Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Super. Ct. No. MA036409, Hayden Zacky, Judge.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Jason Tran, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
Ladrill Bogan was convicted of murdering (Pen. Code, § 187) and assaulting and causing the death of Jeremiah McKinney, a child under the age of eight years (§ 273ab). On appeal, Bogan argues that the trial court committed a variety of instructional errors; that several pattern CALCRIM instructions were constitutionally defective; that the prosecutor committed misconduct; that the trial court abused its discretion in failing to conduct evidentiary hearings concerning alleged juror misconduct; and that the cumulative effect of the errors denied him a fair trial. He further contends that section 273ab violates equal protection principles. Finally, he argues that the trial court erred when it denied him presentence custody credits. We affirm.
Unless otherwise indicated, all further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Three-year-old Jeremiah McKenney died from blunt force abdominal trauma on September 20, 2006 while in the care of Bogan, his mother’s boyfriend. Bogan was charged with murder and with an assault on a child causing death. It was further alleged pursuant to the Three Strikes Law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) that Bogan had sustained a prior serious or violent felony conviction and that he had suffered two convictions falling within the scope of section 667.5, subdivision (b).
At trial, evidence was presented that as of the morning of September 20, Jeremiah’s face was unbruised and he was in fine physical condition with the exception of a case of constipation. By approximately 4:00 p.m., Jeremiah was not breathing, had no pulse, and bore fresh bruises on his chest, chin, knees, and under his chin. Emergency medical personnel were unable to revive him.
Jeremiah died of blunt force trauma to his abdomen that caused internal bleeding. He had suffered a massive laceration of the mesentery and posterior abdominal wall where the mesentery was completely torn from his aorta. Approximately 700 cubic centimeters of blood pooled in his abdomen. Jeremiah’s small intestine was torn in half, an injury that would be caused by a blow so deeply penetrating that it forces the anterior abdominal wall all the way back against the spine, severing the intestine. Such an injury could not be inflicted by a child but requires punches or kicks by one with adult strength. Jeremiah’s pancreas was cut in half, and his liver was torn in multiple locations, bruised on the under surface, and had hemorrhaged. The large lacerations of the liver were caused by blunt force trauma. His heart and lungs were bruised on their under surfaces, and one lung had collapsed, although the lung collapse may have been caused by resuscitative attempts. The back of Jeremiah’s head had a bruise of approximately 2.5 inches in diameter that was consistent with falling or being banged against a hard, flat surface.
While hemorrhages to Jeremiah’s abdomen and diaphragm demonstrated that some number of his injuries had occurred shortly before his death, the autopsy revealed that Jeremiah had older injuries as well. A large abdominal hematoma with some signs of healing indicated that Jeremiah had suffered an earlier abdominal injury to the mesentery within a few days prior to the fatal injury. He had a bruise on his jaw that had been present for at least three days.
Bogan spoke to the police on September 21, 2006. He said that he had taken Jeremiah with him to a chiropractic appointment on September 20, leaving home at approximately 10:18 a.m. He then took Jeremiah to a park, where he played on a slide for about 20 minutes. At the park, Jeremiah fell a few times, but Bogan did not observe any injuries to him. From there, Bogan and Jeremiah went to the home of Bogan’s friend Davon Jones and spent about 45 minutes to an hour there. There, Bogan claimed, Jeremiah complained of an upset stomach. Bogan and Jones took Jeremiah to a store, where Jones bought him a brownie and a Sprite. Jeremiah was unable to keep the Sprite down, and he also spit up water that Bogan gave him. Jeremiah appeared extremely tired to Bogan, so Bogan placed him inside the car on the back seat so that he could sleep. Bogan told the police that after he left Jones’s house, he drove back to the motel room where Bogan was living with Jeremiah’s family. When he arrived, Jeremiah’s mother called 911. He performed cardiopulmonary resuscitation (CPR) on Jeremiah.
Bogan also reported to the police that Jeremiah had fallen while trying to get into Bogan’s Yukon. He said that Jeremiah had hit his head on the running board as he tried to climb in, and that he cried afterwards. Bogan reported that Jeremiah had red marks on his face, a bruise on the left side of his jaw, and some scratches on his legs after the fall. Bogan told the police that Jeremiah had not been out of his sight that day from the time they left in the morning until the time they returned home in the afternoon. He denied abusing Jeremiah but said he could not recall whether he hit him that day. Bogan said that Jones had not hurt Jeremiah.
The coroner opined that Jeremiah’s abdominal injuries could not have been caused by a fall from the height of a car seat in a Yukon sport utility vehicle, even if he fell directly against the running board with his abdomen. He testified that blows of the sort Jeremiah had sustained would cause a child abdominal pain and the child would probably be unable to eat or keep food down. The coroner estimated that Jeremiah would have died of his injuries within approximately 45 minutes of their infliction. Jeremiah’s body temperature at the time of his arrival at the emergency room indicated that he had already been dead for a couple of hours.
