Opinion
B292186
05-28-2020
THE PEOPLE, Plaintiff and Respondent, v. BERNARD LYNN LAMPLEY, Defendant and Appellant.
Mark Yanis, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr., and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA458062) APPEAL from a judgment of the Superior Court of Los Angeles County. Lisa B. Lench, Judge. Affirmed. Mark Yanis, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr., and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
In an information filed by the Los Angles County District Attorney's Office, defendant and appellant Bernard Lynn Lampley was charged with one count of murder (Pen. Code, § 187, subd. (a)). The information further alleged a deadly weapon enhancement special allegation (§ 12022, subd. (b)(1)), as well as prior conviction special allegations (§§ 667, subds. (a)(1) & (b)-(j), 1170.12). Defendant pleaded not guilty and denied the special allegations.
All further statutory references are to the Penal Code unless otherwise indicated.
Trial was by jury. The jury found defendant guilty as charged.
Defendant timely filed a notice of appeal. On appeal, defendant contends: (1) Police repeatedly violated defendant's rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) by ignoring his invocations of his right to remain silent and continuing to interrogate him; (2) Defense counsel's failure to move to suppress defendant's statements or object to their admission at trial violated defendant's right to effective assistance of counsel; (3) The prosecution violated defendant's right to due process by repeatedly arguing to the jury that defendant's invocations of his right to remain silent was evidence of his guilt; (4) The prosecution improperly shifted the burden of proof to defendant by implying that he was obligated to tell his story to prove his innocence; (5) Defense counsel's failure to object to the prosecutor's statements violated defendant's right to effective assistance of counsel; (6) Cumulative error compels reversal; and (7) The trial court committed reversible error when it instructed the jury that it could consider the certainty of the eyewitnesses who identified defendant.
We affirm.
FACTUAL BACKGROUND
I. People's Evidence
A. Defendant stabs Christopher Lawson (Lawson) to death
Maria Gabaldon (Gabaldon) was homeless and lived in a tent in downtown Los Angeles. A man she knew as "Boobytrap," later identified as Lawson, lived in a tent next to her. They had known each other for two years and were friends. A woman named Brenda lived in the area too, and defendant was her boyfriend. Gabaldon knew defendant as "Damoo," and Brenda told her not to mess with him.
On the morning of May 17, 2017, Lawson asked Gabaldon for some water and said, "'something's gonna happen to me. I don't know what.'" He continued, "'I got a feeling.'" Gabaldon tried to assure him that he would be fine before she left the area later in the evening to go to a homeless shelter.
On May 18, 2017, at 1:55 a.m., defendant stabbed Lawson once in the left side of his chest.
Gabaldon returned to her tent after the stabbing had occurred. A woman she knew as Sparkles told her that Lawson was dead. Gabaldon also saw Brenda with "a black eye and the busted lip." Brenda said that defendant had punched her.
Someone called 911 at 2:30 a.m. During the call, the caller stated, "My friend is laying here in the sidewalk and he's dead." The caller added, "he got shot or stabbed," after removing Lawson's shirt at the direction of the 911 operator. The operator further instructed the caller to perform CPR, which the caller did to no avail.
Los Angeles City Fire Department Paramedic Darren King (King) and his partner responded to the scene of the stabbing. King determined that Lawson had died due to the injuries resulting from the stabbing.
Two days after the murder, several people set up "a memorial or a vigil" for Lawson within feet of where the stabbing occurred.
B. Surveillance video captures several individuals in the area of the murder
Los Angeles Police Department Detective David Torres arrived at the location of the stabbing. He located surveillance cameras from which he obtained recordings. From one recording, he concluded that Lawson could be seen riding his bicycle. Later Detective Torres could see Lawson running. Then the recording captured another individual riding a bicycle, who "goes and checks Mr. Lawson." The recording further captured "a male wearing a white shirt" whom Detective Torres did not find when he was at the scene. In addition, an individual could be seen riding a bicycle and shining a light on Lawson's body, as well as a female "with what appears to be a phone" in her hand at the same time as the 911 call.
