Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC465738
OPINION
Mihara, J.
An information filed May 5, 2005 charged defendant Ray Eleigh Levell with false imprisonment (Pen. Code, §§ 236-237) and attempting to dissuade a witness (Pen. Code, § 136.1, subd. (b)(2)), and also alleged a prior prison term (Pen. Code, § 667.5, subd. (b)). On February 1, 2006, a jury convicted defendant of false imprisonment but found him not guilty of dissuading a witness. The court found true the prior prison term and sentenced defendant to the two-year midterm for false imprisonment and a consecutive one-year term for the prison prior. On appeal, defendant claims: (1) the prosecutor committed misconduct during closing argument; (2) his counsel provided ineffective assistance in failing to object to the prosecutor’s statements regarding reasonable doubt; (3) the court erred, and deprived defendant of his due process rights, in admitting testimony about domestic violence victims; (4) the court erred, and deprived defendant of his due process rights, in excluding testimony that defendant told the victim to tell the truth; (5) the cumulative prejudice flowing from all of the trial errors requires reversal; and (6) he is entitled to an additional day of presentence credit. We affirm the judgment.
I. Factual Background
In 2004, defendant and his girlfriend, Lorraine Yllan, lived in an apartment complex in Santa Clara. On August 9, 2004, defendant and Yllan spent the day gambling at Cache Creek. On the way home, defendant’s cell phone rang and Yllan questioned him about the call. Yllan’s questioning irritated defendant and the situation worsened when the couple ran out of gas. Yllan eventually told defendant she was tired of arguing and that it might be better if they “split up.” The argument escalated with defendant calling Yllan names, yanking her hair, and slapping her.
The couple arrived at the carport behind their apartment complex and Yllan walked toward her car, which was parked in front of the complex. Defendant followed, hitting Yllan in the face with some mail, and Yllan ran to the neighboring apartments seeking help. She knocked on a door and defendant grabbed her “in a choke hold” and “dragged” her back to the carport and toward the back entrance of their apartment. Yllan said “everything happened so fast, being dragged and kind of walking backwards and struggling” as they moved about 80 feet toward their apartment. Yllan was frightened and tried to scream at defendant to let her go, but found it difficult to breathe and speak.
Neighbors arrived and defendant released Yllan. She was coughing and had trouble speaking. Defendant said he did not want to go back to prison and by the time the police arrived, he was gone. Yllan said the day after the incident her back was sore, her neck hurt, her voice was very hoarse, and she had a scrape on her knee and a bump on her forehead.
Two of defendant’s neighbors testified on behalf of the prosecution. At around 10:30 p.m. on August 9, Andrew Leahy heard “heavy running” in the apartment complex and “[t]hen there was a banging, knocking, and then there was screaming.” He and his wife, Mika Snowbarger, went outside to help. They walked toward the carport and heard “Help me. Help me.” and “muffled quiet, like someone’s being choked.” About a minute after hearing the initial noises, Leahy saw one or two people just beyond a gate on the edge of the carport. Leahy asked what was going on, and the noises stopped as a woman, Yllan, rushed back through the gate and into the carport. Leahy asked Yllan if she wanted them to call the police. Yllan “kind of collapse[d]” against the wall and was “holding her throat” with “very labored breathing.” Leahy observed that Yllan was “very visibly upset[,] . . . basically panting” and her neck was red. Yllan moved toward the center of the carport and defendant followed attempting to “placate her.” Leahy tried to get in between the couple and defendant turned his attention on him, becoming “hostile.” Yllan remained huddled against the wall until the police arrived. Leahy motioned the officers over and defendant fled.
Snowbarger testified that she first heard a female scream and “No, help me.” She also heard a “running sound, like a chase . . . .” Snowbarger and Leahy then ran outside and down the stairs. When they got to the carport, about a minute later, she saw the back of a large male and heard “kind of a muffled - - muffled female sound.” Yllan ran from defendant and placed Leahy between herself and defendant. Yllan appeared “[v]ery scared” and was “clutching her throat.” Snowbarger left to call the police.
