout the opinion, of distance estimates obtained from online sources as facts not reasonably subject to dispute, for the benefit of readers not familiar with California geography. (§§ 452, subd. (h), 459.)
Fort Bragg Police Officer Christopher Awad went to Santa Barbara shortly after that to retrieve the truck, armed with a search warrant. In an initial search, he noticed that a box containing several cans of black spray paint in the rear of the truck had been shipped to the Home Depot store in Morgan Hill, roughly midway between Fort Bragg and Santa Barbara. The prosecution's evidence showed Silver was in that Home Depot store at 3:15 p.m. and again at 3:30 p.m. on December 26, 2015, purchasing Husky Flex gloves and cans of flat black spray paint. C. The Searches of Boardman's Truck
Officer Awad had the truck towed to the California Department of Justice (DOJ) laboratory in Goleta, and after it was processed there, towed to the Fort Bragg Police Department. While it was in Goleta, Carla Levi, a criminalist with the DOJ laboratory, inspected it, taking swabs for DNA evidence. After Silver was arrested and his DNA collected, Levi was able to compare DNA collected from the truck with Silver's DNA. She found a Monster energy drink can in the bed of the truck bearing Silver's DNA near the opening on top of the can. Not surprisingly, both Silver's and Boardman's DNA was found on the steering wheel.
After the truck had been returned to Fort Bragg, Awad and Wilder obtained another search warrant and searched it again on June 25, 2016. They found three gloves that Awad had initially overlooked, two black knit or microfiber gloves found on the seat and floor of the truck, and one black-and-white, rubber-backed glove found on the floorboard. One of the black knit gloves had tiny traces of reddish-brown stain in the palm, which tested presumptively positive for blood, human or animal. That area and the swab of the exterior cuff of the glove tested positive for the DNA of two contributors, and neither Boardman nor Silver could be ruled out as a contributor. D. The Date of Boardman's Death
1. Prosecution and defense timelines
The prosecution's theory of the crime was that Silver showed up at Boardman's house on the evening of December 25, 2015, or the early morning hours of December 26th, looking for a place to stay, a place to burglarize, or perhaps just looking to take Boardman's truck. The prosecution posits that Silver killed Boardman early in the morning of December 26th and fled in Boardman's truck. According to this theory, Boardman was already dead when Silver stole his truck and headed south to Santa Barbara.
Silver's theory of defense was that Boardman was alive when he took the truck, and someone else killed him at some time thereafter. We have only Silver's word that he spent Christmas 2015 in Elk. The countervailing testimony from Silver's friend, Stevens-Cooper, was that Silver was at her door in Fort Bragg on or about Christmas night, without his skateboard, which was his usual transportation.
A surveillance video tape from the local market showed Boardman's truck heading southbound at 7:14 a.m. on December 26, 2015. One witness testified she saw Boardman's truck turning onto Coast Road between 8:00 and 8:30 a.m. on December 26th, but she could not see who was driving. The truck turned in the direction of Willits, where Silver's mother lived.
The prosecution theory was that Silver was driving the truck that day, heading south out of Fort Bragg after killing Boardman, but stopping off in Willits to drop off a loaf of bread and a single red-and-white leather glove on his mother's doorstep. Silver ultimately admitted stealing the truck on December 26, 2015. That fact, together with the Home Depot video on that date, tended to roughly substantiate the prosecution's timeline for the theft of Boardman's truck and Silver's departure from Fort Bragg. The date of Boardman's death was a more contentious matter.
Because Silver claimed he had never entered Boardman's house while stealing the truck, and because there was corroborating evidence that Boardman kept a key to his truck hidden inside the truck, Silver's story had surface plausibility. He also presented expert evidence that Boardman most probably was not killed until after December 26, 2015.
Under the prosecution's theory, Boardman had last been seen on December 25, 2015, when Buckmaster went downstairs to give him some Christmas presents at about 11:00 a.m. Salo also saw Boardman on Christmas, but he could not remember what time. The prosecutor presented evidence that a home health nurse was unable to reach Boardman on December 26th and 27th. (See fn. 2, ante.) Boardman also failed to report his truck or dog missing between December 26, 2015, and January 2, 2016. And he missed a medical appointment on or about December 29, 2015.
2. The roommates' testimony
Buckmaster, however, testified she saw Boardman after giving him the Christmas presents; he had a backpack and a gallon of milk in either hand. She did not recall what date that was. She told Wilder she had seen Boardman on December 27, 2015. Although not sure of the date, Buckmaster said she had seen Boardman "shortly after Christmas." Buckmaster had credibility problems, though; she was a blackout alcoholic and described her memory as "zero to blank" because of alcohol.
Salo, too, thought he had seen Boardman after Christmas. Salo visited Boardman most every morning to play cribbage and drink coffee. Salo was also a blackout alcoholic and had problems recalling exact dates. He told Wilder he had seen Boardman two or three days before his body was found on January 2, 2016.
3. The expert testimony
The date of Boardman's death could not be determined precisely, but forensic doctors could estimate "a window of death" or "window of time" when death could have occurred. Three expert witnesses testified on the subject, presented both by the prosecution and the defense. Dr. Jacqueline Benjamin, the prosecution's expert who performed the autopsy on January 5, 2016, testified the body was no longer in rigor mortis, and death could have occurred on December 26, 2015, or sometime thereafter, but not later than December 29, 2015. Dr. Benjamin testified she knew the body was not in rigor mortis because she could manipulate the arm.
Dr. Benjamin was unavailable for trial, so another person read her prior testimony from Silver's second trial.
Rigor mortis generally sets in some hours after death and subsides within six or seven days after death.
Silver presented expert testimony by Dr. Terri Haddix to support the view that the state of the body upon discovery practically precluded Silver as the killer because the body was still in rigor mortis when police discovered it on January 2, 2016. This was evident from crime scene photos in which Boardman's left arm and hand were raised, defying gravity, and some rigidity was also noted in the right hand and wrist. Dr. Haddix's finding of rigor mortis was based on photos, not manipulation, but she claimed it was possible to detect residual rigidity from a photo. Though Dr. Haddix thought it was "a possibility" that death could have occurred on December 26, 2015, she would have found that "unusual"; she thought the date of death was more likely closer to January 2, 2016.
