Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Bernard Schwartz, Judge, Super.Ct.No. RIF103231.
Leslie Conrad, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, James D. Dutton, Supervising Deputy Attorney General, and Alana Cohen Butler, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Gaut, J.
Defendant James Marcus Coronado appeals from judgment entered following a jury conviction for second degree murder (Pen. Code, § 187, subd. (a)). The jury found defendant not guilty of first degree murder, and found not true the allegations of defendant lying in wait and the gun use and gang allegations (§§ 186.22, subd. (b)(1), 190.2, subd. (a)(15), 1192.7, subd. (c)(8), and 12022.5, subd. (a)(1)). The court sentenced defendant to 15 years to life in state prison.
Unless otherwise noted, all statutory references are to the Penal Code.
Defendant contends the prosecutor committed numerous acts of prejudicial misconduct throughout the trial. Defendant claims such misconduct included argumentative examination of witnesses, editorial comments during examination, improper reference to a polygraph exam, asking defendant during cross-examination if witnesses were lying, and failing to produce before the trial an informant’s letter.
We conclude that either the acts complained of did not constitute prosecutorial misconduct or the misconduct was harmless error. We thus affirm the judgment.
1. Facts
During the evening of January 15, 1993, as Kari Nelson was driving on Central Avenue in a rural area of Wildomar, she noticed a Camaro parked with its lights off and all its doors open. She saw two men get into the car and a man lying on the ground towards the back of the car. After driving by the Camaro, Nelson turned around to look again but, by the time she returned, the Camaro was gone. The man, David Mathieu, was still lying on the ground, not moving. Nelson called 911 and the police arrived shortly thereafter. The police found Mathieu’s body on the side of the road. He had been fatally shot three times at close range, twice in the neck and once in the chest.
The murder remained unsolved until August 1999, when Trina Garcia came forward with information she had learned from her ex-husband, Chris Garcia. She had waited until her grandmother died to disclose the information because she feared retribution against her grandmother. Chris’s family had threatened to harm Trina and her grandmother if she said anything about the murder.
The Garcia family founded the Elsinore Vatos Locos (EVL) gang. Chris’s oldest brother, Joe Garcia, was president of EVL. When Joe was incarcerated, his brother, Carlos Garcia, took over.
In August 1999, Trina told Police Instigator Tim Johnson that on January 15, 1993, Chris drove Trina’s Camaro to a party where Mathieu was giving EVL members free tattoos. Chris returned the next morning around 3:00 a.m. and washed his clothes in the sink. Later that morning he washed Trina’s car. These were unusual activities for Chris. Trina found a tattoo gun in the sub-flooring of her car. Chris told her Mathieu had given it to him.
Later that day, Trina overheard Chris, defendant, and another person talking in the garage. From the kitchen, about 20 feet away, she heard Chris say he shot Mathieu. Defendant told Chris not to let Trina find out. Defendant added that they shot Mathieu a few times and he was certain Mathieu was dead.
When Trina later confronted Chris with what she had overheard, Chris told Trina that he and defendant had shot Mathieu because he was a snitch. He also told her that if she said anything, she and her grandmother would “pay for it.”
In September 1999, the police interviewed defendant. Defendant told Johnson that Chris asked him to go with him to get some beer and take Mathieu home from a party. Chris drove Trina’s car. During the ride, Chris pulled over to urinate. Chris and Mathieu got out of the car while defendant remained in the backseat. Defendant heard two or three shots. Chris put a gun in his pants, got back into the car, and drove to Chris’s house. Defendant initially told Johnson he did not know why Chris shot Mathieu but later in the interview defendant said he found out the next day that Joe Garcia had called Chris and had told Chris to kill Mathieu because he was a snitch.
Johnson interviewed defendant again in February 2000. Defendant said Joe called Chris at the party and told him Mathieu was a snitch and to “Do what you got to do.” Chris told defendant and the two devised a plan to punish Mathieu. They took Mathieu for a ride on the pretext of getting drugs. Travis Frederickson also came with them.
