Opinion
F086310
10-24-2024
THE PEOPLE, Plaintiff and Respondent, v. JOSE ALEXANDER MIRANDA CRUZ, Defendant and Appellant.
Cynthia L. Barnes, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Heather S. Gimle, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County, No. BF188678A Gregory A. Pulskamp, Judge.
Cynthia L. Barnes, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Heather S. Gimle, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MEEHAN, J.
Defendant Jose Alexander Miranda Cruz drove under the influence of alcohol and lost control of the vehicle, resulting in the death of one passenger and serious injuries to three other passengers. A jury found him guilty of manslaughter and other offenses. Defendant was sentenced to a term of 14 years.
On appeal, defendant argues the trial court abused its discretion by denying defendant's motion pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). Defendant contends his Marsden motion seeking substitution of counsel should have been granted due to an irreconcilable conflict between defendant and defense counsel, which substantially impaired his right to effective assistance of counsel. Defendant also alleges several instances of prosecutorial misconduct during the prosecutor's rebuttal argument that he argues disparaged defense counsel, requiring reversal of defendant's conviction.
The People respond the trial court did not abuse its discretion when it denied defendant's Marsden motion because defendant's complaints regarding trial preparation and strategy were tactical disagreements, which fell short of establishing that defense counsel was providing inadequate representation. The People further argue defendant forfeited his prosecutorial misconduct claim and, even reaching the merits, the prosecutor did not commit misconduct. We affirm.
PROCEDURAL BACKGROUND
On May 3, 2022, the Kern County District Attorney filed an information charging defendant with gross vehicular manslaughter of Edixon Guardado Velasco (Pen. Code, § 191.5, subd. (a); count 1), driving under the influence causing bodily injury (Veh. Code, § 23153, subd. (a); count 2), misdemeanor driving without a valid driver's license (Veh. Code, § 12500, subd. (a); count 3), and failure to provide evidence of financial responsibility for the vehicle (Veh. Code, § 16028, subd. (a); count 4).
All further statutory references are to the Penal Code unless otherwise indicated.
The People dismissed count 4.
As to counts 1 and 2, the information alleged defendant proximately caused injury to three victims, O.J., M.A., and V.J. (Veh. Code, § 23558) and defendant was released from custody and pending trial or final judgment of an earlier felony offense when he committed the instant offense (§ 12022.1). As to count 2, the information also alleged that defendant personally inflicted great bodily injury to three victims, O.J., M.A., and V.J. (§ 12022.7, subd. (a)).
Defendant's earlier felony offense, Kern Superior Court case No. BF182391A, is unrelated to the instant matter.
As to counts 1 and 2, the information alleged the following aggravating factors: defendant committed a crime of great violence (Cal. Rules of Court, rule 4.421(a)(1));Velasco was particularly vulnerable (rule 4.421(a)(3)); O.J. was particularly vulnerable (ibid.); V.J. was particularly vulnerable (ibid.); M.A. was particularly vulnerable (ibid.); defendant was on probation or parole at the time of the offense (id., (b)(4)); and defendant's prior performance on probation or parole was unsatisfactory (id., (b)(5)).
All further rule references are to the California Rules of Court.
On February 22, 2023, the trial court held a hearing on defendant's Marsden motion. After hearing arguments from both defendant and defense counsel, the court denied the motion.
On March 28, 2023, the jury found defendant guilty of counts 1 through 3. The jury also found true that defendant proximately caused injury or death to three victims (Veh. Code, § 23558) and defendant personally inflicted great bodily injury to three victims (Pen. Code, § 12022.7, subd. (a)).
The jury found the following aggravating factors true: defendant committed a crime of great violence (rule 4.421(a)(1)); Velasco was particularly vulnerable (id., (a)(3)); O.J. was particularly vulnerable (ibid.); V.J. was particularly vulnerable (ibid.); and M.A. was particularly vulnerable (ibid.).
In a bifurcated court trial, the trial court found true the special allegation that defendant was released from custody and pending trial or final judgment at the time he committed the offense (§ 12022.1). The court also found true that defendant's prior performance on probation or parole was unsatisfactory (rule 4.421(b)(5)). The court did not find true that defendant was on probation or parole at the time of the offense (id., (b)(4)).
The parties agreed to a court trial on the special allegation that defendant was released from custody and pending trial or final judgment at the time he committed the offense pursuant to section 12022.1. The parties also agreed to a bifurcated court trial as to two of the aggravating factors pursuant to rule 4.421(b)(4) and (b)(5).
