Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County Super. Ct. No. SCN186475, Timothy Casserly, Judge.
O'ROURKE, J.
A jury convicted Raul Rojo Garcia of second degree murder and found true enhancements that he intentionally and personally discharged a firearm that caused the victim great bodily injury and death. (Pen. Code, §§ 187, subd. (a); 12022.53, subds. (b)-(d).) The trial court sentenced him to 40 years to life in prison as follows: 15 years to life for murder and 25 years to life for the section 12022.53, subd. (d) enhancement.
All further statutory references are to the Penal Code unless otherwise stated.
Garcia contends the verdict should be reversed because the trial court erroneously admitted into evidence: (1) testimony regarding his prior acts of domestic violence; (2) his booking photograph; (3) testimony from one of the victim's sister; and (4) testimony from a toxicologist. He further contends: the prosecutor committed several acts of misconduct; the cumulative effect of the evidentiary errors and prosecutorial misconduct resulted in an unfair trial; and insufficient evidence supported the true finding on the section 12022.53, subd. (d) enhancement that he intentionally fired a gun. Finally, Garcia requests that this court independently review the materials the trial considered during a Pitchess hearing. We affirm.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
FACTUAL BACKGROUND
Gene Alvarez, a United States Border Patrol Agent and Garcia's next door neighbor, testified that on November 1, 2004, at approximately 2:55 p.m., he was in his bedroom. He heard what sounded like a rock being thrown against his window, and a scream for help. He rushed outside. Garcia was inside his own apartment, banging his bloodied hands on the bedroom window. Alvarez called 911 and returned to Garcia's apartment. Garcia was hunched over his girlfriend, Myriam Abraham, in the master bedroom. Alvarez discovered a bullet hole on the left side of Abraham's neck, and helped Garcia get a towel to stop the blood flow from Abraham's wound. Abraham barely was breathing. Alvarez saw a pistol a short distance from Abraham. Alvarez described Garcia's demeanor in the bedroom as "very disturbed, excited" and "shaken up."
Firefighter Kenneth Slaven testified he and other firefighters arrived at Garcia's apartment at approximately 3:11 p.m. and administered first aid to Abraham. They took her to the hospital in an ambulance. She was taken to the operating room and later transferred to the intensive care unit.
Michael Cable of the Escondido Police Department arrived at Garcia's apartment at approximately 3:15 p.m. He found and secured the revolver used in the crime. The police tape recorded their interview with Garcia regarding the crime. Garcia told the police as follows: he became irritated during an argument with Abraham. The argument lasted about two or three minutes; it escalated "and then . . . the gun went off." Garcia added, "When I heard the 'pop' I knew it was . . . fucked up." He looked at her and noticed she was hit in the neck.
Regina Russell, a forensic specialist, went to Garcia's apartment to process the crime scene approximately two hours later. Posted on Garcia's bedroom door was a note stating, "Do not enter. No exceptions. Violators are subject to being shot, stabbed, choked, clubbed, or simply beat down and then violated. Enter at your own dumb ass risk." Russell testified that the gun Officer Cable collected was a Smith & Wesson .357-caliber Magnum revolver. It was capable of accommodating seven bullets. It had in it six unexpended rounds and one expended round. Russell observed blood deposits on the revolver.
Escondido Police Officer Donald Tulimero testified he interviewed Garcia that evening. During a break, Garcia asked to write Abraham a letter, in which Garcia stated, "Myriam, love, please forgive me, I never intended to hurt you in any way. I can barely remember the whole incident, all I can remember is the pop of the gun, then the look on your face. Your words will always haunt me. 'I am dying.' It was the only thing you said that I understood. As I tried to stop the bleeding, all I could think of is that I am going to lose one of the best friends and someone I love with all my heart. No matter what the scenario was, it will always be my own stupid ass fault. I can't believe I allowed my anger to overrule my better judgment." The letter continued, "I want to tell you what I remember happening, and see if you can tell me where I might have perceived it wrong. . . . As we argued you started to pick up and move the item on the desk. One of the items being the pistol that had been sitting there all morning. As you picked it up, I grabbed it as well, that's when I am unsure what happened, somehow I accidentally put my finger on the trigger and the gun went off." The letter's closing paragraph stated, "Well, I think I am about to see what fate has in store for me. Regardless of what happens to me, I hope this letter reaches you quickly. I pray to the Lord you are okay and have a swift recovery."