Bogan testified at trial and gave the following account. He left home with Jeremiah a little after 10:00 a.m. Jeremiah was complaining that his stomach hurt, which was not unusual because he was “always” constipated. He had gone to the bathroom earlier that morning, and Bogan had massaged his stomach with a “slight rub” where Jeremiah said it hurt. When Bogan wiped Jeremiah after he used the toilet, Bogan noticed a little bleeding, which was not unusual for Jeremiah. They left the chiropractor’s office at about 11:15 and went to the park, where Jeremiah played and Bogan practiced golfing. After 20 to 40 minutes, they went to Jones’s home. They all went to the store, then returned to Jones’s home. Jeremiah played in the grass next to the truck. At this time, Jeremiah was still saying that his stomach hurt.
While they were outside, Jeremiah fell while climbing into the Yukon. Bogan did not see the fall, but he heard the sound. When Bogan went to him, Jeremiah was between the car and the curb, and he was not breathing. Bogan said that it was “as though the wind was knocked out of him.” Bogan testified that he immediately gave Jeremiah CPR, although he also testified that Jeremiah was conscious at the time. Bogan testified that Jeremiah seemed to get better and was conscious, breathing, and talking, so Bogan sat and monitored Jeremiah for a while to make sure that nothing else was wrong.
Bogan testified that Jeremiah’s lip was bleeding and that he threw up after the fall; he then indicated that Jeremiah had already thrown up earlier in the day. The first occurrence of vomiting had occurred at the store when they gave him soda. The second instance of vomiting was after the fall and before Bogan performed CPR.
Jeremiah appeared to be okay, so Bogan placed him in the passenger seat and asked Jones for water. After a few sips, Jeremiah threw the water up, and it came through his mouth and nose. Bogan cleaned him up, placed him in the back seat, and concluded that he seemed fine. Jeremiah said he was sleepy and that his stomach hurt. Bogan put him in the car seat, and they returned home. When they got home, Jeremiah’s mother said that he was not breathing and that he was changing colors, and they called 911. He performed CPR while waiting for emergency personnel to arrive. Bogan denied kicking or punching Jeremiah.
Bogan was convicted as charged. The court found true the prior convictions alleged in the information. The court selected the assault charge as the principal count and sentenced Bogan to 25 years to life, doubled pursuant to the Three Strikes Law. The court imposed two one-year enhancements pursuant to section 667.5, subdivision (b). The court imposed sentence on the murder count but stayed it under section 654. The trial court declined to award Bogan any good time/work time credits.
Bogan appeals.
DISCUSSION
I. Lesser Included Offenses
Bogan argues that although he did not request that the trial court instruct the jury on lesser included offenses, the court should have nonetheless instructed the jury on three lesser included offenses of murder: involuntary manslaughter in the commission of a non-inherently dangerous felony, voluntary manslaughter, and involuntary manslaughter in the commission of an unlawful act without due caution or circumspection. Specifically, Bogan contends that the court should have instructed the jury on involuntary manslaughter in the commission of a non-inherently dangerous felony because “a reasonable juror could have determined that Jeremiah was physically abused and beaten to death consistent with a theory of involuntary manslaughter—i.e. unintentionally during the commission of felony child abuse under section 273a, subdivision (a).” Alternatively, he claims that if felony child abuse is considered to be an inherently dangerous felony, then the trial court should have instructed the jury on the lesser included offense of voluntary manslaughter during the commission of an inherently dangerous felony because “there was sufficient evidence Bogan lacked malice in inflicting the injuries suffered by Jeremiah.” Finally, Bogan argues that the court should have instructed the jury on involuntary manslaughter where the homicide occurred “in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection” (§ 192, subd. (b)), because Bogan could have caused Jeremiah’s injuries by too vigorously pushing on his chest and abdomen as he performed CPR.
A trial court must instruct on lesser offenses not when there is merely some possible way that a jury could conclude that the lesser offense was committed, but when there is substantial evidence that the defendant is guilty only of the lesser offense. (People v. Prince (2007) 40 Cal.4th 1179, 1265; People v. Breverman (1998) 19 Cal.4th 142, 162 [“the existence of ‘any evidence, no matter how weak’ will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury”].) The common element of these proposed lesser included offenses is that they all lack malice, for manslaughter is an unlawful homicide without malice. (§ 192.) For the trial court to have had an obligation to give these instructions, therefore, there must have been substantial evidence that Bogan acted without malice; that is, that he manifested no deliberate intention to kill, and that considerable provocation appeared, or that the circumstances surrounding the killing did not demonstrate an abandoned and malignant heart. (§ 188.)
We see no evidence here that would permit a jury to find that Bogan committed manslaughter but not murder. Jeremiah’s catastrophic injuries, described in greater detail above, virtually scream malice. His mesentery and aorta were detached, his small intestine was severed by pressure against his spine, his pancreas and liver were torn, and his heart and lungs were bruised. The evidence was that Jeremiah was attacked with forceful, penetrating, and directed kicks or punches. While there was evidence that injuries like some of those Jeremiah sustained are sometimes caused by cardiopulmonary resuscitation, there was no evidence that all of his extensive injuries could be attributed to or could have been caused by non-malicious activity. Jeremiah’s liver tear, for instance, could not have been caused by CPR, for the autopsy showed that it occurred prior to and contributed to his death. Bogan has not demonstrated that there was any sufficient evidence that Jeremiah’s massive injuries were inflicted without malice so as to warrant manslaughter instructions.
II. Failure to Instruct on the Defense of Accident
Bogan contends that the trial court had a sua sponte duty to instruct the jury on the defense of accident based on Bogan’s testimony that he massaged Jeremiah’s stomach, that Jeremiah fell from the truck, and that he gave Jeremiah CPR.
