Opinion
NOT TO BE PUBLISHED
Santa Clara County, Super. Ct. No. CC456796
Mihara, J.
Defendant Enrique Renteria Gutierrez appeals from a judgment of conviction entered after a jury found him guilty of two counts of first degree murder (Pen. Code, § 187). The jury also found that defendant personally and intentionally discharged a firearm resulting in the victims’ deaths (§ 12022.53, subd. (d)). The trial court sentenced defendant to 100 years to life in state prison. On appeal, defendant contends: (1) there was insufficient evidence of premeditation and deliberation; (2) the trial court abused its discretion in allowing the prosecutor to question a witness regarding why the wife of one of the victims would have threatened her; (3) the trial court abused its discretion in admitting an autopsy photograph; and (4) the prosecutor committed misconduct in closing argument. For the reasons stated below, we affirm.
All further statutory references are to the Penal Code unless otherwise stated.
I. Statement of Facts
A. Prosecution Case
At 6:19 p.m. on June 10, 2004, Sergeant Merlin Newton responded to a shooting that had been reported three minutes earlier at the Gaslight Bar. When Sergeant Newton entered the bar, he saw two victims lying next to each other on the floor. Miguel Sanchez, the owner of the bar, showed no signs of life while Ronald Funes appeared to be gasping for breath. Sergeant Newton also saw two shell casings to the right of the door, and secured the evidence at the scene. Shortly thereafter, paramedics arrived. They pronounced Sanchez dead and transported Funes to the hospital.
Witnesses also referred to Sanchez as Mike and Funes as Nica.
Officer Lindsay Thompson and his partner went to the hospital, where Funes had died. They then went to the Gaslight Bar, and took photographs and processed the scene. One photograph showed a TV or VCR remote control on the bar. There were no weapons near Sanchez’s body. Sanchez had a small, closed pocket knife in his front pocket near his waistband. They did not find any evidence associated with drug usage in the bar or on Sanchez’s person.
Edio Ruano went to the Gaslight Bar about twice a week before the shooting. At about 5:00 p.m. on June 10, 2004, he arrived at the bar with Miguel Meza, his coworker. There were about 10 to 15 customers in the bar. Ruano and Meza intended to watch a championship soccer game, which began at 6:00 p.m. Ruano saw Sanchez at about 5:30 p.m. Sanchez was laughing and did not appear angry or upset. A minute or two before the shooting, Sanchez, who was standing near the front of the bar, changed the channel on the television with the remote control. Ruano did not see what Sanchez did with the remote control, and he did not hear an argument.
At the time of the shooting, there were about 15 to 20 people in the bar. Ruano heard shots, and he “‘hit the ground.’” When he looked up, people were leaving the bar. As Ruano was trying to help Sanchez and Funes, he did not notice anything in Sanchez’s hands. No one else approached the victims. Though Ruano might have moved Sanchez’s arm from beneath Funes, he did not take anything out of Sanchez’s hand. He did not move anything around Sanchez.
Meza had been a regular customer at the Gaslight Bar for three or four years before the shooting. He knew several customers, as well as Funes and Sanchez. The shooting occurred about 45 minutes after Meza arrived at the bar, and 20 minutes after Sanchez arrived. Sanchez, who appeared to be in a good mood, greeted customers, checked the refrigerators, and performed other chores. Meza was sitting at the bar with Ruano on his right and Funes on his left. Just before the shooting, Sanchez stood next to Funes as he tried to change the channel on the television with the remote control. According to Meza, Sanchez did not change the channel, because “[s]ome people arrived through the door. Three of them remained there and one came in. He directed himself to Mr. Mike, but Mike was trying to deal with the clients. At that moment this individual backtracked two steps and he told them he had -- he told them he had a singer on him.” Meza noticed the group at the door, because they did not allow some other customers to leave the bar, and they did not enter the bar or order drinks. Meza had never seen these men before.
Meza identified defendant as the shooter. When defendant initially approached Sanchez, Sanchez did not respond because he was dealing with customers and trying to change the channel. Defendant then said that he was going to pull the “singer.” When Sanchez turned to respond, he was still holding the remote control. Defendant pulled a gun out of his waistband and cocked it, but the gun did not fire. He cocked it again and fired two shots. Defendant, who was about four feet from Sanchez, said something like, “‘Don’t you believe it,’” as he fired the gun at Sanchez’s chest. Both shots hit Sanchez. Sanchez fell backward close to the bar. Funes, who was standing directly behind Sanchez, fell on top of him. When Meza ran outside to see where the shooter went, he saw him enter a blue and white Bronco with the men who had been standing by the door. As they drove away, Meza wrote down a partial license plate number on his hand.
