Opinion
E071285
10-26-2020
THE PEOPLE, Plaintiff and Respondent, v. HOUSTON MICHAEL BOJI, Defendant and Appellant.
Wallin & Klarich and Stephen D. Klarich for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael P. Pulos and Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1502741) OPINION APPEAL from the Superior Court of Riverside County. Samuel Diaz, Jr., Judge. Affirmed. Wallin & Klarich and Stephen D. Klarich for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael P. Pulos and Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant, Houston Michael Boji, went to the home of his friend, Nicholas M., with his father's shotgun. While there, defendant shot Nicholas, but he gave several inconsistent versions of what transpired leading up the shooting, which resulted in Nicholas's death. Defendant was charged with murder. (Pen. Code, §187, subd. (a).) It was further alleged that in committing the murder, he intentionally and personally discharged a firearm causing death or great bodily injury. (§ 12022.53, subd. (d).) Following a jury trial, the jury found defendant guilty of second degree murder and made a true finding on the gun discharge enhancement. Defendant appealed.
All further statutory references are to the Penal Code, unless otherwise indicated.
On appeal, defendant argues (a) the admissibility of statements he made to officers outside Nicholas's residence without Miranda advisement; (b) the admissibility of his statements given at the police station as being involuntary; (c) the trial court ruling on the relevance of the victim's mental health; (d) the admissibility of a law enforcement officer's opinion on the sincerity of defendant's emotional display at the scene of the shooting; (e) the trial court's ruling allowing law enforcement witnesses to refer to the location where Nicholas died as a "crime scene"; (f) the trial court's ruling limiting his cross-examination of a prosecution witness comparing the percentage of all the text messages to the number of messages in which defendant made threats to the victim; (g) the prosecutor committed misconduct during closing argument; and (h) the cumulative effect of the errors deprived defendant of a fair trial. We affirm.
Ref. Miranda v. Arizona (1966) 384 U.S. 436.
BACKGROUND
Defendant and Nicholas McCauley were best friends. Nicholas's mother, Ana McCauley, considered defendant to be like a second son. Defendant was permitted to come to the residence when she was not there because she cared for and trusted him. Defendant confided in Ana and asked her how she felt about homosexuality. Ana told defendant she would have no problem if Nicholas were gay, she would love him regardless. Defendant told her that his father would kill him. Ana did not observe anything that indicated defendant had romantic feelings for Nicholas. Instead, she thought both Nicholas and defendant had girlfriends.
Ana was aware of only one occasion when Nicholas went to a shooting range with the defendant and his father. She did not allow defendant to bring guns into her home because Nicholas was bipolar, and she had told defendant previously not to bring firearms into her house.
Ana had access to some text messages sent to Nicholas during a time when she had taken his phone away from him and allowed him to use hers. She also had access to instant messages sent to her son. Defendant had sent the messages through his iPhone's instant messenger, not realizing that Nicholas had been forced to use his mother's cell phone when his own phone privileges had been restricted. Although Ana could not receive text messages sent to Nicholas's cell phone, if someone sent an instant message, it would show up on her phone because they were on a shared plan.
In one such message, defendant stated he would find Nicholas "and make you my bitch." Ana was concerned about the messages and spoke to Nicholas about them, but she did not talk to defendant about them and Nicholas said not to worry because he was no longer friends with defendant.
On November 10, 2015, when Nicholas's mother left for her teaching job at about 8:10 or 8:15 a.m., Nicholas was still asleep in his room. As she drove away, she saw defendant's car on the other side of the block. However, she thought perhaps her neighbor had bought a new car.
By 8:30 that morning, Gabriella Miller, a neighbor of the McCauley's, saw a man running back and forth, yelling, "Help, my friend's been shot. Call the police."
Another neighbor, Fernando Juarez, on whose door defendant had banged, heard defendant yelling for help. This neighbor followed defendant into the house where defendant's friend was, saw the victim and called the police. When they went into the bedroom, defendant sat by the victim and cried like someone who has lost a brother, loud and uncontrollably. Defendant told Juarez he thought the victim had shot himself, repeating it two or three times.
Juarez saw the victim's body on the ground and a shotgun on the bed, along with two shells about a foot away. Juarez is familiar with guns and immediately realized it was a shotgun. When he called 911, Juarez reported what defendant had said about the victim shooting himself.
Sheriff's Deputy White was on patrol at 8:37 a.m. when he was dispatched to the victim's residence after the 911 call had been made. He contacted defendant, who was covered in blood as well as some flesh; defendant's zipper was down. Deputy White entered the residence with defendant who approached the victim and appeared ready to begin to do chest compressions. The deputy told defendant to stop and instructed defendant not to touch anything. The deputy led defendant outside the residence. By this time, other officers were on the scene so Deputy White asked them to watch defendant while the deputy escorted the medical personnel into the residence. The deputy described defendant as being visibly distressed.
Deputy White observed several shotgun shells in the bedroom: one was under the bed, near the victim's left leg; one was on the box spring where the mattress was a little displaced; an expended casing was in the victim's right armpit area.
Sheriff's Deputy Kurylowicz was also dispatched to the victim's address at about 8:30 a.m., and arrived at the scene of the shooting, where he saw defendant sitting outside on the curb, covered with blood. The deputy went inside the residence where he saw the victim laying on the ground having been shot. The shotgun was in a black case but was not on the bed; it was on top of the dresser. The house was sealed. The deputy noticed an unspent shotgun shell in the area of the victim's armpit.
Outside, Deputy Kurylowicz spoke to defendant for about 15 or 20 minutes, and the interview was taped. Defendant was emotional during the interview but did not seem too convincing to the deputy. Additional information about defendant's statement to the deputy will be set out as necessary in the Discussion section.
In the meantime, other sheriff's deputies walked through and photographed the crime scene, identifying items of evidence. There were shotgun pellets and blood on top of the bed. The gun, a Mossberg 12-gauge shotgun was on the dresser in a soft case. There was ammunition in the side saddle of the gun case, and blood smears throughout the house, on the walls in the hallway, and in the kitchen on appliances. Deputies recovered a total of six live shells on and under the bed, near the dresser and near the victim's leg. One spent round was located right next to the victim. The victim's cell phone was also found and logged into evidence.
