Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F3582
CANTIL-SAKAUYE, J.
Defendant Kevin Terry Brinckman was convicted by a jury of the second degree murder of John Alan Lafont. (Pen. Code, § 187, subd. (a).) The jury found true the enhancement allegations that defendant intentionally and personally discharged a firearm causing the death of Lafont within the meaning of section 12022.53, subdivision (d), and personally used a firearm within the meaning of section 12022.5, subdivision (a).
Hereafter, undesignated statutory references are to the Penal Code.
The trial court sentenced defendant to state prison for an indeterminate term of 15 years to life for his murder conviction, plus a consecutive indeterminate term of 25 years to life for the section 12022.53, subdivision (d) enhancement. A three-year term for the section 12022.5, subdivision (a) enhancement was imposed, but stayed pursuant to section 654. Defendant was ordered to pay, among other things, victim restitution of $2,944, plus a 10 percent administrative fee, to the California Victim Compensation and Government Claims Board. (§ 1202.4, subd. (f)(2).)
On appeal defendant claims (1) his trial counsel provided ineffective assistance of counsel by failing to request the trial court instruct the jury with Judicial Council of California Criminal Jury Instructions (2006-2007), (CALCRIM No. 3429), (2) the trial court had a sua sponte duty to instruct on the reasonableness standard for self-defense by a physically disabled person, (3) the prosecutor committed prejudicial misconduct in closing argument, (4) cumulative error, and (5) the 10 percent administrative fee for collection of the amount from the California Victim Compensation and Government Claims Board is unauthorized by statute. Finding no merit in defendant’s claims, we shall affirm the judgment.
FACTUAL BACKGROUND
The Prosecution
In May 2006, John Lafont walked up the driveway of his neighbor, Denise Ogle, and told her to call 911 because he had been shot. When asked who had shot him, Lafont said it was defendant. Lafont fell against one of the cars in the driveway. Ogle called 911.
A Shasta County deputy sheriff responded to the call. When he arrived, he found Lafont lying on the gravel driveway. Lafont was taking deep quick breaths and sweating profusely. Lafont told the deputy he had been shot in the chest one time by defendant. The deputy located a wound on Lafont’s chest and covered it with a towel to provide pressure. Lafont’s condition deteriorated rapidly. By the time he was strapped onto a gurney and put into an ambulance, he was unconscious and his vital signs had slowed. He had a cardiac arrest enroute to the hospital. Efforts at the hospital to revive Lafont were unsuccessful and he was declared dead. Lafont had bled to death as a result of being shot through the heart and lung. Lafont had a fairly high level of methamphetamine in his body at the time of his death. There was bruising on the back of Lafont’s hand that could have resulted from punching or hitting somebody.
The forensic pathologist testified the level of methamphetamine in Lafont’s body was consistent with chronic use of methamphetamine and that chronic methamphetamine users can become highly agitated, irritable, angry, paranoid, aggressive, violent, and suffer from poor impulse control. The parties stipulated defendant had blood drawn approximately seven hours after the shooting and no alcohol or drugs were detected.
Defendant returned to his house that evening. Defendant’s friend Dennis George Dungan was at the house as defendant had earlier borrowed Dungan’s car to go to the store and Dungan had stayed to watch defendant’s children. Defendant walked into the house and told Dungan that he needed to leave because defendant had just shot and killed Lafont. Dungan was surprised as defendant and Lafont were always helping each other out, exchanging food, and assisting each other raising their kids. As far as Dungan knew, they got along fine. As Dungan went out the door of defendant’s home, he heard a gunshot. Dungan hurried to his car and left. Dungan told sheriff’s detectives that defendant had a gun in his hand when he came home and that when Dungan left defendant was holding the gun to his head.
Sheriff’s officers went to defendant’s home, announced their arrival and asked to talk to defendant. Defendant failed to respond to their efforts to contact him and several hours later a SWAT team entered defendant’s house and arrested defendant in his bedroom.
After being given his Miranda rights, defendant agreed to speak with detectives. Defendant said he and Lafont were neighbors and that they helped each other single-parenting their children. Defendant gave Lafont a ride to the town of Keswick that night. As defendant was driving him back, Lafont asked defendant to give him some tools defendant had collected for Lafont from someone who owed Lafont money. Defendant had kept the tools intending to give them to Lafont the next time Lafont went on a construction job. When Lafont asked for them in the car that night, defendant told him “no[,] you’ll sell them for dope[.]” Lafont started “slugging” defendant hard in the head. Lafont hit defendant with four or five good solid punches. Defendant tried to stop the car. The brakes locked up and the car skidded and spun around. They crashed into a fence. Lafont would not quit hitting defendant. Defendant “snapped.”
Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].
Defendant explained that he had sustained a previous head injury in 1986 when he was in military service. Defendant got jumped by six people when he was taking money from an ATM machine. He woke up in the hospital. He has been a different person ever since. He does not like being hit or cornered. He’ll do whatever it takes to get someone off of him and deal with the consequences later. He wanted Lafont to quit hitting him. Lafont’s blows hurt defendant’s head “really bad.” His head was still numb when he was speaking to the detectives.
Defendant was not sure how he got out of the car; whether he got out, fell out, or got tossed out, but both he and Lafont ended up outside of the car. Defendant denied he was angry at that point. Defendant told the detectives he carries a gun all the time. When he and Lafont were out of the car, about the distance of the trunk apart, defendant pulled the gun from his waistband, racked a round, aimed at Lafont’s chest, and “fucking capped him[.]” Defendant said he did not want to kill Lafont. After defendant fired his gun, Lafont just said “you shot me[,]” then turned and walked off. Defendant got in the car, which was still spinning at the fence, and went home. Defendant could not recall what he did with the gun. He claimed he was asleep and did not hear the officers outside his house telling him to come out.
When defendant was asked whether he and Lafont had gotten into yelling matches before, defendant described a prior incident where Lafont thought defendant had hurt Lafont’s child and was going to hit defendant. Lafont stopped when defendant claimed his innocence and Lafont found out his child was lying.
Detectives asked defendant if he felt he was justified in taking Lafont’s life. Defendant said no. He told the detectives there was “no justification for what I did.” One of the detectives told defendant “[i]f you think someone is going to kill you it’s one thing. But if you are just getting socked up . . ., you understand?” Defendant replied: “[y]ea, I know.”
Defendant did not have any visible bruising on his head or neck. He claimed he did not bruise easily.
At the end of the interview, defendant called his mother. He told her he shot Lafont because he “wouldn’t quit hitting [him.]” Defendant said it was not self-defense. Defendant said it was his fault and he deserves what he gets.
When defendant’s daughter later came to visit defendant at jail, defendant told her he did not know where the gun he had used was hidden, but then whispered twice “shopping cart.” Defendant’s daughter found the gun in a shopping cart used for a planter on defendant’s property. She took it and hid it, but when questioned by officers the next day, she led them to it.
Detectives reinterviewed defendant. This time defendant mentioned his interaction with Dungan when he got home. Defendant said he was going to shoot himself in the head, but instead shot a hole in the floor. Defendant claimed he still could not remember what he had done with the gun, but thought it might be in a basket. Defendant repeated that he had offered Lafont a ride the night of the shooting. They were not mad at each other. On the way back, Lafont started “bitching” about the tools, defendant told Lafont he would not give the tools to him because he would just pawn them for dope and then “BAM” Lafont hit defendant. Defendant got a numbness on the side of his head. Lafont kept hitting defendant as defendant tried to fend him off. Defendant “walked out” of the car and tried to get his gun. Defendant was “gonna kill him.” Defendant wanted Lafont to quit hitting him. Defendant again said he did not like being hurt anymore after his prior experience in 1986. Since then he has been scared to death of being hurt.
At trial, Lafont’s mother testified defendant and her son were close friends for over a year. She had a conversation with defendant two days before the shooting about the tools defendant had taken for Lafont. At that time defendant was unhappy Lafont had not shown him the proper respect given the length he had gone for their friendship. She also understood defendant and Lafont had quarreled not too long before the shooting and Lafont had told defendant not to come by his property anymore. She agreed that at the time of the shooting they were getting along fine. They had “mended fences.”
The Defense
Defendant testified at trial that he became disabled when he was hurt in 1986 while in military service. He has a 40 percent rated disability with the Veteran’s Administration. He has organic brain syndrome, tinnitus, memory loss, dizziness, migraines, and neck and jaw pain. He receives medical treatment at the VA center in Redding regularly. As a result of his medical condition, he is sensitive to being hit or punched. Due to the nature of his skull fracture, whenever his head is hit, he gets swelling on the brain causing uncontrollable dizziness and migraines. Defendant said Lafont knew of defendant’s skull fracture and medical condition.
