Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. H39751
Lambden, J.
Defendant Mohammed Zafrullah Khan argues that the cumulative effect of three purported instances of prosecutorial misconduct during his jury trial requires reversal of the judgment. We disagree and affirm the judgment.
BACKGROUND
Defendant was charged in a first amended information with one count of battery causing serious bodily injury (Pen. Code, § 243, subd. (d)) and one count of assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)), with a personal infliction of great bodily injury enhancement (§ 12022.7) alleged with regard to the latter count. Defendant pled not guilty and denied the enhancement.
All further statutory references are to the Penal Code unless otherwise indicated.
It was undisputed that defendant’s son, M.R., nicknamed “Moe,” and M.K., nicknamed “Mick,” were best friends who lived together in a Hayward apartment. Defendant moved in with Mick and Moe, and the three got along with each other. In May 2004, Mick and Moe went fishing in South San Francisco. In the early evening, Moe called defendant to tell him that they were on their way to a bar near their home; the two arrived at the bar around 8:30 or 9:00 in the evening. Mick drank three or four beers and had a shot of Hennessy. Moe spoke with defendant on the phone several times while at the bar. Sometime after midnight, defendant arrived at the bar.
Mick’s Testimony
Mick testified that when defendant sat down behind him, he turned around to shake defendant’s hand, but defendant pulled his hand away. Mick asked defendant, “How are you doing, Pops? What’s up, Pops?” Defendant stood up and said to Mick, “What the fuck is going on?” He then pushed Mick against the bar. Mick told defendant he did not want to fight, but defendant punched Mick in the face three or four times. Moe also hit Mick in the back of the head. When defendant punched Mick for the last time he had his cane in his left hand. Mick felt the blow numb his eye and he fell to the ground, unable to see, his eye bleeding. He did not hit defendant or Moe during the confrontation. He had told defendant and Moe previously that he had corneal eye implants. As other patrons helped Mick, defendant left the bar.
Mick subsequently underwent surgery for his eye. He wore a patch over his eye for two months, and could not work. As of trial, he still could not see out of his right eye, and planned to have another eye surgery when he had enough money to pay for it.
The Bar Owner’s Testimony
The bar owner testified that he saw Mick and defendant engaging in a “heated exchange of words.” He saw defendant push and then hit Mick, and Moe hit the back of Mick’s head. He never saw Mick hit either defendant or Moe. After Mick fell to the ground, defendant left. The bar owner followed defendant outside and asked him why they were fighting. Defendant told him that Mick was an alcoholic who was getting his son drunk, and he wanted his son to come home so that he could go to work the next day. The bar owner asked defendant to wait until the police arrived, but defendant drove away. The next day, the bar owner gave a written statement and a videotape of the incident to police.
The Police Officer’s Testimony
A police officer testified that Mick appeared to be intoxicated and had a badly injured eye. When Mick refused medical attention, the officer told Mick that if he did not go to the hospital, he would be arrested for public intoxication. Mick agreed to go, and went to retrieve his glasses from his car, but first attempted to open the door of the wrong car. Paramedics then took Mick to the hospital.
Defendant’s Testimony
Defendant had been injured on his job and had two back surgeries. He needed someone to help care for him, so he moved in with Mick and Moe. He paid back rent and other late bills when he moved in. Mick called defendant “Pops” because defendant treated him like a son. Defendant knew that Mick had a major drinking problem, but not that Mick had corneal implants or eye problems. When Mick drank, he would become “extremely aggressive,” sometimes punching holes in the apartment’s wall.
Defendant learned that Mick and Moe were at the bar around 7:00 p.m. on the night of the incident. He offered by telephone to pick them up, but Moe said that they would walk home. Moe called about 9:00 p.m. and said they were still at the bar. Defendant called several times more and there was no answer. Around 12:45 a.m., he went to the bar because he did not want the two driving home. When defendant said he was there to take them home, Mick said he was okay to drive. Defendant told him he could barely walk and asked for the car keys. Mick shoved defendant in the chest with his left hand and swung at him with his right. Defendant dropped his cane and pushed Mick against the bar, told Mick that “you don’t respect anything, and you don’t have respect for me,” and demanded the car keys. Mick took another swing at him. Moe grabbed Mick from behind and hit him several times in the back of the head, saying, “Don’t hit my dad.” Defendant grabbed Moe and Mick threw another punch. Defendant hit Mick once, on the left side. The bar owner told defendant to leave.