A third expert, Dr. A. Jay Chapman, testified as a rebuttal witness for the prosecution. He testified it was not possible to judge true rigor mortis from photographs, as Dr. Haddix had. And because Dr. Benjamin noticed decomposition of Boardman's body while conducting the autopsy, he agreed with her that rigor mortis had subsided. Decomposition and rigor mortis generally do not coexist. The evidence of decomposition made an earlier date of death more likely. Dr. Chapman estimated death occurred on December 26 or 27, 2015, or perhaps later. E. Evidence of the Elk and Boonville Crimes , Admitted Under Section 1101 , Subdivision (b)
Besides Silver's connection to Boardman's stolen truck, there was scant evidence of the identity of Boardman's killer. The evidence against Silver was mostly circumstantial. In the third trial, unlike the second, the prosecutor sought by motion in limine to introduce evidence of Silver's theft of a truck in Boonville, about 50 miles from Fort Bragg, and three prior burglaries in Elk, about midway between Fort Bragg and Boonville. Defense counsel filed opposing papers arguing the evidence subject to the in limine motion was character evidence used to prove conduct, inadmissible under section 1101, subdivision (a), and was more prejudicial than probative. The court ruled the evidence was admissible under subdivision (b) to show motive to enter or common plan to enter Boardman's home. The prosecutor was allowed to present evidence tending to show that Silver had broken into several other people's homes, evidently looking for someplace to sleep and something to eat, in the days before Boardman was killed. Silver generally took some items from those homes when he left.
The evidence subject to the motion included that Silver's friend, Sylvia Carsey, had permitted him to stay in her home in Boonville for about four days while Carsey was preparing to leave on a trip. Woozle ran away while he was staying there. Silver was extremely upset about the loss of his dog, so Carsey allowed him to stay on for one more day after she left for her trip so he could look for Woozle.
Instead of showing gratitude, Silver stole Carsey's truck and took it on a hair-raising excursion from Boonville to Elk, involving it in three crashes in less than two hours before he abandoned it. Carsey's neighbor, Alfonso Barajas, testified that Silver took Carsey's truck at about 5:00 p.m. on December 20, 2015, and ran it through the front gate of the property. Immediately after pulling onto the road, Route 128, Silver hit the rear right side of a passing truck that had unsuccessfully tried to avoid an accident by swerving into the opposing lane of traffic. California Highway Patrol (CHP) Officer Olegario Marin discovered the truck at about 7:00 p.m. abandoned in Elk after having crashed yet again, this time into a tree on Philo Greenwood Road.
After the crash, Silver gained entry into a nearby house on Philo Greenwood Road, evidently by kicking in the back door. Crescent Tarbell and his wife owned the house and were remodeling the upstairs on weekends while living in Oakland. A downstairs unit in the house was inhabited by Tarbell's wife's sister, Alice Lawrence, who was away on a trip. When Tarbell returned to the home on December 22, 2015, he discovered someone had entered both units in the house while no one was home and stayed there, eating food and consuming alcohol found on the premises. The intruder left feces in the toilet, beds that had obviously been slept in, and a pot of macaroni cooking on the stove. He also stole miscellaneous items from the two units, including Lawrence's jewelry, laptop computer, and bicycle, warm clothes from upstairs, and Tarbell's stereo and some tools in a Makita tool bag.
Mendocino County Sheriff's Deputy Jonathan Martin searched Boardman's truck in July 2016, after it was returned to Mendocino County, looking for evidence of the Elk burglaries. He found a shamrock coin that had been taken from Lawrence's unit.
On December 22, 2015, at 12:40 p.m., CHP Officer Owen saw Silver hitchhiking at a bend in the road on State Highway One in Elk, California. Since the roadway was narrow and wet from heavy rains, Owen stopped to check on Silver's welfare. Silver told the officer he did not want to talk and began walking away. Silver kept looking back over his shoulder, and when he ran across the roadway, Owen yelled at him to stop. Instead, Silver ran through an opening in the fence that surrounded the property at 3300 South Highway One in Elk.
There were two homes on the property, including one rented by Harper Billings. Officer Owen saw Silver walking along an embankment between the two homes. After calling for back-up assistance, Owen got out of his car to try to locate Silver on foot. Owen could no longer find Silver, but about five feet down the embankment he found the Makita tool bag Silver had been carrying and retrieved it.
At 4:35 p.m. that same day, Deputy Sheriff Martin responded to a burglary-in-progress at Billings's home. The burglar had evidently broken a pane in a rear window to gain access. The officers matched property missing from the burglary at the home of Tarbell and Lawrence to items retrieved during the investigation of the burglary at the Billings residence, including items retrieved from Tarbell's Makita tool bag that Silver had left on the embankment on Billings's property. Within the Makita bag, Martin discovered Lawrence's computer.
Sometime between December 22 and December 24, 2015, Silver entered the home of David Cooper at 3601 South Shoreline Highway (also known as Highway One) in Elk. Since Cooper's home was close to the other burglaries, police on their own had checked on it and found it secure on December 22nd. On December 24th, they returned to Cooper's property and discovered it was no longer secure. When Cooper arrived home on December 26th after being away for about a week, he discovered that someone had slept in his bed and left an ashtray nearby. He also noticed there were dishes left in his sink, his stovetop was no longer clean, and the crockpot he rarely used was full of cooked food.
