Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F09236
SIMS, Acting P.J.Defendant Joseph Terrence Barling appeals following his conviction of second degree robbery (Pen. Code, § 211 ), with personal use of a firearm (§ 12022.53, subd. (b)), while released from custody on another offense (§ 12022.1). Defendant contends (1) his assertion of rights under Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] was improperly used against him at trial; (2) an involuntary admission was improperly used at trial; (3) an emergency room doctor was improperly allowed to testify on forensic issues upon which he did not qualify as an expert; and (4) the prosecutor committed misconduct. We shall affirm the judgment.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with the August 17, 2004, robbery (§ 211) of a Rite Aid store, with personal use of a handgun (§ 12022.53, subd. (b)), while released from custody on a different offense (§ 12022.1). The section 12022.1 allegation was bifurcated.
The prosecution’s theory was that defendant robbed the store and then accidentally shot himself while trying to escape. Evidence adduced at trial included the following:
On August 17, 2004, around 2:00 p.m., a man wearing a baseball cap, sunglasses, a Hawaiian shirt, shorts, dark socks, white tennis shoes, and a backpack, robbed a Rite Aid store at gunpoint. The man held a gun in his right hand and told the cashier to give him the money or he would shoot her. The cashier, thinking the gun was a toy, said, “That’s not funny.” The man repeated his demand in a louder, more intense voice. The cashier opened her cash register and gave him all the money (about $300 to $400) and checks. He left the store at a brisk pace. About a minute later, the cashier heard a single gunshot. At trial, the cashier said she did not really look at the man’s features and could not identify defendant as the robber with certainty, but nothing about defendant’s appearance was inconsistent with the robber. At trial, the cashier identified as the robber a man shown on the store’s video surveillance camera entering and leaving the store shortly after 2:00 p.m. The videotape was of poor quality (as conceded by the prosecutor) and does not clearly show the robber’s facial features or the color of his clothes.
A customer testified that, as he entered Rite Aid that day, he saw a man walk out holding a gun. A short time later, the customer heard a gunshot. He identified the same man on the videotape as was identified by the cashier, but the customer could not say whether defendant was the man.
A worker at a nearby store testified he was near an open warehouse door when he heard what sounded like a firecracker, looked up, and saw a man who seemed to jump in the air. The man had a cap, sunglasses and backpack and was holding a gun. When the man ran out of view, the worker followed and saw what appeared to be a maroon Ford Escort leaving the parking lot. The warehouse worker was not asked to and did not identify defendant at trial.
Police investigators found a trail of blood drops outside the Rite Aid store. Police found defendant at a nearby hospital being treated for a gunshot wound to his scrotum and leg. The clothes defendant wore to the hospital (shirt with a flower design, shorts, tennis shoes, dark socks) matched the clothes worn by the robber. Later DNA testing showed defendant’s blood matched the blood at Rite Aid (i.e., the profile from each sample would occur at random in unrelated individuals in one in 150 quadrillion people in the Caucasian population, one in 44 quintillion in the African-American population, and one in 330 quadrillion in the Hispanic population).
A trauma center doctor who examined defendant opined the wounds (two to the scrotum and two to the leg) were from a single gunshot passing through the scrotum and leg, though the doctor said he was not a forensics expert and could not make a conclusion to a medical certainty. The wounds were consistent with an accidental self-inflicted gunshot with the gun in the pants pocket, though the wounds could also be consistent with someone else shooting defendant.
A criminalist testified one gunshot residue particle was found on defendant’s right palm, which was insufficient to say he fired the gun. It could have been deposited there by firing a gun, being near a gun when it was fired, handling a fired gun, or touching some object contaminated with gunshot residue. It is possible to shoot a gun and not have gunshot residue on the hand, because some guns are “clean shooters.” No tests were done to try to determine the distance of the shooter from the wound.
Defendant’s girlfriend, Lauren Rowen, testified under a grant of immunity after pleading guilty to accessory after the fact and being placed on probation. She was 18 years old; defendant was about 32 years old. She said she and defendant (wearing a “Maui” shirt and shorts) went to Rite Aid in a borrowed car (a red Ford), and she waited in the car while he went inside to buy some items. After a few minutes, she heard a loud noise and then saw defendant limping quickly to the car. His leg was bleeding. He told her he was shot and, a few moments later, he “said something about shooting himself.” As he drove to the hospital, he said he was “[f]ucked.” Rowen used her cell phone to call a friend who met her at the hospital. At trial, Rowen said defendant had the cell phone in his hand for part of the drive to the hospital, but she said she did not recall him making a call or her telling the police that he made any calls. At the hospital, he got out of the car, and she parked it around the corner. At trial, she denied that defendant told her to hide the car and said she parked where she did because she knew the car was unregistered and did not want it to get towed. She left the car unlocked with the windows rolled down. She denied seeing defendant throw anything out the window and denied telling the police that he did. At trial, she said she accompanied the police to show them the route she and defendant traveled from Rite Aid to the hospital, and she showed them some bushes on Van Maren Street, where defendant swerved the car. Rowen knew defendant had a gun but denied knowing he had it with him that day. She said she knew nothing about a robbery until the police told her about it.
On cross-examination by the defense, Rowen said she was confused and afraid of the police and the prosecutor. She said she told the police that defendant said he was shot, not that he shot himself. On redirect examination, Rowen said her trial testimony was true, and defendant did say he shot himself. On re-cross-examination, Rowen said the police told her defendant shot himself, and she told them what they wanted to hear. On redirect, Rowen said she told the police that defendant said he shot himself after the police told her that he shot himself, and she did not remember whether defendant said he shot himself.
