Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County No. 1073884 Nancy Ashley, Judge.
Cliff Gardner, 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 Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, Acting P.J.
A jury convicted appellant Robert Anthony Lopez of murder in the shooting death of Daniel Morales, assault with a deadly weapon upon Gonzalo Villanueva, and of active participation in a criminal street gang. The jury also found true a gang enhancement and a gun enhancement. Lopez contends several errors require reversal of his convictions, including (1) denial of his motion to sever his trial from that of codefendant Manuel Domingo Hernandez, (2) failure to allow him to testify in his own behalf, (3) restriction of cross-examination of Hernandez, (4) instructional error, (5) improper comment by Hernandez’s counsel on Lopez’s failure to testify, (6) prosecutorial misconduct, and (7) cumulative error. We address each of these contentions and conclude they lack merit or, alternatively, any error was not prejudicial. Consequently, we affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
Morales was shot to death at approximately 3:30 p.m. on April 6, 2004. He was 16 years old. Jesus Elizarraraz had known Morales for a year or two and they were close friends.
On April 6, Elizarraraz, Morales, and Villanueva headed to a Modesto shopping mall around noon to “hang out and shop.” They did not have any alcohol, drugs, guns, billy clubs, or any other weapons with them. The three spent about an hour at the mall and then left and headed to a taco stand to get something to eat. It was about 3:00 p.m.
After they pulled into the parking lot of the taco stand, Elizarraraz noticed a car pull up to the red light at the corner; the driver gave Elizarraraz a “mean look.” Elizarraraz identified Hernandez as the driver and said Hernandez yelled something, but there was too much traffic noise to make out the words.
The three friends got their food and sat down at an outside table to eat. About five minutes later they saw Hernandez’s car, which was “full” of people, turn into the lot. The four occupants of the car got out and began walking toward Elizarraraz, Morales, and Villanueva. When the four men approached, Elizarraraz and his friends began walking away because they felt “threatened.”
Elizarraraz and his friends were backing away because “[w]e didn’t want to turn our backs towards them.” As the four men got closer, Villanueva began to run; Elizarraraz and Morales were face to face with the four men. Two of the men with Hernandez took off after Villanueva. As Villanueva was running away, one of the assailants hit him in the back of the head with “some kind of hard thing.” After he was hit, Villanueva kept running. The blow to his head left him with a scar.
Hernandez and Lopez faced Elizarraraz and Morales. Elizarraraz identified Lopez at trial. Hernandez pointed a gun in Elizarraraz’s face. Lopez asked, “Are you ready for this?” A fist fight then broke out between Morales and Lopez. Hernandez turned his attention to the fist fight and Elizarraraz took the opportunity to turn and run. When he got near the bathrooms to the taco shop, Elizarraraz heard three or four gunshots. He could not see who fired because he had his back to the fight as he ran away. After he heard the shots, Elizarraraz climbed onto the roof of the bathrooms and heard Hernandez say, “We’ve got one of them, let’s get out of here.”
Villanueva also heard the shots, but he did not see who fired them. Villanueva remembered Hernandez was wearing a red jersey.
While on the roof, Elizarraraz saw all four assailants run back to their car and climb in; he also saw Hernandez place something under the seat. Hernandez drove away with the other three passengers.
Elizarraraz went to help Morales, who was bleeding. Villanueva returned to help Morales, as did others at the scene. Someone called for the police and an ambulance, and both arrived shortly.
Elizarraraz acknowledged “hanging around” Sureno gang members and that the Sureno color was blue. He denied knowing that Morales or Villanueva were gang members. Modesto is known as a Norteno town; the Norteno gang color is red; Morales was wearing blue the day of the shooting. After the shooting, Elizarraraz moved out of state. The prosecution paid for his travel and lodging expenses so he could return and testify.
Villanueva acknowledged he had served time in prison for two weapons offenses and that he was on parole at the time of trial for a gang-related gun possession offense. He stated he began carrying a gun after Morales was shot. Villanueva acknowledged that he and Morales were Sureno gang members.
Modesto Police Officer David Watson stopped Hernandez’s car shortly after the shooting. Modesto Police Office Jason Stewart handcuffed Hernandez and noticed his hands were “really wet and cold, ” “like if you’re rinsing your hands off and didn’t dry them.”