An investigator assigned to the Technology Crime High-Tech Response Team extracted information from three devices: a ZTE cellular device, a Nokia device and an Apple iPhone. Defendant's father had identified the iPhone as belonging to defendant; it had been found in defendant's bedroom. Defendant's contact information was found on the ZTE device.
This was the victim's phone. Mother indicated that her son's phone was a Go Phone, of which ZTE is a model.
Among other messages found on the ZTE phone was a text message sent by defendant on November 6, 2015, saying, "Bro, you gave me a cole [sic] sore. My upper mouth region hurts." Later on that date, defendant texted, "Ima [sic] shoot you, I swear." Still later that same date, defendant texted, "Ok. You shut your phone off—shut your phone of. [sic] Idc, but I'm serious, I will shoot you when I see you, mother fucker." Messages sent on November 8, 2015 included the message in which defendant stated, "I make you my bitch,", and a subsequent message sent a few minutes later stating, "I will slowly take over your sole [sic]," followed by another message stating, "I am the sole eater, but be out Jacks @ 11:00." The phone number of the iPhone, as well as messages on that device, corresponded with the phone number and messages found on the ZTE device.
The autopsy of Nicholas revealed a gunshot wound on his right arm near the elbow, which was gaping; the wound had scalloped edges with destruction to the underlying tissues. The humerus was shattered just above the entrance wound and there was wadding from the shotgun shell in the right arm. Because wadding starts to fall off by 8 to 10 feet, the gun was fired from no more than 5 or 6 feet away.
There were six defects on the inside of the right upper arm that corresponded with five similar defects on the right lateral chest wall, where five shotgun pellets were retrieved, indicating that the pellets exited the arm and entered the chest. Some pellets traveled in the chest area, fracturing some ribs, damaging the lung and the upper chambers of the heart, hitting the aorta in two places and creating a defect in the left lung. Death was caused when a pellet traveled through the heart.
Based on trajectory, the shot entered the right arm near the elbow, the pellets exited the inner aspect of the right arm and entered the right aspect of the chest, from front to back and from right to left. There was no muzzle impression or soot to indicate a contact wound, and the scalloping indicated the shot was fired from approximately three feet away from the victim. The pathologist opined that the victim's arm was close to his body at the time he was shot, and that he could have been lying down when he was shot. Based on the angle of trajectory and the victim's height, the barrel of the gun would have had to be below the point of entry, lower than the right arm, for the wadding to end up in the arm while the pellets continued in the direction indicated, so death could not have been caused by suicide. Because the gun would have been about three feet away from the body, the victim could not have pulled the trigger himself.
At the police station, defendant gave different versions of the sequence of events to the investigating detectives. In the first version, the victim shot himself while defendant was getting a drink in the kitchen. In that version, defendant denied accidentally shooting the victim. In the second version, both defendant and the victim handled the gun as defendant showed it to the victim, and after handling it, defendant took the gun back from the victim, not realizing that the victim had put a shell in the chamber. The victim handed it to defendant butt end first, so that when defendant grabbed the gun and pulled back, the gun went off accidentally. In providing this version, defendant included a variation by stating that as defendant grabbed for the gun, the victim pulled back on the gun, and it went off.
In the third version, both defendant and victim handled the gun, loading and unloading it. When defendant retrieved the gun from the victim, he believed it was empty with the safety on, and in playing around, he aimed the gun at the victim and fired it, not realizing there was still a round in it. At the time, the victim was laying in the bed. Defendant was then placed under arrest.
By an information, defendant was charged with one count of murder (§ 187, subd. (a)), along with an allegation that he personally and intentionally discharged a firearm causing great bodily injury and death. (§ 12022.53, subd. (d).) While he was in pretrial custody, he shared a cell for a month with Samuel Murillo. During that time, defendant had approximately ten conversations with Murillo about his case. Defendant told Murillo he was charged with murder and that the decedent was his friend.
During their conversations, defendant gave two versions of how his friend died: in one version, defendant stated he went to the victim's house with a shotgun because they had planned to go shooting. He showed the gun to the victim, who popped a shell into the chamber and played around with it, and when he handed the gun back to defendant, with the barrel pointing at the victim, defendant went to get it, touching the trigger and causing the gun to go off.
In the second version, defendant spoke about how he had gotten a sexually transmitted disease (STD) and his friend had told him he was gay. Defendant said he called his friend a faggot and said that was the only way he could have gotten it, so he had texted his friend saying he would shoot him, and defendant was worried the police would find the text messages. Shortly after his release from jail, Murillo notified law enforcement of the information, but he did not receive any deals in return.
Defendant was tried by a jury, in which he testified in his own defense. At trial, defendant admitted he had sent the text messages but that they were sent jokingly. He admitted taking his father's shotgun to the victim's house to show it off, although he did not have permission to take it, and he had planned to take the victim shooting.
After retrieving the shotgun from the trunk of his car, defendant got silly and started to rack the gun, chambering rounds and then racking the gun to eject them. He thought the gun was empty after all the rounds had been ejected, lowered the gun and flicked the trigger, not realizing there was a shell in the chamber. The gun went off, striking the victim as he lay in the bed. He managed to get the victim off the bed and laid him on the floor to perform CPR. When the victim did not respond, he tried to call 911 from the house phone, because he had left his own phone at home, but it did not work. He then went out to get help from neighbors. He denied ever intending to kill the victim.
The jury found defendant guilty of second-degree murder and made a true finding on the gun discharge allegation. At the sentencing hearing, defendant made a request that the court exercise its discretion to strike the enhancement pursuant to sections 1385 and 12022.53, subdivision (h), but the court denied the request. Defendant was sentenced to a term of 15 years to life for the murder count, and a consecutive term of 25 years to life for the gun discharge enhancement. Defendant appealed.
