Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County Nos. VCF168011 and PCF076806, James W. Hollman, Judge.
Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Craig S. Meyers, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gomes, J.
A jury convicted Joaquin Ceballos Corona (Corona) of attempted murder (Pen. Code, §§664/187; count 1), assault with a deadly weapon (§ 245, subd. (a)(1); count 2), and leaving the scene of an accident (Veh. Code, § 20001, subd. (a); count 3). The jury also found true allegations as to count 1, that the attempted murder was willful, deliberate and premeditated within the meaning of section 664, subdivision (a) and Corona used a deadly weapon within the meaning of section 12022, subdivision (b)(1), and as to counts 1 and 2, that Corona caused great bodily injury pursuant to section 12022.7, subdivision (a). Corona was sentenced to prison for life with the possibility of parole on count 1, plus one year for using a deadly weapon and three years for causing great bodily injury. The court also imposed a consecutive two-year sentence on count 3 and stayed, pursuant to section 654, a six-year sentence on count 2 and the attached great bodily injury enhancement.
All further statutory references are to the Penal Code, unless otherwise stated.
On appeal, Corona contends: (1) there was insufficient evidence to support the jury’s findings of intent to kill and that he committed willful, deliberate and premeditated attempted murder; (2) the trial court had a sua sponte duty to instruct on transferred intent; and (3) the prosecutor committed misconduct during closing argument. As we shall explain, we disagree with Corona’s contentions and will affirm the judgment.
FACTS
On July 21, 2006, Corona came by a house in Porterville where Salvador Calderon Amezcua (Calderon) was staying for a few days. Corona was going to clean the yard. Calderon told Corona he did not want to help Corona clean the yard because he was only going to be there a few days and Corona was being paid to do it. Corona became angry and started to pick a fight with Calderon. Calderon did not want to fight because he was “in a program” as a result of being on felony probation. Corona said he was going to kill Calderon and drive his car into him. Corona left.
Corona returned to the house 15 to 20 minutes later. Corona was “very angry” with Calderon; he claimed Calderon was saying things about him that were not true. Calderon denied saying anything about Corona. Corona again said “I’m gonna kill you” and told Calderon to get into Corona’s car so they could look for the person who was saying things about Corona. Calderon got into the car with Corona because Corona was very angry and he did not want to fight or have any problems with Corona, since Corona already had threatened him. The car, a brown Cougar, was the same car Corona had bought from another individual earlier that month. According to Calderon, the car was not damaged.
As Corona drove, he and Calderon were still having a conversation, but were not arguing; Corona, however, was “very angry.” Five to ten minutes later they found the other person, who Calderon knew only as “Chalechepo,” on a bike in the street. Corona, who still was very angry, got out of his car and confronted Chalechepo, who had gotten off his bike. Calderon, who also had gotten out of the car, told them not to fight. When Corona and Chalechepo started to punch each other, Calderon left because he was on probation and did not want any trouble. According to Calderon, Corona was not acting like himself that day; he was always such a “nice person” but that day Calderon did not recognize him at all. Calderon saw Corona with a beer that day, but did not know if his abnormal behavior resulted from alcohol consumption.
Armando Garcia, a field worker, testified that around noon that day, he was riding his red bicycle around Porterville. Around 12:15 p.m., Garcia saw Corona and Calderon, who he knew as Salvador, together in a car. Garcia had a conversation with Corona, who he knew from work. As they were talking, Corona was drinking a beer, but Garcia did not notice if Corona was drunk. Garcia explained that Corona had become upset when another person began to laugh at him because a car had been taken from him. When Corona was talking to the other person, the other person said Garcia had said something, so Corona had come to ask Garcia “what was up.” Garcia believed Corona’s problem was with Calderon, but Corona came to him demanding whether he had said it. According to Garcia, Corona and Calderon were talking about Corona’s car being towed, and Garcia called Corona a “crybaby” because his car had been taken from him.
Corona asked Garcia if he had said anything disparaging and Garcia said “No.” Garcia testified they had an argument, and might have shoved each other and exchanged words, but he denied they hit each other. Garcia did not want any trouble and thought they were done, so he hopped on his bicycle and left the scene.
Garcia was heading to his house, thinking the confrontation was finished, when Corona hit him from behind with his car. Garcia was lying on the ground and losing a lot blood. An ambulance came. Garcia testified he was unable to breathe at certain points and “they were pumping” him. He thought he was going to die. His forehead was cut from the right eye to the center of his ear. He also hurt his arm and, at the time of trial, could not close his hand all the way. He received stitches and staples and was in the hospital for five days.