The responding officer also testified that Yllan appeared upset and reported some pain in her neck. Yllan told the officer that there had been two previous incidents of domestic abuse and that she was “fearful for any future incidents that could occur.” The officer examined Yllan for injuries about 15 to 20 minutes after he arrived on the scene, but did not see any visible injuries or any tears in her clothing.
After the incident, Yllan moved out of the apartment, but the couple reconciled for a short period of time. Defendant asked her not to press charges and to call “parole” and tell them that he did not hit her. Defendant suggested that she tell them it was a misunderstanding so that she would not be lying. He also told her to say in court that he never hit her, that it was just a misunderstanding. Yllan took steps to bail out defendant after he was arrested and contacted a friend of defendant’s, Janet Gittings, who is a bail bonds agent. Gittings relayed calls and messages between the couple. Yllan said that she told Gittings that the incident was a misunderstanding so that Gittings “would actually help out with the bail.”
Yllan testified regarding two prior incidents of abuse. One day at the end of 2003 or the beginning of 2004, defendant returned home to find Yllan packing her things in boxes to move out. Becoming angry, he kicked a vase out of her hands, grabbed her by the hair and backhanded her. She was sore and recalled a swollen cheek that prevented her from attending a job interview. Later in 2004 defendant became upset with Yllan and poked her in the eye and face, yanked her hair, backhanded her, and pushed her. Yllan ran outside where she fell. She sustained a black eye, swollen nose, chipped tooth, and bloody nose from the incident. She stayed inside for two weeks because she was ashamed.
Yllan’s husband, from whom she has long been separated, testified that Yllan once falsely accused him of domestic violence. Yllan had called the police and claimed he caused scratches on her arm. He pleaded no contest to a charge of disturbing the peace to resolve the case. Yllan’s husband also testified that he observed Yllan with a number of abrasions and bruises in 2004, including marks on her arm as if she had been grabbed, a fat lip, and a small bump on her forehead.
Recalled to the stand, Yllan said that after her husband was arrested, she called the district attorney’s office and told them “something to th[e] effect” that it was a mistake. She did that to “help him out” because he was paying for her books and classes, but said that the incident had occurred as she initially reported.
II. Discussion
A. Prosecutorial Misconduct
Defendant challenges the prosecutor’s statements in closing argument that in dragging Yllan to the carport, defendant could have picked her up off the ground. The prosecutor stated: “Ms. Yllan doesn’t say she was dragged on the ground by Mr. Levell. She says he put her in a choke hold and dragged her to the other side of the complex in the back. He is an extremely strong man, more than twice her size. I don’t think it would take a whole lot of force for him just to pick her up around - - under her neck or in her shoulder area - - and he can probably pick her up with two fingers, she’s 115 pounds and he’s 250 pounds - - he can probably pick her up and run with her to the other side and she’s not going to be real able to really resist. It doesn’t have to be dragging, I mean we’re not talking about dragging another 250 or 300 pound man.” The court overruled defense counsel’s objection that the prosecutor misstated the evidence, and reminded the jury that the prosecutor’s statements were just argument. The prosecutor continued: “. . . [¶] She called it dragging. She was being dragged but that literally doesn’t have to mean that there’s lying down on the ground and he’s pulling her like this, little by little. No. That’s not what this is. [¶] . . . [W]e’re never going to have a videotape of what occurred. What we have is Ms. Yllan telling us, telling the police and telling the preliminary examination that she was dragged to the back of that complex and in a choke hold.”
Yllan testified that defendant has martial arts training and is 6’2” and about 260 pounds. Yllan is 5’2” and about 120 pounds, but she weighed less at the time of the incident.
“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. Gray (2005) 37 Cal.4th 168, 215-216, internal quotation marks omitted.) “A prosecutor is given wide latitude to vigorously argue his or her case and to make fair comment upon the evidence, including reasonable inferences or deductions that may be drawn from the evidence.” (People v. Ledesma (2006) 39 Cal.4th 641, 726, internal quotation marks omitted.)