Brittney Petchell testified as follows: she went to live with Garcia and Abraham in early October, 2004. Garcia took issue with "everything and anything. From the dishes to who was in the house, to if me and [Abraham] wanted to go somewhere alone, it was always an issue." Petchell observed Garcia control "every aspect of [Abraham's]" life, including who Abraham spoke with at her work, what clothes she wore, and how she acted. Petchell saw injuries on Abraham's body that Garcia had inflicted.
Petchell testified Garcia almost always carried a gun with him. Garcia was arguing with Abraham approximately one week before he shot Abraham; Petchell started to leave the apartment, but Garcia pointed the gun to Petchell's head and told her, "You're not going anywhere." Abraham jumped between Garcia and Petchell. Garcia, enraged, pointed the gun in Abraham's face and poked her in the chest with it. The day before Garcia shot Abraham, he was arguing with Abraham. Garcia yelled at Abraham and angrily pointed a gun at her face and neck. Petchell testified, "[Garcia] was very angry. . . . [I]t just escalated from nothing. . . . [E]verything was fine and then all of a sudden he was in a rage."
On November 1, 2004, at approximately 2:00 p.m., Petchell was at the apartment. Garcia and Abraham returned from doing errands and started arguing regarding Petchell's use of Abraham's computer. Garcia left the master bedroom. Petchell told Abraham she would leave and return later. As Petchell was leaving, she passed Garcia in the hallway; he had retrieved a gun and was walking briskly towards the bedroom where Abraham was using the computer.
During trial, the parties stipulated that "[Garcia's] blood was drawn at 8:41 p.m. on November 1[], 2004. The blood yielded the following results: It was positive for methamphetamine in the levels of 553 nanograms per milliliter, NG/ML[] and positive for amphetamine in the level of 90 nanograms per milliliter, NG/ML."
Dr. Aimee Butel, a forensic pathologist, performed an autopsy of Abraham on November 8, 2004, and concluded the cause of death was a downward contact or close range gunshot wound to the neck that almost completely transected the left carotid artery. Butel testified the manner of death was homicide, as determined by findings from the autopsy, toxicology reports, medical examiner's investigation, and the law enforcement investigation.
Garcia did not testify at trial. The defense argued Garcia did not murder Abraham; rather, he and she argued; struggled over the gun; and it went off, accidentally killing her.
DISCUSSION
I.
Garcia contends the trial court erred in admitting testimony regarding his prior acts of domestic violence against two former girlfriends, Josie Bell and Stephanie Zent.
Evidence Code section 1109, subdivision (a)(1) provides that, "in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by [Evidence Code ] [s]ection 1101 if the evidence is not inadmissible pursuant to [Evidence Code ] [s]ection 352." "Under section 352, a trial court may in its discretion exclude material evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time, or create a substantial danger of undue prejudice, confusion of the issues, or misleading the jury. The weighing process under section 352 depends upon the trial court's consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules. [Citations.] We will not overturn or disturb a trial court's exercise of its discretion under Evidence Code section 352 in the absence of manifest abuse, upon a finding that its decision was palpably arbitrary, capricious, and patently absurd." (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.)
Following a motion in limine hearing, the trial court found admissible Josie Bell's testimony, stating, "I do think this evidence is extremely probative. It shows a pattern of this defendant's behavior dealing with women. He's very controlling . . . and his reaction when people threaten to leave him and the violence that goes along with it. This clearly goes under [Evidence Code section 1101 [subd. (b)] to show . . . absence of accident in this case. For those reasons, I do think the probative value outweighs any prejudice."
The trial court found admissible Zent's testimony because, "[Bo]th under [Evidence Code section] 1109, considering the [People v. Falsetta (1999) 21 Cal.4th 903, 917 (Falsetta)] factors, clearly the probative value outweighs any prejudice in this case. . . . And under [Evidence Code section 1101 [subd. (b)] this would be admissible to show absence of accident in this case. This is very similar to the behavior in this case as appears to be a pattern with this defendant, and therefore it will be admitted."