Martin Guzman was also a regular customer at the Gaslight Bar, and he knew Sanchez. Guzman arrived at the bar at 3:30 or 4:00 p.m. on the day of the shooting. Guzman saw Sanchez, who was drinking beer with some other customers and working around the bar. Sanchez appeared to be in a good mood. Shortly before the soccer game began, Guzman asked Sanchez to change the channel on the television. Sanchez asked one of the bartenders for the remote control, changed the channel, and returned the remote control to the bartender. Sanchez began walking away, and then stopped to talk to someone. Guzman heard Sanchez say, “‘Pull it if you have the guts.’” Guzman then heard two gunshots. When Guzman turned, he saw the man who fired the gun. The man was standing no more than two feet away from Sanchez. Customers were exiting the bar, and Guzman saw the shooter and two other men run outside. Guzman followed them and saw them enter a Blazer or a Bronco. Guzman wrote down a partial license plate number on his hand. Guzman then returned to the bar and saw that Sanchez was dead. Sanchez did not have anything in his hands or any weapons around him.
Manuel Cadenas Zenteno arrived at the Gaslight bar at about 5:00 or 5:20 p.m. on the day of the shooting. He was a regular customer, and he knew Sanchez and Funes. He was sitting next to Funes when he was shot. Sanchez was changing the channel on the television when the shooter entered the bar. Sanchez and the shooter looked at each other, walked towards each other, and then exchanged words for 10 to 15 seconds. At that point, the shooter stepped back, pulled out a pistol, and fired twice. Zenteno thought the shooter said something about having a gun before he fired. After he fired the gun, the shooter said, “Let’s go,” opened the door, and ran. Zenteno thought that the shooter arrived and left alone.
Zenteno was unavailable at the time of trial, and his testimony from the preliminary hearing was read to the jury.
According to Zenteno, Sanchez was standing with his arms straight and slightly extended out from his sides and in front of his body when he was shot. His hands were pointed down, with his palms facing the shooter. Sanchez was not moving or doing anything. Zenteno thought that he was still holding the remote control. Zenteno identified defendant as the shooter, but he was not “absolutely certain.”
When Detective Raymond Barrera interviewed Zenteno shortly after the shooting, Zenteno told him that the shooter arrived at the bar with some other individuals. Zenteno also told him that the shooter said, “Oh, come on, . . . you son of a bitch,” before he fired the gun, and that Sanchez was grumpy that day.
Jose Farias worked as a janitor at the Gaslight Bar. On the day of the shooting, he saw Sanchez, who appeared to be in a good mood. He did not see him argue with anyone. Farias left as Sanchez was changing the channel.
Jesus Navarro owned the business next door to the Gaslight Bar. He heard two gunshots in the bar. He then saw three men walk from the bar to an older model Bronco and drive off.
In June 2004, Claudia Escajeda was dating defendant, who called himself Carlos Enriquez. During their relationship, defendant had been violent towards her, but she could not remember how many times that he hit her. She did not report it to the police, because she was afraid that he would “do something” to her.
On the afternoon of June 10, 2004, Escajeda and her daughter went to the park with defendant. At about 5 p.m., defendant left in her Bronco. Defendant did not return or call her that evening. When Escajeda was watching television the next morning, she saw a story about a shooting and she realized that her Bronco matched a description of the suspect’s vehicle. Escajeda went outside and saw that her vehicle was parked in front of her neighbor’s house and the keys were on the floorboard. She called 911. Escajeda was eventually interviewed by police officers, who took her vehicle as evidence. The officers also told her to contact them if she heard from defendant.
At about 5 p.m. on June 14, 2004, defendant called Escajeda and they arranged to meet at a cleaners. After she spoke to defendant, Escajeda called the police and told them about the meeting. Defendant was then arrested. When Escajeda visited defendant at the jail, he admitted that he was involved in the shooting, and stated that the owner of the bar had been picking on him, bothering him, and threatening his family. He also told her that the shooting was an accident, and he did not know about the second victim.
