Opinion
B300844
07-13-2021
THE PEOPLE, Plaintiff and Respondent, v. DAVID CARRILLO, Defendant and Appellant.
Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. YA092058 Laura C. Ellison, Judge. Affirmed.
Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
OHTA, J. [*]
A jury convicted David Carrillo of second degree murder after he killed a man by stabbing him in the chest. On appeal, Carrillo contends there is insufficient evidence supporting his conviction, the trial court erroneously admitted evidence of his prior bad acts, the court gave incomplete jury instructions, and the prosecutor engaged in misconduct. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Carrillo killed Wesley Morejon by stabbing him twice in the chest outside a restaurant called Monster Burger. Carrillo was subsequently charged with first degree murder. It was separately alleged that he used a deadly and dangerous weapon-a knife-in the commission of the murder. The primary issue at trial was whether Carrillo acted in self-defense.
The prosecution's case consisted primarily of a surveillance video of the incident. At the start of the video, Carrillo can be seen standing outside Monster Burger, casually interacting with a man and a woman. Morejon approached the group, and he seemed to be swaying from side to side on occasion. About a minute later, Carrillo punched Morejon in the face, without any apparent provocation. Morejon stumbled backwards and struggled to take off his coat. Carrillo lunged at him and pinned him in a corner where the restaurant abuts a fence.
Morejon wrapped his arm around Carrillo's head and attempted to punch Carrillo using his free hand. Carrillo pulled a folded knife out of his pocket and exposed the blade. He moved the knife toward Morejon, but the video does not show exactly what he did with it. Morejon quickly released Carrillo's head, and Carrillo appeared to gain full control over him. At that point, Carrillo pushed Morejon away from him and left to retrieve a bag of food and a drink, which were sitting on a counter about 10 to 15 feet away. Morejon remained in the corner, struggling in vain to put on his coat.
About 30 seconds later, Carrillo walked toward his bike, which was parked very close to the corner where Morejon was still standing. Carrillo appeared to be talking to Morejon as he approached. As he got close, Morejon punched Carrillo in the face. He then quickly backed away and appeared to be preparing for a fight. Carrillo leaned down to place his food and drink on the ground, after which he lunged at Morejon.
The two men grappled on the sidewalk for several seconds. Carrillo appeared to lose his balance for a moment and stumbled backwards toward the street. While both men were still grappling on the sidewalk, Morejon swung his fist wildly at Carrillo's head. Carrillo leaned backwards and easily dodged the punch, but Carrillo's momentum took him into a marked crosswalk, behind a parked car.
Carrillo and Morejon continued to grapple in the crosswalk for a couple seconds. Carrillo then swung his arm in an upper cut motion toward Morejon's chest. As he did so, a car slowly passed by in the adjacent lane. Morejon stumbled backwards toward the car, and Carrillo appeared to be gripping onto him with his left hand. Carrillo then made a second upper cut motion toward Morejon's chest, after which Morejon stumbled backwards several more feet.
Carrillo almost immediately turned his back to Morejon and calmly walked toward his bike while putting something in his pocket. Carrillo did not look back at Morejon, who stood motionless in the street for several seconds before collapsing to the ground. Carrillo retrieved his food and drink, briefly looked in Morejon's direction, and then slowly rode off on his bike.
Morejon suffered two stab wounds to the chest, which were fatal. He also had a stab wound and cut on his neck, abrasions on his face, and cuts on his fingers. His blood was found in the area where Carrillo pulled out the knife during the initial fight.
At the time of his death, Morejon's blood alcohol level was between.23 and.25. Methamphetamine was also present in his blood.
Carrillo testified in his own defense. According to Carrillo, he and Morejon were participants in the same therapy program, which was located across the street from Monster Burger. Morejon would occasionally bump Carrillo as they walked past one another, and Morejon would try to instigate a fight. Morejon once demanded Carrillo give him a cigarette. When Carrillo refused, Morejon got in his face and balled up his fists. Carrillo did not want a confrontation, so he just walked away.
On the day of the incident, Carrillo went to Monster Burger and struck up a conversation with a man and a woman. Morejon joined the conversation, but Carrillo could not remember what was said. At some point, Morejon tried to attack Carrillo, and Carrillo attempted to block him.
Carrillo then forced Morejon into the corner, thinking he would hold him there until Morejon calmed down. Carrillo pulled out a knife to try to scare Morejon, but did not stab him. After the first fight ended, Carrillo got his food and planned to leave on his bike.
During the second fight, Morejon began pushing Carrillo into the street, and Carrillo thought Morejon was trying to kill him. Carrillo could smell exhaust from a bus and he looked around to see if there was traffic in the street. Carrillo felt cars passing by him, and he was worried he might get hit. Carrillo thought he could stab Morejon “a little bit” to get him to back away. He did not intend to kill Morejon.
Carrillo also presented evidence that he suffers from post-traumatic stress disorder (PTSD) and a substance abuse disorder. One of the symptoms of PTSD is hyper vigilance to danger and mistrust of others. Carrillo further suffers significant paranoid ideation, meaning he fears other people are going to harm him. Carrillo had been prescribed medication to stabilize his mood, but was not taking it at the time of the incident.