When police arrived and took photos of the burglary scene, they discovered a match with a green tip that was identical to the set of matches stolen from the fireplace at Lawrence's apartment which were later recovered from the Makita tool bag. There were also "some missing items" from Cooper's home, but they were not identified. F. Christmas Night
Silver told Kevin Bailey, Chief Investigator for the Mendocino County District Attorney's Office, he had spent Christmas in a house in Elk. The evidence showed, however, that he went to Stevens-Cooper's house on or near Christmas 2015. The two friends used to do drugs together, but when he came to her house this time she refused him entry because she now had a baby and was no longer using drugs. Stevens-Cooper lived in Fort Bragg. When Silver showed up on Christmas she noticed he did not have his skateboard with him, which was unusual because it was his mode of transportation. G. Evidence Supplied by Silver's Mother
On January 3, 2016, the day after Boardman's body was found and news of his death had traveled, Silver's mother, Frances Behrendt, called the Fort Bragg police to inquire about the investigation into Boardman's death. Officer Wilder interviewed her the same day. Behrendt told Wilder that Silver had messaged her on Facebook and said he was working in Santa Barbara for in-home health services. Behrendt said it " 'makes me lock my doors' " to hear from Silver. She said she had not seen him in nearly two years and their relationship was "a little strained." Behrendt told Wilder that three days earlier a red-and-white leather glove and a loaf of bread had been left on her front step and she thought it might be Silver's "calling card." There was no blood on the glove.
In April 2016, Behrendt showed investigators a letter she had received postmarked April 11, 2016, from Santa Clara County Jail, with a return address indicating it was from "Elliott J. Penhey," but it was in Silver's handwriting. The letter wished her a belated happy birthday, and said in part: "I almost stop[p]ed by on Xmas, I drove by your house at least thought better of it. I[']m afraid to tell you I might never get to hug you again. It is because that [sic] I am under investigation where I might receive 25 to life that's all I can say for now. If you would like to send mail you must send it to Elliot Jay Penhey. He can get mail and give it to me. Due to the investigation I am on no mail access but if you write him he will get it to me." The letter continued with a postscript: "P.S. What have you heard about me in Mendo? [¶] BIG TROUBLE?" (Italics added.)
As it turned out, on the day after Boardman's body was discovered, Silver had been arrested in San Jose under the name Elliott Jay Penhey on a charge of burglary. After reading the letter, police confirmed that the "Elliott Penhey" still in custody in Santa Clara County was, in fact, Silver. In mid-April 2016, Fort Bragg Police Officers Wilder and Awad traveled to San Jose, arrested Silver for possession of stolen property, and brought him back to Mendocino County for questioning in connection with Boardman's murder. H. Silver's Statements to the Mendocino County District Attorney's Investigator
On Christmas Day 2015, Tarbell went to the site where Silver had wrecked and abandoned Carsey's truck. On the shoulder of the road nearby, Tarbell found a falsified Arizona driver's license in Penhey's name, with Silver's picture affixed, and he turned it over to Deputy Sheriff Martin.
Investigator Bailey conducted an interview with Silver the day after he was brought back to Mendocino County. Silver first said he had not been back to Fort Bragg since 2014 when he had lived with Boardman; then later he admitted he returned on the day after Christmas 2015. Silver said he spent Christmas in a house in Elk. He admitted being at Boardman's house on December 26, 2015, and admitted stealing Boardman's truck, but he denied going inside the house and denied killing Boardman. He said he stole the truck because he was in a hurry to flee from Fort Bragg, as he was being pursued by members of the Mexican Mafia.
In May 2016, after his return to Mendocino County, Silver wrote another eight-page letter to his mother, which the prosecution characterized as asking her to corroborate his story about the Mexican Mafia by claiming that she, too, had been a target of a crime syndicate. Behrendt turned the letter over to Wilder. Behrendt had, in fact, had her car and some jewelry stolen, but did not consider herself the target of a crime syndicate.
First he said he had walked to Boardman's house alone. Later, he said another person—a member of a gang called the S.F. Dogs—had been with him when he went to steal the truck, but after an argument, Silver left that person behind and took off by himself in the truck. Silver admitted spray painting the truck black. He told Bailey he did not intend to steal Boardman's dog but simply found the dog sleeping in the truck after he took it. Silver said he was high from shooting and smoking methamphetamine when he went to Boardman's house. I. The Testimony by Theo Corcoran , Silver's Cellmate in November 2016
While housed in the Mendocino County Jail awaiting trial, Silver and another inmate, Theo Corcoran, ended up in lockup together. The two men had a falling out after about a week of sharing a cell, and Corcoran claimed he "beat the fuck out of" Silver. But while they were still getting along, Silver told Corcoran some details of the murder of which he was accused. Corcoran reiterated Silver's statements in what must have been a chilling but riveting narrative for the jury.
About two months later, Corcoran reported the conversation to his arresting officer and then to the Fort Bragg police because his conscience was bothering him, and in the hope of getting consideration in sentencing on his own case for felon in possession of a firearm, grand theft, and attempted second-degree burglary. According to both Corcoran and Awad, Corcoran did not actually receive any leniency or promises for his testimony.
While they were in custody together, Corcoran received a book from his family with pictures of dogs and puppies. When Corcoran tried to show Silver the pictures to show him how cute the dogs were, Silver became upset. Silver told Corcoran he missed his dog and "he had an issue with losing the dog and this led to the downward spiral that ended in Mr. Boardman's death." Corcoran said Silver told him "[h]e had been on a run robbing houses and vacation homes" in Elk, "and that he was using narcotics." Silver told him after burglarizing the houses, "[h]e ended up at the victim's house and was let in and that he bludgeoned and slit the throat of the victim."
Silver described his victim as elderly, and as "[s]omebody who was actually helpful to him" when he had nowhere else to go. Corcoran said Boardman let his guard down and Silver attacked him from the rear. Corcoran thought Boardman first allowed Silver to take a shower, then Silver "blindsided" him afterwards. Corcoran recounted what Silver had told him about the murder: "I believe that the victim was in his bed or bedroom and he was hit in the head, beat in the head. And then he told me that he tried to slit his throat and the first knife was—he had a—he couldn't do it with the first knife, and he said something to the effect of, 'Do you know how hard it is to slit someone's throat?' And then he found a knife that he was able to complete it with."
Silver told Corcoran he used a "hammer, a straight-edge knife, and then a serrated knife" in killing Boardman. Corcoran thought one or both of the knives was a folding knife. Corcoran thought the victim had been conscious while Silver used the knife because Silver told him the victim had been making noise. Silver told Corcoran he stole some items, including a $100 bill, and then fled in the victim's "red stepside truck" with a back "you could live in." Silver told Corcoran "the only thing [the police] had on him was a fingerprint on the soda can in the vehicle."
