Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. KA086897 George Genesta, Judge.
Johanna R. Pirko, 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 D. Martynec and Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
INTRODUCTION
Defendant Israel Conejo appeals a judgment, after a jury trial, convicting him of violating Penal Code sections 273.5, subdivision (a) (corporal injury to cohabitant), 136.1, subdivision (b)(1) (dissuading witness from reporting a crime), 591 (cutting utility line), 594, subdivision (a) (vandalism), and 459 (first degree burglary).
Unless otherwise specified, statutes in this opinion will refer to the Penal Code.
On September 11, 2009, the trial court found to be true the allegation pursuant to section 667.5 that Conejo suffered a prior conviction for violation of section 666. The trial court denied probation and sentenced Conejo to the mid-term of four years for the base term for the first degree burglary conviction in count 5, plus one year pursuant to the prior conviction pursuant to section 667.5, subdivision (b). The trial court imposed a two-year sentence for the conviction of violating section 136.1, subdivision (b)(1) in count 2, to run concurrently with the sentence in count 5. The trial court imposed a one-year sentence for the conviction of violating section 273.5, subdivision (a) in count 1, an eight-month sentence for the conviction of violating section 591 in count 3, and a four-month sentence for the conviction of violating section 594 in count 4, and ordered these sentences stayed pursuant to section 654. The total sentence of imprisonment was five years, with the trial court granting Conejo presentence custody credit and ordering him to pay fines and fees.
We reject the defendant’s claim that the evidence is insufficient to support the conviction for first degree burglary, and find that substantial evidence supports the finding that Conejo entered a house with intent to commit a felony. We find that although the trial court delivered an erroneous instruction, that error was harmless given the jury’s separate finding convicting the defendant of corporal injury to a cohabitant in violation of section 273.5, subdivision (a), a felony. We also find that claims of prosecutorial misconduct concerning comments on defendant’s demeanor during trial lack merit, and that a third instance was harmless. We affirm the conviction.
FACTS
Testimony of Lauralee Minor:
Lauralee Minor testified that the defendant was her boyfriend, and they had been in a relationship since the beginning of 2009 and had lived together in La Verne since late January 2009. Minor’s two sons, Alexander Meza and Miles Meza, also lived at the house. Minor still loved Conejo, notwithstanding an incident that occurred on May 11, 2009. On that day, Minor and Conejo had an argument in the morning inside their house. When Minor started to leave, Conejo grabbed her backpack and her wrist, which left bruises. Minor did leave the house and went to the store, and 90 minutes later returned to the house. Conejo was still there. Later that day Minor and Conejo argued again. During this argument, Minor’s older son, Alexander Meza, who is 16 years old, was present. Meza and Conejo left together. As Conejo was leaving, Minor told him to get a job. Conejo responded by grabbing his genitals and shouting that Minor needed to pay for this. Meza and Conejo went to the house of Conejo’s mother, where Conejo made some phone calls to Minor during the afternoon. During those phone calls, Minor told Conejo she wanted Meza to come home.
At 4:30 p.m., Minor called Conejo’s brother, Ringo Gutierrez, and told him she was having trouble contacting Meza. Gutierrez said he would locate him. During the call, Minor or Gutierrez said that the Pomona Police Department should come to Conejo’s mother’s house to check on Meza. Conejo then telephoned Minor, asked what she had told Gutierrez, and told her Gutierrez was yelling at him about something. During the telephone call, Conejo said, “I’ll stab him and take you out, ” which caused Minor to be afraid. After that conversation ended, Conejo later called and reported that Meza was fine and was on his way home. Minor was not afraid that Conejo would return to her house, but she believed that Gutierrez was telling Conejo things and did not want an encounter with Conejo at that time. She knew they were on their way, and hid under her bed and locked the doors. She intended to spy on them to listen to what they were saying.
Minor was the only person with keys to her house, and kept doors to the house locked. Neither Meza nor Conejo had a key to the house. Minor heard Conejo and Meza come back to Minor’s house. She heard Meza say the door was locked and heard them knocking on the door and asking why she had locked the door. Conejo went to the back of the house to French doors that lead to Minor’s bedroom. Meza broke the glass in a French door to his room.