Defendant testified Lafont had been his neighbor for six to seven years and they had become close friends over the past year. They were together often. Defendant knew Lafont had a quick temper, was a fighter, and was not someone to cross. Lafont had threatened defendant in the past. Defendant described the same incident he previously related to the detectives. In addition, defendant testified that a couple of days before the shooting, Lafont told people to leave his house because he was tired of everybody coming by. Defendant got his feelings hurt because Lafont included him in his comments, but they had worked that out prior to the shooting.
Around 10:30 p.m. on the day of the shooting, defendant went to see his friend Billy Spliethof, who lived in a trailer on Lafont’s property. Lafont stopped by and said he was walking into Keswick. Defendant offered him a ride. Defendant drove Lafont to Lafont’s sister-in-law’s house, where Lafont went inside for 10 to 15 minutes while defendant waited in the car.
As they were driving back, Lafont told defendant he (defendant) was stupid for giving back the tools he had taken for Lafont. Defendant said he did not give them back. Lafont got mad and demanded the tools. Defendant told him “no, you’re just going to fucking pawn them for dope.” The side of defendant’s head went numb and his vision went blurry. Defendant turned and saw Lafont with his fist balled up. He was cocking back to hit defendant again. Defendant tried to stop the car and fend off Lafont’s blows. The car skidded, hit a ditch, and spun.
When defendant tried to get out of the still-moving car, Lafont started pushing and hitting defendant on his side. Defendant hurt his leg as he fell out of the car and sprawled on the dirt beside the car. Defendant looked up and saw Lafont was also outside the car, standing with his fist balled up. It appeared to defendant that Lafont was just waiting for the car to move enough to allow him to keep coming at defendant. Defendant testified he did not think he could escape because a fence was behind him, Lafont was in front of him, the car was off to his left and his injured right leg would not support him. Defendant said he was in fear of his life. Defendant felt his only option was shooting Lafont to save himself. He had previously woken up in the hospital after an attack and he did not want it to happen again.
Defendant got out his gun, took off the safety, and chambered a round. As the car rolled by, Lafont stepped towards defendant. Defendant stood up and pointed the gun at Lafont. Lafont kept coming. Defendant said he did not want Lafont to take his gun away and use it on defendant. So defendant fired a round. Lafont stopped, looked at defendant and said “you shot me” several times. Then Lafont turned around and started walking home. Defendant did not think Lafont was shot that bad. Lafont did not stumble or fall. Defendant did not see any blood. Defendant got back in his car and went home.
When defendant got home, he told Dungan that he shot Lafont. Defendant was upset and thought his life was over. He said he was going to kill himself and put the gun to his head. Dungan ran out the door. Remembering his children were home, defendant lowered the gun and a round went off into the floor. He took the gun outside and threw it into the basket part of the shopping cart planter.
When asked why he told the detectives that the shooting was not justified, defendant said that until he met with his attorney he was under the impression that in California you were not justified in shooting anyone unless it was a home invasion or someone was in your home. That was his knowledge at the time and why he told the detectives it was not in self-defense.
On cross-examination, defendant was questioned about a number of inconsistencies between the version of events he told the detectives and his trial testimony. (E.g., the number of times Lafont hit him; whether he walked out, fell out, or was pushed out of the car; whether or not he aimed at Lafont.) He was asked why he didn’t tell the detectives where the gun was after he had told his daughter where it was. Defendant replied that he was still not sure where the gun was at the time. Asked again about his statement to the detectives that there was no justification for what he did, defendant said he made the statement because he did not think it was ever going to feel morally okay to have shot his friend. However, defendant felt Lafont was targeting defendant’s disability and trying to take defendant out. Defendant knew he was not going to last very much longer. Defendant said he was saving his own life. Defendant testified the detectives never asked whether the shooting was in self-defense and that he did not know if it was going to be “legally” okay. He told his mom it was not self-defense because he did not think it was legally justified until he talked to an attorney. Asked why his position had changed, defendant said he had the benefit of counsel.
The defense called Spliethof to corroborate defendant’s testimony of offering Lafont a ride. Spliethof testified that defendant and Lafont were irritated at each other in an earlier conversation, but whatever dispute was between them was finished when defendant said he was going to give Lafont a ride. Everything seemed fine. Spliethof said, however, he felt defendant still had something to say; otherwise he would not have offered the ride. He admitted he was just speculating.
Defendant’s daughter testified regarding defendant’s medical difficulties.
Rose Ruzanski testified she saw defendant around midday on the day of the shooting. According to her, defendant fell to his knees, grabbed his head, and complained of a headache. Defendant was down for a couple of minutes and afterwards did not seem himself. Although defendant has had such episodes for years, this one was the most severe Ruzanski had witnessed.
