Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA104787, David Sotelo, Judge.
Donald H. Glaser, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
CHANEY, J.
A jury convicted defendant Melvin Brown, a pastor at the Second Community Baptist Church, of various assault charges stemming from two separate and unrelated incidents. On appeal, defendant argues the separate sets of charges against him should not have been consolidated for trial. In addition, he claims the prosecutor committed misconduct when, during her closing argument, she referred to an absent witness’s testimony. As explained below, we affirm.
Background
1. Dialysis Center Incident, October 17, 2008
On the evening of October 17, 2008, Herbert Cerna parked his van (“the van”) in the parking lot of a Compton dialysis center and went inside to pick up a patient. Defendant was at the same dialysis center because his mother received treatment there that evening. Mr. Cerna’s van was blocking some cars, but it was not blocking defendant’s car. Mr. Cerna had seen defendant at the center many times before. That evening, Mr. Cerna saw defendant in the parking lot talking to other drivers and holding a metal wheelchair footrest. An employee at the dialysis center, Mercedes Alba, also saw defendant holding the metal footrest.
Soon after Mr. Cerna had entered the dialysis center, defendant came inside, looking and acting furious and still holding the metal footrest. Mr. Cerna went outside. Ms. Alba heard defendant speak in a raised voice, laced with profanities. He asked who drove the van, which he claimed was blocking his car.
Defendant followed Mr. Cerna outside and asked him in a “strong, ” loud voice if the van was his. When Mr. Cerna said it was his van, defendant said “Why are you blocking me” and started hitting Mr. Cerna. As he hit Mr. Cerna on the back, neck and head with his fist, defendant said “Why you fuck me, why you fuck me.” Defendant hit Mr. Cerna hard about six times. From inside the dialysis center, Ms. Alba saw defendant shove Mr. Cerna. She went outside, saw defendant hitting Mr. Cerna, and called 911.
Although Mr. Cerna tried to get away, defendant followed Mr. Cerna, grabbed his shirt and punched him hard with his right fist five or six times in the back, all the while holding the metal footrest in his left hand. Mr. Cerna stumbled and tried again to get away from defendant. Defendant grabbed Mr. Cerna’s shirt and again started striking him, this time in the neck and back with his fist. Again, Mr. Cerna tried to get away and this time was able to call 911 on his cell phone. But defendant grabbed Mr. Cerna again and held him around the neck in a choke hold, hit him in the back, and tried to grab his phone, which fell. Defendant released Mr. Cerna, but then grabbed him again and tried to push him against some cars.
The 911 tape was played for the jury.
Defendant then hit Mr. Cerna with the metal footrest in the face, just below his nose. Mr. Cerna asked defendant to stop and told him he would move the van. Ms. Alba and her boss were telling defendant to let Mr. Cerna go so he could move his van. Defendant ran to his car and drove away-without Mr. Cerna having to move the van. Mr. Cerna’s face was bleeding from the blow with the footrest. Ms. Alba gave him some gauze for the bleeding. Ms. Alba did not see Mr. Cerna hit or act aggressively toward defendant.
When sheriff deputies arrived at the scene, Mr. Cerna declined their offer of medical assistance because he did not think it was necessary. But, about 30 minutes later, Mr. Cerna’s entire body was in pain so he went to his doctor. Six months after the incident, Mr. Cerna was still going to physical therapy three times a week and taking pain medication. At trial, Mr. Cerna showed the jury the scar on his face where defendant struck him with the metal footrest.
Defendant testified on his own behalf. He denied hitting Mr. Cerna with the footrest and admitted only to using his hands to hit Mr. Cerna in the face and possibly the head two or three times. Defendant explained he was trying to figure out whose van was blocking his car because he had an emergency and needed to be with his mother, who was leaving the dialysis center with defendant’s sister. Although defendant was nervous and becoming increasingly panicked because he thought his mother was going to die and he needed to get out of the parking lot, he did not yell at anyone and politely asked whose van was blocking his car.
According to defendant, Mr. Cerna was being uncooperative. When defendant finally figured out the van belonged to Mr. Cerna, he pushed Mr. Cerna toward the van a few times, but continued to speak politely to him. Eventually, when Mr. Cerna would not get into his van and move it, defendant hit him twice in the face and possibly once on the head. Defendant was not holding the metal footrest at that point. Defendant saw a car leave the parking lot, which enabled him to inch his car around the van and drive away.