Testimony of Officer David Chavira:
David Chavira is a police officer for the La Verne police department, and was assigned to patrol on May 11, 2009. He had no partner that day. He had never met Lauralee Minor before responding to her house on Foxford Road at about 9:25 p.m. He located Minor and spoke with her. She was frightened, hysterical, crying, upset, and had blood coming from her nose. She told Chavira she had been punched and that her boyfriend, Conejo, had stabbed himself in the stomach. Chavira searched the premises, determined that Conejo had left, and had other police units search the area for his vehicle. Chavira then took a detailed statement from Minor. She did not need medical help, although she was crying and upset.
Minor told Chavira that Conejo had been living with her for awhile, had not been working, and was becoming more controlling. Earlier that day she was wearing a backpack and Conejo pulled her down and had her sit in a chair, and only let her go when he saw her father. Minor had bruises on her arms that were consistent with having been grabbed. Minor said Conejo told her not to call the police. She interpreted that to mean he would kill her or hurt her.
Minor left to pick up Meza and returned home at 11:15 a.m. Conejo continued to be verbally abusive toward her. Minor said she told Conejo she did not want the relationship to continue and that she wanted him to move out of her house. Meza was present. Meza talked Conejo into going with him to obtain a cell phone and a bicycle at his high school. Minor said she felt relieved when Conejo left, but then became scared because Meza was with him. She wanted Meza to come home. Conejo telephoned her three times, but would not let her talk to Meza. Minor spoke to Conejo’s brother, Gutierrez, who had called and asked for Conejo. Minor told Gutierrez she wanted Meza back home and that Conejo was not bringing Meza back. After the first conversation with Gutierrez, Minor said she received a phone call from Conejo, who she said yelled at her and said, “I’ll stab him and take you out, ” and then hung up. Minor said she was scared because when Conejo said, “I’ll stab him, ” she did not know if he referred to Gutierrez or to Meza.
Minor unsuccessfully tried to get the address of Conejo’s mother’s house from Gutierrez. Gutierrez called her back, but said he had spoken to Conejo and Conejo would be bringing Meza home. Minor realized that Conejo was on his way to her house, which frightened her. She locked the front doors, secured the windows, and went underneath her bed to hid, hoping that Conejo would drop off Alexander and then leave.
Minor told Chavira that after she hid under the bed, she heard knocking at the front door and Conejo saying “open the door.” Suddenly he started to break in through French doors in the rear, and broke the class on her bedroom door. Conejo came in through the French doors, walked on the mattress that she was underneath, and went to open the door for Meza and his mother. When Conejo stepped on the mattress, wood blocks holding up the mattress fell and trapped Minor under the mattress. Minor said Conejo lifted up the mattress and dropped it on her a couple of times, as if he was toying with her. Conejo yelled at Minor for talking to Gutierrez and for wanting to call the police.
Minor believed Conejo must have been very angry to break glass in the doors, because there was a window in her children’s bedroom that Minor left open for her sons to enter, in case they came in late or forgot a key. Meza knew how to get in through that window, and Minor told Chavira that she left the window open that night.
Eventually Conejo let Minor out from under the mattress and they went into the living room. Conejo gave her a portable phone and in a taunting manner told her to call the police. Conejo pushed her on the shoulder a couple of times. Minor removed the battery from the phone, thinking that Conejo would leave her alone if she went along. Meza and Conejo’s mother were also present in the living room. Minor told Chavira she was trying to leave the house. Conejo punched her directly in the nose, very hard. Chavira testified that Minor did not tell him that she hit Conejo first. Minor told Chavira she could not believe he hit her like that, and started crying. Minor also said there had been previous incidents in which Conejo had hit her, which she had not reported. Minor said she asked Conejo’s mother how she could raise a son who would hit a woman like that, but said Conejo’s mother was smirking and smiling at her.