DISCUSSION
1. No Miranda Violation Occurred When Investigating Officers Asked Defendant Questions at the Shooting Scene.
Defendant argues that the trial court erred in admitting defendant's statements to law enforcement outside the residence where the victim had been shot. He contends that the statements were made during a custodial interrogation without the benefit of advisals pursuant to Miranda v. Arizona, supra, 384 U.S. 436. We disagree.
a. Standard of Review
Whether a defendant was in custody for Miranda purposes is a mixed question of law and fact. (People v. Leonard (2007) 40 Cal.4th 1370, 1400, citing People v. Ochoa (1998) 19 Cal.4th 353, 401.) When reviewing a trial court's determination that a defendant did not undergo custodial interrogation, an appellate court must "apply a deferential substantial evidence standard" (Ochoa, supra, at p. 402) to the trial court's factual findings regarding the circumstances surrounding the interrogation, and it must independently decide whether, given those circumstances, "'a reasonable person in [the] defendant's position would have felt free to end the questioning and leave.' [Citation.]" (People v. Leonard, supra, at p. 1400.)
We therefore accept the trial court's resolution of disputed facts and inferences, and its evaluations of credibility, if they are substantially supported. (People v. Boyette (2002) 29 Cal.4th 381, 412; People v. Bradford (1997) 14 Cal.4th 1005, 1033.) Once the facts have been determined, we review the decision to admit the statements under the de novo standard of review, where we independently determine whether the statements were lawfully admitted into evidence. (People v. Weaver (2001) 26 Cal.4th 876, 918.)
b. Whether Defendant Was In Custody
The United States Supreme Court has recognized that any police interview of an individual suspected of a crime has coercive aspects to it. (Oregon v. Mathiason (1977) 429 U.S. 492, 495 [97 S.Ct. 711, 50 L.Ed.2d 714].) However, those interrogations that occur while a suspect is in police custody heighten the risk that statements obtained are not the product of the suspect's free choice. (Dickerson v. United States (2000) 530 U.S. 428, 435 [120 S.Ct. 2326, 147 L.Ed.2d 405].)
This danger of coercion is usually present where there has been a "'"formal arrest or restraint on freedom of movement" of the degree associated with a formal arrest.'" (People v. Stansbury (1995) 9 Cal.4th 824, 830, quoting California v. Beheler (1983) 463 U.S. 1121, 1125 [103 S.Ct. 3517, 77 L.Ed.2d 1275]; see also People v. Caro (2019) 7 Cal.5th 463, 491; People v. Moore (2011) 51 Cal.4th 386, 394-395.)
The trial court is therefore tasked with determining whether, under all the objective circumstances, a reasonable person in the suspect's position would have felt free to terminate the interrogation. (People v. Leonard, supra, 40 Cal.4th at p. 1400; Howes v. Fields (2012) 565 U.S 499, 509 [132 S.Ct, 1181, 182 L.Ed.2d 17]; Thompson v. Keohane (1995) 516 U.S. 99, 112, 113 [116 S.Ct. 457, 133 L.Ed. 2d 383].) But even if a person's freedom of movement has been curtailed, an "additional question" arises: "whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda." (Howes v. Fields, supra, 565 U.S. at p. 509; see also id. at p. 510 [discussing Berkemer v. McCarty (1984) 468 U.S. 420 [104 S.Ct. 3138, 82 L.Ed. 2d 317].)
"All objective circumstances of the interrogation are relevant to this inquiry, including the site of the interrogation, the length and form of questioning, and whether the officers have conveyed to the subject that their investigation has focused on him or her." (People v. Caro, supra, 7 Cal. 5th at pp. 491-492; see also, People v. Stansbury, supra, 9 Cal.4th at pp. 831-832.) "Additional factors are whether the suspect agreed to the interview and was informed he or she could terminate the questioning, whether police informed the person he or she was considered a witness or suspect, whether there were restrictions on the suspect's freedom of movement during the interview, and whether police officers dominated and controlled the interrogation or were 'aggressive, confrontational, and/or accusatory,' whether they pressured the suspect, and whether the suspect was arrested at the conclusion of the interview." (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403-1404, citing People v. Aguilera (1996) 51 Cal.App.4th 1151, 1162.)
"Police officers are not required to give Miranda warnings to everyone they question." (In re I.F. (2018) 20 Cal.App.5th 735, 759, citing Oregon v. Mathiason, supra, 429 U.S. at p. 495.) "A custodial interrogation does not occur where an officer detains a suspect for investigation and the questioning is limited to the purpose of identifying a suspect or 'to obtain [sufficient] information confirming or dispelling the officer's suspicions. [Citation.]'" (People v. Davidson (2013) 221 Cal.App.4th 966, 970, quoting People v. Farnam (2002) 28 Cal.4th 107, 180.)
Here, reviewing all the circumstances, there was no custodial interrogation. Defendant was the individual who asked neighbors to call 911. He greeted the first deputy to arrive at the scene and escorted him to the victim's bedroom. He was directed not to touch the body and escorted out of the residence, which was being secured. He was not handcuffed. Although defendant was told to wait on the curb, he was not confined in the back seat of a patrol car. The single deputy did not display a weapon or an overbearing, intimidating or accusatory attitude. The questions asked were preliminary questions asked by law enforcement investigating the scene of a shooting, gathering information from witnesses regarding what had transpired.
The United States Supreme Court in Miranda never intended for its rule to be used to hamper the traditional function of police officers in investigating crime. (Miranda, supra, 384 U.S. at p. 477 ["General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding."].) Even if defendant had been detained at the time the deputy questioned him, that fact alone would not compel a conclusion he was in custody. (See Berkemer v. McCarty, supra, 468 U.S. at p. 439 [answers to investigatory questions by police officer who lawfully detains a person pursuant to a traffic stop are admissible even if the person was not given Miranda warnings].)
A custodial interrogation does not occur where an officer detains a suspect for investigation and the questioning is limited to the purpose of identifying a suspect or to obtaining sufficient information confirming or dispelling the officer's suspicions. (People v. Farnam, supra, 28 Cal.4th at p. 180; People v. Davidson (2013) 221 Cal.App.4th 966, 970.)
On this record, the trial court correctly found that the interrogation of defendant outside the victim's residence was not a custodial interrogation.