Bell testified she began an intimate relationship with Garcia in 1995. They eventually lived together and had a son. She testified, "[Garcia] didn't like it if I talked to other males even if we were just friends. He was quite jealous with my relationship with my son." In July, 1996, she and Garcia got into an altercation; she tried to leave, but Garcia kicked the door to stop her, and it hit her head. Garcia took her son from her arm and told her he would leave with their son and not come back. She called the police, who talked to her and Garcia. When Garcia got angry, he used to threatened her with a knife. In September, 1996, during an altercation, she was seated in a chair; he put his steel-toed shoes in her chest, pinning her against the wall.
Zent testified she and Garcia lived together from March to June 2004, and he was "very, very jealous of any of [her] friends." He used physical violence against her. Once, she was scared for her life because he held her down and she could not get up. She testified, "I pulled out a knife because I was defending myself and he grabbed it from me and put the knife to my throat, grabbed the phone from me . . . and then strangled me with the phone cord." Garcia threatened to get a gun and shoot her and all her friends. He told her he used to be in the military and was a trained killer.
The Falsetta factors governing the admissibility of testimony regarding a defendant's prior acts of domestic violence include: The "nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives." (Falsetta, supra, 21 Cal.4th at p. 917.) Overall, these factors favored the admission of testimony by Bell and Zent, and the trial court did not abuse its discretion in permitting them to testify. Their testimony was more probative than prejudicial. Bell and Zent related accounts of Garcia's conduct that were similar to his interactions with Abraham. Specifically, Bell and Zent had lived with Garcia; he was controlling and jealous; arguments ended with his threats and use of violence. This was directly relevant to rebut Garcia's defense that the incident was an accident. It was not likely the jury was confused or mislead by the testimony of Bell and Zent.
II.
The People offered into evidence Garcia's booking photograph because he appeared thinner in it than at trial, arguing his thinness resulted from his methamphetamine use; and, his subsequent weight gain resulted from his incarceration and the unavailability of drugs. The People argued, "The photo is also relevant to identification, especially to witnesses who think he looks completely different in court." Garcia objected that he looked menacing in the booking photograph. He offered to stipulate to his identity. The trial court admitted the photograph, stating it was "somewhat probative and not particularly prejudicial," because it would support one possible explanation for Garcia's weight gain, which was that he no longer used methamphetamine.
"The trial court's exercise of discretion in determining relevance and the admissibility of photographs will not be disturbed on appeal unless their probative value clearly is outweighed by their prejudicial effect." (People v. Hughes (2002) 27 Cal.4th 287, 336.) As requested by Garcia, we have independently reviewed the photograph, and conclude it was not inflammatory. We further conclude it also was relevant and admissible because it showed Garcia as he appeared near the time of the crime. (People v. Pride (1995) 3 Cal.4th 195, 243.) Even if the evidence was cumulative, it was not inadmissible because the People were entitled to use photographic evidence in addition to identification testimony. (Accord, People v. Gurule (2002) 28 Cal.4th 557, 624.) Accordingly, the trial court did not abuse its discretion.
Further, any error was harmless because it was not reasonably probable the jury would have found him innocent absent the photographic evidence. (People v. Boyette (2002) 29 Cal.4th 381, 424.) There was strong evidence of Garcia's guilt: he was controlling of Abraham; they argued immediately before he shot her; and Petchell saw him go for his gun and walk toward the room where Abraham was using the computer. He admitted in his letter to Abraham, "No matter what the scenario was, it will always be my own stupid ass fault. I can't believe I allowed my anger to overrule my better judgment."
III.
Garcia contends the trial court prejudicially erred in permitting testimony from Abraham's sister, Rose Abraham, which was cumulative to the testimony of her other sister Sarah Thompson, and evoked sympathy for Abraham. Permitting Rose Abraham's testimony, the trial court advised defense counsel outside the jury's presence, "If it goes too far afield, though, you can go ahead and interpose an objection." We note that Garcia did not subsequently object to any specific portion of her testimony. " 'It is well settled by statute and case authority that the failure to object, even to otherwise inadmissible evidence, waives the defect.' " (Jurcoane v. Superior Court (2001) 93 Cal.App.4th 886, 890, fn. 3.) Accordingly, the claim is not cognizable on appeal.