Outside, defendant told the bar owner that Mick had attacked him and defendant was not trying to hit Mick. The bar owner did not ask defendant to stay until the police came. Moe said, “Let’s go, dad. They got the phone number.” Defendant drove Moe home, not knowing that Mick had been seriously injured. Defendant later told police he did not hit Mick but that, if he did, it was not intentional and he did not remember doing it.
Defendant emphasized that he never intended to injure Mick and he did not know about Mick’s previous eye surgery. He admitted he had been convicted of a felony and three misdemeanors, each involving a crime of violence.
The Videotape
The prosecutor played a videotape for the jury containing footage from the bar’s security cameras showing significant aspects of the confrontation. The videotape, which has no sound, shows a large man walking with his cane and sitting behind a second, smaller man, who stands up and faces the first man. The two face each other for a few seconds (their heads are not in clear view), when the first man shoves the second hard against the bar. The second man does not take any discernible aggressive physical action before this shove. The two then begin scuffling, taking hold of each other in a tight embrace as others gather around them. They disappear from camera view for a few seconds behind a pillar and emerge into view again still embraced, when the first man twists the second man around and throws him back against the bar. The first man is on the second man immediately, hits the man across the face with the back of his hand, pushes his own left hand, which holds what appears to be a cane, against the second man’s face, and punches the second man twice in the face with his right fist. The first man then grabs the second man, twists him around, throws him to the floor, and leaves the scene.
The jury found defendant to be guilty as charged. The trial court suspended imposition of sentence and placed defendant on probation for five years with the condition that he serve nine months in jail, and credited him with 267 days for time in custody. This timely appeal followed.
DISCUSSION
Defendant argues the prosecutor committed three acts of prosecutorial misconduct, cumulatively constituting misconduct under federal and state standards.
“As a general matter, an appellate court reviews a trial court’s ruling on prosecutorial misconduct for abuse of discretion.” People v. Alvarez (1996) 14 Cal.4th 155, 213. “ ‘ “The 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.’ ” ’ [Citations.] 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.’ ” ’ ” (People v. Stanley (2006) 39 Cal.4th 913, 951.) “To preserve a misconduct claim a defendant must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the misconduct claim preserved for review. [Citation.]” (People v. Cook (2006) 39 Cal.4th 566, 606.) “It is generally not necessary for the defendant to show the prosecutor acted in bad faith because the prosecutor’s conduct is evaluated in accordance with an objective standard.” (People v. Barnett (1998) 17 Cal.4th 1044, 1133; see also People v. Hill (1998) 17 Cal.4th 800, 822-823; People v. Smithey (1999) 20 Cal.4th 936, 961.)
Although defendant argues on appeal that prosecutorial misconduct violated both his state and federal constitutional rights, the record indicates that defendant did not mention federal constitutional issues below when he raised his prosecutorial misconduct claims. He never argued the federal standard, cited only state law, and the trial court referred only to the state standard in ruling on defendant’s claims. The Attorney General does not raise the issue of waiver, but we nonetheless find that defendant has waived this federal constitutional argument by his failure to first raise it before the trial court. (See People v. Jackson (1996) 13 Cal.4th 1164, 1242, fn. 20 [certain federal constitutional arguments waived for failure to raise them below].)
Defendant’s federal constitutional argument also fails on its merits. As indicated below, the prosecutor did not engage in prosecutorial misconduct, and did not engage in intemperate behavior that comprised a pattern of conduct “ ‘ “ ‘ “ ‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. . . .’ ” ’ ” ’ ” (People v. Stanley, supra, 39 Cal.4th at p. 951.)