Dr. Benjamin testified that it was impossible to tell from the wounds whether a serrated or straight-edge knife had been used to inflict Boardman's wounds.
Some of the information Corcoran provided was inaccurate, such as saying that Silver had used a "rainbow-colored knife" to slit Boardman's throat, that a "folding knife" was used, and that one of the knives was serrated, though neither of the knives found by the police was serrated or otherwise matched those descriptions. Corcoran at one time told Officer Awad that Silver escaped in Boardman's van instead of his truck. Corcoran's testimony was somewhat inconsistent about whether Silver stole a $100 bill, or simply stole $100. And the authorities, instead of finding fingerprints on a soda can, found DNA evidence on an energy drink can. Still, the drink can was one piece of physical evidence that would tie Silver to the truck, and hence to the murder. Some of what Corcoran told the police had never been released to the public. J. The Charges and Trials
The initial felony complaint charging Silver with Boardman's murder was filed June 13, 2016. On April 6, 2017, the District Attorney of Mendocino County filed the operative first-amended information in docket No. 16-86028 charging Silver in count one with murder and alleging two enhancements for personal use of deadly weapons, i.e., a hammer and a knife, and a special circumstance of lying in wait (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(15), 12022, subd. (b)(1)), and in count two with theft or unauthorized use of Boardman's vehicle (Veh. Code, § 10851, subd. (a).) The trial court dismissed the special circumstance allegation on Silver's motion under Penal Code section 995.
There were were two previous trials. Silver's first trial began shortly before serious forest fires broke out in Mendocino County and resulted in a mistrial after two jurors were dismissed for hardship and a third for cause, leaving only eleven jurors on the panel. In the second trial, jurors found Silver guilty of the theft of Boardman's truck alleged in count two but were unable to reach a verdict on the murder charge in count one, and the court declared a mistrial on that count. Silver's third trial on the murder charge began with jury selection on April 16, 2018 and produced a verdict on April 27, 2018. The prosecutor consolidated four additional cases against Silver involving the other crimes, evidence of which was later introduced in this trial. On February 1, 2018, the prosecutor filed a first-amended information for the newly-consolidated action, docket No. 17-91955, charging Silver with three first-degree burglaries in Elk (Pen. Code, §§ 459, 460 subd. (a)) and theft or unauthorized use of Carsey's vehicle in Boonville (Veh. Code, § 10851, subd. (a)). On February 28, 2018, Silver pleaded no contest to count one (first-degree burglary of the Lawrence/Tarbell residence) and count four (unauthorized driving of Carsey's truck) in exchange for a sentence of six years, eight months on those counts, and dismissal of the additional burglary charges. K. The Prosecutor's Theories of the Case
The prosecutor told the jury in his closing argument that there were two main issues in the trial: (1) whether Silver entered Boardman's house, and (2) whether Silver killed Boardman. Corcoran testified that Boardman let Silver in, and given the history of the relationship between Boardman and Silver, there was little reason to doubt that part of Corcoran's story. By presenting other crimes evidence, the prosecutor established that Silver needed a place to stay on Christmas night, making Silver's story that he had been on Boardman's property but had not entered Boardman's house seem unlikely. Equally unlikely was Silver's story that he spent Christmas 2015 in Elk, given Stevens-Cooper's testimony putting him in Fort Bragg on December 24th or 25th, without his usual transportation, together with the fact that he was in Fort Bragg on December 26th at 7:14 a.m.
The prosecutor took a scatter-gun approach to articulating a motive for the murder. He suggested: (1) Silver needed a place to stay and entered Boardman's home to secure a bed for the night and some food, and he subsequently killed Boardman for some unexplained reason, possibly because of a "past contentious" relationship with Boardman when Boardman would not allow Silver's "druggie" friends into the house and then made Silver move out. (2) Silver entered to ask Boardman if he could borrow Boardman's truck and when Boardman refused, Silver killed him. (3) Silver was so upset about losing his dog that he entered Boardman's house and killed Boardman to facilitate stealing Bugsy as a replacement for Woozle. (4) Silver bore smoldering ill will toward Boardman for supposedly burning down his family's home when he was a child and killed him in revenge. (5) Boardman had once thrown a frying pan and hatchet at Silver when he was a child, from which a juror could have inferred there was lingering animosity leading to the killing of Boardman. (6) Silver was high on methamphetamine at the time and simply became violent as an effect of the drug.
When Silver was seven years old his family's house burned down. Boardman's cookstove apparently had started the blaze. It was ruled an accident, but the prosecutor implied Silver still blamed Boardman, saying Silver had a "continuing resentment" against Boardman. Silver told the police he had forgiven Boardman, and his mother also believed there was no lingering resentment.
The prosecutor relied on the manner of killing to support a finding of first-degree murder rather than a lesser offense. L. The Defense
Silver's interview with Chief Investigator Bailey formed the backbone of the defense at trial. Silver adhered to the position that he stole Boardman's truck but never went inside Boardman's house on December 26, 2015. He hypothesized that Boardman was killed by someone else on a later date. His attorney emphasized in closing argument that this was a circumstantial evidence case in which the prosecution witnesses, he claimed, lacked credibility, and police exhibited "confirmation bias," i.e., they pursued an investigation to confirm their initial theory without remaining open to other potential theories. M. The Verdict and Sentence
The jury was instructed on first- and second-degree murder and voluntary manslaughter based on heat of passion. On April 27, 2018, after deliberating for less than three hours, the jury found Silver guilty of first-degree murder and found the deadly weapon allegations true. On July 17, 2018, the trial court sentenced Silver to 25-years-to-life for the murder, consecutive to two one-year terms for the weapons enhancements, and it imposed but stayed under Penal Code section 654 a two-year term for the theft of Boardman's vehicle. The judge also sentenced Silver to six years, eight months in prison (consecutive) in docket No. 17-91955 for the crimes he committed in Elk and Boonville. Silver filed a timely notice of appeal from the murder conviction.