That day, Deydre McRoberts was visiting her cousin, Betty Watson, who lived in Porterville. Around noon, Watson saw “some guys” in a car stop and a man on a bicycle turn around and approach the driver’s side of the car. McRoberts also saw the man on a bicycle and the car’s driver stop in the street. The driver got out of the car holding a beer. The two men argued in Spanish. Watson called the police. As the man got back on the bicycle, the car’s driver threw his beer at him and began to hit him in the head. The two began fighting; they were punching each other. The car’s driver got into his car and the other man got back on his bike and took off riding. The car did a U-turn “real fast” and went in the same direction as the bicycle rider. The men then went out of the women’s sight.
Johnny Plumlee, a manager at a Porterville automobile parts store, was walking back to the store at the end of his lunch break that day. As he came to an intersection, he saw in the middle of the road a bicycle and a vehicle with the door open, and two men having a fistfight. The men were throwing punches when a car stopped by and broke up the fight. Plumlee then saw one of the men start to push a red bicycle.
Plumlee continued walking on one side of the road. The man on the bicycle was on the sidewalk on the other side of the road; he was sitting on the seat propelling the bicycle with his feet on the ground. Plumlee heard a car accelerate; he turned to look and saw the car, which he estimated was traveling between 35 and 40 miles per hour, jump up on the curb and hit the man on the bicycle. The bicyclist hit his head on the passenger’s side of the windshield and flew off the car about 15 yards into a wooden fence as the bicycle ended up under the car. The car also smashed into a metal mailbox that was cemented into the sidewalk. When the car’s driver could not get his car into gear, he shut the engine off and walked away “like nothing had happened.” While Plumlee was trying to get someone to call 911, the driver, who Plumlee identified as Corona, walked right past him.
Lewis Riley, a tow truck driver from Porterville, was heading back to his shop when he saw a car parked sideways on the curb, a man lying on the ground, and a bicycle lying underneath the car. Lewis stopped to assist and saw the man was lying face down in a puddle of blood. It looked like the man could not breathe, so Lewis got a towel, rolled him over, and saw a large gash in his head exposing the skull. Lewis put pressure on the wound and called his shop, telling them to call 911.
A Porterville Police Department community service officer responded to the scene. He saw a car parked sideways on the street that had a bicycle under the car’s front end. Porterville Police Detective Carl Jordan also responded to the scene and began his investigation. Around 6:30 that night, Detective Jordan located Corona at his house. As he pulled up, he saw Corona sitting in the back of his driveway by a building drinking a can of beer. Corona appeared intoxicated and had trouble supporting himself. Corona appeared not to comprehend what the officers were telling him as they arrested him. Detective Jordan conducted an in-field viewing or show-up. Witnesses Watson and McRoberts were brought to Corona’s house; both separately identified Corona as the car’s driver. Another officer brought Plumlee to the in-field show-up, who also identified Corona as the driver. Detective Jordan placed Corona under arrest, took him to the police substation for booking, transported him to a hospital to get blood drawn, and then delivered him to the main jail.
Porterville Police Officer Sam Garcia interviewed Armando Garcia, the victim, at the hospital soon after he was taken there. Officer Garcia thought the victim was being uncooperative and didn’t want to answer questions. The victim said nothing happened and he just fell off his bike. The next day, the victim picked Corona’s picture out of a photo lineup and told the officer Corona’s name.
On July 22, 2006, Porterville Police Detective Sonia Silva interviewed Corona following waiver of his Miranda rights. Detective Silva had contacted Corona the day before, but he was too intoxicated to be interviewed. Corona said he was just driving to his sister’s house when a bicyclist pulled out in front of him. Corona admitted he consumed three beers before driving that day and said he was thinking clearly when driving. Corona claimed he did not hit the victim very hard and he went to a nearby store to call an ambulance, but when he heard sirens he decided not to call. Corona admitted he did not render aid to the victim. Corona also said he went to the store to buy more beer, and that he left the scene because he was scared and knew he would be arrested. Detective Silva told Corona his statement might not fit with other information she had. Corona admitted talking to the victim before the collision but denied having an argument or being angry. Corona explained the discussion was about the victim making fun of him because his vehicle had been taken away from him, so he would have to get around on foot. Corona insisted he did not intend to hit the victim and it was an accident, as he was looking in the other direction and the victim veered in front of him. Corona denied having more beers when he returned to his house.