2. Defendant's Statements During Custodial Interrogation Were Voluntary.
Defendant argues that his statements to law enforcement investigators at the station were involuntary and therefore inadmissible, requiring reversal. He contends that the interrogation was prolonged, and defendant was deprived of food or water for hours in arguing that his will was overborne. We disagree.
It is true that an involuntary confession may not be introduced into evidence at trial. (Lego v. Twomey (1972) 404 U.S. 477, 483 [92 S. Ct. 619, 30 L. Ed. 2d 618].) In determining whether a confession was voluntary, reviewing courts evaluate "'whether defendant's choice to confess was not "essentially free" because his or her will was overborne.' [Citation.]" (People v. Massie (1998) 19 Cal.4th 550, 576.)
Whether the confession was voluntary depends upon the totality of the circumstances. (Withrow v. Williams (1993) 507 U.S. 680, 693-694 [113 S.Ct. 1745, 123 L.Ed. 2d 407,]; People v. Scott (2011) 52 Cal.4th 452, 480; People v. Massie, supra, 19 Cal.4th at p. 576.) "The prosecution has the burden of establishing by a preponderance of the evidence that a defendant's confession was voluntarily made." (People v. Carrington (2009) 47 Cal.4th 145, 169; People v. Williams (1997) 16 Cal.4th 635, 659.)
On appeal, we review the trial court's findings as to the circumstances surrounding the confession for substantial evidence, however, we review the trial court's finding as to the voluntariness of the confession under an independent review standard. (People v. Holloway (2004) 33 Cal.4th 96, 114.)
In evaluating the voluntariness of a statement, no single factor is dispositive. (People v. Williams, supra, 16 Cal.4th at p. 661.) Relevant factors include (a) the element of police coercion; (b) the length of the interrogation; (c) its location; and (d) its continuity; as well as the defendant's maturity, education, physical condition, and mental health. (Id., at p. 660.)
There is no bright line authority identifying a particular length of time of an interrogation as being unduly prolonged, such that a confession given during such a detention is deemed inherently coerced, and, therefore, involuntary. As the United States Supreme Court has observed, "It is impossible for this Court, in enforcing the Fourteenth Amendment, to attempt precisely to delimit, or to surround with specific, all-inclusive restrictions, the power of interrogation allowed to state law enforcement officers in obtaining confessions. No single litmus-paper test for constitutionally impermissible interrogation has been evolved: neither extensive cross-questioning -- deprecated by the English judges; nor undue delay in arraignment . . . ; nor failure to caution a prisoner . . . ; nor refusal to permit communication with friends and legal counsel at stages in the proceeding when the prisoner is still only a suspect . . ." (Culombe v. Connecticut (1961) 367 U.S. 568, 601-602 [81 S.Ct. 1860, 1878-1879, 6 L.Ed.2d 1037, 1057].)
The California Supreme Court subscribes to a similar view. There is "no authority that would support a specific time limit on interrogation that would apply to all cases, regardless of their facts. Drawing such a bright line for all cases would be contrary to the 'totality of the circumstances' test." (People v. Hill (1992) 3 Cal.4th 959, 981, overruled on a different point in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069.)
On the extreme end of the spectrum is a confession obtained as the "culmination of the thirty-six hour" interrogation, in Ashcraft v. Tennessee (1944) 322 U.S. 143, 151 [64 S.Ct. 921, 924, 88 L.Ed. 1192, 1197]; see also, Reck v. Pate (1961) 367 U.S. 433, 441 [81 S.Ct. 1541, 1546, 6 L.Ed.2d 948, 954], where the defendant was held nearly eight days without a judicial hearing, four days of which preceded his first confession, during which period of detention, the defendant was subjected each day to relentless and incessant interrogation.
Closer to point, in People v. Hill, supra, 3 Cal.4th at page 981, the interrogation cumulatively lasted approximately 12 hours, but was not continuous. It was punctuated by breaks, such that the actual interrogation consumed approximately 8 hours, and it was conducted between the hours of 9:30 a.m. and 10:00 p.m. (Ibid.) The defendant did not appear unduly distressed or subjected to any abusive or improper tactics, leading the court to conclude the confession was voluntary. (Id., at pp. 981-982.)
The interrogation in the present case resembles that of Hill. Defendant was interrogated over a similar time frame, which was punctuated by breaks, during which defendant was able to sleep. One break was occasioned by defendant's willingness to take a polygraph test, which required a trip to San Bernardino due to the unavailability of a local polygrapher. Further interrogation was compelled by statements defendant made in response to the questions during the polygraph examination.
We are concerned that, due to the need to wait for the forensic specialists, defendant was left covered in blood and blood-soaked clothing before being permitted to change clothes and clean himself, as well as by the fact he had to request water several times before someone eventually provided him with a drink. However, this was attributable to the need to follow forensic protocols and the availability of technicians. Nevertheless, defendant was provided with the meal of his choosing when he was hungry, did not request to see his parents (quite the contrary: he was loathe to let them know what had happened), and he did not request the presence of counsel.
This case is easily distinguished from the case of People v. Esqueda (1993) 17 Cal.App.4th 1450, 1485, where the defendant was taken into custody at approximately 10:00 p.m., and questioned from approximately 1:30 a.m. the following morning until approximately 1:30 p.m. in a manner described by the court as "badgering." In the present case, it was defendant's evolving story of how his friend came to be shot dead that compelled further interrogation to clarify statements contradicted by the physical evidence and by defendant's own prior statements.
Similarly, this case is distinguishable from the situation in People v. Neal (2003) 31 Cal.4th 63 also relied on by defendant, where the youthful and unsophisticated suspect was jailed following the first interview, placed in a cell without a toilet or a sink, lacked access to counsel or to any other noncustodial personnel, was not taken to a bathroom or given any water until the following morning, and he was not provided with any food until after the third interview, after more than 24 hours in custody and more than 36 hours since his last meal. (Id, at p. 84.)