We first review each act to determine whether it amounted to prosecutorial misconduct, before turning to an analysis of any cumulative effect.
A. The Prosecutor’s “Spouse Beating” Question
Defendant contends that the prosecutor violated the court’s in limine order by referring to defendant’s prior felony conviction for domestic violence, and that this constituted prosecutorial misconduct. This is incorrect.
1. Relevant Events
By motion in limine, the prosecutor sought to cross-examine defendant pursuant to Evidence Code section 788 about his prior felony domestic violence conviction in order to impeach the defendant’s credibility, since the prior conviction involved a crime of moral turpitude. The court found the prior conviction’s probative value outweighed any danger of prejudice if it was “sanitized,” stating, “I don’t think it would be appropriate to refer to domestic violence . . . .” It was subsequently agreed that defendant’s prior offense would be referred to as “a crime of violence.”
Evidence Code section 788 states in relevant part, “For the purpose of attacking the credibility of a witness, it may be shown by the examination of the witness . . . that he has been convicted of a felony.”
On cross-examination, however, defendant testified that Mick was the aggressor in their fight, and was “an extremely aggressive individual” when inebriated. This led to the following exchange:
“Q. You are a pretty extremely aggressive person too, aren’t you?
“A. No, I’m not.
“Q. You have beaten people on past occasions, sir, haven’t you?
“A. No, I have not.
“Q. You haven’t beaten your spouse or significant other on past occasions?”
“[DEFENSE COUNSEL]: Objection; argumentative.
“THE COURT: Sustained, Counsel.
“[PROSECUTOR]: I‘m offering it under 1103, Your Honor.
“THE COURT: No, sustained.”
Defendant subsequently moved for a mistrial, claiming it was prosecutorial misconduct to ask defendant about battering spouses in violation of the court’s prior in limine order. The prosecutor argued that he had a good faith basis for asking the question based on Evidence Code section 1103, which allows for introduction of evidence of a defendant’s character for violence to prove conduct in conformity with that character, after evidence that the victim had a character for violence has been adduced by the defendant.
Evidence Code section 1103 provides in relevant part:
The trial court did not rule one way or the other as to whether the prosecutor’s question violated its court order. Instead, it focused on the prosecutor’s contention that his question was admissible pursuant to Evidence Code section 1103, indicating that although it would not have allowed the prosecutor to use the phrase “beating your spouse,” it would have allowed the prosecutor to have made “some additional inquiry” of defendant beyond that he had a prior conviction for a “crime of violence.” The court, after indicating that it would consider curative language for its jury instructions regarding the prosecutor’s question, denied defendant’s motion for a mistrial.
Defendant did not propose any curative admonition to the jury for fear it would further highlight the domestic violence issue, and the court, sharing this concern, declined to give a specific admonition proposed by the prosecution. The court stated that it did not think the prosecutor “intentionally sought to violate the court’s order or anything of the sort.” It also stated, however, that in the course of ruling on the in limine motion it had “made it clear that we would not talk about the fact of domestic violence,” and that “it is crucial to the process, to the perception of fairness, that these orders be obeyed, because domestic violence is such a hot-potato issue and raises so many issues in the minds of the jurors.” No specific admonition about the domestic violence question was given. However, the court instructed the jury that “[d]uring the trial, the attorneys may have objected to questions . . . . I ruled on the objections according to the law. 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.”
After the jury verdict found him guilty of all charges, defendant filed a motion for a new trial, again claiming that the prosecutor had committed misconduct when he asked about battering spouses in violation of the trial court’s prior order (as well as about his son’s guilty plea, discussed, post), and in violation of defendant’s constitutional right to a fair trial. The court indicated that it had stated many times before that “the preferred method would have been to ask to approach before any evidence regarding the prior cases . . . came in. . . . But the mere failure to seek to approach court I don’t think could be considered reprehensible.” The trial court denied the motion, stating that the prosecutor had not acted in bad faith, that his conduct was not reprehensible, that the court had given the jury a curative instruction regarding the son’s guilty plea, and that defendant had failed to establish prejudice in light of the overwhelming evidence, such as the videotape. The court further found that even if there were prosecutorial misconduct, the court would deny the motion because defendant would be unable to show that it was reasonably probable that a result more favorable to the defendant would have occurred if no misconduct had occurred. The court noted that, among other things, “[t]his was not a close case in the sense that it was captured on videotape which the jury could certainly rely upon.”
