Opinion
D047264
12-6-2006
THE PEOPLE, Plaintiff and Respondent, v. JOHN BROWNING, Defendant and Appellant.
John Browning appeals from a judgment convicting him of second degree murder. He argues the judgment should be reversed because: (1) the trial court erred in refusing to instruct with CALJIC No. 5.44, which states that when a defendant defends from a forcible home intrusion, the defendant is presumed to have held a reasonable fear of imminent peril; (2) there is insufficient evidence to support the second degree murder verdict; and (3) the prosecutor made improper statements during closing argument to the jury. We agree the trial court erred in refusing to give CALJIC No. 5.44, but conclude there was no prejudice. We further hold substantial evidence supports the jurys verdict, and any prosecutorial misconduct during closing argument was not prejudicial. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In the early morning hours of February 26, 2005, Browning, age 60, shot and killed Timothy Gillespie at the trailer park on Old Highway 80 where Browning resided in a bus.
Christine Gillespie, Timothys wife, testified regarding the events leading to the shooting. On the evening of February 25, Browning, Timothy, and Christine went to a few bars together and visited friends. By the end of the evening both Browning and Timothy were intoxicated.
We shall refer to the victim and his wife by their first names to distinguish them from each other.
At about 1:00 a.m., Browning, Timothy, and Christine were at Brownings bus. Because Christine did not want to drive on Old Highway 80 that late, she suggested that she and Timothy stay at the bus until about 5:00 a.m. Timothy wanted to go home, and he and Christine began arguing. Christine told Timothy that she would not drive down the hill and he should not either, but that he could go without her. Timothy exited and re-entered the bus a couple of times as he continued to argue with Christine, trying to convince her to leave. As Timothy started to leave the bus a second time, he pushed
Christine aside, causing her to fall to the floor and fracture her elbow and finger. Christine was in extreme pain from her fall, and was partially unconscious, seeing "stars" from the pain. Browning was angry that Timothy had pushed Christine, and he told Timothy to leave the bus. Timothy went outside, and Browning helped Christine to the couch.
As Christines head was clearing, she heard Timothy banging on the front door of the bus. There were three steps inside the bus going down to the door, and three steps outside the bus leading up to the door. Browning was standing at the top of the stairs inside the bus. Christine decided the situation was "ridiculous," and she would "just . . . go[ ] ahead and go" even though "it was crazy [to] driv[e] down the road." She got up from the couch, put her purse over her shoulder, and stood behind Browning, trying to get to the door. The front door of the bus had a large glass window through which Christine could see Timothy standing outside. Timothy continued to knock loudly on the window of the front door. Christine noticed the front door was locked.
Browning had a can of beer in his hand and pointed at Timothy, saying, " You need to go home. You just need to go now. " Timothy responded, " Im not going to go. This is my wife in there. Im not going to leave without my wife. " Browning then pulled a gun from his coat or waistband and shot Timothy.
Christine testified that at the time of the shooting, Timothys upper torso was visible through the glass window. She stated Timothy never directed any threats to her or Browning and never attacked Browning. Further, she did not ask Browning to protect her or to keep her husband outside the bus.
Several neighbors also testified regarding their observations. Jeffrey Hamlin testified that at about 1:52 a.m. he heard a man (Timothy) screaming and yelling. Hamlin went to investigate and saw Timothy standing outside Brownings bus. Timothy was "wildly" swinging his arms, "beating on [the front door] really hard" with his fists, and "screaming at the top of his lungs." The front door of the bus was closed. Timothy was standing to the side, and then moved directly in front of the door. In Hamlins view, Timothy "was definitely pissed. He was trying to get in through the door or at the door, hitting on the door saying he wanted in . . ." but "he [was not] in yet." Other neighbors also heard loud pounding. One neighbor heard Timothy angrily yelling, "Let me in. Let me in."
When Timothy was directly in front of the door, Hamlin heard Timothy say, "Go ahead. Shoot me. I aint got nothing else to live for." Hamlin heard a shot and saw Timothy fall over. A woman screamed, "Oh, my God. What have you done, John? You shot Tim." Hamlin saw Browning walk out of the trailer and make a hand gesture toward Timothys body as if to cover it with something.
