Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County, Super. Ct. No. 30118, John D. Kirihara, Judge.
Sylvia Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Janis Shank McLean and Tia M. Coronado, Deputy Attorneys General, for Plaintiff and Respondent
OPINION
HILL, J.
Appellant was convicted of (1) first degree burglary (Pen. Code, § 459), (2) stalking with a prior stalking conviction (Pen. Code, § 646.9, subd. (b)), (3) threatening bodily injury (Pen. Code, § 422), and (4) brandishing a weapon (Pen. Code, § 417, subd. (a)(1)). Appellant contends the court abused its discretion in admitting evidence of appellant’s prior acts of stalking and domestic violence, contrary to the provisions of Evidence Code sections 352 and 1101; the court instructed the jury in the language of Judicial Council of California Criminal Jury Instructions (2007-2008), CALCRIM No. 852 (CALCRIM) in violation of his constitutional rights; the conviction on count 3 was not supported by sufficient evidence; and the prosecutor engaged in misconduct in her closing argument. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant was involved in a relationship with Crystal Simmons, beginning in 1997. Their daughter, Amiya, was born in 2001. Crystal left appellant in 2003; they made an informal custody arrangement for Amiya to spend one week with appellant, then one week with Crystal. In 2005, appellant and Crystal reconciled for two or three months, then broke up again. The charges of burglary, making criminal threats, and brandishing a weapon arose from events occurring on March 11, 2006. The parties stipulated that there were two court orders in effect at that time, ordering appellant to have no contact with Amiya and to stay away from Crystal.
At about 2:00 a.m. on March 11, 2006, appellant called Crystal and asked her to pick him up; he said he knew where she lived. Crystal refused. Some time later, appellant went to the apartment of his ex-stepmother, Angelika Gai, and asked where Crystal lived. Gai lived in the same apartment complex Crystal had just moved into. Gai pointed out Crystal’s apartment. Appellant then showed Gai a knife, told her it was time to retaliate, and asked her if she would open the door for him when he returned from Crystal’s apartment. Gai told him no. After appellant left, Gai called the police, and then called Crystal. Someone answered Crystal’s phone, screamed and hung up. Gai then called 911.
Around 3:15 that morning, Crystal, her sister Tonya, Tonya’s daughter, and Desiree, were in Crystal’s bedroom, when they heard a loud bang. Crystal went to see what caused the noise; appellant had broken down the front door. He followed Crystal down the hallway toward the bedroom. Appellant said, “Say something stupid now. Go ahead, say something stupid.” Tonya saw appellant had a knife; she pushed the others into the bedroom, closed the door, and told Desiree to keep the door locked. Tonya and appellant walked to the other side of the apartment; appellant looked around the apartment, asking, “Where is he? Where is he?” At one point, appellant took the knife out of its sheath and raised it at Tonya. Appellant went into his daughter’s bedroom, where she was sleeping. Tonya told him not to touch Amiya, and appellant said he was not going to hurt her.
Crystal heard Tonya screaming that appellant had a knife; she called the police. She thought appellant was there to hurt or kill her.
When Officer Alvara arrived, he first spoke with Gai, who was in the center of the courtyard. When he approached Crystal’s apartment, he noted the door had been forcibly opened and he heard a woman screaming inside. He went down the hallway with his weapon drawn, ordering everyone to come out with their hands up. After he said it about four times, appellant came out with his hands behind his back. Alvara ordered him to show his hands. Appellant became verbally combative; Alvara threatened to shoot him if he did not show his hands. Appellant said, “shoot me.”
Officer Reyna arrived while Alvara was telling appellant to come out with his hands up. He took a position behind Alvara with his firearm drawn. When appellant refused to get on the ground as ordered, Reyna took out his taser and used it on appellant. The officers handcuffed appellant and placed him in the patrol car. Reyna later recovered appellant’s knife from Amiya’s room.
The stalking charge was based on events occurring from February 15 to March 11, 2006. During that time period, appellant called Crystal and left phone messages for her, asking how their daughter was doing. Crystal and Amiya ran into appellant at Wal-Mart and he bought some things for Amiya. Crystal gave him a hug, said thank you, and they went their separate ways. Appellant later called and asked them to go for ice cream; Crystal said she would think about it. These contacts were followed by the events of March 11, 2006.
