Opinion
F060367 Super. Ct. No. VCF217057
11-03-2011
THE PEOPLE, Plaintiff and Respondent, v. SALVADOR CARRILLO LEON, Defendant and Appellant.
Maureen L. Fox, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Leanne LeMon, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Joseph A. Kalashian, Judge.
Maureen L. Fox, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Leanne LeMon, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant Salvador Carrillo Leon of multiple offenses, including second degree murder and gross vehicular manslaughter while intoxicated, all arising from an automobile collision on February 2, 2009. On that day, Leon was driving with a high blood-alcohol level heading north in the southbound lanes of Highway 99. He collided head on with a vehicle driven by Lily Saechao, killing her husband and seven-month-old son. At the time of the collision, Leon had suffered four convictions for driving under the influence (DUI).
Leon raises issues on the admissibility of evidence, the constitutionality of Penal Code section 22, jury instructions, and prosecutorial misconduct. He contends the trial court erred in admitting evidence (1) of the injuries suffered by Saechao in the collision because he agreed to stipulate to great bodily injury enhancements, (2) that Saechao learned of the deaths of her husband and son while in the hospital, and (3) of his four DUI convictions. He also argues that section 22 unconstitutionally impaired his right to present a defense because it precludes use of voluntary intoxication to negate implied malice. He further claims the jury instructions on implied malice were vague and ambiguous and consequently void. Lastly, Leon contends the prosecutor's remarks constituted misconduct in five instances.
All further statutory references are to the Penal Code unless otherwise stated.
We reject Leon's challenges to his convictions and affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
On February 2, 2009, at approximately 2:20 a.m., Jeff Schaeck was driving an 18-wheel truck southbound on Highway 99; there was no fog and the weather was clear. He was alerted over his radio that there was a northbound driver in the southbound lanes. Immediately thereafter, Schaeck saw the headlights of the northbound driver coming toward him; that driver was in the fast lane.
Kurt Moreno was driving his big rig truck on northbound Highway 99 at approximately 2:20 a.m. on February 2, 2009. Near Avenue 24, Moreno noticed a truck driving northbound in the southbound lanes. After seeing the truck, Moreno called 911 to report it.
Moreno traveled parallel to Leon's truck for several miles. During this time Moreno could hear at least four other trucks honking their air horns at different times. He saw at least one truck flash its lights at Leon's truck. Moreno never saw Leon's truck react to the air horns or lights.
Moreno saw a vehicle heading towards Leon's truck, saw the vehicle swerve in an attempt to miss the truck, and observed the vehicles collide head on. Moreno stopped his truck and went to the vehicles; another big rig on the scene blocked traffic. Moreno used a fire extinguisher on Leon's truck to try and put out the fire and then went to Saechao's vehicle when he heard her crying for help. Moreno told Saechao she was being helped. Shortly thereafter the fire truck arrived on the scene and Moreno stepped back to allow the paramedics to work.
Saechao testified she was driving from Sacramento on southbound Highway 99; her husband and infant son were in the car. She switched lanes to pass two cars in front of her. After switching lanes, she saw headlights flash in front of her and swerved. She did not recall anything after that until she awoke in the hospital. She was told that her husband and son had died in the collision. She suffered fractured ribs, a fractured vertebra, and an injury to her jaw.
Deputy Sheriff Merced Zamora arrived on the scene and cut the seatbelt off of Leon. Zamora noticed a strong odor of alcohol coming from Leon. Zamora checked the other vehicle and cut the infant car seat out of the car, with the infant in it. Zamora checked the male passenger and noted he was deceased. Saechao had to be cut from the car with the Jaws of Life and air lifted to the hospital.
Highway Patrol Officer Alexis Mantilla also was dispatched to the scene of the collision. Mantilla noticed a heavy odor of alcohol coming from Leon. Leon was trying to remove the emergency medical equipment and waving his arms and using profanity. Leon's eyes were twitching, red, and glossy. His speech was broken and slurred. Leon was unable to track stimuli with his eyes. The preliminary alcohol screening showed a blood-alcohol level of between 0.18 and 0.19 percent.