Defendant places great emphasis on his age and lack of criminal record, but these factors have never been held to provide a basis for excluding a statement as involuntarily procured absent other improper conduct on the part of law enforcement. He was an adult, was enrolled in a community college, had been a police Explorer, and suffered no mental or physical impairments.
Considering the totality of the circumstances, the court properly found defendant's statements were voluntary.
3. The Trial Court Did Not Improperly Limit Defendant's Cross-Examination of the Victim's Mother About the Victim's Mental Health Issues.
Defendant argues that the trial court improperly limited his cross-examination of the victim's mother regarding the victim's mental health issues. Specifically, after the victim's mother stated she did not want guns brought to the house because the victim had bipolar disorder, defense counsel asked whether the victim's mother had ever discussed her son's mental condition with defendant. The prosecutor objected that the evidence sought was beyond the scope of direct examination and was irrelevant unless the defense intended to proffer a defense of suicide. Defense counsel argued that the mother's concern about Nicholas's mental illness led her to encourage defendant to help her to help her son out, and was relevant to explain why defendant and the victim were such close friends, thereby negating any inference that the two young men were in a romantic relationship. The court concluded the evidence was irrelevant insofar as this issue was collateral. We find no error.
Trial courts have considerable discretion in "restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance." (People v. Chatman (2006) 38 Cal.4th 344, 372.) Moreover, not every restriction on a defendant's desired method of cross-examination is a constitutional violation. (People v. Elliott (2012) 53 Cal.4th 535, 579, citing Chatman, supra, at p. 372.)
Thus, unless defendant can show that the prohibited cross-examination would have produced "'a significantly different impression of a witness's credibility' [citation], the trial court's exercise of its discretion in this regard does not violate the Sixth Amendment." (People v. Frye (1998) 18 Cal.4th 894, 946 [disapproved on a different point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22].) Therefore, when reviewing a trial court's decision regarding the scope of cross-examination we review for abuse of discretion. (People v. DeHoyos (2013) 57 Cal.4th 79, 123.) It is defendant's burden to show that the prohibited cross-examination would have produced a significantly different impression of the witness's credibility. (People v. Chatman, supra, 38 Cal.4th at p. 372.)
"Confrontation clause violations are subject to federal harmless-error analysis under Chapman v. California (1967) 386 U.S. 18, 24." (People v. Geier (2007) 41 Cal.4th 555, 608.) Under this analysis, "'an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.'" (Ibid., quoting Delaware v. Van Arsdall (1986) 475 U.S. 673, 681.) "The harmless error inquiry asks: 'Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?'" (People v. Geier, supra, 41 Cal.4th at p. 608, quoting Neder v. United States (1999) 527 U.S. 1, 18 [119 S.Ct. 1827,144 L.Ed. 2d 35].)
Here, the victim's mental state was not at issue; defendant asserted in pretrial statements that the shooting was an accident after being confronted with the physical impossibility that the victim could have shot himself. Defendant made no other or further offer of proof to demonstrate the relevance of any mental health issues of the victim. There was no error in curtailing this line of inquiry.
4. The Trial Court Properly Allowed a Law Enforcement Witness to Opine About the Sincerity of Defendant's Emotional Response.
Defendant argues it was prejudicial error to allow a sheriff's deputy, who interviewed defendant briefly outside the victim's home, to render his opinion that defendant's emotional display at the scene of the shooting "did not seem too convincing." Defendant now argues that the trial court abused its discretion in admitting the opinion testimony because it was speculative, prejudicial, and was not helpful to a clear understanding of the witness's testimony. The People argue defendant forfeited any argument respecting the admissibility of the statement as lay opinion, having objected only on grounds of relevance and speculation. We consider the issue forfeited.
a. Background
After playing for the jury an audio recording of the interview of defendant, which occurred at the scene of the shooting, the prosecutor asked the officer who conducted the interview if he was taught to use tools to determine if someone was lying to him, to which defense counsel objected on the ground it was irrelevant. The court sustained the objection. The prosecutor next asked about the officer's training and experience in determining whether someone is lying. Again, defense counsel objected on the ground it was irrelevant, and the court sustained the second objection.
Finally, the prosecutor asked the officer if, based on his interview with defendant, as well as his background, training and experience, defendant seemed convincing. The defense posited another objection on the ground it was irrelevant and speculative, but this time the court overruled the objection.
b. Forfeiture
Defendant did not preserve an objection grounded on the admissibility of lay opinion, forfeiting this claim. (People v. Rodriguez (2014) 58 Cal.4th 587, 630 [defendant preserved issue only on whether the opinion testimony was speculative].)
Courts have consistently held that the defendant's failure to make a "'"timely and specific objection" on the ground asserted on appeal makes that ground not cognizable.'" (People v. Partida (2005) 37 Cal.4th 428, 433-434, citing People v. Green (1980) 27 Cal.3d 1, 22 [objection on ground that questions were leading does not preserve appellate argument that the evidence was impermissible evidence of other crimes]; People v. Seijas (2005) 36 Cal.4th 291, 302 [defendant failed to object to witness's assertion of privilege against self-incrimination].)
This rule derives from the general rule that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal. (Evid. Code, § 353; People v. Rogers (1978) 21 Cal.3d 542, 547-548.)
In Rodriguez, supra, 58 Cal.4th at page 630, the defendant claimed that testimony by an investigating officer that defendant seemed calm, and did not appear upset or crying, constituted improper lay testimony. The Supreme Court held that the defendant did not preserve this particular objection and declined to reach it. (Ibid.)
Similarly, in the present case, defendant did not preserve for review the admissibility of the testimony on the ground of improper opinion. However, he did preserve for review the objection grounded on relevance and speculation, to which we now turn our attention.
c. The Testimony Was Neither Irrelevant nor Speculative.
Evidence is relevant if it has any "tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210; People v. Rodriguez, supra, 58 Cal.4th at p. 630.) As the court in Rodriguez noted, the objections going to speculation are inherently based on relevance. (Rodriguez, at pp. 630-631.)