The trial court sentenced defendant to a term of 14 years as follows: on count 2, three years (the upper term), plus a three-year term for each of the three great bodily injury enhancements pursuant to section 12022.7, subdivision (a); on count 1, two years (one-third the midterm), to run consecutive to the term on count 2. The section 12022.1 enhancement and the Vehicle Code section 23588 enhancements as to both counts were stayed pursuant to section 654.
FACTUAL BACKGROUND
On the evening of January 16, 2022, three females, V.J., O.J., and M.A. were picked up at their house by defendant, Velasco, and Jose V. in a van. Jose V. was driving. Defendant was an acquaintance of V.J., O.J. and M.A. V.J. and O.J. had previously met defendant through friends. M.A. knew defendant through her cousins, V.J. and O.J. Defendant had been drinking earlier, but assured the females that the driver, Jose V., was sober, so they agreed to get in the van.
Jose V. drove the group to a park. On the way to the park, defendant was drinking from a bottle of alcohol in the van. M.A. saw that there were two bottles of alcohol in the van. Once at the park, defendant was drinking "[a] lot" from a large bottle of alcohol. O.J. and M.A. observed defendant behaving differently than he had on previous occasions when they were with him. Defendant was "mad" and acted "very aggressive." M.A. thought he was intoxicated. The group stayed at the park for about 10 minutes before going to a lookout point.
Jose V. drove the group to a lookout point. Once they arrived at the lookout point, defendant and the other two males started fighting. Defendant was angry and V.J., O.J., and M.A. did not want to see the men hitting each other. They wanted to go home. The females asked defendant to tell Jose V. to take them home. The group was at the lookout point for less than one-half hour.
Jose V. heard that the females wanted to be taken home, so he went to the driver's seat. Jose V. was still in the driver's seat when defendant kicked him on the right side of his face from the front passenger seat and took the wheel from him. Defendant said, "I [am] going to drive because I [am] fine ...." Jose V. looked "crest fallen" and went to the backseat of the van and sat in the third row. Defendant then sat in the driver's seat. Velasco sat in the front passenger seat. In the middle row of the van, M.A. sat between O.J. and V.J.
Once in the driver's seat, defendant drove away from the lookout point onto the roadway and "accelerated really fast." Defendant lowered all the windows; the van shook. V.J. told defendant to slow down, but he did not respond or slow down. V.J. was scared. The tires on the van were screeching and burning.
Defendant lost control of the van. The van went over a barrier to the other side of the road and then over an embankment. It flipped several times and landed on its roof with the wheels facing the sky.
V.J. lost consciousness. When she woke up, she was outside the van. She tried to stand, but was unable walk. V.J. sustained two broken ankles and had to use a wheelchair for four months after the collision. She was unable to walk for about eight months. She also suffered from headaches in the center of her forehead where her head hit during the collision.
O.J. and M.A. also lost consciousness. When O.J. and M.A. woke up, they were still inside the van. Jose V. helped them both out. O.J. sustained two fractured ribs and needed 12 stitches under her chin. M.A. fractured her right ankle, clavicle, and nose. She could not lift her right arm and she has a permanent bump on her nose.
Velasco died from a crushed head, neck, and torso.
A police officer arrived at the scene and contacted defendant. The officer observed defendant yelling and acting belligerent. He saw defendant had red, watery eyes, slurred speech, and smelled like alcohol. He thought defendant was under the influence of alcohol. During his investigation, the officer also learned that defendant was unlicensed.
The police officer determined the cause of the collision was due to defendant driving under the influence of alcohol. Defendant's blood-alcohol concentration on the night of the collision was 0.205 percent.
A traffic collision investigator was called to the scene the night of the collision. When he initially assessed the damage, the van was on its roof, and it appeared to be involved in a rollover. The investigator determined the van was going 93.29 miles per hour before the brake was applied. At that point, the van slid with locked wheel friction marks for about 283 feet. "[Defendant] then released the brake and inputted steering to the left causing the vehicle to travel across all lanes and down the embankment ... of the roadway where it overturned .." The investigator determined defendant was the driver and at fault for the collision. The investigator further determined the primary collision factor was driving under the influence, and the associated factor was traveling at an unsafe speed.
DISCUSSION
I. Defendant's Marsden Motion was Properly Denied by the Trial Court
Defendant argues he was deprived of his right to effective assistance of counsel under the Sixth Amendment because he was embroiled in an irreconcilable conflict with defense counsel and the trial court denied his Marsden motion to substitute counsel.