When Escajeda testified at the preliminary hearing, she did not mention that the bar owner was picking on defendant or threatening his family.
Escajeda testified that Delia Sanchez, Sanchez’s wife, yelled at her as Escajeda was leaving the courtroom after her testimony at the preliminary hearing. Delia Sanchez told her that she knew Escajeda had a daughter and Escajeda would “pay for it” with her daughter. This threat was one of the reasons that Escajeda moved out of state. Escajeda could appreciate that Delia Sanchez was upset that defendant had killed her husband and the father of her three young children.
Delia Sanchez testified that Sanchez typically went to the bar in the mornings and returned at about 6:00 p.m. to work the night shift. Prior to the shooting, Sanchez did not complain about problems with anyone at the bar. When Sanchez drank beer, he did not become mean or violent. Delia Sanchez thought that her husband went to a cockfight once in Milpitas. He did not have a rooster at home.
Delia Sanchez also testified that she told Escajeda after her testimony at the preliminary hearing that she “hoped that her kids will cry as much as my kids.” She became upset when Escajeda testified that defendant shot Sanchez because Sanchez had been “teasing” him.
Records for defendant’s cell phone showed a call on June 11, 2004 from an area near Longview, Washington. The records also showed calls on June 12 and 13 from Tacoma, Washington.
Rosa Martinez lived across the street from the Sanchez family, and was very close to Delia Sanchez. The two women and their husbands had socialized regularly. Martinez had heard that Sanchez sometimes went to cockfights. According to Martinez, Sanchez did not exhibit violent or aggressive tendencies or associate with violent individuals. When Sanchez drank, he was “more funny.”
Bernabe Cardoso, Delia Sanchez’s brother-in-law, knew Sanchez from family gatherings and the Gaslight Bar. Cardoso had never seen Sanchez behave violently or aggressively, or associate with violent individuals. When Sanchez drank beer, he became more lively and happy.
On June 11, 2004, Sergeant Ed Zarate spoke with Escajeda. He and his partner Sergeant Terrence Simpson then went to her house. She provided them with a photograph of defendant, allowed them to take her Bronco as evidence, and agreed to contact the officers when she heard from defendant. Following defendant’s arrest, the officers went to Manuel Rodriguez’s home. Rodriguez directed them to a bundle of clothing on the roof where they found a firearm and ammunition.
Sanchez died almost instantly from a single gunshot wound to his chest. A gunshot residue test of Sanchez’s right hand showed the presence of gunshot residue. It was possible that Sanchez handled a gun or that he was in close proximity to the discharge of a gun. Gunpowder particles on Sanchez’s shirt near the point of entry indicated that the gun had been fired from between one to three and a half feet from his body. Sanchez had a blood alcohol level of .11 percent and a very low level of cocaine metabolite in his blood. Funes died from a single gunshot wound that went through his chest.
B. Defense Case
Mary Grijalva had seen defendant at several cockfights. In May 2004, he won over $3,000 and was very excited. The loser seemed upset, but she did not see defendant and the loser get into an argument.
Maria Pineda was working at the Gaslight Bar on June 10, 2004. When she arrived for work shortly before 6:00 p.m., Sanchez was having a drink with some customers. Three men entered the bar. Two of them sat near the front door, while the third walked into the bar. Pineda asked the two seated men what they wanted to drink, and they replied, “‘Whatever.’” As she was getting them some beer from behind the bar, she heard two shots. When Pineda saw Sanchez on the floor, he was holding only the remote control. She did not hear any arguments before the shooting.
Dr. Christopher Happy, a medical examiner, testified that a person of Sanchez’s size with a .11 percent blood alcohol level would have difficulty with reflexes and coordination. At this level, an individual might be aggressive, violent, irritable, anxious, or happy. According to Dr. Happy, the presence of cocaine metabolite in Sanchez’s system indicated that he had ingested cocaine from one to 24 hours before his death. Irritability is a symptom of cocaine withdrawal. If Sanchez had any cocaine in his system when he was shot, it was much less likely that he was experiencing any effects from it.
Defendant testified on his own behalf. He had been entering birds in and betting on cockfights for 20 years. In May 2004, he won $3,000 and reacted by screaming and clapping his hands. A man that he did not know told him to shut up. Defendant thought that he was being a sore loser, and defendant left.
