Opinion
D058572 Super. Ct. No. FVI017755
02-17-2012
THE PEOPLE, Plaintiff and Respondent, v. RICHARD CORTINA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Bernardino County, Eric M. Nakata, Judge. Affirmed.
I.
INTRODUCTION
Defendant Richard Cortina appeals from a judgment of conviction after a jury convicted him of one count of murder, two counts of assaulting a peace officer, and one count of being a felon in possession of a firearm.
On appeal, Cortina raises the following claims: (1) that the trial court erred in admitting certain statements made by a witness/victim as to what another individual said to Cortina at the time Cortina shot the murder victim, on the ground that the statements constituted inadmissible hearsay; (2) that the court abused its discretion in admitting evidence of his character for violence without first holding a hearing under Evidence Code section 402 to determine the admissibility of the evidence; (3) that the court abused it discretion in admitting evidence of his prior convictions without weighing the admissibility of the evidence under Evidence Code section 352 or applying the factors announced in People v. Beagle (1972) 6 Cal.3d 441; (4) that the prosecutor committed misconduct by engaging in an argumentative examination of Cortina by asking Cortina whether other witnesses had lied, and later referring to Cortina's responses to these questions during closing argument; and (5) that the cumulative effect of these errors requires reversal.
We conclude that as to all but one of Cortina's contentions, Cortina has either forfeited the arguments or they fail on the merits. With respect to Cortina's contention that the trial court erred in admitting certain hearsay statements, we conclude that even if we presume that the statements should not have been admitted, any error in their admission was harmless given the state of the evidence against Cortina. We therefore affirm the judgment of the trial court.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
1. Additional background prior to the events leading to the charges
Cortina and Diane Trejo had known each other for approximately 20 years, and had lived together from 1988 until 1997, when Cortina went to prison for possession with intent to manufacture a controlled substance. The two separated in 1998.
Sometime in 1998, Cortina met Paris Follman, a friend of Trejo's. On New Year's Eve 1999, Cortina, Follman and Trejo engaged in a "threesome." Follman, who was married at the time, became pregnant with Cortina's child as a result of that encounter. Follman initially kept the paternity of her child a secret, but in 2003, she told Cortina for the first time that she believed he was the father of the child.
Follman, who separated from her husband, began dating Paul Sinohui. At some point, Trejo had sex with Sinohui in retaliation for Follman not having told Trejo that Cortina had fathered Follman's child.
Despite all of this, Follman, Trejo and Sinohui continued to socialize together.
2. The incident at Debbie Strause's home
On September 2, 2003, Trejo and Follman were on their way to Cheri Laughead's apartment on Laguna Road in Apple Valley. Trejo's car broke down near the apartment, so Trejo and Follman walked the rest of the way. The group of people who were hanging out at Laughead's apartment eventually became "hammered" from drinking alcohol. Follman had also used methamphetamine and morphine before she arrived at Laughead's apartment.
Sinohui picked up Follman from Laughead's apartment at around 11 p.m. that night. Trejo spent the night at Laughead's apartment. That night, Follman and Sinohui slept at Debbie Strause's house, which was approximately half a mile from Laughead's apartment. Cortina picked up Trejo from Laughead's home the following morning, September 3. Follman and Sinohui were sleeping at Strause's house when they were awakened by Trejo, who was standing in the doorway of the bedroom asking, "Where's my car?" Sinohui, who seemed upset, got out of bed and walked with Trejo into the garage. Follman did not know what was going on.
Sinohui returned to the bedroom a little while later with a .22 caliber sawed off rifle that he regularly carried. Sinohui told Follman that he had taken Trejo's car, and that he told Trejo she would get her car back when she paid Sinohui the money that she owed him. Sinohui told Follman that Cortina had gotten involved in the dispute between Sinohui and Trejo, and that Sinohui had said to Cortina, " 'Look Homey, her debt is no longer on her head since you want to get involved; it's now on your head.' "
Strause arrived home with her husband and warned Follman and Sinohui that "parole was coming." Follman was hiding from law enforcement officers because she had failed to report while on parole and had been using drugs. Heeding Strause's warning, Follman and Sinohui left Strause's house. Sinohui took his .22 caliber rifle with him, and placed it underneath the hood of his car, as was his usual habit.