Minor told Chavira that she tried to call the police and dialed 9-1, but Conejo yanked the phone out before she finished dialing. Chavira photographed the phone wire Conejo had pulled out. The phone wire was connected on one end with the phone jack, but Conejo severed the wire. Minor stated that Meza was trying to calm the situation. Minor said that Conejo then helped her to the bathroom and tried to help her because her nose was bleeding and hugged and consoled her. Conejo then lifted up his shirt and stabbed himself four or five times with a paring knife. Minor said that the knife went in almost the whole length of the blade. Minor described Conejo’s demeanor as crazed, not stable, and angry when he was stabbing himself. Minor said that at one point Conejo told her to stab him, and at one point was so angry he wanted to slit his throat. Afraid, Minor threw the paring knife behind the washing machine. Conejo also started to stab himself with wooden sticks from an air freshener. As he pulled the sticks out, the liquid from the fragrance went in Minor’s eyes, and she started saying she was blind and could not see. She went to the bathroom to clean her eye. Then Minor went to her mother’s house to dial 911, the call to which Chavira responded.
Chavira assisted Minor in getting an emergency protective order. Minor wanted one and did not have to be convinced to take the order. She was afraid that Conejo would come back after the police left. Chavira obtained the order and returned with it two hours later, at about 1:00 a.m.
Testimony of Officer Chris Miranda:
Chris Miranda is a police officer for the La Verne police department, and was assigned to patrol on May 15, 2009. He responded to a 911 call at 1260 Foxford Road, Cabin No. 2, in La Verne. The call originated in a fight between Minor and Conejo. Miranda, the first officer at the scene, contacted Minor. Miranda had met Minor at least 10 times previously regarding other domestic disputes, domestic violence calls, and DCFS referrals regarding her children. In his first week on the job he had three reports involving Minor. Minor came downstairs to meet him, yelling. She was crying and very upset, and said that Conejo ran. Miranda looked for Conejo in the direction Minor pointed, but could not see anything and returned to her and asked her what happened. Minor said she and Conejo were arguing and Conejo had a knife. Miranda knew Conejo had a knife before he entered Minor’s house. They entered Minor’s house and Miranda and his partner did a search for Conejo in case he was still inside the house. They found Conejo in a closet, hiding under clothing, very well covered except for a toe, which Miranda saw. Miranda pulled Conejo out of the closet, and described him as upset, apologetic, and crying. Miranda took Conejo into custody and placed him in a police vehicle. Miranda observed no injuries or bleeding on Conejo, although he had some old scratches and marks.
Miranda wrote a police report shortly after arresting Conejo. Minor told Miranda that Conejo was going to kill himself with a paring knife.
Testimony of Sheila McClellan:
McClellan is a Los Angeles County Deputy Probation Officer, and prepared preplea and post-sentencing reports for the court. After reviewing the police report and interviewing victims, arresting and investigating officers, and interested parties, McClellan writes a report and makes a sentencing recommendation to the court. She determined that defendant Conejo’s home address was in Pomona, California. McClellan interviewed Lauralee Minor, who stated that Conejo had stayed with her and spent the night once in awhile, but did not receive mail at her house.
ISSUES
Defendant Conejo claims on appeal that:
1. The burglary conviction should be reversed because substantial evidence does not support the finding that the defendant had intent to inflict corporal injury upon Minor when he entered the house;
2. The burglary conviction should be reversed because the trial court erroneously instructed the jury that the defendant was guilty of burglary if he intended to commit misdemeanor battery when he entered Minor’s house;
3. The burglary conviction should be reversed because of prosecutorial misconduct in closing argument, when the prosecutor suggested that the defendant’s courtroom demeanor evidenced his felonious intent and by referring to facts not in evidence.
DISCUSSION
1. Substantial Evidence Supports the Finding That When Conejo Entered Minor’s House, Conejo Had the Intent to Commit a Felony
Defendant Conejo claims on appeal that substantial evidence did not support the jury’s finding that he had the intent to inflict corporal injury upon Minor when he entered the house.
A. Standard of Review of a Claim of Insufficient Evidence
In reviewing a contention that substantial evidence does not support the conviction, the standard of appellate review is as follows. “To determine sufficiency of the evidence, we must inquire whether a rational trier of fact could find defendant guilty beyond a reasonable doubt. In this process we must review the evidence in the light most favorable to the judgment and presume in favor of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. To be sufficient, evidence of each of the essential elements of the crime must be substantial and we must resolve the question of sufficiency in light of the record as a whole.” (People v. Johnson (1993) 6 Cal.4th 1, 38.)