The trial court did not err in failing to instruct the jury on accident. CALCRIM No. 510 provides that a person is not liable for homicide if the killing was a result of accident or misfortune. The killing is not unlawful if: “1 The defendant was doing a lawful act in a lawful way; [¶] 2 The defendant was acting with usual and ordinary caution; [¶] AND [¶] 3 The defendant was acting without any unlawful intent.” The instruction continues, “A person acts with usual and ordinary caution if he or she acts in a way that a reasonably careful person would act in the same or similar situation.” (CALCRIM No. 510.) CALCRIM No. 3404 provides that a defendant is not guilty of a crime if he or she acted without the intent required for the crime, but instead acted accidentally.
Just as with lesser included offenses, the trial court is not required to instruct on a defense unless that defense is supported by substantial evidence. (People v. Bohana (2000) 84 Cal.App.4th 360, 370.) There was no evidence that Jeremiah’s massive and extreme injuries could have been caused by a fall from the truck, massage, or CPR. Jeremiah’s injuries were caused by “[v]ery powerful, deeply penetrating blows to the upper abdomen of this child which hit so hard that it [the anterior abdominal wall] went all the way back and hit the back bone,” punches or kicks to the abdomen by an adult. Jeremiah’s abdominal injuries could not have been caused by the fall from the Yukon, because a fall, even against the running board of the vehicle, cannot provide the deeply penetrating, directed force to the abdomen of the type that caused Jeremiah’s injuries and death. Bogan described the massage as a “slight rub” and demonstrated how he massaged Jeremiah’s stomach, using what the court described as “his index finger and his middle finger, rubbing in a circular motion on the lower right quadrant of the abdomen.” Clearly this circular rubbing was not a deeply penetrating, directed force such as a punch or a kick. And as described above, although there was some evidence that under certain circumstances injuries like liver damage and a mesentery tear can be inflicted by CPR, Jeremiah suffered many injuries for which there was no evidence that they could be caused by CPR. Because there was not substantial evidence to support the defense of accident, the trial court did not err when it did not so instruct the jury sua sponte.
III. Failure to Instruct with CALCRIM No. 356
Making this argument for the purpose of preserving it for federal review, Bogan argues that the court had a sua sponte duty to instruct the jury with CALCRIM No. 356 concerning statements made without advisements under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). As Bogan acknowledges, this court is bound by the California Supreme Court’s contrary decision in People v. Coffman (2004) 34 Cal.4th 1, 62-63 (concerning CALJIC No. 2.13). (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We therefore reject Bogan’s argument.
VI. Use of CALCRIM Nos. 358, 362
Bogan argues that even if we cannot hold that the court had a sua sponte duty to give CALCRIM No. 356, reversal of his convictions is required because the jury was instructed that it could consider Bogan’s statements as evidence of guilt in violation of the Fifth Amendment to the United States Constitution. Specifically, Bogan complains that the jury was instructed with CALCRIM Nos. 358 and 362. CALCRIM No. 358 advised the jury that if it believed that Bogan made a pre-trial statement, the statement could be considered with all the other evidence in reaching a verdict. CALCRIM No. 362 instructed the jury that it could consider any false statements Bogan made as evidence of guilt. Bogan argues that the effect of these two instructions was to inform the jury that his non-Mirandized admissions could be considered on the issue of guilt or for other purposes beyond impeachment.
“It has long been held that the due process clause of the Fourteenth Amendment to the United States Constitution makes inadmissible any involuntary statement obtained by a law enforcement officer from a criminal suspect by coercion.” (People v. Neal (2003) 31 Cal.4th 63, 79.) To realize this right, and in recognition of the fact that “any statement obtained from a criminal suspect by a law enforcement officer during custodial interrogation is potentially involuntary because such questioning may be coercive,” (ibid.), the United States Supreme Court ruled that prior to custodial interrogation, law enforcement officers must advise individuals that they have the rights to counsel and to remain silent, and that any statement they make may be used as evidence against them. (Miranda, supra,384 U.S. at p. 444.) Moreover, when a defendant invokes the right to counsel, law enforcement officers are constitutionally obligated to refrain from further custodial interrogation until the defendant’s counsel is present or until the defendant initiates a discussion of the subject of the interrogation and waives his or her Miranda rights. (Id. at pp. 473-474; Edwards v. Arizona (1981) 451 U.S. 477, 485 [“it is inconsistent with Miranda and its progeny for the authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel”].)
There is no evidence, however, that Bogan was in custody prior to the giving of the Miranda warnings here. The interview was conducted by advance arrangement: the police called Bogan two days before the interview and asked him to come in. Bogan was not under arrest and explained at trial that he talked to the police “[b]ecause I wanted to cooperate.” He understood that he did not have to speak with the police. Various statements in the transcript of the interview support Bogan’s account. When Bogan concluded that he was going to be arrested and asked if he could “kiss my mama before you all arrest me,” the police first responded, “Sure,” and then asked, “Do we have to arrest you? Is that what we have to do?” Bogan said he did not want to be arrested, and one questioner asked, “Do I have to arrest you?” and “That’s my point, do I have to arrest you?” The other officer commented, “We brought you in here today, you know, you came down voluntarily.” Bogan agreed, “Yeah, I . . . .” and the officer continued, “You’re sitting here voluntarily, okay?”