A neighbor called 911 and the police arrived about five or 10 minutes later. Timothy was lying on his back outside the door of Brownings bus with a gunshot wound to his chest. There were pieces of broken glass outside the door and a knife near Timothys right hand. Browning told police he shot Timothy, claiming Timothy had "com[e] at him with a knife."
Christine testified that Timothy was left-handed and he did not carry a knife. She stated Browning regularly carried two knives, and she identified the knife found near Timothys body as one of Brownings knives. When the police searched Browning, they found a folding knife in his pants pocket and another folding knife in his jacket. Neighbor Hamlin testified he did not see a knife or any other object in Timothys hands and did not see Timothy make stabbing motions; however, he could not see everything because he was viewing the incident from a distance of about 75 feet.
Brownings Statements to the Police
Browning agreed to be interviewed by the police. Browning told the police that Timothy and Christine were coming in and out of the bus arguing, and Timothy was beating Christine. During the argument, Timothy said he was going to kill Christine. At one point Timothy grabbed Christine and "yanked her outside the door." Browning went outside and saw Christine lying on the ground "knocked out." As Browning was helping Christine, Timothy "claw[ed]" at him and kicked him. Browning carried Christine inside the bus and laid her on the couch. He was able to wake her, and she told him her arm was broken. Browning told Timothy to leave, and Timothy said he would.
Browning thought Timothy had left, but all of a sudden Timothy broke the back window of the bus. Browning again told Timothy to leave and Timothy agreed. However, as Browning was trying to lock the front door, Timothy broke the window to the front door and jerked the door open. Timothy lunged at Browning with a knife, and Browning stopped him by closing the door. Browning retrieved his pistol from the back of the bus. Timothy again jerked the door open, still holding the knife. Timothy was screaming and yelling, saying, "Im gonna kill ya." Browning tried to slam the door shut, and Timothy fell backwards down the steps. Intending to scare Timothy away, Browning shot through the window of the door in a manner that he thought was above Timothys head. However, Timothy had come "flyin[g]" up the steps and got shot. Browning stated he could not see clearly out the door window because of the lack of lighting and the cracked window.
Browning stated the front and back windows were not broken all the way out, but were shattered with "spider web" cracks.
When asked why he did not lock the door after the first time Timothy came at him with a knife, Browning stated he "didnt know it was gonna be that bad" and he was distracted by Christines screaming that her arm was broken. At one point during the interview, Browning acknowledged the door may have been closed all the way and perhaps even locked when he shot through the window, but he did not remember locking it and did not think it was locked. When asked why he did not call 911 while the altercation was occurring, Browning stated that without his glasses he could not read the numbers on his cell phone dial but had to count them, which he did not have time to do. Also, he did not know where his glasses were. Further, from his experience the police took too long to respond and he thought he would just scare Timothy away by shooting. The police found Timothys cell phone and glasses in the jacket he was wearing at the scene of the shooting.
DISCUSSION
Instruction Regarding Presumption of Reasonable Fear
Penal Code section 198.5, "entitled the Home Protection Bill of Rights, creates a rebuttable presumption that a residential occupant has a reasonable fear of death or great bodily injury when he or she uses deadly force against an unlawful and forcible intruder into the residence." (People v. Brown (1992) 6 Cal.App.4th 1489, 1494.) Browning asserts the trial court erred in refusing to give CALJIC No. 5.44, which sets forth the section 198.5 presumption by informing the jury that if the evidence shows an intruder was forcibly entering or had entered the home, it is presumed the residential occupant acted out of a reasonable fear of imminent peril.
Subsequent statutory references are to the Penal Code.
Section 198.5 states: "Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred. . . ."