From another recording, Detective Torres saw an individual "holding something long in [his] hand," "facing another person." There was also a person "wearing some sort of black shirt or jacket with red pants." Another video clip showed Lawson and another person on bicycles, as well as someone running towards where Lawson's body was found.
Los Angeles Police Department Officer Ronald Berdin reviewed surveillance video as well. In the video, the first person seen approaching Lawson's body was a man in a white or light-colored shirt. The man was riding a bicycle.
C. In a recorded interview, Gabaldon identifies defendant as the murderer
On May 31, 2017, Detective Jose Calzadillas and Officer Berdin found Gabaldon in the area of 8th Street and Stanford Avenue. She ran to their police vehicle and "seemed frantic." Gabaldon said that she wanted to speak with them and indicated that "she believed somebody was following her." When they mentioned Lawson, Gabaldon "said that she knew him and that she had information regarding his murder."
Detective Calzadillas and Officer Berdin took Gabaldon to the police station, where they conducted a recorded interview of her. She was crying and said, "Just make sure you all get this man." The man she was referring to was Damoo, whom she indicated was "Brenda's boyfriend." Gabaldon then described the incident. According to Gabaldon, Brenda went to the tent where Lawson was, and Lawson said, "I told you to stay away from me lady." Brenda replied, "you're going to get what's coming to you." Brenda crossed the street, and defendant, who was wearing a white T-shirt, punched her before stabbing Lawson and running from the area. Lawson died. Brenda also fled on Lawson's bicycle.
At trial, Gabaldon testified that she was unable to describe what defendant looked like and did not see him in the courtroom.
At trial, Gabaldon denied telling the police that she saw defendant hit Brenda. Gabaldon also testified that she never told the police that she saw defendant stab Lawson, and she could not have done so because she told them that she was not there when the stabbing occurred.
At trial, Gabaldon denied telling detectives that Brenda took the bicycle.
On the Saturday after the stabbing, defendant went back to the scene of the stabbing and attended a vigil for Lawson. Defendant had Lawson's bicycle and said, "I shouldn't have stabbed you. I should have shot you you mother fucker."
Gabaldon added that two days before the stabbing, a man who worked at a nearby flower shop beat her, and after the stabbing, he threatened that if she talked to the police, she "was next." He also said, "you'll be dead if you talk to the fucking detectives. Don't do nothing stupid bitch." Gabaldon did not want anyone to know that she had spoken to the police.
At trial, Gabaldon denied telling detectives that she was ever threatened.
Gabaldon requested a pen and drew a picture of the knife that defendant used. In addition, she reviewed a series of photographs. From them, she identified defendant as either the man in photograph number one or five. After reviewing the photographs further, she correctly identified defendant as the man in photograph number one. She told Detective Calzadillas, "Number one. It's him. I know that's him. I know that's him. Has to be. Has to be. It has to be." Moreover, Gabaldon reviewed another set of photographs from which she correctly identified Brenda as the woman in number four.
D. In a recorded police interview, defendant denies any involvement in the murder
The police believed that defendant was the murderer, obtained an arrest warrant for him, and conducted a recorded interview of him on July 10, 2017. Detectives Calzadillas and Torres removed defendant's handcuffs when the interview began. He stated that he was homeless and had a girlfriend named Brenda Serrano. He claimed to have no idea why the police had arrested him. Detective Calzadillas then read him the Miranda admonitions, which defendant stated he understood. Following the admonitions, defendant continued to answer Detective Calzadillas's questions.
Defendant admitted that he knew Lawson, but denied having any knowledge of the stabbing. He claimed that he did not know how Lawson died and denied seeing Lawson on the date of the stabbing. However, defendant also informed the detectives that the stabbing occurred "on Crocker" and admitted attending the vigil. He also admitted that he went by the nickname "Damoo," but denied that the name was gang-related.
Defendant claimed that he was not with Brenda at the time of the stabbing. But, when Detective Calzadillas asked him what if surveillance cameras in the area recorded him, he admitted that it was possible that he was "passing through."