A deputy sheriff testified he interviewed Rowen on the day of the robbery, and she said defendant had a gun with him that day, and she thought it was in the car.
A police detective testified he spoke with Rowen at the hospital. He asked her what happened, and she said she had no idea defendant was going to rob anything. She was cooperative and accompanied the detective to Rite Aid, where she told him that she realized after the fact that defendant committed the robbery. She said something may have been thrown out the window when the car swerved on Van Maren Street on their way to the hospital. She originally said someone shot defendant but later said she realized defendant shot himself. She said defendant made two cell phone calls as they drove to the hospital. The detective chose not to investigate calls made. Rowen was arrested.
The detective went to see defendant in the hospital on August 18, 2004--the day after the robbery. The detective told defendant he was being placed under arrest for robbery, and his girlfriend had been arrested. The detective advised defendant of his Miranda rights. Defendant said he understood his rights. The detective asked if defendant would be willing to talk about what happened the day before. The detective testified, “His [defendant’s] response was the first thing he said was, that he didn’t know why I had arrested Lauren Rowen and then he told me that she had nothing to do with this.” When asked if defendant said anything else, the detective testified, “He told me that he would talk to me later when he got out of the hospital and when he wasn’t on so much medication and then he turned away from me and said that that was all he had to say for now.” That ended the conversation. Defendant was arrested the following day, August 19, 2004.
The detective said defendant did not ask, “what robbery?”
when told he was under arrest for robbery. The detective testified he told defendant the reason for the arrest (robbery), though his report did not mention this point. “I told him he was being arrested for robbery. I don’t believe I said a robbery of a Rite Aid.”
On cross-examination, the detective acknowledged he later learned defendant had warrants out for his arrest. The trial court sustained the prosecutor’s objections to defense counsel’s questions as to whether the detective was sure defendant was not referring to the warrants when he said Rowen was not involved.
Also on cross-examination, defense counsel elicited that the detective saw an intravenous tube in defendant’s arm at the hospital and knew he underwent surgery the day before and did not ask any doctor about what medications defendant was taking. The detective made his own judgment as to defendant’s ability to communicate.
A search of the car parked near the hospital revealed an empty holster and two blood-stained one-dollar bills. The evidence indicated sunglasses were found in the car, but the investigator testified no sunglasses similar to those shown on the videotape were found. The gun, hat, and stolen cash from the robbery were not recovered. The police searched the area where defendant swerved the car en route to the hospital but found nothing. A few days after the robbery, someone found some of the stolen checks in an empty lot behind a different Rite Aid store and turned them in to Rite Aid.
On cross-examination, the detective acknowledged he never explored the possibility that someone other than defendant committed the robbery. No tests were conducted to determine how far away from defendant the gun was when he was shot.
The jury found defendant guilty of robbery and found true the personal use of a handgun. The trial court found true the bifurcated allegation of release from custody on another offense at the time of this robbery. Upon defendant’s plea of no contest, the trial court found defendant guilty of the other offense -- a January 29, 2004, possession of cocaine (Health & Saf. Code, § 11350, subd. (a)), for which defendant admitted he was armed with a gun (§ 12022, subd. (a)).
The trial court sentenced defendant to a total prison sentence of 15 years -- the midterm of three years for the robbery, plus 10 years for the gun enhancement, plus two years for committing the robbery while released from custody on the drug offense. The trial court imposed a concurrent two-year midterm for the drug offense, plus a concurrent one year for the gun enhancement on the drug offense.
DISCUSSION
I. Defendant’s Statement in Hospital
Defendant contends the trial court allowed improper evidentiary use of (1) a coerced, involuntary admission (his statement in the hospital that his girlfriend had “nothing to do with this”) and (2) his invocation of Miranda rights. We disagree.
A. Background
Defendant moved to suppress his statement to the detective in the hospital on Miranda grounds.
At the hearing on the suppression motion, the detective testified that, the day after the robbery, he heard defendant was going to be released from the hospital that day (though the detective could not say when the release actually occurred). Upon entering the hospital room around 10:40 a.m., the detective saw defendant was hooked up to an intravenous tube. The detective introduced himself, and defendant acknowledged his presence. The detective told defendant he was under arrest for robbery, advised him of his Miranda rights, and asked if he understood his rights. Defendant said he did. The detective said he wanted to talk about the robbery and mentioned that defendant’s girlfriend was also under arrest for the robbery. The detective testified: “He [defendant] told me that he didn’t know why I had arrested his girlfriend Lauren Rowen. He told me that she had nothing to do with this. And then he told me that he didn’t want to talk to me anymore inside the hospital and that he would talk to me later when he wasn’t on so much medication.” The detective acknowledged he did not speak with any medical staff about defendant’s condition. However, nothing about defendant’s speech or demeanor suggested confusion or the influence of drugs. The detective said that defendant watched him as he walked into the room, verbally acknowledged the detective’s introduction, and gave appropriate responses without slurring his speech.
Defense counsel asked that defendant’s statements to the detective “be excluded as violation of Miranda in that they were not voluntary.”
The trial court denied defendant’s motion to exclude the evidence, stating it was not even a close call, and, “A reasonable person given the character of the conversation that occurred between [defendant] and the officer albeit brief would not think that it was an involuntary, an involuntary admission or an involuntary waiver of your rights.”