On June 9, 2004, defendant went to the Gaslight Bar to play pool and drink beer with his friends. The man from the cockfight was also there. One of defendant’s friends introduced this man to defendant as “El Afinado,” which means the “person that fixes things.” The man was Sanchez, but defendant did not know that Sanchez owned the bar. Defendant and Sanchez talked for 10 or 15 minutes. Sanchez said that defendant had screamed at him at the cockfight. Defendant responded that Sanchez had screamed at him. Sanchez then told him to go away, because they were going to have problems. Sanchez told defendant three times that if he did not leave, he would kill him and his family. Defendant did not believe Sanchez, but he “felt bad,” and he left.
Defendant and two friends returned to the Gaslight Bar the next day a few minutes before 6:00 p.m. While defendant was speaking with a friend, Sanchez approached him. Defendant introduced Sanchez to his friends. After about 15 seconds, Sanchez went to the other corner of the bar. When defendant went to order beer for his friends and himself, Sanchez approached him and said, “‘I want to talk to you,’” and told him that he was not welcome at the bar. Defendant responded, “‘Why are you saying that? I come here just to have fun, just to play pool.’” Sanchez then insulted defendant, and told him three or four times that if would be better for him to leave and that if he did not leave, he and his friends would kill him. Sanchez, who was not holding the remote control, motioned with his hand to “call[] his people,” and “[t]wice he reached like he was going to pull a weapon.” Defendant felt “bad” and “scared.” When Sanchez made a motion to his people, defendant stepped back, pulled out his weapon, and fired twice. One shot hit Sanchez and “the other one [defendant] pointed somewhere else.” Defendant feared for his life and his family. He then said to his friends, “I got myself in trouble, let’s go,” and they left.
Defendant took the bus to Washington the night of the shooting. He returned to California on June 14, because he felt bad about what had happened and planned to surrender. He denied that he went to the Gaslight Bar to kill Sanchez or Funes.
On cross-examination, defendant testified that other people at the cockfight in May 2004 had told him that El Afinado and his friends were dangerous. Sanchez did not know defendant’s name at the cockfight, because defendant only used nicknames at the fights. Sanchez also did not know anything about defendant’s family. However, defendant claimed that everyone at the cockfights knew each other from cockfighting in Mexico.
Defendant found his gun in a park about two months before the shooting. He took it everywhere for protection, because everyone at the cockfights carried guns. However, he liked cockfights “a lot” and did not want to stop going to them. He did not know how to use the gun and the shooting was the first time that he fired it. Defendant was carrying 20 bullets in his pocket when he entered the bar. He did not know the gun carried hollow point bullets or even what they were. He denied that he told Sergeant Zarate that they were explosive bullets. He conceded that he also told the officer that when he returned to the bar on June 10, and Sanchez “‘was there, but I was prepared.’”
According to defendant, Sanchez was initially friendly toward him on the day of the shooting. While defendant and his friends ordered beers, Sanchez spoke with his friends in the corner. Sanchez then returned and began arguing with defendant. At one point, Sanchez told defendant, “‘Go ahead and shoot me in the head.’” Defendant’s response was, “‘I’m not going to shoot you where you want. I’m going to shoot you where I want.’” Sanchez was verbally “pushing” him. Immediately before the shooting, Sanchez said, “‘Do you believe it or not? You are going to be fucked right now.’” Defendant replied, “‘You, too. Can you believe it or not?’” Defendant shot Sanchez before he could get his knife out.
Defendant told Sergeant Zarate that Sanchez “‘got what he deserved. He deserved it for being such an idiot. Just because he had money.’” Defendant also said, “‘People like that think because they have money they can buy the world,’” “‘[t]hey are idiots,’” and “‘[t]hey think because they have money they are going to be gods.’” Defendant denied that he intended to kill Sanchez, and that if had intended to kill him, he would have waited for him outside. Sanchez was not holding the remote control when defendant shot him.
Defendant admitted that he had been convicted of several misdemeanors involving dishonesty in 1996, and that he had been convicted of receiving stolen property in 2000.
The parties stipulated that Meza had been convicted of misdemeanor hit and run causing property damage in 2000.