Soon after this exchange occurred, the police stopped the tape and further discussions occurred. These discussions changed the character of the interview. When taping resumed, Bogan appeared to balk at recording the information he had told the police. Contentious discussions followed, during which time Bogan was focused on speaking with Jeremiah’s mother. The police emphasized the need to record the statement based on “the way the courts work,” and Bogan responded, “We’re not in court right now.” The police responded, “But we are going to be in court.” Bogan said, “I understand that,” and the officer, apparently referring to an untaped exchange, said, “I haven’t told you anything that isn’t true. You asked me right now, am I going to arrest you? I told you point blank, yes, you are.” Bogan responded, “First you said no, I wasn’t being arrested.” The officer responded, “That was earlier today.” Clearly at this point Bogan was not free to leave. At this point a reasonable person in the suspect’s position would have believed that his or her freedom of movement was restrained to a degree normally associated with formal arrest. (People v. Stansbury (1995) 9 Cal.4th 824, 830.)
In light of this change in status, Miranda required that Bogan be advised of his rights before any custodial interrogation occurred. But at this point no interrogation was occurring: The officers were not at this time acting or speaking in a way that they should have known were reasonably likely to elicit an incriminating response from Bogan. (Rhode Island v. Innis (1980) 446 U.S. 291, 301) Instead, Bogan and the police were arguing over whether Bogan was going to make a statement on tape and Bogan’s opinion that he was being attacked by the police officers, an allegation they vehemently denied. Once it appeared that Bogan might proceed to discuss the incident in a substantive way, the police gave him his Miranda advisements.
During the arguments with the police over whether he would make a taped statement, Bogan complained that he felt “tricked” that he was going to be arrested. He said, “This is, this is why I don’t like talking to detectives, why I, I like need a lawyer, ’cause it’s not right.” He soon said, “If I’m going to jail anyway, I want to talk to a lawyer.” The police complained that they were being tricked by Bogan’s refusal to go on tape and they spent some time blaming each other for the situation. At one point they said they would stop the interview due to Bogan’s reference to an attorney. Moments later Bogan said, “Get the tape started, get the tape started.” The police continued to discuss with Bogan whether he would tell them on tape what he said, and one officer asked, “And because you asked for a lawyer a little while ago . . . do you still want to talk to us or you want a lawyer?” Bogan did not state that he wanted a lawyer: he said, “I’m gonna tell the truth regardless. Whether it’s to you or my lawyer, I’m gonna tell the truth, but I’m not gonna . . . like I said, I’m not . . ., not gonna feel attacked. I just want to know what’s going on, what, what I’m gonna be . . . what, what is my, you know, what I’m charged for. I want to talk to Deborah [Jeremiah’s mother]. Deborah’s gonna know this. It’s not gonna be fair that I come back here, be arrested, you know, and never see her again.”
Although police violate a defendant’s constitutional rights by continuing to give Miranda rights and pressing him or her to answer questions once he or she has requested an attorney (Smith v. Illinois (1984) 469 U.S. 91, 98 [“Where nothing about the request for counsel or the circumstances leading up to the request would render it ambiguous, all questioning must cease”]), this was not an unambiguous request for an attorney. Bogan brought up the subject of counsel, but when asked outright to clarify whether he wanted an attorney, he did not request one. We cannot say that the police violated Bogan’s constitutional rights by continuing to interview him in light of this ambiguous reference to wanting counsel that he did not confirm when asked to do so.
Bogan has not demonstrated that he was subjected to custodial interrogation without proper Miranda warnings or that he was subjected to custodial interrogation after unambiguously requesting counsel. Accordingly, Bogan’s entire argument that his statement could be considered only for impeachment and that jury instructions permitting it to be considered for other purposes, premised as it is on his position that his statement was illegally obtained in violation of Miranda, supra, 384 U.S. 436, fails because Bogan has not established a violation of Miranda or its progeny. The trial court did not err in instructing the jury with CALCRIM Nos. 358 and 362.
VII. Alleged Constitutional Deficiencies in CALCRIM No. 362
Bogan argues that CALCRIM No. 362, concerning false statements as evidence of consciousness of guilt, violated due process by permitting the jury to infer Bogan’s guilt from the fact of false statements. CALCRIM No. 362 instructs the jury that if the defendant made a false or misleading statement relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and the jury may consider it in determining his guilt. The instruction also provides that “evidence that the defendant made such a statement cannot prove guilt by itself.” (CALCRIM No. 362.)
Bogan’s position that the instruction impermissibly permits the jury to infer his guilt from a false or misleading statement disregards the portion of the instruction that specifically prohibits the jury from concluding that the fact of a false or misleading statement alone proves a defendant’s guilt. Moreover, this jury instruction and its predecessor instruction, CALJIC No. 2.03, have been upheld against many similar challenges. (People v. Howard (2008) 42 Cal.4th 1000, 1025 [rejecting argument that CALJIC No. 2.03 allowed “the jury to irrationally conclude that false statements may manifest a consciousness of guilt, thereby violating his state and federal constitutional rights to due process”]; People v. Nakahara (2003) 30 Cal.4th 705, 713 [rejecting argument that CALJIC No. 2.03 “improperly allowed the jury to make irrational inferences”]; People v. McGowan (2008) 160 Cal.App.4th 1099, 1103-1104 [minor differences between CALJIC No. 2.03 and CALCRIM No. 362 are insufficient to undermine Supreme Court’s approval of the language of the instructions].) Bogan has not established a violation of due process here.