CALJIC No. 5.44 states: "If the evidence shows that: [¶] 1. A defendant . . . used force intended or likely to cause death or great bodily injury, within his or her residence; [¶] 2. The force was used against another person who was not a member of the defendants . . . family or household; [¶] 3. The person against whom the force was used, unlawfully and forcibly either was entering or had entered the residence; and [¶] 4. The defendant . . . knew or had reason to believe that an unlawful and forcible entry was occurring or had occurred; then:
You must presume that the defendant . . . at the time the force was used held a reasonable fear of imminent peril of death or great bodily injury to himself . . . or a member of his . . . family or household.
This presumption means that you must find the defendant . . . held a reasonable fear of imminent peril of death or great bodily injury . . . unless you are satisfied beyond a reasonable doubt from all of the evidence that an unlawful killing . . . occurred. . . ." (Brackets omitted.)
The trial court refused Brownings request to give the instruction because it concluded there was no evidence Timothy was inside the home at the time of the shooting.
In support of the trial courts ruling, the Attorney General argues the section 198.5 presumption should not apply when the victim is merely attempting to enter a home but has not completely entered it. We disagree. As we shall explain, under well-settled principles of burglary law, "entry" into a residence occurs when the intruder has penetrated an area where the resident has a reasonable expectation that the public cannot pass without authorization. This standard properly applies to define entry for purposes of triggering the section 198.5 presumption. Because evidence was presented from which the jury could find Timothy had penetrated such an area, the trial court should have given the requested instruction.
In People v. Brown, supra, 6 Cal.App.4th at pp. 1496-1497, and footnote 3 (Brown), the court noted that both the burglary statute and the section 198.5 presumption are premised on a recognition that a home occupant is likely to react violently to a home intrusion. Accordingly, the Brown court adopted the test used in burglary cases to determine when an entry has occurred so as to require instruction on the section 198.5 presumption. (Brown, supra, at pp. 1495-1496, 1499.)
As explained by the California Supreme Court in People v. Valencia (2002) 28 Cal.4th 1, 15, fn. 7, "the word enter as used in the burglary statute in California is something of a term of art." Entry into a building for purposes of a burglary occurs when "the outer boundary of a building" is penetrated. (Id. at p. 11.) The outer boundary of the building extends to any area where "a reasonable person would believe that a member of the general public could not pass without authorization." (Ibid.) This is a safety-based test, designed to " " forestall the germination of a situation dangerous to personal safety. " " (Id. at p. 15, fn. 7.) "[I]n general, the roof, walls, doors, and windows constitute parts of a buildings outer boundary, the penetration of which is sufficient for entry." (Id. at p. 11.) Thus, although entry onto an ordinary, unenclosed front porch does not constitute penetration of an outer boundary, the opening of a screen door to an enclosed porch or the removal of a window screen from a window are sufficiently invasive to show penetration of the building. (Ibid.)
In Brown, the court concluded that a victim who was on an unenclosed front porch had not entered the residence for purposes of the section 198.5 presumption, reasoning this was not an area where the home occupant would expect protection from unauthorized entry. (Brown, supra, 6 Cal.App.4th at pp. 1497-1498.) Although recognizing the intruder would have ready access to the home from the front porch, the court in Brown observed the expectation was "nonetheless a qualitatively lesser expectation of protection than that recognized in section 198.5, and a situation which is adequately covered by the self-defense doctrine." (Id. at p. 1498.)
Here, evidence was presented that could support a finding that Timothy had penetrated the home so as to constitute an entry and to trigger the section 198.5 presumption. When questioned by the police, Browning stated Timothy broke the back and front windows of the bus and opened the door to the bus with a knife in his hand. From this evidence, a jury could conclude Timothy penetrated the bus by breaking the window glass as well as opening the door. These acts constitute entry into areas where a resident would expect protection from unauthorized intrusion. Although there may have been conflicting evidence regarding Timothys conduct, it was not necessary for the evidence to definitively show that Timothy had penetrated the home in order for the jury to be instructed regarding the potential applicability of the presumption. It was up to the jury to first decide whether the evidence showed entry, and if so, to then apply the presumption. CALJIC No. 5.44 properly states the jury must first decide the threshold entry issue before it applies the presumption.