Miranda v. Arizona (1966) 384 U.S. 436.
Defense Case
Toxicologist Jen Kearney testified that Corona’s blood sample contained .30 percent blood alcohol concentration, which is a little over three times the legal limit. Kearney explained that between .30 and .40 percent it is possible to see unconsciousness or coma, but that depended on the individual’s tolerance. Someone with a .30 blood alcohol content generally would have lowered inhibitions and social restraints, which could cause the person to spontaneously do things they otherwise wouldn’t or to carry out an “obsessive idea.” At that level, it would be very difficult, if not impossible, to conceive of a plan and act on it.
If a five foot six or five foot eight tall, 185 pound man’s blood tested at .30 when drawn at eight p.m., his blood alcohol content at 12:00 p.m. would have been approximately .42 or .44, assuming he did not consume any alcohol after noon. If the person had seven 12-ounce beers between noon and eight p.m., his blood alcohol would remain the same at noon and at eight p.m. A person who was sober at noon would need to drink 21 beers to get to a .30 by eight p.m.
DISCUSSION
Sufficiency of the Evidence
We first consider Corona’s challenge to the sufficiency of the evidence to establish his guilt of the primary charge of attempted willful, deliberate and premeditated murder. Corona contends there was insufficient evidence to establish either intent to kill or premeditation and deliberation.
The standard of review is familiar: “On appeal, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence that is reasonable, credible, and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] In cases in which the People rely primarily on circumstantial evidence, the standard of review is the same. [Citations.] ‘Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.’ . . .” (People v. Thomas (1992) 2 Cal.4th 489, 514.)
In order to prove an attempted murder charge, there must be sufficient evidence of “the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.” (People v. Lee (2003) 31 Cal.4th 613, 623.) “The mental state required for attempted murder has long differed from that required for murder itself.” (People v. Bland (2002) 28 Cal.4th 313, 327 (Bland).) For murder, malice may be express or implied. “Malice is express when the killer harbors a deliberate intent to unlawfully take away a human life. Malice is implied when the killer lacks an intent to kill but acts with conscious disregard for life, knowing such conduct endangers the life of another.” (People v. Lasko (2000) 23 Cal.4th 101, 104.) To be guilty of attempted murder, the defendant must harbor express malice; implied malice will not suffice. (People v. Swain (1996) 12 Cal.4th 593, 604-605.) Express malice, or intent to kill, requires more than knowingly placing the victim’s life in danger: it requires at least that the assailant either “‘“desire the result,”’” i.e., death, or “‘“know, to a substantial certainty, that the result will occur.”’” (People v. Davenport (1985) 41 Cal.3d 247, 262.)
The courts also “distinguish between a completed murder and attempted murder regarding transferred intent.” (Bland, supra, 28 Cal.4th at p. 328.) “In its classic form, the doctrine of transferred intent applies when the defendant intends to kill one person but mistakenly kills another. The intent to kill the intended target is deemed to transfer to the unintended victim so that the defendant is guilty of murder.” (Id. at p. 317.) Transferred intent, however, does not apply to attempted murder: “To be guilty of attempted murder the defendant must instead intend to kill the alleged victim, not someone else.” (Id. at p. 328.) Consequently, the defendant’s mental state “must be judged separately as to each alleged victim.” (Id. at p. 331.)
Corona argues there was insufficient evidence he intended to kill Garcia because there was evidence Corona had been drinking and speeding down the street before the collision, which makes it “pure speculation that the erratic driving was in fact an attempt to kill the victim, rather than the result of negligence, or poor driving skills impacted by intoxication.” Corona further argues that his statement to Calderon that he was going to kill Calderon by running him over with a car cannot be used to show Corona intended to kill Garcia because to do so would be to apply the principle of transferred intent in violation of Bland, the statement cannot be used to show Corona’s propensity to run someone over with a car, and the threat had nothing to do with the second argument which led Corona to Garcia.