II. DISCUSSION
Silver claims on appeal that evidence of the unrelated burglaries and auto theft was erroneously admitted under section 1101, subdivision (b) because the evidence had no substantial probative value, and its probative value was in any case far outweighed by its potential for prejudice. He also claims the prosecutor erred in closing argument by misstating facts, disparaging defense counsel, and improperly appealing to the jurors' sympathy for the victim. We find the trial court did not abuse its discretion in admitting the uncharged misconduct evidence for a limited nonpropensity purpose. We further conclude Silver's allegations of prosecutorial misconduct were forfeited and in any event are unmeritorious. A. The Trial Court Did Not Abuse Its Discretion by Admitting Evidence of the Elk and Boonville Crimes
1. The motion in limine to admit other crimes evidence and ruling
Before the third trial started, the prosecutor filed a motion in limine to admit the evidence of the three Elk burglaries and the Carsey truck theft in Boonville on the issues of identity, intent, motive and common plan. The trial court issued a detailed written ruling on the prosecutor's motion. The court determined that the question whether Silver entered Boardman's house was a "significant issue" in the case, an "issue of material fact." "Whether [Silver] entered the victim's residence is a genuinely contested issue," since Silver denied he had ever entered the residence where the murder occurred. The court considered the Elk evidence "highly probative" of "motive" to enter: "Though none of this evidence relates to crimes similar to murder, it is highly probative on a critical issue in the homicide. The evidence is clear that the homicide occurred within the victim's house and in fact, within the victim's bedroom. The prosecution has to prove that Silver entered the house. To do so, they have to show that Silver had a motive to enter the house." We agree that entry became a material issue in the case by way of Silver's denial of entry. There was a legitimate reason for the prosecutor to prove Silver entered Boardman's house, and the uncharged misconduct evidence was probative of that issue.
We take issue with the court's statement that the People "have to show" motive to enter. The prosecutor chose to present such evidence but was not legally required to do so (i.e., entry was not an element of the charged offense, and burglary was not charged).
The trial court deemed the other burglaries especially probative because they demonstrated that close in time and place to the crime, Silver was entering other people's homes to steal and to find food and a place to stay. Among other things, the trial court noted, "Silver had a motive to enter Boardman's residence and therefore, an opportunity to commit the charged crime in that he needed a place to stay. He had been entering residences, sleeping in the beds and stealing food, clothing and other items for the last 5 days; . . . Sylvia Carsey's testimony could also support a motive to enter the victim's house to take the victim's dog."
After noting it would instruct on the limited purpose of the evidence, the trial court found admission of the other crimes evidence was not unduly prejudicial and any potential for prejudice was outweighed by its probative value, stating: "the proffered evidence does not tend to show the propensity to commit the charged offense, murder. The evidence is probative on the issue of the defendant's motive to enter the Boardman house and to impeach the veracity of statements the defendant made to law enforcement and his mother. The defendant's statement to witness Carsey, in the context of defendant's statements to law enforcement, also shows a motive to take the dog. The idea that the dog was left outside in the victim's truck on a cold Christmas night in Fort Bragg as [Silver] contends strains credulity. Entry into the house may show the defendant had the opportunity to commit the murder but does not show his propensity to do so. Nor does this evidence directly contradict the main defense contention that the victim was killed long after the defendant stole the truck and headed south." The trial judge concluded the evidence was inadmissible on identity and intent, but he granted the prosecution's motion in limine on Silver's motive to enter Boardman's house. He ultimately instructed the jury it was admissible on "motive or common plan to enter Denis Boardman's residence."
With respect to the Carsey vehicle theft and crash, the trial court reasoned that the location of the vehicle and its having been disabled by the crash was probative of Silver's entry into the Tarbell/Lawrence home nearby, which in turn was probative of Silver's motive to enter Boardman's home. The court believed the Carsey incident was also "helpful to demonstrate that the defendant was without transportation in the few days before Christmas as well as being without a legitimate place to stay."
2. The law on admissibility of uncharged crimes evidence
a. Character evidence generally
Ordinarily, character evidence—including evidence that a defendant committed an uncharged offense—is inadmissible to prove the defendant's disposition to commit the charged offense. (§ 1101, subd. (a) ["Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion."].) Evidence that the defendant committed "a crime, civil wrong, or other act[,]" however, is admissible to prove material facts other than propensity, such as "motive, opportunity, intent, preparation, plan, knowledge, identity, [or] absence of mistake or accident . . . ." (§ 1101, subd. (b); see, e.g., People v. Merchant (2019) 40 Cal.App.5th 1179, 1191-1192.) " 'The inference of a criminal disposition may not be used to establish any link in the chain of logic connecting the uncharged offense with a material fact. If no theory of relevancy can be established without this pitfall, the evidence of the uncharged offense is simply inadmissible.' [Citation.]" (People v. Lewis (2001) 26 Cal.4th 334, 373.)
Because substantial prejudice is always inherent in admitting uncharged offenses, such evidence is admissible only if it has substantial probative value. (People v. Thompson (1980) 27 Cal.3d 303, 318; accord, People v. Lindberg (2008) 45 Cal.4th 1, 23 (Lindberg); People v. Ewoldt (1994) 7 Cal.4th 380, 404 (Ewoldt).) "The chief elements of probative value are relevance, materiality and necessity." (People v. Schader (1969) 71 Cal.2d 761, 774; see also People v. Thompson, supra, at p. 318, fn. 20.) "Materiality, i.e., what matters are in issue, 'is determined mainly by the pleadings, the rules in pleading and the substantive law relating to the particular kind of case.' " (People v. Hill (1992) 3 Cal.App.4th 16, 29, overruled on other grounds in People v. Nesler (1997) 16 Cal.4th 561, 582, fn. 5.)
"When reviewing the admission of evidence of other offenses, a court must consider: (1) the materiality of the fact to be proved or disproved, (2) the probative value of the other crime evidence to prove or disprove the fact, and (3) the existence of any rule or policy requiring exclusion even if the evidence is relevant." (People v. Thompson (2016) 1 Cal.5th 1043, 1114 (Thompson); accord, Lindberg, supra, 45 Cal.4th at p. 22; People v. Thompson, supra, 27 Cal.3d at p. 318.) The "rule or policy" referred to in the third factor includes the balancing of prejudice against probative value under section 352. (People v. Edwards (2013) 57 Cal.4th 658, 711; Lindberg, at p. 22.)