The trial court later took up the matter of “admissions that [defendant] allegedly made to [the detective]. The full statement [a]s transcribed in the police report is, ‘I don’t know why you arrested Lauren. She had nothing to do with this. I will talk to you when I am out of the hospital and not on so much medication, that’s all I have to say for now.’ [¶] And the issue is whether or not the District Attorney elicits, ‘That’s all I have to say for now, ’ arguably that’s an invocation of his rights under the Fifth Amendment and the jury need not hear it. By the same token, arguably it confirms that from the defense perspective that he was feeling really bad and that might have induced him to say something incorrectly to the officer. [¶] My inclination is simply let the defense decide whether they want that statement or not.” Defense counsel asked to bar the prosecutor from using the statement while reserving defendant’s right to use it. The trial court said no, because that would leave the jury with the impression that the prosecutor was hiding the full statement. Defense counsel conferred with defendant and said that, given the choices, the defense wanted the entire statement to come in.
At trial, the police detective testified that he and another detective went to see defendant in the hospital the day after the robbery, told defendant he and his girlfriend were under arrest for robbery, and advised defendant of his Miranda rights. The detective testified:
“His [defendant’s] response was the first thing he said was, that he didn’t know why I had arrested Lauren Rowen and then he told me that she had nothing to do with this.
“Q. Did he say anything else at that time?
“A. Yes, he did.
“Q. What was that?
“A. He told me that he would talk to me later when he got out of the hospital and when he wasn’t on so much medication and then he turned away from me and said that that was all he had to say for now.”
The cross-examination of the detective shows:
“Q. You were only in the room for a few minutes, right?
“A. That was because [defendant] ended our conversation. I would have been there much longer if he wanted to talk to me.
“Q. For the moments you are in there, you are saying he was coherent and understanding?
“A. Yes.
“Q. Despite his saying to you, I am on too much medication to talk to you anymore?
“A. That’s what he said to me.
“Q. And then, of course, you stopped talking to him?
“A. He said that was all he had to say.”
The prosecutor said in closing argument to the jury:
“He is told, you’re being placed under arrest for robbery. You heard that he had a police officer outside his door this entire time and his statement is [sic ] what robbery, or I don’t know what you are talking about, or I wasn’t part of any robbery, but I don’t know why you arrested my girlfriend; she wasn’t part of this.” The prosecutor also argued to the jury: “[To acquit, y]ou would also have to believe that person when questioned by law enforcement personnel who mentioned the robbery instead of saying, [‘]oh, my goodness, thank God you are here. I have been a victim of a crime[’] would say [‘]I can’t believe you arrested my girlfriend. She doesn’t know anything about this.[’]”
The context and trial testimony make it apparent that the prosecutor was arguing defendant did not ask, “what robbery?”
B. Analysis
1. No Improper Use of Miranda Invocation
Defendant contends his assertion of Miranda rights was improperly used against him at trial. However, defendant mischaracterizes what happened. The prosecutor did not try to use any assertion of Miranda rights as evidence of guilt. Rather, the prosecutor used defendant’s statement immediately preceding his cut-off of conversation with the police detective, as evidence of guilt.
As to invocation itself (“That’s all I have to say for now”), the trial court--noting the invocation was helpful to defendant’s theory that he was under the influence of medication--gave defendant the choice whether to exclude it or not, and defendant chose to admit it into evidence. Defendant’s opening brief does not even acknowledge that it was his choice. Defendant’s reply brief says the trial court left him no viable choice.
It is apparent from defendant’s argument that his real complaint is admission of the statement immediately preceding his invocation of Miranda rights, i.e., his statement that his girlfriend had nothing to do with “this.”
Thus, defendant cites the prosecutor’s rebuttal argument to the jury, that defendant, instead of saying, “what robbery, ” said his girlfriend was not part of it, and that in order to accept the defense position, “You would also have to believe that person when questioned by law enforcement personnel who mentioned the robbery instead of saying, [‘]oh, my goodness, thank God you are here. I have been a victim of a crime[’] would say [‘]I can’t believe you arrested my girlfriend. She doesn’t know anything about this.[’]”
Defendant argues his invocation of Miranda rights was thus used against him at trial. He argues he made one unified statement asserting his right to silence, and using part of that statement against him as an admission violated due process.
Defendant’s argument fails. Even accepting defendant’s characterization of his statement (“That’s all I have to say for now”) as an invocation of Miranda and further assuming the matter is preserved for appeal (points disputed by the People), defendant’s statement that his girlfriend was innocent (which supports an inference that he was not innocent) preceded the Miranda invocation.
The prosecutor did not use defendant’s Miranda invocation as evidence of guilt. The prosecutor used defendant’s statement immediately preceding the invocation (but after the reading of the Miranda rights) as evidence of guilt. That defendant invoked Miranda immediately after the incriminating statement does not immunize the pre-invocation statement from use at trial.
Defendant’s cited case law displays the weakness of his argument. Thus, defendant cites Doyle v. Ohio (1976) 426 U.S. 610 at page 619 [49 L.Ed.2d 91], that “it does not comport with due process to permit the prosecution during trial to call attention to his silence at the time of arrest and to insist that because he did not speak about the facts of the case at that time, as he was told he need not do, an unfavorable inference might be drawn as to [guilt].”