DISCUSSION
I.
Defense Counsel’s Failure To Request CALCRIM No. 3429 Was Not Ineffective Assistance Of Counsel
Defendant presented evidence in support of his claim at trial of self-defense that he was disabled from a previous head injury, which made him more sensitive to being hit in the head than the average person. Pointing to such evidence, defendant claims he was deprived of his constitutional right to effective assistance of counsel when his trial counsel failed to request the trial court to instruct the jury with CALCRIM No. 3429 regarding the reasonable person standard for a physically disabled person. Respondent contends there was no ineffective assistance of counsel because defendant is mentally impaired, not physically disabled. We find defense counsel’s failure to request CALCRIM No. 3429 was not ineffective assistance of counsel, but for a different reason.
“To establish ineffective assistance of counsel, a defendant must show that (1) counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the defendant. [Citation.] ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ (Strickland v. Washington (1984) 466 U.S. 668, 694 [104 S.Ct. 2052, 2068, 80 L.Ed. 2d 674].)” (People v. Scott (1997) 15 Cal.4th 1188, 1212.)
CALCRIM No. 3429, which establishes the reasonable person standard for physically disabled persons states: “A person with a physical disability is required to (know what/use the amount of care that) a reasonably careful person with the same physical disability would (know/use) in the same situation.” The Bench Notes for this jury instruction provide in part that “[i]f the case requires the prosecution to prove that the defendant ‘reasonably should have known’ a fact, then, in the first parenthesis, select the words ‘know what’ and, in the second, select ‘know.’” Alternatively, “[i]f the case requires the prosecution to prove negligence by the defendant, then, in the first parenthesis, select the phrase ‘use the amount of care that’ and, in the second, select ‘use.’” (Bench Notes to CALCRIM No. 3429 (2008 ed.) p. 1015 (Bench Notes).)
In this case defendant was solely charged with murder. The jury was instructed on the general principles applicable to murder, to distinguishing first and second degree murder, and as to the lesser included offense of voluntary manslaughter. The jury was not instructed on involuntary manslaughter. At the jury instruction conference with the court, the defense, “after reflection,” chose not to request instruction on involuntary manslaughter. The trial court concluded there was no basis to instruct on “that theory of homicide in that there would be no substantial basis to acquit on the charged greater offenses and the lesser included offense of voluntary manslaughter and then convict on a theory of homicide involving involuntary manslaughter. There wouldn’t be substantial evidence to support such a verdict based on the testimony and the evidence[.]”
Defendant raises no claim on appeal challenging either his counsel’s decision or the trial court’s conclusion.
Nothing in the proof of the offenses on which the jury was instructed required the prosecution to prove “that the defendant ‘reasonably should have known’ a fact” or that defendant was negligent. (Bench Notes, supra, CALCRIM No. 3429 at p. 1015.) Nor does self-defense require a jury to decide whether defendant reasonably should have “known” a fact or whether the defendant was negligent. As we have summarized in another case: “For an assault to be in self-defense, the defendant must actually and reasonably believe in the need to defend. ‘Although the belief in the need to defend must be objectively reasonable, a jury must consider what “would appear to be necessary to a reasonable person in a similar situation and with similar knowledge . . . .” (CALJIC No. 5.50.) It judges reasonableness “from the point of view of a reasonable person in the position of defendant . . . .” [Citation, italics omitted.] To do this, it must consider all the “‘“facts and circumstances . . . in determining whether the defendant acted in a manner in which a reasonable man would act in protecting his own life or bodily safety.”’” [Citation, italics omitted.] As we stated long ago, “[a] defendant is entitled to have a jury take into consideration all the elements in the case which might be expected to operate on his mind . . . .” [Citation.] [¶] . . . [¶] Although the ultimate test of reasonableness is objective, in determining whether a reasonable person in defendant’s position would have believed in the need to defend, the jury must consider all of the relevant circumstances in which defendant found [himself].’ [Citation.]” (People v. Jefferson (2004) 119 Cal.App.4th 508, 518, current italics added.)
Thus, the language of CALCRIM No. 3429 that “[a] person with a physical disability is required to (know what/use the amount of care that) a reasonably careful person with the same physical disability would (know/use) in the same situation” (italics added) was inapplicable to this case and, in fact, was likely to confuse the jury. Defense counsel was not ineffective in failing to request an inapplicable and confusing jury instruction.
