Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 05CF2584 Gary S. Paer, 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, Gary W. Schons, Assistant Attorney General, Theodore M. Cropley and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
ARONSON, J.
A jury convicted Jorge Jose Andrade of first degree murder (Pen. Code, § 187, subd. (a); all further statutory references are to this code unless noted) for the shooting death of Inocente Barrera and found to be true the special circumstance allegation Andrade committed the murder to further the activities of a criminal street gang (§ 190.2, subd. (a)(22)). The jury also convicted Andrade of active participation in a criminal street gang (§ 186.22, subd. (a)), but rejected the allegation he personally discharged a firearm causing great bodily injury or death (§ 12022.53, subds. (d)). Andrade raises numerous evidentiary and instructional issues and contends the prosecutor committed pervasive misconduct.
Specifically, Andrade contends the trial court erroneously admitted testimony suggesting that other courts had found a particular identification procedure reliable; he also challenges the gang expert’s use of hearsay, and he argues the trial court admitted the hearsay statement of a codefendant that implied Andrade had ordered his fellow gang members to set the victim’s body on fire. Andrade argues the prosecutor committed misconduct in his closing argument by referring to facts outside the record, by attempting to invoke sympathy for the victim and the victim’s mother, and by implying that a nontestifying codefendant and another accomplice would have corroborated an accomplice who testified against Andrade. Other allegations of prosecutorial misconduct include commenting on Andrade’s courtroom demeanor, vouching for a testifying accomplice’s credibility, diluting the reasonable doubt standard, and improperly urging the jury not to deadlock. Finally, Andrade contends the trial court’s gang special circumstance instruction did not alert the jury an aider and abettor must harbor an intent to kill the victim. As we explain, none of Andrade’s contentions require reversal, and we therefore affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
In August 2004, 16-year-old Barrera and his neighbor, Felipe Oliva, drove into territory claimed by the Middleside criminal street gang in Santa Ana. The pair, both members of one of Middleside’s rival gangs, Santa Nita, parked in a driveway to wait for a girl who had agreed to accompany them to a party. Oliva, who had used methamphetamine earlier in the evening, knew the girl, nicknamed “Chata, ” from his drug connection. Oliva had spoken earlier in the day at a liquor store with Chata and her boyfriend, 34-year-old Jose Cortez. Oliva arranged to pick up Chata later for the party, but Cortez, a Middleside “veterano, ” warned Oliva to stay away from the neighborhood because Middleside “youngsters” could do “something.” Cortez testified he knew the young Middleside gang members held a meeting that day, but he did not disclose the nature of the meeting. Oliva ignored Cortez’s warning.
When Oliva and Barrera pulled into the driveway looking for Chata, Barrera stepped out of the car, but Oliva remained in the driver’s seat. Eight or nine young men, including Andrade, soon approached from the backyard of a nearby residence. One of the men “hit up” Barrera by asking, “‘Where are you from?’” Barrera responded by making hand signs in the form of an “S” and an “N” to denote he was a Santa Nita member. Oliva exited the car and warned Barrera to return to the vehicle, but four or five Middleside members drew guns. Andrade shoved the barrel of a gun in Oliva’s mouth, but Oliva pulled it out stating he did not want trouble. He deflected Andrade’s “Where are you from” challenge by explaining he and Barrera were just there to pick up someone. Handing Andrade the car keys, he offered, “‘We are gone. Here are the keys to the car. Take it.’”
As Oliva walked towards Barrera, someone ordered them into the car, but Oliva warned Barrera not to enter the vehicle because he would not “‘come back, ’” but two men forced Barrera into the back seat. A man stepped in front of Oliva, who backpedaled and slapped the man’s hand away. Someone screamed to let Oliva go because they already had Barrera. As Oliva punched the man near him, Andrade backed the car out of the driveway and sped off. Oliva ran to the liquor store. He heard gunshots from the direction Andrade had driven.
In a police interview, Oliva identified Andrade as the driver of the vehicle. He selected Andrade’s photograph in a “gang book” containing photographs depicting Middleside gang members. Oliva also noticed a photograph of Cortez, whose gang moniker was “Droopy, ” and identified him as the man he met with Chata at the liquor store and who was in the group when Andrade accosted him and Barrera.