VIII. CALCRIM No. 220
Bogan argues that CALCRIM No. 220 limited the jury’s determination of reasonable doubt to the evidence received at trial and precluded it from considering the purported lack of other evidence proving that Bogan caused the injuries that killed Jeremiah. Bogan’s claim that the instruction is deficient has been considered and rejected in numerous appellate decisions. (E.g., People v. Garelick (2008) 161 Cal.App.4th 1107, 1117-1119; People v. Campos (2007) 156 Cal.App.4th 1228, 1237-1238; People v. Guerrero (2007) 155 Cal.App.4th 1264, 1267-1269; People v. Flores (2007) 153 Cal.App.4th 1088, 1091-1093; People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1509-1510.) We agree with the analyses and conclusions of those cases. The language in CALCRIM No. 220 of which Bogan complains is not susceptible of interpretation as precluding a jury from considering the lack of evidence in determining whether the prosecution has proved its case beyond a reasonable doubt. Rather, the instructions merely inform the jury the People may not meet their burden of proof based on evidence other than that offered at trial.
Bogan next contends that CALCRIM No. 220 lowered the prosecution’s burden of proof. He argues that by advising the jury to “impartially compare and consider all the evidence,” the instruction undermines the presumption of innocence and replaces it with “a mere civil standard of impartiality.” This argument, too, is a strained construction of the jury instruction that has been rejected by other courts. The instruction reminds the jury that the prosecution is required to prove each element of the charged offenses and that the defendant’s guilt must be proven beyond a reasonable doubt. There is no reasonable likelihood that the jurors interpreted CALCRIM No. 220 as instructing them to weigh the evidence in a manner akin to a preponderance of the evidence standard. (People v. Stone (2008) 160 Cal.App.4th 323, 331-332.)
IX. CALCRIM No. 226
Bogan next argues that CALCRIM No. 226, which advises jurors to “use your common sense and experience” in deciding whether testimony is true and accurate, violates his constitutional rights to due process, a fair trial, and confrontation because it invites jurors to consider matters outside the record and presents a danger that the jury will employ a standard of proof lower than proof beyond a reasonable doubt.
This precise argument has been addressed and rejected by Division Two of this court in People v. Campos, supra, 156 Cal.App.4th 1228. The Campos court wrote, “Campos contends that CALCRIM No. 226 invites the jury to consider matters outside the record in violation of his constitutional rights to due process, a fair trial and confrontation. He argues that the language, ‘use your common sense and experience,’ is subjective and encourages consideration of outside evidence and/or employment of a standard less than proof beyond a reasonable doubt, as ‘common sense’ ‘can be used as a substitute for objective (and substantial) evidence of guilt.’ We disagree. When the instructions here are considered as a whole, it is not reasonably likely that the jury would understand CALCRIM No. 226 to mean what Campos claims. [Citation.] [¶] To tell a juror to use common sense and experience is little more than telling the juror to do what the juror cannot help but do. In approaching any issue, a juror’s background, experience and reasoning must necessarily provide the backdrop for the juror's decision making, whether instructed or not. CALCRIM No. 226 does not tell jurors to consider evidence outside of the record, but merely tells them that the prism through which witnesses’ credibility should be evaluated is common sense and experience . . . . CALCRIM No. 226 does not instruct jurors to use their common sense and experience in finding reasonable doubt, which could potentially conflict with the beyond a reasonable doubt standard, but only in assessing [] witnesses’ credibility.” (Id. at p. 1240.) Moreover, as the Campos court noted, other jury instructions (such as CALCRIM No. 200, 201, 220, 222, 223, 301, and 302, all of which were given here) make it very clear that jurors are limited to the evidence presented at trial. (Ibid.) Bogan has not established any constitutional deficiency in CALCRIM No. 226.
X. Alleged Prosecutorial Misconduct
Bogan contends that the prosecutor committed misconduct three times. “‘The applicable federal and state standards regarding prosecutorial misconduct are well established. “‘A prosecutor’s . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.”’” [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “‘“the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.”‘“ [Citation.]’ [Citation.]” (People v. Hill (1998) 17 Cal.4th 800, 819 (Hill).) We address each alleged instance of misconduct in turn.
A. References to Medical Expert
In closing argument, the prosecutor discussed the evidence that that coroner who performed the autopsy would give, and then said, “But, ladies and gentlemen, I am going to comment now on the defense’s failure to call a witness—actually a couple of witnesses. But at this point, a witness who would be a medical expert who would contradict [coroner] Dr. Ribe’s testimony. [¶] The defense called no such witness. The defense has a right to call these witnesses. If the defense cannot afford to have—to hire an expert to look at things and come in and testify, the court will pay for that expert at no expense to the defense. [¶] The very fact that the defense did not call such an expert means that there couldn’t be found an expert that would come in and contradict Dr. Ribe.” Bogan objected, and the court overruled the objection. The prosecutor continued, “If the defense could find an expert to come in and say, oh, yes, a child could sustain those penetrating direct injuries from just falling out of an S.U.V., the defense would have brought that witness and you would have heard that witness.”