The police had identified defendant on the surveillance recordings.
When the detectives inquired about what Brenda had told him about what had happened to Lawson, defendant replied, "She told me—I mean, she told me some things that I really don't want to speak on." The detectives asked again, and he answered, "I don't really—I mean, well the thing is you know, I don't want to say anything that could probably incriminate me." The detectives continued questioning defendant about the relationship between Brenda and Lawson, and defendant stated that he believed that they were not enemies.
Returning to the subject of what Brenda told defendant about Lawson, the detectives asked how telling them would incriminate defendant. Defendant responded, "Well I don't really want to, you know, I don't—there's rumors. So if there's rumors, I don't want these rumors to fall back on me." The detectives continued that they could only get his side of the story if he spoke with them, and defendant said, "I don't want to say something and all of this, this is tied in to—anything you said can be held against me. I don't want—."
The detectives asked defendant about the rumors. They asked, "if you have nothing to do with it then why would that be—how would that incriminate you?" Defendant replied, "People put things together." He was concerned that people could "twist" things and admitted, "Something might have happened," but it was not how people were twisting it. Defendant explained that he did not have any personal knowledge of the stabbing and he did not "want to speak on the rumors." The detectives asked him what he did want to speak about, and he responded, "There's nothing really for me to speak on. I mean, you know I'm here. You got me here, so—."
The detectives showed defendant a photograph, and he identified the man in it as "Booby Trap." They asked if he heard about anyone being at the scene of the stabbing, and he told them that he could not recall. The detectives brought up the rumors again, and defendant still did not want to speak about them. As a result, the detectives asked defendant to speak about what he knew of the stabbing; defendant responded, "I don't want to speak about none of that either, if that—even, even, even if [I was there], I don't want to speak on it." The detectives reiterated that he had a video recording showing that he was there and wanted to give him a chance to explain what had happened. Defendant stated that he did not know anything about the incident. When the detectives asked defendant why he would be caught on video, defendant said, "I'm on the block, on the block off and on." He added, "I'm hanging out, like I always hang out."
The next subject was defendant's relationship with Lawson. He denied ever arguing or fighting with Lawson. After the detectives mentioned that they had found defendant's DNA on Lawson, defendant could not think of any reason why his DNA could have gotten there.
The police had not found defendant's DNA on Lawson.
The detectives asked defendant if he ever had a physical altercation with Brenda. Defendant replied, "At this time, no more comments." The detectives responded, "So you're going to listen to us? You want to listen to us?" Defendant stated, "I, I, I'm done. Y'all got the answers." The detectives countered that there were several outstanding questions, and defendant replied, "I gave you my story. I wasn't, I wasn't the guy. I don't know what happened." He continued: "Whatever happened to Booby Trap. Something happened with Booby Trap, but I'm not your guy."
Questioned further about his relationship with Brenda, defendant admitted that they argued "all the time." The detectives inquired, "Any further comments at this time?" Defendant responded, "Mm-mm." They asked what he would do if he discovered that someone was "messing with [his] girl," and defendant said, "Um, I don't know. I'm not going to really speak on that." The detectives asked whether he was a jealous person, and defendant replied, "I don't want to speak on that." Then the detectives told defendant that he was a jealous guy, and he again said, "I don't want to speak on that." He gave the same answer when the detectives asked if he had ever been in Lawson's tent, as well as what his and Lawson's gang affiliations were. The detectives asked if there was "anything you would like to speak on," "to proclaim your innocence," and defendant replied, "That's what I'm doing." He added, "I'm trying to let you know, without speaking on some things, that I'm innocent" of whatever the police were accusing him of having done.
The detectives explained that they had not yet accused defendant of anything and asked if he could clarify the rumors he had mentioned. Defendant stated that he did not know if Lawson had problems with anyone. The detectives asked defendant who he hung out with, and defendant replied, "I'm not speaking on that either."
When asked about Lawson's bicycles, defendant stated, "We, we, would wheel and deal bikes." He did not recall if he traded bicycles with Lawson close to the date of the stabbing.
