Opinion
C086717
12-06-2019
THE PEOPLE, Plaintiff and Respondent, v. JAMAL FAULKNER, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. STK-CR-FE-2017-0011473)
Defendant Jamal Faulkner was charged with first degree murder after he shot and killed Virgil Conway. At trial, the court instructed the jury on second degree murder and voluntary manslaughter as lesser included crimes of first degree murder. The court denied defendant's request to instruct the jury on involuntary manslaughter, also a lesser included crime of first degree murder. The jury found defendant guilty of voluntary manslaughter.
On appeal, defendant contends the trial court erred by refusing to instruct the jury on involuntary manslaughter. He also argues his conviction must be overturned due to prosecutorial misconduct. We disagree and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Events Preceding the Shooting
Defendant's girlfriend, Luz Gonzalez, was friends with Megan Wilson, who lived in the same apartment complex in Tracy as Amber F., Jesse T., and Virgil Conway. Wilson lived toward the middle of the complex on the ground floor, and Amber, Jesse, and Conway lived together four apartments to the south and on the second level. One night, Wilson got into an argument with Amber over money Wilson had loaned her, and later that night Jesse headbutted and punched Wilson in retaliation. Following that incident, Gonzalez and defendant came over and stayed at Wilson's apartment. The next weekend, Wilson again invited Gonzalez to stay with her, and Wilson again permitted defendant to stay as well.
Defendant's Testimony
Defendant testified at trial regarding his recollection of the subsequent events. Because the sole factual issue defendant raises in this appeal is whether there is substantial evidence to support a jury instruction on involuntary manslaughter, we focus on defendant's testimony regarding his state of mind and intent at the time of the shooting.
The morning after Gonzalez and defendant spent the night at Wilson's apartment, Gonzalez, defendant, and the father of Wilson's children stepped outside Wilson's apartment to smoke marijuana. Wilson also stood outside with the group. Conway and Amber were on the second story balcony. Conway told Gonzalez, who was wearing shorts and a tank top, "Put some clothes on and have some self respect." That comment began an argument between the Conway, Amber, Gonzalez, and Wilson.
Defendant then began arguing with Conway, and he also saw Jesse standing in front of his apartment. Defendant and Conway walked toward one another; defendant was on the ground level and Conway was on the second level. Jesse went inside. Conway said, "It's KKK, you fuckin' nigger," and he paced across the second floor in an aggressive and intimidating manner. Defendant and Conway exchanged threats about fighting one another.
Jesse emerged from the apartment and said, "You sure you wanna do this? Because you're gonna have a hell of a day, nigger." Defendant, who is African American, felt "Angry, a little intimidated, [and] mad." Defendant began arguing with Jesse. Jesse kept his right hand behind his right leg, causing defendant to believe Jesse had a gun.
Defendant reached for a gun he carried in his coat pocket. Defendant had been shot four times in the past, and he always carried the gun loaded for self-defense. Defendant asked Jesse, "What's that, a gun?" Jesse responded, "Oh what? You have a gun? You must be scared to handle the situation, you little bitch." Conway said, "Hey, nigger" and then spit on defendant. Jesse threw a glass bottle at defendant, and the bottle broke in front of him. Defendant believed his life was in danger.
Defendant pulled the gun out of his pocket and swung it from left to right across the second story of the apartment building, shooting four times at Jesse and Conway. He did not intend to kill Jesse or Conway; rather, he only wanted to "back 'em off" by "wildly" shooting. But he also acknowledged that he pointed the gun at both Conway and Jesse and pulled the gun's trigger multiple times.
After firing the shots defendant ran to his car, which he parked in the apartment complex parking lot. As he drove out of the complex, he saw Jesse throw something at his car from the second level, and he saw Conway on the ground floor, standing behind mailboxes. He saw Conway throw a rock at his car, so he aimed his gun at Conway and fired two more shots.
One of defendant's shots hit and killed Conway. Jesse was not hit.