Even if the evidence was susceptible to the interpretation that the collision was an accident, there were countervailing facts apart from Corona’s threat to kill Calderon to support the jury’s finding that Corona intended to kill Garcia. Corona was very angry that day and looking for Garcia, who he thought had been making fun of him. After Corona initiated a fist fight with Garcia, it was apparent Garcia did not want to fight and he left the scene. When Garcia left on his bicycle, Corona got in his car, turned it “around real fast” and drove after Garcia. Corona then accelerated to around 35 to 40 miles per hour, jumped his car on the curb and hit Garcia, who was on the bicycle. Corona hit Garcia with such force that he hit his head on the passenger’s side of the windshield and flew 15 yards into a wooden fence as the bicycle ended up under the car. Corona’s car then smashed into a metal mailbox that was cemented into the sidewalk. Corona tried to leave in his car, but when he could not get it into gear he just walked away “like nothing had happened,” without rendering aid to Garcia or calling for help.
Viewing the evidence in the light most favorable to the prosecution, the jury rationally could have found that Corona intended to kill Garcia by intentionally driving his car onto the curb and running him down.
In contending there was insufficient evidence of premeditation and deliberation, Corona cites to certain nonexclusive evidentiary factors indicative of premeditation and deliberation that the California Supreme Court discussed in People v. Anderson (1968) 70 Cal.2d 15, 26, 27 (Anderson), namely (1) what the defendant did before the killing, (2) a prior relationship or conduct with the victim providing motive, and (3) the manner of the killing -- all as indicative of a preconceived design. Corona claims none of these factors was supported by substantial evidence.
We do not agree. There is ample circumstantial evidence of planning activity present in this record. After Garcia disengaged from the fight and left the scene, Corona got into his car and turned it around rapidly to go after him. Next, he accelerated towards Garcia. Then he drove onto the curb and rammed into Garcia, hitting him with such force that he smashed into the windshield and was thrown 45 feet. This evidence supports the jury’s finding that Garcia made several deliberate and thought out moves in an attempt to kill Garcia by running him over with the car. As for the element of motive, Corona was angry that Garcia had been talking about him and he was in a murderous mood that day, as shown by his earlier threat to kill Calderon and run him over with his car. Finally, a reasonable juror also could have found the manner of the attempted murder, i.e. following Garcia in his car, accelerating and then going onto the curb to hit Garcia, indicated Corona acted willfully and with deliberation and premeditation.
In sum, there was sufficient evidence to support the jury’s findings that Corona intended to kill Garcia and that the attempted murder was done willfully, with deliberation and premeditation.
Instructional Error
The trial court instructed the jury with CALCRIM 600, which defines the elements of attempted murder. Pursuant to this instruction, the jury was told, in pertinent part: “To prove that the defendant is guilty of attempted murder, the People must prove that: One, the defendant took at least one direct but ineffective step toward killing Armando Garcia; and Two, the defendant intended to kill Armando Garcia.” The court further instructed, pursuant to CALCRIM 252, that the crime of attempted murder required a specific intent or mental state, and to be guilty of that offense, “a person must not only intentionally commit the prohibited act or intentionally fail to do the required act, but must do so with a specific intent or mental state. The act and the intent or mental state required are explained in the instruction for each crime or allegation.”
Despite these instructions, Corona contends the trial court was required sua sponte to specifically charge the jury that the doctrine of transferred intent did not apply. For this argument, Corona relies on Bland, supra, 28 Cal.4th 313, 331, and asserts that without an instruction that transferred intent does not apply, the jury could have erroneously convicted him of attempted murder on a transferred intent theory based on the prosecutor’s references during closing argument to the threats he made to Calderon before going to find Garcia. We disagree the prosecutor’s argument was based on transferred intent and conclude the court properly instructed the jury on the necessary elements of attempted murder.
The prosecutor began his closing argument by citing Corona’s threats to kill Calderon: “‘He was going to kill me. He said he was going to drive the car into me.’ That is the statement of the passenger in this case, Salvador Calderon. That statement was made 20, 30 minutes before the incident with Mr. Garcia, the victim in this case. He further said, ‘He got very angry with me, saying, “I am going to kill you.”’ Remember those statements, and I’m going to come back to them in just a couple moments.”