The detectives then asked whether defendant knew the police were looking for him. Defendant said that he heard rumors that he might be a suspect. The detectives wanted to know the specifics of the rumors, and defendant stated, "But I don't want to speak on the rumors and I have the right, right?" The detectives answered, "Absolutely," and questioned whether there was anything else that defendant wanted to discuss. Defendant replied, "No, not really." However, the detectives continued the interview and asked when the last time defendant saw Brenda. He responded, "Um, I don't want to speak on that." The detectives asked, "What could possibly harm you?" Defendant reiterated, "I don't want to speak. I don't know."
The detectives turned to the subject of defendant's drug and medication use. He confirmed that he used both. Then they asked about his prior living arrangements and when he became homeless. Then they returned to the subject of what happened on the night of the stabbing. Defendant said that he did not remember what had happened. The detectives brought up any physical altercations between himself and Brenda, and defendant said, "I don't want to speak on that right now." The police asked him about altercations again, and defendant repeated, "I'm not speaking. I'm not. I'm just saying I'm not speaking on it." He made the same statement when the detectives questioned whether he had an altercation with Brenda on the night of the stabbing.
The interview terminated when the detectives inquired whether defendant wanted to discuss anything else, and he responded, "No."
II. Defense Evidence
Dr. Mitchell Eisen, a psychologist, testified as an expert in eyewitness memory, specifically in the context of identification. He explained how memory works, including what factors affect memory. He also addressed factors that "hurt eyewitness identification" and "what makes a strong witness identification." He provided information about literature "on the best practices for compiling a six-pack" and suspect databases. He also testified about his own research on eyewitness identification.
DISCUSSION
I. Alleged Miranda Violation
Defendant argues that the trial court erred by admitting statements he made during his recorded police interview. According to defendant, the trial court violated Miranda rights by ignoring his invocation of the right to remain silent. Moreover, this evidence was irrelevant and prejudicial.
A. Forfeiture
As a preliminary matter, we conclude that defendant forfeited this objection by failing to object in the trial court. It is well-settled that a failure to assert a timely and specific Miranda claim forfeits that issue on appeal. (People v. Holt (1997) 15 Cal.4th 619, 667.) Because defendant failed to raise this objection in the trial court, he is precluded from raising it on appeal.
B. No ineffective assistance of counsel
Defendant anticipates the issue of forfeiture and argues that because his defense counsel failed to object to the admission of this evidence, he was denied effective assistance of counsel.
1. Relevant law
To establish ineffective assistance of counsel, a defendant must show, by a preponderance of the evidence, that his counsel's representation fell below the standard of a competent advocate, and a reasonable probability exists that, but for counsel's errors, the result would have been different. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. (People v. Bolin (1998) 18 Cal.4th 297, 333.)
In determining whether counsel's performance was deficient, we exercise deferential scrutiny and "assess the reasonableness of counsel's acts or omissions . . . under the circumstances as they stood at the time that counsel acted or failed to act." (People v. Ledesma, supra, 43 Cal.3d at p. 216; see also Strickland v. Washington (1984) 466 U.S. 668, 689 ["Judicial scrutiny of counsel's performance must be highly deferential"].) "Although deference is not abdication [citation], courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight." (People v. Scott (1997) 15 Cal.4th 1188, 1212.) Rather, we must presume that counsel's conduct fell within the "wide range of reasonable professional assistance." (People v. Maury (2003) 30 Cal.4th 342, 389.) Review is limited to the record on appeal, and we must reject a claim of ineffective assistance of counsel "if the record sheds no light on why counsel acted or failed to act in the manner challenged unless (1) counsel was asked for and failed to provide a satisfactory explanation or (2) there simply could be no satisfactory explanation." (People v. Burgener (2003) 29 Cal.4th 833, 880.) A failure to object to evidence is generally not a profitable basis for challenging the competence of trial counsel. (People v. Kelly (1992) 1 Cal.4th 495, 520 [failure to object to evidence is a matter of trial tactics as to which appellate courts generally do not exercise judicial hindsight].)