Here, the prosecution did not use defendant’s invocation of his right to remain silent as evidence of guilt, but his immediately preceding statement. We disagree with defendant’s view that he made one inextricably intertwined statement. Though not cited by defendant, we note an example of an inextricably intertwined statement was at issue in People v. Lopez (2005) 129 Cal.App.4th 1508. There, a peace officer testified he asked the defendant (who was on trial for resisting peace officers) why he resisted the officers, and the defendant said, “Fuck you. I want to talk to my lawyer.” (Id. at p. 1525.) The prosecutor argued to the jury that the statement “Fuck you” was an adoptive admission admitting the charge of resisting peace officers. (Id. at p. 1525.) The appellate court concluded the expletive was an invocation of the right to remain silent, inextricably intertwined with the invocation of the right to counsel. (Id. at p. 1526.) The entire response was a refusal to answer the question as well as an invocation of the right to counsel. (Id. at p. 1527.) Here, unlike Lopez, defendant’s statement that his girlfriend was not involved was not an invocation of any constitutional right and was not inextricably intertwined with defendant’s statement that he had nothing more to say at that time.
Thus, we reject defendant’s claim that his invocation of Miranda was improperly used against him.
Moreover, it is not reasonable to think the jury would have viewed the invocation as evidence of guilt, since defendant merely said he did not feel like talking at that moment because he was medicated.
Defendant argues his statement about his girlfriend did not constitute an admission of guilt. To try to blunt the statement’s implication that defendant was involved in the robbery, defendant points out (1) the detective’s report did not specify that he told defendant the reason for the arrest was robbery (though the detective testified he did specify robbery), and the detective acknowledged in his trial testimony that he later learned defendant had outstanding arrest warrants at the time. However, admission of the statement was appropriate, and it was for the jury to decide what weight, if any, to give to it.
2. Statement Was Not Involuntary
Defendant argues his statement was coerced. We disagree.
In reviewing the trial court’s determination of voluntariness, we apply an independent standard of review, doing so in light of the record in its entirety, including all the surrounding circumstances--both the characteristics of the accused and the details of the encounter. (People v. Neal (2003) 31 Cal.4th 63, 80 (Neal).) “We review independently a trial court’s determinations as to whether coercive police activity was present and whether the statement was voluntary. [Citation.] We review the trial court’s findings as to the circumstances surrounding the [statement], including the characteristics of the accused and the details of the interrogation, for substantial evidence. [Citation.] ‘[T]o the extent the facts conflict, we accept the version favorable to the People if supported by substantial evidence.’ [Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1093.)
Here, defendant was an adult, 32 years of age, and there was no evidence of any coercion in the brief encounter with the detectives in the hospital.
Defendant cites case law that the influence of hospital-administered narcotics may overcome a defendant’s free will. However, he cites no evidence that any narcotics overcame his free will. Rather, he hopes to rely on innuendo.
Thus, the detective was the only witness at the suppression hearing. He testified that he was told by another detective that the gunshot wound would destroy one of defendant’s testicles and that defendant had surgery the day before. The detective heard from a patrol officer guarding defendant that defendant was to be released from the hospital that day. Defendant was hooked up to an intravenous tube when the detective spoke to him. Defendant expressly cited medication as the reason he was declining to talk. The detective did not speak with any doctor or nurse.
However, defendant’s recitation of the evidence ignores the detective’s testimony of his observation of defendant’s demeanor. Defendant looked at the detective, acknowledged his presence, gave coherent responses, did not have slurred or thick speech, did not show signs of confusion, and did not show any signs of being under the influence of drugs. That defendant used medication as an excuse not to talk does not mean he was too medicated to talk.
We conclude defendant’s statement was not coerced or involuntary.
Defendant fails to show grounds for reversal based on admission of his hospital statement.
III. Doctor’s Testimony
Defendant complains the emergency room doctor was allowed to testify to improper expert opinion that defendant’s four wounds were inflicted by a single bullet and were consistent with being self-inflicted by a right-handed person with his hand in his pocket. Defendant fails to show grounds for reversal.
A. Background
Dr. Leon Owens, director of Mercy Hospital’s trauma center, testified he has been a practicing physician for 25 years, of which he spent 20 years as a general surgeon and five years primarily as a trauma physician. He examined defendant on August 17, 2004, before sending him into surgery (performed by a different doctor). The doctor noted a wound in each side of the scrotum and each side of the upper left leg. When asked if he had training in gunshot wounds, the doctor said, “I am not a forensic expert. Our experience with gunshot wounds is considerable by the treatment of them. The forensic piece of that is not part of our training.” As to practical experience, however, Dr. Owens testified he had treated hundreds of gunshot wounds. He could sometimes make an “educated guess” as to the path of the gunshot. Over defense objection, Dr. Owens was allowed to testify: “It was my opinion [in defendant’s case] that it was a single gunshot that was both through and through the scrotum and through and through the upper left leg.” He reached that opinion by the anatomic appearance of the wounds as well as the linear relationship.
The trial court allowed evidence of injury to defendant’s testicle over the prosecutor’s objection that it would elicit undue sympathy for defendant.
On cross-examination, Dr. Owens repeatedly acknowledged he is not a forensics expert. He could not say which was the entry wound and which was the exit wound. An exit wound is often larger than an entry wound, but in this case the injuries were indistinguishable. Dr. Owens acknowledged he is not a forensics expert and could not say with any degree of medical certainty that one bullet caused all four wounds. He was speaking from his experience with gunshot wounds.
On redirect examination, Dr. Owens testified: “The bullet appeared to take a path from high on the right side of the scrotum to low on the left side of the scrotum to just lower on the inside aspect of the left leg to lower on the outside aspect of the left leg and appeared to make a straight line, that’s the reason it’s my opinion that it’s from a solitary gunshot wound.” He also testified it would be consistent with a right-handed person having a gun go off inside their pants--a scenario the doctor believed he heard mentioned in the “recess room.”