The jury found Carrillo not guilty of first degree murder, and guilty of second degree murder. The jury also found the weapon enhancement true. The court sentenced Carrillo to 15 years to life, plus an additional year for the weapon enhancement.
Carrillo timely appealed.
DISCUSSION
I. Substantial Evidence Supports the Murder Conviction
Carrillo contends there is insufficient evidence supporting his conviction for second degree murder. Specifically, he insists no reasonable juror could conclude he did not act in a heat of passion or self-defense. We disagree.
When an appellant challenges the sufficiency of evidence supporting a jury's verdict, the reviewing court examines whether there is substantial evidence, considered as a whole, to permit a reasonable trier of fact to find the defendant guilty of the charged crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319; see People v. Smith (2014) 60 Cal.4th 603, 617; People v. Lindberg (2008) 45 Cal.4th 1, 27.) The court's standard for determining what is “substantial evidence” is whether the evidence is “credible and of solid value.” (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
Carrillo urges us to review the evidence under a de novo standard given there is video of the incident. In support, he cites federal cases in which the courts credited video evidence over contradictory witness testimony while reviewing motions for summary judgment. (Scott v. Harris (2007) 550 U.S. 372, 388; Morton v. Kirkwood (11th Cir. 2013) 707 F.3d 1276; Carnaby v. City of Houston (5th Cir. 2011) 636 F.3d 183.) This case comes to us following a jury verdict, and the prosecution did not offer any evidence contradicting the video. Accordingly, we will apply the usual, substantial evidence standard of review.
This standard of review applies to claims involving both direct and circumstantial evidence. “ ‘We “must accept logical inferences that the jury might have drawn from the circumstantial evidence. [Citation.]” [Citation.] “Although it is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt. [Citation.]” [Citation.] Where the circumstances reasonably justify the trier of fact's findings, a reviewing court's conclusion the circumstances might also reasonably be reconciled with a contrary finding does not warrant the judgment's reversal. [Citation.]' [Citation.]” (People v. Manibusan (2013) 58 Cal.4th 40, 87.)
Murder is defined as the unlawful killing of a human being with malice aforethought. (Pen. Code, § 187, subd. (a).) Malice can be negated where the defendant acts “upon a sudden quarrel or heat of passion.” (§ 192, subd. (a).) “An intentional, unlawful homicide is ‘upon a sudden quarrel or heat of passion' (§ 192(a)), and is thus voluntary manslaughter (ibid.), if the killer's reason was actually obscured as the result of a strong passion aroused by a ‘provocation' sufficient to cause an ‘ “ordinary [person] of average disposition... to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.”' [Citations.]” (People v. Breverman (1998) 19 Cal.4th 142, 163.)
All further undesignated statutory references are to the Penal Code.
Malice also does not exist if the defendant acted in self-defense. There are two types of self-defense under California law: “perfect” self-defense and “imperfect” self-defense. (People v. Randle (2005) 35 Cal.4th 987, 994 (Randle), overruled on other grounds in People v. Chun (2009) 45 Cal.4th 1172, 1198-1199.) Both types require that the defendant actually believe he was in “imminent danger of death or great bodily injury....” (Randle, supra, at p. 994.) If that belief is reasonable “ ‘from the point of view of a reasonable person in the [defendant's] position,' ” the defendant has acted in perfect self-defense. The homicide is justified and not a crime at all. (People v. Humphrey (1996) 13 Cal.4th 1073, 1083, quoting People v. McGee (1947) 31 Cal.2d 229, 238; § 197, subd. (1).) Even if that belief is objectively unreasonable, it nonetheless negates the malice element of murder. If the defendant is guilty, at most the crime is the lesser-included offense of voluntary manslaughter. (In re Christian S. (1994) 7 Cal.4th 768, 773.)
Here, there is sufficient evidence from which the jury could conclude Carrillo was not acting in a heat of passion or self-defense. As to heat of passion, the video shows that after Morejon punched Carrillo in the face, Carrillo deliberately placed his food and drink on the ground, ensuring they would not be disturbed by the ensuing fight. Then, immediately after stabbing Morejon twice, Carrillo calmly walked away, retrieved his food and drink, and casually rode off on his bike. In light of this evidence, the jury could reasonably conclude Carrillo was not “ ‘so inflamed that he... would lose reason and judgment....' [Citation.]” (People v. Thomas (2012) 53 Cal.4th 771, 813.)
There is also sufficient evidence from which the jury could conclude Carrillo did not actually believe he was in imminent danger of death or great bodily injury, which would negate both forms of self-defense. Contrary to Carrillo's testimony, the video shows he was the initial aggressor, at least with respect to the first fight. Although Morejon was subsequently able to put Carrillo in a headlock, Carrillo quickly subdued him, ended the fight, and walked several feet away. Carrillo then retrieved his food and drink and returned to the area where Morejon was standing. That Carrillo approached Morejon so soon after the initial fight and while carrying food and a drink in his hands strongly suggests he was not in fear of Morejon at that point.