2. Analysis
Applying the foregoing legal principles, we conclude that defendant was not denied effective assistance of counsel. The record identifies a reasonable explanation for the failure to move to suppress defendant's statements to police, namely to permit defendant to testify without subjecting him to cross-examination.
Specifically, counsel's closing argument shows his reasonable tactical and strategic choice to allow the admission of defendant's statement. During closing argument, counsel extensively utilized the statement in an effort to establish that insufficient evidence existed to convict defendant. For example, counsel stated: "So then the question comes down to [defendant's] interview. And in [defendant's] interview, Detective Torres, who you recall was the detective who actually conducted the interview—Detective Torres—I mean, the bottom line is you can play the interview once, twice, three times. [¶] You can play it backwards like an old Beatles album for a hidden message. But you are never going to hear the words or the statements, 'I did it.' You hear exactly the opposite. You'll hear, 'I'm not the guy.' [Defendant] in that interview denies, say[ing], 'I'm not the guy.'"
Counsel also highlighted other statements made by defendant in urging the jury to render a not guilty decision. For example, counsel told the jury: "In saying, 'I'm not going to speak on that,' in reference to rumors or what people may have been saying on the street, that's nowhere near any kind of admission or confession." Counsel also interpreted portions of defendant's statements to police for the jury. He stated: "So to expect that because [defendant] gave responses that the detective did not like is akin to him admitting wrongdoing or him trying to hide what he did is nonsense." He also added: "And him saying, 'Maybe I was through there that time, I don't know,' that's not being evasive. That's not hiding anything."
In other words, counsel told the jury to consider defendant's interview with the police and use it to acquit: "[L]et's look . . . at . . . [defendant's] story that particular day. And I'm not making any of this up, because you'll see it in the interview." From these arguments, it is apparent that counsel may have been using defendant's statements as a means of testifying at trial without cross-examination. Under these circumstances, defense counsel had a tactical reason for not objecting to the admission of this evidence.
Although the prosecutor relied on defendant's statement to police to argue that defendant was evasive and hiding information from the police, which the jury could have interpreted as harmful to the defense, competent counsel could reasonably have believed that the statement, as a whole, helped the defense in other respects because defendant repeatedly denied any involvement in the stabbing, even in the face of multiple police ruses. (People v. Kelly, supra, 1 Cal.4th at pp. 520-521.) Given defendant's statement in the recording that he was not the murderer and was not present during the murder, coupled with Gabaldon's recanting at trial and the fact that no one could identify defendant from the surveillance video, portions of the police interview could have bolstered the defense. Under these circumstances, we find no ineffective assistance of counsel.
3. An objection would have been futile because the police did not violate Miranda
In addition, counsel was not deficient because an objection would have been futile (People v. Beasley (2003) 105 Cal.App.4th 1078, 1092 ["Counsel's failure to make a futile or unmeritorious objection is not deficient performance"]); the police did not violate Miranda.
In order to invoke the Fifth Amendment privilege to remain silent and "'halt police questioning after it has begun,'" a suspect must unambiguously assert his right to silence or counsel. (People v. Suff (2014) 58 Cal.4th 1013, 1068.) "'It is not enough for a reasonable police officer to understand that the suspect might be invoking his rights. [Citation.] Faced with an ambiguous or equivocal statement, law enforcement officers are not required under Miranda . . . either to ask clarifying questions or to cease questioning altogether.' [Citations.]" (People v. Suff, supra, at p. 1068; see also People v. Hurd (1998) 62 Cal.App.4th 1084, 1091 (Hurd).)
Here, defendant did not make an unambiguous invocation of his right to remain silent. After he received his Miranda admonitions from Detective Calzadillas, he expressly stated that he understood them. Then, without any invocation of his right to remain silent, defendant proceeded to answer the detectives' questions.