Procedural Background
The prosecution charged defendant with first degree murder (Pen. Code, § 187, subd. (a); count 1) of Conway, premeditated attempted murder (§§ 664, 187, subd. (a); count 2) of Jesse, and shooting a firearm from a vehicle at a person (§ 26100, subd. (c); count 3). Count 1 alleged a special circumstance of discharging a firearm from a motor vehicle (§ 190.2, subd. (a)(21)), and firearm enhancements under sections 12022.53, subdivisions (b), (c), and (d), 12022.5, subdivisions (a) and (d), and 12022.55. Count 2 alleged firearm enhancements under sections 12022.53, subdivisions (b) and (c), and 12022.5, subdivision (a). Count 3 alleged a firearm enhancement under section 12022.55.
Further undesignated statutory references are to the Penal Code.
The jury found defendant not guilty of first degree murder and not guilty of the lesser included offense of second degree murder as charged in count 1, but it found him guilty of the lesser included offense of voluntary manslaughter (§ 192, subd. (a)). The jury found true the firearm enhancement attached to count 1 under section 12022.5, subdivision (a), but it found not true the enhancements under section 12022.55 and 12022.5, subdivision (d). The jury found defendant not guilty of count 2. Finally, the jury found defendant guilty of count 3, but it found not true the gun enhancement to that count under section 12022.55 (shooting from a vehicle and thereby causing injury or death).
The court sentenced defendant to the middle term of six years in prison on count 1 plus the upper term of 10 years for the firearm enhancement and a consecutive sentence of one-third the middle term of one year, eight months on count 3, for a total sentence of 17 years eight months.
Additional facts will be set out in the Discussion as necessary.
DISCUSSION
I
Involuntary Manslaughter Jury Instruction
Defendant contends the trial court erred by refusing to instruct on involuntary manslaughter as a lesser included offense of murder. We disagree. Involuntary manslaughter is the unlawful killing of a human being without malice. (§ 192.) As we shall explain, there was no substantial evidence in the record that would support a finding that defendant acted without malice in connection with Conway's killing. That is, there is no evidence that would support a finding that he did not engage in conduct that was dangerous to human life or appreciate the risk his conduct posed to Conway's life. (§ 188; People v. Bryant (2013) 56 Cal.4th 959, 965 (Bryant).)
A. The Duty to Instruct
" '[E]ven absent a request, and over any party's objection, a trial court must instruct a criminal jury on any lesser offense 'necessarily included' in the charged offense, if there is substantial evidence that only the lesser crime was committed.' " (People v. Smith (2013) 57 Cal.4th 232, 239.) This duty to instruct is warranted when there is "substantial evidence" that "a reasonable jury could find persuasive." (People v. Halvorsen (2007) 42 Cal.4th 379, 414.) "In deciding whether evidence is 'substantial' in this context, a court determines only its bare legal sufficiency, not its weight." (People v. Breverman (1998) 19 Cal.4th 142, 177.) "The testimony of a single witness, including the defendant, can constitute substantial evidence requiring the court to instruct on its own initiative." (People v. Lewis (2001) 25 Cal.4th 610, 646.)
B. Standard of Review
The trial court's decision whether or not the substantial evidence test was met is reviewed on appeal under an independent or de novo standard of review, considering the evidence in the light most favorable to the accused. (People v. Waidla (2000) 22 Cal.4th 690, 733; People v. Brothers (2015) 236 Cal.App.4th 24, 30 (Brothers).)
C. Murder and Manslaughter
During the instructions conference, defendant requested that the trial court instruct the jury on involuntary manslaughter on the theory that he lacked malice due to voluntary intoxication. The court denied the request, instead instructing the jury on first degree murder, second degree murder, and voluntary manslaughter.
Murder is the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) "Malice aforethought 'may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.' [Citation.]" (Bryant, supra, 56 Cal.4th at p. 964.) " 'We have interpreted implied malice as having "both a physical and a mental component. The physical component is satisfied by the performance of 'an act, the natural consequences of which are dangerous to life.' [Citation.] The mental component is the requirement that the defendant 'knows that his conduct endangers the life of another and . . . acts with a conscious disregard for life.' " ' " (Id. at p. 965.)