When arguing regarding the attempted murder charge, the prosecutor asserted that intent to kill was the crux of the case and although there was no videotape of what was in Corona’s mind when he drove the car, “we can see from his words and his deeds that he did, in fact, mean to kill Armando Garcia.” The prosecutor explained what he meant by “words” as follows: “First, that statement I read at the very beginning, ‘He threatened to kill me, to run the car into me.’ He had this in his mind 20 to 30 minutes before they ever even encountered Armando Garcia. This was over at Calderon’s house. And why was he that angry? Why was he upset? Because first there was some story about failing to clean up the yard properly. But what seems to be the overarching argument here was that someone had made fun of him or was disrespecting him or had insulted him, and he was really angry about this, and he wanted to know -- get to the bottom of it. He talks to Calderon, Calderon says, ‘Well, it’s not me,’ something to that effect. ‘It’s somebody else.’ The defendant threatens him. He’s already picked out his weapon of choice. It’s a car. And what did he say he was going to do with that weapon? Run it into him. [¶] When he’s not satisfied that Calderon may be the person that’s making fun of him, they go looking for the person. This takes 20 to 30 minutes. And when they finally find I believe Mr. Calderon called him Chalechepo, or the victim, Armando Garcia, it’s still there. It’s still there. His words tell you what he was planning that day.”
Corona contends this argument is susceptible to the interpretation that if he threatened to kill Calderon with his car regarding the yard cleanup dispute, he also intended to kill the actual victim in the case, i.e. “his intent as to one person [] can be transferred to the actual victim,” therefore the trial court should have instructed the jury that: “Whether defendant is guilty of the attempted murder of the surviving victim depends on his mental state as to that victim and not on his mental state as to another intended victim.”
We disagree that the prosecutor’s argument is susceptible to such an interpretation. As the People point out, Corona’s trial counsel understood the prosecutor was not making an argument of transferring the intent to kill Calderon to Garcia. Defense counsel pointed out that the prosecutor had the burden of proving beyond a reasonable doubt that Corona’s “intention was to take the man’s life,” and explained that if he, namely the defense counsel, told one juror “‘I’m gonna kill you’ and a half hour later I kill [a second juror], the District Attorney is not relieved of their obligation to prove to you that I had the requisite specific intent in the moment that I killed [the second juror] to kill him. [¶] Can you consider that? Absolutely. But don’t confuse what he’s saying. Don’t confuse the irrational blathering of my client when he was talking to Salvador Calderon for what happened 30 minutes later . . . .” Defense counsel further explained the prosecutor had to prove beyond a reasonable doubt that Corona “formulated the specific intent to [k]ill Mr. Garcia” at the time of the collision, and argued that the prosecutor “would like you to believe that [Corona] was in such a rage, he was in a murderous rage, he was plotting and planning in that moment not to kill the man he apparently threatened but to kill Armando Garcia. [¶] I think a more rational explanation for that statement that Mr. Calderon made was that my client was hammered. He wasn’t himself because he was drunk, because he was impaired.”
In rebuttal, the prosecutor clarified his earlier argument: “Intent. If I didn’t get my meaning across here, I’ll go back. When Mr. Corona, the defendant, made the statement about, ‘I’m gonna kill you and use a car to run over you,’ I wasn’t saying that he somehow took his anger out -- he meant Calderon but he took out his anger out on Garcia, because who was he really made at? Did it matter that it was Calderon? No. He was mad at the guy who’d been spreading rumors. That’s the person he thought Calderon was. He thought Calderon was spreading rumors when he made that threat. But that didn’t end up happening. Calderon wasn’t the person. And then who he thought it was was Garcia. And he was mad enough with whatever maybe Garcia said at the time that he followed through on the plan that he had earlier in the day.”
Considering the prosecutor’s closing argument as a whole, it is clear the prosecutor was not asking the jury to take Corona’s intent to kill Calderon and transfer that intent to Garcia. This is not a classic case of transferred intent where Corona specifically intended to kill Calderon with his car and missed, instead hitting and nearly killing Garcia. (See Bland, supra, 28 Cal.4th 320-321, 331.) As the prosecutor explained in his closing argument, he introduced Corona’s earlier threats to Calderon to show he was in a murderous mood that day and intended to kill with his car the person he thought was disrespecting him. When Corona determined that person was Garcia, not Calderon, Corona followed through on his threat and attempted to kill Garcia by hitting him with his car. Contrary to Corona’s assertion, the prosecutor’s argument did not improperly suggest that Corona could be found guilty of the attempted murder of someone he did not intend to kill (Garcia) because he intended to kill someone else (Calderon).