DISCUSSION
I. Evidence of Prior Acts
Generally, “evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.” (Evid. Code, § 1101, subd. (a).) Evidence of specific prior acts may be admissible, however, “to prove some fact (such as motive, opportunity, intent, preparation, plan, …) other than his or her disposition to commit such an act.” (Evid. Code, § 1101, subd. (b).) Additionally, there is an exception to the inadmissibility of evidence of prior acts to show propensity: “[I]n a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.” (Evid. Code, § 1109, subd. (a)(1).) Thus, when a criminal defendant is charged with an offense involving domestic violence, evidence of prior acts of domestic violence is admissible as evidence of defendant’s propensity to commit the crime charged. The evidence is admissible unless “its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352).
“‘Under ... section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time.’ [Citation.] A trial court's exercise of its discretion under section 352 ‘“must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.” [Citations.]’ [Citation.]” (People v. Brown (2000) 77 Cal.App.4th 1324, 1337.)
“‘Domestic violence’” is defined to include “abuse committed against … a person with whom the suspect has had a child.” (Evid. Code, § 1109, subd. (d)(3); Pen. Code, § 13700, subd. (b).) “‘Abuse’ means intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another.” (Pen. Code, § 13700, subd. (a).)
At the beginning of the trial, the court stated it would permit evidence of two incidents of prior domestic violence to be admitted on the criminal threats count, as propensity evidence under Evidence Code section 1109. The court also permitted the evidence to be considered under Evidence Code section 1101 as evidence that appellant acted with the intent that his statement be understood as a threat and that it be communicated to Crystal. Appellant challenges the ruling permitting introduction of the evidence on the criminal threats count, contending the evidence should have been excluded on the ground its probative value was outweighed by its potential prejudice.
Penal Code section 422 makes it a crime to “willfully threaten[] to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement … is to be taken as a threat.” Appellant does not dispute that the charge of making a criminal threat against Crystal, the mother of appellant’s child, falls within the definition of domestic violence. Thus, Evidence Code section 1109 makes evidence of prior acts of domestic violence admissible on that count, unless the court finds that the probative value of the evidence is outweighed by concerns of undue prejudice.
One incident of prior domestic violence the court ruled admissible occurred in September of 2005, after appellant and Crystal broke up the second time. Crystal went to where she and appellant had been living to retrieve her belongings. Appellant was there, and they argued. Appellant put his hands around Crystal’s neck, threw her against a wall, and told her she was a “dead bitch.”
The other incident occurred on October 19, 2005. Crystal had dropped her daughter off at day care and, when she returned to her car, appellant was there. He tried to push her away and get into her car. He took her cell phone and told her not to make a scene or he would stab her; he said he had a knife in his pocket, but she did not see it. She started honking her horn because she was scared he would do something to her.
There was another incident that occurred between the other two, which the prosecutor initially stated she was not seeking to introduce. Crystal mentioned it in response to defense counsel’s questioning, and both the prosecutor and defense counsel later questioned her about it. On Friday, October 15, 2005, outside Club Azul in downtown Los Banos, appellant showed up and said he was going to kill Crystal with a .44. Over the following weekend, appellant left cell phone messages for Crystal, in which he stated that it “was the last time that [Crystal] was going to fuck him over and that it was over for [her].” On October 18, 2005, Crystal reported the choking incident, the Club Azul incident and the phone messages to the police. The next day, the knife threat incident at their daughter’s day care occurred.
Appellant does not dispute that the three incidents constituted domestic violence. They were admissible under Evidence Code section 1109 as evidence of defendant’s propensity to commit the offense charged in count 3 – making criminal threats – unless the probative value of the evidence was substantially outweighed by the probability its admission would create a substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. Appellant contends the substantial danger of undue prejudice outweighed the probative value of the prior acts evidence, so the prior acts evidence should have been excluded.
“[I]n enacting Evidence Code section 1109, the Legislature found that in domestic violence cases evidence of prior acts is particularly probative in demonstrating the propensity of the defendant. ‘“The propensity inference is particularly appropriate in the area of domestic violence because on-going violence and abuse is the norm in domestic violence cases. Not only is there a great likelihood that any one battering episode is part of a larger scheme of dominance and control, that scheme usually escalates in frequency and severity. Without the propensity inference, the escalating nature of domestic violence is likewise masked.”’ [Citation.]” (People v. Cabrera (2007) 152 Cal.App.4th 695, 705-706.) “‘The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues. In applying section 352, “prejudicial” is not synonymous with “damaging.”’ [Citation.]” (People v. Morton (2008) 159 Cal.App.4th 239, 249.)