For example, defendant admitted that he knew Lawson, he knew Lawson was dead, he knew where the stabbing occurred, he went by the nickname "Damoo," and that it was possible he was "passing through" the area at the time the stabbing occurred. He also talked about his relationship with Lawson, Lawson's bicycles, and his own drug and medication use. In fact, defendant expressly stated that he wanted to speak on certain topics to prove his innocence. When the detectives asked defendant questions that he did not want to answer, he repeatedly said that there were "things [he did not] want to speak on." This statement does not amount to an unqualified invocation of the right to remain silent. Rather, in the context of the interview in its entirety, the detectives could reasonably have believed that defendant would talk about certain subjects and not others. It follows that there was no Miranda violation, and an objection from defense counsel would have been futile. Because an objection would have been futile, defense counsel was not deficient.
4. No prejudice
Even if defense counsel was deficient for failing to object to the admission of this evidence, defendant's argument fails on appeal because he cannot show prejudice. (People v. Frye (1998) 18 Cal.4th 894, 979 ["In determining prejudice, we inquire whether there is a reasonable probability that, but for counsel's deficiencies, the result would have been more favorable to the defendant"], overruled in part on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Even without the evidence of defendant's recorded police interview, there was ample evidence from which the jury could have convicted defendant—Gabaldon's recorded identification of defendant as the murderer as well as a recording of her statement regarding the stabbing. And the jury had good reason to credit her statement to the police over her conflicting trial testimony, in light of the fact that she was beaten and later threatened if she cooperated with the police; in fact, she did not want anyone to know that she had spoken with the police. Thus, defendant was not prejudiced by counsel's failure to object to the admission of his police recorded interview.
It follows that we reject defendant's contention that the jury's deadlock at one point, the jury's questions, and the length of the deliberations compel the conclusion that but for the prosecutor's references to defendant's statements to police, the jury would not have convicted him.
II. Alleged Prosecutorial Misconduct
Defendant argues that the prosecutor committed prejudicial misconduct by repeatedly arguing to the jury that his invocations of his right to remain silent were evidence of his guilt and by improperly shifting the burden of proof by implying that he was obligated to produce evidence and prove his innocence.
A. Relevant trial court proceedings
During closing argument, the prosecutor commented on defendant's recorded police statement. The prosecutor's point was that defendant's refusal to answer questions about subjects like his relationships with Brenda and Lawson or the last time he saw Lawson were so absurd that he was "just being evasive," as well as consciousness of his guilt.
Defense counsel responded in his closing argument by characterizing defendant's statements to the police detectives differently, highlighting the fact that defendant repeatedly denied any involvement in the stabbing of Lawson. Defense counsel also reminded the jury that "the burden of proof always remains on the prosecution, always." He added: "Along with that is the presumption of innocence." "[T]hese are the burdens that [the prosecutor] has to overcome beyond a reasonable doubt."
The prosecutor rebutted that defendant was evasive when he was talking to the police. He argued: "[Defendant] has a hard time answering any questions at all, because he can't come up with a good lie. He can't explain it at all. So instead, he dances around the best he can and gives vague nonanswers." The prosecutor added: "He had a free conscience to say exactly what he wanted to say. And he told the detectives nothing, which I argue to you is a guilty conscience."
Prior to argument, the trial court instructed the jury that it must all agree that the prosecution proved its case beyond a reasonable doubt. Other instructions included: (1) "You must follow the law as I explain it to you"; (2) "If you believe that the attorneys' comments on the law conflict with my instructions, you must follow my instructions"; (3) "A defendant in a criminal case is presumed to be innocent"; (4) The prosecutor must "prove a defendant guilty beyond a reasonable doubt"; (5) "Nothing that the attorneys say is evidence"; (6) "In their opening statements and closing arguments, . . . their remarks are not evidence"; (7) "[A defendant] may rely on the state of the evidence and argue that the People failed to prove the charges beyond a reasonable doubt"; (8) "A defendant may not be convicted of any crime based on his out-of-court statement alone"; and (9) "You may not convict the defendant unless the People have proved his guilt beyond a reasonable doubt"
B. Forfeiture
Defendant forfeited any claim of prosecutorial misconduct by failing to object in the trial court.