2. Motorcycle Incident, January 23, 2009
In mid-January 2009, Benjamin Munnerlyn put a down payment on a motorcycle he was considering buying from defendant. Mr. Munnerlyn took the motorcycle, but forgot to get the keys. When defendant refused to give Mr. Munnerlyn the keys until he paid the full price, Mr. Munnerlyn decided not to buy the motorcycle. He had wanted a mechanic to evaluate the motorcycle, but the mechanic could not complete a full evaluation without the keys. Munnerlyn left a message for defendant telling him he would be returning the motorcycle in the morning on January 23, 2009.
Mid-morning on the 23rd, Mr. Munnerlyn, his girlfriend Yamilett Huerta, and Bruce McKinsie brought the motorcycle to defendant at his mother’s house, where defendant was staying in his motor home. Mr. Munnerlyn used a truck to tow the motorcycle on a trailer to defendant’s home. Mr. Munnerlyn double-parked the truck in the street by defendant’s house. Ms. Huerta stayed in the truck, which she did not think was double-parked.
As Mr. Munnerlyn and Mr. McKinsie were taking the motorcycle from the trailer, defendant came over and asked where the “brain” of the motorcycle was. (The “brain” is the computer chip that runs the motorcycle’s electronics.) Mr. Munnerlyn’s mechanic had told him the bike did not have a brain and Mr. Munnerlyn told defendant “You know, it didn’t have a brain.”
Mr. Munnerlyn and Mr. McKinsie pushed the motorcycle up the driveway toward defendant’s motor home. As they were trying to stand the motorcycle upright next to the motor home, defendant came behind them, pulled out a black revolver from the back of his pants, pointed it at Mr. Munnerlyn and demanded money for the motorcycle. Mr. Munnerlyn told Ms. Huerta to call 911 and took his phone out to call 911 also. At that point, defendant said, “If you call 911, I will put a cap in your ass.” Defendant then pointed the gun at Mr. Munnerlyn’s head. Mr. McKinsie said, “I didn’t wake up for all this, ” which prompted defendant to turn toward Mr. McKinsie and to point the gun at him.
Sitting in the truck, Ms. Huerta saw a tall, light-skinned and seemingly angry African-American talking to Mr. Munnerlyn and Mr. McKinsie. She saw the man pull a gun from the back of his pants, point it at Mr. Munnerlyn and then at Mr. McKinsie. She saw both men put their hands up and heard Mr. McKinsie say “We’re not here to fight, brother.” Neither Mr. Munnerlyn nor Mr. McKinsie had a gun and neither threatened to harm defendant before he pulled out his gun. At trial, Ms. Huerta pointed to defendant as the man she saw, but then testified she did not remember him.
As Mr. Munnerlyn began to walk away, defendant followed him, yelling about an earlier deal they had involving a different motorcycle. Defendant had become extremely agitated. Mr. Munnerlyn and Mr. McKinsie returned to the truck, where Mr. Munnerlyn called 911. Ms. Huerta said the man was still pointing the gun at the men when they got in the truck, at which point she was out of the truck looking for her phone to call 911. As Mr. Munnerlyn watched defendant walk to his own car, he no longer saw the gun in defendant’s hand. Mr. Munnerlyn was still talking to the 911 operator when defendant drove away. Mr. Munnerlyn followed defendant, described defendant’s car for the operator and told her its location.
Police eventually located defendant, pulled him over and searched his car. One officer found a loaded, unregistered revolver under the driver’s seat of defendant’s car. The officer said defendant was a little upset, but cooperative.
Defendant also testified on his own behalf as to the motorcycle incident. He admitted having the gun that day and said it was under his armpit when Mr. Munnerlyn and Mr. McKinsie arrived with the motorcycle. He said his brother-in-law had given it to him the night before, but he was not sure if he wanted to keep it. He was planning to take the gun inside his mother’s house, where his brother-in-law lived, because his motor home was not secure.