Facing the same charges as Andrade, Cortez agreed to testify in exchange for a 15-year prison term. He recognized he would be branded as a “snitch” and could be killed in prison by other gang members. Cortez had been a Middleside member for 23 years and knew Andrade since Andrade was a child. Andrade claimed he was a “president” within Middleside, which Cortez derided as fantasy. Cortez admitted to police he disliked Andrade, who had threatened to kill Cortez’s brother-in-law. Cortez used heroin earlier in the day before Barrera was murdered. During the confrontation in the driveway, Oliva had called out, “‘Hey, Droopy. Tell your homeboys to kick back.’” Cortez approached him to urge him to be quiet. Andrade carried a.357-caliber gun with a long barrel that he pointed at Oliva’s face. Cortez and another Middleside gang member began shoving Oliva away from Andrade. They pushed Oliva to the sidewalk, where Oliva was able to flee. Andrade backed Oliva’s car out of the driveway and headed southbound on Newhope Street. About 10 seconds later, Cortez heard gunshots.
At a party in a hotel room later that evening, Andrade entered a bathroom where Cortez, Chata, and another man were using heroin. Andrade boasted, “‘You should have seen the look on that Chuntaro’s face when I blasted him.’” “Chuntaro” is a term of disrespect Middleside gang members used for Santa Nita and other rival gang members. Cortez learned later that Barrera’s body had been set on fire. According to Cortez, the “whole city” was upset with Middleside, and this violation of gang conduct codes resulted in a “green light” placed on Middleside for retaliation.
An autopsy showed Barrera had been shot twice. His body had been burned beyond recognition, but the forensic pathologist could trace the internal paths of a.357-caliber bullet and a.22-caliber bullet. The former did most of the damage and caused Barrera’s death. Barrera was still alive when he was shot.
Testifying for the defense, a forensic psychiatrist explained Oliva’s methamphetamine use could affect both his perception and the ability to recount events accurately. Another defense expert, a psychologist, testified six factors could affect the reliability of Oliva’s identification: poor lighting, minimal exposure time, distraction, weapon focus, and a biased police identification procedure using the gang book of photographs, which would also distort Oliva’s in-court identification. The prosecution’s gang expert testified that given the stakes involved in being labeled a “snitch, ” it was rare a gang member would falsely accuse a fellow gang member of a crime.
Following the jury’s verdict, the trial court sentenced Andrade to life in prison without parole for the first degree murder count with the gang special circumstance and stayed sentencing on the street terrorism charge under section 654. Andrade now appeals.
II
DISCUSSION
A. Evidentiary Issues
1. Implied Vouching for Identification Procedure
Andrade argues the trial court erroneously permitted the prosecution’s gang expert to suggest “that the courts vouched for the reliability of gang-book identifications.” In a police interview after the murder, Oliva identified Andrade as the Middleside gang member who drove away with Barrera held captive. Oliva made the identification from a two-volume “gang book” that consisted of color photographs depicting known Middleside members. Investigators showed Oliva the gang book instead of a six-pack photo array or a live lineup containing Andrade because they had not yet identified Andrade as a primary suspect. Oliva had told them that Barrera’s abductors were Middleside gang members, but he did not know which ones. Consequently, Officer David Rondou, with the City of Santa Ana, allowed Oliva to review the Middleside volumes, and Oliva identified one of the Middleside members who shoved him and he identified Andrade as the person who put a gun in Oliva’s mouth and who drove the vehicle away with Barrera inside.
Andrade presented expert testimony attacking Oliva’s gang-book identification, and the defense also argued the gang-book identification tainted Oliva’s in-court testimony identifying Andrade. Specifically, the defense expert testified Oliva’s identification using the gang book violated standard police identification procedures. In particular, she stated: “[T]here are very specific procedures that should be followed to make an identification fair and unbiased.... [¶]... [¶] Basically, the [Attorney General’s] guidelines say that an eyewitness should be shown either a photographic lineup or a live lineup in which a suspect is featured along with five other people who match the description given of the suspect. [¶]... [¶] The suspect should be there with five other people who all match the general description that was given of that particular perpetrator.... [¶]... [¶] So that’s the procedure that should be followed if you are going to use an unbiased identification procedure. It’s very clear in the police officer’s source book.”
In rebuttal, the prosecutor recalled Rondou and questioned him as follows: “[Q:] And have you used gang books before? [¶] [A:] Yes. [¶] [Q:] Have you ever had one thrown legally out of court because it’s improper? [¶] [A:] No. [¶] [Defense:] Objection, improper question. [¶] [The court:] Sustained. [¶] [Q:] Have you ever had an identification subsequent where a gang book is used? [¶] [A:] Yes. [¶] [Q:] And then you go to court and you use it? [¶] [A:] Yes. [¶] [Defense:] Objection, relevance. What happened in some other — implies some sort of a legal conclusion or something. [¶] [The court:] There’s a general topic whether a gang book was used. Answer is in. Overruled. [¶] [Q:] Have you ever done investigations where you use a gang book, identification is made, and then you don’t go to court because of the fact that you used — [¶] [Defense:] Objection, relevance. [¶] [Q:] — Because of the fact you used a book? [¶] [The court:] Sustained. [Unreported sidebar colloquy.] [¶] [Q:] Fair to say sometimes you do... a six-pack photo lineup and sometimes you use a gang book? [¶] [A:] That’s fair. [¶] [Q:] And is using the gang book against any policy? [¶] [A:] No.”