The People maintain there was no abuse of discretion. The People argue the issue defendant raised involved a disagreement over a tactical decision based on sound legal reasoning by defense counsel and the trial court properly denied the Marsden motion. We agree with the People.
A. Additional Facts
During the Marsden hearing, defendant told the trial court that he asked defense counsel to obtain text messages from his phone and defense counsel failed to get the messages that would assist in his defense. Defendant argued discovery of the text messages could be used to impeach the testimony of the female witnesses. Defendant claimed the text messages showed he knew some of the female witnesses, which could be used to impeach their testimony if the female witnesses asserted they did not know defendant.
Defense counsel told the trial court he had not attempted to obtain the text messages on defendant's phone because he did not believe discovery of the text messages went to an "element of the case."
Defense counsel also argued impeachment would be futile because the witnesses' testimony regarding their relationship with defendant was consistent with defendant's testimony.
At the preliminary hearing, V.J. testified she knew defendant prior to the collision. O.J. also said she knew defendant prior to the collision and that he would call her. M.A. confirmed she had been out with defendant two times prior to the collision. Therefore, even if the text messages were obtained, defense counsel argued impeachment of the witnesses' testimony would not be effective.
Defense counsel explained additional reasons why he had not obtained defendant's text messages:
"[Defendant told] officers he wasn't the driver; however, at least three of the [surviving passengers] identified he was. There's also something else going on .. after the incident happened, I received a report from the district attorney investigator indicating that [defendant's] mother had attempted to make contact with the three passengers and tried to encourage them to change their story to say the decedent was driving as opposed to [defendant]. [¶] Given that, and given that I don't think it will be a good look to try to impeach some of these witnesses on a very . collateral issue in a way that may turn the jury against us when they were all seriously injured in this crash .."
Defense counsel further explained:
"I also don't intend on arguing that [defendant] was not the driver of the vehicle. I don't think that's going to go over well .. [¶] . [T]he evidence seems to be fairly pointed [that defendant] was driving and that he was intoxicated .. [T]he best and only strategy is to challenge whether or not the mental state of gross negligence was met.."
Further, defense counsel was concerned that discovery may reveal incriminating text messages concerning an unrelated pending criminal charge against defendant.
It was also noted defendant told his attorney there were issues with the brakes of the van. Defense counsel stated there was a risk of obtaining text messages that showed defendant knew he was driving a car intoxicated and without brakes.
After defense counsel provided his reasoning to the trial court, defendant said, "I respect [defense counsel's] decision."
The trial court denied defendant's Marsden motion and stated, "your attorney is doing everything they're supposed to do strategically. [Defense counsel is] making decisions to benefit you."
B. Analysis
"'"When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney's inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations]."'" (People v. Memro (1995) 11 Cal.4th 786, 857.) The court's denial of defendant's Marsden motion is reviewed for an abuse of discretion. (Ibid.)
Defendant argues that defense counsel's failure to obtain his text messages created an irreconcilable conflict. We disagree.
Disagreements between defendant and counsel regarding trial preparation and strategy are tactical disagreements, which do not by themselves constitute an irreconcilable conflict that would require counsel's replacement under Marsden. (People v. Frederickson (2020) 8 Cal.5th 963, 1001.)
Here, defendant's complaints regarding defense counsel's failure to obtain his text messages to impeach the female witnesses was a tactical disagreement over trial preparation and strategy, as defendant conceded at the Marsden hearing, and did not constitute an irreconcilable conflict. The record shows defense counsel represented defendant diligently and well. "The record also reveals that the court 'carefully inquired into defendant's reasons for requesting substitution of counsel, which proved to be either groundless or patently insufficient to demonstrate "such an irreconcilable conflict that ineffective representation [was] likely to result."'" (People v. Memro, supra, 11 Cal.4th at p. 857.)
As a reason for not obtaining defendant's text messages, defense counsel rightly argued impeachment of the female witnesses would have been futile. The testimony of the female witnesses at the preliminary hearing was consistent with defendant's testimony. The witnesses acknowledged they met defendant prior to the night of the collision.
Moreover, the degree to which the female witnesses knew defendant was not an element of the case. Defense counsel was wise to maintain credibility with the jury by not impeaching the witnesses on a collateral issue. (People v. Hayes (1990) 52 Cal.3d 577, 621 [defense counsel's failure to impeach witness on insignificant issue, "at the risk of appearing to badger the witness over a trifle, did not demonstrate incompetence"].)