"Manslaughter, a lesser included offense of murder, is an unlawful killing without malice. [Citations.]" (People v. Elmore (2014) 59 Cal.4th 121, 133.) "A defendant commits voluntary manslaughter when a homicide that is committed either with intent to kill or with conscious disregard for life—and therefore would normally constitute murder—is nevertheless reduced or mitigated to manslaughter. [Citation.] We have often described both provocation and unreasonable self-defense as 'negating' the malice required for murder or as causing that malice to be 'disregarded.' " (Bryant, supra, 56 Cal.4th at p. 968.) "But in [either] circumstance[ ], a defendant convicted of voluntary manslaughter has acted either with an intent to kill or with conscious disregard for life." (Id. at p. 970.)
"Involuntary manslaughter, in contrast, [is the] unlawful killing of a human being without malice. (§ 192.) It is statutorily defined as a killing occurring during the commission of 'an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, [accomplished] in an unlawful manner, or without due caution and circumspection.' (§ 192, subd. (b).) Although the statutory language appears to exclude killings committed in the course of a felony, the Supreme Court has interpreted section 192 broadly to encompass an unintentional killing in the course of a noninherently dangerous felony committed without due caution or circumspection. [Citation.]" (Brothers, supra, 236 Cal.App.4th at p. 31.) More recently, the Court of Appeal, Second Appellate District, Division 7 held that an unlawful killing in the course of an inherently dangerous assaultive felony without malice also constitutes involuntary manslaughter. (Id. at pp. 33-34.) Relying on Justice Kennard's concurring opinion in Bryant (Bryant, supra, 56 Cal.4th at p. 971 (conc. opn. of Kennard, J.)), defendant asserts that he "was guilty of involuntary manslaughter if he committed a crime - either a misdemeanor or an inherently dangerous assaultive felony - without malice causing the death of another person."
D. Analysis
Even assuming for argument's sake that involuntary manslaughter is as broad as defendant contends, the trial court was not required to instruct the jury on that offense because there was no substantial evidence that would support a finding that defendant acted without malice. (§ 192.)
" 'If the evidence presents a material issue of whether a killing was committed without malice, and if there is substantial evidence the defendant committed involuntary manslaughter, failing to instruct on involuntary manslaughter would violate the defendant's constitutional right to have the jury determine every material issue.' " (People v. Abilez (2007) 41 Cal.4th 472, 515.) "However, when . . . the defendant indisputably has deliberately engaged in a type of aggravated assault the natural consequences of which are dangerous to human life, thus satisfying the objective component of implied malice as a matter of law, and no material issue is presented as to whether the defendant subjectively appreciated the danger to human life his or her conduct posed," there is no duty to instruct sua sponte on involuntary manslaughter. (Brothers, supra, 236 Cal.App.4th at p. 35.)
Defendant contends he was faced with two men who provoked a fight, yelled racial epithets at him, and threatened him with physical violence. In response, defendant asserts that he shot "wildly" in an attempt to "back 'em off," from which the jury could have found that he lacked malice. He supports that position by observing that the jury acquitted him of the attempted murder or manslaughter of Jesse, which he contends demonstrates that the jury found he lacked malice.
As we described ante, intent to kill is an element of express, not implied, malice. (§ 188, subd. (a)(1) ["Malice is express when there is manifested a deliberate intention to unlawfully take away the life of a fellow creature."]; accord, Bryant, supra, 56 Cal.4th at pp. 964, 970.) "[M]alice is implied when the defendant engages in an act the natural consequences of which are dangerous to life and acts with conscious disregard for human life." (Brothers, supra, 236 Cal.App.4th at p. 34; accord, Bryant, at p. 965.) Therefore, while defendant might not have intended to kill Jesse or Conway, and the jury presumably found he lacked the requisite intent as to Jesse when it acquitted him of attempted murder, the issue before us is whether there is substantial evidence defendant lacked implied malice as to the killing of Conway.
We conclude there is not substantial evidence that defendant lacked implied malice. There is no question that defendant deliberately engaged in the type of aggravated assault the natural consequences of which are dangerous to human life, and that he subjectively appreciated the danger to human life his conduct posed. Defendant pulled a gun out of his coat pocket and fired four shots from left to right at close range while aiming the gun at Conway and Jesse. Defendant testified that he pointed the gun in the direction of Jesse and Conway and pulled the trigger. Then, as defendant fled the scene, he fired two more shots at Conway. Defendant did not accidentally fire the gun, fire into a house he believed to be empty, or fire a single warning shot into the air that accidentally hit someone. Rather, defendant aimed his gun he always carried and knew to be loaded at or near Conway and Jesse and fired multiple shots. The natural and probable consequences of his actions were dangerous to human life. Indeed, merely brandishing a loaded firearm at a person is an act dangerous to human life. (People v. McNally (2015) 236 Cal.App.4th 1419, 1425.)