The prosecutor also asked the court whether it was finding any prosecutorial misconduct. The court replied that it was “absolutely not finding any prosecutorial misconduct.”
2. Analysis
We see no reason to disturb the trial court’s determination that the prosecutor’s reference to “spouse beating” did not constitute prosecutorial misconduct.
“[M]erely asking a question to which an objection is sustained does not itself show misconduct.” (People v. Freeman (1994) 8 Cal.4th 450, 495.) Sometimes, “ordinary trial error” is all that is involved and, “that distinction should continue to be observed.” (Donnelly v. DeCristoforo (1974) 416 U.S. 637, 647.)
The record indicates that the trial court’s order prohibiting reference to defendant’s prior domestic violence conviction was not a prophylactic order, but was issued in response to a specific motion regarding impeachment of the testifying defendant’s credibility based on his commitment of a prior crime involving moral turpitude. Within that context, the court determined the prejudice of a reference to a prior domestic violence conviction outweighed any probative value, as the essential point—the commission of a crime involving moral turpitude—could be served by reference to a prior crime of violence.
The prosecutor’s reference during the trial to defendant’s “spouse beating” occurred in a different context. The prosecutor, responding to defendant’s testimony about Mick’s propensity for violence, asked about defendant’s own violent history, later explaining that he was of the view that defendant had opened the door pursuant to Evidence Code section 1103. Regardless of the merits of this position, the prosecutor, knowing the court’s prior order prohibiting reference to a prior domestic violence conviction for other purposes and the court’s preference that the parties approach the court on such an issue, should have approached the court to determine what, if any, latitude he would be allowed in his cross-examination. Still, the prosecutor did not necessarily violate the court’s prior in limine order in light of that order’s limited application.
We have no reason to find that the prosecutor did anything that was deceptive or reprehensible. This is not only because of the limitations of the court’s prior order and Evidence Code section 1103’s parameters. In addition, the prosecutor referred specifically to a “spouse beating” only after defendant denied he had beaten anyone before; while the prosecutor had other means to address the issue (e.g., by referring to prior convictions for violent crimes), his chosen reference in the “heat of battle” was understandable, even if the court ultimately determined that it was too prejudicial to allow, and that counsel should have approached the bench first to clarify if and how he could initiate this line of questioning.
Defendant contends that the trial court inappropriately considered whether or not the prosecutor acted in good faith, as the prosecutor’s state of mind is not relevant to prosecutorial misconduct analysis. While defendant is correct, it remains true that courts must determine whether or not a prosecutor’s actions were deceptive or reprehensible pursuant to an objective standard. (People v. Hill, supra, 17 Cal.4th at p. 823.) The trial court’s statements about the quality of the prosecutor’s actions included reference to the prosecutor’s subjective belief, but nonetheless were in keeping with this objective standard, and within the trial court’s discretion to make under the circumstances. For example, at the hearing on defendant’s motion for a new trial, the court cited controlling state case law for review of prosecutorial misconduct, People v. Gray (2005) 37 Cal.4th 168, and stated “it is the court’s position that nothing that the prosecutor did or should be interpreted as a reprehensible method to persuade the jury.”
Defendant also cites case law indicating that a prosecutor engages in misconduct when deliberately asking for inadmissible and prejudicial information (People v. Fusaro (1971) 18 Cal.App.3d 877, 886, disapproved on another ground in People v. Brigham (1979) 25 Cal.3d 283, 291-292), and that a prosecutor may not interrogate witnesses solely for the purpose of getting before the jury the facts inferred therein, rather than the answers which might be given. (People v. Wagner (1975) 13 Cal.3d 612, 619-620.) However, defendant does not cite to anything in the record which establishes that the prosecutor in this case engaged in either activity.