A search of Hernandez’s car revealed a bicycle security chain and lock. A search of Lopez’s home revealed a BB gun, a.22-caliber handgun, and.22-caliber ammunition. It could not be determined conclusively if the.22-caliber bullets recovered from Morales’s body had been fired by the.22-caliber gun recovered from Lopez’s home.
Villanueva selected Lopez’s picture from a photographic lineup. Elizarraraz and Villanueva made in-field identifications of Hernandez.
Ed Campbell, then a Stanislaus County sheriff’s detective, interviewed Lopez. Lopez denied being at the taco stand at the time of the shooting. He claimed to have been visiting with a friend, R.M., the whole afternoon. He and R.M. had attended a quinceanera practice and then went to a tuxedo shop.
R.M.’s mother testified that she saw R.M. and Lopez talking outside the gate to her yard the afternoon of the shooting. R.M. testified he and Lopez spent the afternoon together. They talked after school for a while, but R.M. could not recall exactly how long, although he thought it may have been a few hours.
A gang expert, Froilan Mariscal, testified that Nortenos claim the color red and Surenos claim the color blue. Mariscal also testified that rival gangs were at “war” with each other, leading to killings. Morales was killed in an area of Modesto known as Norteno territory.
Hernandez was wearing a belt buckle with the letter “N” at the time of his arrest. He also had numerous gang tattoos and had a red bandanna tied around the steering column of his car. Hernandez had admitted to California Youth Authority officials that he was a Norteno and Surenos were his rivals.
Lopez’s gang affiliations included being suspended from school for flashing gang signs, engaging in fights with known Norteno gang members, and committing a theft with known Norteno gang members. Lopez had been arrested for theft, prowling, conspiracy, and obstructing an officer in connection with a theft committed with a Norteno gang member.
Hernandez testified in his own behalf. He admitted gang membership. Hernandez said he saw Lopez standing over Morales, with his arm outstretched, and then heard five or six shots. Hernandez claimed Lopez was the shooter and that he, Hernandez, did not know Lopez had a gun with him.
Lopez did not testify.
The jury found Lopez guilty of one count of murder with a gang enhancement and a gun enhancement in the death of Morales. The jury also found him guilty of assault with a deadly weapon and a gang enhancement for the attack on Villanueva. Lopez also was found guilty of the substantive offense of active participation in a criminal street gang.
The trial court sentenced Lopez to a term of 15 years to life for the murder conviction, plus an additional 25 years to life for the gun enhancement. On the assault, the trial court imposed the midterm of three years, plus five years for the gang enhancement, both to be served consecutively to the murder conviction. A two-year term for the active participation in a criminal street gang offense was ordered stayed.
DISCUSSION
I. Motion to Sever
Prior to trial, Lopez moved to sever his trial from that of his codefendant, Hernandez. Lopez argued the trials should be severed because (1) he and Hernandez had “antagonistic defenses, ” and (2) evidence of Hernandez’s gang affiliation was overwhelming, but evidence to support Lopez’s gang affiliation was “weak.” No mention was made of an alibi defense. The trial court denied the severance motion.
Lopez renewed his motion to sever on the fourth day of trial. The basis of the motion was the gang evidence, particularly pretrial statements made by Hernandez, and the claim of antagonistic defenses in that each defendant would be claiming the other was the shooter. The trial court again denied the motion to sever. The trial court also ruled that no witness was to refer either directly or indirectly to the pretrial statements made by Hernandez, which Lopez claimed, if admissible, would be a basis for severance. Again, no mention of an alibi defense was made in arguing for severance.
On appeal, Lopez contends the trial court violated his state and federal due process rights when it denied his motions to sever his trial.
Standard of review
We review a trial court’s denial of a severance motion for abuse of discretion based on the facts as they appeared at the time the court ruled on the motion. (People v. Hardy (1992) 2 Cal.4th 86, 167 (Hardy).) If the court’s ruling was proper at the time it was made, a reviewing court may reverse a judgment only on a showing that a joint trial “‘resulted in “gross unfairness” amounting to a denial of due process.’ [Citation.]” (People v. Mendoza (2000) 24 Cal.4th 130, 162.) “Even if the court abused its discretion in refusing to sever, reversal is unwarranted unless, to a reasonable probability, defendant would have received a more favorable result in a separate trial.” (People v. Avila (2006) 38 Cal.4th 491, 575; see also People v. Coffman and Marlow (2004) 34 Cal.4th 1, 41.)