There is also no question that defendant subjectively appreciated the danger to human life his conduct posed. While defendant asserted that he did not intend to kill Jesse or Conway, he knew the danger and power of guns. He testified he was shot on four previous occasions, he always carries a gun with him for self-defense, and he shot at Jesse and Conway in self-defense. There is not substantial evidence in the record supporting a finding that defendant did not know his conduct was dangerous. Indeed, by intending to "back 'em off," defendant acknowledged his understanding that his actions were sufficiently dangerous that they would cause Jesse and Conway to seek cover to preserve their lives.
Additionally, defendant knew he was shooting his gun with an apartment building as his back stop. Having stayed the night at Wilson's apartment the previous evening, defendant had reason to believe that the apartments were occupied. Even if defendant did not intend for his bullets to hit Conway or Jesse, firing a gun at an apartment where people were likely sleeping early on a Saturday morning is conduct dangerous to human life, and defendant subjectively appreciated the danger of his conduct. This is enough to show implied malice.
At oral argument, defendant argued that he feared for his life, was consumed by panic, and was not thinking in rational terms. According to defendant, he did not appreciate the danger of his actions at the moment he fired the gun. We do not agree that this assertion provides substantial evidence that implied malice was lacking. Defendant testified that he was ready to use his gun any time his life was in danger. Although defendant's argument suggested that he was surprised by a sudden attack by two men and reacted purely out of instinct, instead this incident involved an ongoing dispute between defendant, Conway, and Jesse. According to defendant's testimony, Jesse came out of his apartment with his right hand behind his leg, which led defendant to believe Jesse had a gun. Defendant reached for his gun, and he asked Jesse if Jesse had a gun. He took the safety off his gun. At that point, by reaching for his gun and taking the safety off, defendant was preparing himself for a gun fight. Upon seeing a bottle fly toward him, defendant testified "I was just immediately shooken up by it and that's when I reacted." He testified that "it wasn't too much time to think. It was so fast. . . . It was reactions." But defendant had already prepared himself for a gun fight and fully understood the nature of engaging in one. While defendant might not have had much time to think, he also acknowledged he knew his conduct was dangerous to human life when he stated his intent to "back 'em off." Indeed, we can think of little else as effective at backing someone off than shooting at them with a gun--an activity extremely dangerous to human life and known as extremely effective in neutralizing imminent threats.
Finally, defendant contends the jury could have found that he lacked malice due to voluntary intoxication because he was affected by marijuana he consumed immediately before the altercation. Defendant failed to provide a legal basis for that argument, and therefore he has forfeited the argument. (See People v. Hovarter (2008) 44 Cal.4th 983, 1029 [points not supported by legal argument and citation to authority may be treated as waived].) Even if the argument is not forfeited, it fails on the merits. While voluntary intoxication may negate express malice, it may only negate implied malice where defendant was unconscious and therefore unable to act with conscious disregard for human life. (People v. Turk (2008) 164 Cal.App.4th 1361, 1375-1379.) Defendant might have felt the effects of marijuana, but he does not allege, and the record does not support, the proposition that he was unconscious at the time of the shooting.
Because there is not substantial evidence supporting a finding that defendant lacked implied malice, the trial court was not required to instruct the jury on involuntary manslaughter as a lesser included crime of first degree murder. There was no error.
II
Asserted Doyle Error
Defendant contends the prosecutor committed misconduct by commenting on what he did not say to detectives following his arrest. The United States Supreme Court in Doyle v. Ohio (1976) 426 U.S. 610, 617-618, 620 (Doyle), held that it was fundamentally unfair to allow an arrested person's silence following Miranda warnings to be used to impeach an explanation subsequently offered at trial. In cases where a defendant remains silent as to a particular subject matter during post-Miranda questioning, the rule in Doyle prevents the prosecution from making use of post-arrest silence for impeachment purposes. Under Doyle, post-Miranda silence may not be used to imply guilt or to attack the defendant's credibility either by questioning or by reference in closing argument. (People v. Hollinquest (2010) 190 Cal.App.4th 1534, 1555.) California has also recognized the existence of Doyle error in the context of prosecutorial examination. (See People v. Farris (1977) 66 Cal.App.3d 376, 387-390.)