In determining whether to admit evidence pursuant to Evidence Code section 1109, the court must engage in a weighing process. Relevant factors to consider include “the nature, relevance and possible remoteness of each such [prior] offense; the degree of certainty of its commission; the likelihood of confusing, misleading or distracting the jurors from their main inquiry; the similarity of each prior offense to the charged offense; its likely prejudicial impact on the jurors; the burden on the defendant of defending against the uncharged offense; and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all prior offenses, or excluding ‘irrelevant though inflammatory details surrounding the offense.’ [Citation.]” (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.) The analysis should not be a mechanical application of these factors, however. “The weighing process under section 352 depends upon the trial court’s consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules.” (Ibid.) The court, however, “need not expressly weigh prejudice against probative value, or even expressly state that it has done so. All that is required is that the record demonstrate the trial court understood and fulfilled its responsibilities under Evidence Code section 352.” (People v. Williams (1997) 16 Cal.4th 153, 213.)
The court and counsel discussed at length the evidence the prosecution sought to introduce under Evidence Code sections 1101, subdivision (b), and 1109, subdivision (a)(1). After the court interpreted case law as holding that stalking is not a domestic violence crime, the prosecutor stipulated that the evidence admitted under Evidence Code section 1109 would be admitted only on the criminal threats count. The prosecutor proposed to offer evidence of the two prior incidents – the September 2005 choking incident and the October 19, 2005, stabbing threat – on that count. The court concluded those two incidents were not cumulative, considered the degree of similarity between the current charge and the prior acts, and found that the prejudicial effect of the evidence did not substantially outweigh its probative value.
On the stalking count, the court excluded evidence of appellant’s prior conviction of stalking, finding the prejudicial effect of such evidence would outweigh its probative value. It suggested the prosecutor could instead introduce “sanitized” records to admit evidence of the restraining order entered in connection with the conviction without any obvious references to a conviction or plea. The court allowed testimony about prior phone threats to be admitted on the stalking count, finding the probative value of that evidence was not substantially outweighed by its prejudicial effect.
The record demonstrates that the court understood its responsibilities under Evidence Code section 352, considered and weighed the factors affecting the probative value and prejudicial effect of the proffered evidence on the various counts charged, and made specific rulings either excluding or allowing introduction of the evidence. Procedurally, the court fulfilled its responsibilities under section 352.
The prior incidents of domestic violence were relevant to the criminal threats count. The prior threats to harm Crystal were probative of appellant’s propensity to make threats of violence to Crystal. They were also evidence of elements of the offense: appellant’s specific intent that the statement on which count 3 was based be taken as a threat and that the threat caused Crystal reasonably to be in sustained fear for her safety. (Pen. Code, § 422.) Because the language of the threat alleged in count 3 was ambiguous, the probative value of the prior domestic violence evidence was high. The prior incidents were not remote; they occurred about six months before the charged offenses. While the incidents were not all similar to the charged offense in terms of the events that occurred, they were similar in that they all involved the same perpetrator and the same victim. The prior offenses were “no more inflammatory than the testimony concerning the charged offenses.” (People v. Ewoldt (1994) 7 Cal.4th 380, 405.)
The trial court’s conclusion that the probative value of the prior domestic violence evidence outweighed its potential prejudice was not “‘“arbitrary, capricious or patently absurd.”’” (People v. Brown, supra, 77 Cal.App.4th at p. 1337.) The court did not abuse its discretion in admitting the evidence of appellant’s prior acts of domestic violence both as evidence of appellant’s propensity to commit acts of domestic violence, including the charged criminal threats, and as evidence of appellant’s intent and Crystal’s sustained fear.
II. Jury Instruction
The court included CALCRIM No. 852 in its instructions to the jury. That instruction included the following language: “If you decide that the defendant committed the uncharged domestic violence, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit domestic violence and, based on that decision, also conclude that the defendant was likely to commit and did commit criminal threats as charged here.” Appellant challenges this language as violating his state and federal constitutional rights to due process and a fair trial. He does not specify in what way his rights were violated by the instruction.