Andrade complains the trial court’s failure to sustain counsel’s relevance objection and thereby end this colloquy constituted error because admission of the exchange amounted to vouching by “the court or the legal system” for the gang-book identification procedure. We are not persuaded.
Our review is deferential. A trial court’s decision to admit or exclude evidence is committed to its sound discretion and will not be disturbed on appeal unless the appellant demonstrates the trial court acted in an arbitrary, capricious, or patently absurd manner resulting in a miscarriage of justice. (People v. Geier (2007) 41 Cal.4th 555, 585.)
Andrade fails to show the trial court abused its discretion. The prosecutor was entitled generally to rebut the defense expert’s testimony the gang-book identification procedure violated police policy. Rondou testified it did not. Rondou did not testify courts vouched for or endorsed the reliability or accuracy of an identification using a gang book. He testified he previously “used” a witness’s gang-book identification, but offered no testimony on whether other courts found the procedure reliable, even if the jury accepted Rondou’s implied assertion the identification in those other cases was admitted into evidence. Andrade fails to show the admission of Rondou’s statement constituted an arbitrary or capricious ruling.
2. Admission of Hearsay Supporting Rondou’s Expert Opinion
Andrade contends the trial court erred by not striking hearsay statements Rondou included in explaining his opinion a kidnapping and murder like Barrera’s would promote, further, and assist the perpetrators’ gang. Specifically, Rondou stated: “Like I talked about, in the gang world, fear is equated to violence. The more violent the gang member is, the more violent the gang is, the more fear they instill in everybody else that makes people, other gangs in the gang subculture not want to get in their way. [¶] The reputation of a gang that’s willing to not only shoot somebody, but light them on fire afterwards, that’s something that’s going to take their reputation to the ceiling. [¶] I’ve talked to a number of people following this case. That’s exactly what the result was.” (Italics added.) The prosecutor clarified, “That Mr. Andrade has gained respect within his own gang by doing this crime?” And Rondou answered, “Both inside and outside his gang.” The trial court overruled Andrade’s objection based on unreliable hearsay and lack of foundation.
Andrade insists that by failing to sustain the objection and strike the testimony the trial court admitted hearsay “in [the] guise of gang expert testimony.” (Bold omitted.) Andrade acknowledges “‘[a]n expert may rely on hearsay to form an opinion, ’” but relies on the principle that “‘the expert should not bring before the trier of fact incompetent hearsay evidence under the guise of reasons for his opinion.’” (Quoting North American Capacity Ins. Co. v. Claremont Liability Ins. Co. (2009) 177 Cal.App.4th 272, 294.) Stated differently: “While an expert may state on direct examination the matters on which he relied in forming his opinion, he may not testify as to the details of such matters if they are otherwise inadmissible.” (People v. Coleman (1985) 38 Cal.3d 69, 92, italics added, citations and internal quotation marks omitted.)
Andrade’s challenge fails because the hearsay basis for an expert’s opinion explaining gang incentives to lay jurors is admissible. The expert may properly disclose the opinion is based on conversations with the defendant’s fellow gang members, among other sources. (People v. Gardeley (1996) 14 Cal.4th 605, 620.) Rejecting the same reliability objection Andrade raised below, the Supreme Court explained in another case, “A gang expert’s overall opinion is typically based on information drawn from many sources and on years of experience, which in sum may be reliable. [Citation.]” (People v. Gonzalez (2006) 38 Cal.4th 932, 949.)
Andrade also asserts a confrontation challenge on appeal, based on Crawford v. Washington (2004) 541 U.S. 36 (Crawford), but he forfeited the issue by raising only a hearsay objection below. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1028, fn. 19.) In particular, he failed to establish as a basis for his confrontation claim that the declarants’ hearsay statements were testimonial in nature. In any event, the challenge fails on the merits: “Hearsay in support of expert opinion is simply not the sort of testimonial hearsay the use of which Crawford condemned. [Citation.]” (People v. Ramirez (2007) 153 Cal.App.4th 1422, 1427; accord, People v. Thomas (2005) 130 Cal.App.4th 1202, 1210.) In sum, the trial court properly overruled Andrade’s motion to strike.