The video further shows Carrillo was not particularly fearful of Morejon even after Morejon punched him in the face. After throwing the punch, Morejon immediately retreated, which gave Carrillo a few feet of space. Rather than putting more distance between them, Carrillo calmly placed his food and drink on the ground and then lunged at Morejon. These are not the actions of someone who is fearful of imminent death or serious bodily injury.
The jury could also reasonably conclude Carrillo never believed he was in imminent danger during the ensuing tussle, either from Morejon or a passing vehicle. Morejon, whose blood alcohol level was more than twice the legal limit to drive, was visibly intoxicated; he was swaying from side to side, and he had difficulty taking off and putting on his coat. Morejon did not have a weapon, and he was primarily just grappling with Carrillo. The single time Morejon threw a punch, Carrillo easily dodged it.
Moreover, the majority of the tussle took place on the sidewalk, a safe distance from vehicles driving on the adjacent street. For the few seconds when Carrillo was actually in the street, he was facing traffic and standing in a marked crosswalk in front of a parked vehicle, where there was little risk he would be struck by a passing vehicle. The only vehicle that approached the men during the tussle was driving at a slow speed. By that time, Carrillo was in control of the fight and already preparing to stab Morejon. Then, after doing so, Carrillo immediately turned his back to Morejon and casually walked away.
On this record, the jury could have reasonably concluded Carrillo did not actually believe he was in imminent danger of death or serious bodily injury, which negated any claim of self-defense. The verdict is supported by substantial evidence.
II. The Court Properly Admitted Evidence of Carrillo's Prior Bad Acts
Carrillo contends the trial court abused its discretion by admitting evidence of two prior bad acts. The issues are forfeited and lack merit.
A. Background
Before trial, the parties and the court discussed the effect and relevance of the fact that Carrillo recently pleaded no contest to a charge of elder abuse in a separate case. Defense counsel represented that the charge arose out of an incident where Carrillo had a “tussle” with an older man before pushing the man down a set of stairs. The prosecutor argued the incident was relevant to Carrillo's credibility and to rebut any testimony that he did not know what he was doing when he stabbed Morejon. The court did not make a ruling on the issue.
During trial, the prosecutor told the court he intended to question Carrillo about the incident with the elderly man, as well as a prior incident where Carrillo was seen carrying a knife at his apartment. The prosecutor argued the evidence was admissible under Evidence Code section 1101. Carrillo reminded the court that he had previously moved to exclude evidence of both incidents. The court did not rule on the issue, and trial resumed.
During cross-examination, the prosecutor asked Carrillo if he had experience with knives, to which Carrillo responded, “not really.” The following exchange then occurred:
“Q: Let's talk about your birthday of 2014. Do you remember that?
A: No, Sir.
Q: You don't remember your birthday?
A: No.
Q: You drank six to eight 211 grape flavored drinks from 7/11?
A: No.
Q: Got a little loaded, woke up in jail?
A: I don't remember waking up in jail. I remember not remembering what happened.
Q: You don't remember waking up in jail?
A: I don't remember how I got there. I remember waking up there.
Q: Do you remember writing an apology to a paramedic because you spit in his face saying, ‘You have whatever disease I have now?'
A: I don't remember.
[¶]... [¶]
Q: Because you were in a courtyard of an apartment with a knife telling everybody you were going to fight them.
A: I don't remember that.”
The prosecutor then began to ask Carrillo about the incident with the elderly man, and Carrillo's counsel objected. During a sidebar, the prosecutor argued the evidence was relevant to show “a prior propensity for violence, and goes to his credibility of bias and memory.”
Defense counsel argued the prior incident was not sufficiently similar to the present offense to qualify for admission under Evidence Code section 1101, subdivision (b). According to counsel, the police report of the incident indicated that he and the elderly man were getting off a train. Carrillo believed the man was a police officer, and he felt him reach inside his pocket. Carrillo then pushed the man down the stairs.
The prosecutor responded, “1101(b) goes to knowledge, intent, modus operandi, absence of mistake, several theories of admissibilities. In this particular instance I can ask him questions in terms of his credibility as to whether that was an accident.... Additionally, shows intent to harm if that's established by the line of questioning.”
The court overruled Carrillo's objection “at least on 352 and 1101(b).” The court explained: “This incident on the train platform just a few months before... could potentially show that [Carrillo] was intending to harm somebody. Unlike in this case he said he didn't intend to harm, he was acting in self defense. He was not the aggressor. He was acting to save himself from getting pushed into the street, but the contention is, I guess, a few months before he pushed somebody else into danger.... I know under 352 it is prejudicial, but I think the probative effect of it is great. Your client could be found not guilty because of your lack of intent on this case. That's really the issue. It's not a who done it. It's not really motive. It's intent, it's hugely at issue.”
The prosecutor then resumed the cross-examination, and the following exchange occurred:
“Q: Do you remember pleading no contest to a 245(a)(4), assault with force likely to cause great bodily injury?
A: No.
Q: In September?
A: No.
Q: Do you recall admitting to a detective that you didn't mean to push a 72 year old man down a flight of stairs at a metro station... where he suffered breaks to his arm and leg?
A: He didn't suffer nothing. I pled guilty to it. I didn't want to go to court no more. I didn't push nobody downstairs, and he didn't break his arm.