Follman and Sinohui drove to Laughead's apartment, where they arrived at around 2 or 3 p.m. Soon after they arrived, Trejo called Laughead's apartment, and Follman told Trejo that they would make sure Trejo got her car back.
A little while later, Trejo opened the door and entered Laughead's apartment without knocking, which was not unusual for her. However, Trejo did not respond to Larry Taylor, one of Laughead's neighbors whom Trejo knew, when he said hello to her. Upon entering the apartment, Trejo walked straight toward Follman and said, " 'Stay out of it.' " Cortina entered the apartment behind Trejo.
Once inside the apartment, Cortina asked Sinohui, " '[D]o you have a problem with me fool?' " Cortina then said to Sinohui, " 'Here's your quarter ounce,' " pulled a gun from his shirt and pointed it at Sinohui. Sinohui did not say anything, but started to stand up and face Cortina. When Sinohui was almost upright, Cortina shot him. Sinohui fell face down onto the floor. Follman screamed and Taylor yelled, " 'Gun.' " Taylor and Laughead ran out of the apartment through a sliding glass door that was near where they had been standing in the kitchen.
This statement is apparently a reference to a quarter-ounce of methamphetamine, which Trejo apparently obtained from Sinohui, and for which Sinohui believed Trejo owed him money.
After a few seconds, Cortina pointed the gun at Follman and said that he was sorry, but "[h]e had to cut all ties." Follman thought that Cortina was going to kill her. Trejo jumped in front of Follman to prevent Cortina from shooting Follman. Cortina then shot Sinohui a second time, in the head, while Sinohui was still lying face down on the ground.
Taylor testified that he believed he heard the second gunshot immediately after he ran out the sliding glass door. Laughead estimated that she heard the second gunshot about five seconds after the first gunshot, and approximately two seconds after she ran out the sliding glass door.
Immediately after shooting Sinohui, Cortina walked out of the apartment and went to his car. Trejo told Follman that it was "okay" and that they "ha[d] to go." Follman was scared that Cortina was going to kill her, but Trejo kept saying to Follman, "Let's go." Follman ultimately got into Cortina's car along with Trejo.
In the meantime, Taylor and Laughead had run through a fence to a nearby convenience store. After they arrived at the convenience store, Taylor called 911. Sheriff's deputies came to the convenience store and spoke with Laughead and Taylor. Laughead agreed to allow the deputies to search her apartment. When deputies and paramedics arrived at the apartment at approximately 3:45 p.m., they found Sinohui's body in the living room. Sinohui had suffered gunshot wounds to the top of his head, the top of his right shoulder, his right cheek, and his neck.
Cortina, Trejo and Follman drove to the Budget Inn in Victorville, where Cortina had been staying. Once they arrived at the Budget Inn, Cortina told Trejo to go out and buy bullets. Trejo and Follman left in the car, but they returned to the motel parking lot after dark without having purchased any bullets. At that point, Follman ran off to a friend's house that was a few blocks away.
3. Cortina's confrontation with police
At around 2:00 a.m. on September 4, 2003, sheriff's deputies set up a perimeter around the Budget Inn after having received a call that Cortina was in room 108 of the motel. A sheriff's sergeant used the public announcement system in his patrol car to tell Cortina repeatedly that the sheriff's department was outside, and to order Cortina to come out of the room with his hands up. This standoff lasted for approximately an hour. At around 3:00 a.m., Cortina finally opened the door to his motel room. Cortina was holding a large frame revolver in his right hand, pointed at the ground.
Deputies James Echols and Matthew Roth, who were approximately one car length away from each other, yelled at Cortina, telling him to drop the gun or he would be shot. Cortina responded, "Just do it," and did not drop the gun. Cortina proceeded to yell out profanities and said things to the officers like, " 'What are you going to do[?] What are you waiting for?' " After officers again ordered Cortina to drop the gun, Cortina asked, "Why should I?" Cortina then squatted to the ground, as if he was going to put the gun down, but instead abruptly stood up and pointed the gun in the direction of Deputies Echols and Roth. Echols saw a muzzle flash from Cortina's gun and heard a gunshot.
Sergeant Kurtis Lackman, who was to Echols's left and not directly in the line of fire, was not sure whether Cortina had fired his weapon and did not see a muzzle flash.