3. Implied Hearsay and Misuse of the Prosecutor’s Opening Statement
Andrade argues the trial court erred in overruling a hearsay objection during the prosecutor’s direct examination of Cortez, and Andrade contends the prosecutor in the same colloquy implicitly misused his opening statement. The claimed error arose as follows: the prosecutor asked Cortez if Andrade admitted ordering his gang cohorts to set Barrera on fire. Cortez did not disclose Andrade’s response, but instead mentioned he (Cortez) spoke with fellow gang member Teofilo Penaloza sometime after the murder. Defense counsel raised a hearsay objection, which the trial court sustained. The prosecutor then admonished Cortez to just answer “yes or no” about whether Penaloza “g[a]ve you some information.” When Cortez answered, “Yes, ” the prosecutor stated, “Don’t tell us what that information is. After you get that information, do you have any more questions about how that fire got started?” Defense counsel objected on hearsay and relevance grounds, which the trial court overruled, but limited Cortez’s response to “yes or no” about whether “he had any further questions....” Cortez answered, “No.”
Andrade complains this colloquy suggested the “information” Penaloza gave Cortez was that Andrade ordered Barrera’s torching. Andrade argues Cortez’s answer tacitly conveyed Penaloza’s presumed remarks to Cortez as implied hearsay. Furthermore, Andrade contends the exchange allowed the jury to consider as hearsay evidence statements the prosecutor attributed to Penaloza in his opening statement. Specifically, in his opening statement the prosecutor told the jury Penaloza would recount how Andrade asked him “to go get a gas can and light the victim on fire” and that “[h]e did as he was told.” Ultimately, the prosecutor decided not to offer Penaloza a plea deal to testify, but Andrade argues the prosecutor’s colloquy with Cortez must have prompted the jury to recall the prosecutor’s opening statement and, in effect, transformed Penaloza’s promised testimony into hearsay the jury considered.
We first address Cortez’s answer stating he had no questions about “how that fire got started” after he spoke to Penaloza. An express answer by a testifying witness may convey hearsay by implication. (People v. Allen (1976) 65 Cal.App.3d 426, 433 (Allen).) The transparent implication here is that Penaloza informed Cortez how the fire started, resolving any questions Cortez may have had on the issue. The Attorney General justifies admission of this evidence on grounds that how the fire ignited was relevant to show Barrera’s abduction, slaying, and burning were committed for the benefit of the Middleside gang, or in association with Middleside gang members. But the prosecutor’s exchange with Cortez did not reveal who lit Barrera’s body on fire, only that Penaloza knew the identity of the culprit. The mere fact Penaloza knew who started the fire was irrelevant to any issue before the jury, and disclosure of what Penaloza said about the person or person’s identity would be hearsay. Consequently, the trial court therefore should have sustained Andrade’s relevance and hearsay objections.
But no prejudice resulted from this misdirected inquiry, in which Cortez did not reveal the substance of what Penaloza told him. To show prejudice, Andrade argues the jury may have recalled the prosecutor earlier had promised Penaloza would testify Andrade ordered him to burn Barrera’s body, thus effectively revealing the unspecified “information” Cortez testified he received from Penaloza. Even without the prosecutor’s opening statement, a reasonable person could probably guess from the prosecutor’s exchange with Cortez that Penaloza implicated Middleside gang members in the burning, if not Andrade specifically. (Allen, supra, 65 Cal.App.3d at pp. 433-434 [test for implied hearsay is whether a reasonable person would reasonably believe the declarant made the implied statement].)
But the trial court’s instructions prevented any misuse of Penaloza’s implied statement and the prosecutor’s opening statement. The trial court instructed the jury, “Only the witnesses’ answers are evidence, ” “Do not assume that something is true just because one of the attorneys asks a question that suggests it is true, ” “Nothing that the attorneys say is evidence, ” and “[D]o not guess what the answer might have been or why I ruled as I did.” (Judicial Council of Cal. Crim. Instns. (2011) CALCRIM No. 104.) Accordingly, the jury was not to speculate what “information” Cortez obtained from Penaloza about how the fire started, and the jury was not to consider the prosecutor’s opening remarks as evidence. We presume the jury heeded these instructions. (People v. Sanchez (1995) 12 Cal.4th 1, 70 [“[W]e presume the jury treated the court’s instructions as statements of law, and the prosecutor’s comments as words spoken by an advocate in an attempt to persuade”].)
Indeed, given these instructions, the prosecutor’s failure to deliver Penaloza as a witness underscored for the jury there was no evidence Andrade ordered the burning of Barrera’s body. Andrade insists the suggestion he gave the order to burn the victim’s body must have turned the jury against him but, again, we presume the jury followed the trial court’s instructions and there is no evidence they did not. To the contrary, the jury demonstrated it could view the evidence objectively and follow the court’s cautionary instructions, as evidenced by their rejection of the personal discharge allegation despite Andrade’s purported admission he shot Barrera. Consequently, neither the trial court’s failure to prevent the brief introduction of implied hearsay, nor anything in the prosecutor’s opening statement requires reversal.