Miranda v. Arizona (1966) 384 U.S. 436.
In Greer v. Miller (1987) 483 U.S. 756, 763 (Greer), the high court explained that a Doyle violation has two components. The first component is that the prosecutor makes use of a defendant's post-arrest silence for impeachment purposes. (Id. at p. 763.) The second component is that the trial court permits that use, such as when it overrules a defense objection, thereby giving the jury the unmistakable impression that what the prosecution is doing is legitimate. (Id. at pp. 763-764.)
After defendant's arrest, a detective advised him of his Miranda rights, and he agreed to talk to the detectives. Defendant told the detectives he went to Wilson's apartment complex with Gonzalez, smoked some marijuana in the car, and then left that night around midnight. He told the detectives he was in Hayward on the morning of the shooting. After defendant confirmed that he was being arrested for murder, he told the detective he wanted to talk to a lawyer.
Early in her examination of defendant at trial, the prosecutor asked defendant twice why he did not tell the detectives everything that he had testified about. The court sustained objections to those questions.
Later during cross-examination, defendant testified he got rid of the gun and his cellphone because they linked him to the shooting. He then testified he got rid of the gun for fear the police would kill him for being an African-American man who just shot at two Caucasian men. The prosecutor asked defendant, "You didn't tell the detectives when you got arrested where you threw the gun?" Defendant responded "No." The prosecutor asked, "Why not?" and defendant responded, "I was lying."
Defense counsel objected and asked to approach sidebar. Defense counsel stated that defendant had "invoked at a certain point" and that the examination was "dicey." The prosecutor argued she played defendant's statement and she could examine him about "whether or not he told" the detectives, and that defendant could have alleviated the risk of being shot by the police by contacting law enforcement. The court sustained the objection.
Before the jury began deliberations, the court instructed the jury nothing the attorneys say is evidence and only the witnesses' answers are evidence. It also instructed the jury, "If I sustained an objection, you must ignore the question. If the witness was not permitted to answer, do not guess what the answer might have been or why I ruled as I did."
Defendant's argument of Doyle error fails under the second prong described in Greer because the record does not include any instance of the prosecutor impeaching defendant's testimony at trial by using his invocation of his right to remain silent without the court sustaining an objection. There is no Doyle violation where "the court explicitly sustained an objection to the only question that touched upon [defendant's] post arrest silence." (Greer, supra, 483 U.S. at p. 764.) As in Greer, "[n]o further questioning or argument with respect to [defendant's] silence occurred, and the court specifically advised the jury that it should disregard any questions to which an objection was sustained." (Ibid.)
The trial court did not permit the prosecutor to make use of defendant's post-arrest silence for impeachment purposes, and therefore defendant's argument lacks merit.
III
Prosecutorial Misconduct
Defendant contends that the prosecutor committed substantial prejudicial errors in violation of his Fifth and Fourteenth Amendments to the federal Constitution and corresponding California constitutional provisions by repeatedly posing argumentative questions to defendant during cross examination, arguing facts not in evidence, and misstating facts. Although we certainly do not condone the majority of the prosecutor's conduct highlighted by defendant, as we explain, we disagree that the conduct requires reversal.
A. Governing Law
"A prosecutor's rude and 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.' [Citation.]" (People v. Espinoza (1992) 3 Cal.4th 806, 820.) "But conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ' "the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury." ' [Citation.]" (Ibid.) "[T]he federal Constitution does not require (and the state Constitution does not permit) the reversal of a criminal conviction unless the misconduct deprived defendant of a fair trial or resulted in a miscarriage of justice. [Citation.]" (People v. Hinton (2006) 37 Cal.4th 839, 865 (Hinton).)
" ' "To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, [reviewing courts] 'do not lightly infer' that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements." ' [Citation.]" (People v. Adams (2014) 60 Cal.4th 541, 577.) The remarks are not reviewed in isolation, but in the context of the argument as a whole. (People v. Cole (2004) 33 Cal.4th 1158, 1203.)