As defendant was leaving his motor home to take the gun into his mother’s house, Mr. Munnerlyn called to say he was just down the street. While Mr. Munnerlyn and Mr. McKinsie were unloading the motorcycle, defendant was “preparing” an earpiece for his phone. When he was done, he put the earpiece in his ear, put the phone in his pocket, and took the gun out from under his arm. He denied being upset with Mr. Munnerlyn and denied pointing the gun at either man.
Defendant said he asked Mr. Munnerlyn about an earlier motorcycle deal they had, for which defendant had not been fully paid. Mr. Munnerlyn stated, “That is a done data, ” meaning a done deal, to which defendant replied, “Sir, I ain’t boo-boo, ” meaning a fool. Although defendant was not pointing the gun at Mr. Munnerlyn, he saw the gun and shouted to Ms. Huerta, “He’s got a gun, call the police.” Defendant tried to assure the two men that the gun had nothing to do with them. He was about to go into his mother’s house, when Mr. McKinsie threw up his hands and said they should not call the police and should just “forget this.” Defendant “tucked the gun away” under a sweater and they all walked toward their cars. Instead of going inside his mother’s house, defendant left in his car so the others would not be afraid and so they would stop yelling and bothering his mother. Once in his car, defendant decided to go to Smart & Final to buy bacon for his mother.
Defendant said that, prior to that day, he had seven or eight interactions with Mr. Munnerlyn and had sold him two motorcycles, neither of which had been paid in full. He said he had given Mr. Munnerlyn all the keys he had for the returned motorcycle. Mr. Munnerlyn told defendant he could not pay for the motorcycle and that he would return it to defendant on January 24th (not the 23rd). Defendant was not expecting Mr. Munnerlyn on the 23rd.
3. Charges Against Defendant
The People first filed a three-count information against defendant stemming from the motorcycle incident. That case was assigned case number TA104787. Counts one and two charged defendant with assault with a firearm in violation of Penal Code section 245, subdivision (a)(2). As to those counts, the information also alleged defendant personally used a firearm within the meaning of Penal Code section 12022.5. Count three charged defendant with carrying a loaded, unregistered firearm in violation of Penal Code section 12031, subdivision (a)(1).
About one week later, the People filed a two-count information against defendant stemming from the dialysis center incident. That case was assigned case number TA104882. Count one charged defendant with assault by means likely to produce great bodily injury, and count two charged defendant with assault with a deadly weapon, both in violation of Penal Code section 245, subdivision (a)(1). As to both counts, the information also alleged defendant inflicted great bodily injury within the meaning of Penal Code section 12022.7, subdivision (a).
4. Joinder and Consolidation
The prosecution moved under Penal Code section 954 to join all charges against defendant and consolidate the two cases. The trial court granted the motion and consolidated both cases under the lower case number TA104787. An amended information was filed, charging defendant with five counts: counts one through three were counts one through three in the first information (case number TA104787, relating to the motorcycle incident), and counts four and five had been counts one and two in the second information (case number TA104882, relating to the dialysis center incident).
After the case had been consolidated, but before trial, defendant unsuccessfully moved to sever counts four and five.
5. Verdict and Sentencing
The jury found defendant guilty of counts one through four and found true the special allegations as to counts one and two that defendant personally used a firearm. As to count five (assault with a deadly weapon), the jury found defendant guilty of the lesser included offense of simple assault in violation of Penal Code section 240. The jury came to no decision as to the count four enhancement (infliction of great bodily injury), and the trial court granted the prosecution’s motion to dismiss that enhancement.
The court sentenced defendant to five years in prison. Defendant appealed.
Discussion
1. Consolidation and Denial of Motion to Sever
Defendant argues consolidation of the dialysis center case with the motorcycle case was improper for two reasons. First, he claims the trial court abused its discretion in granting consolidation and denying his motion to sever. Second, he claims that, as a result of the consolidation, his trial was grossly unfair, resulting in a violation of his rights to due process. We disagree on both counts.
a. Motion to Consolidate and Motion to Sever
We review the trial court’s decision to consolidate the cases and to deny severance for an abuse of discretion. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1244 (Musselwhite).) We assess the trial court’s exercise of discretion from the court’s perspective at the time it ruled, and not in light of events that happened at trial. (Id. at p. 1246. See also id. at p. 1244 [assessing trial court’s exercise of discretion “‘in light of the showings then made and the facts then known’”].)