On re-cross-examination, the doctor said it could also be consistent with someone else shooting the person. The doctor said defendant did not say he shot himself.
Outside of the presence of the jury, defense counsel stated for the record that he objected in a sidebar discussion that Dr. Owens was not qualified to opine on the trajectory of the bullet or whether defendant’s injuries resulted from one gunshot or two. The trial court stated it overruled the objection because Dr. Owens was a physician who had treated hundreds of gunshot wounds and indicated he could render an opinion. While a forensics expert would have broader expertise, the testimony was well within the scope of this doctor’s expertise.
B. Analysis
Defendant argues Dr. Owens was not qualified to render expert opinions on forensic questions beyond the scope of his medical expertise, and his testimony constituted federal constitutional error. We see no basis for reversal.
“A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.” (Evid. Code, § 720, subd. (a).) Expert opinion is appropriate if it is (1) related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact, and (2) based on matter, including his special knowledge, etc., that is of a type that reasonably may be relied upon by an expert in forming an opinion on the subject. (Evid. Code, § 801.)
An expert is sufficiently qualified if he has sufficient skill or experience in the field so that his testimony would be likely to assist the jury in the search for the truth. (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 38.) The trial court’s determination whether a witness qualifies as an expert is subject to review for abuse of discretion. (People v. Catlin (2001) 26 Cal.4th 81, 131.)
Defendant argues the field of ballistics, which includes bullet trajectory and whether wounds are self-inflicted, is a specialty requiring formal training rather than mere experience over a long period of time. However, defendant merely cites cases where forensics experts testified about such matters. None of the cited cases discusses or holds that a ballistics expert was necessary under the circumstances of this case, where the doctor testified he based his opinion of a single gunshot on the anatomic appearance of the wounds as well as their linear relationship.
Defendant cites other inapposite cases, such as People v. Hogan (1982) 31 Cal.3d 815, which, after concluding the judgment must be reversed on other grounds, indicated that a criminalist should not have been allowed to give expert opinion that blood stains were deposited by flying drops rather than surface-to-surface contact, where he had no training on the subject but had merely read a book and seen an exhibit of blood patterns years earlier and had observed bloodstains at many crime scenes but without verifying his belief as to their source. (Id. at pp. 851-853 [lead opinion] & p. 859, fn. 5 [conc. opn. of Kaus, J.].) Defendant also cites Miller v. Los Angeles County Flood Control Dist. (1973) 8 Cal.3d 689 at page 701, which held the trial court did not abuse its discretion in concluding that a mechanical engineer with training in hydrology and flooding was not qualified to give an expert opinion on construction of homes to withstand floods, where he had merely observed construction of several hundred homes in hillside areas but had no close involvement and was unfamiliar with building practices. (Id. at p. 701.)
Here, in contrast, the governing rule is that an expert medical witness is qualified to give an opinion of the cause of a particular injury on the basis of the expert’s deduction from the appearance of the injury itself. (People v. Mendibles (1988) 199 Cal.App.3d 1277, 1293-1294.) The lack of scientific certainty does not deprive the opinion of evidentiary value. (Ibid.)
Here, the trial court did not abuse its discretion. In addition to 20 years as a general surgeon, Dr. Owens had five years experience as a trauma surgeon, was director of the hospital’s trauma center, had treated hundreds of gunshot wounds in his work, and formed an opinion based on his training and experience and the anatomic appearance of the wounds as well as the linear relationship. There was no abuse of discretion in admitting his testimony.
Defendant’s claim of federal constitutional error is without merit. Even assuming the issue is preserved despite failure to raise it below, and even assuming error, violations of state evidentiary rules generally do not rise to the level of federal constitutional error (People v. Samuels (2005) 36 Cal.4th 96, 114)--contrary to defendant’s claim which is unsupported by his cited authorities.
Even assuming for the sake of argument that the evidence should have been excluded, and further assuming applicability of the beyond-a-reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705], any error in this case was harmless. Dr. Owens conceded the wounds could also be consistent with someone else shooting defendant. Moreover, the evidence of defendant’s guilt was strong, including the evidence that his blood was at the scene of the robbery where a gunshot was heard, he was wearing the same distinctive clothing worn by the armed robber, and Rowen testified defendant had a gun and said he shot himself. Though vigorous cross-examination resulted in Rowen’s retreat to a position of saying she did not remember what defendant said, her final assertion of failed recollection does not render insubstantial her testimony: “Q. When the defendant came back [to the car], he told you that he had shot himself? [¶] A. Yes.” Any error was harmless.
We reject defendant’s argument that the jury considered this a close case because they deliberately approximately eight hours over two days and requested read-back of testimony and re-viewing of the Rite Aid videotape.
Defendant fails to show reversible evidentiary error.
IV. Claim of Prosecutorial Misconduct
Defendant divides his claim of prosecutorial misconduct into two headings, one of which claims the prosecutor “misinstructed” the jury. We reject defendant’s mischaracterization of this matter as a claim of instructional error. (People v. Mayfield (1993) 5 Cal.4th 142, 179 [we presume the jurors treat the court’s instructions as a statement of the law and the prosecutor’s comments as argument].) Defendant fails to show reversible prosecutorial error or misconduct.