C. Rebuttal
On June 14, 2004, Sergeant Zarate interviewed defendant. Defendant told him that Sanchez threatened to kill him at the cockfight. Defendant also told him that he had shot the gun several times. Defendant knew that it was a powerful gun and had exploding bullets, which could kill a person or a deer. He did not tell the officer whether he had the gun at the bar on June 9. However, defendant did describe the night of the shooting, stating, “‘He said that his people were going to kill me and this and that. [¶] I told him, “Just don’t threaten me. Why are you threatening me?” [¶] It just so happened that I was prepared, you know, with my gun.’” Defendant also said, “‘Then I returned and he was there. When I returned on Thursday, he was there, but I was prepared.’” Defendant said that he shot Sanchez, because Sanchez had threatened him and his family. Defendant said that Sanchez urged him to shoot him in the head, and defendant replied that he would shoot him where it hurt. Defendant acknowledged that Sanchez did not know where defendant’s family was, but defendant thought Sanchez’s people were everywhere and “[p]art of the Mafia.” Defendant never told the officer that Sanchez reached toward his waistband before the shooting.
II. Discussion
A. Sufficiency of the Evidence
Defendant contends that there was insufficient evidence that the murders of Sanchez and Funes were premeditated and deliberate.
Generally, “[t]he proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]” (People v. Jones (1990) 51 Cal.3d 294, 314.) We also review “the evidence in the light most favorable to the prosecution, and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Griffin (2004) 33 Cal.4th 1015, 1028.)
A conviction of first degree murder requires more than a mere showing of the intent to kill. (People v. Koontz (2002) 27 Cal.4th 1041, 1080.) “[P]remeditation” means “thought over in advance,” while “deliberation” means a “careful weighing of considerations in forming a course of action.” (Ibid.)
In People v. Anderson (1968) 70 Cal.2d 15, the California Supreme Court provided guidance in assessing the sufficiency of evidence regarding premeditation and deliberation. The court found that three categories of evidence were relevant to this assessment: planning activity, motive, and manner of killing. (Id. at pp. 26-27.) “However, as later explained in People v. Pride (1992) 3 Cal.4th 195, 247: Anderson does not require that these factors be present in some special combination or that they be accorded a particular weight, nor is the list exhaustive. Anderson simply was intended to guide an appellate court’s assessment whether the evidence supports an inference that the killing occurred as the result of preexisting reflection rather than unconsidered or rash impulse. Thus, while premeditation and deliberation must result from careful thought and weighing of considerations, we continue to apply the principle that the process of premeditation and deliberation does not require any extended period of time. The true test is not the duration of time as much as it is the extent of reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . . .” (People v. Hughes (2002) 27 Cal.4th 287, 370-371, internal citations and quotation marks omitted.)
Defendant argues that there was no evidence of planning activity. However, defendant’s statement to Sergeant Zarate refutes this argument. As defendant explained to the officer, “When I returned [to the bar] on Thursday, he was there, but I was prepared.” Defendant brought a gun with eight rounds of ammunition. Based on this evidence, the jury could reasonably infer that defendant thought about what he was going to do to Sanchez prior to entering the bar.
Defendant also claims that the prosecutor conceded that there was no motive for the shooting and “speculated that it resulted from appellant’s feelings of jealousy, greed, lack of respect or anger.” This is an inaccurate characterization of the record. The prosecutor stated: “And the motive: Jealousy? No. Greed? No. Fear? Absolutely not. A lack of respect and anger. And for that, two men have lost their lives. [¶] We are here because Miguel Sanchez and Ronald Funes were senselessly murdered by this defendant.” The prosecutor’s assertion that defendant felt disrespected and angry was supported by the evidence. Sanchez had told defendant to leave the Gaslight Bar when they disagreed about what had happened at the cockfight fight. Defendant “felt bad,” and left. Defendant’s anger at how he had been treated by Sanchez was later disclosed in his statements to Sergeant Zarate. He told the officer that Sanchez “‘got what he deserved. He deserved it for being such an idiot. Just because he had money.’” The killing was “senseless,” because the motive was so petty.
Thus, the evidence of planning activity and motive constituted substantial evidence to support the jury’s findings that the murders were the result of defendant’s premeditation and deliberation rather than a rash impulse.
B. Admissibility of Evidence
Defendant asserts that the trial court properly permitted the defense to elicit Escajeda’s testimony that Delia Sanchez had threatened Escajeda after she testified at the preliminary hearing, because it was relevant to Escajeda’s credibility at trial. He contends, however, that the trial court erred in allowing the prosecutor to question Escajeda about her understanding of why Delia Sanchez would threaten her.