In any event, the claim also fails on the merits. The trial court has wide discretion to admit evidence, subject to Evidence Code section 352. Rose Abraham testified she noticed that Abraham changed after she began dating Garcia. Although Abraham's family was tight-knit and always communicated, Abraham stopped returning Rose Abraham's messages and attending family gatherings. Also, Abraham's children had spent the summer with her sister's family, but she did not pick them up after the summer. Because Rose Abraham's testimony "was neither inflammatory nor misleading, its admission was proper under Evidence Code section 352." (People v. Farnam (2002) 28 Cal.4th 107, 154.) Any error was harmless for the reasons stated above.
We reject Garcia's contention Rose Abraham's testimony was cumulative to that of Sarah Thompson. Sarah Thompson had testified regarding a specific incident during which Abraham stopped communicating with her family after meeting Garcia. Before Halloween in 2004, Thompson telephoned for Abraham, to ask about Abraham's plans for her children for Halloween. Garcia answered the telephone. Sarah asked to speak to Abraham, but Garcia responded, "No, I'm in control of this situation and you can't speak with her unless you hear me out first." Rose Abraham testified about different incidents, so her testimony was not cumulative.
IV.
Garcia contends the toxicologist's testimony was inadmissible because she was not qualified to testify regarding the mental and behavioral effects of methamphetamine use. In particular, Garcia objects that "the toxicologist's testimony included the assertions that use of methamphetamine produces 'unwarranted self confidence, 'often' results in 'an increase of level of violent activities,' and that when the effects of the drug are wearing off, users 'can be easily set off.' "
" 'A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.' [Citation.] An expert witness's testimony in the form of an opinion is limited to a subject 'that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact . . . .' [Citation.] A claim that expert opinion evidence improperly has been admitted is reviewed on appeal for abuse of discretion." (People v. Catlin (2001) 26 Cal.4th 81, 131.)
The toxicologist testified at a hearing under Evidence Code section 402 that she had been a licensed toxicologist since 1981. She worked as a forensic toxicologist since 1982. For the previous seven years she worked for San Diego City and County. At the time of trial she worked with the coroners' offices in Riverside, Imperial, and Del Norte Counties, and was in charge of all the initial screens of blood and urine samples for the forensic toxicology laboratory. She had taught continuing education to the California Public Defenders. From 1987 to 1990, in connection with her work with law enforcement agencies, she had direct experience with at least two hundred individuals under the influence of methamphetamines because she observed and personally interacted with them as she collected their blood samples.
The trial court ruled admissible the toxicologist's testimony, stating, "In this case, the standard for an expert [is] not that high. So the objection is overruled. She will be allowed to testify as indicated by the prosecution. The objections that [the defense is] making go much more to the weight of the expert's testimony as opposed to its admissibility so the objection is overruled. [¶] Now, [the defense] can call the psychopharmacologist in [its] case and get the true information out."
Strictly speaking, the toxicologist was not formally trained regarding the mental and behavioral effects of drug use on individuals. Nonetheless, her testimony on this subject was harmless because it was based on her experience of observing numerous individuals when she tested them for drug use. We note the jury was instructed regarding the weight to be given to an expert's testimony in the language of CALJIC No. 2.80. At any rate, other testimony, in particular Petchell's, also established that Garcia got into a sudden rage when he argued, and he had violent arguments with Abraham.
V.
Garcia contends the prosecutor committed several act of misconduct, which individually or collectively required reversal. Our analysis of each claimed act of misconduct is guided by the following standard: A prosecutor's intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the entire trial with such unfairness as to make the conviction a denial of due process. (People v. Samayoa (1997) 15 Cal.4th 795, 841.) "A defendant's conviction will not be reversed for prosecutorial misconduct, however, unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct. [Citation.] Also, a claim of prosecutorial misconduct is not preserved for appeal if defendant fails to object and seek an admonition if an objection and jury admonition would have cured the injury." (People v. Crew (2003) 31 Cal.4th 822, 839.) "To determine whether an admonition would have been effective, we consider the statements in context." (People v. Edelbacher (1989) 47 Cal.3d 983, 1030.)
A.