Roth, Echols, and Lackman all yelled " 'Gun' " and fired multiple rounds toward Cortina. Cortina was hit and fell to the ground. The revolver that Cortina had been holding also fell to the ground, but was within Cortina's reach. Roth kicked the gun away from Cortina. Officers then handcuffed Cortina, who was bleeding, and called an ambulance.
4. Additional evidence
A sheriff's detective interviewed Follman on September 5, 2003. Follman told the detective that she and Sinohui had been staying at Strause's house at the time of the shooting because her husband had kicked her out of their house. Follman explained that on the day of the shooting, while Trejo, Sinohui and Cortina were in Strause's garage, Trejo asked Cortina if he was going to allow Sinohui to "punk him" like that. Follman further said that after she and Sinohui left Strause's house that day, Sinohui told her that he had parked Trejo's car on Jacaranda Street.
Follman also told the detective that before Cortina shot Sinohui, Cortina said, "Here's your half ounce, homie." After Cortina shot Sinohui the first time, Follman screamed and went to stand near Sinohui, but Trejo told Follman to " '[s]tay the fuck out of it.' " Cortina then pointed the gun at Follman and indicated that "he couldn't leave any witnesses so he was going to have to shoot her." Trejo protected Follman by standing in front of her and saying, " 'No. If she goes with us you don't have to kill her.' " However, Trejo then said to Cortina, " 'Do it again,' " and Cortina shot Sinohui in the head.
On September 16, 2003, a sheriff's detective interviewed Cortina while he was hospitalized in the jail ward of the Arrowhead Regional Medical Center. After some initial problems with the recording equipment were resolved, the interview was recorded. The detective advised Cortina of his Miranda rights, and Cortina agreed to talk with the detective. Cortina said that he shot Sinohui because Sinohui had disrespected him earlier that day in the garage of Strause's house. Specifically, Sinohui told Cortina that Cortina had "fucked up," and that, in exchange for Trejo's car, Sinohui now wanted $1,000, plus a quarter-ounce of methamphetamine.
Cortina said that after this exchange in the garage, Sinohui went back inside Strause's house, and Cortina and Trejo drove to the Budget Inn. Trejo said that she was upset with Sinohui and asked Cortina to get her a gun so she could shoot him. Cortina told Trejo that he already had a gun, which he had obtained the day before, but he did not want to let Trejo use it. The pair then drove to Laughead's apartment and saw Sinohui's car parked there. Trejo walked into the apartment first, and Cortina followed. According to Cortina, as soon as he walked into the apartment, Sinohui rushed at him, so Cortina shot him twice. Cortina told the detective that it was only after Cortina had shot Sinohui that Cortina said, " 'I got your quarter ounce.' " Cortina remembered Trejo telling him to shoot Sinohui one more time, saying, " 'One more, Rich, one more.' " Cortina denied that he had shot Sinohui again in response to Trejo's urging, explaining that Follman's screaming had distracted him. Cortina admitted having pointed the gun at Follman, but said that Trejo had stepped in and told him not to shoot Follman.
Cortina thus acknowledged that he shot Sinohui twice. However, Cortina claimed that the second shot came immediately after the first, and denied that he shot Sinohui after Trejo told him to shoot Sinohui again.
Cortina also described the incident with police at the Budget Inn. He said that he drank a beer and then walked outside the motel with a gun in his hand. He wanted to die. Cortina explained that he fired the gun into the air, and that the officers then shot him. B. Procedural background
Cortina was charged by amended information with one count of murder (Pen. Code, § 187; count 1); two counts of premeditated attempted murder of a peace officer (§§ 664/187; counts 2 & 3); and one count of being a felon in possession of a firearm (§ 12021, subd. (a)(1); count 4). The information also alleged that in committing the murder, Cortina caused the victim's death by personally discharging a firearm (§12022.53, subd. (d)).
Further statutory references are to the Penal Code unless otherwise indicated.
A jury found Cortina guilty as charged on counts 1 and 4, and found him guilty of the lesser included offense of assault with a firearm on a peace officer on counts 2 and 3.
The trial court sentenced Cortina to a total of 10 years plus a consecutive 50 years to life in state prison. Cortina filed a timely notice of appeal from the judgment.