On this record, we find the court properly instructed the jury concerning the elements of attempted murder, making it clear the jury had to find that Corona intended to kill Garcia in order to find him guilty of attempted murder. The court did not instruct the jury it could find Corona guilty of the attempted murder of one person (Garcia) based on a finding he intended to kill a different person (Calderon). The instructions on attempted murder were correct and unambiguous. Although a trial court might amplify the instructions, it was not required to do so. We note that if Corona wanted further explanation on the intent to kill element, he could have requested clarifying instructions and his failure to do so generally waives his complaints about the instruction on appeal. (People v. Sanders (1995) 11 Cal.4th 475, 533.) Moreover, if Corona thought the prosecutor’s arguments were wrong, misleading or confusing, he should have interposed an objection to such statements so the matter could have been corrected or clarified at that time. (People v. Valdez (2004) 32 Cal.4th 73, 122 [issues of prosecutorial misconduct are waived in the absence of a timely objection].)
In sum, because the jury was properly instructed to independently determine whether Corona intended to kill Garcia, there is no reasonable probability the jury misapplied those instructions and found him guilty of the attempted murder of Garcia without the requisite specific intent to kill Garcia.
Prosecutorial Misconduct
Corona next contends the prosecutor committed prejudicial misconduct during closing argument. He argues the prosecutor’s statements that Garcia was very lucky to be alive and walking around today constituted an improper appeal to the jury’s sympathy for the victim.
When addressing the elements of the assault with a deadly weapon charge, the prosecutor argued Corona had acted “with a deadly weapon that by its nature would directly and probably result in the application of force to a person. A car is a deadly weapon. People die in car accidents that having nothing to do with crimes every day, and others die because someone was negligent or they did something on purpose. Cars weigh hundreds, even thousands, of pounds. They are most definitely deadly weapons. Mr. Garcia is very, very lucky to be alive.” In rebuttal, the prosecutor addressed the issue of reasonable doubt with respect to the charges, stating: “. . . And the evidence in this case proves to you, ladies and gentlemen, that the defendant, Joaquin Ceballos Corona, attempted to kill Armando Garcia beyond a reasonable doubt, and he did so with premeditation, and he caused great bodily injury to Mr. Garcia. Mr. Garcia is very, very, very lucky to be walking around today.” Defense counsel then said “Objection, your Honor.” The court overruled the objection, explaining it was “just argument.”
Corona asserts the prosecutor’s references, particularly the second one made when discussing reasonable doubt, were “an apparent attempt to influence the jury’s deliberation with matters outside of the record” by asking the jurors to consider the victim’s suffering and to put themselves in his place.
It is well settled that appeals to the jury’s sympathy or passions are inappropriate at the guilt phase of a criminal trial. (People v. Fields (1983) 35 Cal.3d 329, 362-363.) In stating that Garcia was very lucky to be alive and walking around, however, the prosecutor did not invite the jurors to imagine themselves in Garcia’s place. (Cf. Fields, supra, 35 Cal.3d at pp. 361, 362 [prosecutor’s arguments such as “‘[y]ou are now naked and tied to the bed rails of the defendant’s bed’” and “‘And it takes 10 or 15 minutes for you to die’” constitute improper argument because they invite the jury to view the evidence through the victim’s eyes rather than to view it objectively].)
When viewed in context, the prosecutor’s argument serves a permissible purpose — to show how serious Garcia’s injuries were and that by inflicting near fatal injuries, Corona did in fact intend to kill him. The argument also showed how Corona inflicted great bodily injury, as Garcia came very close to dying and indeed was lucky to be alive. While Corona asserts the argument referred to matters outside the record, Garcia’s injuries were in evidence through the medical records, as was the testimony of the tow truck driver who said that Garcia was having trouble breathing. Thus, the prosecutor’s argument was a fair comment on the evidence. As the People assert, the prosecutor’s statements served a valid, objectively relevant purpose and were not gratuitously offered merely to play on the jury’s sympathy. Accordingly, it was not misconduct for the prosecutor to call that evidence to the jurors’ attention. (See, e.g., People v. Farnam (2002) 28 Cal.4th 107, 167 [no misconduct found where prosecutor’s comments during opening argument that victim was a widow and the murder occurred on her birthday constituted a fair comment on the evidence expected to be presented].)
Finally, even if the prosecutor’s two remarks were improper, Corona suffered no prejudice. The jury was instructed that statements made by the attorneys are not evidence and that they should not let bias, sympathy, prejudice, or public opinion influence their decision. The jury was instructed just prior to the commencement of closing arguments, so the instructions were fresh in the jurors’ minds as they listened to the prosecutor. In this context, we cannot conclude that the statements, even if improper, were prejudicial. (People v. Williams (1997) 16 Cal.4th 153, 224.)
DISPOSITION
WE CONCUR: Ardaiz, P.J., Levy, J.