CALJIC No. 5.44 states: "If the evidence shows that . . . . [¶] . . . [t]he person . . . was entering or had entered the residence . . . . [¶][¶] . . . [¶] [y]ou must presume that the defendant . . . [¶] . . . held a reasonable fear of imminent peril . . . ." (Italics added.)
A trial court must give a requested instruction regarding a defense theory for which there is evidence sufficient to deserve consideration by the jury. (People v. Marshall (1997) 15 Cal.4th 1, 39; People v. La Fargue (1983) 147 Cal.App.3d 878, 886.) Because sufficient evidence was presented from which a jury could find Timothy had penetrated the outer boundary of the bus, the trial court should have instructed the jury on the section 198.5 presumption as requested by Browning.
Prejudice
We next consider whether the failure to give the instruction requires reversal. Section 198.5 was enacted "to permit residential occupants to defend themselves from intruders without fear of legal repercussions, to give the benefit of the doubt in such cases to the resident, establishing a presumption that the very act of forcible entry entails a threat to the life and limb of the homeowner." (People v. Owen (1991) 226 Cal.App.3d 996, 1005.) The section 198.5 presumption affects the burden of proof, requiring the People "to prove beyond a reasonable doubt that [the] defendant did not have a reasonable fear of imminent peril of death or injury . . . ." (Ibid.)
In Owen, the court concluded the trial court did not have a sua sponte duty to instruct on the section 198.5 presumption because other instructions given to the jury advised it that the prosecution had to prove beyond a reasonable doubt that the killing was not justifiable or excusable, and defined the various circumstances that justify or excuse a killing, including accident, self-defense, and defense of a home from a violent intruder. (People v. Owen, supra, 226 Cal.App.3d. at pp. 1005-1006.) Further, the Owen court rejected the defendants ineffective assistance of counsel claim arising from counsels failure to request a section 198.5 instruction, concluding the "defendant received the benefit of section 198.5s presumption by other instructions given to the jury and it is not reasonably probable a more favorable determination would have resulted had counsel requested" the instruction. (Owen, supra, 226 Cal.App.3d. at pp. 1007-1008.)
Here, as in Owen, the jury was given the standard instructions regarding self-defense, defense of others, defense of home, and the prosecutions burden of proof to show a nonjustifiable homicide. (See CALJIC Nos. 5.12, 5.13, 5.14, 5.15, 5.42.) The defense of home instruction (CALJIC No. 5.42) advised the jurors that a residential occupant may defend against a "violent or riotous" intruder who tries to enter the home; the occupant could use the amount of force a reasonable person would believe was necessary to resist the entry; the occupant is not required to retreat; and the occupants actions should be evaluated based on the fear that would be generated in a reasonable person in a like situation. Further, the jurors were instructed with CALJIC No. 5.15 that the burden is on the prosecution to prove beyond a reasonable doubt that the homicide was not justifiable.
CALJIC No. 5.42 states: "A person may defend his . . . home or dwelling against anyone who manifestly intends or endeavors in a violent or riotous manner, to enter that home or dwelling and who appears to intend violence to any person in that home or dwelling. The amount of force which the person may use in resisting the trespass is limited by what would appear to a reasonable person, in the same or similar circumstances, necessary to resist the violent or unlawful entry. He . . . is not bound to retreat even though a retreat might safely be made. He may resist force with force, increasing it in proportion to the intruders persistence and violence if the circumstances which are apparent to the . . . lawful occupant of the property are such as would excite similar fears and a similar belief in a reasonable person." (Brackets omitted.)
CALJIC No. 5.42 told the jurors that a residential occupant has the right to defend against a forcible intrusion in his or her home, as long as the force used is reasonable under the circumstances. CALJIC No. 5.44 would have additionally informed the jurors that a residential occupant defending from a forcible intrusion in his or her home is presumed to be operating under a reasonable fear of imminent peril (and thus presumed to have reasonably used deadly force), and they must acquit unless the prosecution overcomes this presumption. Although CALJIC No. 5.42 standing on its own does not advise the jurors of this presumption of reasonable use of deadly force, when read in conjunction with CALJIC No. 5.15—which states the prosecution has the burden to prove the killing was unjustifiable—the jury was apprised of the essential concept that it is the prosecution, not the defense, that has the burden to show a killing of a forcible intruder by a home occupant was an unreasonable use of deadly force.