III.
DISCUSSION
A. Even assuming that the trial court erred in admitting evidence regarding statements made by a witness/victim about what Trejo said to Cortina, any presumed error was harmless
1. Additional background
At trial, Follman testified that after Cortina shot Sinohui the first time, Cortina pointed the gun at Follman and said that he had to "cut all ties." Follman was about to testify regarding what happened next, saying that Trejo "got in the way and told him—," when defense counsel objected on the ground that Follman's anticipated testimony concerning what Trejo said would be hearsay. The court and the attorneys held a discussion outside the presence of the jury, during which the court observed that it was possible that the statements could be used for a nonhearsay purpose, but that the court would have to know what the statements were before it could rule. The prosecutor offered that Follman would testify that Trejo had said, essentially, "[D]on't kill Paris," and explained that he was offering the statement as "a verbal act," and not "for any purpose of proving the truth of what [Trejo] is saying. It's part of the sequence of events that occurred and essentially stopped [Cortina] from shooting [Follman]."
The court again asked, "So you're not offering it for the truth?" After the prosecutor responded in the affirmative, the court said, "And I will admonish the jury that he's not offering it for the truth so, therefore, it's not hearsay, okay?" Defense counsel responded, "Okay."
Follman proceeded to testify that when Cortina pointed the gun at her, Trejo stepped in front of the gun and said to Cortina, "Don't. Don't. She won't rat. She won't rat." The court immediately admonished the jury, "Ladies and gentlemen, that statement is not offered for the truth but it's offered for the fact that the statement was made."
The prosecutor continued his direct examination of Follman, asking her what Trejo did after these events. Follman responded, "She kind of—first she consoled me and then she moved back and she was looking around. And she told Richard to put him out of his misery, put another one in him." Defense counsel objected to this testimony on hearsay grounds, but the court overruled the objection, saying to the jury, "Not for the truth, ladies and gentlemen, but for the fact that the statement was made."
2. Analysis
Cortina contends that the trial court abused its discretion in allowing Follman to testify about what Trejo said as nonhearsay verbal acts. The People argue that the first statement, "Don't[,] [d]on't[,] [s]he won't rat[,] [s]he won't rat," was a nonhearsay verbal act because the comments explained Trejo's act of stepping in front of Follman when Cortina pointed a gun at her. The People maintain that the second statement, "Put another one in him," constituted nonhearsay "operative fact" evidence because it was "offered as original evidence rather than for its truth."
We need not determine whether it was proper for the trial court to allow the prosecutor to elicit from Follman the statements that Trejo made to Cortina. Even if we assume that the court erred in permitting Follman to testify as to what Trejo said (since the statements at issue clearly contained hearsay implications, i.e., that Cortina was about to shoot Follman, and that Cortina had shot Sinohui once already), any error in admitting the statements was harmless in light of the overwhelming evidence of Cortina's guilt.
The prejudicial effect of state law errors in admitting hearsay statements is reviewed under the standard announced in People v. Watson (1956) 46 Cal.2d 818, 836-837—i.e., reversal is appropriate only if there is a reasonable probability that the defendant would have obtained a more favorable result in the absence of the error. In this case, there were numerous witnesses to the shooting, all of whom testified that Cortina walked into the apartment and shot Sinohui without provocation. The witnesses also testified that they saw and/or heard Cortina shoot Sinohui a second time, between five and 10 seconds after he first shot Sinohui and after Sinohui had fallen to the ground as a result of the first shot. There is simply no reasonable probability that Cortina would have obtained a more favorable result if Follman had not testified to what she heard Trejo say to Cortina at the time of the shooting. B. By failing to request a hearing or object to the lack of a hearing, Cortina forfeited his contention that the trial court erred in admitting evidence of Cortina's violent character without holding an Evidence Code section 402 hearing
These statements could not have influenced the jury's verdicts with respect to the offense arising out of Cortina's confrontation with police, or his conviction for being a felon in possession of a firearm, since the statements went only to the evidence of Cortina's guilt with respect to the charge of Sinohui's murder.