Q: You didn't make a statement, ‘I did it. I pushed him. I don't know if I should talk about this with you,' to the detective?
A: Yes. I remember saying that.
[¶]... [¶]
A. I pushed a guy down that was attacking me. They should have had the video for it. I pled guilty to it, they gave me three years. I thought I would have time served. I hate coming to court, that's why I pled guilty to it.
Q: So it's not your fault that a 72 year old man broke his leg and arm?
A: If he broke anything I would have went to jail that day. They didn't even file charges that day.”
B. Relevant Law
Evidence Code section 1101, subdivision (a), sets forth the general rule that propensity evidence, including evidence of specific instances of prior conduct, is not admissible to prove a defendant's conduct on a specific occasion. (People v. Jackson (2016) 1 Cal.5th 269, 299.) Evidence Code section 1101, subdivision (b), however, clarifies that evidence of a defendant's prior acts is admissible “when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, ...) other than his or her disposition to commit such an act.” (§ 1101, subd. (b).)
The degree of similarity between the charged and uncharged acts is a key factor in determining admissibility under section 1101, subdivision (b), and “there exists a continuum concerning the degree of similarity... depending upon the purpose for which introduction of the evidence is sought[.]” (People v. Soper (2009) 45 Cal.4th 759, 776.) The least degree of similarity is required to prove intent. (Ibid.) “By contrast, a higher degree of similarity is required to prove common design or plan, and the highest degree of similarity is required to prove identity.” (Ibid., fns. omitted.)
We review a trial court's admission of prior bad acts evidence for an abuse of discretion. (People v. Kipp (1998) 18 Cal.4th 349, 369.) “A court abuses its discretion when its rulings fall ‘outside the bounds of reason.' ” (People v. Ochoa (1998) 19 Cal.4th 353, 408.) We will uphold the court's decision “unless it exercised its discretion in an arbitrary, capricious, or patently absurd manner. [Citations.]” (People v. Thomas, supra, 53 Cal.4th at p. 806.)
C. Analysis
Carrillo argues the trial court should have excluded the evidence regarding the incident in which he was seen carrying a knife on his birthday, as well as evidence showing he assaulted an elderly man.
The Attorney General contends Carrillo forfeited his arguments related to the prior incident involving a knife. We agree. Generally, the failure to raise a timely objection to the admission of evidence at trial forfeits the issue on appeal. (People v. Booker (2011) 51 Cal.4th 141, 170.) Here, Carrillo did not object when the prosecutor questioned him regarding the prior incident with the knife. Although it appears he moved to exclude the evidence before trial, the court never issued a final ruling on his motion. Carrillo's failure to renew his objection and press for a ruling forfeits the issue on appeal. (People v. Lewis (2008) 43 Cal.4th 415, 481 [“Failure to press for a ruling on a motion to exclude evidence forfeits appellate review of the claim because such failure deprives the trial court of the opportunity to correct potential error in the first instance.”], disapproved on other grounds by People v. Black (2014) 58 Cal.4th 912, 919.)
As to the incident involving the elderly man, although far from overwhelming, there are sufficient similarities with the charged offense such that the evidence was admissible to show Carrillo's intent. The two incidents occurred in close temporal proximity-only three months apart. In both, Carrillo used potentially deadly force after tussling with the victim. Carrillo then insisted the victim was the initial aggressor and his use of force was justified to defend himself. As our Supreme Court has explained, “ ‘ “the recurrence of a similar result... tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act....”' ” (People v. Demetrulias (2006) 39 Cal.4th 1, 16, italics omitted.) Here, the jury could have reasonably concluded it was unlikely that Carrillo had the bad luck to be attacked twice within a relatively short period of time in ways that required he use potentially deadly force to protect himself. (Ibid.) Accordingly, the court did not abuse its discretion in admitting the evidence under Evidence Code section 1101, subdivision (b).
Carrillo contends that because the prior incident involved an assault, it was irrelevant to show he murdered Morejon, which required an intent to kill. The prosecutor, however, was required to prove more than just an intent to kill; he also had to prove Carrillo lacked the requisite intent for self-defense, i.e., he did not actually believe he was in imminent danger of death or great bodily injury. The prior assault was relevant on that issue as it tended to show Carrillo used force in order to harm Morejon, rather than to defend himself.
Even if the evidence were not admissible under Evidence Code section 1101, subdivision (b), we would uphold the trial court's decision because the evidence was alternatively admissible under Evidence Code section 1103. That section permits the prosecutor to offer evidence of a defendant's character for violence-including specific instances of conduct-after the defendant offers evidence that the victim had a character for violence. (Evid. Code, § 1103, subd. (b).) Here, the prosecutor introduced evidence of the prior incident after Carrillo testified that Morejon previously threatened him, bumped into him, and tried to start fights with him. As such, it was admissible under Evidence Code section 1103 to show Carrillo acted in conformity with a character for violence.
Evidence Code section 1103, subdivision (b), provides as follows: “In a criminal action, evidence of the defendant's character for violence or trait of character for violence (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) is not made inadmissible by Section 1101 if the evidence is offered by the prosecution to prove conduct of the defendant in conformity with the character or trait of character and is offered after evidence that the victim had a character for violence or a trait of character tending to show violence has been adduced by the defendant....”