1. Background
During cross-examination of Escajeda, defense counsel asked, “And when you left the courtroom [after testifying at the preliminary hearing], did a woman yell out something to you?” Escajeda replied, “Yes, she did.” When defense counsel started to ask another question, the prosecutor objected on relevance grounds. Defense counsel responded, “State of mind, Your Honor.” After defense counsel clarified that she meant Escajeda’s state of mind, the trial court overruled the objection. Over the prosecutor’s continued objections, defense counsel elicited Escajeda’s testimony that Delia Sanchez, the victim’s wife, had yelled at her that she knew Escajeda had a daughter and threatened that Escajeda “was going to pay for it with [her] daughter.” Escajeda felt “[n]ot good at all” and one of the reasons that she moved out of state was Delia Sanchez’s threat.
On redirect examination of Escajeda, the prosecutor asked her whether she noticed Delia Sanchez in the courtroom during the preliminary hearing. When Escajeda said that she did, the prosecutor asked, “And did it appear to you that she was very upset while you were testifying?” Escajeda replied, “Yes, she was.” The prosecutor then asked, “And can you appreciate that she would be upset because she lost her husband?” Escajeda responded, “Oh, yeah.” The prosecutor asked, “Did you know that at the time of his death, Mr. Sanchez had three children under the age of ten?” Defense counsel objected on relevance grounds, and the trial court overruled the objection. Escajeda replied, “I am sure he did. I really didn’t know him. I didn’t know who he was.” The prosecutor asked, “Can you appreciate that Ms. Sanchez was upset that her husband was killed and the father of her three children was killed?” Escajeda stated, “She didn’t have no reason to threaten me.” She agreed that she could appreciate Delia Sanchez was upset. The prosecutor then asked, “And did it appear to you from her statements that she thought you were in court to help the defendant?” Defense counsel objected on the ground the question called for speculation. The prosecutor responded that it called for Escajeda’s state of mind, and the trial court overruled the objection. When the prosecutor again asked if Escajeda thought that Delia Sanchez thought she was coming to court to help defendant, Escajeda replied, “Not really.”
2. Analysis
We now consider whether the trial court properly allowed the prosecutor to elicit Escajeda’s testimony about her understanding of why Delia Sanchez would threaten her.
“‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) “The test of relevance is whether the evidence tends logically, naturally, and by reasonable inference to establish material facts such as identity, intent, or motive.” (People v. Carter (2005) 36 Cal.4th 1114, 1166, internal citations and quotation marks omitted.) This court will not disturb a trial court’s exercise of discretion in admitting evidence “except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. [Citation.]” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
It is undisputed that “[e]vidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible. [Citation.]” (People v. Burgener (2003) 29 Cal.4th 833, 869.) Thus, Delia Sanchez’s threat to Escajeda was relevant to her credibility. However, the effect that the threat had on Escajeda was also relevant. By eliciting Escajeda’s testimony about whether she could appreciate that Delia Sanchez would be upset by the loss of her husband and the father of her young children, and that Delia Sanchez believed Escajeda was testifying to help defendant, the prosecutor was attempting to explore the effect of the threat on Escajeda. Since Escajeda could have interpreted the threat as an emotional outburst by Delia Sanchez rather than an expression of her intent, such testimony would have been relevant to the jury’s evaluation of her credibility. In other words, Escajeda might have concluded that she would not take Delia Sanchez’s threat seriously, because she understood Delia Sanchez’s grief, and thus the threat would have had no impact on her testimony at trial. Escajeda, however, adhered to her belief that Delia Sanchez should not have threatened her. Since the evidence was relevant, the trial court did not abuse its discretion in admitting the evidence.
Since we have considered the admissibility of the challenged evidence, we need not consider whether defendant’s objection was technically deficient and thus, trial counsel rendered ineffective assistance.
C. Admissibility of Autopsy Photograph
Defendant next argues that the trial court abused its discretion in admitting an autopsy photograph of Funes without cropping or covering the portion of the photograph that showed a large tube inserted into the right side of Funes’s chest.
1. Background
Defendant filed a motion in limine in which he requested the exclusion of all autopsy photographs on the grounds that they were gruesome and unduly inflammatory. At the hearing on the in limine motions, defense counsel requested that a photograph of Funes, which showed a large tube inserted in his chest and smaller tubing in his mouth, be modified so that the chest tube was not shown. After the prosecutor objected and referred to a supplemental pleading, the trial court deferred its ruling until it had time to review this pleading. The prosecutor’s supplemental pleading did not refer specifically to the issue of whether the photograph could be cropped or modified.