Leon told Mantilla that he had drunk two Bud Lights at a bar and then got onto Highway 99 at Avenue 24. Leon insisted he had been in the northbound lanes and that a vehicle crossed into his lane. Mantilla testified that a person entering the freeway from Avenue 24 and heading the wrong direction would have seen a "wrong way" sign posted with an arrow.
Mantilla also testified that once a person has a DUI conviction, he or she is required to attend a program to get his or her license back. The program teaches DUI offenders that it is dangerous to drink and drive because they may kill someone. The trial court took judicial notice that the SB 38 program is a DUI offender program that teaches the dangers of drinking and driving.
Leon was interviewed again at the hospital. He explained that he had been visiting a friend, had 2 or 3 cans of beer, and then headed home. He claimed he was headed north on Highway 99 and that a car got in his way.
The sample of Leon's blood taken at 3:48 a.m. showed a blood-alcohol level of 0.25 percent. Jennifer Kearney, a lab supervisor at Mineral King Laboratories, opined that a man of Leon's size would have to drink 13 to 14 twelve-ounce beers to reach a 0.25 percent blood-alcohol level, assuming no burnoff. Generally, a person burns off 0.02 percent blood alcohol per hour.
Ruben Gonzales testified that Leon was at his house and had drunk four 12-ounce cans and two bottles of beer before leaving to drive home.
Leon was charged with two counts of second degree murder, two counts of gross vehicular manslaughter while intoxicated, one count of DUI causing injury, and one count of driving with a blood-alcohol content greater than 0.08 percent. It was alleged that Leon inflicted great bodily injury and that he had suffered four convictions of Vehicle Code section 23152, subdivision (a).
The parties stipulated that Vilai Her and Isaac Her died as a result of blunt force trauma in the collision. Leon admitted three DUI convictions.
On January 21, 2010, the jury returned verdicts of guilty on all counts and found all enhancements true.
Leon was sentenced to two indeterminate terms of 15 years to life on the second degree murder convictions. The terms for the gross vehicular manslaughter convictions were stayed pursuant to section 654. A total determinate unstayed term of five years was imposed for the other convictions and enhancements.
DISCUSSION
Leon raises issues on (1) the admissibility of evidence, (2) the constitutionality of section 22, (3) jury instructions, and (4) prosecutorial misconduct.
I. Admissibility of Evidence
Prior convictions
Leon contends the trial court erred prejudicially in admitting evidence of his drunk driving convictions and his "hit-and-run" conviction. "[A]n appellate court reviews any ruling by a trial court as to the admissibility of evidence for abuse of discretion." (People v. Alvarez (1996) 14 Cal.4th 155, 203 (Alvarez).) We conclude the trial court did not abuse its discretion in admitting this evidence.
Leon was charged with two counts of murder, which requires proof of malice. (§ 187, subd. (a).) Malice may be implied "when a person, knowing that his conduct endangers the life of another, nonetheless acts deliberately with a conscious disregard for life. [Citations.]" (People v. Watson (1981) 30 Cal.3d 290, 296 (Watson).) An intoxicated driver who causes death may be found guilty of second degree murder on a theory of implied malice if "the defendant actually appreciated the risk involved, i.e., a subjective standard. [Citation.]" (Id. at pp. 296-297.)
Prior drunk driving convictions are admissible to prove a defendant's subjective awareness of the risks of drunk driving. (People v. Johnson (1994) 30 Cal.App.4th 286, 292 (Johnson).)Numerous cases have upheld drunk driving murder convictions. (People v. Autry (1995) 37 Cal.App.4th 351, 358.) "[T]hese cases have relied on some or all of the following factors in upholding such convictions: (1) blood-alcohol level above the .08 percent legal limit; (2) a predrinking intent to drive; (3) knowledge of the hazards of driving while intoxicated; and (4) highly dangerous driving." (Ibid.)
In Watson, supra, 30 Cal.3d at pages 300-301, the court stated: "It also may be presumed that defendant was aware of the hazards of driving while intoxicated.... 'One who wilfully consumes alcoholic beverages to the point of intoxication, knowing that he thereafter must operate a motor vehicle, thereby combining sharply impaired physical and mental faculties with a vehicle capable of great force and speed, reasonably may be held to exhibit a conscious disregard of the safety of others.'" The Watson court determined the facts, viewed together, "reasonably and readily support[ed] a conclusion that defendant acted wantonly and with a conscious disregard for human life." (Id. at p. 301.)