" 'In general, " ' "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." ' " [Citation.]' [Citation.] 'In the absence of a timely objection the claim is reviewable only if an admonition would not have otherwise cured the harm caused by the misconduct.' [Citation.]" (Hinton, supra, 37 Cal.4th at p. 863.)
B. Argumentative Questioning
Defendant refers to several instances from the prosecution's cross examination of defendant and complains that the prosecution engaged in prejudicial misconduct by posing a number of questions that were argumentative and improperly attacked defendant's credibility. "[T]he critical inquiry on appeal is not how many times the prosecutor erred but whether the prosecutor's errors rendered the trial fundamentally unfair or constituted deceptive or reprehensible methods to attempt to persuade the jury." (Hinton, supra, 37 Cal.4th at p. 864.)
"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.) "The rule is well established that the prosecuting attorney may not interrogate witnesses solely 'for the purpose of getting before the jury the facts inferred therein, together with the insinuations and suggestions they inevitably contained, rather than for the answers which might be given.' " (People v. Wagner (1975) 13 Cal.3d 612, 619.) But a prosecutor does not commit misconduct merely by challenging the truthfulness of a witness's testimony. (People v. Carter (2003) 30 Cal.4th 1166, 1207-1208.)
Defendant cites to multiple instances of improper conduct and questioning by the prosecutor. For example, defendant testified that he got rid of his phone because it connected him to the shooting. The prosecutor asked defendant if he ever called for help after the shooting. Defendant testified that he did not call for help because he did not need help. The prosecutor then asked, "Had you already helped yourself enough by getting rid of the gun and the phone?" The court sustained defense counsel's objection. The prosecutor then asked the same question, "Did you feel that you had already helped yourself by getting rid of the gun and the phone?" The court again sustained defense counsel's objection. Defendant did not request that the court admonish the jury to disregard the prosecutor's question.
In another example, defendant testified he was "physically attacked" when a bottle was thrown at him. The prosecutor asked, "No one ever came from the second floor to the first floor, right?" Defendant responded, "He used a weapon." The prosecutor did not move to strike the response as nonresponsive, and instead asked, "My question to you -- is there a reason why you can't answer my question, sir?" The court sustained defense counsel's objection. The prosecutor then asked, "My question to you, sir, is: At no time did anyone ever physically come and come close to you on the first floor; isn't that correct?" Defendant responded, "No," before interrupting the prosecutor's next question to clarify his response. The prosecutor stated, "Oh, did you not answer the question right again?" The trial court overruled defense counsel's objection and allowed defendant to clarify his answer.
In yet another example, defendant testified he wanted to go to Wilson's apartment because he was temporarily homeless, and it was more "comfortable" for them there. The prosecutor asked, "So you felt that Megan Wilson's house where you had gotten a story about an assault an attack or something else would be a comfortable environment for you?" The court sustained defense counsel's objection. The prosecutor then asked essentially the same question, "Are you saying that based upon all the information that you had received that you felt that that was a comfortable place to be?" The court again sustained defense counsel's objection.
Following that exchange, the parties approached the bench. Defense counsel made the following record, "Also, Judge, I would like to comment on the District Attorney's behavior, which is -- it's in my in limines. She is being very argumentive [sic] with my client. She is rolling her eyes at the Court when she doesn't like the rulings. And all of that is in my in limine motions. And I think that the record needs to be made clear about how there's a lot of exasperated sighs when she gets objected to, that she roles [sic] her eyes and the jurors are seeing this. And those antics are not appropriate in front of the jury and that is something --" The court then admonished the parties to heed courtroom decorum: "Let me just say this: This is not for you. This is not just for you. I'm just saying this. That was a motion in limine. The Court did grant that motion in limine. We do have to worry about decorum. And the impression we give of the process to the jury when the court rules, it's a ruling. You get to speak, you get to say, you get to ask, you know, questions. And we do that. She -- it's not like she has to have a certain tone. Yesterday there was a question and you said 'argumentive,' [sic] and I said the tone, yes, but the question wasn't. I'm not gonna say she can't -- you know, that's part of the process. So I'm not gonna say you can't be somewhat animated. But, you know, you know what is appropriate and not appropriate and I expect both of you to do what is appropriate."