If the trial court determines the evidence is substantially probative under section 1101, subdivision (b), it must next determine whether the probative value of the evidence is substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, confusion of the issues, or would mislead the jury. (Ewoldt, supra, 7 Cal.4th at p. 404; § 352.) " 'Evidence is substantially more prejudicial than probative [citation] [only] if, broadly stated, it poses an intolerable "risk to the fairness of the proceedings or the reliability of the outcome" [citation].' (People v. Waidla (2000) 22 Cal.4th 690, 724." (People v. Eubanks (2011) 53 Cal.4th 110, 144.)
The standard of review on appeal is abuse of discretion. (Thompson, supra, 1 Cal.5th at p. 1114.) If error is found, it is reviewed under the state standard of prejudice articulated in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (People v. Samuels (2005) 36 Cal.4th 96, 113; People v. Malone (1988) 47 Cal.3d 1, 22.) That standard requires us to affirm unless we determine it is reasonably probable that the defendant would have obtained a more favorable result had the evidence not been admitted. (Watson, at p. 836.)
b. Motive
Generally speaking, the admissibility of evidence under section 1101, subdivision (b) depends on the degree of similarity between the uncharged act and the charged offense. (Ewoldt, supra, 7 Cal.4th at p. 402.) For evidence of uncharged acts to be admissible to prove facts such as intent, identity, or common design or plan, the charged offenses and uncharged acts must be "sufficiently similar to support a rational inference" of these material facts. (People v. Kipp (1998) 18 Cal.4th 349, 369.) " 'The least degree of similarity between the uncharged act and the charged offense is required to support a rational inference of intent; a greater degree of similarity is required for common design or plan; the greatest degree of similarity is required for identity.' " (People v. Merchant, supra, 40 Cal.App.5th at p. 1192; see generally Ewoldt, at pp. 393-403.)
The rules relating to evidence used to prove motive are somewhat different in that evidence of motive does not require a comparison of common features of a past crime and a charged crime to be probative. " 'The existence of a motive requires a nexus between the [uncharged] crime and the [charged] one, but such linkage is not dependent on comparison and weighing of the similar and dissimilar characteristics of the past and present crimes.' " (Thompson, supra, 1 Cal.5th at p. 1115.) For instance, proof of a defendant's past financial crimes may be admitted to prove motive for murder. (Ibid.)
Accordingly, we conclude the prosecutor's evidence of Silver's prior burglaries and the Carsey truck theft was admissible to show Silver had a motive to enter Boardman's house because he needed a place to stay on Christmas night. The evidence was not admitted to show Silver broke into Boardman's home, as he had in the prior burglaries, but merely to show he would have had a powerful reason (or motive) for wanting to enter Boardman's home, and he probably would not have hesitated to ask to come in. The evidence made Silver's denial of entry less believable and Corcoran's testimony that Silver was "invited" into Boardman's home and "was welcome there" more likely.
c. Common plan or scheme
"To establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual. . . . [E]vidence that the defendant has committed uncharged criminal acts that are similar to the charged offense may be relevant if these acts demonstrate circumstantially that the defendant committed the charged offense pursuant to the same design or plan he or she used in committing the uncharged acts." (Ewoldt, supra, 7 Cal.4th at p. 403.) "[I]n establishing a common design or plan, evidence of uncharged misconduct must demonstrate 'not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.' " (Id. at p. 402.)
The trial court admitted evidence of the three Elk burglaries and the Carsey truck theft as relevant to a common plan or scheme—not a common plan encompassing Boardman's murder, but a common plan to enter Boardman's house. Ordinarily uncharged misconduct evidence is admitted to prove a common scheme or plan where the charged offense is a manifestation of the common plan. Thus, the "motive, opportunity, intent, preparation, plan, knowledge, identity, [or] absence of mistake or accident" referred to in section 1101, subdivision (b) most often refers to the motive, opportunity, intent, etc. in committing the charged offense. But the list of issues in the statute upon which such evidence may be admitted is not exclusive. (People v. Catlin (2001) 26 Cal.4th 81, 146.) "[U]ncharged misconduct . . . may be used to prove any disputed fact other than propensity to commit the charged crime . . . . The categories set out in Evid C § 1101(b) are merely illustrative." (2 Jefferson, Cal. Evidence Benchbook (Cont.Ed.Bar 4th ed. 2019) Other Disputed Facts, § 35.27, p. 35-19, italics added; see also People v. Spector (2011) 194 Cal.App.4th 1335, 1373; People v. Montalvo (1971) 4 Cal.3d 328, 331-332 ["Although evidence of prior offenses may not be introduced solely to prove criminal disposition or propensity such evidence may properly be admitted whenever it tends logically, naturally, and by reasonable inference to establish any fact material for the People or to overcome any material matter sought to be proved by the defense." (Italics added.)].)
Therefore, the trial court did not abuse its discretion when it admitted the other crimes evidence to show Silver had developed a common plan of entering other people's houses to find shelter, food, a bed, and perhaps something to steal. In People v. Harris (2013) 57 Cal.4th 804, the defendant robbed, raped and murdered Alicia Manning, and then took her car and torched it. (Id. at p. 811.) He was also charged with burglary of Manning's apartment. (Id. at p. 842.) The Supreme Court upheld admission of evidence of an uncharged burglary of a stranger's apartment in the same neighborhood as sufficiently similar to show entry with larcenous intent to Manning's apartment. The court reached that conclusion notwithstanding evidence that the defendant knew Manning, had been in her apartment previously, left no signs of forced entry, took no jewelry, and raped and murdered Manning rather than fleeing from their encounter, as he had in the uncharged burglary. (Id. at pp. 840-842.) Although the jury ultimately did not convict the defendant of burglarizing Manning's apartment, the Supreme Court still held the trial court did not abuse its discretion in admitting the evidence. (Id. at p. 842.)