The Legislature responded to Watson, explicitly citing it as a basis for subsequent legislation. Both sections 191.5 and 192, in defining the offenses of gross vehicular manslaughter while intoxicated and vehicular manslaughter, respectively, now provide that they "shall not be construed as prohibiting or precluding a charge of murder ... upon facts showing malice consistent with the holding of the California Supreme Court in [Watson, supra,] 30 Cal.3d 290." (§§ 191.5, subd. (e), 192, subd. (c)(3).)
Leon had suffered four DUI convictions. Clearly, the convictions were admissible to prove his subjective awareness of the risks of drunk driving and to establish implied malice. (Johnson, supra, 30 Cal.App.4th at p. 292.)
Prior convictions also were relevant to the two Vehicle Code section 23566 charges (enhancing punishment for multiple DUI convictions). One element of a violation of this code section is two or more prior violations of specified offenses, including DUI. (Id., subd. (a).) The prosecution had the burden of proving these prior offenses.
Leon also was charged with two counts of gross vehicular manslaughter while intoxicated. Section 191.5, which defines this offense, states that the offense includes operating a motor vehicle with gross negligence. (Id., subd. (a).) In determining whether Leon acted with gross negligence, the jury could consider all relevant circumstances. (People v. Bennett (1991) 54 Cal.3d 1032, 1036.) Leon's lengthy history of DUI or leaving the scene of an accident tends to demonstrate that Leon acted with a conscious disregard of the consequences of his driving, rather than mere inadvertence. (Id. at p. 1038.)
Furthermore, the trial court properly instructed the jury on the permissible and impermissible use of the prior convictions evidence. It is presumed the jury understood and correctly applied the instruction. (People v. Holt (1997) 15 Cal.4th 619, 662.)
We conclude Leon has failed to establish the trial court abused its discretion in admitting the evidence of his prior convictions because the evidence was relevant to establish elements of the charged offenses. (Alvarez, supra, 14 Cal.4th at p. 203.)
While Leon impliedly agrees with this analysis, he claims the documents admitted to prove the convictions also provided the blood-alcohol levels and the punishment, or lack of punishment on some counts, received. He claims this information was not relevant and was prejudicial. We disagree. While it may have been error to allow the additional information, it was a very minor part of the very significant evidence the jury received. We conclude the error, if any, was not prejudicial, and thus reject Leon's argument.
We also reject Leon's claim that erroneous admission of this evidence affected his federal due process rights. Even if we were to assume this evidence was admitted erroneously, violations of state evidentiary rules do not rise to the level of a violation of Leon's federal due process rights. (People v. Benavides (2005) 35 Cal.4th 69, 91 (Benavides).)
Saechao's injuries
Leon contends it was error for the trial court to admit evidence of Saechao's injuries because he agreed to stipulate to the great bodily injury enhancements.
The prosecution declined to stipulate that Saechao had suffered great bodily injury. The prosecution argued that the injuries and resulting treatment, including prescriptive medicine, were relevant to the accuracy of her observations and credibility while testifying. We agree.
The prosecution is not required to accept a stipulation to facts that establish a defendant's guilt. (People v. Waidla (2000) 22 Cal.4th 690, 723 & fn. 5; People v. Garceau (1993) 6 Cal.4th 140, 182 [prosecution not required to accept stipulation if effect is to deprive prosecution's case of its forcefulness; prosecution not obligated to sanitize case], disapproved on other grounds in People v. Yeoman (2003) 31 Cal.4th 93, 117-118.) There is a strong policy against requiring a prosecutor to accept a stipulation. (People v. Cajina (2005) 127 Cal.App.4th 929, 933.)
Leon cannot use Evidence Code section 352 as grounds to exclude relevant evidence that is necessary to establish the elements of an offense or enhancement. People v. Heard (2003) 31 Cal.4th 946 (Heard) set forth the applicable analysis: "In reviewing the ruling of the trial court, we reiterate the well-established principle that 'the admissibility of this evidence has two components: (1) whether the challenged evidence satisfied the "relevancy" requirement set forth in Evidence Code section 210, and (2) if the evidence was relevant, whether the trial court abused its discretion under Evidence Code section 352 in finding that the probative value of the [evidence] was not substantially outweighed by the probability that its admission would create a substantial danger of undue prejudice.' [Citation.]" (Id. at p. 972.)