Appellant concedes that the California Supreme Court has rejected a due process challenge to a similar instruction, which permitted the jury to infer from evidence of prior sexual offenses that a defendant charged with a similar sexual offense had a disposition to commit and did commit the charged sexual offense. (People v. Reliford (2003) 29 Cal.4th 1007, 1012-1016.) The Reliford court concluded the inferences authorized by the instruction to be drawn from the evidence of prior sexual offenses were reasonable. (Id. at pp. 1012-1013.) The instruction made clear that evidence of the prior offenses was “‘not sufficient by itself to prove beyond a reasonable doubt that [defendant] committed the charged crime’” and therefore it “could not have been interpreted to authorize a guilty verdict based solely on proof of uncharged conduct.” (Id. at p. 1013.)
Subsequently, a similar due process challenge to CALJIC No. 2.50.02, an instruction substantially similar to CALCRIM No. 852, was rejected on the grounds set out in Reliford. (See People v. Pescador (2004) 119 Cal.App.4th 252, 261-262.) More recently, a due process challenge to CALCRIM No. 852 itself was rejected. (People v. Reyes (2008) 160 Cal.App.4th 246, 253.) We are bound by the Reliford decision. Because of the similarity between the jury instruction addressed by Reliford and the jury instruction given in this case, we conclude that instructing the jury with CALCRIM No. 852 did not violate appellant’s rights to due process and a fair trial.
III. Sufficiency of the Evidence to Support Conviction on Count 3
Appellant contends the evidence was insufficient to support the conviction on count 3, because it did not establish that appellant’s statement, Go ahead, say something stupid, conveyed to Crystal “a gravity of purpose and an immediate prospect of execution of the threat” or caused Crystal “reasonably to be in sustained fear for … her own safety.” (Pen. Code, § 422.) Count 3 of the amended information charged appellant with violation of Penal Code section 422, which provides, in pertinent part:
“Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.”
In reviewing a criminal conviction on a claim of insufficiency of the evidence to support the judgment, “the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.)
Appellant contends his statement did not convey an immediate prospect of execution or cause Crystal to be in sustained fear for her safety; he asserts that, “due to their relationship, Crystal did not take this threat as a serious threat to kill her or inflict great bodily injury as she did not call 911.” Appellant misstates the evidence. Crystal testified that, after Tonya pushed her and the others into the bedroom, they called the police. Appellant’s contention is factually unsupported.
Appellant also asserts Crystal was not “reasonably” in sustained fear, because appellant had previously threatened to kill her, but she did not take those threats seriously and appellant never acted on them. Appellant concludes his more equivocal threat, “Go ahead, say something stupid,” could not reasonably have caused Crystal to fear for her safety. In the first two prior incidents of domestic violence – the choking incident and the threat to kill Crystal with a .44 – there is no evidence appellant was, or claimed to be, armed. Crystal testified that, when appellant choked her and said she was a “dead bitch,” she did not believe appellant would follow through on that threat; she clarified that she did not believe he would kill her, but did fear that he would hurt her. Crystal did not immediately report those incidents to the police. In the third incident, at Amiya’s day care, appellant threatened to stab Crystal and claimed to be armed with a knife. Crystal testified that, when he threatened to stab her, she believed he would do it. Crystal reported that incident to the police the same day, indicating she did take the threat seriously.
On March 11, 2006, while a court order requiring appellant to stay away from Crystal was in effect, appellant broke down Crystal’s front door and entered her home without her consent. He appeared angry. He said, “Say something stupid now. Go ahead, say something stupid.” Tonya pushed Crystal into the bedroom, where she stayed behind a locked door and called the police; Tonya screamed that appellant had a knife. Crystal testified she thought appellant had come to kill or hurt her; Tonya testified Crystal appeared afraid and Tonya was worried appellant would hurt Crystal.
Under Penal Code section 422, threats are considered in context. (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1137.) Both the communication and the surrounding circumstances, including the parties’ history, are considered. (People v. Butler (2000) 85 Cal.App.4th 745, 753-754.) “The point is that all of the circumstances can and should be considered in determining whether a terrorist threat has been made. It therefore follows that … the threatening statement does not have to be the sole cause of the victim's fear and that a statement the victim does not initially consider a threat can later be seen that way based upon a subsequent action taken by a defendant .…” (People v. Solis (2001) 90 Cal.App.4th 1002, 1014.) Considering the past relationship and history of domestic violence between appellant and Crystal and the events of March 11, 2006, in the light most favorable to the judgment, there was substantial evidence to support a finding that Crystal “reasonably [was] in sustained fear for … her own safety;” the evidence was sufficient that a reasonable trier of fact could find appellant guilty beyond a reasonable doubt.