In short, we have no reason to disturb the trial court’s conclusion that the prosecutor’s reference to spouse beating was not prosecutorial misconduct.
B. The Prosecutor’s Questioning about Moe’s Guilty Plea
Defendant argues that the prosecutor’s solicitation of defendant’s testimony that his son Moe had entered a guilty plea was prosecutorial misconduct as well as the information was clearly irrelevant and prejudicial. He also asserts that he objected at the first available time outside the presence of the jury because he otherwise would have called undue attention to the issue, and that any objection would have been futile regardless because of the prejudicial impact of the information. We disagree.
1. Relevant Events
During the prosecutor’s cross-examination of defendant, defendant insisted that he did not hit Mick as Mick was thrown back against the bar, instead stating, “No, he was coming back at me was what the whole deal was.” This led to the following exchange:
“Q. Did you see him coming back at you on the videotape?
“A. He was trying to yes. Yes, he was, because my son hit him in the back of the head. That’s when I pulled my son off of him.
“Q. Let me talk to you about your son for a second. . . . [¶] . . . [¶]
“Q. Now, your son was also involved in this altercation, correct?
“A. Yes.
“Q. He also struck Mick, correct?
“A. Yes.
“Q. Now, are you aware of what happened with your son’s case?
“A. I’m aware now.
“Q. All right. And you recognize that your son had been charged with a crime as well, correct? “A. Right.
“Q. And in fact he pled guilty, correct?
“A. Yes.”
The defense made no objection. However, after the defense rested, and outside the presence of the jury, the court reproached the prosecutor for interjecting the information about Moe’s plea. The court stated that it was irrelevant and would tend to prejudice or confuse the jury. Defense counsel moved for a mistrial based on prosecutorial misconduct for the mention of Moe’s guilty plea, as well as for the reference to domestic violence discussed, ante. He stated that he had not objected to the question because he did not want to draw further attention to it. The prosecutor argued that Moe’s guilty plea was relevant in light of defendant’s testimony, which suggested the son had acted to defend him during the altercation.
The court denied the mistrial motion, and subsequently gave the jury the following special instruction: “You have heard testimony regarding the criminal case against the defendant’s son, and I am now instructing you to disregard this testimony and treat it as if you had never heard it. Do not let this testimony in any way enter into your deliberations.” As we have already discussed, defendant also moved for a new trial in part because of the prosecutor’s reference to the son’s guilty plea, which was denied.
The court also instructed the jury: “The evidence shows that another person may have been involved in the commission of the crimes charged against the defendant. There may be many reasons why someone who appears to have been involved might not be a codefendant in this particular trial. You must not speculate about whether those other persons have been or will be prosecuted. Your duty is to decide whether the defendant on trial here committed the crimes charged.”
2. Analysis
The Attorney General argues that defendant’s failure to timely object to the prosecutor’s question constituted a waiver of his prosecutorial misconduct claims. We agree to an extent. The prosecutor’s line of questioning about defendant’s son gave defense counsel sufficient time to object before defendant testified about his son’s guilty plea. Although defendant subsequently moved for a mistrial during the trial, which led to a special jury instruction to cure any prejudice that might have occurred, his failure to timely object to the prosecutor’s line of inquiry allowed admission of the only evidence presented to the jury regarding Moe’s guilty plea—defendant’s own testimony. A timely objection likely would have been sustained. Therefore, waiver occurred here, at least with regard to any prejudicial effect caused by defendant’s testimony. (People v. Cook, supra, 39 Cal.4th at p. 606.)