B. Substantial Evidence Supports the Finding That Conejo Had the Intent to Inflict Corporal Injury Upon Minor at the Time He Entered the House
Conejo was convicted of violating section 459, which states: “Every person who enters any house... with intent to commit grand or petit larceny or any felony is guilty of burglary.” As Conejo points out, burglary thus requires the defendant’s intent to commit a felony at the time of entry into the house. (People v. Holt (1997) 15 Cal.4th 619, 669.) The required intent is rarely shown by direct proof, however, and may be inferred from the facts and circumstances. (Ibid.)
Burglarious intent can be inferred from unlawful and forcible entry alone. (People v. Hinson (1969) 269 Cal.App.2d 573, 578.) The fact that Conejo broke glass to enter a locked door to enter Minor’s house provides a basis for inferring burglarious intent. Earlier in the day on May 11, 2009, Minor had told Conejo she did not want their relationship to continue and that she wanted him to move out of her house. When Minor, wearing a backpack, tried to leave her house, Conejo pulled her down and had her sit in a chair, and Minor was observed to have marks and bruises on her arms consistent with someone grabbing her. There was also evidence that Conejo threatened Minor before coming to and entering her house. Later in the day on May 11, 2009, after another argument with Conejo, he left with Meza, Minor’s son. She wanted Conejo to return Meza and leave. After telling Conejo’s brother, Gutierrez, that she wanted Meza to come home, Minor received a phone call from Conejo, who yelled at her and said, “I’ll stab him and take you out, ” and immediately hung up. That caused Minor to be afraid. Minor locked the doors and windows of her house, and blocked the French door to her room with a bed, and hid under the bed. When Conejo arrived, he banged on the front door, and when Minor did not open it went to the back of the house and broke open the doors. Conejo entered the room and walked on the mattress that Minor was underneath, causing the wooden block supporting the mattress to fail and trapping Minor. Conejo then lifted up the mattress and dropped it on her a couple of times, yelling at her.
Conejo eventually let Minor out from under the mattress, and they went into the living room, where Conejo, still angry, pushed her on the shoulder a couple of times and in a taunting manner, told her to call the police. Conejo, however, ripped the phone cord out of the wall when Minor tried to call 911, and then hit Minor in the face hard, causing her nose to bleed. Minor then left the house, went to her parents’ house, and called 911, where she reported that Conejo came into her house, broke her back door, and “socked” her in the face, stabbed himself with a knife, and said he was going to kill himself and that he was going to kill Minor.
This evidence supports the inference that Conejo went to Minor’s house not simply to return Meza home but also to break into the house and physically injure Minor, with whom he was angry and whom he had physically hurt earlier in the day, bruising her arms. Substantial evidence supports the jury’s finding that when he entered Minor’s house, Conejo had the intent to commit a felony. Although there was conflicting evidence, it was the province of the jury as the trier of fact to determine the credibility of witnesses and the truth or falsity of their testimony. (People v. Lewis (2001) 26 Cal.4th 334, 361; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
2. The Error in the Burglary Instruction Was Harmless
Conejo claims that the judgment must be reversed because the trial court erroneously instructed the jury. Conejo claims that the following instruction was erroneous:
“To prove that the defendant is guilty [of burglary in violation of section 459], the People must prove that:
“1. The defendant entered a building;
“and
“2. When he entered a building, he intended to commit a violation of Penal Code Sections 273.5 or 243(e)(1) as defined elsewhere in these instructions.”
Section 273.5, subdivision (a) states: “Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant... corporal injury resulting in a traumatic condition, is guilty of a felony[.]” Subdivision (c) states: “As used in this section, ‘traumatic condition’ means a condition of the body, such as a wound or external or internal injury, whether of a minor or serious nature, caused by a physical force.”
Section 243, subdivision (e)(1) states: “When a battery is committed against a spouse, a person with whom the defendant is cohabiting... or a person with whom the defendant currently has, or has previously had, a dating or engagement relationship, the battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail for a period of not more than one year, or by both that fine and imprisonment....”
Because a violation of section 459 requires that a person enter a house “with intent to commit grand or petit larceny or any felony, ” it was erroneous to include a misdemeanor violation of section 243, subdivision (e)(1) in this instruction.
Despite failure of the defense to object to the instruction in the trial court, because defendant’s claim of error would affect his substantial rights, we address the claim of instructional error. (Sections 1259, 1469.)