The prosecutor’s remarks clearly delineate Yllan’s actual testimony from the prosecutor’s hypothesis regarding the specifics of the “dragging.” Yllan testified that she was in a “choke hold” and was “dragged and kind of walking backwards and struggling” to the carport. The observation that defendant may have picked up Yllan in the course of dragging her to the carport is a “fair inference drawn from the evidence.” (See People v. Avena (1996) 13 Cal.4th 394, 421.) Presented as a theory or possibility, it is not, as defendant contends, an example of the prosecutor acting as an unsworn witness and attesting to facts outside of the record. (Compare, e.g., People v. Johnson (1981) 121 Cal.App.3d 94, 104 [misconduct where prosecutor informed jury that a witness denied making an extortion demand, even though she did not testify on the subject, and that the prosecutor had “concluded from his personal investigation” that another witness’ testimony was an outright lie].)
This case is clearly distinguishable from defendant’s authority, People v. Hill (1998) 17 Cal.4th 800 (Hill), in which the court recounted numerous examples of egregious misconduct. (Id. at pp. 835-836.) As just one example, the prosecutor in Hill attributed a large scar on the victim’s chest to a stab wound and argued that it was evidence of intent to kill. (Id. at p. 827.) In fact, the evidence at trial showed that the lengthy scar was the result of emergency surgery and the actual stab wound was only two centimeters long. (Ibid.) The prosecutor also stated that blood on the defendant’s knife had been sub-typed and matched to the victim even though it had not. (Id. at pp. 824-825.) The prosecutor’s mischaracterization of the evidence constituted misconduct. (Id. at p. 825.) The inference drawn in the case before us, put forth as a suggestion by the prosecutor based on the somewhat vague “dragging” testimony, is far removed from the blatant misstatements of evidence in Hill.
Defendant stresses that the “new evidence” presented was essential to reconciling Yllan’s description of the altercation with “devastating” testimony by Snowbarger. He asserts that Snowbarger “vividly recalled that she heard ‘running’ and a ‘lot of steps’ after Ms. Yllan knocked on the apartment[,]” which would indicate that Yllan was not dragged to the carport. The record does not support this contention. A scream first caught Snowbarger’s attention. At about the same time, or right after, she heard a “running sound, like a chase[.]” Snowbarger did not recall whether she heard knocking and did not state that she heard running after Yllan’s knock. Snowbarger then ran downstairs with Leahy and about one minute later reached Yllan and defendant in the carport area. It is during this time that Yllan claims she was dragged and choked and that Snowbarger reported noises, including muffled sounds of a woman in distress, as if she was choking. Snowbarger’s testimony, examined closely, is not inconsistent with Yllan’s testimony and certainly is not devastating to the prosecution’s case.
Additionally, Leahy’s detailed testimony corroborated Yllan’s account of the altercation at the complex. Leahy recalled that he heard running before knocking and Yllan testified that she screamed for help as she ran to the apartment and knocked on the door. As a final point, we note that the court admonished the jury that the statements of counsel are not evidence, and in the midst of the prosecutor’s statements reminded the jury that the challenged remarks were mere “argument.” We find no prosecutorial misconduct.
B. Ineffective Assistance of Counsel
Defendant next contends the prosecutor’s comments in closing argument diluted the meaning of “beyond a reasonable doubt” and shifted the burden of proof to the defense. “As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant [requested] an assignment of misconduct and [also] requested that the jury be admonished to disregard the impropriety.” (People v. Ochoa (1998) 19 Cal.4th 353, 427, internal quotation marks omitted.) Defense counsel in this case failed to object to the prosecution’s statements or otherwise request assignment of misconduct. Defendant thus raises the issue in the context of ineffective assistance of counsel.
To show ineffective assistance of counsel, the defendant must prove that trial counsel’s representation fell below an “objective standard of reasonableness,” and that counsel’s error prejudiced the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-690; People v. Williams (1997) 16 Cal.4th 153, 215.) Prejudice exists if “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland v. Washington, supra, 466 U.S. at p. 694; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.)