Turning to the third reason for not obtaining defendant's text messages, the evidence pointed to the fact that defendant was the driver and that he was intoxicated. Our California Supreme Court held the failure to impeach a witness does not demonstrate ineffective assistance of counsel, where the record disclosed a valid tactical reason for not drawing attention to the issue through impeachment. (People v. Barnett (1998) 17 Cal.4th 1044, 1140-1141.) Defense counsel's strategy, to challenge whether the mental state of gross negligence was met rather than contest whether defendant was the driver, was justifiable considering the evidence. Defendant is not entitled to claim an irreconcilable conflict arose merely because he could not veto his attorney's reasonable tactical decision. (People v. Smith (1993) 6 Cal.4th 684, 696 ["a defendant may not force the substitution of counsel by his own conduct that manufactures a conflict"].)
Turning to the fourth reason for not obtaining defendant's text messages, defense counsel stated his concern that discovery would reveal incriminating evidence, which may have been damaging to defendant's case. This was also a valid tactical decision and did not constitute an irreconcilable conflict. (See, e.g. People v. Taylor (2010) 48 Cal.4th 574, 600 [defense counsel's failure to provide the defendant with reports because of a concern the reports would be disclosed to an informant who might use the reports against the defendant in his criminal case was a valid, tactical reason and did not show trial counsel was ineffective].)
For these reasons, the trial court did not abuse its discretion in failing to grant defendant's Marsden motion.
II. No Finding of Prosecutorial Misconduct During the Prosecutor's Rebuttal Argument
Defendant argues the prosecutor committed misconduct during her rebuttal argument by making personal attacks and disparaging defense counsel. The People argue the statements made by the prosecutor other than "'wild stories'" are forfeited on appeal for failure to object. The People further argue that even reaching the merits, defendant's claim fails to show prosecutorial misconduct occurred.
We find defendant preserved his challenges to statements regarding "wild stories," defense counsel making "excuses," and the cumulative effect of those comments. We find the challenges to the statements regarding "no consequences" and the phrase, "[g]ive me a break" forfeited.
Reaching the merits, we agree with the People. There was no prosecutorial misconduct.
A. Additional Facts
During rebuttal argument, the prosecutor argued the jury needed "to disregard [the] unreasonable conclusions" and "wild stories" given by defense counsel to "distract [the jury]." Defense counsel objected. A conference was held between the parties and the trial court at sidebar that addressed defense counsel's objection. The court overruled the objection and allowed the prosecutor to continue her rebuttal.
During the sidebar conference, the prosecutor and defense counsel approached the trial court and discussed defendant's objection to the prosecutor's rebuttal. The discussion was not reported.
Outside the presence of the jury, the trial court addressed the sidebar conference held previously during rebuttal. The court offered its explanation as to why it overruled defense counsel's objection to the prosecutor's rebuttal:
"The next matter is an objection [defense counsel] made to [the prosecutor's] closing argument and [defense counsel] felt that [the prosecutor] ... crossed a line and got into a personal attack [in] making certain arguments.... I overruled [defense counsel's] objection. The reason why is . because [the prosecutor] . couch[ed] her arguments carefully by attacking the argument and the evidence[;] . she said things such as do [not] pay attention to those unreasonable conclusions that the defense attorney wants you to adopt .. [She] was referring to the unreasonable conclusions . and it was done . while the jury instruction was up that references . [i]f one reasonable conclusion points to innocence and the other reasonable conclusion points to guilty, you must accept the one that [is] not guilty ., you must only accept reasonable conclusions and reject any that are unreasonable.. [I]t was clear between her language and that instruction [that] she was referring to . the evidence and the conclusions that she felt the defendant was arguing[,] [n]ot . to [defense counsel's] ill purpose."
In response, defense counsel made a record regarding the basis of his objection to the prosecutor's rebuttal:
"[T]here were several comments that we [are] talking about . the comment [the trial court] is referring [to] is . [the prosecutor] talking about wild theories meant to distract the jury .. [T]here [is] a difference between talking about the unreasonableness of certain arguments versus comments that could be reasonably taken to . disparage defense counsel personally and the law takes that pretty seriously because my credibility as well as . [the prosecutor's] credibility is everything and if that [is] attacked separate from the evidence in the case then that creates a situation .."
Defense counsel continued:
"[T]here was [another] comment about part of my slide being a cartoon version of the bell curve . [a]nd the other thing that I had an issue with[,] there was something about [defense counsel] making excuses .. [Defendant] should [not] be guilty because he [is] failing to take responsibility for his actions . and making excuses . gets towards that territory, so I did object and ask[ed] for a curative instruction not only for the particular statement that I objected to but the cumulative effect of those comments."