The prosecutor began her rebuttal closing argument by saying, “It’s been over one year since the defendant killed Jeremiah.” And in that one year period of time, the defense has been unable to come up with one expert witness.” The trial court again overruled Bogan’s objection.
Bogan contends that these arguments exceeded the wide argumentative latitude extended to prosecutors in their closing arguments by referring to facts not in evidence and by implicitly suggesting that any qualified expert would have agreed with the coroner’s testimony, thereby placing the prosecutor in the position of testifying as a representative expert on behalf of an undisputed scientific consensus of which there was no evidence. While this is a close question, we do not believe that the prosecutor’s comments constituted misconduct. Prosecutors are permitted to comment on the failure to call logical witnesses and to ask the jury to infer why those witnesses were not presented. (People v. Zambrano (2007) 41 Cal.4th 1082, 1173-1174 (Zambrano), disapproved on other grounds by People v. Doolin (2009) 45 Cal.4th 390.)
In Zambrano, the defendant called as mitigating character witnesses individuals who knew him as an adult, but he did not present the testimony of any family members. (Zambrano, supra, 41 Cal.4that p. 1173.) The prosecutor noted that omission in closing argument, arguing, “‘I ask you, who really knows someone, acquaintances or family, friends, brothers and sisters, the people you grew up with in your youth? [¶] They really know you; and they were not called, [l]adies and [g]entlemen. You did not hear from them. You have to ask yourself what that means and why that was.’” (Ibid.) The California Supreme Court ruled that this was a permissible comment on the failure to call logical witnesses. (Id. at pp. 1173-1174.) Here, the prosecutor openly urged the inference that was left unstated by the prosecutor in Zambrano: While that prosecutor invited the court to draw an inference from the absence of specific witnesses, here the prosecutor specified the inference he wished them to draw—that the absence of a medical expert witness meant that the defense could not find an expert to counter the coroner’s testimony. Although we are concerned that this explicit urging of an inference moves incrementally closer to the impermissible acts of vouching for the testimony of witnesses who did not testify or arguing facts not in evidence, we see no meaningful legal difference between setting up the obvious inference and actually urging it to the jury. In either event, the purpose of commenting on the failure to produce a logical witness is to cause the jury to infer that the testimony was not presented because it would have been negative for the defendant. (See also People v. Hughey (1987) 194 Cal.App.3d 1383, 1395 [no misconduct where prosecutor argued that if events really happened as defendant wanted the jury to believe, “‘[don’t] you think [the victim, defendant’s wife] would have gotten up for this man and said, “Hey, didn’t happen that way.?”’”)].)
This case is not akin to People v. Gaines (1997) 54 Cal.App.4th 821, on which Bogan relies. There, the prosecutor commented on the absence of a Mr. Hicks, who had been present in the courtroom to be a defense witness but departed once the defendant testified. There, the prosecutor said, “This friend of the defendant, this person that presumably would like to help him out, could help the defendant. Where is Mr. Hicks? We know about Mr. Hicks. Mr. Hicks was sitting in this courtroom. Mr. Hicks didn’t testify. That decision was made after the defendant testified, because the defendant slipped and he told some untruths. And Mr. Hicks was going to testify to the contrary. Mr. Hicks would have impeached the defendant, and it was the defense that got Mr. Hicks out of here before he could damage them.” (Id. at p. 824.) The Court of Appeal commented that the prosecutor went far beyond commenting on the failure to bring forth evidence and was “in plain effect presenting a condensed version of what he was telling the jury would have been Mr. Hicks’s testimony.” (Id. at p. 825.) The prosecutor here did not describe to the jury what any specific witness would have stated if he or she had testified, but instead argued to the jurors that they should believe that if the defense could have presented a witness to support its challenge to the medical evidence of how Jeremiah died, surely it would have done so.
B. Question Concerning Drug Use
While examining prosecution witness Jones, the prosecutor asked, “Did you and he ever do drugs together?” Jones responded, “No,” and the prosecutor persisted, “Never?” “No,” answered Jones. At that point, defense counsel objected on the grounds of relevance. The court overruled the objection, ruling that the question related to credibility and bias. Bogan contends that the question constituted prosecutorial misconduct because the prosecutor had no good faith basis for asking the questions.
This case is unlike People v. Wagner (1975) 13 Cal.3d 612, on which Bogan relies, in which the prosecutor asked several highly detailed questions about drug dealing that could not fail to suggest to the jurors that the prosecutor had a source of information supplying information that would support the very specific questions asked about drug weights, quality, and storage. (Id. at p. 619.) The prosecutor’s questions here were simple, open-ended questions that led to no similar inferences.
Whether or not the questions were supported by a good faith basis we cannot know, as the prosecutor was never asked to justify them. What we do know, however, is that the witness twice denied that he and Bogan ever used drugs together, and that the court, concerned about the questions, soon thereafter admonished the jury that counsel’s questions are not evidence. Because we presume that the jury followed the court’s instructions (People v. Alfaro (2007) 41 Cal.4th 1277, 1326) and because the witness’s answer was negative, we find that there was no prejudice resulting from the prosecutor’s questions here. (See, e.g., People v. Turner (2004) 34 Cal.4th 406, 422.)