IV. Prosecutorial Misconduct
“A prosecutor's rude and 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.”’ [Citation.] Included within the deceptive or reprehensible methods we have held to constitute prosecutorial misconduct are personal attacks on the integrity of opposing counsel. [Citation.]” (People v. Espinoza (1992) 3 Cal.4th 806, 820.) “[A]s a general rule, to preserve a claim of prosecutorial misconduct, the defense must make a timely objection and request an admonition to cure any harm.” (People v. Frye (1998) 18 Cal.4th 894, 969.) “A defendant’s conviction will not be reversed for prosecutorial misconduct, however, unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct.” (People v. Crew (2003) 31 Cal.4th 822, 839.)
Appellant contends the prosecutor engaged in prosecutorial misconduct in three ways during closing argument: (1) she commented on matters outside the evidence; (2) she maligned defense counsel and attacked the credibility of appellant’s defense; and (3) she commented on defendant’s failure to testify at trial.
A. Comments on matters outside the evidence
Appellant contends the prosecutor made four references to matters outside the record in her closing argument, which he contends constituted prejudicial prosecutorial misconduct.
First, appellant challenges the prosecutor’s statement, “And when the Defense did their opening statement, they said, do you recall, everybody in this case has something they don’t want you to hear.” Defense counsel did not object to this statement, so any challenge to it is waived. Additionally, the statement indicates it was not the prosecutor who suggested “everybody in this case has something they don’t want you to hear,” but defense counsel in his opening argument. After making the statement in her closing arguments, the prosecutor reviewed some of the evidence, then asserted “there is nothing that we don’t want you to hear.” The prosecutor’s statements constituted legitimate argument in response to the defense argument.
Second, appellant challenges the prosecutor’s assertion that the defense insinuated Crystal had no legitimate reason for not letting appellant see his child, and the statements that followed it: “Crystal got on the stand in the morning and was under a court order not to discuss Hector threatening her daughter’s life. The Defense hounded her, asking her questions, ‘You just didn’t want him to see her. You wanted to have control over this.’ And after that, the Court finally lifted the order and let her talk about why she didn’t want Hector to see his daughter. ¶ Ladies and gentlemen, you saw how angry she was. I submit to you that the reason that she is so angry at Mr. Howard that morning is because Mr. Howard knew she could not answer those questions and kept asking her about that.” Defense counsel objected that “[t]here’s no proof of that,” and “[t]hat’s making both of the attorneys witnesses, a – the Court a witness.” He asked that the jury be instructed to disregard “the very last phrase.” The court overruled the objection, concluding the statement was argument.
Appellant now argues that the court’s earlier ruling regarding the scope of admissible evidence (excluding evidence that appellant threatened his daughter’s life) was not evidence, so the prosecutor’s argument was not based on any evidence introduced at trial. Appellant did not object at trial to the portion of the prosecutor’s argument referring to the court order and its scope; he only objected to the final comment concerning defense counsel’s knowledge of the order and questioning of the witness in spite of it. Thus, the challenge to the earlier portion of the argument has been waived. Additionally, there was evidence admitted concerning the limitations on Crystal’s testimony. Crystal testified that she did not mention certain things, including appellant threatening their daughter’s life, “[b]ecause [she] was told the judge said not to.” Thus, the argument was not based on matter outside the evidence.
Third, appellant challenges a reference to a 911 tape: “Mr. Howard brought up the 911 tapes weren’t – ladies and gentlemen, he could have played them. He has the reports of the 911 tapes.” Appellant objected that he did not have the tapes. His objection was sustained. Appellant failed to request an admonition to the jury to disregard the reference. Such an admonition would have been sufficient to cure any harm arising from that brief reference. It is not “reasonably probable that … a result more favorable to the defendant would have been reached” if the reference had not been made. (People v. Crew, supra, 31 Cal.4th at p. 840.)