Carrillo does not contest that the evidence was admissible under Evidence Code section 1103. Instead, he simply points out that the prosecutor did not make such an argument below. Carrillo, however, overlooks that although the prosecutor did not directly cite the statute, he did assert the evidence was admissible to show Carrillo's propensity, i.e., character, for violence. Evidence Code section 1103 is the only statute that would allow the admission of the evidence for that purpose. Moreover, because it is “axiomatic that we review the trial court's rulings and not its reasoning” (People v. Mason (1991) 52 Cal.3d 909, 944), it is irrelevant that the court may not have considered Evidence Code section 1103 when it determined the evidence was admissible. (See People v. Brown (2004) 33 Cal.4th 892, 901 [“If a judgment rests on admissible evidence it will not be reversed because the trial court admitted that evidence upon a different theory, a mistaken theory, or one not raised below.”].) It is enough that the court could have admitted it under that statute. (People v. Jackson (2014) 58 Cal.4th 724, 754 [trial court's admission of evidence based on the mistaken belief that it was relevant to show the defendant's remorse was not error where the evidence was relevant to show consciousness of guilt]; People v. Mason, supra, at p. 944 [“Since the evidence was admissible to corroborate defendant's confession, it is irrelevant that the trial court might have had a different theory of admissibility in mind.”].)
Carrillo alternatively contends, albeit in passing, that the trial court should have excluded the evidence under Evidence Code section 352. Specifically, he argues the evidence was unduly prejudicial given the substantial risk the jury would use it as proof of his propensity for violence. The trial court instructed the jurors they could use the evidence only for the limited purposes of deciding Carrillo's intent and the absence of mistake. We presume the jurors followed the court's instruction, and Carrillo does not explain why that presumption does not hold here. (People v. Williams (2017) 7 Cal.App.5th 644, 682.) In any event, as discussed above, the evidence was admissible under Evidence Code section 1103 to show Carrillo's propensity for violence. As a result, any risk that the jury would have used it for that purpose does not provide grounds for reversal.
Section 352 gives the trial court discretion to exclude otherwise admissible evidence if its “probative value is substantially outweighed by the probability that its admission will... create substantial danger of undue prejudice....” (Evid. Code, § 352, subd. (b).)
III. Detective Hardiman's Testimony Implying a Belief in Carrillo's Guilt Does Not Require Reversal
Carrillo argues reversal is required because the trial court improperly admitted testimony from the investigating detective implying he believed Carrillo was guilty of murder. We find any error harmless.
“ ‘A witness may not express an opinion on a defendant's guilt. [Citations.] The reason for this rule is not because guilt is the ultimate issue of fact for the jury, as opinion testimony often goes to the ultimate issue. [Citations.] ‘Rather, opinions on guilt or innocence are inadmissible because they are of no assistance to the trier of fact. To put it another way, the trier of fact is as competent as the witness to weigh the evidence and draw a conclusion on the issue of guilt.”' [Citations.]” (People v. Vang (2011) 52 Cal.4th 1038, 1048.)
On direct examination, the prosecutor asked the investigating detective, Francis Hardiman, how many homicides he had investigated, and how many of those he recommended be charged as murders. Carrillo objected on relevance grounds, which the court overruled. Hardiman responded that he recommend murder charges on approximately 30 out of 50 cases. Near the end of the direct examination, the prosecutor asked Hardiman how many of the 30 cases were on video. Carrillo again objected on relevance grounds, which the court overruled. Hardiman responded that approximately seven cases were caught on video.
We agree with Carrillo that a reasonable inference from the testimony is that Hardiman believed Carrillo is guilty of murder. Indeed, we can conceive no other purpose for which the prosecutor would have elicited the testimony, and the Attorney General does not offer any.
Reversal, however, is not required because the testimony was not prejudicial. (See People v. Leonard (2014) 228 Cal.App.4th 465, 494 [admission of improper opinion of a defendant's guilt is subject to harmless error analysis].) We think the jurors would have assumed the lead investigator testifying for the prosecution believed Carrillo is guilty of the charged offenses, even if he did not say as much. Hardiman's testimony, moreover, did not imply his opinion was based on evidence not presented to the jury. The court also instructed the jurors “it is up to all of you, and you alone, to decide what happened.” We presume the jurors followed the court's instruction, and nothing in the record suggests otherwise. (People v. Williams, supra, 7 Cal.App.5th at p. 682.) Accordingly, to the extent the court erred in admitting the testimony, it was harmless under both the state and federal standards. (See People v. Riggs (2008) 44 Cal.4th 248, 300 [investigator's “unsurprising” opinion that defendant was guilty was not prejudicial].)
IV. The Court Was Not Required to Instruct on Assault with a Deadly Weapon
Carrillo contends the trial court erred in failing to instruct the jury on assault with a deadly weapon as a lesser included offense of murder. We disagree.