That the evidence of the injuries suffered by Saechao was relevant to the gross bodily injury enhancement is presumably conceded; it is the reason Leon offered to stipulate to the extent of the injuries. Even if the evidence of Saechao's injuries were graphic and unpleasant to consider, it did not render the introduction of that evidence unduly prejudicial. (See People v. Navarette (2003) 30 Cal.4th 458, 496.) Undue prejudice is not the prejudice that flows naturally from relevant, highly probative evidence. (People v. Salcido (2008) 44 Cal.4th 93, 148.)
Here, the jury was well aware through witness testimony and photographs of the tremendous violence created by the collision. Also, as argued by the prosecution, the evidence was probative on what Saechao observed prior to the collision.
The applicability of Evidence Code section 352 requires a careful weighing process by the trial court. The record here reflects the trial court engaged in such a deliberative weighing process and acted within its discretion under Evidence Code section 352 in admitting the evidence of the injuries suffered by Saechao. (Heard, supra, 31 Cal.4th at p. 978.)
Knowledge of deaths
Leon also objected to Saechao testifying that she learned of the deaths of her husband and son while hospitalized after the collision. The trial court admitted the evidence, ruling that it was relevant to establish Saechao's ability to recall the events surrounding the collision.
Saechao testified she saw headlights flash in front of her, swerved, and did not recall anything else until she woke up in the hospital. She recalled being told, while in the hospital, that her husband and son had died. Shortly after her release from the hospital, she gave a statement to an officer about the collision.
A trial court is vested with wide discretion in deciding the relevancy of evidence and it is the exclusive province of the trial court to determine whether the probative value of evidence outweighs its possible prejudicial effect. On appeal, the trial court's exercise of such discretion will not be disturbed absent a clear showing of abuse. (People v. Branch (2001) 91 Cal.App.4th 274, 282.) We will reverse only if the trial court's ruling was arbitrary, whimsical, or capricious as a matter of law, or "'falls outside the bounds of reason.' [Citation.]" (People v. Wesson (2006) 138 Cal.App.4th 959, 969 (Wesson).) Moreover, to be reversible, an erroneous admission of evidence must have resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13; Evid. Code, § 353; People v. Harris (1998) 60 Cal.App.4th 727, 741 (Harris).)
The total content of Saechao's testimony on this point covers several lines on one page of the transcript of the trial, which totals over 1,300 pages. There was no testimony about the impact these deaths had on Saechao's life; the testimony was confined to when she learned of the deaths as a result of the collision. This brief testimony, explaining Saechao's state of mind when she gave a statement to the authorities about the collision, hardly falls outside the bounds of reason. (Wesson, supra, 138 Cal.App.4th at p. 969.)
Even if we were to assume this evidence erroneously was admitted, its admission did not implicate Leon's constitutional rights to due process and a fair trial. Violations of state evidentiary rules do not rise to the level of a constitutional infringement of rights. (Benavides, supra, 35 Cal.4th at p. 91.)
Furthermore, admission of the evidence, if erroneous, was not prejudicial. The jury clearly was aware that Saechao's husband and infant son were killed in the collision; Leon was charged with murder and gross vehicular manslaughter as a result of their deaths. Saechao's brief testimony about learning of their deaths and that she was distraught was information known to the jury, or was obvious to the jury. At some point Saechao had to be told of their deaths and would be distraught upon learning of their deaths. Consequently, this brief testimony cannot be said to have caused a miscarriage of justice. (Harris, supra, 60 Cal.App.4th at p. 741.)
II. Constitutionality of Section 22
Leon contends section 22, which provides that evidence of voluntary intoxication is inadmissible to negate implied malice, unconstitutionally impaired his right to present a defense. We disagree.
State law analysis
Leon argues that if his voluntary intoxication prevented him from forming implied malice, he is guilty of gross vehicular manslaughter rather than murder. This is not the current state of the law in California. In People v. Whitfield (1994) 7 Cal.4th 437 (Whitfield), the California Supreme Court did indeed hold that evidence of voluntary intoxication could be admissible in murder prosecutions to show the defendant did not harbor malice, whether express or implied (id. at p. 451), but the holding was ill-received by the Legislature and superseded by the amendment of section 22 to preclude evidence of voluntary intoxication on the question of implied malice in a murder charge.