Even without any waiver, defendant has failed to establish that the prosecutor’s asking about Moe’s guilty plea, even if determined to be improper by the court, amounted to prosecutorial misconduct. There was no prior court order prohibiting the question, no specific right of the defendant violated, nor a line of inquiry pursued that is improper in all instances. Defendant fails to cite any authority to the contrary. The cases he cites suggest that, depending on the circumstances, an inquiry about another’s guilty plea may be more prejudicial than probative (see, e.g., People v. Cummings (1993) 4 Cal.4th 1233, 1321), but none prohibit such an inquiry for the reason it was pursued here, i.e., to impeach the defendant’s implication that his son attacked Mick because Mick was about to attack defendant. Even though a question may ultimately be ruled to be improper, “ ‘[w]hen a defendant voluntarily testifies, the district attorney may fully amplify his testimony by inquiring into the facts and circumstances surrounding his assertions, or by introducing evidence through cross-examination which explains or refutes his statements or the inferences which may necessarily be drawn from them.’ ” (People v. Smith (2003) 30 Cal.4th 581, 614.) Defendant opened the door to the prosecutor’s line of inquiry by referring to his son’s actions.
Furthermore, defendant does not provide any reason to disturb the trial court’s determination that the prosecutor’s action was not reprehensible, nor is there anything in the record to suggest deception. (People v. Hill, supra, 17 Cal.4th at p. 823.) The prosecutor’s inquiry was understandable and objectively reasonable in light of defendant’s own reference to his son’s actions, although once more the prosecutor showed poor judgment by failing to approach the bench first to determine how far he could go in his questions.
C. Discovery of Defendant’s Prior Misdemeanor Convictions
Finally, defendant contends that the prosecutor engaged in prejudicial misconduct by not providing defense counsel with the criminal history of defendant’s misdemeanor convictions, causing defense counsel to ask defendant if he had committed any other incidents of violence involving contact with the law besides his felony conviction, which opened the door to defendant’s impeachment. This too is incorrect.
1. Relevant Events
On direct examination, defendant at first acknowledged that he had only one conviction for a crime of violence. After this testimony, the prosecutor asked the court if he could impeach defendant with his prior misdemeanor convictions for crimes of violence, indicating defendant had three prior misdemeanor convictions for crimes of violence, including two 1997 convictions for the infliction of corporal injury on a spouse and a 2003 conviction for battery.
Defendant’s counsel responded that he had made an informal oral request to a previous prosecutor for such discovery, but never received it. The prosecutor stated that he was unaware of any such request and that, in any event, he thought he had showed the defense his entire file, including defendant’s prior folder. He also stated that the district attorney’s file notes did not indicate any informal requests for discovery.
The trial court stated that the informal discovery request in the court file did not ask for defendant’s prior convictions, and that that section 1054.1 did not require the prosecutor to provide such discovery to the defense. The court subsequently allowed defense counsel to reopen his direct examination of defendant, at defense counsel’s request. Defendant testified that he had three misdemeanor convictions for crimes of violence, and had misunderstood that the previous questions were limited to prior felony convictions. The prosecutor asked no further questions about the misdemeanor offenses. Defendant did not make any related motion or jury instruction proposal.
2. Analysis
Although the Attorney General does not raise the issue of waiver here, we find defendant has waived this prosecutorial misconduct argument because he did not object on any constitutional grounds below, nor did he seek an admonition of the jury regarding the prosecution’s purported withholding of discovery. (People v. Cook, supra, 39 Cal.4th at p. 606.)
Defendant’s argument fails on its merits as well. He fails to establish that the prosecutor engaged in any impropriety here, let alone prosecutorial misconduct. We have no reason to disturb the court’s resolution of the matter. Among other things, there is substantial evidence in the record, in the form of the prosecutor’s own statement, that the prosecutor disclosed defendant’s prior convictions to defense counsel prior to trial. The court’s statements also indicate it was skeptical that the defense made any request for the information that merited court action, having found no request for prior convictions in its files and been told by the prosecutor that there was nothing in the prosecution files. Defendant gives us no reason to disagree with the court’s skepticism.