A trial court has a duty to instruct on lesser included offenses, “when the evidence raises a question as to whether all of the elements of the charged offense were present....” (People v. Breverman, supra, 19 Cal.4th at p. 154.) “ ‘Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser.' [Citation.]” (People v. Jennings (2010) 50 Cal.4th 616, 667-668; see People v. Martinez (2012) 208 Cal.App.4th 197, 199.) On appeal, a defendant's claim that the trial court failed to instruct on a lesser included offense is subject to de novo review. (People v. Booker, supra, 51 Cal.4th at p. 181; People v. Licas (2007) 41 Cal.4th 362, 366.)
As Carrillo seems to concede, neither the statutory elements of murder, nor the facts actually alleged in the accusatory pleading, include all the elements of assault with a deadly weapon. As its name suggests, assault with a deadly weapon requires use of a “deadly weapon or instrument.” (§ 245, subd. (a)(1).) Murder has no such requirement (§ 187, subd. (a)), and the murder charge in the information did not allege that Carrillo used a deadly weapon or instrument. Although the information included a weapon enhancement alleging Carrillo used a knife in the commission of the murder, the California Supreme Court held in People v. Wolcott (1983) 34 Cal.3d 92 (Wolcott), that such enhancements must not be considered in determining lesser included offenses. (Id. at p. 101.) The trial court, therefore, was not required to instruct on assault with a deadly weapon as a lesser included offense.
Carrillo insists that Wolcott is no longer good law because it is inconsistent with the United States Supreme Court's subsequent decision in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi). In Apprendi, the high court held the federal constitution requires that, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490.) Carrillo further suggests Wolcott is inconsistent with People v. Seel (2004) 34 Cal.4th 535, in which the California Supreme Court interpreted and applied Apprendi in the context of the federal double jeopardy clause, and held enhancements must be considered in connection with the multiple conviction rule.
We reject Carrillo's assertion that Wolcott is no longer good law. Seven years after Apprendi, and three years after Seel, the California Supreme Court affirmed the vitality of Wolcott in People v. Sloan (2007) 42 Cal.4th 110 (Sloan). In that case, the court held that enhancement allegations must not be considered for purposes of the rule prohibiting multiple convictions based on necessarily included offenses. In doing so, the court explained that its holding was “in accord with the longstanding rule that enhancements may not be considered as part of an accusatory pleading for purposes of identifying lesser included offenses.” (Sloan, supra, at p. 114, citing Wolcott, supra, 34 Cal.3d at pp. 96, 100-101.)
In People v. Alarcon (2012) 210 Cal.App.4th 432, the Court of Appeal expanded on the reasons why Apprendi did not vitiate Wolcott. As the court explained, the rule requiring instructions on lesser included offenses “arises only under California law, insofar as it operates in noncapital cases. [Citations.] California law thus determines the balancing of interests reflected in the rule, including the weight properly attached to the interest in the discovery of truth. [Citations.] For this reason, Wolcott controls the application of the instructional rule, insofar as the rule relies on the accusatory pleading test.” (People v. Alarcon, supra, 210 Cal.App.4th at p. 438.) We agree.
V. The Court's Instruction on Imperfect Self-Defense Was Not Incomplete
Carrillo contends the trial court's instruction on imperfect self-defense was incomplete and legally unsound. We disagree.
We reject the Attorney General's contention that Carrillo forfeited this issue by failing to object to the instruction in the trial court. (See People v. Hudson (2006) 38 Cal.4th 1002, 1012 [the forfeiture rule does not apply when the trial court gives an instruction that is an incorrect statement of the law].)
The court instructed the jurors with CALCRIM No. 571 as follows: “A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because he acted in imperfect self-defense.... The defendant acted in imperfect self-defense if:” (1) “The defendant actually believed that he was in imminent danger of being killed or suffering great bodily injury;” and (2) “The defendant actually believed that the immediate use of deadly force was necessary to defend against the danger;” but (3) “At least one of those beliefs was unreasonable.”
According to Carrillo, there are three theories under which a jury may find a defendant acted in imperfect self-defense: (1) he actually but unreasonably believed he was in imminent danger of death or great bodily injury; (2) he actually but unreasonably believed the use of deadly force was necessary to defend against the danger; or (3) he used excessive force in defending against the danger. Carrillo contends the court's instruction informed the jurors of the first two theories, but failed to inform them of the third theory concerning the use of excessive force.
As Carrillo concedes, however, the use of excessive force negates malice and constitutes manslaughter only if the defendant honestly but unreasonably believed the degree of force used was in fact necessary. (People v. Mayfield (1997) 14 Cal.4th 668, 777, abrogated on other grounds by People v. Scott (2015) 61 Cal.4th 363.) This qualifier essentially mirrors the second theory for imperfect self-defense: an actual but unreasonable belief that the use of deadly force was necessary to defend against the danger. Because a defendant who kills under such a belief necessarily uses excessive force, Carrillo's suggested “excessive force” theory is actually just another way of phrasing the second theory for imperfect self-defense. The court's instruction, therefore, was not incomplete in the manner Carrillo suggests.
VI. There Was No Prejudicial Prosecutorial Misconduct
Carrillo contends the prosecutor engaged in misconduct by disparaging defense counsel, citing facts not in evidence, and misstating the law. Reversal is not required on any of these bases.