Before trial, the court granted defendant's motion in limine requesting in part that the prosecutor refrain from "all offensive personality" or bad behavior and antics in the courtroom. --------
There are other examples of the prosecutor acting unprofessionally. The prosecutor asked defendant, "Why wouldn't you have an intention [to kill]? Because you said that the only reason that you ever pull that gun out is for your own self-defense. So if you felt it was necessary to defend yourself, why wouldn't you intend to kill them?" The court sustained defense counsel's objection that the question was argumentative and misstated the evidence. The prosecutor then asked, "You just testified that you didn't intend to kill anybody, right?" Defense counsel objected that the question was "argumentive [sic] as to tone." The prosecutor then in apparent (and highly inappropriate) reaction to the objection said, "Oh, my god." The court then stated, "Okay. Question asked, tone -- just ask the question. Go ahead. You can answer that question."
Later in her cross examination of defendant, the prosecutor asked, "So what tactic did you recognize that caused you to lie to the police when you were talking to them on the 7th of September?" Defendant responded, "Oh, that's not what caused me to lie, but --" before the prosecutor interrupted, "Oh, it didn't? That's not what caused you to lie?" The court sustained defense counsel's objection on the basis that defendant was not permitted to finish his answer.
Defendant argues that the prosecutor's behavior suggested to the jury that defense counsel and the court deprived her of her ability to present her case. But although at times inappropriate and surely unprofessional, we disagree that the behavior was so egregious as to deprive defendant of a fair trial. Indeed, the jury found defendant guilty of the least serious of the lesser included crimes on which the court instructed as to count 1, and the jury found defendant not guilty of attempting to murder Jesse. In other words, there is no evidence whatsoever that the prosecutor's behavior resulted in a miscarriage of justice. Moreover, defense counsel did not request that the court admonish the jury to disregard the prosecutor's comments, which likely would have cured whatever limited harm the comments caused.
C. Misstating Facts and Stating Facts Not in Evidence
Defendant contends that the prosecutor committed misconduct by referring to Amber as "a Hispanic girl" when Amber's race was not in evidence and by arguing to the jury that three witnesses had to have material witness bonds to compel them to testify. Defense counsel objected in both instances, and the trial court sustained the objections.
Referring to facts not in evidence is " 'clearly . . . misconduct' [citation], because such statements 'tend[ ] to make the prosecutor his own witness--offering unsworn testimony not subject to cross-examination. It has been recognized that such testimony, "although worthless as a matter of law, can be 'dynamite' to the jury because of the special regard the jury has for the prosecutor, thereby effectively circumventing the rules of evidence." [Citations.]' [Citations.]" (People v. Hill (1998) 17 Cal.4th 800, 827-828.)
But here, neither comment prejudiced defendant. The prosecutor's comment about Amber's ethnicity was irrelevant to the issue of whether defendant acted in self-defense. Moreover, Amber testified before the jury earlier in the trial, and therefore the jury already had the opportunity to see her in person. We fail to see how a passing comment to Amber's ethnicity could possibly have prejudiced defendant, and defendant does not explain how prejudice resulted from the comment.
Similarly, the prosecutor's comment about material witness bonds was irrelevant to the facts at issue in the case. The witnesses who were subject to the material witness bonds each testified that they were in custody, but also testified that they were not in custody due to any accusation of criminal conduct on their part. Whether the witnesses were subject to a material witness bond did not affect the verdict, and therefore the prosecutor's comment did not prejudice defendant.
D. Cumulative Error
The trial court sustained each of defendant's objections to what defendant asserts was Doyle error, and instructed the jury to ignore questions that preceded sustained objections. Further, the prosecutor's comments during cross examination and closing were not so egregious that they infected the trial with such unfairness as to make the conviction a denial of due process. Indeed, to the extent that the prosecutor sought through her unprofessional questions, asides, and behaviors to convince the jury to find defendant guilty of first degree murder, the jury disregarded her efforts by finding defendant guilty of the least serious option available for his admitted conduct of killing Conway. Because we find that defendant was not prejudiced, defendant's claim of prosecutorial misconduct fails.
DISPOSITION
The judgment is affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Hull, Acting P. J. /s/_________
Robie, J.