Defendant argues that section 1054.1, subdivision (d) (which states that the prosecutor must disclose “the existence of a felony conviction of any material witness whose credibility is likely to be critical to the outcome of the trial”) required the prosecutor to disclose defendant’s prior misdemeanor convictions pursuant to the reasoning of People v. Santos (1994) 30 Cal.App.4th 169, 178-179.) We disagree. Santos makes quite clear that section 1054.1 imposes no obligation to disclose prior misdemeanors. (Santos, at p. 178.) While the Santos court concludes that the federal Constitution mandates disclosure of witnesses’ misdemeanor convictions when such information is requested by the defendant and is in the prosecutor’s possession, the court’s discussion makes clear it is referring to prosecution witnesses. (Santos, at p. 178.) We find no indication that the court intended this disclosure obligation to extend to the defendant when he appears as a witness on his own behalf. We conclude that defendant’s argument is without merit.
D. Cumulative Effect
Defendant argues that the cumulative effect of these three purported instances of misconduct resulted in prosecutorial misconduct which violated his constitutional right to due process under both the federal and state standards. We reject this argument because of our conclusion that none of the three actions amounted to prosecutorial misconduct. (See People v. Valdez (2004) 32 Cal.4th 73, 136 [the court stating that “[w]ithout a single instance of prosecutorial misconduct, we cannot conclude there was cumulative prejudicial impact depriving defendant of a fair trial and due process”].)
E. No Prejudice
Assuming for the sake of argument the prosecutor committed prosecutorial misconduct, we would find any error below was harmless because of the overwhelming evidence of defendant’s guilt, whether viewed under the federal or state harmless error standards. (People v. Huggins (2006) 38 Cal.4th 175, 208 [any prosecutorial misconduct was harmless under Chapman v. California (1967) 386 U.S. 18, 24 and People v. Watson (1956) 46 Cal.2d 818, 836].)
The videotape provided overwhelming evidence of defendant’s guilt, and eliminated the jury’s need to weigh witness credibility. Shown to the jury several times during the trial, and requested by the jury during its deliberations, it indisputably showed defendant to be the aggressor, as we have already described. Even if Mick had in any way acted aggressively towards defendant—and there was no evidence of this on the videotape—defendant had no legitimate reason to repeatedly strike Mick after throwing him back against the bar the second time.
Furthermore, the testimony of prosecution witnesses against defendant was very strong, including because the testimony corroborated the events captured on videotape, while defendant’s testimony contradicted it. Mick and the bar owner both testified that defendant hit Mick multiple times. Mick denied hitting or attempting to hit defendant, and the bar owner did not see Mick do so. Defendant’s testimony, on the other hand, was not credible. He testified that Mick was the aggressor in the fight, and that he hit Mick once intentionally and was “blocking” Mick’s blows against him the other two times he hit Mick. The videotape makes it clear that defendant’s testimony was incorrect.
The trial court also gave the jury instructions that cured or greatly diminished any prejudice caused by the prosecutor’s cross-examination questions. “Courts have long recognized that misconduct at trial can be cured by admonitions and instructions.” (People v. Houston (2005) 130 Cal.App.4th 279, 312.) The trial court instructed the jury to disregard questions by counsel to which objections were sustained, which included counsel’s “spouse beating.” Similarly, the trial court instructed the jury to disregard the brief testimony about Moe’s case. Under the circumstances, and absent evidence to the contrary, we presume the jury followed the court’s instructions. (People v. Osband (1996) 13 Cal.4th 622, 714.)
DISPOSITION
The judgment is affirmed.
We concur: Haerle, Acting P.J., Richman, J.
“(a) In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is: [¶] (1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character. [¶] . . . [¶]
“(b) In a criminal action, evidence of the defendant’s character for violence or trait of character for violence (in the form of opinion, evidence of reputation, or evidence of specific instances of conduct) is not made inadmissible by Section 1101 if the evidence is offered by the prosecution to prove conduct of the defendant in conformity with the character or trait of character and is offered after evidence that the victim had a character for violence or a trait of character tending to show violence has been adduced by the defendant under paragraph (1) of subdivision (a).”