Because the jury was properly advised of the prosecutions burden of proof, we evaluate the instructional error arising from the refusal to give CALJIC No. 5.44 under the standard for state law error; i.e., whether there is a reasonable probability the instructional error affected the outcome. (See People v. Wharton (1991) 53 Cal.3d 522, 571-572, and fn. 10; People v. Lawley (2002) 27 Cal.4th 102, 161-162; People v. Earp (1999) 20 Cal.4th 826, 887.) The jurors were told Browning had a right to defend in his home, and that the prosecution had the burden to prove his use of deadly force did not fall within the reasonable exercise of that right. We are satisfied that based on these instructions there is no reasonable probability the jurors would have reached a different result if the section 198.5 reasonable fear presumption had been expressly spelled out for them.
Additionally, even if the standard instructions did not adequately convey the reasonable fear presumption, the jurys second degree murder verdict indicates that it entirely rejected the claim of fear of imminent danger, reasonable or unreasonable. (See People v. Randle (2005) 35 Cal.4th 987, 994.) If the jury had reached a voluntary manslaughter verdict based on actual but unreasonable fear, this would have increased the possibility of prejudicial error arising from the refusal to underscore the presumption of reasonable fear applicable to an in-home defense. However, because the jury found the prosecution proved beyond a reasonable doubt that Browning did not even have an unreasonable belief in the need to defend, there is no reasonable probability the jury would have reached a different verdict even if it had been expressly advised of the presumption of reasonable fear.
Substantial Evidence of Second Degree Murder
Browning argues the evidence is insufficient to support the jurys verdict of second degree murder. He asserts the prosecution did not carry its burden to prove beyond a reasonable doubt that he acted with malice aforethought, and that he did not act in perfect, or at least imperfect, defense of self or others or in the heat of passion. He argues at most he can be guilty only of voluntary manslaughter.
First degree murder is an unlawful killing with malice aforethought, premeditation, and deliberation. (People v. Robertson (2004) 34 Cal.4th 156, 164.) Second degree murder is an unlawful killing with malice aforethought, but without the elements of premeditation and deliberation which elevate the killing to first degree murder. (Ibid.) Malice may be express or implied. (Ibid.) Express malice requires an intent to kill; implied malice exists when " "the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life." " (Ibid.)
To reduce a homicide to second degree murder, premeditation and deliberation may be negated by such factors as intoxication or heat of passion arising from provocation. (People v. Wickersham (1982) 32 Cal.3d 307, 329-330, disapproved on other grounds in People v. Barton (1995) 12 Cal.4th 186, 200-201; People v. Castillo (1997) 16 Cal.4th 1009, 1013.) If the provocation would not cause an average person to experience deadly passion, but it precludes the defendant from subjectively deliberating or premeditating, the crime is second degree murder. (People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1295-1296.) A homicide may be further reduced to voluntary manslaughter when there is an intent to kill or conscious disregard for life, but malice is negated by (1) heat of passion arising from provocation that would cause a reasonable person to react with deadly passion, or (2) an unreasonable but good faith belief in the need to defend ones self or others from imminent harm (i.e., "imperfect" defense of self or others). (People v. Gutierrez (2002) 28 Cal.4th 1083, 1143-1144; People v. Lasko (2000) 23 Cal.4th 101, 108; People v. Randle, supra, 35 Cal.4th at pp. 994-997.) Finally, a homicide is justified if the defendant actually and reasonably believed in the need to defend ones self or others from imminent harm (i.e., "perfect" defense of self or others). (People v. Randle, supra, 35 Cal.4th at pp. 994, 996.)