The prosecutor stated during her opening statement that Garcia caused a "contact wound in [Abraham's] neck essentially leaving her for dead as she lay on the floor literally saying, "I'm dying. I'm dying." The trial court interrupted and advised the prosecutor the court had ruled inadmissible Abraham's statement, "I'm dying. I'm dying," and directed the prosecutor not to go into inadmissible areas. The prosecutor subsequently protested in an camera discussion that Abraham's statement was admissible because Garcia had included it in the letter he wrote to Abraham during the police interview. The trial court agreed with the prosecutor and reversed itself, explaining that Garcia's letter was the source of Abraham's statement. The court clarified the matter for the jury, saying, "During the opening statement right at the beginning, I interposed an objection to something that the prosecutor had said. You probably have no idea what it was all about. And it was a rather harsh reprimand for the prosecutor. [¶] "As it turned out . . . I misunderstood what was said. She didn't violate any [c]ourt rule or any ruling the [c]ourt had made. What she said was admissible, and therefore, I wanted to apologize to [the prosecutor] for interposing that objection. . . . So please don't hold anything against [the prosecutor] for the [c]ourt's mistake on that."
Garcia claims, "The prosecutor violated the court's ruling on a piece of evidence and was reprimanded for it. The prosecutor then distorted what actually happened and hounded the judge into apologizing in front of the jury, not only clearing her of the earlier misconduct, but having the court take the blame for the problem itself. This is not right and the appellate court should not allow a prosecutor to use such reprehensible methods without consequence." We reject this claim.
To begin, the contention is waived because Garcia did not object to the prosecutor's remarks based on prosecutorial misconduct. He also did not request an admonition. More importantly, the contention also fails on the merits. The trial court initially believed the prosecutor had violated its ruling, and therefore it admonished the prosecutor; it subsequently was informed of the proper context for the prosecutor's statement, and determined the prosecutor had not violated its ruling. It was not error for the trial court to correct itself before the jury, and Garcia provides no authority to support his claim to the contrary.
B.
The trial court ruled outside the jury's presence that witnesses were not to refer to Garcia's alleged drug dealings. During redirect-examination of Petchell, the following exchange took place:
"[Prosecutor:] Counsel talked to you, you know, about you're a drug dealer. Did you ever get drugs from the defendant?
"[Petchell:] Yes.
"[Prosecutor:] He was a dealer, too, wasn't he?
"[Petchell:] That's where I got
"[Defense attorney:] Objection.
"The Court: The objection is sustained. The last answer is stricken.
"[Defense attorney:] Your Honor, may we approach?
"The Court: No, the jury is strongly admonished not to consider that evidence.
"[Prosecutor:] Nothing further at this time. Thank you.
Immediately afterwards, defense counsel moved for a new trial, arguing the prosecutor had, "repeatedly gone into evidence that the court ha[d] previously ruled inadmissible," including the issue of Garcia's drug sales. The trial court denied the motion, telling defense counsel, "I've already admonished the jury not to consider [the statement regarding Garcia's drug sales]. If you want any further admonishment along those lines . . . I can do that. I can tell the jury there has been no evidence presented that the defendant is a drug dealer and therefore they're not to consider it, or there's no basis for that."
Following a recess, the trial court told the jury, "I want to remind you of one thing. The [L]egislature and the Courts of Appeal[] have determined that there are certain rules of evidence, certain evidence that is admissible in cases and certain evidence that is not admissible. And I have to follow those laws. And you're going to be required to follow those also. [¶] Also, one of the things I've pointed out to you is that statements made by attorneys during the trial are not evidence, so I have to really emphasize . . . to you that anything said by the attorneys you can't substitute in as evidence in this case. Also, if any evidence is stricken, you cannot consider it. It should not come up in your deliberations. And I want to emphasize that fact based on the last statements that were made. [¶] You cannot consider anything that was said by the attorney in that last — before we went — on the exchange. You can only decide the case based on evidence that's presented."
Garcia argues, "Obviously, the prosecutor's case against [his] character would be greatly enhanced if she could get the jury to think he was a drug dealer. So she did, despite the court's ruling against it." It was serious misconduct for the prosecutor to elicit testimony the trial court had ruled inadmissible. Nevertheless, the misconduct was not prejudicial because upon defense counsel's objection, the trial court struck the witness' incomplete answer and issued a curative admonition. (People v. Holt (1997) 15 Cal.4th 619, 662 ["Jurors are presumed to understand and follow the court's instructions"].) Garcia has not demonstrated that the admonition failed to cure any prejudice arising from the prosecutor's misconduct.
C.