Cortina complains that the trial court abused its discretion by allowing the prosecution to introduce evidence of certain specific acts that indicate Cortina's propensity for violence, without first holding a hearing pursuant to Evidence Code section 402. Specifically, Cortina claims that the prosecutor failed to establish that Cortina had in fact threatened his sister with violence and that he had choked his sister's husband prior to calling them as witnesses. According to Cortina, the trial court abused its discretion in failing to hold an Evidence Code section 402 hearing to establish those preliminary facts before allowing the jury to hear the evidence at issue. Cortina contends that "if the court had conducted a foundational hearing, defense counsel could have contested the admission of the evidence or at least argued to limit [the] testimony to Appellant's alleged threats to [his sister's] child or to limit [his sister's husband's] testimony only to the fact that [the husband] and Appellant engaged in physical altercation."
Cortina asserts that the prosecutor "apparently expected Appellants' sister to testify to the preliminary fact that [he] threatened her with violence, but Appellant's sister stated that he did not threaten her," and "the prosecution expected Appellant's brother-in-law to testify to the preliminary fact that Appellant choked the brother-in-law, but the brother-in-law testified that Appellant never choked him."
Prior to trial, defense counsel indicated that he planned to introduce evidence of Sinohui's character for violence, pursuant to Evidence Code section 1103, subdivision (a)(1), to support the defense's theory that Cortina had acted in self-defense in shooting Sinohui. The prosecutor explained that if defense counsel presented evidence of the victim's character for violence, the prosecutor would seek to introduce evidence of an incident involving Cortina's sister and brother-in-law in which Cortina displayed a propensity toward violence.
Evidence Code section 1103, subdivision (a)(1) permits the defense to introduce opinion evidence, evidence of reputation, or evidence of specific acts to establish a character trait of the victim. Subdivision (a)(2) of this provision permits the prosecution to rebut evidence of a victim's violent character by presenting evidence of the defendant's violent character.
This evidence was irrelevant to the offense charged in the other counts because those counts involved either police officers (counts 2 and 3) or no specific victim (count 4).
While discussing the admissibility of this evidence, the prosecutor noted that the evidence he would seek to introduce would be in rebuttal and "would largely depend [on] what, if any, comes out from the defense [regarding the victim's character for violence]. So I probably will seek to revisit it once we get to that point." The court responded, "Sure. I think that is fair for either side too. Especially [defense counsel], if you're not certain about something, we may be able to do [an Evidence Code section] 403 hearing before—402 hearing, 403 hearing before that witness testifies just so that it is clear that the evidence that the particular witness is going to give is competent if there's a question."
After a brief discussion concerning a collateral matter, defense counsel said, "[W]e can take it as it comes and ask for [an Evidence Code section] 402 [hearing] if we need it. I don't know how much [the prosecutor] is going to bring out when he presents these witnesses, if any. We will just have to see how it goes." The court responded, "Okay. All right. So my [Evidence Code section] 1103 ruling then is basically, we will take that as it comes depending on what it is."
At trial, Cortina introduced evidence demonstrating Sinohui's character for violence, including that Sinohui had been convicted of robbery, that he had committed four firearm-related parole violations, that he was known to carry firearms, and that, after his death, police found a rifle and a BB gun in Sinohui's vehicle.
After the defense first introduced evidence that a rifle and a BB gun had been found in Sinohui's vehicle, the trial court raised the issue of other evidence the parties intended to seek to introduce pursuant to Evidence Code section 1103. The court asked whether defense counsel had a witness who was going to testify as to the prior bad acts of the victim. After defense counsel responded that he did have such a witness, the court said, "And in turn, the question was yesterday whether or not [or] how [the prosecutor] was going to rebut that. And I guess there is an incident that occurred ten days before the shooting?" The court asked the prosecutor if he wished to present evidence on that issue, and the prosecutor said that he did. The court then said, "As I understand it that is the only bad act that you plan on impeaching or under [Evidence Code section] 1103 are allowed to bring in," and the prosecutor replied, "Yes." Defense counsel then said, "Well, I agree as to bad acts. And then there's two prior convictions I believe that [the prosecutor] would be able to impeach with that I will address on the direct examination." In response to the trial court's inquiry whether there was anything else, both the prosecutor and defense counsel responded, "No."
Cortina's sister, Guadalupe Charlton, testified on rebuttal for the prosecution. She stated that in August 2003, she and Cortina got into an argument at her mother's house.