We agree with the Attorney General that Carrillo forfeited some of his claims by failing to object to the prosecutor's remarks and request the trial court admonish the jury to disregard them. (See People v. Thornton (2007) 41 Cal.4th 391, 454 [“defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion, and on the same ground, the defendant objected to the action and also requested that the jury be admonished to disregard the perceived impropriety”].) Nonetheless, we will address the merits of Carrillo's arguments in order to forestall his derivative ineffective assistance of counsel claim.
A. Relevant Law
A prosecutor's improper behavior constitutes a violation of the federal constitution where it so infects the trial with unfairness as to make the resulting conviction a denial of due process. (People v. Valdez (2004) 32 Cal.4th 73, 122; see People v. Cash (2002) 28 Cal.4th 703, 733.) Conduct that does not render a defendant's trial fundamentally unfair under the federal constitution may still be prosecutorial misconduct under state law when it involves the use of deceptive or reprehensible methods in an attempt to persuade the court or the jury. (People v. Gionis (1995) 9 Cal.4th 1196, 1215.) In examining whether such methods were employed, the defendant need not show bad faith on the part of the prosecutor. (People v. Hill (1998) 17 Cal.4th 800, 823 (Hill).) At the same time, however, a reviewing court should not “ ‘ “lightly infer” that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements. [Citation.]' ” (People v. Wilson (2005) 36 Cal.4th 309, 337-338.) Prosecutorial misconduct under state law requires reversal when a reviewing court finds it is reasonably probable the result of a defendant's trial would have been more favorable without the misconduct. (People v. Cook (2006) 39 Cal.4th 566, 608.)
B. Analysis
1. Facts Not in Evidence
Carrillo asserts the prosecutor engaged in misconduct during his rebuttal argument by repeatedly referencing facts not in evidence. (See Hill, supra, 17 Cal.4th at p. 828 [it is well established that a prosecutor's reference to facts not in evidence is misconduct].) First, he contends the prosecutor improperly implied there was audio accompanying the surveillance video. At one point, for example, the prosecutor stated, “there's a woman and a man [in the video] facing the victim in the corner probably asking him if he's okay. I don't know, can't hear it. It would make sense if you see someone bleeding from the face, you also see them turn to address David. Man, that's not cool, something along those lines.” At another point, the prosecutor remarked, “[Carrillo] might put distance between himself after he cuts [Morejon], potentially because the bystander said, ‘Hey, come on.' I don't know, wasn't there. The body language seems to suggest that.”
We do not agree with Carrillo that the jury would have understood the prosecutor's remarks to imply there was audio accompanying the video. The prosecutor repeatedly informed the jury there was no audio. He also made clear that he did not know what the witnesses said, and he was merely suggesting plausible inferences to draw from the video evidence. The prosecutor acted well within his wide latitude to discuss and draw inferences from the evidence presented at trial. (People v. Shazier (2014) 60 Cal.4th 109, 127.)
Carrillo next takes issue with the prosecutor's remark that Carrillo's expert “didn't watch the [surveillance] video when she made her opinions.” Carrillo insists this falsely conveyed to the jury that the expert had not watched the video before she testified at trial. We do not think it is reasonably likely the jury interpreted the prosecutor's remarks in that way. Instead, it is clear from context the prosecutor was referring to the expert's testimony that she watched the video for the first time after she had already drafted the report containing her opinions. The prosecutor's remarks were a proper comment on that testimony.
Carrillo additionally complains that the prosecutor referred to an affidavit that was not admitted into evidence. The affidavit was referenced earlier in trial after Hardiman testified that there was a single fight between Carrillo and Morejon. On cross-examination, Carrillo impeached this testimony by pointing to an affidavit in which Hardiman referred to two separate fights. The affidavit was not admitted into evidence.
During his rebuttal argument, the prosecutor told the jury “I have the same affidavit that was testified to in court. [Hardiman] signed it under oath and penalty of perjury. Just like the defense asked him, and the paragraph statement right before it, the three words, the fight resumes.” The court sustained Carrillo's objection and admonished the jury to “disregard that last portion. I don't believe that was in evidence.”
Although the prosecutor clearly acted inappropriately by referencing portions of the affidavit that were not admitted into evidence, the court's admonition was sufficient to cure any prejudice. (See People v. Tate (2010) 49 Cal.4th 635, 688-689 [“given the fleeting nature of the prosecutor's remark, the court's admonition to the jury to disregard it was sufficient to cure any harm”]; People v. McNally (2015) 236 Cal.App.4th 1419, 1429 [the prejudicial effect of inadmissible comments “ ‘may be corrected by judicial admonishment; absent evidence to the contrary the error is deemed cured' ”].) Even if the admonition were not sufficient, we would still find the comments do not warrant reversal. The prosecutor referred to the affidavit during rebuttal in order to rehabilitate Hardiman's credibility. Hardiman, however, was not a key witness for the prosecution, and his main purpose was simply to authenticate and provide narration for the surveillance video. Whether the jury found him credible, therefore, was largely irrelevant. Under these circumstances, the prosecutor's reference to the affidavit did not infect the trial with unfairness so as to make the resulting conviction a denial of due process, nor is it reasonably probable the result of the trial would have been more favorable without the inappropriate conduct.