The trial court ruled on the motion to consolidate and the motion to sever before trial. The court had before it the preliminary hearing testimony from both cases, which did not differ materially from the prosecution testimony at trial. As to the motorcycle incident, Mr. McKinsie testified at the preliminary hearing, while Mr. Munnerlyn and Ms. Huerta did not. The same police officers testified at the preliminary hearing and at trial. Mr. McKinsie’s testimony differed from Mr. Munnerlyn’s and Ms. Huerta’s trial testimony, but not in materially significant respects. As to the dialysis center incident, only Mr. Cerna testified at the preliminary hearing. His testimony was consistent with his trial testimony. Thus, for purposes of joinder and severance, the trial court had before it the basic stories outlined above in the factual background.
In its discretion, the trial court may permit offenses that are of the same class of crime, or are connected in their commission, to be charged and tried together. (Pen. Code, § 954.) “‘“Offenses are of the same class when they possess common attributes.”’” (People v. Grant (2003) 113 Cal.App.4th 579, 586 (Grant).) Cross-admissibility of evidence is not required. (Pen. Code, § 954.1.) Here, the statutory requirements for consolidation were met because the charged offenses in both the motorcycle case and in the dialysis center case were of the same class-namely, assaultive crimes against the person. (See People v. Leney (1989) 213 Cal.App.3d 265, 269 [“Crimes are of the same class when they all involve assaultive crimes against the person”].)
Nonetheless, severance may be required if the defendant demonstrates consolidation would be so prejudicial that it would make the trial unfair. (Musselwhite, supra, 17 Cal.4th at pp. 1243-1244.) The defendant “must make a ‘“‘clear showing of prejudice to establish that the trial court abused its discretion.’”’ (People v. Soper (2009) 45 Cal.4th 759, 774 (Soper).) Although we must separately review the circumstances of each particular case, “‘certain criteria have emerged to provide guidance in ruling upon and reviewing a motion to sever trial.’” (Ibid.)
Initially, we consider whether evidence would be cross-admissible if each set of offenses was tried separately. (Soper, 45 Cal.4th at p. 774.) Here, the parties agree the evidence would not be cross-admissible.
In the absence of cross-admissible evidence, we consider whether the benefits of consolidation outweigh the possible “spill-over” effect the “other-crimes” evidence might have on the jury in its consideration of each set of offenses. (Soper, 45 Cal.4th at p. 775.) Three factors guide our analysis in this respect. First, we consider whether some of the charges are likely to inflame the jury against the defendant. (Ibid.) Defendant claims that, because defendant was alleged to have used a gun during the motorcycle incident, those charges were likely to inflame the jury against defendant as to the dialysis center charges. We are not persuaded. Although, in the motorcycle incident, defendant was alleged to have pointed a gun at the victims-which in certain circumstances could inflame a jury-there was no violent attack on either of the victims there. In contrast, at the dialysis center, defendant was alleged to have violently beaten the victim, including at one point with a metal footrest. In our view, neither case was more inflammatory than the other.
Second, we consider whether a weak case has been joined with a strong case so that the totality of the evidence may alter the outcome as to some or all of the charges. (Soper, 45 Cal.4th at p. 775.) Defendant claims the evidence supporting the motorcycle incident was “significantly weaker” than that supporting the dialysis center incident. In particular, defendant argues Mr. McKinsie’s preliminary hearing testimony was “more questionable” and could have been interpreted in such a way as to support the defense theory that defendant did not actually point his gun at Mr. McKinsie, but rather turned toward Mr. McKinsie in a way that may have unintentionally made it seem like he was pointing the gun at him. Again, we are not persuaded.
“[A]s between any two charges, it is always possible to point to individual aspects of one case and argue that one is stronger than the other. A mere imbalance in the evidence, however, will not indicate a risk of prejudicial ‘spillover effect, ’ militating against the benefits of joinder and warranting severance of properly joined charges.” (Soper, 45 Cal.4th at p. 781.) In order to demonstrate the potential for a prejudicial spillover effect, defendant must show an extreme disparity in strength or inflammatory character. (Belton v. Superior Court (1993) 19 Cal.App.4th 1279, 1284.) No significant, let alone extreme, disparity existed here.