In Rodriguez, the court concluded that because there was no blanket rule prohibiting demeanor evidence, and because the witness based the testimony on personal observation, there was no error in admitting the testimony on the ground it was speculative. (Rodriguez, supra, 58 Cal.4th at p. 631.) The court also concluded the evidence was relevant on the question of whether the defendant was a grieving widow or had just killed her husband to collect life insurance proceeds, which the court held was a question of consequence in deciding whether the defendant was guilty of her husband's murder. (Id. at p. 630.)
The same is true here. The testimony here was based on the deputy's personal observations of defendant's demeanor, so it was not based on speculation. The evidence was relevant to whether defendant was a grieving friend or a perpetrator, where defendant told the officer, on the one hand, his friend had an extensive history of mental issues and took a lot of medication, but, on the other, defendant had brought a loaded shotgun into the house and left the victim alone with it. The trial court did not err in admitting the testimony.
5. There Was No Error in Permitting Law Enforcement Officers to Refer to the Scene of the Shooting as a "Crime Scene."
At trial, the prosecutor asked a sheriff's investigator whether a particular exhibit was at the crime scene when the witness saw it, defense counsel objected on the ground that the continuing reference to the "crime scene" was argumentative. The court overruled the objection. On appeal, defendant argues it was prejudicial error to permit the law enforcement officer to refer to the scene of the shooting as a "crime scene" on the ground it was improper opinion evidence. This objection was not preserved for review. (People v. Rodriguez, supra, 58 Cal.4th at p. 630.)
In any event, defendant failed to establish that the references were prejudicial on any ground or in any way. In People v. Williams (1860) 17 Cal. 142, the trial court's pointed use of the word "victim" in instructing the jury was held to be an improper comment on the evidence by the court, whereby the court assumed that the deceased was wrongfully killed when that very issue was to be resolved by the jury. As later observed, "'even an equivocal expression coming from the judge, may be fatal to the prisoner.'" (See People v. Wolfe (1954) 42 Cal.2d 663, 666, distinguishing Williams.) In Wolfe, the Supreme Court observed that the references to "victim" came from the prosecutor, without objection by the defendant, and the jury was properly instructed that it was the trier of fact, and could not convict the defendant based on mere suspicion. (Wolfe, supra, at p. 666.)
The cases that followed Williams and Wolfe address the deleterious effect on the presumption of innocence that flows from the court's comments on the evidence which assumed the defendant's guilt. (See People v. Simpson (1948) 87 Cal.App.2d 359, 363; People v. Kinowaki (1940) 39 Cal.App.2d 376, 381.)
The People have pointed out the only case we have found in which a prosecutor's reference to a "victim" was challenged on appeal. (People v. Sanchez (1989) 208 Cal.App.3d 721, 740.) There, defendant argued on appeal that counsel provided ineffective assistance by failing to object to the prosecutor's use of the term. The court noted that defense counsel also referred to the complaining witness as "victim," and that the references by both were scattered, such that defense counsel, who did not object, might well have determined that the references did not deserve interruption of the trial. (Ibid.)
Moreover, the court concluded the defendant had "not shown it is reasonably probable a determination more favorable to him would have resulted in the absence of the use of the 'victim' terminology. [Citation.] There is no ground for reversal on the basis of the use during trial of the term 'victim.'" (People v. Sanchez, supra, 208 Cal.App.3d at p. 740.)
We have found no cases involving objectionable references by the prosecutor (or a witness) to the "crime scene" while examining a witness, and defendant cites no specific authority to support his claim of error. Additionally, by the time defendant raised the objection, there had already been several references to the "crime scene" by the witness, unprompted, and the prosecutor prior to the question to which defendant finally posited his objection. Defendant did not make an offer of proof how the reference to the "crime scene" was either argumentative or prejudicial. The court made no comment on the evidence which might assume guilt of defendant in contravention of the presumption of innocence. There was no error in permitting the references to the "crime scene," which were made by the prosecutor, not the witness.
6. It Was Not Error to Limit Cross-Examination About Text Messages on Confrontation Grounds Where No Objection Was Made on that Ground.
During trial, the prosecution offered into evidence certain text messages out of a thread comprising 296 messages sent between defendant and the victim during the four-day period leading up to the shooting, including the messages relating to defendant contracting a "cole sore" for which he said he would shoot the victim. On cross-examination, defendant elicited that the full report of all the text messages was 2800 pages long in portable document format (pdf), in addition to 20 pages of phone calls that were logged in the report.
During cross-examination, defendant sought to "get into the specifics of the messages that were recovered." As defense counsel began examining the witness about text messages sent in June 2015, the prosecutor objected on relevance grounds. Defendant made an offer of proof that there had been a "playful" or joking reference to shooting Nicholas in a text message sent in a thread covering the period between June 24 and June 26, which the court found was admissible. However, in addition, defendant wanted to admit all texts between June 2015 and November 2015, so the jury could see how the two young men communicated with each other.
The court ruled while specific messages jokingly referring to shooting or killing would be proper, 283 pages was too much. Defendant's cocounsel argued that the text messages spoke to the relationship and explain it more fully than the perspective that had been created so far. The court noted that this witness was not a proper witness to explain the relationship between the two and this was not the defense case in chief, implying that they might be offered at a different point in the proceedings.
On appeal, defendant argues that the trial court violated his right under federal confrontation clause to cross-examine by limiting the number of text messages about which the defense could ask the investigator. We disagree.
Initially, we point out that defendant failed to preserve his constitutional claim in the trial court. A defendant who fails to assert in the trial court claims of federal constitutional error forfeits those claims on appeal. (People v. Thornton (2007) 41 Cal.4th 391, 427 [confrontation clause claim]; People v. Cua (2011) 191 Cal.App.4th 582, 591 [due process claim].)
When the trial court ruled the defense would have to limit cross-examination to eliciting testimony about text messages sent in June 2015, in which defendant or the victim jokingly referred to shooting or killing one or the other, defendant's counsel only argued relevance—to explain the relationship between defendant and the victim—but did not object on grounds the court's ruling implicated the confrontation clause. "A '"defendant's failure to make a timely and specific objection" on the ground asserted on appeal makes that ground not cognizable.'" (People v. Jackson (2016) 1 Cal.5th 269, 328, citing People v. Seijas (2005) 36 Cal.4th 291, 302.)