"To preserve a misconduct claim for review on appeal, a defendant must make a timely objection and ask the trial court to admonish the jury to disregard the prosecutor's improper remarks or conduct, unless an admonition would not have cured the harm. [Citation.]" (People v. Davis (2009) 46 Cal.4th 539, 612.)
Here, defendant failed to object to any of the prosecutor's comments. Thus, this argument is forfeited on appeal.
C. No misconduct
Regardless, there was no prosecutorial misconduct.
"'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.] But conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves "'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.'" [Citations.]'" (People v. Gionis (1995) 9 Cal.4th 1196, 1214-1215.)
When, as here, a defendant alleges that the prosecutor engaged in prosecutorial misconduct during closing argument, the question "'is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.'" (People v. Harrison (2005) 35 Cal.4th 208, 244.) The prosecutor's statements are examined in the context of the entire argument and instructions given to the jury. (People v. Morales (2001) 25 Cal.4th 34, 44-46.) We also consider whether the prosecutor's comments were a fair response to defense counsel's remarks. (People v. Seumanu (2015) 61 Cal.4th 1293, 1337; People v. Chatman (2006) 38 Cal.4th 344, 386 ["Defendant's challenges to rebuttal must be evaluated in light of the defense argument to which it replied"].) The prosecutor is given wide latitude during argument, and the argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences or deductions to be drawn therefrom. (People v. Sassounian (1986) 182 Cal.App.3d 361, 396.)
"Comments on the state of the evidence or on the defense's failure to call logical witnesses, introduce material evidence, or rebut the People's case are generally permissible. [Citation.] However, a prosecutor may not suggest that 'a defendant has a duty or burden to produce evidence, or a duty or burden to prove his or her innocence.'" (People v. Woods (2006) 146 Cal.App.4th 106, 112.)
Here, the challenged remarks constituted a fair comment on the evidence; they did not amount to misconduct.
In urging reversal, defendant contends that the prosecutor committed misconduct by arguing that his invocations of his right to remain silent were evidence of his guilt. He is mistaken. When a defendant receives a Miranda warning, the police inform him that his silence, or refusal to answer questions, will not be used against him. (People v. Lewis (2004) 117 Cal.App.4th 246, 256.) Thus, a prosecutor's comments on a defendant's silence or failure to answer questions may violate defendant's right to due process. (Doyle v. Ohio (1976) 426 U.S. 610, 619-620 (Doyle).)
However, where a defendant waives his Miranda rights and voluntarily speaks to law enforcement, the defendant has not chosen to remain silent. (Evid. Code, §§ 769, 770, 780, subd. (h), 1235; Anderson v. Charles (1980) 447 U.S. 404, 408.) In such cases, the prosecutor may use anything the defendant does say to comment on the defendant's credibility. (Id. at p. 408; Hurd, supra, 62 Cal.App.4th at p. 1094 ["We do not think Doyle was meant to preclude the prosecutor from commenting on highly relevant evidence bearing on appellant's credibility, including appellant's refusal to provide critical details, when he had voluntarily waived his right to remain silent"]; United States v. Hale (1975) 422 U.S. 171, 176.) "A defendant has no right to remain silent selectively. Once a defendant elects to speak after receiving a Miranda warning, his or her refusal to answer questions may be used for impeachment purposes absent any indication that such refusal is an invocation of Miranda rights." (Hurd, supra, at p. 1093.)
That is what occurred here. Defendant voluntarily spoke to detectives after receiving, and stating that he understood, his Miranda advisements. Thus, the prosecutor had wide latitude to comment on the evidence, including defendant's statements to the police detectives. (See Hurd, supra, 62 Cal.App.4th at pp. 1093-1094 [a defendant "cannot have it both ways." Once a defendant is not induced by the Miranda warning to remain silent and elects to talk to police, what he said or omitted can "be judged on its merits or demerits, and not on some artificial standard that only the part that helps him can be later referred to"].)
D. No ineffective assistance of counsel
Because no misconduct occurred, defense counsel's performance could not have been deficient for failing to object. (People v. Beasley, supra, 105 Cal.App.4th at p. 1092.)