Although defendant points to individual aspects of each case, as between the two cases, there was no significant difference in the strength of the evidence before the court. At the preliminary hearing for each case, an eyewitness testified (Mr. McKinsie for the motorcycle incident; Mr. Cerna for the dialysis center incident) and identified defendant as the perpetrator of the alleged offenses. In addition, in each case, there was evidence tending to corroborate each witness’s testimony. In the motorcycle incident case, a police officer testified he found a loaded gun in defendant’s car. And, in the dialysis center case, the trial court took notice of the scar on Mr. Cerna’s face where defendant hit him with the metal footrest. Based on the preliminary hearing testimony, there was no significant difference between the strength of the two cases.
Third, we ask whether one of the charges (but not the others) is a capital offense, or whether the joinder of the charges converts the matter into a capital case. (Soper, 45 Cal.4th at p. 775.) This factor does not affect our analysis, because this case is not a capital case.
“[T]he benefits of joinder are not outweighed-and severance is not required-merely because properly joined charges might make it more difficult for a defendant to avoid conviction compared with his or her chances were the charges to be separately tried.” (Soper, 45 Cal.4th at p. 781.) “The danger to be avoided in joinder of offenses is that strong evidence of a lesser but inflammatory crime might be used to bolster a weak case on another crime. [Citation.] That danger was not present here where neither incident was significantly stronger or more inflammatory that the other.” (People v. Hill (1995) 34 Cal.App.4th 727, 735-736.) Thus, based on the facts then before the trial court, we conclude the court did not abuse its discretion in granting the motion to join charges and denying the motion to sever those charges.
b. Constitutional Analysis
Although the trial court’s decision to consolidate and to deny severance was correct at the time it was made, we must nonetheless reverse the judgment if defendant demonstrates consolidation actually resulted in “‘gross unfairness, ’” amounting to a denial of due process. (Soper, 45 Cal.4th at p. 783.) This is a “high burden” for defendant to meet (ibid.), and we conclude he has not and cannot satisfy it here.
Defendant claims the trial was grossly unfair and due process was denied because (i) the evidence supporting the two separate sets of offenses was not cross-admissible, (ii) the prosecutor improperly asked the jury to consider or to link the two separate cases together, and (iii) the evidence of the dialysis center incident was much stronger than the evidence supporting the motorcycle incident. We consider each claim in turn.
First, although the parties agree the evidence was not cross-admissible, that alone is insufficient to demonstrate gross unfairness and a denial of due process. (See Grant, supra, 113 Cal.App.4th at p. 593.)
Second, the prosecutor did not improperly urge the jury to link or consider both incidents together. We agree with the People that, rather than urging the jury to link the two sets of charges, the prosecutor was making fair comments on the evidence. She did not tell or urge the jury to use the evidence of one set of charges to convict on the other set of charges. When commenting that defendant “lost his cool” both at the dialysis center and during the motorcycle incident, she was commenting on the evidence. Witnesses to both incidents testified defendant looked angry or furious. The prosecutor did not say, for example, because defendant lost his cool at one time, the jury should find he also lost his cool the other time. Similarly, in discussing defendant’s answers at trial, the prosecutor was commenting on the evidence.
Moreover, here, the court instructed the jury to consider each count separately, to consider only the evidence, and to remember that nothing the attorneys say is evidence. Because defendant did not request an instruction addressing the admissibility or use of other crimes evidence, he cannot now complain that one was not given. (People v. Collins (2010) 49 Cal.4th 175, 234.) And the trial court has no sua sponte duty to give such an instruction. (Grant, supra, 113 Cal.App.4th at p. 591.)
This case differs from Grant, supra, 113 Cal.App.4th 579, on which defendant relies. In Grant, the prosecutor explicitly told the jury, more than once, that it could use evidence of one offense as circumstantial evidence of the defendant’s guilt on a separate offense. (Id. at p. 590.) The prosecutor made no such comments here. Also different from our case, in Grant the defendant requested a cautionary instruction regarding the admissibility or use of other crimes evidence, but the court refused to give it. (Id. at pp. 591-592.) As noted, no such instruction was requested here.