If the circumstances show the killing may have been provoked or in honest response to perceived danger, the prosecution has the burden to prove beyond a reasonable doubt that these circumstances were lacking in order to establish the element of malice for murder. (People v. Rios (2000) 23 Cal.4th 450, 461-462.) "If the [jury] determines the killing was intentional and unlawful, but is not persuaded beyond a reasonable doubt that provocation (or imperfect [defense of self or others]) was absent, it should acquit the defendant of murder and convict him of voluntary manslaughter." (Id. at p. 462.) Likewise, when the issue of a reasonable need to defend is presented by the circumstances of the case, the prosecution bears the burden of proving beyond a reasonable doubt the absence of perfect defense of self or others. (See People v. Banks (1976) 67 Cal.App.3d 379, 384.)
When reviewing a challenge to the sufficiency of the evidence, we consider the whole record in the light most favorable to the judgment to determine whether there is substantial evidence from which a reasonable trier of fact could find guilt beyond a reasonable doubt. (People v. Snow (2003) 30 Cal.4th 43, 66.) " "[I]f the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witnesss credibility for that of the fact finder." " (Ibid.)
Contrary to Brownings assertion, there is substantial evidence to support a finding that he did not act in fear of imminent peril or in reasonable heat of passion. It was the jurys prerogative to credit Christines version of the events over Brownings version. Under Christines description, Timothy had merely pushed her aside as he was leaving the bus; he did not threaten Browning or her; he did not attack Browning; and the front door was closed and locked when Browning shot out the front door window.
As to the issue of defense of self or others, the jury could reasonably infer that Browning was not in fear of imminent peril when he shot out the window because Timothy had not exhibited such a high level threat, and further the locked door was sufficient to keep Timothy out and provided an opportunity to call 911. Crediting Christines claim that her husband did not attack Browning and considering other circumstantial evidence, the jury could also infer that the knife at the scene was planted by Browning after the shooting. Although Christine may not have been fully alert during the entire altercation so as to observe everything that transpired, the jury could nevertheless conclude she observed enough to gauge whether Timothy posed a threat of imminent peril. Additionally, the jury could conclude that even under Brownings version of events, Browning did not believe there was imminent danger because immediately before the shooting Timothy was falling down the stairs, which gave Browning the opportunity to lock the front door and summon help.
The circumstantial evidence included the facts that the knife was found near Timothys right hand although he was left-handed, and Hamlin saw Browning make a gesture towards Timothys body.
With respect to the issue of heat of passion, the jury could have been persuaded that Timothy did not commit first degree murder, based on the evidence of provocation arising from the altercation between Christine and Timothy and Timothys pounding on the bus. The jury was not required to further reduce the crime to voluntary manslaughter based on reasonable heat of passion. Rather, the jury was entitled to find that the provocation would not have caused an average person to react with deadly passion. As stated, the jury could credit Christines claim that Timothy merely pushed her aside as he was leaving and was not acting in a manner suggesting he was going to deliberately hurt her or Browning. The jury could also consider that Timothy and Browning were friends in a drunken state together, and under these circumstances conclude that Timothys pounding on the bus was not so egregious that the average person would be provoked to respond with deadly force.
Although the record in this case could support a voluntary manslaughter verdict, it does not compel this result. The jury could reasonably conclude the prosecution carried its burden to prove beyond a reasonable doubt that Browning exhibited malice by shooting out the window with the intent to hit Timothy or with conscious disregard of the danger that Timothy would be hit, and that when doing so he did not believe he was defending from imminent danger nor was he acting from reasonable heat of passion.
Prosecutorial Misconduct
Browning contends several portions of the prosecutors closing arguments to the jury were improper and violated his federal and state constitutional rights to a fair trial. A prosecutors misconduct violates the federal Constitution when it is so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. (People v. Hill (1998) 17 Cal.4th 800, 819.) Conduct by the prosecutor that does not render a criminal trial fundamentally unfair under the federal Constitution is misconduct under state law if it involves the use of deceptive or reprehensible methods to attempt to persuade the jury. (Ibid.)