Defendant objects to two aspects of the prosecutor’s argument: (1) a reference to standards higher than “beyond a reasonable doubt,” and (2) an assertion that a finding of reasonable doubt must be based on the evidence. We start with the former. During defense counsel’s closing argument, he stressed the high burden of reasonable doubt and walked the jury through various lesser standards, including preponderance of the evidence and clear and convincing evidence. He argued that “a good way to think about” beyond a reasonable doubt is that it is the “highest burden.” The prosecutor asked for an admonition on the grounds that the other burdens of proof were not before the jury, but the court overruled the objection. The court, however, did admonish the jury to rely on the instruction for reasonable doubt. Defense counsel continued by stating that “possibly guilty[,]” “probably guilty” and “likely guilty” do not satisfy the reasonable doubt standard. In the prosecutor’s rebuttal argument, he referred to defense counsel’s statements regarding lower standards and said he could take the same type of approach: “I could say, well, there’s this lower standard of beyond a reasonable doubt. But you know what, you could find him guilty if you find that the evidence was beyond a reasonable doubt. But you know what, there’s [sic] all these standards above reasonable doubt, that are even above it. But you don’t even have to get there. It could be beyond a reasonable doubt plus or beyond a hint of a doubt or beyond a scintilla of a doubt, or beyond a shadow of a doubt or beyond any doubt at all. [¶] But you know what? I don’t want you to even consider any of this. That wouldn’t be fair either. That is not fair. Reasonable doubt is as defined in the instruction.”
If an allegation of prosecutorial misconduct “focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.” (People v. Carter (2005) 36 Cal.4th 1215, 1263, internal quotation marks omitted.) “In conducting this inquiry, we do not lightly infer that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements.” (People v. Brown (2003) 31 Cal.4th 518, 553-554, internal quotation marks omitted.) We do not believe that the reference to potentially higher burdens of proof lessened the reasonable doubt standard or that the statements are likely to have confused the jury. Both defense counsel and the prosecutor made it clear that the “beyond a reasonable doubt” standard applied in the case before the jury and both referred to other, inapplicable burdens of proof merely to emphasize the requirements and illustrate the limits of the applicable standard. Moreover, the prosecutor referred the jury to the reasonable doubt instruction and the jury was given a standard instruction. In these circumstances, the prosecutor’s reference to legally non-existent standards such as “beyond a scintilla of a doubt” is immaterial and does not constitute a mischaracterization of the law applicable in this case.
We turn to defendant’s second objection to the reasonable doubt discussion. After referring the jury to the reasonable doubt instruction, the prosecutor continued: “What is reasonable doubt? It has to be reasonable. It has to be based upon evidence. So when you get your foreperson, you do your jury deliberations, you can only consider evidence when deciding whether there’s a reasonable doubt. And evidence is either testimony given up on that witness chair or exhibits that are put in by either of the parties. That is the only evidence in this case. And you’re not to look outside the evidence for reasonable doubt. [¶] What isn’t reasonable doubt? Well, like we said possible doubt is not reasonable doubt. Imaginary doubt, mere conflicts in the evidence are not reasonable doubt in among themselves. There can be conflicts in the evidence but if you believe that we’ve proven this case, that is not reasonable just because they’re [sic] conflicts in the evidence, every case has some conflicts. People see and hear things differently. But that in and of itself is not reasonable doubt. [¶] . . . [¶] What isn’t evidence? Again, speculation. You’re not to speculate on things that are not before you. You’re only to base your decision on the evidence.”
On one hand, the prosecutor correctly informed the jury that it must rely on the evidence presented, not attorney argument, in reaching a verdict; on the other, his comments may be read to imply that defendant must present affirmative evidence to support a conclusion that there is reasonable doubt. The latter is a misstatement of the law. In Hill, supra, 17 Cal.4th at page 831, the prosecutor informed the jury that “‘[t]here has to be some evidence on which to base a doubt’” and that “‘[y]ou can’t say, well, one of the attorneys said so.’” (Italics omitted.) The Supreme Court noted that the comments were “somewhat ambiguous” but “to the extent [the prosecutor] was claiming there must be some affirmative evidence demonstrating a reasonable doubt, she was mistaken as to the law, for the jury may simply not be persuaded by the prosecution’s evidence.” (Ibid.) However, the court continued, “[the prosecutor] may simply have been exhorting the jury to consider the evidence presented, and not attorney argument, before making up its mind.” (Id. at p. 832.) The Hill court concluded that “[a]lthough the question arguably is close, . . . it is reasonably likely [the prosecutor’s] comments, taken in context, were understood by the jury to mean defendant had the burden of producing evidence to demonstrate a reasonable doubt of his guilt.” (Ibid.)