The changes made to section 22 between 1982 and 1995 have been summarized by the California Supreme Court as follows:
"In 1982, the Legislature amended section 22 to provide, as relevant: '(a) No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition. Evidence of voluntary intoxication shall not be admitted to negate the capacity to form any mental states for the crimes charged, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation or malice aforethought, with which the accused committed the act.
"'(b) Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged.' (Stats. 1982, ch. 893, § 2, pp. 3317-3318.) The Legislature stated that the 1982 amendment was 'declaratory of existing law.' (Stats. 1982, ch. 893, § 5, p. 3318.)
"Most recently, in 1995, effective January 1, 1996, the Legislature amended section 22 to provide, as relevant: '(a) No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his or her having been in that condition. Evidence of voluntary intoxication shall not be admitted to negate the capacity to form any mental states for the crimes charged, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act.
"'(b) Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought.' (Stats. 1995, ch. 793, § 1; see People v. Castillo (1997) 16 Cal.4th 1009, 1014, fn. 1.) [¶] ... [¶]
"In Whitfield, we concluded 'that section 22 was not intended, in murder prosecutions, to preclude consideration of evidence of voluntary intoxication on the issue whether a defendant harbored malice aforethought, whether the prosecution proceeds on a theory that malice was express or implied.' (Whitfield, supra, 7 Cal.4th at p. 451.) Justice Mosk, joined by Chief Justice Lucas and, in a separate opinion, Justice Baxter, would have found voluntary intoxication not admissible to negate implied malice. (Id. at pp. 456-477 (conc. and dis. opn. of Mosk, J.); id. at p. 477 (conc. and dis. opn. of Baxter, J.).) The most recent amendment to section 22 came in apparent reaction to this holding. The Legislative Counsel's Digest to the bill amending section 22 stated: 'Under existing law, as held by the California Supreme Court in [Whitfield, supra,] 7 Cal.4th 437, the phrase "when a specific intent crime is charged" includes murder even where the prosecution relies on a theory of implied malice. [¶] This bill would provide, instead, that evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought.' (Legis. Counsel's Dig., Sen. Bill No. 121 (1995-1996 Reg. Sess.).)" (People v. Mendoza (1998) 18 Cal.4th 1114, 1124-1126.)
Thus, the Legislature plainly has stated, and the California Supreme Court has explicitly acknowledged, that current law forecloses the use of evidence of voluntary intoxication to negate the element of implied malice for purposes of a murder charge. Voluntary intoxication "is irrelevant to proof of the mental state of implied malice or conscious disregard." (People v. Timms (2007) 151 Cal.App.4th 1292, 1300.)
Federal law analysis
Relying on the dissenting opinions in Montana v. Egelhoff (1996) 518 U.S. 37 (Montana), Leon argues that section 22 unconstitutionally removes a relevant category of evidence—the defendant's mental state—from the jury's consideration. Leon maintains section 22 precluded him from attacking an element of the offense (i.e., implied malice), in violation of his due process rights. We are not persuaded.
The due process clause precludes a conviction unless the state has proved beyond a reasonable doubt every fact necessary to constitute the crime with which the accused is charged. (Patterson v. New York (1977) 432 U.S. 197, 204.) This burden cannot be shifted to a defendant. (Id. at p. 205.) Thus, "the Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged." (Id. at p. 210.)
In a plurality opinion, the United States Supreme Court in Montana held that a defendant's right to have a jury consider evidence of his voluntary intoxication in determining whether he possessed the requisite mental state was not a fundamental principle of justice. As a result, the court held that Montana's statutory ban on consideration of a defendant's intoxicated condition in determining the existence of a mental state, which is an element of the offense, did not violate the due process clause. (Montana, supra, 518 U.S. at pp. 40-43, 48-51, 56 (plur. opn. of Scalia, J.); see also id. at pp. 58-59 (conc. opn. of Ginsburg, J.).) The court reasoned:
"It is not surprising that many States have held fast to or resurrected the common-law rule prohibiting consideration of voluntary intoxication in the determination of mens rea, because that rule has considerable justification -- which alone casts doubt upon the proposition that the opposite rule is a 'fundamental principle.' A large number of crimes, especially violent crimes, are committed by intoxicated offenders; modern studies put the numbers as high as half of all homicides, for example. [Citations.]