2. The Prosecutor Did Not Prejudicially Denigrate Defense Counsel
Carrillo argues the prosecutor improperly denigrated defense counsel during his rebuttal argument. As explained in Cash, supra, 28 Cal.4th at pages 732-733, “[w]hen the prosecution denigrates defense counsel, there is a risk the jury will shift its attention from the evidence to the alleged defense improprieties. [Citations.].... For defendant's claim to prevail on the merits we ask ‘ “whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.”' ”
Carrillo first contends the prosecutor denigrated defense counsel by making the following remarks: “[Defense counsel] will do everything to mislead. And his defendant deserves that. That's what he should do. He should be zealously represented, and counsel has done an extraordinary job doing that.” Carrillo objected at trial on the basis that “counsel's job is [not] to mislead.” The court sustained the objection, noting “zealously represent, yes, his job is not to mislead....” To the extent the prosecutor's comments were improper, we find the court's admonition sufficient to cure any prejudice, and Carrillo does not meaningfully argue otherwise. (See People v. McNally, supra, 236 Cal.App.4th at p. 1429.)
Carrillo also takes issue with two other remarks by the prosecutor during rebuttal: (1) “[Defense counsel] doesn't have to prove anything, but if he's going to stand in front of you, and tell you this guy was looking at puppies, and woe is him, and he's afraid, there better be something to support that, and there isn't and he knows that”; and (2) “So instead of focusing on the video or focusing on the elements, and actually making legal arguments [defense counsel will] lob personal attacks. That's what you should do if you're a defense attorney.”
Carrillo does not explain why the first statement was improper, and we do not perceive anything untoward in it. As to the second statement, the prosecutor's reference to “personal attacks” was clearly a response to defense counsel's closing argument, in which he insinuated that the prosecutor was knowingly “trying to secure an unwarranted conviction against” Carrillo, refused to “do the right thing” by charging a lesser offense, and deserved “shame.” Considered in context, we think the jury would have understood “the prosecutor's comments as words spoken by an advocate in an attempt to persuade, ” rather than personal attacks on defense counsel's integrity. (People v. Cole (2004) 33 Cal.4th 1158, 1204.)
3. The Prosecutor Did Not Prejudicially Misstate the Law
Carrillo contends the prosecutor engaged in misconduct by misstating the law during his closing argument. First, he challenges the prosecutor's assertion that “[y]ou cannot consider the evidence of the mental defect [for second degree murder]. Mental defect [evidence] only applies to specific intent. There's only one count of that, it's the [section 187 count] with the planning, motive, method, premeditation, deliberation.” Carrillo objected because “[the jurors] can use the mental defect [evidence] for reasonableness.” The trial court sustained the objection and told the jury, “I believe you can use the alleged mental defect to consider whether something is reasonable or unreasonable as well.” The court subsequently gave CALCRIM No. 3428, which instructed the jurors they may use evidence of Carrillo's mental defect “only for the limited purpose of deciding whether, at the time of the charged crime, the defendant acted with the intent or mental state required for that crime.” To the extent the prosecutor misstated the law, the trial court's admonition and subsequent instruction were sufficient to cure any prejudice.
Carrillo next insists the prosecutor misstated the law during the following remarks: “I will say that based on the evidence that's been presented, this is a murder, unless you believe [Carrillo's expert] who didn't watch the video when she made her opinions, and the defendant's words, and what he remembers, and what he doesn't remember. [¶] If you believe those things, think about it, talk about, find him that he's self defense, or there's imperfect self defense, but you have to believe both of those people.”
According to Carrillo, these remarks shifted the burden of proof to him, and wrongly conveyed that more than a single witness's testimony is required to prove a fact. Even if that were true, the prosecutor's brief remarks were not prejudicial. Throughout his closing argument, the prosecutor repeatedly told the jury he had the burden of proof. The court also instructed the jurors the prosecution had the burden of proof, testimony from a single witness can prove any fact, and they should disregard any comments from the attorneys that conflicted with its instructions. We presume the jurors followed these instructions, and nothing in the record suggests otherwise. (People v. Williams, supra, 7 Cal.App.5th at p. 682.) Accordingly, there was no prejudicial misconduct.
VII. The Cumulative Effect of the Errors Does not Require Reversal
Carrillo contends his conviction must be reversed due to the cumulative effect of the errors. “Under the ‘cumulative error' doctrine, we reverse the judgment if there is a ‘reasonable possibility' that the jury would have reached a result more favorable to defendant absent a combination of errors.” (People v. Poletti (2015) 240 Cal.App.4th 1191, 1216.) “A claim of cumulative error is in essence a due process claim and is often presented as such [citation]. ‘ The “litmus test” for cumulative error “is whether defendant received due process and a fair trial.”' [Citation.]” (People v. Rivas (2013) 214 Cal.App.4th 1410, 1436.) Because we have found, at most, only a handful of non-prejudicial errors, we reject Carrillo's claim that his conviction must be reversed for the cumulative effect of the errors.
DISPOSITION
We affirm the judgment.
We Concur: STRATTON, Acting P. J. WILEY, J.
[*]Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.