This case is distinguishable from People v. Mathews (1994) 25 Cal.App.4th 89 (Mathews), on which defendant heavily relies. In Mathews,the defendant was convicted of exhibiting a firearm in the presence of a peace officer as a lesser included offense of assault on a peace officer with a firearm. (Id. at p. 93.) At the time Mathews committed the offense, exhibiting a firearm in the presence of a peace officer, section 417, subdivision (b) provided that “‘[e]very person who, in the immediate presence of a peace officer, draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry or threatening manner, and who knows, or reasonably should know, that the victim is a peace officer engaged in the performance of his or her duties, is guilty of a felony . . . .’ [Citation.]” (Mathews, supra, at p. 97.) The appellate court held the trial court erred in refusing a special instruction requested by Mathews, who was blind, hearing-impaired, and confined to a wheelchair (id. at p. 94), that told the jury the defendant was to be held to the standard of a reasonable person with the same physical disabilities, not to the standard of a reasonable person without disabilities. (Id. at pp. 99-100.) The standard instruction on section 417, subdivision (b) did not go far enough since it only told the jury the prosecution had to prove defendant knew or reasonably should have known that the other person was a peace officer and that the peace officer was engaged in the performance of his duties. (Mathews, supra, at p. 98 & fn. 2.)
In contrast here, the instruction given on self-defense told the jury, in pertinent part, that “[w]hen deciding whether the defendant’s beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed.” (CALCRIM No. 505, italics added.) This language directed the jury to apply a standard of a reasonable person in defendant’s circumstances; specifically, a standard of a reasonable person in a similar situation with similar knowledge, in considering whether defendant’s killing of Lafont was justified by self-defense.
Defendant has not met his burden to show ineffective assistance of counsel in his trial counsel’s failure to request CALCRIM No. 3429.
II.
The Trial Court Had No Sua Sponte Duty To Instruct The Jury Further On The Reasonable Person Standard For Physically Disabled Persons
Defendant also contends “the trial court had a sua sponte duty to instruct the jury on the reasonable person standard for physically disabled persons in the context of self-defense.” As we have just explained, the trial court did so by giving CALCRIM No. 505. And the trial court had no sua sponte duty to give CALCRIM No. 3429 as it was inapplicable and potentially confusing.
A trial court must instruct sua sponte on the general principles of law that are closely and openly associated with, and necessary to, the jury’s understanding of the case. (People v. Montoya (1994) 7 Cal.4th 1027, 1047.)
III.
There Was No Prejudicial Prosecutorial Misconduct In Closing Argument
Defendant contends the prosecutor committed prejudicial misconduct under both the state and federal Constitutions when he disparaged defendant and his counsel by implying defendant’s claim of self-defense was fabricated, argued facts not in evidence, and when he invoked sympathy for the victim in his closing argument.
“Under California law, a prosecutor commits reversible misconduct if he or she makes use of ‘deceptive or reprehensible methods’ when attempting to persuade either the trial court or the jury, and when it is reasonably probable that without such misconduct, an outcome more favorable to the defendant would have resulted. [Citation.] Under the federal Constitution, conduct by a prosecutor that does not result in the denial of the defendant’s specific constitutional rights--such as a comment upon the defendant’s invocation of the right to remain silent--but is otherwise worthy of condemnation, is not a constitutional violation unless the challenged action ‘“so infected the trial with unfairness as to make the resulting conviction a denial of due process.”’ [Citations.]” (People v. Rundle (2008) 43 Cal.4th 76, 157, overruled on another point in People v. Doolin (2009) 45 Cal.4th 390, 421.) “‘[A] defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion--and on the same ground--the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]’ [Citation.]” (People v. Stanley (2006) 39 Cal.4th 913, 952.)
A. Disparagement Of Defendant And Defense Counsel
The prosecutor in his closing argument argued defendant’s “statements changed between the time of the interview and the time that he came to tell you what happened. And that’s probably the most indicative piece of circumstantial evidence to show he’s guilty, because the best evidence of his guilt was what he told the police before he had 17 months and, to use his words, the benefit of legal counsel to come up with some story, ridiculous as it may be or at least was to me, to try to convince some of you that it could be reasonable doubt that he honestly believed that he had to defend himself.” The trial court interrupted at this point to take a morning break.
Defendant used the opportunity of the break to make a motion for mistrial based on the prosecution’s comment that defendant had 17 months with the benefit of counsel to come up with his story. Defendant claimed the implication was that defense counsel assisted defendant in committing perjury. The prosecutor contended he was just quoting the defendant.