Disallowing consideration of voluntary intoxication has the effect of increasing the punishment for all unlawful acts committed in that state, and thereby deters drunkenness or irresponsible behavior while drunk. The rule also serves as a specific deterrent, ensuring that those who prove incapable of controlling violent impulses while voluntarily intoxicated go to prison. And finally, the rule comports with and implements society's moral perception that one who has voluntarily impaired his own faculties should be responsible for the consequences. [Citation.]" (Id. at pp. 49-50, fn. omitted (plur. opn. of Scalia, J.).)
Conclusion
Section 22's prohibition on use of voluntary intoxication to preclude a finding of implied malice violates neither state nor federal constitutional law. Consequently, the trial court's instruction to the jury was not erroneous.
III. Jury Instructions
Leon also contends that the law on implied malice murder and intoxication as a defense resulted in contradictory jury instructions that were void for vagueness. He has forfeited this issue.
Here, Leon failed to request any clarification of the instructions. Leon never objected to the challenged instructions and never claimed at trial that voluntary intoxication was a defense. Failure to request clarifying instructions in the trial court constitutes a forfeiture of this claim on appeal. (People v. Young (2005) 34 Cal.4th 1149, 1202.)
Regardless, the instructions on voluntary intoxication and implied malice were not vague or ambiguous. "'"'[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.'" [Citations.]' [Citation.]" (People v. Smithey (1999) 20 Cal.4th 936, 963-964.)
Initially, the jury was not instructed regarding voluntary intoxication. It was correctly instructed on all elements of the offenses of murder and gross vehicular manslaughter. After the jury asked whether it could consider voluntary intoxication, the trial court properly informed the jury that voluntary intoxication was not a defense to the crimes charged.
We do not speculate about juror confusion, but assume jurors are intelligent people capable of understanding and correlating the instructions. (People v. Yoder (1979) 100 Cal.App.3d 333, 338.) Absent evidence to the contrary, and here there is none, we presume the jury understood and correctly applied the instructions. (People v. Talhelm (2000) 85 Cal.App.4th 400, 409.)
We also reject Leon's claim of ineffective assistance of counsel if the issue is forfeited. It is well settled that trial counsel is not required to make tactical decisions, undertake futile acts, or file meritless motions simply to withstand later claims of ineffective assistance. (People v. Anderson (2001) 25 Cal.4th 543, 587; People v. Hines (1997) 15 Cal.4th 997, 1038, fn. 5.) The jury instructions properly instructed the jury on implied malice and voluntary intoxication. Leon's counsel was not required to undertake the futile act of requesting amplification or clarification of correct pattern instructions.
Furthermore, although Leon's counsel did not object to the entirety of the trial court's instruction on the use of voluntary intoxication or ask for amplification or clarification, counsel did object to the portion that stated "there's been no evidence that defendant blacked out or suffered a loss of consciousness." This indicates that trial counsel thoughtfully considered the language of the instruction and made a conscious or tactical decision on whether to object or request clarification and on what grounds. Trial counsel's "'"tactical decisions are accorded substantial deference."'" (People v. Majors (1998) 18 Cal.4th 385, 403.)
We thus conclude the instructions on implied malice and voluntary intoxication were not vague or ambiguous and trial counsel was not ineffective for failing to request clarification or amplification.
IV. Prosecutorial Misconduct
Leon argues the prosecutor committed prejudicial misconduct by displaying to the jury "his distrust or scorn for defense counsel." We conclude there was no prejudicial prosecutorial misconduct.
Leon addresses three main instances where he claims the prosecutor committed misconduct: (1) questioning the sincerity of defense counsel when he expressed sympathy to Saechao on the loss of her husband and son; (2) three exchanges that occurred over documents presented in the case; and (3) improper comments during closing argument that disparaged counsel or incorrectly stated defense counsel referred to racism in the case.