Finally, appellant challenges the prosecutor’s reference to a tape of Crystal’s statement to the police: “So he [defense counsel] plays that part of the tape that says, ‘Were you drunk?’ ‘Yes.’ I object, let’s play the whole statement. No, we don’t want to do that.” Defense counsel objected that he did not play the tape. The court sustained the objection, and the prosecutor withdrew the remark. Again, defense counsel failed to request an admonition to cure any harm caused by the statement. The jury was aware that the portion of the tape played at trial concerned other testimony and did not include statements about being drunk, so it is unlikely the jury was misled; it is unlikely the reference to playing the tape affected the jury’s decision. It is not “reasonably probable that … a result more favorable to the defendant would have been reached” if the reference had not been made. (People v. Crew, supra, 31 Cal.4th at p. 840.)
We conclude the challenged statements did not constitute prejudicial misconduct.
B. Maligning defense counsel and the defense case
A prosecutor engages in misconduct by impugning the integrity of defense counsel. (People v. Bell (1989) 49 Cal.3d 502, 538.) “In addressing a claim of prosecutorial misconduct that is based on the denigration of opposing counsel, we view the prosecutor’s comments in relation to the remarks of defense counsel, and inquire whether the former constitutes a fair response to the latter.” (People v. Frye, supra, 18 Cal.4th at p. 978.) Where the focus of prosecutorial comments is on the evidence adduced at trial, rather than on the integrity of defense counsel, it is proper. (Ibid.) Moreover, the “‘prosecutor has wide latitude in describing the deficiencies in opposing counsel’s tactics and factual account.’” (People v. Farnam (2002) 28 Cal.4th 107, 171.)
“To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] 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. [Citation.]” (People v. Frye, supra, 18 Cal.4th at p. 970.)
Appellant contends two statements made by the prosecutor during closing argument constituted personal attacks on defense counsel and the credibility of appellant’s defense. The first statement appellant challenges is the statement, quoted previously, that defense counsel “hounded” Crystal by questioning her about why she would not let appellant see Amiya, when she was prohibited from discussing that subject by a court order. The second statement appellant challenges is the statement that defense counsel played part of a tape of Crystal’s statement to the police, but objected to playing the entire tape. Appellant contends these comments implied appellant’s defense “was false, misleading, and contrived.”
The quote appears at page 14 in section IV(A), ante.
Appellant did not object to the characterization of his questioning as hounding. He objected only to a subsequent statement suggesting Crystal was angry at defense counsel because he knew she was prevented by court order from answering his questions, but he continued to ask them. Defense counsel objected that there was “no proof of that” and that it was making the attorneys and the court witnesses. He requested that the jury be instructed to disregard “the very last phrase,” which concerned Crystal’s anger about the continued questioning, not the statement about hounding. Thus, appellant did not preserve this claim of prosecutorial misconduct by making a timely objection on the same ground now asserted and requesting an admonition to the jury to disregard the challenged remark. In any event, the “‘prosecutor has wide latitude in describing the deficiencies in opposing counsel’s tactics and factual account’” (People v. Farnam, supra, 28 Cal.4th at p. 171), and a single instance of characterizing defense counsel’s tactics in unflattering terms does not constitute prejudicial misconduct.
Regarding the statement about defense counsel playing the tape of Crystal’s statement to the police, defense counsel objected that he did not play the tape. The prosecutor immediately withdrew the statement, implicitly acknowledging the validity of the objection, and the court sustained the objection. The jury had heard the tape and knew what it contained. The only reasonable inference the jury could have drawn was that the prosecutor was mistaken in her remark, not that the defense was in any way “false, misleading or contrived.”
Appellant’s claim of prosecutorial misconduct based on denigration of defense counsel or the defense case is without merit.
C. Commenting on appellant’s failure to testify
Appellant contends the prosecutor indirectly commented on appellant’s failure to testify on his own behalf when she made the following argument: “I have not heard any motive at all from the Defense for Crystal to make this up. What motive is there? What can she possibly get out of making this up, ladies and gentlemen? She doesn’t need to do this to keep him away from her daughter. She doesn’t need to do this to keep him away from her if there is a valid restraining order, he’s abiding by it. What is the motive for her to lie here? What is the motive for Tonya to lie or come into court and make something up? There is no motive. No motive has been established. ¶ Who has the motive to make stuff up here?” When defense counsel objected, stating that appellant had not testified, the court interjected its understanding that the comment was directed toward other witnesses who testified, which the prosecutor confirmed.