Faced with a similarly ambiguous statement, but a different context, we find it is not reasonably likely the jury understood the prosecutor’s statements to mean defendant was required to produce proof of reasonable doubt. In another California Supreme Court decision, which did not have the rampant misconduct found in Hill, the defendant proffered a similar argument that “the prosecutor misstated the law during his closing argument by asserting that ‘[t]he defense has to create a reasonable doubt . . . .’” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1214 (Gonzalez).) While the court observed “[t]he remark was improper if meant to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements[,]” it found no prejudicial error in counsel’s failure to object. (Id. at p. 1215.) In so holding, the Gonzalez court noted that “the remark was proper if it meant only that the prosecution had proved [the alleged crime] beyond a reasonable doubt, and that the weakness of the defense response had left the record devoid of any basis for reasonable doubt.” (Ibid.) Such a meaning may be drawn from the remarks in this case, which were made just prior to statements encouraging the jury to make its decision based on evidence, not mere speculation, and were accompanied by the prosecutor’s reference to the People’s burden to prove the case. Moreover, the statements were made immediately after the prosecutor’s admonition to rely on the applicable jury instruction.
In addition, the jury in this case, as in Gonzalez, 51 Cal.3d at page 1215, “received accurate standard instructions that the People bore the burden of proving defendant guilty beyond a reasonable doubt, and that he was presumed innocent until proven guilty” and “[n]o instruction stated or implied that defendant bore any burden of proof or persuasion.” The jury was further instructed “‘[i]f anything concerning the law said by the attorneys in their arguments or at any time during the trial conflicts with my instruction on the law, you must follow my instructions.” (See People v. Gray, supra,37 Cal.4th 168, 217 [noting importance of same instruction in rejecting claim of prosecutorial misconduct].) Indeed, the court reminded the jury to follow the court’s instruction when defense counsel was discussing the reasonable doubt standard. We presume, absent contrary indications, that the jury followed the instructions given by the court. (People v. Pinholster (1992) 1 Cal.4th 865, 919; see also People v. Mayfield (1993) 5 Cal.4th 142, 179 [“‘We presume that jurors treat the court’s instructions as a statement of the law by a judge, and the prosecutor’s comments as words spoken by an advocate in an attempt to persuade’”].)
In these circumstances, “we see no reasonable likelihood . . . the jury construed the prosecutor’s remarks as placing on defendant the burden of establishing a reasonable doubt as to his guilt.” (See People v. Marshall (1996) 13 Cal.4th 799, 831; see also People v. Barnett (1998) 17 Cal.4th 1044, 1157 [admonishments by court that jury was “required to follow the law and base [its] decision solely on the law and instructions” as given by the court found “sufficient to dispel any potential confusion raised by the prosecutor’s [reasonable doubt] argument”].) Thus, the alleged failure to object to the reasonable doubt argument does not undermine our confidence in the verdict, and we find no prejudice.
C. Testimony Regarding Domestic Violence Victims
Defendant contends the trial court erred in allowing the prosecutor to elicit an opinion regarding domestic violence victims from Gittings, the bail bonds agent. After establishing that Gittings had bailed out those accused of domestic violence, the prosecutor asked whether it was common, in her experience, “for a wife or a girlfriend to bail out her husband or her boyfriend immediately after accusing him of beating her?” The court overruled defense counsel’s relevance objection and Gittings answered in the affirmative. The prosecutor highlighted Gittings’s statement in his rebuttal closing argument. Defendant claims the testimony should have been excluded as irrelevant and that its admission violated his due process rights.