3. The jury instructions
With respect to evidence admitted under section 1101, subdivision (b), the trial court instructed the jury with a modified version of CALCRIM No. 303: "During the trial, certain evidence was admitted for a limited purpose. All the evidence of the offenses in Boonville and Elk was admitted for the limited purpose described in Instruction 375. You may consider that evidence to the limited—for that limited purpose and for no other. This includes the testimony of the following witnesses: Crescent Tarbell, Alice Lawrence, Jonathan Martin, CHP Officer Owen, CHP Officer Marin, David Cooper, and Alfonso Barajas."
Although Carsey was a victim of the uncharged crimes, she was not included on this list because she also testified about Silver's lost dog, so the judge did not instruct the jury to consider her testimony for a limited purpose.
The trial court also instructed with a modified version of CALCRIM No. 375, which read in part: "The People presented evidence of other offenses by the defendant that were not charged in this case, including the taking of Sylvia Carsey's vehicle and entering, consuming available food, utilizing the cooking and sleeping facilities and taking items from residence—residences in the Elk area just before Christmas of 2015. . . . [¶] If you decide that the defendant committed the uncharged acts, you may but are not required to consider that evidence for the limited purpose of deciding whether the defendant had a motive or common plan to enter [Denis] Boardman's residence. Do not consider this evidence for any other purpose. In evaluating this evidence, consider the similarity or lack of similarity between the uncharged acts and the charged offense. Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime. . . . " (Italics added.)
4. The uncharged crimes evidence was substantially probative of Silver's motive or common plan to enter Boardman's house
The uncharged burglaries showed that Silver was desperate for a place to stay in the days before Boardman was killed, and he was likely to have sought and accepted an offer to enter Boardman's home on that cold Christmas night. The prosecutor was properly allowed to put on evidence of several prior burglaries for the very reason that he was trying to establish a pattern or plan, not simply an isolated incident or lapse in judgment. As long as the evidence was used by the jury as instructed, it was relevant to whether Silver entered Boardman's house. The evidence of the Elk and Boonville crimes was admissible because it led by inference to an increased probability that Silver killed Boardman, without involving propensity reasoning.
Nor is it objectionable that the prosecutor presented details of the prior offenses that put Silver in a bad light, rather than sticking strictly to the fact of conviction or proof of the elements. Silver claims the evidence was immaterial because entry was not an element of the charged offense. In this case, the probative value of the evidence was carried in the details of the prior offenses, not their bare elements. In each case, the entry itself, which completed the crime of burglary, was not unique and was less relevant than what Silver did once inside. He did not snatch and run; he moved in. He used the beds, kitchen facilities, bathroom facilities, and food supplies. These were the very acts that made the evidence relevant for a nonpropensity purpose. Knowing this pattern of Silver's behavior, the jury could better assess the truth or falsity of his conflicting statements.
Evidence concerning where Silver had been staying over the past few nights was relevant to whether he entered Boardman's house—and therefore whether he killed Boardman—because it had a tendency in reason to make a fact of consequence, Silver's entry, more likely. (§ 210.) It was material because Silver denied entering Boardman's house, bringing this intermediate fact into dispute. And in light of Silver's own conflicting statements and Corcoran's tainted credibility, the evidence was necessary for the jurors to make an informed assessment of the relative credibility of Silver's story to Investigator Bailey and Silver's story as recounted by Corcoran. The Elk and Boonville evidence had substantial probative value.
5. The evidence was not substantially more prejudicial than probative under section 352
Counsel for both parties acknowledged before the jury that Silver was homeless. The Elk and Boonville evidence portrayed him as a mostly petty criminal who stayed one step ahead of the law on a relatively minor crime spree that ended inexplicably with Boardman's brutal murder. There is no question that the evidence portrayed Silver in a very unflattering light: he appeared to be not only a burglar and vehicle thief, but an inconsiderate slob, a thankless, thieving friend, and a reckless, irresponsible driver. But he was on trial for the much more serious crime of murder, and his coping strategy for his state of homelessness was a material fact in this case. It spoke to the likelihood that Silver would have sought and accepted shelter in Boardman's house on Christmas night after being turned away by Stevens-Cooper.
Though the evidence shone a harsh light on Silver, we conclude there is little risk Silver was convicted of murder based on propensity reasoning, in part because the evidence of uncharged misconduct was far less inflammatory than the evidence of the murder itself. Nothing in the disputed evidence pegged Silver as a violent man. He selected uninhabited houses to invade, and he vacated when the owners returned. He did not confront the owners, did not use any weapons, and did not commit any violent acts while in the homes he illegally entered. The jury was instructed on the limited purpose of the Elk and Boonville evidence. We presume the jury followed those instructions. (Lindberg, supra, 45 Cal.4th at pp. 25-26; People v. Waidla (2000) 22 Cal.4th 690, 725 ["The presumption is that limiting instructions are followed by the jury."].) The trial court did not abuse its discretion in concluding the probative value of the evidence was not "substantially outweighed" by its prejudicial impact. (§ 352.) Admission of the evidence was not error.
6. Any hypothetical error was not a due process violation and was harmless
Even if the challenged evidence should have been excluded, we would not deem this trial to have violated federal due process, as Silver's opening brief suggests. This was not the rare case in which the character evidence was so pervasive and so inflammatory that the trial may be declared fundamentally unfair. (See People v. Partida (2005) 37 Cal.4th 428, 439; cf. McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, 1380-1386.) Only if " 'no permissible inferences' " may be drawn from character evidence does its admission violate due process. (McKinney, at pp. 1384.) Applying the Watson standard of prejudice (People v. Samuels, supra, 36 Cal.4th at pp. 113-114; People v. Malone, supra, 47 Cal.3d at p. 22), we find no miscarriage of justice. (Cal. Const., art. VI, § 13; Watson, supra, 46 Cal.2d at p. 836.) B. The Claims of Prosecutorial Misconduct Were Forfeited and Lack Merit
Here, the prosecutor called seven witnesses to testify about the uncharged crimes; the testimony covered roughly 60 pages of the transcript and consumed approximately 85 minutes of trial time in a trial that lasted more than eight days.