Third, we do not agree that the evidence supporting the dialysis center charges was significantly stronger than the evidence supporting the motorcycle incident charges. Each set of charges was supported by simple and distinct evidence. (See Grant, supra, 113 Cal.App.4th at p. 593 [“Prejudice does not arise from joinder when the evidence of each crime is ‘simple and distinct, even in the absence of cross-admissibility.’”].) Eyewitnesses testified as to each set of charges. Mr. Cerna and Ms. Alba testified as to the dialysis center charges, and Mr. Munnerlyn and Ms. Huerta testified as to the motorcycle incident charges. We disagree with defendant’s position that Mr. Munnerlyn’s testimony was significantly adversely affected by either his 2002 misdemeanor convictions for petty theft or the fact he was present for a portion of Mr. McKinsie’s preliminary hearing testimony. Also, although Ms. Huerta’s and Mr. Munnerlyn’s testimony differed as to how their truck was parked, this is not a material fact and is an insignificant discrepancy. Similarly, we conclude it was immaterial that Mr. Munnerlyn and Ms. Huerta were dating at the time of the motorcycle incident. Finally, although Ms. Huerta’s identification of defendant was equivocal, her testimony on defendant’s identity was unnecessary given that defendant admitted being present with a gun during the incident. There was no dispute defendant was the person holding the gun that morning. Rather, the dispute centered on what he did with the gun.
In addition, each set of charges was supported by other evidence tending to corroborate the eyewitness testimony. As to the dialysis center charges, Mr. Cerna’s scar supported his testimony that defendant hit him with the metal footrest, and the 911 tape corroborated his story. As to the motorcycle incident charges, the use of a gun was corroborated not only by defendant’s testimony but also by the police officer’s testimony that a loaded gun was found in defendant’s car.
In fact, the jury had more difficulty coming to a decision on the dialysis center charges, finding defendant guilty of the lesser included offense on count five and coming to no decision on the great bodily injury enhancement as to count four. Consequently, if anything, it appears the evidence of the dialysis center charges was not particularly strong.
In summary, the trial court did not err in joining the charges or in denying defendant’s motion to sever, and the joinder of charges for trial did not deprive defendant of due process.
2. Prosecutor’s Closing Argument
Defendant also claims the prosecutor committed prejudicial misconduct during closing argument when discussing the motorcycle incident. In particular, defendant argues the prosecutor improperly told the jury that Mr. McKinsie-whom neither side called as a witness at trial-“was going to say the same thing the other two witnesses [Mr. Munnerlyn and Ms. Huerta] said.” Although we agree the prosecutor committed misconduct in making that statement, we conclude it was harmless.
a. Factual Background
Bruce McKinsie testified at the motorcycle incident preliminary hearing. He did not testify at trial. Unbeknownst to the trial court or counsel, Mr. Munnerlyn was in the courtroom during a portion of Mr. McKinsie’s preliminary hearing testimony. As soon as his presence became known (during Mr. McKinsie’s cross-examination), the court asked Mr. Munnerlyn to leave the courtroom, and he did. No one was sure how long he had been there. Mr. McKinsie stated he “went and got him at lunch time.”
Subsequently, during cross-examination at trial, defense counsel questioned Mr. Munnerlyn about his presence during Mr. McKinsie’s preliminary hearing testimony.
“Q And Mr. McKenzie [sic] told you that day that you needed to be in court and he brought you to court; is that correct?
“A Exactly.
“Q And you were sitting in the courtroom when he testified; is that correct?
“A Correct.
“Q You were sitting in the courtroom for about eight to ten minutes of his testimony; is that correct?
“A Approximately.
“Q And during the time that you were in the courtroom listening to his testimony you heard the prosecutor ask questions; correct?
“A I’m sure, yes.
“Q And you also saw me ask questions of Mr. McKenzie [sic]; is that correct?
“A I don’t remember you.
“Q But you were there for about eight to ten minutes?
“A Correct.
“Q And he was testifying about what he saw on that day; is that correct?
“A Yes.
“Q And actually let me be a little more clear. He was -- Mr. McKenzie [sic] was testifying about what he saw on January 23rd, 2009, at Mr. Brown’s house; is that correct?
“A Correct.”
On redirect, the prosecutor also asked Mr. Munnerlyn about his presence at the preliminary hearing while Mr. McKinsie was testifying and whether their testimonies differed.