We note that defense counsel did not make a separate, contemporaneous objection to these statements. We understand defense counsel's explanation to be a memorialization of the objections he made during the unreported sidebar conference and neither the trial court nor the prosecutor disagreed with defense counsel's summary.
The prosecutor responded to defense counsel's objections and said, "I was focused on the arguments that were made by defense. It was not personal toward [the] defense attorney." The prosecutor further stated her rebuttal focused on how defense counsel's arguments were "inconsistent with the evidence and the testimony" and were not made to "disparage" defense counsel.
B. Forfeiture
Preliminarily, the People assert defendant forfeited his claim to all the challenged statements made by the prosecutor other than the comment regarding "'wild stories'" for failure to contemporaneously object and request a curative admonition at the time the statements were made.
"'"'As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion-and on the same ground-the defendant [requested] an assignment of misconduct and [also] requested that the jury be admonished to disregard the impropriety.'"'" (People v. Cunningham (2001) 25 Cal.4th 926, 1000.)
The purpose of the forfeiture rule is that "'[i]t is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided.'" (People v. Collins (2010) 49 Cal.4th 175, 226-227; see People v. Scott (1994) 9 Cal.4th 331, 353 [because defects are easily prevented or corrected if called to court's attention, such a rule will result in fewer errors and will preserve judicial resources necessary to correct them].)
In People v. Peoples (2016) 62 Cal.4th 718, 801, a claim of prosecutorial misconduct was preserved despite defense counsel's failure to object immediately after the prosecutor's statement, where defense counsel brought a motion for mistrial based on the prosecutor's statements with specific objections "before defense closing arguments began, thus providing the trial court with an opportunity to admonish the jury prior to the start of deliberations." In People v. Steskal (2021) 11 Cal.5th 332, 360, the defendant's claim of prosecutorial misconduct was preserved for appellate review when the defendant raised his objections the day after the prosecutor's closing argument but before the defense completed its closing remarks to the jury. While the trial court commented that "the form and timing of [the] objection was not 'ideal,'" defense counsel preserved his claim because the objection was specific enough for the court to craft suitable corrective instructions and was made before the end of closing argument. (Ibid.)
Here, defense counsel discussed the basis of his objection and the trial court was given the opportunity to consider it prior to the completion of the prosecutor's rebuttal.The court overruled defense counsel's objection, decided not to admonish the jury, and allowed the prosecutor to continue rebuttal. Given these facts, defense counsel's objections to the prosecutor's statements called to the court's attention during rebuttal, regarding "wild stories," "excuses," and the cumulative effect of those comments, are preserved.
Defense counsel memorialized the unreported sidebar at which he raised specific objections to prosecutor's rebuttal as follows: (1) reference to defense counsel's theory of defendant's intoxication as "wild stories"; (2) defense counsel's slide regarding defendant's intoxication as a "cartoon version of the bell curve"; (3) defense counsel making "excuses"; and (4) the cumulative effect of the comments.
Defendant does not assert the statement regarding the cartoon version of the bell curve amounted to misconduct. As such, defendant waives this argument on appeal. (People v. Stanley (1995) 10 Cal.4th 764, 793.)
Defendant's challenge to statements made by the prosecutor regarding "no consequences" and the phrase, "[g]ive me a break" are forfeited on appeal for failure to object. (People v. Ayala (2000) 23 Cal.4th 225, 284.)
C. Merits
With respect to prosecutorial misconduct under the federal Constitution, the question is "whether the prosecutors' comments 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" (Darden v. Wainwright (1986) 477 U.S. 168, 181.) A "prosecutor who uses deceptive or reprehensible methods commits misconduct even when those actions do not result in a fundamentally unfair trial" under state law. (People v. Cook (2006) 39 Cal.4th 566, 606.) When, as in the case before us, the claim is based upon "'comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.'" (People v. Cunningham, supra, 25 Cal.4th at p. 1001.)
Defendant claims numerous instances of prosecutorial misconduct in which defendant alleges the prosecutor denigrated his integrity and attacked him personally. We address each below.
(a) The prosecutor's comments regarding "wild stories"
The prosecutor characterized defense counsel's theory that defendant may have been sober on the night of the collision as a "wild story" meant to "distract" the jury. Defendant argues the characterization of his argument as a "'wild story'" was a personal attack and the prosecutor committed misconduct. Defendant is mistaken.