Defendant again told Johnson they pulled off the road in a rural area on the pretext they needed to urinate. Defendant stayed in the car while the others got out to urinate. Defendant heard shots fired and saw Mathieu fall to the ground. Chris and Frederickson got back in the car and Chris drove them back to his house. Defendant claimed he was not aware they were going to kill Mathieu. He thought they were only going to beat up Mathieu.
Chris testified that while he was working as an informant, a detective told him Mathieu was a snitch. As a consequence, Chris decided to kill Mathieu to prevent him from telling anyone of his own informant status. Just as Chris was about to leave a party with Mathieu, defendant asked if he and Frederickson could have a ride. Chris agreed.
While driving defendant home, Chris missed defendant’s freeway exit and took the next remote off-ramp. Chris told the others he had to urinate and stopped the car. When he got out of the car, he asked Mathieu to get out of the car and pick up a bag of “dope” Chris had dropped there. When Mathieu got out, Chris shot him three times. Chris got back in the car. Defendant yelled at him and Chris told defendant if he did not stop, he would shoot defendant too. Defendant and Frederickson were in the car when Chris shot Mathieu. Chris dropped off defendant and Frederickson and went home.
Chris testified that when he went home after the murder, he told Trina he had shot someone and to leave him alone. He did not talk to defendant about the murder in his garage the day after Mathieu’s murder. Chris claimed he initially lied to Police Sergeant Thompson about defendant’s involvement in order to avoid going to jail.
Thompson testified that Chris told him he overheard Joe and defendant say that Mathieu was a snitch and that Mathieu needed to be killed. Chris also said that defendant shot Mathieu in the head and Chris shot Mathieu in the chest.
Thompson testified that Trina told him Chris said Joe called and told him Mathieu was a snitch, and Chris and defendant devised a plan to kill Mathieu.
Defendant testified that at the party he asked Chris to give him and Frederickson a ride home. Chris agreed reluctantly. At this point, defendant did not know Mathieu was a snitch. Neither Joe nor Carlos Garcia had ordered defendant to take care of Mathieu. Defendant was unaware Mathieu was a snitch until investigators interviewed defendant and suggested to him that Mathieu was a snitch. Defendant and Chris did not formulate a plan to harm Mathieu. Defendant thought Chris and Mathieu were going to get beer or do something else.
Defendant testified that, when driving defendant home, Chris missed defendant’s freeway exit. Chris exited the freeway one or two exits later and stopped the car on the side of the road in a rural area. Chris said he needed to urinate and told Mathieu to look for some dope Chris had dropped. Chris and Mathieu got out of the car. Frederickson stood by the car door and defendant stayed in the backseat. Defendant heard three shots. Chris ran back to the car, got in, drove away, and dropped off defendant and Frederickson.
Defendant denied being in Chris’s garage when Trina overheard a conversation about Mathieu’s murder.
2. Prosecutorial Misconduct
Defendant contends the prosecutor committed misconduct throughout the trial, which constituted an egregious pattern of misconduct depriving defendant of his constitutional rights to a fair trial, impartial jury, and effective assistance of counsel. Defendant argues that, even though defense counsel did not always object to the misconduct or request an admonition, he did not forfeit his right to object on appeal because objecting either would have been futile or the objections were of a constitutional nature and thus did not have to be raised in the trial court. Defendant alternatively argues that, if this court concludes he forfeited his objections, his attorney’s failure to object constituted ineffective assistance of counsel (IAC).
In order to prove misconduct, defendant must establish that the prosecutor’s behavior at trial was far below the standard of behavior for prosecutors. Prosecutors are generally given wide latitude in arguing a case. (People v. Hill (1998) 17 Cal.4th 800, 819.) Prosecutors also have “‘“broad discretion to state [their] views as to what the evidence shows . . . .”’” (People v. Welch (1999) 20 Cal.4th 701, 752.) However, prosecutors are held to a high standard at trial “because of the unique function he or she performs in representing the interests, and in exercising the sovereign power, of the state. [Citation.]” (Hill at p. 820.)