B. Prosecutorial Misconduct During Closing Argument
1. General Principles
As our Supreme Court has observed, “[T]he term prosecutorial ‘misconduct’ is somewhat of a misnomer to the extent that it suggests a prosecutor must act with a culpable state of mind. A more apt description of the transgression is prosecutorial error.” (People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1 (Hill).) “Because we consider the effect of the prosecutor’s action on the defendant, a determination of bad faith or wrongful intent by the prosecutor is not required for a finding of prosecutorial misconduct. [Citation.]” (People v. Crew (2003) 31 Cal.4th 822, 839.)
Under state law, prosecutorial misconduct involves “‘“the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.”’ [Citations.]” (People v. Espinoza (1992) 3 Cal.4th 806, 820.) State law misconduct necessitates reversal where it is reasonably probable the prosecutor’s behavior affected the verdict. (Id. at p. 820-821.) “‘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.]’” (People v. Gionis (1995) 9 Cal.4th 1196, 1214-1215.) Such pervasive misconduct requires reversal unless it is harmless beyond a reasonable doubt. (Hill, supra, 17 Cal.4th at pp. 819, 844.)
“When a claim of misconduct is based on the prosecutor’s comments before the jury, ‘“the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.”’ [Citations.]” (People v. Friend (2009) 47 Cal.4th 1, 29.) We do not mechanically infer the jury drew the most damaging meaning from the prosecutor’s statements. (People v. Frye (1998) 18 Cal.4th 894, 970 (Frye), disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
We observe at the outset that Andrade forfeited review of most of his misconduct allegations because he failed to object and provide the trial court the opportunity to correct any alleged missteps. (Hill, supra, 17 Cal.4th at p. 820.) Nothing in the prosecutor’s actions was so serious or had the “electric effect” required to conclude a curative admonition would have been futile. (E.g., People v. Brophy (1952) 122 Cal.App.2d 638, 652 (Brophy).) In any event, even assuming counsel had objected or should have objected, none of Andrade’s misconduct challenges require reversal on the merits.
2. Implied Statement that Uncalled Witnesses Would Have Implicated Andrade
Andrade asserts the following portion of the prosecutor’s closing argument constituted misconduct: “And you may wonder why Mr. Cortez got a deal. [¶] And you saw in my opening statement that I was going to call another guy named Joseph Mawson and Teofilo Penaloza, who — Penaloza is a codefendant in the case. I don’t give out deals unless I need to. [¶] And so after my witnesses — after the witnesses that testified in this case were done, I go, this is over. I don’t need these people. I don’t need to give another deal. Because I don’t like giving deals. I think — I just don’t like doing it. Sometimes you have to do it.” (Italics added.)
Andrade argues the prosecutor’s statement injected facts outside the record by “declar[ing] to the jury that two other accomplices would have testified to the same facts if only they, too, had been granted plea bargains.” In other words, the prosecutor “incorporate[ed] by reference the testimony he had promised in the opening statement, ” yet evaded cross-examination of Joseph Mawson and Penaloza. Andrade also contends that by stating he did not “need” these other witnesses, the prosecutor engaged in prohibited vouching by giving the jury his “personal assurance that the case was so strong....” Andrade’s claims fail.
In essence, Andrade repeats the notion the prosecutor transformed his opening statement into evidence, by later referring to Penaloza and Mawson. As noted, we presume the jury followed the trial court’s instructional admonitions that an attorney’s statements do not constitute evidence and to avoid speculation based on the lawyers’ comments. Andrade’s suggestion is thus misplaced that the prosecutor bolstered the testimony of self-interested eyewitnesses, Oliva and Cortez, with two additional, uncross-examined witnesses. To the contrary, the trial court’s instructions in essence informed the jury that the prosecutor could not corroborate Oliva’s and Cortez’s testimony with statements about potential witnesses who did not testify. We presume the jury followed the trial court’s instructions and understood its duty to render a decision only on admitted evidence. (CALCRIM Nos. 200, 222.)
We noted above the prosecutor’s reference to Penaloza in his opening statement. The prosecutor also mentioned Mawson as follows: “You are going to hear from another individual named Joseph Mawson. At first he denies being present. Then he says he doesn’t want his life to be in danger by being a snitch. Eventually, he admits his home boys, including Andrade, were involved. He said Andrade and another Middlesider put Inocente Barrera in the vehicle and shot him a couple of times. The decision was then to light the victim on fire.”