Defendant did not object to any of the prosecutor’s comments. To the extent that any of the comments were objectionable, we shall see they could easily have been cured by an admonition from the judge. Accordingly, defendant has forfeited his claims of prosecutorial misconduct. (People v. Huggins (2006) 38 Cal.4th 175, 205.) Nor has defendant shown grounds to reverse on his alternate theory of ineffective assistance of counsel. (Id. at pp. 205-206.)
A. Prosecutor’s Comments about Instructions
Defendant contends the prosecutor during rebuttal argument misled the jurors on the law by telling the jurors (1) the prosecution did not have the burden of proof beyond a reasonable doubt, (2) the jurors could not acquit unless they rejected all the prosecution’s evidence, and (3) the presumption of innocence was eliminated before deliberations began. Defendant claims the court’s instructions, delivered after the prosecutor’s rebuttal argument, did not contradict the prosecutor and therefore did not remedy the situation. We shall conclude defendant fails to show grounds for reversal.
The jury was instructed that the presumption of innocence “requires that the People prove each element of a crime and special allegation beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.”
1. Reasonable Doubt
In rebuttal argument, the prosecutor said: “[T]here are . . . several different aspects of the law in which you are mislead [sic] [by defense counsel’s closing argument]. It was argued to you on several occasions that it was my burden to prove to you beyond a reasonable doubt, all reasonable doubt that the defendant committed this offense. That is not the law. You will receive both orally from the judge as well as in writing under section 220 [(Judicial Council of California Criminal Jury Instructions (2006–2007) CALCRIM No. 220)]. It tells you what reasonable doubt is. It tells you what reasonable doubt is not.” (Italics added.)
Since the last two sentences make clear the prosecutor was taking issue not with the allocation of the burden but with defense counsel’s definition of reasonable doubt, it appears the prosecutor misspoke--intending to say, “all possible doubt” rather than, “all reasonable doubt.”
Another possibility is that the court reporter misheard. We observe the transcript at times reports garbled language, e.g. it reports the prosecutor said, “in argument what was said to you [sic] a couple of different things. One, is that the law [sic] you must find that it is impossible to think his exact quote [sic] that the version as purported by defense counsel with no proof is an alternative explanation so . . . .” We will nevertheless assume the transcript is accurate.
The prosecutor’s comment--the thrust of which was that the defense misstated reasonable doubt--was a fair response to defense counsel’s argument to the jury, which included the following:
a. “Proof beyond a reasonable doubt, folks, they [the prosecution] need to prove how this evidence [the gun, backpack, stolen cash] disappeared.”
b. “Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. [¶] The evidence need not eliminate all possible doubt as you say, because everything in life is open to some imaginary doubt. [¶] Imaginary doubt. Reasonable doubt an abiding conviction of the truth of the charge, a conviction a heart felt [sic] strong belief. Abiding is long-lasting. What that means a year [sic], a month, five years, ten years from now, you need to look back at this and say I knew he did it and they proved it beyond all doubt in my mind. Not just today, but forever.”
Clearly, an admonition would have cured any problem, and therefore defendant’s failure to object to the prosecutor’s reference to “reasonable doubt” rather than “possible doubt” forfeits the matter. We reject defendant’s meritless claim that the prosecutor’s arguments were so infested with misconduct that defense counsel would have risked appearing obstructionist in the jurors’ eyes.
Moreover, any misstatement by the prosecutor did not result in a fundamentally unfair trial, and there was no reasonable likelihood the jury applied her comments inappropriately. (People v. Berryman (1993) 6 Cal.4th 1048, 1072 [in the context of the whole argument and instructions, there was no reasonable likelihood the jury construed the prosecutor’s remarks as placing on defendant the burden of establishing a reasonable doubt as to his guilt].) Here, (1) the prosecutor told the jury at the beginning of her closing argument that she had the burden to prove defendant’s guilt beyond a reasonable doubt, and (2) even in the challenged comment the prosecutor told the jury to refer to the instructions from the judge on reasonable doubt. We reject defendant’s argument that prejudice is shown because the jury instructions given by the judge (fn. 4, ante) placed the burden on defendant by telling the jury to compare and consider all the evidence and by failing expressly to instruct that defendant bore no burden (other than the instruction that defendant had the right not to testify and to rely on the state of evidence and People’s failure to prove the charges). Defendant makes no assignment of instructional error. There is no reasonable likelihood defendant was prejudiced by the prosecutor’s comments.
We reject defendant’s claim that the prosecutor misinstructed on the burden of proof, resulting in structural error requiring reversal per se. Structural error is error that deprives the defendant of basic protections (e.g., unbiased judge, impartial jury, assistance of counsel) without which a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence and no criminal punishment may be regarded as fundamentally fair. (People v. Carter (2003) 30 Cal.4th 1166, 1221.) That is not the case here.
Insofar as defendant claims ineffective assistance of counsel, the claim fails. This claim “entails deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of an adverse effect on the outcome.” (People v. Huggins, supra, 38 Cal.4th at pp. 205-206.) Failure to object rarely constitutes constitutionally ineffective legal representation. (Id. at p. 206.) Moreover, if (as here) the record fails to show why counsel failed to object, the claim must be rejected on appeal unless counsel was asked for an explanation and failed to provide one, or unless there could be no satisfactory explanation. (Ibid.) Here, counsel was not asked for an explanation, and this case does not involve a situation where there could be no satisfactory explanation. Counsel may have been satisfied that the prosecutor’s slip of the tongue was innocuous. Defendant fails to show deficient performance or prejudice.