If prosecutors overstep the latitude given them within a case, they are guilty of misconduct. For misconduct to cause a case to be overturned on review, it must have been prejudicial. In order for misconduct by the prosecutor to be prejudicial under the federal standard, the misconduct must “‘“so infect[] the trial with unfairness as to make the resulting conviction a denial of due process.”’ [Citations.] Under state law, a prosecutor who uses deceptive or reprehensible methods to persuade either the court or the jury has committed misconduct, even if the action does not render the trial fundamentally unfair. [Citations.] [¶] Nevertheless, as a general rule, to preserve a claim of prosecutorial misconduct, the defense must make a timely objection and request an admonition to cure any harm.” (People v. Frye (1998) 18 Cal.4th 894, 969 (Frye).) However, an objection need not be made if an admonition would not have cured the harm caused by the misconduct (People v. Bradford (1997) 15 Cal.4th 1229, 1333) or concerns deprivation of a constitutional right (People v. Vera (1997) 15 Cal.4th 269, 276).
A. Argumentative Examination of Witnesses
Defendant complains that on numerous occasions the prosecutor’s examination of witnesses during trial included improper argumentative questions and editorial comments.
An argumentative question is “a speech to the jury masquerading as a question. The questioner is not seeking to elicit relevant testimony. Often it is apparent that the questioner does not even expect an answer. The question may, indeed, be unanswerable. . . . An argumentative question that essentially talks past the witness, and makes an argument to the jury, is improper because it does not seek to elicit relevant, competent testimony, or often any testimony at all.” (People v. Chatman (2006) 38 Cal.4th 344, 384 (Chatman).) An argumentative question often is “designed to engage the witness in an argument rather than to elicit facts within the witness’s knowledge.” (People v. Mayfield (1997) 14 Cal.4th 668, 755.)
Defendant claims the following italicized portion of the prosecutor’s examination constituted improper argumentative examination. After Trina provided a nonresponsive answer to the prosecutor’s inquiry about the EVL gang’s Friday night meetings, the prosecutor responded, “I know you came in here to help, but I really need you to listen to my questions. You came in here to help the defendant.” (Italics added.) The court sustained defendant’s objection and struck the prosecutor’s statement.
After Trina provided several more nonresponsive answers to questions about the gang’s activities, the prosecutor stated: “[L]et me stop you there. I know you are trying to help—“ (Italics added.) Defense counsel did not object, and Trina responded that she did not want to help defendant: “I don’t want to help him. I don’t care about him, but I am not going to say something to put him away when I am not sure.”
Later, out of the presence of the jury, defense counsel requested the court to admonish the prosecutor not to tell the jury or suggest that Trina was trying to help defendant. The trial court agreed such comments were improper but noted the second time the prosecutor mentioned Trina helping, the prosecutor did not state specifically who she was attempting to help. The court added that it had sustained defendant’s objection to the first comment and the jury had been told that the statements of attorneys are not evidence.
A little later, the prosecutor asked Trina if the people who were with Chris, when she heard him say he killed Mathieu, were involved in the murder. Trina said she did not know; she could not remember. In response the prosecutor said, “Let me stop you there. Let me stop you there. [¶] Also, just so it’s clear, today, you’re -- you came in here because you want to make sure that Chumly [defendant] does not go down for the murder of Tattoo Dave?” (Italics added.) Defense counsel did not object. Trina added that she knew for a fact that defendant did not have anything to do with the murder. She did not care about defendant but she believed he did not commit the murder because Chris told her what happened.