C. Comments Concerning Defense Counsel
Bogan claims that the prosecutor committed misconduct by arguing, “[T]he defendant said the pancreas had a healing—and then I can’t read my writing—but I think it was a tear. And that nobody is saying this defendant did it. Well, the pancreas did have an injury from about three days prior. And the defendant is not charged with that injury because it is possible somebody else could have done it. Although it is extremely interesting that this defendant caused an injury to the exact area where there was a previous injury. So it’s probably highly likely that this defendant also caused that injury. [¶] The defense is trying to confuse you by mixing apples and oranges. What we are talking about here is catastrophic injury. The defense is trying to mix that with a small injury that goes untreated and then peritonitis develops and somebody dies. That has nothing to do with this case. This child never had the opportunity to develop peritonitis because he died so quickly.”
Bogan claims that the passage above “unfairly attacked proper defense tactics and blatantly asserted that defense counsel’s goal was to confuse the jurors.” Bogan cites no legal authority to support this argument and has therefore waived his contention. (Akins v. State (1998) 61 Cal.App.4th 1, 50.) Moreover, Bogan did not object in the trial court to the comment. To preserve a claim of prosecutorial misconduct for appeal, a defendant must make a timely objection, make known the basis of the objection, and ask the trial court to admonish the jury. (Hill, supra, 17 Cal.4th at p. 820.) Unless the prosecutor’s misconduct could not have been cured by admonition, the defendant must object to the alleged misconduct at trial. The evidence here does not establish that an admonition would have been insufficient to remedy any misconduct. Bogan has therefore waived this argument by failing to object at trial. (People v. Ochoa (1998) 19 Cal.4th 353, 428.) Moreover, we discern no misconduct here because prosecutors may comment on the evidence and argue that the defense is trying to distract the jury or obscure the facts through argument. “It is not misconduct for a prosecutor to argue that the defense is attempting to confuse the jury.” (People v. Kennedy (2005) 36 Cal.4th 595, 626; see also People v. Zambrano, supra, 41 Cal.4th at pp. 1154-1155.)
XI. Failure to Conduct Evidentiary Hearings on Alleged Juror Misconduct
Bogan complains that the court did not adequately investigate two instances of what he terms juror misconduct.
A. Observer Comment
Early in the trial, defense counsel advised the court that while standing in the hallway where at least two jurors were present, he heard an observer of the trial say, “I hope they burn his ass,” while gesturing in the direction of counsel and members of Bogan’s family. The court admonished the observer not to comment on the case in the presence of jurors and told counsel it would admonish the jury as well. The court forgot to do so when the jury returned; instead, the next morning, the court told the jury, “Before we begin, I just want to admonish you as to one thing. If you hear anything occurring outside the courtroom, people talking, making comments, whether or not they are directed to you or somebody else, and you happen to hear it and it concerns this case, will you please advise my bailiff immediately so I can take any action that I find appropriate. [¶] And if, in fact, that has occurred, if you have heard anything discussed about this case, I am ordering you now to disregard that. And the evidence is what happens here in this courtroom.”
Bogan argues that the court “took no action to ascertain whether the remarks had any impact on the jurors who likely heard it. At a minimum, the trial court should have inquired of the jurors whether they heard the comment and whether it would have any influence on their ability to listen to and evaluate the evidence.” But as set forth above, the court instructed the jurors to tell the bailiff immediately of any comments overheard in the hallways pertaining to the case.
Trial courts have discretion to fashion procedures to investigate an allegation of misconduct. (People v. Seaton (2001) 26 Cal.4th 598, 676.) As Bogan notes, courts may choose to hold evidentiary hearings to investigate possible misconduct, but a defendant is not entitled to a hearing as a matter of right. (People v. Hedgecock (1990) 51 Cal.3d 395, 415.) An evidentiary hearing is warranted only when the defense adduces evidence demonstrating a strong possibility that prejudicial misconduct has occurred, and a hearing is unnecessary unless there is a material conflict in the evidence presented by the parties. (People v. Schmeck (2005) 37 Cal.4th 240, 295.) Here, there was no strong possibility of prejudicial misconduct to require a hearing. No juror responded to the trial court’s request that any overheard comment be reported to the bailiff. Moreover, the judge directly admonished the jurors that if any of them had heard any statements about the case, the jurors were to disregard those statements and focus only on the evidence presented in the courtroom. We presume that the jury followed the court’s instructions. (People v. Alfaro, supra, 41 Cal.4th at p. 1326.) With these steps the court fulfilled its obligation to make such inquiry as was reasonably required to resolve the claim of juror misconduct brought to its attention. (People v. Hayes (1999) 21 Cal.4th 1211, 1255.)
B. Alcohol
A member of the courtroom audience reported to the court that from a distance of one to two feet she smelled alcohol on of one of two jurors that were sitting together. The court posted the bailiff near the door as the jurors entered the courtroom to ascertain whether he could detect any odor of alcohol. The bailiff did not smell any alcohol on any of the jurors, and no further investigation was conducted.