Analysis
Penal Code section 1098 provides in pertinent part: “When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order[s] separate trials.” Our Legislature has thus “expressed a preference for joint trials. [Citations.]” (People v. Boyde (1988) 46 Cal.3d 212, 231.) But the trial court may, in its discretion, order separate trials “in the face of an incriminating confession, prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony.” (People v. Massie (1967) 66 Cal.2d 899, 917, fns. omitted; see also § 1098.)
All further statutory references are to the Penal Code unless otherwise stated.
Defendants charged with common crimes involving common events and the same victims present a “‘“classic” case’” for a joint trial. (People v. Carasi (2008) 44 Cal.4th 1263, 1296, 1297; People v. Tafoya (2007) 42 Cal.4th 147, 162.) Separate trials, however, may be ordered in the face of antagonistic defenses. “‘“Antagonistic defenses do not per se require severance, even if the defendants are hostile or attempt to cast the blame on each other.”’” (Tafoya, at p. 162.) If independent evidence against the moving defendant exists, antagonistic defenses do not compel severance. (Ibid.)
At the hearing on the motion to sever, Lopez’s defense counsel argued that Lopez’s defense would be that Hernandez was the killer and it was their understanding Hernandez’s position would be that Lopez was the killer. Lopez’s defense counsel also argued that evidence of Lopez’s gang affiliation was minimal, that of Hernandez was substantial, and Lopez might be convicted “primarily because of the alleged gang purpose of this shooting.” No mention was made during the hearing on the motion to sever that Lopez would be presenting an alibi defense.
Lopez contends that severance was justified because defense counsel argued antagonistic defenses. What Lopez fails to address, but was addressed by the trial court’s instructions to the jury, is that it is irrelevant which one pulled the trigger—Lopez or Hernandez—as each is equally guilty of first degree murder pursuant to aider and abettor liability. “The aider and abettor doctrine merely makes aiders and abettors liable for their accomplices’ actions as well as their own. It obviates the necessity to decide who was the aider and abettor and who the direct perpetrator or to what extent each played which role.” (People v. McCoy (2001) 25 Cal.4th 1111, 1120.) Based on the facts as presented by Lopez’s defense counsel at the time the trial court ruled on the motion, there were not antagonistic defenses. (Ibid; Hardy, supra, 2 Cal.4th at p. 167.)
Lopez also claims, as an additional reason to sever his trial, that evidence of his gang affiliation was minimal and that of Hernandez extensive. Lopez’s claims concerning the evidence are incomplete. Lopez had (1) been involved in two fights at his high school with Norteno gang members against Sureno gang members or others, (2) been suspended from school for flashing gang signs, (3) participated in a theft of jewelry with Norteno gang members, and (4) participated in another incident with a Norteno gang member that constituted prowling, theft, and obstruction of an officer. Expert testimony was presented that Lopez was an active participant in the Norteno criminal street gang.
Contrary to his assertion, Lopez’s case was a classic case for a joint trial -- both defendants faced equivalent charges arising from the same events and almost all the evidence was cross-admissible.
Also, as previously discussed, and as Lopez acknowledges, a motion to sever must be supported by adequate grounds existing at the time the motion is heard. (People v. Miranda (1987) 44 Cal.3d 57, 78; see People v. Cummings (1993) 4 Cal.4th 1233, 1286-1287, fn. 26.) If further developments occur during trial that a defendant believes justify severance, such as the availability of an alibi defense, the defendant must renew the motion to sever and assert the new grounds. Lopez never asserted in the trial court that the alibi defense constituted an antagonistic defense warranting severance. Accordingly, Lopez may not raise the issue on appeal
Furthermore, even if the trial court abused its discretion in refusing to sever the trials of Lopez and Hernandez, there is no reasonable probability Lopez would have received a more favorable result in a separate trial. Even if we were to exclude the testimony of Hernandez, there was significant and substantial evidence of Lopez’s guilt.
Elizarraraz and Villanueva testified that as they were seated eating a meal at a taco stand, Lopez and Hernandez, along with two others, drove into the parking lot and stopped and then headed toward them in a threatening manner. When one of the four men approaching him reached into a pocket, Villanueva turned to run and was hit in the back of the head. Lopez and Hernandez were identified as two of the four men. Elizarraraz also testified that after Villanueva ran, Hernandez held a gun in Elizarraraz’s face while Lopez attacked Morales. When Hernandez turned his back, Elizarraraz ran and shortly thereafter heard shots. Elizarraraz returned to find Morales bleeding from gunshot wounds.