These instances of the prosecutor commenting that Trina wanted to help defendant avoid being convicted of murder were inappropriate but not so egregious and prejudicial as to infect the trial with unfairness as to make defendant’s conviction a denial of due process (Frye, supra, 18 Cal.4th at p. 969) or so “deceptive or reprehensible” as to persuade the court or jury of defendant’s guilt. (Ibid.) Even in the absence of the prosecutor’s argumentative comments, it was apparent that Trina intended to testify favorably to the defense. She had drastically changed her version of the facts provided to the police, in which she implicated defendant, to nonaccusatory testimony in which she claimed defendant did not commit the murder. The prosecutor’s argumentative remarks, that Trina wanted to help defendant, merely stated the obvious. Furthermore, Trina was given the opportunity to deny she was trying to help defendant and explain why her testimony deviated from her statement to the police. Even if the prosecutor’s argumentative comments were improper, such misconduct was harmless.
Defendant also complains that the prosecutor made improper, prejudicial editorial comments (indicated in italics) during Chris’s testimony. Chris testified that he acted alone in planning and committing the murder, and claimed he had previously lied to the police that defendant was involved. Defendant objects to the prosecutor’s comments made during the following cross-examination of Chris:
“Q. Were they [EVL members] beating people up?
“A. Who don’t?
“Q. Okay. Law-abiding citizens don’t, actually.
“ MR. ISAAC: Objection. Argumentative.
“ THE COURT: Sustained.” (Italics added.)
“Q. You don’t know about whether or not EVL was selling narcotics?
“A. I mean who doesn’t sell a bag of weed once in a while?
“Q. Law-abiding citizens don’t sell a bag of weed.
“Mr. Isaac: Objection. Argumentative.
“THE COURT: Sustained.” (Italics added.)
“Q. Right. So let me ask you this: At the time that you’re talking to Trina about what happened, whether it be your new story or the old story
“MR. ISAAC: Objection. Argumentative.
“THE COURT: Sustained.” (Italics added.)
“Q. You never told them [defendant and Travis Frederickson] he was a snitch?
“A. No, ma’am.
“Q. They never had any information about that?
“A. I couldn’t.
“Q. You didn’t tell anybody in the gang that?
“A. I told nobody that because if I was to tell them that, I would have to show proof, which means a piece of paper saying he was a snitch.
“Q. Let me ask you this
“A. Why don’t you let me finish?
“Q. My question is ‘yes’ or ‘no.’ You’ll get your chance to help when Mr. Isaac gets back up.
“MR. ISAAC: Objection. Argumentative.
“THE COURT: Sustained.” (Italics added.)
Defendant complains that, not only were these comments improper editorial remarks but, in addition, the misconduct was exacerbated by the prosecutor continuing the inquiry and objectionable comments after the defense objected. While the prosecutor’s statements (noted in italics) were improper, the remarks were not so prejudicial as to infect the trial or so deceptive or reprehensible as to persuade the jury that defendant was guilty. (Frye, supra, 18 Cal.4th at p. 969.)
The prosecutor’s comments concerning law-abiding citizens most likely reflected the jurors’ own thoughts, regardless of the prosecutor’s remarks. The prosecutor’s other comments mentioned above were also not extremely reprehensible or harmful. The jury was already aware Chris had told conflicting versions or “stories” of how the murder occurred and it was obvious Chris was a defense witness who was testifying favorably to defendant.
Defendant also complains that during Johnson’s redirect examination, the prosecutor maligned defense counsel when she indicated that defense counsel had taken a portion of the police report out of context. The prosecutor stated: “And during the course of that conversation, Mr. Isaac made it seem as if it was not Chumly that was in the garage, the defendant, but Travis Frederickson. I want you to tell us what that was about in your report, about the whole Travis Frederickson thing because that was taken out of context, wasn’t it?” (Italics added.) Defense counsel did not object.
While the prosecutor’s remarks may have reflected negatively on defense counsel, the prosecutor’s questioning Johnson on the matter was within the realm of permissible questioning used to clarify Johnson’s testimony. Furthermore, defense counsel did not object or request an admonition, which would have remedied any negative implication made by the prosecutor’s statements. (Chatman, supra, 38 Cal.4th at p. 384, fn. 16.) We cannot say there is a reasonable probability that a result more favorable to defendant would have been reached if the comments had not been made. (People v. Zambrano (2004) 124 Cal.App.4th 228, 243 (Zambrano); People v. Samayoa (1997) 15 Cal.4th 795, 841.)