Garcia contends the prosecutor violated the court's order during direct examination of the investigating detective, Donald Tulimero, who made an "inappropriate disclosure of the existence of a videotaped police interview." The prosecutor asked Tulimero at trial, "And can you briefly describe for us the circumstances surrounding the writing of that letter. I mean, did you tell [Garcia] to write a letter? What was going on at that time?" Tulimero responded, "Sure, during the interview, there was a break in the interview where I stepped out and Mr. Garcia was in the interview room by himself. The interview was videotaped." Garcia's attorney objected and the court sustained the objection, stating: "All right. We'll pass this for now. Move on to a different area." The prosecutor immediately turned to asking questions regarding the letter Garcia wrote.
Later that day Garcia moved for a mistrial, arguing the jury would speculate because the videotape of the interview was not in evidence. The prosecutor opposed the motion, stating, "Obviously my intention was to get out the fact that [Garcia] wrote the letter, and the circumstances were that it wasn't the detective told him [sic] to write the letter, and I think the detective used the words the interview was videotaped. [¶] Obviously, that alerted me, that alerted the [c]ourt, and that alerted [defense counsel], and I think the Court's comments, we're going to pass that for now. [¶] I don't believe that anything afterwards brought it up again."
The trial court denied the motion, ruling, "I don't think anything that was said will in any way prejudice your client. I would — if you want . . . to give some sort of a curative instruction, I don't think it would help as far as — I mean, if anything, it would draw attention. I strongly suspect that . . . testimony went right over the jurors' heads. I mean, it wasn't . . . like they were addressing the taped statement. At that point, the focus was on the letter and the timing of when the letter was written, so I don't think they even really noticed it." Garcia failed to accept the trial court's offer to admonish the jury, and on appeal has not demonstrated that an admonishment would have failed to cure whatever harm was caused by Tulimero's statement. Accordingly, the contention is waived.
D.
Garcia contends the prosecutor committed misconduct by vouching for Petchell's credibility during closing argument when commenting that Petchell "cared so much about [Abraham] that she flew [to California] from Minnesota and got on the stand to share with you the truth." Garcia also contends the prosecutor vouched for Zent's credibility during closing argument by stating, "[I]t's sad, it's pathetic what happens when there's a dope culture, methamphetamine culture right under our own community, and it's sad what some of the people went through, and the defense certainly took shots after shot at the witnesses we brought up who had nothing to hide, admitted their warts to you. [¶] You think it's easy for somebody like Stephanie Zent who's trying to get her kid back, who's been sober since July 1st to come in here and take the hits from the defendant's lawyer trying to tell you what happened in the best way she could. She did it. She could have — she could have, like Chato, made herself unavailable, but she came in here and just was herself up there because she's there to tell the truth. It's not like she had anything to hide." The prosecutor added, "What do you think it's like getting told you're a thief, aren't you? Stephanie Zent's getting by hour to hour. Let's just hope she didn't have a relapse after all that."
Once again, these contentions are waived because of Garcia's failure to object and seek curative admonitions. At any rate, even on the merits the contentions fail. A prosecutor should not misstate the evidence or the law; attack the integrity of defense counsel; or vouch for the strength of the prosecution's case based on matters outside the record. (People v. Hill (1998) 17 Cal.4th 800, 823, 829, 832; People v. Huggins (2006) 38 Cal.4th 175, 206-207.) "Prosecutors have wide latitude to discuss and draw inferences from the evidence at trial. [Citation.] Whether the inferences the prosecutor draws are reasonable is for the jury to decide." (People v. Smith (2003) 30 Cal.4th 581, 617.) Here, the prosecutor did not commit misconduct by referring to Petchell's and Zent's efforts to attend the trial and testify truthfully, because the prosecutor's comments were based solely on trial testimony. It was for the jury to determine the reasonableness of the inferences the prosecutor drew. For reasons previously discussed, it is not reasonably likely the trial would have produced a more favorable outcome for Garcia absent the prosecutor's remarks.
VI.
Garcia contends that because of the cumulative effect of the errors at trial, he was deprived of a fair trial. "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.) Having assessed Garcia's claims of evidentiary errors and prosecutorial misconduct and found only one instance of harmless prosecutorial misconduct, we reject the contention there was cumulative error requiring reversal of the judgment. There was no miscarriage of justice on the record before us.
VII.