2. Standard of Acquittal
Defendant contends the prosecutor improperly told the jurors that acquittal required wholesale rejection of the prosecution’s evidence and suggested that the defense bore a burden to disprove the prosecution’s evidence.
In response to defense counsel’s argument to the jury that the prosecution had failed to prove defendant robbed the store or shot himself, the prosecutor argued to the jury in rebuttal:
“In order to find as an alternative reasonable explanation in this case the defendant is not guilty, you have to believe the following.
“You have to believe somebody else that day had a gun. You have to believe that somebody else that day went into the Rite Aid. You have to believe that somebody else that day was of the same approximate skin color as the defendant. You have to believe that somebody else on that same day was of the same type of build as the defendant. You have to believe that somebody else on that same day that same time had short dark hair like the defendant. You have to believe that somebody else on that same day all of these things [sic] had on a shirt which is distinctive.
“[¶] . . . [¶]
“In addition, you would have to believe under the defense’s theory, that that person would be wearing basically a[n] identical shirt, that person would be wearing the same type of shorts, that person would also be making the fashion statement of wearing black socks with white tennis shoes [i.e., the clothes of the robber matched the clothes in defendant’s hospital room].
“[¶] . . . [¶]
“Additionally, you have to believe in addition to all these things that someone else committed the robbery. Someone else ran out the front. Someone else shot the defendant who happened to be wearing the exact same clothing at the exact same time going into the thing [sic]. You have to believe that this defendant even though there is a gun holster in the car didn’t bring his gun with him that day. You would have to believe that, in fact, there was then an accident in which there was such a shooting thing without the forensic evidence to support it.
“[¶] . . . [¶]
“In order to find the defense version of events true, you would have to find each of these things and none of those things is reasonable under the facts of this particular case.”
We see nothing wrong with these comments by the prosecutor. They were proper argument that the only reasonable conclusion to be drawn from the circumstantial evidence was that defendant was guilty, consistent with the jury instruction on the subject. A prosecutor is allowed to comment on the weakness in a defendant’s theory of the case, as long as she does not suggest the defendant had the burden of proving innocence. (People v. Frye (1998) 18 Cal.4th 894, 973.) The prosecutor’s comments in this case did not cross the line.
The jury was instructed, “[B]efore you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. [¶] However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.”
Defendant argues the prosecutor was suggesting that the defense bears some burden of disproving the prosecution’s evidence, which improperly shifted the burden of proof. Defendant cites Floyd v. Meachum (2nd Cir. 1990) 907 F.2d 347, which reversed a judgment for prosecutorial misconduct. However, the federal court emphasized the case involved “repeated and escalating prosecutorial misconduct from initial to closing summation” (id. at p.353), which included among other comments (1) that the burden of proof beyond a reasonable doubt was a protection only for innocent people, not for guilty people, and (2) that the defendant’s lies to law enforcement officers proved his guilt. (Id. at pp. 354-355.)
The prosecutor’s comments were not improper.
3. Presumption of Innocence
The prosecutor said in rebuttal argument: “[T]here were arguments made to you on the law on presumption of innocence. What the law says is that a person begins a trial with the presumption of innocence in terms of what determination the jury is going to make, that exists until the point at which the guilt is proven beyond a reasonable doubt. [¶] At this point, all the evidence has been provided to you. At this point, you have that evidence to take away that presumption.”
There is nothing wrong with this comment.
Defendant claims this comment told the jury that the presumption of innocence had been eliminated before deliberations began. We disagree.
We conclude defendant fails to show reversible misconduct in the prosecutor’s arguments to the jury regarding the jury instructions.
B. Other Comments by Prosecutor
1. Claim of Improper Vouching
In her rebuttal argument, the prosecutor said, “Just based on what [defense counsel] argued to you, there [are] about six different areas I want to talk to you. And one of the first ones is going to be that in terms of my comments here, I am not trying to personally attack what [defense counsel] has said to you. [¶] Despite what might have been created [sic], what was said about me as a prosecutor, I can speak for myself as officer of the court. I can speak for myself. There are ethical obligations I am bound to receive both within my occupation and within my individual job, that being said please base your decision on the law. [¶] Please base your decision on the evidence.”
Defendant claims this was improper vouching. We disagree. Improper vouching involves an attempt to bolster a witness by reference to facts outside the record. (Huggins, supra, 38 Cal.4th at pp. 206-207.) Thus, it is misconduct for prosecutors to vouch for the strength of their cases by invoking their personal prestige, reputation, or depth of experience, or the prestige or reputation of their office. (Ibid.)
Here, the prosecutor’s comment was a fair response to defense counsel’s attacks during his closing arguments. Thus, for example, defense counsel in closing argument insinuated defendant’s girlfriend lied on the witness stand because she wanted to avoid the wrath of the prosecutor and therefore said what she thought the prosecutor wanted to hear. Defense counsel said, “She [the girlfriend] was put in jail, forced to testify and was scared to death that this DA was going to charge her with perjury if she doesn’t say what she [the prosecutor] wants.” Defense counsel also argued that the prosecutor misstated the evidence and “distort[ed] the issue” in her opening argument to the jury. Defense counsel also argued, “It is a good thing she [the prosecutor] is not on the jury. She doesn’t know what the standard [of reasonable doubt] is.”
Thus, defense counsel suggested the prosecutor was unethical. The prosecutor’s brief response cannot be viewed as improper vouching, particularly since the prosecutor coupled her response to defense counsel’s personal attacks with an express invocation for the jury to decide the case based on the evidence and the law.