The trial court agreed with the prosecutor that defendant testified he “had -- on reflection and greater understanding of the law and the benefit of counsel, he’d had a chance to rethink the things that he’d said to the sheriff’s detectives the day of his arrest, which would -- did not implicate his right to counsel any more -- any more than he did it in saying during his testimony.” Further, “[defendant] said what he said. He is the one who has created the insinuation that if there’s a change in his testimony, that it was -- and it’s regarded as a concoction, that it’s based on his own statements to the jury. I don’t think [the prosecutor] ever said in his argument, Well, you can tell what happened here, folks. He got together with his lawyer and they cooked up this story to tell you during his testimony. [¶] It was simply that [defendant] had said he had -- after reflecting on what he told the detectives and after he’d been able to consult with his lawyer, now he had a better story to tell -- or a different story to tell.” The trial court denied the defendant’s motion for mistrial on this ground.
As defendant notes on appeal, “[t]he unsupported implication by the prosecutor that defense counsel fabricated a defense constitutes misconduct. [Citations.]” (People v. Bain (1971) 5 Cal.3d 839, 847.) It is misconduct for a prosecutor to suggest defense counsel suborned perjury or to otherwise denigrate or attack the integrity of defense counsel. (People v. Hill (1998) 17 Cal.4th 800, 832; People v. Herring (1993) 20 Cal.App.4th 1066, 1075.) However, a prosecutor is allowed to make fair comment on the evidence and the reasonable inferences or deductions to be drawn therefrom. (People v. Welch (1999) 20 Cal.4th 701, 752; People v. Hill, supra, at p. 819.) Indeed, “[t]he prosecution has broad discretion to state its views as to what the evidence shows and what inferences may be drawn therefrom. [Citation.]” (People v. Mitcham (1992) 1 Cal.4th 1027, 1052.)
Here defendant, several times in his testimony, explained that his comments to the detectives and his mother that he did not feel he was justified in shooting Lafont and that he did not kill Lafont in self-defense reflected his misunderstanding of the law at that time and that his position had changed because he “had the benefit of counsel.” Given this testimony, we agree with the trial court that the prosecutor’s comment in argument regarding the change in defendant’s story after he had the benefit of counsel (the prosecutor specifically noted he was referring to defendant’s own words) was fair comment on the evidence.
B. Reference To Facts Not In Evidence
Defendant argued a second ground for mistrial at the same break during the prosecutor’s initial closing argument. Referencing the following argument, defendant contended the prosecutor committed prejudicial misconduct in arguing facts not in evidence.
“THE PROSECUTOR: Let me tell you what I think the evidence shows really happened. And you know, you’re free to accept this or reject it. This is just what I think is a logical scenario from the evidence. And I’m going to use some bad language to make it, you know, seem the way I think it seemed, so excuse me for that.
“I think what happened is, you know, about a month before, you know, the defendant had gotten irritated at John because John kicked him out of the house. We have two days before he tells John’s mom John isn’t respecting him the way he should be respecting him. Then he gets into that argument with John about John saying, I don’t want you coming around any more. That’s just before he offers John a ride. And he wants -- he’s going to, you know, have this out. After all he’s done for John, he wants to have this out and -- one way or the other. He invites John for a ride. And let me -- I’ll bet the conversation went something like this.
“The defendant said, you know, ‘I don’t like -- John, I don’t like the way you’re treating me. After everything I’ve done for you, after all the time I spent getting those tools for ya, you know, and -- and this is the way you’re treating me?’
“And John says, you know, ‘Kevin, you know, I’ve told you over and over, I don’t want you around. And I told you, I don’t want those fucking tools. You can’t take a hint, can you? I don’t want the tools, I don’t want you coming around, and I don’t want to have anything to do with you anymore.’
“The defendant says, ‘Why you fucking ungrateful bastard. After everything I’ve done for you. All the times I’ve taken you shopping, baby-sat for you, I went and got those tools for you.’
“John says, ‘You know what? I don’t need this. Just drive me home. Just -- we’re two minutes from my house. Just drop me off and stay out of my life.’
“And the defendant goes, ‘Well, you fucking ungrateful bastard. After everything I’ve done for you.’ Slams on the brakes, skids to a stop. You know, they spin around.
“And then John says, ‘Well, you crazy fucking bastard. You’re trying to kill both of us.
“The defendant goes, ‘You know something? You’re the bastard, not me.’
“And John says, ‘To hell will [sic] with you. I’m walking home. Just keep away from me.’