Defendant further complains that during cross-examination of defendant regarding his gang membership, the prosecutor asked defendant the following argumentative questions: “So when you told this jury on Thursday that you were not active and then today, that was not the truth, was it?” The trial court sustained defendant’s objection on grounds the question was argumentative.
The prosecutor then asked, “You didn’t know that I could prove that you had already testified in 1995 that you were active?” The court sustained defendant’s objection again on grounds the question was argumentative.
Upon inquiring regarding the raids at the gang’s meeting place, the prosecutor asked defendant if he had any police reports on the raids. When defendant said he did not but assumed the prosecutor did, the prosecutor replied: “No, honestly we don’t, so that’s why I’m wondering how you know when there was a raid. We don’t know about any raids . . . [¶] that’s what we are trying to figure out is what raids are you talking about.” The court once again sustained defendant’s objection on the grounds the question was argumentative.
Defendant asserts that these argumentative questions and editorial comments impaired the witness’s credibility. We disagree. None of the prosecutor’s comments, individually or cumulatively, were sufficiently prejudicial to impugn significantly defendant’s credibility and constitute harmful error. (Chatman, supra, 38 Cal.4th at p. 384, People v. Samayoa, supra, 15 Cal.4th at p. 841.) “Having reviewed each claimed instance of argumentative question, we observe that the trial court sustained most of the defense objections on this ground (see People v. Pinholster (1992) 1 Cal.4th 865, 943 [generally a party is not prejudiced by a question to which an objection has been sustained]), and we conclude that the trial court did not permit the prosecutor to engage defendant in an argument but instead kept the cross-examination properly focused on relevant facts.” (People v. Mayfield (1997) 14 Cal.4th 668, 755.)
Defendant’s alternative claim of IAC need not be addressed, as it is moot due to this court considering and rejecting defendant’s malicious prosecution objections on the merits.
B. Reference to Polygraph Exam
Defendant contends the prosecutor’s reference to a polygraph exam to impeach Chris constitutes reversible error.
During cross-examination, the prosecutor asked Chris about his statements to the police denying he shot anyone and claiming that he thought he and his companions were only going to beat up Mathieu. The prosecutor then asked Chris, “And you’re sitting there, and to prove it, you said, ‘I will take a polygraph. I’ll take a lie detector test.’” Defense counsel objected and moved to strike the question. The court sustained the objection and immediately admonished the jury: “The statements of the lawyers are not evidence. Only the answers to [the] question.”
Later, out of the jury’s presence, defendant moved for a mistrial on the ground the prosecutor mentioned in the jury’s presence that defendant took a polygraph. The court noted the prosecutor only asked Chris if he offered to take a polygraph. She did not say he took one. Defense counsel argued that even mentioning it was improper, and asserted that, although the court sustained defendant’s objection and admonished the jury, “you can’t unring the bell.”
The trial court denied defendant’s motion for mistrial on the ground defendant was not severely prejudiced by the prosecutor mentioning the polygraph because there was no evidence presented that defendant actually took a polygraph.
Any reference to either an offer or a refusal to take a polygraph examination is inadmissible unless all parties agree to allow it. (Evid. Code, § 351.1, subd. (a).) Evidence Code section 351.1, subdivision (a) provides: “Notwithstanding any other provision of law, the results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of a polygraph examination, shall not be admitted into evidence in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court, unless all parties stipulate to the admission of such results.”
Here, the prosecutor’s reference to a polygraph was improper but harmless error. The trial court sustained defendant’s objection to the question and admonished the jury that the prosecutor’s question was not evidence and thus could not be considered. Since Chris did not respond to the question and there was no testimony as to whether Chris actually took a polygraph or the results, the error was harmless.