The trial court later stated: “In terms of the photographs, we talked about that. And I believe that you met and conferred, and the only photograph in dispute at this time is the one that we discussed during motions in limine, and that was the one with Mr. Funes showing with the tube inside him. And I indicated that that was acceptable.” Defense counsel stated that the prosecutor was considering not introducing that photograph and that the parties would continue to meet and confer.
During trial, Officer Thompson, who processed the crime scene for evidence, testified that he saw Funes’s body at the hospital. He described Funes’s condition and stated that he had an incision on the left side of his chest and an airway tube. He did not refer to a tube coming from the right side of Funes’s chest.
Dr. Joseph O’Hara, a forensic pathologist, testified that Funes’s body exhibited a number of signs of medical intervention when the autopsy was performed. The medical intervention included “a chest tube on the right side of the chest, which is just a plastic tube inserted into the chest to drain fluid.” Dr. O’Hara testified that two photographs (Exhibits 52 and 53) were consistent with the entrance and exist gunshot wounds described by the pathologist who performed the autopsy. When the prosecutor asked to have Exhibits 52 and 53 admitted, defense counsel objected to Exhibit 52. The trial court stated, “We have already dealt with that. Very well. Exhibit 52 is admitted over defendant’s objection.” The prosecutor then displayed the photograph, and asked, “The tube that is extending from the right chest, is that the tube that you were describing a moment ago?” Dr. O’Hara said, “Yes, sir. That’s the chest tube.” Dr. O’Hara also testified that Exhibit 52 was one of the photographs that most clearly showed the entrance wound.
After Dr. O’Hara’s testimony was completed, defense counsel stated, “I did object to the photograph of Mr. Funes with the tube on his side, and my recollection was that [the prosecutor] was going to modify it or perhaps there was a suggestion that he modif[y] the photograph.” The trial court responded, “It was a request by you. And it’s my recollection that when we -- that we did deal with this on the record and the Court did overrule your objections and did not find that it was prejudicial.” The prosecutor agreed with the trial court’s recollection. The trial court also asked, “Just to be clear, that was your only objection to that photograph; is that correct?” Defense counsel responded, “It was.”
2. Analysis
Evidence Code section 352 states, in relevant part, that “[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice . . . .” Evidence has probative value to the extent it is relevant. (Evid. Code, § 210.) Evidence that is unduly prejudicial within the meaning of this statute is “evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.” (People v. Barnett (1998) 17 Cal.4th 1044, 1118, internal quotation marks and citations omitted.) When a defendant claims that photographs are unduly inflammatory, the trial court enjoys broad discretion in determining whether to admit them under Evidence Code section 352. (People v. Howard (2008) 42 Cal.4th 1000, 1023.) This court will not disturb the trial court’s exercise of discretion “unless the probative value of the photographs is clearly outweighed by their prejudicial effect.” (Ibid.)
In the present case, there was no evidence that the tubing tended to prove any fact relating to the manner or cause of death. Nor was there any issue relating to any of the procedures performed by medical personnel on Funes. However, the “nature and placement of the fatal wounds” may support the prosecutor’s theory of the case (People v. Pride (1992) 3 Cal.4th 195, 243). Here, the inclusion of the portion of the photograph showing the tubing on the right side of Funes’s chest provided the viewer with a slightly better sense of the location of the entrance wound. Thus, the challenged portion of the photograph had some probative value.
We next consider the prejudicial effect of the photograph. Defendant contends that the jury could have concluded that the tubing inserted into Funes’s mouth exited from his chest. However, this tubing in his mouth is barely visible in the photograph, and thus it is highly unlikely that the jury reached this conclusion. Defendant also claims that the “hole into which the tubing was inserted looks like an additional wound that is even larger than the bullet wound inflicted by” defendant. Defendant overlooks Dr. O’Hara’s testimony in which he adequately informed the jury that the tubing was the result of medical intervention and not the direct result of defendant’s action. In our view, the inclusion of the tubing in Funes’s chest in the photograph does not render it unduly gruesome or inflammatory. Thus, the trial court did not abuse its discretion in admitting the photograph.