Andrade’s vouching claim also fails. The prosecutor’s statement he did not “need” to call Penaloza or Mawson, or “need to give” either a deal, rested on the assertion the evidence he introduced objectively demonstrated Andrade’s guilt. In arguing the evidence warranted a guilty verdict, the prosecutor did not invoke the prestige or reputation of the prosecutor’s office or his depth of experience, personal prestige, or reputation. (United States v. Young (1985) 470 U.S. 1, 18-19 [prosecutor may not “induce the jury to trust the Government’s judgment rather than its own view of the evidence”]; accord, People v. Bonilla (2007) 41 Cal.4th 313, 337.) A prosecutor’s comments based on the evidence and not on “‘any purported personal knowledge or belief’... cannot be characterized as improper vouching. [Citations.]” (Frye, supra, 18 Cal.4th at p. 971.) Andrade did not object below or on appeal to the prosecutor’s expression of his personal opinion he did not “like giving deals, ” which had nothing to do with an objective determination of guilt. But the issue is forfeited because an admonition would have cured the digression and, in any event, the trial court instructed the jury to decide guilt based on the evidence presented and not attorney statements.
3. Prosecutorial Error
The prosecutor mixed proper and improper argument in the following passage that Andrade excerpts from the prosecutor’s closing argument: “I would suggest to you the evidence shows this guy — and you have had a chance to observe his demeanor in court. You have had a chance to observe. He’s kind of had a little smirk on his face, if you’ve noticed. You have observed his demeanor in court. [¶] He thinks you are going to — he’s going to literally get away with murder. Don’t let it happen. That would be an injustice. [¶] What’s the one thing that appeals to common sense — to all your common sense in this case is that this guy did it. Think of another reasonable explanation. Can you think of one based on this evidence? The answer is no.” (Italics added.)
The prosecutor erred by commenting on Andrade’s demeanor, which rested solely with the jury to evaluate. The prosecutor properly directed the jury to consider Andrade’s demeanor, to use its common sense, and to reach a verdict based on the evidence, which the prosecutor argued showed Andrade’s guilt. If Andrade had testified, the prosecutor properly could have argued from admissible evidence that he was a liar, even using “colorful” terms. (People v. Pinholster (1992) 1 Cal.4th 865, 948; accord, People v. Edelbacher (1989) 47 Cal.3d 983, 1030 [no impropriety casting defendant as a “‘pathological liar, ’ and ‘one of the greatest liars in the history of Fresno County’”].)
But Andrade did not testify and the facts of the case presented by the prosecutor did not include that Andrade’s facial expressions constituted a smirk, which was for the jury to determine. A prosecutor’s comment on a nontestifying defendant’s demeanor is misconduct because it infringes on a defendant’s right not to testify, is relevant only on a witness’s credibility, and invites the jury to infer criminal conduct from the courtroom display of negative character traits. (People v. Boyette (2002) 29 Cal.4th 381, 434-435.) The prosecutor also committed misconduct by describing Andrade’s thoughts. Since no testimony recounted Andrade’s mental processes in the courtroom, the prosecutor’s ploy (“He thinks... he’s going to literally get away with murder”) was argumentative in suggesting facts not in evidence and impossible to prove. (Cf. People v. Stansbury (1993) 4 Cal.4th 1017, 1057, original italics [misconduct to implore jury: “Think what she must have been thinking in her last moments”], reviewed on another ground sub. nom. Stansbury v. California (1994) 511 U.S. 318, 321.) In this vein, the prosecutor committed additional misconduct to the extent he attempted to invoke sympathy for Barrera’s mother as a crime victim. The prosecutor stated: “Inocente Barrera, he doesn’t have a voice here. And you notice his mom wasn’t here. You want that to be your last memory?” (See Stansbury, at p. 1057 [“an appeal for sympathy for the victim is out of place during an objective determination of guilt”].)
The prosecutor also erred in vouching for Cortez’s truthfulness. The prosecutor invited the jury to examine the exhibit containing Cortez’s plea deal and properly explained “he’s going to get his deal if it’s determined he testified truthfully, regardless of the outcome of the case. It’s not you get it if he’s guilty, but if they come back not guilty, no deal.” (Italics added.) But the prosecutor went too far by adding: “He’s going to get his deal because he testified truthfully.” (Italics added.) Cortez’s truthfulness was for the jury to determine, and the prosecutor improperly suggested he or his superiors had settled the matter, stamping Cortez’s testimony with government validation.
Andrade asserts the prosecutor committed misconduct in rebuttal by introducing facts outside the record concerning a bullet casing. Raising inconsistencies to discredit the eyewitnesses, defense counsel had pointed out in closing that Cortez blamed Andrade for the shooting allegedly taking place in the car, but police investigators found a casing outside the vehicle. Counsel suggested the evidence cast doubt on Cortez’s credibility: “How does that fit in with the[] shooting in the car — inside the car?” In rebuttal, the prosecutor responded it was reasonable to infer the fire department may have used high-pressure hoses to extinguish the fire, forcing the casing out of the car. The trial court overruled defense counsel’s objection that the prosecutor assumed facts not in evidence, concluding the argument was a fair inference from efforts to put out the fire. On appeal, Andrade points out the fire may have burned out before the police arrived, and the prosecutor presented no evidence the fire department responded.