“Q Now [defense] counsel asked you about attending the preliminary hearing in this case. Do you recall that? When Bruce [McKinsie] came to your house and said, hey, you got to be in court?
“A Actually, he came by the clubhouse.
“Q He brought you to court though?
“A Exactly.
“Q And when you came into court and you were watching the preliminary hearing, it was a different prosecutor than myself, right?
“A I don’t remember who was there that day.
“Q Okay. [¶] Had you met me prior to today though?
“A No.
“Q And on the date that you came when you sat in the courtroom were you listening to some of Bruce’s testimony -
“A Yes, Ma’am.
“Q - - Did anything Bruce said at the preliminary hearing as you sat in the audience and watch and think, oh, that’s good. I’m going to say that?
“A No.
“Q Did Bruce appear to be testifying truthfully to what he remembered and what you remembered?
“[Defense Counsel]: Objection to the form of the question. Lacks foundation.
“The Court: Rephrase.
“[Prosecutor]: Okay.
“Q Let me ask it this way. [¶] Was there anything about the way Bruce testified that has caused you to testify here in court any differently?
“A No.
“Q Did you pause for a moment? Did I pick up correctly on that?
“A I don’t know if I am answering it right. [¶] I think I probably didn’t agree with how he viewed how things happened. I probably didn’t agree 100 percent with how he said things happened.
“Q So is it fair to say when you watched Bruce testify about the same event you witnessed there were slight differences between his testimony and your testimony?
“[Defense Counsel]: Objection to the form of the question.
“The Court: Overruled.
“Q By [the Prosecutor]: Is that fair, sir?
“A Yes. Yes.
“Q Okay. [¶] And because there were differences between what he was saying and what you were saying did you change your testimony to match his?
“A No.” (Emphasis added.)
In her closing argument, the prosecutor made the following comments about Mr. McKinsie’s absence from trial:
“Now, I just want to briefly touch on Bruce [McKinsie]. Some of you are thinking why didn’t we hear from him? Because we didn’t need to. You will hear - - there was a jury instruction and the court just read it. It is instruction 300. It says, ‘Neither side is required to call all witnesses who may have information about the case or to produce all physical evidence that might be relevant.’ And this instruction we sort of talked about a little bit during jury selection when I asked you about one witness and whether one witness is enough. And all of you agreed, yeah, one witness if believed is enough. I could have just thrown up Benjamin [Munnerlyn]. He testified that the gun was pointed at both him and Bruce. That is enough. I brought you Yamilett [Huerta], as well. I didn’t need to bring you a third person. I didn’t need to go into trial another day and waste all of your time with one more person.
“Now rest assured that if he had something to say that was going to undermine the credibility of Benjamin or Yamilett or had something to say that was going to exonerate this defendant or prove to you his innocence, you better believe the defense would have called him because they have the free subpoena power of the court just like the People do. We are on equal footing in that respect. We both can subpoena any witness that we like, call them, not call them. We both have that power to do that. So rest assured, you didn’t miss anything. He was going to say the same thing the other two witnesses said.
“[Defense Counsel]: Objection, your Honor.
“The Court: Stop right there. Let’s move on.
“[The Prosecutor]: Can we vote guilty on this count without his testimony? [¶] Yes. There is nothing in the law that requires you to hear from a named victim if this element of the charge is satisfied by any other witness. And in this case both Benjamin and Yamilett satisfy the elements of the crime for Bruce, as well. And so while it may sound counterintuitive you don’t need to hear from the named victim. That is what the law says.” (Emphasis added.)
Although defense counsel objected, and the court appeared to agree with defense counsel, counsel did not request an admonition, and none was given.
b. Legal Background
At closing argument, “‘[a] prosecutor is given wide latitude to vigorously argue his or her case and to make fair comment upon the evidence, including reasonable inferences or deductions that may be drawn from the evidence.’” (People v. Dykes (2009) 46 Cal.4th 731, 768.) A prosecutor may not, however, refer to facts not in evidence. “[S]uch practice is ‘clearly... misconduct’ [citation], because such statements ‘tend[ ] to make the prosecutor his own witness-offering unsworn testimony not subject to cross-examination. It has been recognized that such testimony, “although worthless as a matter of law, can be ‘dynamite’ to the jury because of the special regard the jury has for the prosecutor, thereby effectively circumventing the rules of evidence.” [Citations.]’ [Citations.] ‘Statements of supposed facts not in evidence... are a highly prejudicial form of misconduct, and a frequent basis for reversal.’ [Citation.]” (People v. Hill (1998) 17 Cal.4th 800, 828 (Hill).)