Cortina was upset because Guadalupe refused to cosign a lease with Cortina for an apartment. Guadalupe testified that Cortina did not threaten her on that occasion, but he did threaten her six-year-old daughter, who was nearby. Guadalupe told her daughter to lock herself in a bedroom, and then called her husband, Robert Charlton, to come take her and their daughter home. Robert arrived and Cortina met him in the driveway. Guadalupe saw Cortina and Robert wrestling in the driveway. Guadalupe and other guests at the house went outside and stopped the fight.
We refer to Gaudalupe and her husband by their first names for the purpose of clarity.
Robert also testified on rebuttal. According to Robert, when he spoke with his wife on the telephone that night, his wife told him that Cortina had threatened her and her family. After speaking with his wife on the telephone, Robert went to Guadalupe's mother's house. Cortina returned to the house and Robert went outside to confront him. After some arguing, the altercation became physical. Cortina put one arm around Richard's waist, and with his other hand "reach[ed] around to grab [Robert] by the throat." Robert was able to defend himself from Cortina's attempt to choke him.
Guadalupe and Robert gave conflicting testimony as to whether it was Cortina or Robert who went outside to meet the other in the driveway of the house.
On appeal, Cortina asserts that Guadalupe and Robert "did not testify as expected, and if the court had conducted a foundational hearing, defense counsel could have contested the admission of evidence or at least argued to limit testimony to Appellant's alleged threats to Guadalupe's child or to limit Robert's testimony only to the fact that Robert and Appellant engaged in a physical altercation." Cortina's argument fails for multiple reasons.
First, Cortina never requested an evidentiary hearing under Evidence Code section 402. As a result, he has forfeited any claim that the trial court abused its discretion in failing to hold such a hearing. (See In re Seaton (2004) 34 Cal.4th 193, 197-200.) "[A]s a general rule, 'the failure to object to errors committed at trial relieves the reviewing court of the obligation to consider those errors on appeal.' [Citations.]" (Id. at p. 198.) "This applies to claims based on statutory violations, as well as claims based on violations of fundamental constitutional rights. [Citations.]" (Ibid.)
Second, it is not at all clear from the record that the witnesses did not testify "as expected," as Cortina claims on appeal. The prosecutor sought to introduce testimony that was probative of Cortina's character for violence, and the testimony that the prosecutor elicited from Guadalupe and Robert was clearly relevant to this issue. Cortina has not pointed to any portion of the record where the prosecutor indicated an intention to rely solely on testimony that Cortina had threatened Guadalupe, as opposed to her daughter, or that Cortina actually managed to choke Robert, as opposed to having merely attempted to choke him. It is thus unclear how an Evidence Code section 402 hearing would have resulted in any limiting of the testimony, since the testimony that the prosecutor elicited was probative of Cortina's penchant for behaving in a violent manner.
For these reasons, we reject Cortina's contention that the trial court abused its discretion by failing to conduct a hearing pursuant to Evidence Code section 402 with respect to the prosecution's rebuttal evidence pertaining to Cortina's character for violence. C. Cortina forfeited his contention that the trial court erred in admitting evidence of Cortina's prior convictions
Cortina contends that the trial court abused its discretion in admitting evidence of his prior convictions without considering whether admitting the evidence would be more probative than prejudicial under Evidence Code section 352, and without addressing the factors that a court is to consider in deciding whether to admit a prior conviction, as outlined in People v. Beagle, supra, 6 Cal.3d at pages 452-453, superseded on other grounds in People v. Castro (1985) 38 Cal.3d 301, 307. Cortina complains that the trial court concluded that "both his misdemeanor section 273.5 and Health & Safety Code section 11383, subdivision (c), violations were crimes of moral turpitude with no evidence of a balancing process reflected in the record." Cortina asserts that because of the lack of any record that the court engaged in an analysis of the appropriate factors, the court abused its discretion in admitting the evidence.