Furthermore, Chris’s trial testimony directly contradicted any suggestion that, since he offered to take a polygraph, he must have truthfully told the police he had never killed anyone. At trial, Chris admitted he shot the victim. The prosecutor’s unanswered question asking Chris if he had offered to take a polygraph exam was thus harmless, even in conjunction with the prosecutor’s various other inappropriate remarks.
C. Questions About Lying
Defendant contends that the prosecutor committed prosecutorial misconduct by asking him whether investigator Johnson and Detective Thompson were lying when they testified that defendant told them he knew Mathieu was a snitch and he formulated a plan with Chris to deal with Mathieu. Defendant argues these questions about lying were improper because they called for irrelevant and speculative testimony, and defendant’s testimony in response to such questions invaded the province of the jury. We disagree.
During defendant’s cross-examination by the prosecutor, defendant acknowledged he had heard Johnson and Thompson’s testimony. Defendant denied he had told them that he knew Mathieu was a snitch and that he and Chris had devised a plan to get Mathieu. The prosecutor asked defendant, “So what the jury has to find is that either they are lying or you’re lying; correct?” Defendant objected on relevance grounds, and the trial court appropriately sustained the objection on the ground the inquiry was argumentative. The prosecutor asked defendant, “Are you telling the jury that Investigator Johnson is lying to them about that part?” The court overruled defendant’s relevance objection.
After a discussion held off the record, the following questioning by the prosecutor took place:
“Q. So, Mr. Coronado, are you telling the jury that Investigator Johnson is lying?
“A. He said a lot of lies to me, Ms. Calhoun.
“Q. Is that a ‘yes’? You’re telling us that he is lying?
“A. Yes.
“Q. And that Sergeant Thompson is lying as well?
“A. Yes.
“Q. Now, you’d agree with me that if the jury believed what they were saying, Sergeant Thompson and Investigator Johnson, then you should be found guilty; right?
“MR. ISAAC: Objection. Calls for a legal conclusion.
“THE COURT: Sustained.”
We note this last question concerning defendant’s guilt was improper because it was argumentative, but was not prejudicial error since the trial court sustained defense counsel’s objection and the jury was also instructed that attorneys’ statements were not evidence.
After asking defendant if the officers were lying, defense counsel moved for a mistrial based on the prosecutor’s improper “were they lying” questions. The trial court denied the motion, concluding the prosecution’s questions were proper. After a court recess, defense counsel provided authority on the issue and renewed his mistrial motion based on the “were they lying” questions. The trial court again denied the motion, noting that the questioning did not seek to elicit an opinion on whether the officers were lying but rather focused on the difference between the testimony.
In Chatman, supra, 38 Cal.4th 344, the California Supreme Court addressed the question of whether a criminal defendant may properly be asked whether another witness was lying when giving testimony contradicting the defendant’s testimony. The court noted that there were then three existing lines of cases on the issue: those which hold that such questions are always improper because they call for a lay opinion without foundation and invade the jury’s function of determining credibility; those which hold that asking such questions is never misconduct; and those which “counsel[] a trial court to consider these questions in context.” (Id. at p. 382.)
The Chatman court stated that although it is misconduct for a prosecutor intentionally to elicit inadmissible testimony, merely eliciting evidence is not misconduct. Nothing in the record in that case indicated that the prosecutor sought to present evidence he knew was inadmissible, “especially given that the court overruled defendant’s objections and . . . the applicable law was unsettled at the time of trial.” (Id. at p. 380.)
Coincidentally, Chatman was decided the day the questions about lying in this case were asked. Up until Chatman was decided, the controlling authority consisted of a case decided by this court, Zambrano, supra, 124 Cal.App.4th 228, whichheld that “were they lying” questions are not categorically improper and that such questions may be appropriate in limited circumstances, such as to clarify a particular line of testimony. (Zambrano, supra, 124 Cal.App.4th at p. 242; see also Chatman, supra, 38 Cal.4th at p. 381 [Zambrano is the first California case to determine the propriety of “were they lying” questions].)