A prosecutor violates the federal Constitution when he or she engages in a pattern of misconduct so egregious that it infects the trial with such unfairness that it makes the conviction a denial of due process. (People v. Hill (1998) 17 Cal.4th 800, 819.) "'Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves "'"the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury."'" [Citation.]' [Citation.]" (Ibid.) To preserve a claim of prosecutorial misconduct, a defendant must make a timely objection on this ground and request a curative admonishment or instruction. (Id. at p. 820; People v. Thornton (2007) 41 Cal.4th 391, 454.) We address each claimed instance of prosecutorial misconduct.
Forfeiture of two claims of misconduct
In one of the exchanges over documents, defense counsel objected to one remark where the prosecutor stated, "Counsel takes no interest -- " The trial court indicated it did not hear the comment and defense counsel did not pursue the matter further. Failure to obtain a ruling results in forfeiture of this point on appeal. (See, e.g., People v. Cunningham (2001) 25 Cal.4th 926, 984.)
In closing argument, the prosecutor stated, "the defense drops out numerous things, different issues from blue moons to racism." There was no objection or request for an admonition as to this remark. Failure to object or request an admonition forfeits appellate review of this claimed instance of misconduct. (People v. Parson (2008) 44 Cal.4th 332, 359.)
We have assessed these remarks that were not challenged in the trial court and have determined that any harm arising from them easily could have been cured by appropriate judicial admonishment. Accordingly, these claims were forfeited. (People v. Green (1980) 27 Cal.3d 1, 27-28.)
Curative admonishments
In the instance where the prosecutor questioned defense counsel's sincerity, defense counsel did object. After a recess, the trial court instructed the jury that the prosecutor's remark about sincerity was inappropriate and should be disregarded by the jury.
When the prosecutor remarked that "Counsel's just trying to create a show," defense counsel objected to the remark. The trial court responded by admonishing, "We don't need that last remark," to which the prosecutor responded, "Yes, your Honor."
In rebuttal the prosecutor stated, "when the defense attorneys do not have a case -- " Defense counsel objected that the remark was disparaging counsel and the objection was sustained by the trial court.
In each of these three instances defense counsel objected to the remark, the objection was sustained and, when requested to do so, the trial court admonished the jury. There is no indication in the record that the admonishments, when given, were disregarded by the jury or were ineffective. (See People v. Boyette (2002) 29 Cal.4th 381, 432.)
Trial court comment
At another point, there was an exchange over whether defense counsel previously had presented documents to the prosecutor for review and the prosecutor asked for a brief recess to review proffered documents. When defense counsel started to respond, the trial court interrupted and stated, "you're going to give it to counsel."
Here, there does not appear to be any inappropriate remarks by the prosecutor. Requesting a brief recess to review documents and verify that they are the documents previously presented to the prosecution by the defense is not unreasonable. The trial court's remark to defense counsel to give the documents to the prosecution is indicative that the trial court considered the prosecutor's request reasonable and defense counsel's engaging in the exchange unnecessary. There is no indication that the trial court overruled valid objections or otherwise discouraged defense counsel from taking action. (See, e.g., People v. Hillhouse (2002) 27 Cal.4th 469, 501-502.)
Ineffective assistance of counsel
We also reject the corollary contention that the failure to object, or request an admonishment, constitutes ineffective assistance of counsel. First, "'The choice of when to object is inherently a matter of trial tactics not ordinarily reviewable on direct appeal.' [Citation.]" (People v. Padilla (1995) 11 Cal.4th 891, 940.) Second, our California Supreme Court previously has "indicated that a mere failure to object to evidence or argument seldom establishes counsel's incompetence. [Citations.]" (People v. Ghent (1987) 43 Cal.3d 739, 772 (Ghent).)
Here, even assuming that the challenged remarks were improper, their prejudicial effect "was undoubtedly minimal or nonexistent." (Ghent, supra, 43 Cal.3d at p. 772.) They were brief and any effort to highlight them for the trial court and jury may well have made matters worse. Also, if there is evidence outside the record that would support a claim of ineffective assistance of counsel, Leon can present it in a petition for a writ of habeas corpus.
DISPOSITION
The judgment is affirmed.
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CORNELL, J.
WE CONCUR:
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LEVY, Acting P.J.
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FRANSON, J.