Cortina did not object to the admission of the evidence of his prior convictions on the ground that the trial court failed to weigh the potential prejudice against the probative value of the evidence or to consider the Beagle factors. By failing to object on these grounds, Cortina has forfeited this evidentiary claim, as well. (See Evid. Code, § 353, subd. (a) [a judgment shall not be reversed based on erroneous admission of evidence unless the record shows the party seeking reversal objected to the evidence on the specific ground raised]; see also In re Seaton, supra, 34 Cal.4th at pp. 197-200.) D. Cortina forfeited his claim of prosecutorial misconduct; in any event, the prosecutor did not commit misconduct during his cross-examination of Cortina, or in referring to Cortina's responses to questions posed on cross-examination, during closing argument
Cortina contends that the prosecutor committed misconduct by engaging in an argumentative examination of Cortina, and he further suggests that the prosecutor engaged in misconduct when the prosecutor referred in closing argument to Cortina's responses to some of the questions that the prosecutor posed. Cortina's contentions appear to be based on some or all of the following exchange that occurred as the prosecutor examined Cortina:
"Q: Do you remember I asked [Laughead] to estimate how much time passed between the first shot and the second shot?
"A: Yes.
"Q: And she said at least five seconds; right?
"A: That's what she said. Yes.
"Q: And so she's wrong about that?
"A: Yes. Because I'm pretty sure Larry Taylor said two seconds. So she says five; he says two. They both said different times. I don't know. Do you know what I mean?
"Q: Didn't [Taylor] say five to ten seconds?
"A: No, he didn't.
"[¶] . . . [¶]
"Q: . . . And so if Larry Taylor had described it as being that long [i.e., five seconds], he would have been wrong too?
"A: This is what I heard him say.
"Q: I'm not asking you what he said. I'm asking you if he was wrong if he described it in that way.
"A: Yes.
"Q: So [Laughead] would be wrong about the time. And if he said that, then Larry is wrong about the time too?
"A: I'm thinking [Taylor] is more accurate.
"[¶] . . . [¶]
"Q: . . . [¶] Now, [Follman], when she testified, she described you walking in, shooting Paul, and then pointing the gun at her after the first shot. Do you remember that?
"A: Okay. Yes. I remember that.
"[¶] . . . [¶]
"Q: But you say that you didn't [point the gun at Follman] until after the second shot?
"A: Right.
"[¶] . . . [¶]
"Q: And then [Trejo] said, 'Do it again.' Do you remember [Follman] saying that?
"A: Yes. I remember [Follman] saying that.
"Q: You're saying that [Follman] is wrong?
"A: No. If that's what she heard, that's what [s]he heard. I don't know what she was hearing. I'm just telling you from what I saw. That's it.
"Q: Well, when [Follman] described you pointing the gun at her after firing one shot,—
"A: Right.
"Q: —was [Follman] wrong?
"A: Yes.
"[¶] . . . [¶]
"Q: And then [Follman] described after [Trejo] says, 'Do it again,' you walked over and shot Paul as he laid on the floor in the position that we see on Exhibit No. 20.
"A: That's what she said. Yes.
"Q: She's wrong about that?
"A: Yes.
"Q: [Laughead] is wrong, [Taylor] could be wrong, and [Follman] is wrong?
"A: Okay. [Follman] is wrong. Yes. Like I said, I don't - [Laughead], I'm not too sure. [Taylor], he said a couple of seconds in between and he was out the door.
"Q: So everybody is wrong except for you?
"A: No. No. No. No. No.
"[Defense Counsel]: Objection. Argumentative.
"The Court: Sustained."
Cortina did not request that the court admonish the jury with respect to this question.
On appeal, Cortina complains that the trial court gave no limiting instruction to the jury, and that the question to which his counsel objected was not stricken from the record. However, the court did sustain the objection. To the extent that Cortina desired some further admonishment with respect to the question at issue, he was required to request such an admonishment. By failing to do so, he has forfeited any further complaint with respect to this purported misconduct. (See Stanley, supra, 39 Cal. 4th at p. 959 [lack of objection or request for curative admonition waives claim of prosecutorial misconduct on appeal].)
The defense also failed to object to any of the other questioning in which the prosecutor asked Cortina whether the other witnesses were "wrong" about their observations of what had occurred. Cortina has thus forfeited any objection to the prosecutor's conduct with respect to this portion of the prosecutor's questioning of Cortina. (See People v. Stanley (2006) 39 Cal. 4th 913, 959 (Stanley).)