Bogan now contends that “a more reliable and appropriate course of action would have been an examination of the two jurors in question to determine whether either of them had consumed any alcoholic beverages.” Our role is not to determine whether there might have been a more reliable or more appropriate course of action, but to determine whether the trial court abused its discretion or was legally obligated to act differently than it did, and we find no error here. Consumption of alcohol by a juror that does not lead to intoxication is not juror misconduct (People v. Allen (1986) 42 Cal.3d 1222, 1266-1267), and there was no evidence demonstrating a strong possibility that prejudicial misconduct has occurred. (People v. Schmeck, supra, 37 Cal.4th at p. 295.)
XII. Cumulative Error
Bogan claims that the cumulative effect of the alleged errors discussed above deprived him of due process and led to his convictions. As Bogan has not established any errors in the trial court, he cannot demonstrate any cumulative effect. (People v. Smithey (1999) 20 Cal.4th 936, 1017 [when there is no prejudicial error, there can be no cumulative effect of error].)
XIII. Asserted Violation of Equal Protection
Section 273ab provides that a person who has the care or custody or a child who is under the age of eight years and who assaults the child by means of force that to a reasonable person would be likely to produce great bodily injury, resulting in the child’s death, is subject to a sentence of 25 years to life in state prison, while those who commit second degree murder of a child not in their care and custody (and therefore not subject to section 273ab) may be sentenced only to 15 years to life in prison. Bogan argues that section 273ab violates equal protection on its face and as applied because it treats some child killers differently than others. He argues that to impose a sentence equal in length to that imposed for first degree murder and longer than that for second degree murder denies him equal protection of the laws.
“The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.” (In re Eric J. (1979) 25 Cal.3d 522, 530.) As the court explained in People v. Basuta (2001) 94 Cal.App.4th 370, 399, “Appellant was not denied equal protection since []he is not similarly situated with those who murder children. A violation of section 273ab requires not only an assault on a child that results in death but also that the defendant have care or custody of the child. The element of care and custody in section 273ab creates a meaningful distinction between those committing that offense and murderers. Those who have the care and custody of children not only have a particular responsibility and occupy a position of trust, they are also the persons most likely to kill children.” We agree with the Basuta court’s analysis and reject Bogan’s equal protection argument.
XIV. Failure to Award Presentence Custody Credits
The trial court denied Bogan presentence conduct credits because he had been convicted of murder. Section 2933.2, subdivision (a) provides that “Notwithstanding Section 2933.1 or any other law, any person who is convicted of murder, as defined in Section 187, shall not accrue any credit . . . .” Bogan argues that since his sentence for second degree murder was stayed pursuant to section 654 and he was serving a sentence for violating section 273ab, he was entitled to presentence conduct credits. This issue is presently before the California Supreme Court in People v. Duff (S153917), review granted August 29, 2007, and In re Pope (S160930), review granted April 9, 2008. Without the benefit of the Supreme Court’s view of the matter, we conclude that section 2933.2, subdivision (a) precludes an award of award of presentence custody credits notwithstanding the stay of the murder conviction under section 654. The statute provides that no credits are available for “any person who is convicted of murder.”
Bogan is unquestionably a person who was convicted of murder. Notably, the statute does not provide that credits are to be denied to a person serving a sentence for murder, but rather that they are unavailable to anyone who has been convicted of murder. The fact that Bogan is serving the felony child abuse sentence because it is longer than the available sentence for murder does not negate his murder conviction, just as a prior serious or violent felony that has been stayed under section 654 may nevertheless be used as a strike within the meaning of the Three Strikes Law. (People v. Benson (1998) 18 Cal.4th 24, 26-27.)
There is no indication that the Legislature intended this statute to be controlled by section 654. The language of the statute makes no reference to section 654, nor does it provide that its application is subject to section 654. To the contrary, it provides that no credits are to be awarded to a murderer “[n]otwithstanding . . . any other law . . . .” (§ 2933.2, subd. (a).) As the court said in People v. McNamee (2002) 96 Cal.App.4th 66, 70 concerning subdivision (c) of section 2933.2, “[T]he language of section 2933.2, subdivision (c) is broad and evidences an intention to impose a complete ban on presentence conduct credits for those defendants who come within its purview. Subdivision (c) states that, notwithstanding section 4019 or ‘any other provision of law,’ no presentence conduct credits may be earned by a person convicted of murder. That language reflects an intent to supersede any and all provisions of law that might support an award of presentence conduct credits.” Section 2933.2, subdivision (a) is similarly clear and we conclude that it reflects an intent to preclude presentence conduct credits to anyone convicted of murder, regardless of whether that sentence is stayed pursuant to section 654.
The Legislature is not required to mention section 654 in order to create an exception to its general rule prohibiting multiple punishment. (People v. Benson, supra, 18 Cal.4th at p. 32.)
We are not persuaded otherwise by In re Phelon (2005) 132 Cal.App.4th 1214, in which the court concluded that a prisoner’s credits should not be limited under a different custody credits statute, section 2933.1, subdivision (c), based on convictions for which punishment was stayed under section 654. The Phelon court failed to consider whether the “[n]otwithstanding . . . any other provision of law” language in section 2933.1, subdivision (c) created an exception to section 654.
Although the state of the law may change upon issuance of the Supreme Court’s decision in its pending cases, in which case this issue will have to be revisited, we find no error in the trial court’s refusal to grant presentence conduct credits to Bogan pursuant to section 2933.2, subdivision (a).
DISPOSITION
The judgment is affirmed.
We concur: WOODS, J., Acting P. J. JACKSON, J.