E. No prejudice
Not only did defendant fail to establish that any prosecutorial misconduct occurred, he has also failed to show that the alleged misconduct was prejudicial. The test of prejudice with respect to defendant's claim of constitutional error is the standard set forth in Chapman v. California (1967) 386 U.S. 18, 24: Reversal is required unless the record reflects beyond a reasonable doubt that the error complained of did not contribute to the verdict. (People v. Neal (2003) 31 Cal.4th 63, 86.) "'When deciding whether a prosecutor's reference to a defendant's post-arrest silence was prejudicial, this court will consider the extent of comments made by the witnesses, whether an inference of guilt from silence was stressed to the jury, and the extent of other evidence suggesting defendant's guilt.' [Citation.]" (United States v. Lopez (9th Cir. 2007) 500 F.3d 840, 845.)
Here, defendant was not prejudiced by the prosecutor's comments. In light of the trial court's thorough instructions and defense counsel's argument, coupled with the overwhelming evidence of defendant's guilt, the prosecutor's comments could not have contributed to the jury's verdict.
III. Cumulative Error
Defendant asserts that he suffered cumulative error, which requires reversal. As set forth above, there was no error. It follows that there could have been no cumulative error that denied defendant due process.
IV. Alleged Instructional Error
Defendant contends that the trial court erroneously instructed the jury that it could consider the certainty of the eyewitnesses who identified him. Specifically, the jury was told, consistent with CALCRIM No. 315: "You have heard eyewitness testimony identifying the defendant. As with any other witness, you must decide whether an eyewitness gave truthful and accurate testimony." The jury was then told that in evaluating identification testimony, it could consider at least 13 different questions, such as whether the witness knew the defendant, how closely the witness was paying attention, how certain the witness was, and whether the witness was able to identify the defendant in a photographic lineup. The instruction concludes with the following: "The People have the burden of proving beyond a reasonable doubt that it was the defendant who committed the crime. If the People have not met this burden, you must find the defendant not guilty."
On appeal, defendant asserts that CALCRIM No. 315 "is misleading and confusing, thus it is improper to instruct" a jury with it.
Aside from the fact that defendant has forfeited any objection on appeal because he failed to object below (People v. Sánchez (2016) 63 Cal.4th 411, 461), this argument has already been rejected by our Supreme Court (id. at p. 462), which defendant concedes.
Notably, the Supreme Court stated: "Any reexamination of our previous holdings in light of developments in other jurisdictions should await a case involving only certain identifications." (People v. Sánchez, supra, at p. 462; see also id. at pp. 494-498 (conc. opn. of Liu, J.) [arguing that the instruction should be reexamined].) The Supreme Court has granted review in a case involving certain identifications. (See People v. Lemcke (June 21, 2018, G054241 [nonpub. opn.], review granted Oct. 10, 2018, S250108.) --------
In any event, defendant has not demonstrated that this instruction prejudiced him. The trial court presented the challenged instruction in a neutral manner and did not equate the certainty of a witness's identification with its accuracy. (People v. Sánchez, supra, 63 Cal.4th at p. 462.) The instruction did not tell the jury that eyewitness testimony is reliable or trustworthy. Nor did the instruction advise the jury as to the weight it should assign to eyewitness confidence. And, witness certainty was only one factor among many that the trial court instructed the jury to consider when evaluating an eyewitness identification. Moreover, the instruction reminded the jury that the prosecution had the burden of proving its case beyond a reasonable doubt. Finally, given the strength of the evidence, it is not reasonably probable that defendant would have obtained a more favorable result had the trial court omitted the instruction's language recording witness certainty in identifying defendant as the murderer. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Wright (1988) 45 Cal.3d 1126, 1144 [instructional error requires reversal only if it is reasonably probable that a result more favorable to the defendant would have been reached in the absence of the error].) Absent evidence of prejudice, the alleged error does not compel reversal.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, J.
ASHMANN-GERST We concur: /s/_________, P. J.
LUI /s/_________, J.
HOFFSTADT