Conclusion
In light of the statutory preference for joint trials (see § 1098), severance remains largely within the trial court’s discretion. (People v. Bradford (1997) 15 Cal.4th 1229, 1314-1315 (Bradford); Hardy, supra, 2 Cal.4th at p. 167.) The trial court here did not abuse its discretion in denying severance.
II. Evidentiary Issues
Lopez contends two errors occurred during the evidentiary portion of the trial. First, he claims he repeatedly asked to testify, but defense counsel refused to let him, and he had not been informed he had a right to testify even over defense counsel’s objections. Second, he contends the trial court’s ruling limiting his cross-examination of Hernandez infringed on his constitutional right to confront witnesses and to receive a fair trial.
Failure to testify
Lopez was represented by two experienced criminal defense attorneys at trial, Mark T. Sullivan and John Hillenbrand. Lopez did not testify during his trial. Essentially, Lopez is accusing defense counsel of having rendered ineffective assistance by not explaining to him that he had the right to testify over their objections.
Although Lopez maintains the record shows that on numerous occasions he requested he be allowed to testify in his own behalf, the only citation to the record for support of this contention is the posttrial motion for a new trial, where Lopez first asserted this position. The motion for a new trial stated that defense counsel prevented Lopez from testifying. Yet, the record on appeal contains no declaration from Lopez attesting to that assertion, apparently because none was filed in the trial court.
Clearly, Lopez had to be aware that defendants in criminal cases could testify; his codefendant Hernandez testified. We are not aware of any point in the trial where Lopez raised with the trial court his desire to testify.
Lopez also apparently was aware of his ability to seek a confidential hearing with the trial court if he had any concerns about his legal representation. He sought and received such a hearing regarding the counsel he had representing him on the motion for new trial. There is no indication in the record he ever sought such a hearing regarding either Sullivan or Hillenbrand during his trial.
The trial court was not required to obtain an affirmative waiver from Lopez of his right to testify. A trial judge is entitled to assume that a defendant represented by counsel who does not testify is “‘“merely exercising his Fifth Amendment privilege against self-incrimination and is abiding by his counsel’s trial strategy.”’” (People v. Alcala (1992) 4 Cal.4th 742, 805.)
There is simply no support in the record for Lopez’s assertion that his defense counsel failed to inform him he had a right to testify over their objections. Lacking any support in the record for Lopez’s assertion, the claim on appeal must be rejected. (People v. Wilson (1992) 3 Cal.4th 926, 936.) A claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding. (Ibid.)
Cross-examination of Hernandez
Lopez also argues that his constitutional right to confront witnesses and to a fair trial was infringed when the trial court precluded him from cross-examining Hernandez on whether Hernandez washed his hands after the shooting in order to get rid of gunshot residue. We disagree.
The trial court deemed the gunshot residue testing that had been performed on Hernandez after arrest unreliable and inadmissible. The trial court precluded Lopez from questioning Hernandez about the gunshot residue testing or the results.
Hernandez testified that he assaulted Villanueva with a chain, but that he did not bring a gun to the scene or fire a gun during the incident. Hernandez testified that unbeknownst to him, Lopez brought a gun to the scene and shot Morales. When Hernandez was stopped by police minutes after the shooting, his hands were cold and wet.
Lopez was permitted to ask Hernandez on cross-examination if Hernandez’s hands were cold and wet when he was arrested; Hernandez responded in the affirmative. Lopez next asked Hernandez if he was trying to “wash something off your hands, ” to which Hernandez responded in the negative. It was then brought out on cross-examination that after the shooting Hernandez stopped his car next to a canal. The water was at the top edge of the canal and the water was cold.
“The Confrontation Clause of the Sixth Amendment guarantees the right of an accused in a criminal prosecution ‘to be confronted with the witnesses against him.’” (Delaware v. Van Arsdall (1986) 475 U.S. 673, 678 (Van Arsdall). “[T]he right of confrontation [under the Sixth Amendment] includes the right to cross-examine adverse witnesses on matters reflecting on their credibility.” (People v. Quartermain (1997) 16 Cal.4th 600, 623.) “‘However, not every restriction on a defendant’s desired method of cross-examination is a constitutional violation…. [U]nless the defendant can show that the prohibited cross-examination would have produced “a significantly different impression of [the witnesses’] credibility” [citation], the trial court’s exercise of its discretion in this regard does not violate the Sixth Amendment.’ [Citation.]” (People v. Chatman (2006) 38 Cal.4th 344, 372.) “[T]he burden is on an appellant to affirmatively show in the record that error was committed by the trial court.” (People v. Alvarez (1996) 49 Cal.App.4th 679, 694.)