Thus, while a prosecutor may argue in closing that the defense could have called a particular witness, the prosecutor may not tell the jury what the absent witness would have said or that the absent witness’s testimony would have been repetitive. (People v. Hall (2000) 82 Cal.App.4th 813, 817 (Hall).) By telling the jury what an uncalled witness would have said, a prosecutor may violate the defendant’s Sixth Amendment rights to confront and cross-examine an uncalled witness. (Ibid.) In such circumstances, reversal is warranted unless, beyond a reasonable doubt, the misconduct did not affect the jury’s verdict. (Ibid.)
c. Application
Initially, we agree with respondent that defendant forfeited this claim. Generally, “‘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.’” (Hill, supra, 17 Cal.4th at p. 820.) There are exceptions to this general rule, however. “A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile. [Citations.] In addition, failure to request the jury be admonished does not forfeit the issue for appeal if “‘“an admonition would not have cured the harm caused by the misconduct.”’” [Citations.] Finally, the absence of a request for a curative admonition does not forfeit the issue for appeal if ‘the court immediately overrules an objection to alleged prosecutorial misconduct [and as a consequence] the defendant has no opportunity to make such a request.’ [Citations.]” (Id. at pp. 820-821.)
Although defense counsel here objected when the prosecutor told the jury Mr. McKinsie would have said the same thing the other two witnesses said, the objection was general and was not based on prosecutorial misconduct. Moreover, contrary to defendant’s position on appeal, the trial court did not overrule the objection and, in fact, appeared receptive to the objection, telling the prosecutor to stop and move on. Nonetheless, defense counsel did not ask the court to admonish the jury. Thus, this is not a case where it would have been futile to request an admonition or where an admonition would not have cured any harm. Because defendant failed to object on misconduct grounds, and an admonition would have cured any harm, his claim on appeal is forfeited. (People v. Zambrano (2007) 41 Cal.4th 1082, 1154.)
Assuming defendant’s objection was properly preserved, however, we conclude the prosecutor committed misconduct when she told the jury Mr. McKinsie would have said “the same thing” as Mr. Munnerlyn and Ms. Huerta. Nonetheless, we are satisfied beyond a reasonable doubt that the prosecutor’s brief statement about Mr. McKinsie’s testimony did not affect the jury’s verdict. (Hall, supra, 82 Cal.App.4th at p. 817.) As Mr. Munnerlyn testified at trial, his testimony differed only slightly from Mr. McKinsie’s preliminary hearing testimony. The most significant difference between the two was that Mr. Munnerlyn testified the gun defendant pointed at them was a revolver, while Mr. McKinsie stated the gun was an automatic. For purposes of this case, however, that discrepancy was immaterial. In addition, the trial court instructed the jury to consider only the evidence and that attorney comments are not evidence. Moreover, the evidence presented supported the verdicts related to the motorcycle incident. Defendant admitted holding a gun that morning. Mr. Munnerlyn testified that defendant pointed the gun at both himself and Mr. McKinsie. And Ms. Huerta testified that the man she saw (who there was no dispute was defendant) pointed the gun at both Mr. Munnerlyn and Mr. McKinsie.
3. “Cumulative Impact”
Finally, defendant argues that, cumulatively, the trial court’s errors, the prosecutor’s misconduct and the “weakness” of the motorcycle incident evidence compel reversal of defendant’s conviction on counts one, two and three (regarding the motorcycle incident). We have concluded, however, that the trial court did not err and the prosecutor’s misconduct was not prejudicial. In addition, defendant cites no authority supporting his argument that, because the motorcycle incident evidence was allegedly “weak, ” reversal is somehow required. We reject defendant’s cumulative impact argument.
Disposition.
The judgment is affirmed.
We concur: MALLANO, P. J., ROTHSCHILD, J.