Misinstruction on the elements of the charged offense is subject to the harmless error standard of Chapman v. California (1967) 386 U.S. 18, 24. (People v. Cox (2000) 23 Cal.4th 665, 676-677; People v. Catlin (2001) 26 Cal.4th 81, 151.)
Here the evidence was that Conejo punched Minor “hard” on the nose, “as if she was a man, ” leaving her bleeding. It seems clear that this satisfies the “traumatic condition”-“ a condition of the body, such as a wound or external or internal injury, whether of a minor or serious nature, caused by a physical force”-required by section 273.5, subdivision (a). Moreover, pursuant to count 1 (corporal injury to a cohabitant in violation of section 273.5, subdivision (a)), the jury was instructed on both corporal injury to a cohabitant in violation of section 273.5, subdivision (a) and on the lesser crime of simple battery against a cohabitant in violation of section 243, subdivision (e)(1). The jury separately convicted Conejo of corporal injury to a cohabitant in violation of section 273.5, subdivision (a), a felony. In so convicting, the jury rejected the lesser crime of simple battery against a cohabitant in violation of section 243, subdivision (e)(1). When it is possible to determine from other portions of the verdict that the jury necessarily found the defendant guilty on a proper theory, the instructional error is harmless. (People v. Guiton (1993) 4 Cal.4th 1116, 1130; see also People v. Kelly (1992) 1 Cal.4th 495, 531.) We find the error harmless.
3. Claimed Instances of Prosecutorial Misconduct
Conejo claims that the burglary conviction should be reversed because of prosecutorial misconduct during closing argument.
A. The Two Instances of Prosecutorial Misconduct Involving Comments on Defendant’s Demeanor During Trial
Conejo cites two instances of prosecutorial misconduct.
First, after reviewing the defendant’s conduct which reflected his guilt, including his flight and concealment of himself from police on May 15, 2009, the prosecutor stated: “And when he’s here in court, I don’t know if you’ve been watching and listening, but it seems like a lot of times he finds this really quite funny. He’s back there snickering a few times and making a bunch of noise. What does that say? In this case he knew what he had done was wrong.”
Second, the prosecutor stated: “Ms. Minor testified that as he was leaving, he made some rather obscene gestures at her, grabbing his crotch and things like and yelling and exchanging words. And I think the defendant at that point found that rather funny.”
1. Although The Claim of Error Is Forfeited Because of the Failure to Object in The Trial Court, We Exercise Our Discretion to Review the Claim of Error
“ ‘Improper remarks by a prosecutor can “ ‘so infect[] the trial with unfairness as to make the resulting conviction a denial of due process.’ ” [Citations.]’ [Citation.] ‘But conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “ ‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’ ” ’ [Citations.] ‘To preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct.’ [Citations.]” (People v. Earp (1999) 20 Cal.4th 826, 858.)
The defense made no objection in the trial court to either instance of alleged prosecutorial misconduct. An admonition would have cured the harm by the misconduct, and thus the claim of error is forfeited on appeal.
An appellate court, however, is not prohibited from reaching a claim of error which has not been preserved for review by a party, including an instance of prosecutorial misconduct. (People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6.) We exercise our discretion to review the claim of error arising from prosecutorial misconduct.
2. The Claims of Prosecutorial Misconduct Concerning Comments on Defendant’s Demeanor During Trial Lack Merit
A prosecutor’s “ ’intemperate behavior violates the federal Constitution when it comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.” ‘ ” (People v. Gionis (1995) 9 Cal.4th 1196, 1214.) “ ’Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “ ’ “the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.” ’ ” [Citation.]’ [Citation.]” (People v. Hill (1998) 17 Cal.4th 800, 819.) The crucial issue in a prosecutorial misconduct claim is not the prosecutor’s good faith, but potential injury to the defendant. (People v. Coddington (2000) 23 Cal.4th 529, 599-600, overruled on unrelated ground, Price v. Superior Court (2001) 25 Cal.4th 1046, 1069.) “[W]hen the claim focuses upon comments made by the prosecutor before 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. Samayoa (1997) 15 Cal.4th 795, 841.) “In conducting this inquiry, we ‘do not lightly infer’ that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements.” (People v. Frye (1998) 18 Cal.4th 894, 970, disapproved on unrelated ground, People v. Doolin (2009) 45 Cal.4th 390, 422.)