“And the defendant says, “Well, you ungrateful son of a bitch.’ Gets out of the car after him, pulls out his gun, and thinking to himself, I’m going to kill that bastard, takes the safety off, racks a round in, walks over to where John is, points the gun at his chest.
“And John says, ‘Are you crazy? Put that thing away.’
“And the defendant goes, ‘You ungrateful MF.’ Pulls the trigger.
“John goes, ‘You shot me.’ Goes down to his knees.
“The defendant shakes his head and goes, ‘Ungrateful bastard.’ Gets back in his car, drives off, leaves John to die and goes home and goes to bed and waits for the police.
“That’s what I think happened, and that’s what I think is consistent with the evidence. What the defendant testified to is totally inconsistent to the evidence.”
The trial court agreed the scenario argued by the prosecutor was “not supported by the evidence, at least not directly the dialogue he created for what was going on in the car.” However, the trial court refused to grant a mistrial because defense counsel would have the opportunity to point out to the jury that there is no evidence to support such dialogue, that it was simply the prosecutor’s theory of the case. “And the jury will understand that. They sat through the whole trial. They understand there was no testimony about the dialogue [the prosecutor] came up with to support what he feels is his theory of the case, how this event really occurred rather than how [defendant] portrayed it as having occurred.” In light of what defense counsel could do in argument, in light of the instructions it would be giving to the jury, in light of defendant’s failure to object at the time, and acknowledging the prosecutor prefaced his comments by saying it was his interpretation of what the facts show, which the jury was free to accept or reject, the trial court found no basis for granting defendant’s request for mistrial.
On appeal defendant now contends the prosecutor’s argument about “what really happened” was prejudicial misconduct following on from the prosecutor’s failed efforts to get defendant to admit through improper cross-examination that defendant invited Lafont for a ride so defendant could air his grievances about Lafont’s treatment of him.
The failure to object to the referenced portion of the prosecutor’s cross-examination of defendant forfeited the claim, if any, for misconduct in such questioning. (People v. Stanley, supra, 39 Cal.4th at p. 952.) And while we agree the prosecutor’s created dialogue in his closing argument had no basis in the evidence presented and thus, constituted misconduct, it was not prejudicial misconduct. Therefore, the trial court did not abuse its discretion in denying defendant’s motion for mistrial on this ground. (People v. Cook (2007) 40 Cal.4th 1334, 1359.) The jury would clearly have realized the prosecutor’s pretended dialogue did not come from any evidence presented; the prosecutor did not suggest otherwise. The jury was clearly instructed that nothing the attorneys say, including specifically their closing arguments, is evidence (CALCRIM No. 222) and that the jury was to decide what happened based only on the evidence presented in the trial (CALCRIM No. 200). The lack of prejudice from the comments is also apparent from defendant’s failure to immediately object at the time, as well as his choice not to subsequently address in his closing argument the prosecutor’s pretended dialogue along the lines suggested by the trial court.
C. Appeal to Sympathy
Defendant contends the prosecutor committed misconduct by appealing to the jury’s sympathy for the victim Lafont in the following closing portion of his rebuttal argument.
“PROSECUTOR: You know, throughout this trial you’ve seen the defendant and the defense attorney sitting side by side at the table, and you know, I’ve either been sitting with Sargent [sic] Shearman or sitting by myself. You never get to see my client. I have a client too, and I care as much about my client as the defense attorney cares about his client. My client is the People of the State of California. I care as much about them as the defense attorney cares about [defendant].
“[DEFENSE COUNSEL]: I’m going to object as to improper argument.
“[TRIAL COURT]: Overruled.
“[PROSECUTOR]: One of my -- one of those clients, one of those People of the State of California was John La[f]ont, who can’t be here to speak for himself. I have to speak for him, just like I speak for the People of the State of California as a whole. In the name of the People of the State of California, in the name of John La[f]ont, I’m going to ask you to go back, deliberate and consider all the evidence, come back with a verdict of first-degree murder with a gun against this defendant, Kevin Brinckman, and certainly no less than a verdict of second-degree murder against [defendant]. Thank you.”
The first portion of the argument quoted does not appeal to the jury for sympathy on behalf of Lafont. It only points out that the prosecution has a client too and that such client is the People. As such there was no misconduct and the trial court properly overruled defendant’s objection.