Garcia contends the true finding on the section 12022.53 subd (d) enhancement that he intentionally fired the gun should be reversed because insufficient evidence supported it. We review the sufficiency of the evidence to support an enhancement using the same standard we apply to a conviction. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1382.) We review the entire record and presume every fact in support of the judgment the trier of fact reasonably could have deduced from the evidence. (People v. Rayford (1994) 9 Cal.4th 1, 23.) Reversal on the ground of insufficiency of evidence is "unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction.]' " (People v. Hughes (2002) 27 Cal.4th 287, 370.)
Substantial evidence was presented from which the jury could infer Garcia intentionally used his gun against Abraham. The forensic pathologist ruled out accident as the manner of death, and testified the cause of death was a downward contact or close range gunshot wound to the neck. Garcia previously had inflicted physical violence on Abraham. Petchell saw him bring a gun from his bedroom to the master bedroom. He argued with Abraham immediately prior to shooting her, and admitted in his letter to her, "I can't believe I allowed my anger to overrule my better judgment."
VIII.
Garcia contends he was denied relevant information from the police officers' personnel files, which infringed on his due process right to a fair trial. He asks this court to review the sealed transcript of the in camera hearing as well as any accompanying records and determine whether the trial court abused its discretion in denying him discovery of materials from any one of the officers' files.
In Pitchess, the California Supreme Court held that "a criminal defendant has a limited right to discovery of peace officer personnel records in order to ensure 'a fair trial and an intelligent defense in light of all relevant and reasonably accessible information.' " (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1038, fn. 3, quoting Pitchess, supra, 11 Cal.3d. at p. 535.) Based on the accused's need for disclosure as well as an officer's privacy expectations, and to prevent abuses, the Legislature codified the court's decision in Pitchess and set out procedures designed to implement the court's discovery rule. (Pen. Code, §§ 832.5, 832.7, 832.8; Evid. Code, §§ 1043-1047; see People v. Mooc (2001) 26 Cal.4th 1216, 1226 (Mooc).) Under these procedures, a defendant, by written motion, may obtain information contained in a peace or custodial officer's personnel records by providing certain identifying information, a declaration setting out good cause for disclosure, and a showing of materiality to the subject matter of the pending litigation. (Evid. Code, § 1043, subds. (a), (b)(2), (b)(3); Mooc, at p. 1226.) When presented with such a motion, the trial court rules as to whether there is good cause for disclosure. (Evid. Code, §§ 1043, 1045.) If the court orders disclosure, the custodian of the officer's records should bring to the court all "potentially relevant" documents and, in camera outside the presence of the defense or prosecution, the trial court determines whether any of the records are to be disclosed. (Mooc, at p. 1226.)
Mooc requires that, at the time of the in camera hearing, the trial court facilitate appellate review of its in camera rulings: "The trial court should . . . make a record of what documents it examined before ruling on the Pitchess motion. . . . If the documents produced by the custodian are not voluminous, the court can photocopy them and place them in a confidential file. Alternatively, the court can prepare a list of the documents it considered, or simply state for the record what documents it examined. Without some record of the documents examined by the trial court, a party's ability to obtain appellate review of the trial court's decision, whether to disclose or not to disclose, would be nonexistent. Of course, to protect the officer's privacy, the examination of documents and questioning of the custodian should be done in camera in accordance with the requirements of Evidence Code section 915, and the transcript of the in camera hearing and all copies of the documents should be sealed." (Mooc, supra, 26 Cal.4th at p. 1229, fn. omitted.)
On May 27, 2005, Garcia filed an amended Pitchess motion, seeking the personnel files of Escondido Police Detective Donald Tulimero and Detective Miguel Ramirez. On June 10, 2005, the trial court held a hearing in which both detectives were sworn and examined. We requested that the custodian of records deliver to us the transcript of the hearing and the records the trial court received and reviewed. We have reviewed the sealed reporter's transcript of the June 10, 2005 in camera hearings of Garcia's Pitchess motion and the personnel files that the trial court reviewed. In the hearing, as reflected in the sealed transcript, the trial court specified the personnel files it reviewed in a way sufficient to permit appellate review of its rulings. We conclude the trial court properly exercised its discretion in determining that there were no documents requiring disclosure under Pitchess.
DISPOSITION
The judgment is affirmed.
WE CONCUR: NARES, Acting P. J., HALLER, J.