A prosecutor is given wide latitude to vigorously argue the case, may make remarks based on the evidence and inferences drawn from the record, and may use appropriate epithets and harsh and colorful language. (People v. Hill, supra, 17 Cal.4th at p. 819; People v. Arias (1996) 13 Cal.4th 92, 162; People v. Earp, supra, 20 Cal.4th at pp. 862-863.) However, the prosecutor should not mischaracterize the evidence, refer to facts not in evidence unless they are matters of common knowledge or drawn from common experience, misstate the law, urge the jury to view the crime through the victims eyes, or attack the integrity of defense counsel. (People v. Hill, supra, 17 Cal.4th at p. 823; People v. Bell (1989) 49 Cal.3d 502, 538; People v. Arias, supra, 13 Cal.4th at pp. 160, 162.) When evaluating the propriety of the prosecutors comments to the jury, "the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." (People v. Berryman (1993) 6 Cal.4th 1048, 1072, overruled on other grounds in People v. Hill, supra, 17 Cal.4th at p. 823, fn. 1.)
Generally, a defendant may not complain on appeal of prosecutorial misconduct unless the defendant objected in timely fashion and requested that the jury be admonished to disregard the impropriety. (People v. Hill, supra, 17 Cal.4th at p. 820.) This general rule does not apply if an objection or request for admonition would have been futile or would not have cured the harm caused by the misconduct, or when the trial court promptly overrules an objection and the defendant has no opportunity to request an admonition. (Ibid.)
When claims of prosecutorial misconduct have been preserved for appellate review, under state law we review the error for a miscarriage of justice. (People v. Bell, supra, 49 Cal.3d at p. 535.) Reversal for prosecutorial misconduct is not warranted unless there is a reasonable probability a result more favorable to the defendant would have been reached without the misconduct. (People v. Crew (2003) 31 Cal.4th 822, 839.) If prosecutorial misconduct affects the fundamental fairness of the trial creating federal constitutional error, reversal is required unless the record shows the error was harmless beyond a reasonable doubt. (People v. Cook (2006) 39 Cal.4th 566, 608; People v. Pigage (2003) 112 Cal.App.4th 1359, 1375.)
Browning failed to object to several of the prosecutors statements he now complains about on appeal. These statements were: (1) Browning was a "cowboy" who liked to get his gun when he drank and "take care of situations"; (2) Brownings habit of getting his gun when he drinks was equivalent to a drunk driver and was a "recipe for murder"; (3) defense counsel employed a common defense tactic of taking several defenses and "throw[ing] them against the wall and . . . hoping one of them sticks"; and (4) the jury could not breathe life back into Timothy but it could help him by convicting Browning of murder, and the case was important to Timothy and Christine. Browning has not shown an objection would have been futile or that an admonition would not have cured any harm from these statements. Accordingly, he cannot present these claims of error on appeal.
Defense counsel did successfully object to the reference to "a common defense tactic," but failed to object to the statement that defense counsel selected numerous defenses in the hope that one would succeed.
Moreover, these claims fail on their merits. The prosecutors statements about Browning being a cowboy who liked to pull his gun when drinking and take care of situations, and equating Browning to a drunk driver, were permissible inferences from the evidence and within the allowable range of vigorous argument. To the extent the statements regarding selecting multiple defenses and the opportunity to vindicate Timothys rights constituted an improper disparagement of defense counsel and appeal to the jurys sympathy for the victim, the comments did not rise to the level of misconduct showing an unfair trial or a miscarriage of justice. For the same reasons, we reject Timothys contention that the failure to object constituted ineffective assistance of counsel. (See People v. Stewart (2004) 33 Cal.4th 425, 509 [ineffective assistance of counsel claim requires reasonable probability of more favorable outcome].)
Christine testified that when Browning would drink alcohol, he would frequently pull out his gun, but he was not taken seriously because it was "just [Browning] being drunk."