The general thrust of the complained-of remark was on the evidence adduced at trial, rather than on the integrity of defense counsel. (People v. Frye (1998) 18 Cal.4th 894, 976 [a prosecutor is permitted to offer an opinion on the state of the evidence], disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 422 &fn. 22; People v. Medina (1995) 11 Cal.4th 694, 759 [no misconduct where prosecutor said defense counsel can "'twist [and] poke [and] try to draw some speculation, try to get you to buy something'"].)
Defendant's blood-alcohol concentration on the night of the collision was 0.205 to 0.199 percent. A traffic collision investigator determined the primary collision factor was defendant driving under the influence. The police officer saw defendant had red, watery eyes, slurred speech, and he smelled like alcohol. The officer determined the cause of the collision was due to defendant driving under the influence of alcohol.
Moreover, the prosecutor's argument was also a fair rebuttal to defense counsel's argument regarding defendant's intoxication. (People v. Young (2005) 34 Cal.4th 1149, 1189.) Defense counsel suggested defendant's blood-alcohol content was close to the legal limit at the time defendant was driving and rose after the collision occurred. During rebuttal, the prosecutor urged the jury to disregard this theory provided by defense counsel.
(b) The prosecutor's comments regarding "excuses"
Defendant argues the prosecutor engaged in misconduct during rebuttal when she argued defendant made "excuses" for his actions. Defendant's claim lacks merit.
Defense counsel pointed out that the witnesses may not have interpreted defendant's demeanor correctly on the night of the collision when he argued, "regarding the crash that happened ... it [is] reasonable to conclude that [defendant] wanted to impress [the passengers] by driving fast .." In response, the prosecutor began her rebuttal when she said, "[w]hat we just heard right now was a whole lot of excuses .. [¶] . [Defendant is] sitting here trying to make you feel sorry for him, trying to find . excuses [as to why] he was just trying to impress [the passengers]."
This was a fair response to defense counsel. The prosecutor directly attacked defense counsel's argument by even using the same language. (People v. Young, supra, 34 Cal.4th at p. 1189 [finding no misconduct when the "prosecutor's comments were a fair response to defense counsel's remarks"].)
Moreover, the argument regarding defendant's "excuses" was part of the prosecutor's review of the evidence presented, which showed defendant was not simply trying to impress his passengers. (People v. Sandoval (1992) 4 Cal.4th 155, 183 [it is appropriate for a prosecutor to "'vigorously argue his case, marshalling the facts and arguing inferences to be drawn therefrom'"].) The prosecutor discussed defendant kicking Jose V. in the face and demanding to drive the van. The prosecutor also brought up the evidence of defendant driving 94 miles an hour under a high level of intoxication. By doing so, the prosecutor challenged defense counsel's characterization of the evidence and testimony.
There is no reasonable likelihood the jury construed the prosecutor's argument regarding "excuses" as an attack on defense counsel's integrity.
(c) Cumulative effect
Defendant contends the language and tenor of the prosecutor's entire rebuttal argument was sarcastic and disparaging toward defense counsel. In so doing, defendant purports to argue that, in the aggregate, the prosecutor's remarks should be deemed prejudicial. As we have explained above, however, none of the prosecutor's statements may be characterized as misconduct, and, in the aggregate, cannot be construed to have prejudiced defendant.
(d) The prosecutor's comments regarding "no consequences" and "[g]ive me a break"
Defendant also observes the statements made by the prosecutor regarding "no consequences" and the phrase "[g]ive me a break" amounted to misconduct.
As stated above, we reject defendant's claim of prosecutorial misconduct because defendant failed to request an assignment of misconduct or an admonition that the jury disregard the impropriety on the grounds now asserted. (People v. Ayala, supra, 23 Cal.4th at p. 284.)
Even addressing the merits, the prosecutor's statements regarding "no consequences" and "[g]ive me a break" did not suggest defendant failed to take responsibility for his actions or the prosecutor's ill purpose toward defense counsel. The prosecutor's remarks were reasonable responses to defense counsel's closing argument and the theory defense counsel relied on at trial. (People v. Edwards (2013) 57 Cal.4th 658, 738.) The jury, who had just heard defense counsel's closing argument, would reasonably draw the same inference.
Defense counsel challenged whether defendant's mental state of gross negligence was met.
We find no denial of due process or a fair trial as a result of any misconduct committed by the prosecutor.
DISPOSITION
The judgment is affirmed.
WE CONCUR: FRANSON, Acting P. J. DeSANTOS, J.