Although the trial court erred in failing to sustain Andrade’s objection, any error in speculating about whether the fire department responded or employed high pressure hoses was harmless under any standard. The prosecutor advanced the theory about the location of the casing to support his claim Andrade personally discharged the weapon. The jury, however, dismissed the prosecutor’s argument and rejected the gun use allegation against Andrade. Given this result, it is unlikely the prosecutor’s argument affected the unrelated question of whether Andrade aided and abetted the killing by driving Barrera to his execution. It is not reasonably probable the jury would have acquitted Andrade of aiding and abetting the shooting as the driver of the vehicle absent the prosecutor’s speculative comment about the fire department. The statement simply had nothing to do with Andrade being the driver. Consequently, there is no basis for reversal.
We conclude the other isolated instances of misconduct or potential misconduct (vouching for Cortez’s veracity, invoking victim sympathy and commenting on Andrade’s demeanor) did not constitute a pervasive pattern of cumulative misconduct denying Andrade due process or a fair trial. Each instance was brief, unconnected to other misconduct that might form a pattern, and lacked the potential to cause the jury to disregard the trial court’s instructions. (Brophy, supra, 122 Cal.App.2d at p. 652; compare People v. Carrillo (2004) 119 Cal.App.4th 94, 103, fn. 3 [asking “only one question about... membership in Al Qaeda... would be hard to defend as ‘relatively brief’”].) The trial court twice instructed the jury not to let sympathy influence its decision (CALCRIM Nos. 101, 200), directed the jury to focus on admissible evidence (CALCRIM Nos. 200, 222), cautioned the jury the attorneys’ remarks were not evidence (CALCRIM Nos. 104, 222), and instructed the jurors they alone decided the facts (CALCRIM Nos. 104, 200) and witness credibility (CALCRIM Nos. 226, 315). The jury demonstrated its ability to resist emotional appeals based on Andrade’s demeanor or on behalf of the victim or his mother and to reach its own conclusion regarding Cortez’s truthfulness by rejecting the personal gun use allegation. In sum, the foregoing instances of prosecutorial error or potential error do not require reversal.
4. Other Instances of Alleged Prosecutorial Misconduct
Andrade contends the prosecutor diminished the reasonable doubt standard and lowered the prosecution’s burden of proof by stating the same burden applies in petty theft and murder cases. “It’s the same burden of proof. [¶] So don’t hold me to a different burden of proof than you would on a petty theft case. Don’t make the bar too high just because it’s a serious case. The bar stays the same on a petty theft or a murder.”
The prosecutor did not misstate the law. “‘[I]t is improper for the prosecutor to misstate the law generally... and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements. [Citation.]’ [Citation.]” (Hill, supra, 17 Cal.4th at pp. 829-830.) Unlike in the cases Andrade relies on, the prosecutor’s statements did not reduce reasonable doubt to a mere reasonable or everyday decision. (See, e.g., People v. Nguyen (1995) 40 Cal.App.4th 28, 35-36 [prosecutor improperly suggested reasonable doubt standard applied to daily decisions such as changing lanes or getting married]; People v. Johnson (2004) 119 Cal.App.4th 976, 985 [trial court improperly altered reasonable doubt definition by equating proof beyond a reasonable doubt to everyday decisionmaking].) Serving on a jury in a petty theft or murder case is not an everyday obligation for jurors. The prosecutor acknowledged a murder case is more serious, but did not misstate the law that the reasonable doubt standard applies to both types of cases. There was no error.
Nor did the prosecutor err in encouraging the jury to reach a verdict. Near the end of closing argument, the prosecutor commented: “But I will say one thing. You saw how much time we took, remember, down in Department 1. I think we called up 100 potential jurors. There’s no better 12 people to decide this case than you. So reach a verdict. Okay? Reach a verdict. The evidence is there. It’s there. It’s beyond a reasonable doubt, and it’s there. [¶] So I encourage you to reach a verdict in this case.”
The prosecutor did not suggest “anyone not voting for conviction would be nullifying a great deal of hard work and rendering vain the personal sacrifice of all.” (People v. Pitts (1990) 223 Cal.App.3d 606, 696.) Rather, the prosecutor properly encouraged the jury to reach a verdict based on the evidence, but did not suggest failure to reach a verdict would result in an expensive retrial. (People v. Santiago (2009) 178 Cal.App.4th 1471, 1476.) The prosecutor’s statement essentially anticipated the trial court’s instruction to “try to agree on a verdict if you can” (CALCRIM No. 3550), which does not improperly coerce jurors to abdicate their independent judgment in favor of compromise or expediency. (Santiago, at p. 1476.) Indeed, in encouraging a verdict, the prosecutor implicitly acknowledged the jury was not required to reach one. The prosecutor made no mention of a retrial, nor did he discount dismissal as an option if a hung jury resulted in a mistrial. (Id. at p. 1475.) There was no error.