Under Griffin v. California (1965) 380 U.S. 609, “error is committed whenever the prosecutor or the court comments upon defendant’s failure to testify.” (People v. Vargas (1973) 9 Cal.3d 470, 475.) This rule, however, “‘does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses.’” (Ibid.) In Vargas, the prosecutor stated in closing argument that “there is no denial at all” that defendants were at the scene of the crime. (Id. at p. 474, italics omitted.) The court concluded this statement was error, because “the word ‘denial’ connotes a personal response by the accused himself. Any witness could ‘explain’ the facts, but only defendant himself could ‘deny’ his presence at the crime scene. Accordingly, the jury could have interpreted the prosecutor's remarks as commenting upon defendant's failure to take the stand and deny his guilt.” (Id. at p. 476.)
In People v. Medina (1974) 41 Cal.App.3d 438, there were five percipient witnesses to what occurred at the scene of the murders. Three testified; the other two were the defendants. In closing argument, the prosecutor observed that the testimony of the three witnesses who testified was unrefuted. (Id. at p. 457.) He argued, “‘No one has come forward and said that it is false. No one has come before you to show you it wasn't that way. You have not heard that.’” (Ibid.) The court concluded there was Griffin error. “The net effect of these passages in combination was to urge the jury to believe the testimony of the three accomplice witnesses because the defendants, who were the only ones who could have refuted it, did not take the stand and subject themselves to cross-examination and to prosecution for perjury.” (Ibid.)
In contrast to Vargas and Medina, the prosecutor in this case did not argue that the prosecution witnesses’ testimony was unrefuted or not denied. She argued that Crystal and Tonya had no motive to lie, then questioned, “Who has the motive to make stuff up here?” Appellant concedes his defense strategy was to challenge Crystal’s credibility. The prosecutor’s argument addressed that issue, suggesting the defense had not shown Crystal had any motive to lie or “make stuff up.” These were comments on the state of the evidence and on the failure of the defense to introduce evidence establishing a motive to lie. In context, the final question suggests that, if any witness had a motive to lie, it was not Crystal or Tonya. The court and the prosecutor clarified this in response to appellant’s objection. Consequently, the prosecutor’s remarks could not reasonably be construed as a comment on appellant’s failure to testify.
Appellant argues that only he could have supplied Crystal’s motive to lie, so the prosecutor’s comments could be reasonably understood to suggest appellant would have taken the stand and testified to Crystal’s motive if any had existed. He contends the statements were therefore a comment on his failure to take the stand. Appellant, however, was not the only potential source of evidence that Crystal had a motive to lie. Her own testimony could have been used. Testimony of family members or friends of appellant or Crystal could have been used, to the extent they had observed any events that might give Crystal a reason to lie about appellant’s actions. Documentary evidence could have been used, if, for example, appellant contended her motive was animosity arising out of a custody battle. Thus, this case is unlike Vargas and Medina, where, under the circumstances, defendant was the only possible source of a denial or refutation, and the prosecutor’s argument could therefore be construed as a comment on the defendant’s failure to testify.
The prosecutor did not indirectly comment on appellant’s failure to testify, and her argument did not amount to prosecutorial misconduct.
D. Cumulative misconduct
“[A]lthough single instances of [prosecutorial] misconduct may not require reversal of a conviction, the cumulative effect of a pattern of such conduct may. [Citation.]” (People v. Frye, supra, 18 Cal.4th at p. 978.) Appellant contends the prosecutor’s remarks constituted a pattern of misconduct, and “it is inconceivable that the cumulative impact of the improper comments by the prosecutor might be harmless.” In each instance of asserted misconduct, either defense counsel failed to object or failed to object on the grounds now asserted; defense counsel objected and the objection was sustained, but no admonition to the jury to disregard the comment was requested; or the prosecutor’s comment was not misconduct. Separately or cumulatively, the challenged argument did not render the trial fundamentally unfair, or amount to a deceptive or reprehensible means of persuasion as to which there is a reasonable likelihood the jury was misled. Thus, there was no prejudicial misconduct.
DISPOSITION
The judgment is affirmed.
WE CONCUR: CORNELL, Acting P.J., KANE, J.