1. The law
" ' "A prosecutor's misconduct violates the Fourteenth Amendment to the United States Constitution when it 'infects the trial with such unfairness as to make the conviction a denial of due process.' [Citations.] In other words, the misconduct must be 'of sufficient significance to result in the denial of the defendant's right to a fair trial.' [Citation.] A prosecutor's misconduct that does not render a trial fundamentally unfair nevertheless violates California law if it involves 'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.' " ' " (People v. Powell (2018) 6 Cal.5th 136, 172 (Powell).)
2. Appellate objections to rigor mortis argument and disparagement of counsel were forfeited by failure to object in the trial court
Silver claims the prosecutor prejudicially erred during closing argument "by misstating the facts, by disparaging defense counsel, and by improperly appealing to the jurors' sympathy for the victim." The prosecutor argued, "There are only two real issues in this case. The first is an intermediate issue. Did Caleb Silver enter Denis Boardman's house? The second is an ultimate issue. Did Caleb Silver kill Denis Boardman?" The prosecutor then listed five "nonissues" that related to the manner of the killing. The first four were whether the killing was (1) willful; (2) deliberate; (3) premeditated; and (4) committed with dangerous weapons.
Silver claims the prosecutor misstated facts as to the fifth "nonissue"—rigor mortis—by claiming it was an issue raised by the defense, rather than the prosecution, and by labeling it a "red herring," something that might "mislead[] or distract[]" the jury "from a relevant, important issue." No objection was made to these comments, and no misconduct argument may be raised on appeal. (Powell, supra, 6 Cal.5th at p. 171; People v. Forrest (2017) 7 Cal.App.5th 1074, 1081 (Forrest); see People v. Partida, supra, 37 Cal.4th at p. 434.)
The prosecutor said, "The defense attorney has wasted more than the better part of a day on rigor mortis. Remember, Dr. Benjamin who manipulated the body—." Defense counsel made an assumes-facts-not-in-evidence objection, which the court overruled as within the bounds of fair comment. We understand the objection as questioning the evidentiary support for the words "who manipulated the body," not the comment about "wast[ing]" the jury's time. The court did not abuse its discretion in overruling the objection. There was discordant testimony at trial over whether Dr. Benjamin had an advantage in determining whether Boardman's body was in rigor mortis when discovered because she performed the autopsy and had the opportunity to manipulate the limbs, and whether she in fact manipulated the limbs, that allowed for interpretation and argument such as that made by the prosecutor.
The prosecutor's tale about the origin of the term "red herring," and his claim that the rigor mortis evidence "wasted" the jury's time, were criticisms of defense counsel's arguments and approach to the case, not his integrity. (Cf. People v. Krebs (2019) 8 Cal.5th 265, 342-343.) The jury was not misdirected to consider defense counsel's ethics—an issue not within the jury's role—but merely to reject the theory of the crime he espoused. Defense counsel never objected on grounds of misconduct and never asked for an admonition. Those failures foreclose Silver's claim on appeal. (§ 353; Powell, supra, 6 Cal.5th at p. 171; Forrest, supra, 7 Cal.App.5th at p. 1081.)
3. Silver forfeited any claim of misconduct based on the prosecutor's epithets against Silver and sympathetic descriptions of Boardman
Silver claims the prosecutor committed misconduct in characterizing him as an "aggressive, vicious, obsessed, and resentful homeless man with a 'propensity for violence.' " Silver further complains that the prosecutor described Boardman in a manner that made an improper appeal to sympathy. The prosecutor's closing argument was hard-hitting and punctuated by bullet-point arguments about specific circumstantial evidence tending to support a guilty verdict. It was not without epithets.
Among other things, the prosecutor described Silver using the words, "generally vicious," "dangerous to society," and having a "propensity for violence." Such descriptors, or equally derogatory ones, are used routinely by prosecutors where the facts of the crime are particularly shocking or gruesome, as they were here. (E.g., People v. Krebs, supra, 8 Cal.5th at p. 341["animal"]; People v. Montes (2014) 58 Cal.4th 809, 890 ["monster," "sociopath" and "urban terrorist"]; People v. Pensinger (1991) 52 Cal.3d 1210, 1251 ["perverted maniac"].)
" ' " '[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. . . .' [Citation.] 'A prosecutor may "vigorously argue his case and is not limited to 'Chesterfieldian politeness' " [citation], and he may "use appropriate epithets." ' " [Citation.]' " (People v. Stanley (2006) 39 Cal.4th 913, 951-952.) This prosecutor's remarks did not cross the line into misconduct. They were evidence-based, they did not render the entire trial unfair, and they did not involve a deceptive or reprehensible tactic.
Silver also challenges portions of the prosecutor's argument as inviting excessive sympathy for the victim by referring to Boardman not only as "elderly" and "vulnerable," but as "an exceptionally kind man," a "vulnerable, kind-hearted, elderly victim loved by many." The statements about Boardman were supported by the evidence and were not inflammatory. Such comments were mild by comparison to cases in which prosecutorial pleas for sympathy for the victim have led to reversal. (See, e.g., People v. Vance (2010) 188 Cal.App.4th 1182, 1192-1200.)
Moreover, as Silver concedes, defense counsel asserted no objection on grounds of misconduct to arguments he now claims impugned counsel's integrity, or improperly characterized Silver as violent, or invited improper sympathy for his victim, and he never requested an admonition to the jury. Thus, he has forfeited his claim of prosecutorial error premised on the statements of which he now complains. (§ 353; Powell, supra, 6 Cal.5th at p. 171; Forrest, supra, 7 Cal.App.5th at p. 1081.) The only exceptions to this rule are when an objection would be futile or an admonition would not cure the harm caused by the misconduct. (People v. Boyette (2002) 29 Cal.4th 381, 432.) Those circumstances do not exist here. C. No Cumulative Prejudice
Finally, at the end of his opening brief and without separate heading (see Cal. Rules of Court, rule 8.204(a)(1)(B)), Silver claims he suffered cumulative prejudice based on prosecutorial error, plus error in admission of other crimes evidence. Having found no error, there is nothing to cumulate.
III. DISPOSITION
The judgment is affirmed.
STREETER, Acting P. J. WE CONCUR: TUCHER, J.
BROWN, J.