The second portion of the argument does improperly argue the prosecutor’s client is Lafont and implicitly appeals for sympathy to him, but defendant failed to object to these comments. As the nature of the prosecutor’s argument had changed from addressing his representation of the People to his representation of the victim, the trial court’s previous ruling on defendant’s objection did not indicate an objection to the next portion of the prosecutor’s argument would be futile. (People v. Chatman (2006) 38 Cal.4th 344, 380.) Therefore, defendant’s failure to object is not excused and his claim of prejudicial misconduct is forfeited. (People v. Samayoa (1997) 15 Cal.4th 795, 841.) In any event, even if we did not find forfeiture, we would find no prejudicial misconduct from this brief and mild concluding reference to Lafont. (People v. Kipp (2001) 26 Cal.4th 1100, 1129-1130.)
IV.
There Is No Cumulative Error
Defendant contends the cumulative effect of the errors argued in the previous sections requires reversal of his murder conviction and enhancement. We have found either no error or no prejudice as to each of defendant’s contentions. We now conclude, “the errors or potential errors, singly or in combination, were harmless under any applicable standard and did not render defendant’s trial fundamentally unfair. [Citations.]” (People v. Davis (2005) 36 Cal.4th 510, 573.)
V.
The 10 Percent Administrative Fee Was Authorized By Statute
The probation officer’s report for sentencing indicated the victim’s family had “open claims” with the Victim Assistance Program and that $2,944 in burial expenses already had been incurred. The trial court ordered defendant to pay victim restitution in the amount of $2,944 to the California Victim Compensation and Government Claims Board, plus a 10 percent administrative fee for the actual collection of that money. Defendant claims the 10 percent administrative fee must be stricken as unauthorized by statute. We disagree.
Section 1202.4, subdivision (f) provides, in pertinent part, that: “[I]n every case in which a victim has suffered economic loss as a result of the defendant’s conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court.” Section 1202.4, subdivision (f)(2) further specifies that “[r]estitution ordered pursuant to this subdivision shall be ordered to be deposited to the Restitution Fund to the extent that the victim, . . ., has received assistance from the Victim Compensation Program pursuant to Chapter 5 (commencing with Section 13950) of Part 4 of Division 3 of Title 2 of the Government Code.”
Government Code section 13963, subdivision (a), provides that the California Victim Compensation and Government Claims Board “shall be subrogated to the rights of the recipient to the extent of any compensation granted by the board.”
Section 2085.5, subdivision (b) provides, as relevant, that: “In any case in which a prisoner owes a restitution order imposed pursuant to . . . subdivision (f) of Section 1202.4, the Secretary of the Department of Corrections and Rehabilitation shall deduct a minimum of 20 percent or the balance owing on the order amount, whichever is less, up to a maximum of 50 percent from the wages and trust account deposits of a prisoner, unless prohibited by federal law. The secretary shall transfer that amount to the California Victim Compensation and Government Claims Board for direct payment to the victim, or payment shall be made to the Restitution Fund to the extent that the victim has received assistance pursuant to that program.” (Italics added.)
Section 2085.5, subdivision (c) then specifically directs the secretary to “deduct and retain from the wages and trust account deposits of a prisoner, unless prohibited by federal law, an administrative fee that totals 10 percent of any amount transferred to the California Victim Compensation and Government Claims Board pursuant to subdivision . . . (b).”
Thus, where a victim’s claims of economic loss resulting from the defendant’s conduct have been paid by the Victim Compensation Program (Gov. Code, § 13950 et seq.), the court must make the mandated order of victim restitution payable to the Restitution Fund. (§ 1202.4, subd. (f)(2).) When the defendant is imprisoned, the order of victim restitution, including an order of restitution payable to the Restitution Fund, is to be paid from his/her prison wages and trust account. (Pen. Code, § 2085.5, subd. (b).) An administrative fee for the collection of such funds is authorized by section 2085.5, subdivision (c).
Our recent opinion in People v. Eddards (2008) 162 Cal.App.4th 712, is not controlling here. The defendant in Eddards was placed on probation for three years on the condition, among others, that he make restitution to the state Restitution Fund in the amount of $1,055.62 plus a 10 percent administrative fee pursuant to section 1203.1. (Id. at pp. 714-715.) We concluded the 10 percent administrative fee was not statutorily authorized when payment is made to the fund, and so struck the fee. (Id. at pp. 715-717.)
Here, the victim restitution was ordered pursuant to section 1202.4. The administrative fee for such an order is statutorily authorized by section 2085.5, subdivision (c).
DISPOSITION
The judgment is affirmed.
We concur: DAVIS, Acting P. J. HULL, J.