“Relevant evidence is defined in Evidence Code section 210 as evidence ‘having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.’ The test of relevance is whether the evidence tends ‘logically, naturally, and by reasonable inference’ to establish material facts such as identity, intent, or motive. [Citations.]” (People v. Garceau (1993) 6 Cal.4th 140, 177, overruled on other grounds.) This court will not disturb a trial court’s exercise of discretion in admitting or excluding evidence “except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation].” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
Gittings’s testimony relates to Yllan’s credibility and its admission is well-supported. Defendant’s primary defense was that Yllan lied about the abuse; defense counsel spent the majority of his closing argument on the issue of Yllan’s lack of credibility and even proposed that Yllan made up the incident because “she thought it was going to be as simple as with [her husband], couple days in jail, nine days in jail and then he gets out.” Gittings’s statement is relevant to counter the implied suggestion that Yllan would only have sought bail for appellant if she falsely accused him of domestic violence. (See, e.g., People v. Housley (1992) 6 Cal.App.4th 947, 954-955 [expert testimony that it is not uncommon for sexual abuse victims to falsely recant reports of abuse properly admitted].)
Defendant nevertheless argues that the testimony should have been excluded because it was admitted solely to show Yllan was the victim of domestic violence. (See, e.g., People v. Bledsoe (1984) 36 Cal.3d 236, 247-248 [psychological evidence based on the “rape trauma syndrome” cannot be used to show a rape actually occurred, but can be used to educate jury about common misconceptions regarding rape victims].) We disagree with defendant’s factual assertion. The prosecutor did not argue that because Yllan sought to bail out defendant, the abuse occurred. He argued instead that although it may be difficult to understand, Yllan sought to bail out defendant despite the fact that he abused her. Absent an explicit argument that Yllan’s actions regarding bail show she was abused, we believe it unlikely the jury would have so inferred.
We find no error in the court’s admission of Gittings’s testimony regarding domestic violence victims, and therefore no violation of defendant’s due process rights.
D. Exclusion of Testimony
Defendant argues that the court erred when it excluded Gittings’s testimony that defendant told Yllan to tell the truth during one of the phone calls in which she acted as intermediary. At trial, defense counsel argued that it was offered to impeach Yllan and had a “non-hearsay purpose” as “it’s not to prove what really happened, it’s used to prove that that was never said or something else was said.” The court was not persuaded and excluded the statement as hearsay.
After the ruling, Yllan was recalled to the stand and testified that she did not remember whether defendant told her to tell the truth during the telephone conversation with Gittings, but acknowledged it was a possibility. The court revisited the issue but held that because Yllan admitted the statement might have been made, the defense did not lay a sufficient foundation to overcome the hearsay objection.
In general, an out-of-court statement offered for its truth is inadmissible hearsay. (Evid. Code, § 1200.) Defendant argues that the statement should have been admitted under an exception to the hearsay rule—as an out-of-court statement offered to prove whether specific words were spoken, rather than to prove the truth of the matter asserted. (See, e.g., People v. Nelson 1985) 166 Cal.App.3d 1209, 1214-1215 [applying exception to a statement giving consent to search].) We need not determine whether the court erred, however, as any error was harmless. Defendant was acquitted of dissuading a witness—the charge for which defendant’s statement was purportedly relevant. Defendant’s argument that the statement goes generally to Yllan’s credibility, and thus may have impacted the false imprisonment count as well, is unpersuasive. Yllan testified that it was possible defendant had told her to tell the truth during the telephone call. Additionally, defense counsel pointed to several explicit inconsistencies in Yllan’s testimony. In this context, whether defendant actually told her to tell the truth has little bearing on her credibility.
Because the statement is of minimal probative value to the false imprisonment claim, we also find no deprivation of defendant’s due process rights. “Although the complete exclusion of evidence intended to establish an accused’s defense may impair his or her right to due process of law, the exclusion of defense evidence on a minor or subsidiary point does not interfere with that constitutional right.” (People v. Cunningham (2001) 25 Cal.4th 926, 999.)
E. Cumulative Errors
Defendant contends the cumulative effect of the errors in his trial requires that we reverse the judgment. “[A] series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error.” (Hill, supra, 17 Cal.4that p. 844.) In light of our findings above, we find no such prejudicial impact in this case.
F. Presentence Credit
In his opening brief, defendant contended the trial court overlooked one day of presentence credit to which he is entitled. As the trial court subsequently amended the abstract of judgment to add one day of credit, defendant acknowledges this issue is moot.
III. Disposition
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Duffy, J.