Browning also cites several instances where he did object, and the objection was overruled. He unsuccessfully objected to the prosecutors argument that Browning had no right to fire through a door in a residential neighborhood because it could hit the next door neighbor or could hit "a little girl whos riding her bicycle down the street." Browning notes there was no evidence there were any little girls in the neighborhood in the early morning hours, and asserts the reference to a little girl mischaracterized the evidence and appealed to the passions of the jury. When read in context, there is no reasonable likelihood the jury applied the statements in an objectionable manner. When making the statements, the prosecutor was arguing to the jury that Brownings use of deadly force was unreasonable and that Browning acted with conscious disregard for life. The prosecutor asserted a reasonable person would not "fir[e] wildly" through a door, especially when the person knows there is someone on the other side, and that it was not reasonable to fire through a door in a residential neighborhood because the bullet could hit a neighbor in a home next door or hit a little girl riding her bicycle down the street. A general statement that a blind shot through a door could hit a person, such as a neighbor, was a reasonable inference to be drawn from the evidence and was not misconduct. Although the prosecutor may have strayed too far afield from the circumstances of this case when referring to a little girl on a bicycle, the comment was brief and served to illustrate the permissible statement that shooting blindly through a door was unreasonable. There is no reasonable likelihood this short statement caused the jury to deliberate based on passion rather than on the evidence.
Browning also unsuccessfully objected to the prosecutors argument pertaining to intoxication. The prosecutor stated:
"He talks about intoxication. Look to the interview. You can see he can function properly. He has all his mental faculties. As I said before, you can consider it, but it doesnt apply. And as I said before, if we let intoxication be an excuse to all—any intoxication to be an excuse or justification for crimes, then every crime would be permissible and everyone would be getting drunk committing crimes. You cant use alcohol as an excuse, especially when you have a videotape. . . . [¶] . . . . of the defendant who said, Im not intoxicated." (Italics added.)
The prosecutor made similar statements in earlier portions of his arguments, without objection by defense counsel. The prosecutor stated the defense of voluntary intoxication could be considered for all the crimes but involuntary manslaughter on the issues of premeditation, deliberation, or malice. However, the prosecutor argued the defense did not apply to this case because although Brownings alcohol level was high the videotape of his police interview showed he was not stumbling, he was answering questions appropriately, and he was thinking clearly. Later, when discussing the rule that heat of passion is measured by a reasonable person standard, the prosecutor posited: We have to have [the reasonable person] standard or else everybody would say. . . .I was drunk. Give me voluntary manslaughter. Give me nothing. Thats why these things dont apply. The law doesnt apply for these type[s] of excuses."
Browning asserts this argument misstated the law, suggesting to the jurors that contrary to the instructions they were given, intoxication could not be considered to negate intent to kill or malice. Browning mischaracterizes the prosecutors argument, which told the jury it could consider intoxication, but that the evidence did not show Browning was sufficiently intoxicated to warrant application of the intoxication defense to this case. When the prosecutors statements are read in their entirety, the general comment that alcohol should not be an excuse for a crime did not contradict the instruction that the jury could consider intoxication for purposes of negating certain mental states. To the extent the prosecutor improperly inserted his own opinion regarding intoxication rather than confining his statements to the applicable law, the misconduct was slight with no probable effect on the fairness or outcome of the trial.
In homicide cases voluntary intoxication may be considered on the issues of whether the defendant premeditated, deliberated, or harbored express malice. (§ 22, subd. (b); People v. Martin (2000) 78 Cal.App.4th 1107, 1114; People v. Boyer (2006) 38 Cal.4th 412, 469, fn. 40.)
Browning asserts the error from the prosecutors statement that alcohol intoxication should not be an excuse was compounded because the trial court instructed the jury with CALJC No. 4.20. CALJIC No. 4.20 (which in this case advised the jury that intoxication was not a defense to involuntary manslaughter and the personal use of a firearm allegation) contains a potentially misleading introductory statement that intoxication cannot make any act less criminal. (See People v. Hughes (2002) 27 Cal.4th 287, 341.) However, the jury was also immediately instructed with CALJIC No. 4.21, stating that intoxication could negate specific intent or malice. Further, as noted, the prosecutor explicitly told the jury they could consider the intoxication evidence. There is no showing the jury was misled to believe the intoxication evidence was irrelevant.
DISPOSITION
The judgment is affirmed.
We Concur:
McCONNELL, P. J.
McINTYRE, J.