“In criminal trials of guilt, prosecutorial references to a nontestifying defendant’s demeanor or behavior in the courtroom have been held improper on three grounds: o (1) Demeanor evidence is cognizable and relevant only as it bears on the credibility of a witness. (2) The prosecutorial comment infringes on the defendant’s right not to testify. (3) Consideration of the defendant’s behavior or demeanor while off the stand violates the rule that criminal conduct cannot be inferred from bad character.” (People v. Heishman (1988) 45 Cal.3d 147, 197.)
Defendant argues that the prosecutor’s references to defendant’s courtroom demeanor formed the “critical link” in establishing Conejo’s felonious intent at the time of entry into Minor’s house. This is not correct. The reference to defendant’s snickering, making noise, and finding the testimony funny was in the context of describing defendant’s actions not on May 11, 2009-the day of the burglary of Minor’s house-but on May 15, 2009, the day Conejo was arrested. Specifically, the prosecutor reviewed evidence that on May 15, 2009, Conejo threatened Minor, threatened to kill himself, and had a knife. When the police arrived, instead of telling the police what happened, Conejo ran away when he learned the police had been called and concealed himself in a closet under a pile of clothes when they arrived at Minor’s house. The prosecutor’s comments did not address the burglary, evidence of intent to commit a felony at the time Conejo entered Minor’s house, or any other crimes committed on May 11, 2009.
The reference to Conejo finding funny Minor’s testimony about him grabbing his crotch referred to an event that took place on May 11, 2009, when Minor told Conejo that she wanted out of the relationship and wanted Conejo out of her house. The comment that Conejo found testimony about him grabbing his crotch was also not a “critical” link in establishing Conejo’s felonious intent at the time of his entry into Minor’s house.
Neither of these two prosecutorial comments was part of a pattern of conduct “ ‘ “so egregious that it infect[ed] the trial with such unfairness as to make the conviction a denial of due process.” ’ ” (People v. Gionis, supra, 9 Cal.4th at p. 1214.) Nor was it the use of deceptive or reprehensible method to attempt to persuade the jury. We find no merit to the claim of prosecutorial misconduct.
B. A Third Instance of Prosecutorial Misconduct Was Harmless Error
Defendant also cites separate instances of prosecutorial misconduct as referring to facts not in evidence. The prosecutor stated, in closing argument: “And then she allows Mr. Conejo back in the house. After he comes back, he comes and says, I need you to help me, help clean up my stab wounds. Ms. Minor said, basically, she felt sorry for him. Manipulating her again. Please take me back. Please clean me up. I’m so afraid. I need help. She does, until the next time it comes around on the 15th. They argue. He again does this business with the knife, threatens to stab her and then threatens to stab himself. And the police are called, and the police come out and he’s arrested.”
In a second instance, the prosecutor stated: “And then we come to May 15th, and he starts his business again with the knife. And Lauralee told Officer Miranda that on that day not only did he threaten to kill himself, he threatened her, and he had this knife.”
Once again, the defendant failed to object to either instance of alleged prosecutorial misconduct. An admonition would have cured the harm by the misconduct, and thus the claim of error is forfeited on appeal.
If the claim of error is reviewed, it is misconduct for a prosecutor to mischaracterize the evidence, either deliberately or by mistake. (People v. Hill, supra, 17 Cal.4th at p. 823.) Such statements tend to make the prosecutor a witness who offers unsworn testimony not subject to cross-examination. (Id. at pp. 827-828.)
Conejo argues that because there was no evidence that he threatened to stab Minor with a knife on May 15, 2009, the prosecutor’s comments were references to facts not in evidence. In the second comment, the prosecutor only stated that Conejo threatened to kill himself, threatened Minor, and had a knife; he did not say he threatened to stab Minor with a knife.
In the first comment, the prosecutor does say that Conejo threatened to stab Minor. The reference to facts not in evidence, however, was to something that occurred on May 15, 2009, four days after the burglary. We find that the instance of misconduct was isolated and harmless, in that absent the error the defendant would not have received a more favorable outcome. (People v. Watson (1956) 46 Cal.2d 818, 836-837.)
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, Acting P. J., ALDRICH, J.