We disagree with defendant’s claim that similar comments were found to be reversible error in People v. Alvarado (2006) 141 Cal.App.4th 1577. The comments in Alvarado were not at all similar. There, the prosecutor said (in response to attacks by defense counsel alleging improper coaching of a prosecution witness): “I have a duty and I have taken an oath as a deputy District Attorney not to prosecute a case if I have any doubt that that crime occurred. [¶] The defendant charged is the person who did it.” (Id. at p. 1583.) The appellate court said the prosecutor thus “impermissibly invited the jury to convict Alvarado based on her opinion that he was guilty and on the prestige of her office . . . . The only reasonable inference from these comments is that (1) the prosecutor would not have charged Alvarado unless he was guilty, (2) the jury should rely on the prosecutor’s opinion and therefore convict him, and (3) the jurors should believe [the witness] for the same reason. This argument constituted misconduct.” (Id. at p. 1585.)
Here, the prosecutor made brief response to an attack and told the jury to decide the case based on the law and the evidence.
There was no misconduct.
2. Claim of Denigration of Defense Counsel
Defendant complains the prosecutor said in rebuttal: “He [defense counsel] is attempting to take you away from the facts of this case and to not have you make a decision in this case based on the facts that you heard during the course of this trial.” This was not misconduct. It was a fair response to defense counsel’s closing argument to the jury, which began with reference to domestic eavesdropping and abridgement of other rights under the Patriot Act and went on to argue that the law enforcement officers assumed defendant was guilty and consequently did not conduct an adequate investigation.
Defendant also complains the prosecutor said: “There is an old story about what an octopus does and talks about [sic]. How an octopus is in water and somebody is about to come and catch the octopus. It lets out strings of black ink and in that way it distracts the person that is coming to get it. [¶] And during this they are able to escape and get away. There is an octopus there. There is a robbery here. What you have here and what you listen to for approximately an hour and a half were attempts to basically put ink to cover the truth so that this defendant can get away.”
Defendant cites a federal case and concurring and dissenting opinions in a California case for the proposition that it is borderline unethical for a prosecutor to argue that defense counsel’s job is to mislead the jury. (People v. Gionis (1995) 9 Cal.4th 1196, 1228 & 1229 [conc. and dissenting opinions of Kennard, J., and Mosk, J.]; United States v. Linn (10th Cir. 1994) 31 F.3d 987, 993 (Linn).) However, the majority opinion in Gionis, which is the only precedential part of the case, found no reversible misconduct in comments by the prosecutor in reference to defense counsel, including that “Lawyers and painters can soon change white to black.” (Gionis, supra, 9 Cal.4th at p. 1216.) In concluding the prosecutor’s remarks did not exceed the bounds of “permissible vigor, ” Gionis cited People v. Bell (1989) 49 Cal.3d 502, which rejected a claim of misconduct where the prosecutor told the jurors it was defense counsel’s job to confuse them and “throw sand in your eyes.” (Gionis, supra, 9 Cal.4th at p. 1217.) Bell found the remarks an appropriate reminder to the jurors that they should not be distracted from the relevant evidence, but Bell also concluded that to the extent the remarks might be understood to suggest defense counsel was dishonest, the argument was improper. (Gionis, supra, 9 Cal.4th at p. 1217.) Nonetheless, Bell rejected the claim of misconduct because any improper meaning could have been easily cured by admonition had defense counsel objected in the trial court. (Gionis, supra, 9 Cal.4th at pp. 1217-1218.)
Here, the prosecutor’s remarks did not exceed the bounds of permissible vigor. Even assuming they could be viewed as improper, defendant’s failure to object forfeits the contention.
As to the federal case cited by defendant, the federal court did not find reversible misconduct but merely said the comments (the substance of which do not appear in the opinion) did not amount to plain error, which was the only review open to the defendant in light of his failure to object in the trial court. (Linn, supra, 31 F.3d at p. 993.)
Defendant fails to show denigration of defense counsel warranting reversal of the judgment.
3. Claim of Misuse of Miranda Invocation
Defendant complains the prosecutor argued: “He [defendant] is told [at the hospital], you’re being placed under arrest for robbery. You heard that he had a police officer outside his door this entire time and his statement is what robbery [sic], or I don’t know what you are talking about, or I wasn’t part of any robbery, but I don’t know why you arrested my girlfriend; she wasn’t part of this.” The prosecutor reiterated in rebuttal: “You would also have to believe [in order to acquit] that person when questioned by law enforcement personnel who mentioned the robbery instead of saying, [‘]oh, my goodness, thank God you are here. I have been a victim of a crime[’] would say [‘]I can’t believe you arrested my girlfriend. She doesn’t know anything about this.[’]”
This clearly should say, “his statement is not ‘what robbery.’”
Defendant argues these comments constituted improper argument that defendant’s invocation of Miranda rights constituted guilty conduct. He cites Doyle v. Ohio, supra, 426 U.S. 610 [49 L.Ed.2d 91], which held a defendant may not be impeached by his silence after receiving Miranda advisements.
Here, however, we have explained the prosecutor made fair use not of defendant’s silence after being read the Miranda rights but of his voluntary statement after the reading of the rights and before he invoked his right to remain silent.
We have reviewed the cumulative effect of defendant’s claims of prosecutorial misconduct and conclude they do not constitute reversible misconduct or ineffective assistance of counsel.
We have reviewed the cumulative effect of all assignments of error asserted by defendant and conclude there is no basis for reversal of the judgment.
DISPOSITION
The judgment is affirmed.
We concur: HULL , J., ROBIE , J.