Nevertheless, to forestall any claim that trial counsel provided constitutionally ineffective assistance by not raising the constitutional ground at trial (see, e.g., People v. Neely (2009) 176 Cal.App.4th 787, 795; People v. Scaffidi (1992) 11 Cal.App.4th 145, 151), we conclude there was no error. A trial court retains discretion to restrict "cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance." (People v. Frye, supra, 18 Cal.4th at p. 946, disapproved on a different point in People v. Doolin, supra, 45 Cal.4th 390, 42, fn. 22.)
It is true that a violation of the Confrontation Clause occurs when a criminal defendant has been prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby, "'to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.'" (Delaware v. Van Arsdall, supra, 475 U.S. at p., 680 [106 S.Ct. 1431, 1436, 89 L.Ed. 2d 674], quoting Davis v. Alaska (1974) 415 U.S. 308, 318 [94 S.Ct. 1105, 1111, 39 L.Ed. 2d 347].)
But, as Van Arsdall acknowledges, not every restriction on a defendant's desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. (Van Arsdall, supra, 475 U.S. at pp. 678-679.) "While the trial judge has broad discretion to control the ultimate scope of cross-examination, wide latitude should be given to cross-examination designed to test the credibility of a prosecution witness in a criminal case." (People v. Cooper (1991) 53 Cal.3d 771, 816, citing People v. Belmontes (1988) 45 Cal.3d 744, 780 [overruled on a different point in People v. Cortez (2016) 63 Cal.4th 101, 118].)
Therefore, to establish a violation of his right of confrontation, defendant must show that the excluded evidence "'would have produced "a significantly different impression of [the witness's] credibility.'"" (People v. Sanchez (2019) 7 Cal.5th 14, 45, citing People v. Frye, supra, 18 Cal.4th at p. 946, quoting Delaware v. Van Arsdall, supra, 475 U.S. at p. 680.)
Defendant made no showing in the trial court that the excluded evidence would have produced a significantly different impression of the witness's credibility. In fact, defendant's proffer revealed the evidence was not relevant to any issue relating to the witness's credibility whatsoever. Instead, defendant sought to introduce defense evidence that the text messages about shooting the victim were joking references that the two friends made to each other and were not a true threat. Being relevant to the defense, the court correctly suggested it would be more appropriate to introduce the evidence during the defense case in chief.
Defendant failed to establish that the ruling implicated his right of confrontation and cross-examination.
7. It Was Not Error to Deny Defendant's Mistrial Motion Based on Prosecutorial Misconduct for Appealing to Juror's Passions Where Defendant Did Not Move for Mistrial on That Ground.
Defendant argues the court erred in denying his motion for mistrial, made on the ground that the transcript of one of the videotaped interviews had not fully redacted references to the defendant's willingness to submit to a polygraph examination. We disagree.
a. Background
In limine, the prosecutor moved to exclude any "mention of the lie detector test or the defendant's willingness to take the lie detector test." The trial court granted the motion insofar as defendant did not object.
After defendant testified in his case in chief, the prosecution presented rebuttal witnesses, including the investigator who had conducted the custodial interrogation of defendant, and sought to play the videotaped interviews for the jury. The trial court admonished the jury that the audio portion was the evidence, that the transcripts were just to help them follow along, and that the transcript was not evidence. The prosecutor distributed the transcripts of the videotaped interview conducted prior to defendant being taken to San Bernardino for the polygraph and started the videotape.
As the video played, defendant objected, complaining that on page 49, line 8 of the transcript "they just start talking about the polygraph." The prosecutor acknowledged that the page in question was to have been redacted, and, in fact, the redacted page appeared at page 50 of the exhibit. The material that was the subject of defendant's objection included the following exchange:
"Investigator: 'Cause I -a- again it's - it's not admissible in court did you know that?
"Defendant: Hm?
"Investigator: It's not even admissible in court.
"Defendant: What does that mean?
"Investigator: It means it can't be introduced as evidence. It's just a tool.
"Defendant: For what - then what is it used for?
"Investigator: Just a tool. It - it goes back to being honest or dishonest.
"Defendant: Oh, okay."
The transcript does not include any express reference to a polygraph, and the actual videotape had been successfully redacted to delete the above. Although defendant did not know if the jury had read it, he made a motion for a mistrial based on the unedited portion of the transcript. The court denied the motion because it had already admonished the jury that the audio portion of the tape, which had been redacted, was the evidence and the transcript was not evidence. The record does not indicate if the relevant portion of the tape had yet been played when defendant noticed that the transcript had not been redacted, because defense counsel did not know if the jury had read it.
Nevertheless, after the break, when the jury had returned, the court collected all the transcripts and reminded the jurors that the audio portion was the evidence, not the transcripts.
b. Discussion
"A motion for mistrial should be granted "'only when a party's chances of receiving a fair trial have been irreparably damaged.'"" (People v. Dunn (2012) 205 Cal.App.4th 1086, 1094, quoting People v. Clark (2011) 52 Cal.4th 856, 990.) Whether a particular incident is so prejudicial that it warrants a mistrial "requires a nuanced, fact-based analysis," which is best performed by the trial court. (People v. Chatman (2006) 38 Cal.4th 344, 369-370.) We review a trial court's order denying a motion for mistrial under the deferential abuse of discretion standard. (People v. Clark, supra, 52 Cal.4th at p. 990.) "Under this standard, a trial court's ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Guerra (2006) 37 Cal.4th 1067, 1113 [disapproved on a different ground in People v. Rundle (2008) 43 Cal.4th 76, 151].)
Relying on Evidence Code section 351.1, which prohibits the admission into evidence the results of a polygraph examination, and the holding of United States v. Scheffer (1998) 523 U.S. 303, 313-314 [118 S.Ct. 1261, 140 L.Ed.2d 413], defendant argues that his mistrial motion was improperly denied. We disagree. While it is true that the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of a polygraph examination is inadmissible (Evid. Code, § 351.1; see People v. Mendez (2019) 7 Cal.5th 680, 706), there was no direct evidence admitted in contravention of this rule, because the court instructed the jury that the transcript was not the evidence, and because all of the offending transcripts had been removed. (See People v. Flores (2020) 9 Cal.5th 371, 409 [fleeting reference to "the polygraph unit," where officers were taking the defendant, did not violate Evid. Code, § 351.1 because it did not constitute a "'reference to an offer to take, failure to take, or taking of a polygraph examination.'"].)