In any event, even under Chatman, the prosecutor’s questions were not impermissible. In Chatman, the court held: “A defendant who is a percipient witness to the events at issue has personal knowledge whether other witnesses who describe those events are testifying truthfully and accurately. As a result, he might also be able to provide insight on whether witnesses whose testimony differs from his own are intentionally lying or are merely mistaken. When, as here, the defendant knows the other witnesses well, he might know of reasons those witnesses might lie. Any of this testimony could be relevant to the credibility of both the defendant and the other witnesses. There is no reason to categorically exclude all such questions. Were a defendant to testify on direct examination that a witness against him lied, and go on to give reasons for this deception, surely that testimony would not be excluded merely because credibility determinations fall squarely within the jury’s province. Similarly, cross-examination along this line should not be categorically prohibited.” (Chatman, supra, 38 Cal.4th at p. 382.)
Defendant contends that the prosecutor’s questioning was misconduct under Chatman because defendant did not know the officers and thus had no reason to know why they might lie. He contends that Chatman requires such knowledge in order to justify cross-examination as to whether a witness lied.
We do not construe Chatman so narrowly. Defendant was a participant in the conversation to which the officers testified and may have had sufficient interaction with the officers to know why they might lie. Defendant testified that Johnson had “said a lot of lies” to defendant. Defendant’s testimony that the officers were lying was relevant to the credibility of both the defendant and the other witnesses, even if defendant did not know the officers personally. The prosecutor’s questions thus do not constitute prosecutorial misconduct, and even if they were improper, the error was not prejudicial reversible error.
D. Failure to Produce Informant Letter
Defendant contends the prosecutor committed prejudicial misconduct by failing to produce before trial an informant’s letter detailing defendant’s involvement in the Mexican Mafia while in jail. Based on the letter, at trial the prosecutor asked defendant:
“Q. . . . Aren’t you running things over there in jail?
“A. No, I am not. [¶] . . . [¶]
“Q. You are in a tank with other gang members; is that correct?
“A. The whole floor is gang members.
“Q. One of the things that you’re doing is you’re running our Riverside Presley Detention Center for the Mexican Mafia; aren’t you?
“A. No.”
When defendant moved for mistrial based on the ground these questions lacked foundation, the prosecutor revealed that her questions were based on an informant’s letter she had received three or four weeks earlier. Defense counsel conceded that the prosecutor had previously told him she had been informed defendant was in the Mexican Mafia and was running the jail for the Mexican Mafia, including “taking roll” in the jail. The court noted the defense was entitled to investigate the matter and interview the informant. The court ruled the letter provided sufficient foundation for the prosecutor’s questions.
Defendant complained that plaintiff should have produced the letter earlier and, had she done so, defendant might not have testified. The court agreed the prosecutor should have produced the discovery earlier but concluded defendant was not prejudiced because defendant denied the prosecutor’s questions concerning the Mexican Mafia and defense counsel was told beforehand about defendant’s involvement in the Mexican Mafia.
Defendant maintains that the prosecutor ambushed defendant with her questions about the Mexican Mafia, violated defendant’s statutory right to discovery under section 1054.1, violated defendant’s due process rights to discovery of evidence relevant to his credibility, and thwarted defendant’s ability to present an intelligent defense. Defendant also argues that even though defendant denied he was involved in the Mexican Mafia, the prosecutor’s questions led the jurors to believe he was running the Mexican Mafia in the jail.
Plaintiff argues the prosecutor was not required to provide the defense with the letter because the prosecutor did not intend to call the informant as a witness. In addition, the prosecutor notified the defense that she had been informed of defendant’s role in jail as a member of the Mexican Mafia. Furthermore, any such error was harmless.