C. Special Circumstance Instruction
Andrade asserts the trial court erroneously instructed the jury an aider and abettor need not have intended the victim’s death for a gang special circumstance to apply. Section 190.2, subdivision (a)(22), defines a murder committed by an active street gang participant to further the gang’s activities as a special circumstance rendering the defendant eligible for the death penalty or life in prison without the possibility of parole. Andrade acknowledges the gang special circumstance applies to an aider and abettor, so long as he harbors the intent to kill. (People v. Ybarra (2008) 166 Cal.App.4th 1069, 1085-1086 (Ybarra).) The trial court modified CALCRIM No. 736 to make it clear the gang special circumstance applies to an aider and abettor.
The trial court instructed the jury as follows, with the relevant modification in italics: “The defendant is charged with a special circumstance of committing murder while an active participant in a criminal street gang.... [¶] To prove that this special circumstance is true, the People must prove that: [¶] 1. The defendant intentionally killed or aided and abetted the killing of... Barrera [¶] 2. At the time of the killing, the defendant was an active participant in a criminal street gang; [¶] AND [¶] 3. The murder was carried out to further the activities of the criminal street gang. [¶] Active participation means involvement with a criminal street gang in a way that is more than passive or in name only. [¶] The People do not have to prove that the defendant devoted all or a substantial part of his time or efforts to the gang, or that he was an actual member of the gang. [¶] The parties have stipulated that Middleside gang is a criminal street gang.” (Brackets and parentheses omitted.)
Andrade argues the modification did not go far enough; specifically, the trial court failed to inform the jury in this instruction that an aider and abettor must intend the victim’s death for the special circumstance to apply. The statute governing special circumstances provides explicitly that a principal who is “not the actual killer” must intend the victim’s death. (§ 190.2, subd. (c).) Exceptions exist for certain murders committed with reckless indifference (§ 190.2, subd. (d)), but not for aiders and abettors subject to the gang slaying special circumstance. (Ibid.; § 190.2, subd. (a)(22); Ybarra, supra, 166 Cal.App.4th at pp. 1085-1086.) Accordingly, we must determine whether the instructions informed the jury of the required element of intent to kill. It is axiomatic that we presume the jury understood and applied the instructions as a whole. (People v. Holt (1997) 15 Cal.4th 619, 677; see CALCRIM No. 200, italics added [“Pay careful attention to all of these instructions and consider them together”].)
The special circumstance instruction was not sufficient by itself. It told the jury the special circumstance applied to an active gang participant who “aid[s] and abet[s] the killing” to further the activities of the gang. (CALCRIM No. 736.) The jury had to look elsewhere to determine the meaning of “aided and abetted.” CALCRIM No. 401 instructed the jury that an aider and abettor “specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate” the perpetrator in committing the prohibited conduct. (Italics added.) CALCRIM No. 401 was not sufficient by itself either, without reference to CALCRIM No. 736. CALCRIM No. 401 refers to the prohibited conduct as “the perpetrator’s commission of that crime, ” but leaves “that crime” undefined. Consequently, reading CALCRIM No. 401 in isolation as Andrade suggests could result in the conclusion he aided and abetted only an underlying crime for felony murder such as kidnapping, but did not intend to aid and abet killing the victim.
But the trial court directed the jury to consider the instructions together, rather than in isolation. As noted, the special circumstance instruction specified it applied to aiding and abetting Barrera’s killing; thus, the jury could not infer it applied if Andrade merely aided and abetted his kidnapping without intending to aid and abet his killing. Taken as a whole, the instructions adequately informed the jury the special circumstance required an intent to kill for aider and abettor liability. This is how the parties argued the issue. Andrade’s counsel informed the jury “it would have to be demonstrated [Andrade] had an intent to kill....” We presume jurors accepted the intent to kill requirement because the parties argued the case based on this premise. We also presume jurors are not only intelligent, but specifically “capable of understanding and correlating jury instructions” (People v. Martin (1983) 150 Cal.App.3d 148, 158) and that they do so. If Andrade desired further clarifying or amplifying language, his failure to request any particular refinement forfeits the issue. (People v. Guiuan (1998) 18 Cal.4th 558, 570.) Andrade’s instructional attack therefore fails.
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: O’LEARY, ACTING P. J., IKOLA, J.