In fact, defendant could not even say whether the jury had read the transcript, which highlights our difficulty in finding reversible error. We have been unable to find decisions addressing the propriety of denying a mistrial grounded on the admission of oblique references to a polygraph. The Evidence Code precludes only evidence of an offer to take or failure to take a polygraph. Thus, fleeting reference to "the polygraph unit" has been held to not clearly constitute a "'reference to an offer to take, failure to take, or taking of a polygraph examination'" for purposes of ruling on a mistrial motion. (People v. Flores (2020) 9 Cal.5th 371, 409.)
Another such case is People v. Sapp (2003) 31 Cal.4th 240, where a witness blurted out the fact that there was an appointment to take a polygraph, even though the prosecution and defense counsel had taken pains to eliminate any reference to the term. In that case, the court concluded no reversible error had been established where the comment was brief, did not directly tell the jury whether or not defendant had taken a polygraph test or inform it of the subject matter or results of any such test, and where the trial court immediately admonished the jury not to consider anything about a polygraph examination. (Id. at pp. 299-300.)
Similarly, in this case there was no direct reference to a polygraph test defendant had taken, because he had not yet done so. The written mention in the transcripts was brief, ambiguous, and there is no showing that the jury read or saw it. Under these circumstances, we cannot say defendant's chances of receiving a fair trial have been irreparably damaged by the inadvertent inclusion of the oblique references to something that would be inadmissible.
We also note that the challenged portion of the transcript could just as easily have been a reference to an officer's intentional disregard of an invocation of the right to remain silent per Miranda. (See Harris v. New York (1971) 401 U.S. 222, 225 [91 S.Ct. 643, 28 L.Ed. 2d 1] [holding a defendant's out-of-court statements obtained in violation of Miranda could be used to impeach the defendant's testimony]; People v. Nguyen (2015) 61 Cal.4th 1015, 1075; People v. Peevy (1998) 17 Cal.4th 1184, 1188 [Harris rule applies even when officers purposefully disregard the defendant's invocation].)
8. There was No Prosecutorial Misconduct During Closing Argument.
During closing argument, the prosecutor argued, "In the mist [sic] of that, you shouldn't forget that Nicholas McCauley lost his life on November 10th. Too many times jurors sit in the courtroom and they just sit here and they're looking at the defendant day after day, and they forget about the victim in the crime. They forget that Nicholas McCauley was only an 18-year-old boy when he was shot." Defendant objected "to this line of argument," but did not specify the basis for the objection. The court overruled the objection, and defendant now argues that the argument was an improper appeal to the passions of the jury. We disagree.
At the outset, defendant candidly admits he has forfeited the particular challenge to the propriety of the prosecutor's argument because his objection did not specify a ground. It is well settled that making a timely and specific objection at trial, and requesting the jury be admonished (if jury is not waived), is a necessary prerequisite to preserve a claim of prosecutorial misconduct for appeal. (Evid. Code, § 353, subd. (a); People v. Pearson (2013) 56 Cal.4th 393, 426; People v. Cole (2004) 33 Cal.4th 1158, 1201.) Defendant requests that we exercise our discretion to reach the merits.
As to the merits, it cannot be said the jury verdict was infected by prosecutorial misconduct and defendant does not so assert. Instead, he argues that the prosecutor "attempted" to appeal to the passions of the jury to persuade them that the killing was not an accident. Yet, "[a] prosecutor is allowed to make vigorous arguments and may even use such epithets as are warranted by the evidence, as long as these arguments are not inflammatory and principally aimed at arousing the passion or prejudice of the jury." (People v. Pensinger (1991) 52 Cal.3d 1210, 1251; see People v. Fields (1983) 35 Cal.3d 329, 362-363.) Notwithstanding that "a prosecutor may vigorously argue the case, appeals to sympathy for the victim during an objective determination of guilt fall outside the bounds of vigorous argument." (People v. Amezcua and Flores (2019) 6 Cal.5th 886, 920.) "'[A]n appeal for sympathy for the victim[, however] is out of place during an objective determination of guilt.'" (People v. Pearson, supra, 56 Cal.4th at p. 441, quoting People v. Stansbury (1993) 4 Cal.4th 1017, 1057.)
"'"[T]o prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner." [Citations.]'" (People v. Shazier (2014) 60 Cal.4th 109, 144.) In evaluating the prosecutor's comments, "'we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.'" (People v. Dykes (2009) 46 Cal.4th 731, 771-772, quoting People v. Frye (1998) 18 Cal.4th 894, 970.)
"[T]he test for misconduct is whether the prosecutor has employed deceptive or reprehensible methods to persuade either the court or the jury." (People v. Gonzales (2011) 51 Cal.4th 894, 947, citing People v. Rowland (1992) 4 Cal.4th 238, 274.) The comments in the present case did not step over the line. They were brief in nature, not disparaging of defendant or his counsel, and they were not inflammatory. There was no melodramatic oratory and no prejudice, resulting in our conclusion there was no error.
9. There Was No Cumulative Error.
Defendant argues that the cumulative effect of the errors of which he complains impaired his right to a fair trial. We disagree.
It is true that a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error. (People v. Cunningham (2001) 25 Cal.4th 926, 1009; People v. Hill (1998) 17 Cal.4th 800, 844.) However, we have found no errors, so collectively they were not prejudicial. There was no series of trial errors resulting in prejudice to defendant. Defendant was entitled to a fair trial, but not a perfect one. (People v. Cunningham, supra, at pp. 926, 1009, and cases cited; see also, People v. Jasso (2012) 211 Cal.App.4th 1354, 1378.) Defendant was not deprived of a fair trial.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. SLOUGH
J.