Although the Stanley court denominated the issue one of "waiver," the failure to raise a legal claim is more properly characterized as "forfeiture" of that claim. (See People v. Simon (2001) 25 Cal.4th 1082, 1097, fn. 9 [" 'Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the "intentional relinquishment or abandonment of a known right." [Citations.]' [Citation.]"].)
Further, there was simply no impropriety in the questioning that the prosecutor engaged in here. Cortina cites to People v. Zambrano (2004) 124 Cal.App.4th 228 (Zambrano),for the proposition that the prosecutor in this case committed misconduct by requiring Cortina to provide an opinion as to whether other witnesses were liars. In Zambrano, a prosecutor asked the defendant whether the other witnesses were lying. The court determined that this question constituted harmless prosecutorial misconduct. (Id. at pp. 241-243.) Cortina argues that "[o]n cross, the prosecutor asked Appellant whether all the other witnesses were lying, and pointedly asked 'so everyone [was] wrong except you?' " However, the prosecutor in this case did not ask Cortina whether he believed that the other witnesses were lying. Rather, the prosecutor asked Cortina whether he believed that the other witnesses were "wrong" with respect to how they described the events of that night—i.e., whether they were accurate or inaccurate in their testimony. Cortina has cited no authority to support the contention that a prosecutor's questioning of a witness in the manner that Cortina challenges constitutes prosecutorial misconduct. We do not consider it to be so. The prosecutor's questions all related to matters that were within Cortina's personal knowledge, and as to which he could therefore have provided competent testimony regarding whether the other witnesses were mistaken in their testimony pertaining to these matters. Under these circumstances, asking Cortina the questions at issue did not constitute misconduct.
The Zambrano court specifically did not conclude that it is "always misconduct for a prosecutor to ask 'were they lying' questions." (Zambrano, supra, 124 Cal.App.4th at ap. 242.) Although such questions "generally elicit inadmissible and irrelevant lay opinion testimony [citation], they may be allowable in limited circumstances [citation]." (Ibid)
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Cortina also complains that during the prosecutor's closing argument, the prosecutor "highlighted his argumentative examination by sarcastically noting that, according to Appellant's testimony, 'everyone was wrong but [Appellant].' " During closing argument, the prosecutor noted that the jury had to consider Cortina's credibility, and determine whether Cortina's story was reasonable. The prosecutor then said,
"As I said, think about [whether] what he said was reasonable for a person to have done . . . . What else did he say? Every other witness is . . . wrong. He didn't say lying, but that was the implication. Everybody is wrong about what happened on September 3 of 2003 but him. All of them. . . . He talked about [Laughead] being wrong. He talked about [Taylor] being wrong. He talked about the deputies who were present at the Budget Motel being wrong. Yesterday he talked about his sister being wrong and his brother-in-law being wrong. Everyone is making things up but him."
To the extent that Cortina's contention that this portion of the closing argument "highlighted" the improper cross-examination may be construed as a challenge to the prosecutor's closing remarks about this portion of Cortina's testimony, we reject that challenge. Cortina raised no objection to this portion of the prosecutor's closing argument, and has thus forfeited any such argument. Further, the prosecutor's comments were not improper. The prosecutor was simply commenting on the evidence. Cortina had asserted on the witness stand that the other witnesses had been inaccurate in recalling the events of that day. The prosecutor did nothing improper in pointing out that Cortina's testimony conflicted with the testimony of these other witnesses, and in asking the jury to question the credibility of Cortina's testimony based on his contention that everyone else had been wrong about certain events. E. There is no basis for reversal under the cumulative error doctrine
Cortina contends that even if none of these errors individually requires reversal, the cumulative impact of the errors at his trial requires that the judgment be reversed, because it caused him substantial prejudice and rendered his trial fundamentally unfair, in violation of the guarantees of federal and state Constitutions. "Under the 'cumulative error' doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial." (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.)
We have concluded that even if the trial court abused its discretion with respect to admitting the statements that Follman made with respect to what Trejo had said to Cortina during the shooting incident, the admission of that evidence was not prejudicial, and we have rejected the remainder of Cortina's claims. There is thus no cumulative error on which to base a reversal of the judgment.
IV.
DISPOSITION
The judgment is affirmed.
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AARON, J.
WE CONCUR:
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HUFFMAN, Acting P. J.
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HALLER, J.