Defendant’s reliance on People v. Marsh (1985) 175 Cal.App.3d 987 is misplaced. In Marsh, seven autopsy photographs, which the trial court described as “‘certainly shocking’” and the prosecutor admitted were “‘terribly gruesome and terribly upsetting,’” were admitted into evidence. (Id. at p. 997.) The photographs included images of the interior of the skull with blood clots, a scalp that had been peeled back, and the open ribcage exposing the bowels. (Id. at pp. 996-997.) We note that even though the Marsh court concluded that it was error to admit the photographs, it did not find that their admission was a miscarriage of justice. (Id. at p. 998.) More importantly, Marsh is clearly distinguishable from the present case. Here, there was only a single photograph that showed a chest tube near an entrance wound.
D. Prosecutorial Misconduct
Defendant also contends that the prosecutor committed misconduct during closing argument.
1. Background
During her closing argument, defense counsel argued that Sanchez had pulled a firearm out of his waistband during the shooting, and thus defendant reasonably feared imminent harm from Sanchez when he shot him. Defense counsel relied on defendant’s testimony that he saw Sanchez reach for his waistband twice. She also argued that the remote control that Pineda saw in Sanchez’s hand was actually a gun, because other witnesses testified that Sanchez did not have the remote control in his hand when he faced defendant and there was nothing in Sanchez’s hand when the police arrived. She then argued that Farias took the gun home with him “as a last act of loyalty to his friend.”
During the prosecutor’s rebuttal, he argued, “For the defendant to think that his family was in danger because Mike said, ‘I’m going to kill your family,’ that’s not imminent danger, because Mike - - or the defendant’s family wasn’t with him in that bar. It has to be an immediate threat, which is why [defense counsel] had to contrive that ridiculous argument that Mike actually had a gun in his hand, and that the people in that - - ” At that point, defense counsel objected, “I’m going to object to personal attacks.” After the trial court overruled the objection, the prosecutor continued, “It was a contrived argument, and it was ridiculous and completely unsupported by the evidence.”
2. Analysis
As our Supreme Court explained in People v. Hill (1998) 17 Cal.4th 800, “[t]he applicable federal and state standards regarding prosecutorial misconduct are well established. A prosecutor’s . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. 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.” (Id. at p. 819, internal citations and quotation marks omitted.) “When the issue focuses on 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. Moreover, prosecutors have wide latitude to discuss and draw inferences from the evidence at trial, and whether the inferences the prosecutor draws are reasonable is for the jury to decide.” (People v. Cole (2004) 33 Cal.4th 1158, 1202-1203, internal citations and quotation marks omitted.)
Defendant relies on the following definition of “contrive:” “1. To plan with cleverness or ingenuity; devise: contrive ways to amuse the children. [¶] 2. To invent or fabricate, especially by improvisation: contrived a swing from hanging vines. [¶] 3. To plan with evil intent; scheme: contrived a plot to seize power. [¶] 4. To bring about, as by scheming; manage: somehow contrived to get past the guards unnoticed. [¶] (http://www.thefreedictionary.com/contrive.)” He points out that two of the four definitions for “contrive” connote wrongdoing, and thus it was “‘reasonably likely’” that the jury would have understood the prosecutor’s reference in a negative manner. Thus, defendant argues that “the prosecutor asserted that defense counsel had fabricated, with evil intent, a ridiculous theory of defense. The prosecutor’s comments were not simply a[n] attack on the argument itself.”
Even if we were to assume that there was a reasonable likelihood that the jury understood the prosecutor’s comment in the manner suggested by defendant, it is not reasonably probable that there would have been a more favorable result if the error had not occurred. (Evid. Code, § 353, subd. (b); People v. Watson (1956) 46 Cal.2d 818, 826.) Defendant has focused on a single phrase in the context of lengthy closing arguments and there is little likelihood that the jury was affected by the prosecutor’s relatively brief comment. The improper comment was directed against defense counsel, not defendant. More importantly, the judge instructed the jury that it was required to decide the case based on the evidence and that it could not consider counsels’ statements as evidence. Accordingly, even if we were to conclude that the prosecutor committed misconduct, it would not have been prejudicial.
Defendant contends the cumulative error doctrine requires reversal. (People v. Holt (1984) 37 Cal.3d 436, 458-459.) Since we have found no error, we need not consider the cumulative error doctrine.
III. Disposition
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., McAdams, J.