We conclude the prosecutor was not required to produce the informant letter under section 1054.1. Section 1054.1 primarily concerns the prosecution’s obligation to notify the defense of witnesses the prosecution intends to call and produce the defendant’s statements, exculpatory evidence, evidence obtained in connection with the investigation of the criminal charges, and felony convictions of material witnesses. The informant’s letter does not fall under any of the categories of information or evidence which must be produced under section 1054.1.
Defendant’s reliance on People v. Gonzalez (2006) 38 Cal.4th 932, is misplaced. Gonzalez is not dispositive since the court did not distinguish between discovery of rebuttal witnesses, which is required under section 1054.1, and other rebuttal evidence, such as tangible objects or documents not required under section 1054.1.
The court in People v. Tillis (1998) 18 Cal.4th 284 (Tillis), however, addresses this issue. In Tillis, on cross-examination, the prosecutor asked the defendant’s expert, a psychologist, about the expert’s use of drugs and his arrest. The court in Tillis rejected the defendant’s contention that the prosecutor violated section 1054.1 and defendant’s due process rights by failing to provide the defense, before trial, with evidence the prosecutor relied on to cross-examine defendant’s expert on the expert’s prior arrest for snorting cocaine. (Tillis at p. 287.)
The California Supreme Court concluded in Tillis that nonproduction of the evidence was not a discovery violation of section 1054.1 because the evidence concerning the expert witness’s arrest and underlying conduct fell outside the scope of section 1054.1. (Tillis, supra, 18 Cal.4that pp. 292-294.) The court also concluded there was no violation of the defendant’s right to due process because there was no violation of discovery reciprocity, an element of fundamental fairness in criminal discovery. (Ibid.)
Likewise, in the instant case, the prosecution was not required under section 1054.1 to produce the informant’s letter, used as a basis for cross-examining defendant. Also, nonproduction of the letter before trial was not a violation of defendant’s right to due process. In addition, there was no “ambush” since the prosecutor told defense counsel before the trial she had information that defendant was running the jail for the Mexican Mafia.
Even assuming the prosecution should have produced the letter immediately upon discovering it, failure to do so was harmless error. It is not reasonably probable that had the defense been provided with the letter before trial, defendant would have obtained a different verdict. (In re Ferguson (1971) 5 Cal.3d 525, 535, People v. Gonzalez, supra, 38 Cal.4th at p. 960, Zambrano, supra, 124 Cal.App.4th at p. 243.) The prosecutor told the defense she had information that defendant was running the Mexican Mafia in the jail. Despite knowing this, defendant testified. It thus is likely defendant would have testified even if the prosecutor had produced the informant’s letter. Furthermore, apparently the questions relating to defendant’s gang membership did not influence the jury’s verdict since the jury did not find the gang allegation true.
While we recognize there were numerous instances in which the prosecutor made inappropriate remarks and committed improper conduct, we conclude this did not amount to prejudicial error. “‘“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. Samayoa (1997) 15 Cal.4th 795, 841; see also People v. Ochoa (1998) 19 Cal.4th 353, 427 and People v. Ayala (2000) 23 Cal.4th 225, 283-284.) Fortunately for the prosecution, this was not the case here since the instant case was not a close case, and thus the prosecutor’s misconduct, individually and cumulatively, did not so infect the trial as to amount to reversible, prejudicial error.
While the prosecutor succeeded in repeatedly committing inappropriate conduct with little, if any, censure, we by no means condone this type of over-zealous prosecution. Had there not been overwhelming evidence supporting defendant’s conviction, no doubt the prosecution would be retrying this case, and this would result in a tremendous waist of time, effort, and public resources. There was absolutely no need or justification for such overly aggressive, inappropriate advocacy on the part of the prosecutor. Because of the potentially adverse consequences of such conduct, particularly in terms of the negative image shed on our judicial system and prosecutors alike, we emphasize that this reprehensible conduct should not be tolerated in the trial courts, and counsel committing such conduct should be severely reprimanded for stepping over the line.
3. Disposition
The judgment is affirmed.
We concur: McKinster, Acting P. J., King, J.