Here, Lopez essentially claims his right to confront and cross-examine witnesses was infringed because he was prohibited from cross-examining Hernandez regarding inadmissible evidence. There is simply no right to cross-examine a witness on matters that are inadmissible, even if the inadmissible matter was raised in direct examination. (1 Jefferson, Cal. Evidence Benchbook (Cont.Ed.Bar 4th ed. 2010), Method and Scope of Examination of Witnesses, § 28.87, p. 548; id., § 28.100, p. 555; see also People v. Steele (2002) 27 Cal.4th 1230, 1273 (conc. opn. of George, C.J.).)
Assuming for purposes of argument the trial court erred in this regard, any error was harmless. The constitutionally improper denial of a defendant’s opportunity to cross-examine an adverse witness on matters reflecting on the witness’s credibility is subject to the harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18 (Chapman). “The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt.” (Van Arsdall, supra, 475 U.S. at p. 684.)
Lopez’s defense was an alibi defense; he claimed to be at a tuxedo rental store when the shooting took place. Under the prosecution theory of the case, it did not matter if Lopez or Hernandez was the shooter or an aider and abettor; an aider and abettor is equally guilty with the perpetrator. (§ 30.)
Jurors do not need to agree unanimously by which method the defendant attains his status as a principal in the crime. (People v. Forbes (1985) 175 Cal.App.3d 807, 817.) As the California Supreme Court stated: “Not only is there no unanimity requirement as to the theory of guilt, the individual jurors themselves need not choose among the theories, so long as each is convinced of guilt. Sometimes … the jury simply cannot decide beyond a reasonable doubt exactly who did what. There may be a reasonable doubt that the defendant was the direct perpetrator, and a similar doubt that he was the aider and abettor, but no such doubt that he was one or the other.” (People v. Santamaria (1994) 8 Cal.4th 903, 919.)
III. Instructional Issues
Lopez raises two instructional issues, contending that each of these instructions lightened the prosecution’s burden of proof. First, Lopez argues that CALCRIM No. 358, instructing that a defendant’s pretrial statements should be viewed with caution, not only lightened the prosecution’s burden, but it infringed on Lopez’s due process right and right to present a defense. Second, Lopez claims that CALCRIM No. 370, instructing that the prosecution was not required to prove motive, lessened the prosecution’s burden of proof on the section 186.22, subdivision (a) offense.
CALCRIM No. 358
After his arrest, Lopez waived his Miranda rights and gave a statement to law enforcement. In that statement, he maintained he was not involved in the shooting of Morales, but instead spent the day with a friend, R.M., and that they had gone to a tuxedo store after school. Lopez contends his defense was premised in large part on his pretrial statements and the version of CALCRIM No. 358 instructing the jury to view his oral statements with caution undercut his defense and lightened the prosecution’s burden of proof. The instruction did misstate the law; however, it was not prejudicial.
Miranda v. Arizona (1966) 384 U.S. 346.
Specifically, the instruction given to the jury in Lopez’s trial stated:
“You have heard evidence that the defendants made oral statements before the trial. You must decide whether or not a defendant made any of these statements, in whole or in part. If you decide that a defendant made such statements, consider the statements, along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to such statements.
“You must consider with caution evidence of a defendant’s oral statement unless it was written or otherwise recorded.”
We note that Lopez did not object to, or ask for clarification of, this instruction. The People maintain that the issue is forfeited, citing People v. Spurlock (2003) 114 Cal.App.4th 1122, 1130, for the proposition that “‘“‘a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested an appropriate clarifying or amplifying language.’”’ [Citations.]”
The issue is not forfeited, however, because the version of CALCRIM No. 358 given at Lopez’s trial misstated the law as set forth by the Supreme Court: “‘To the extent a statement is exculpatory it is not an admission to be viewed with caution. [Citation.]’ [Citation.]” (People v. Slaughter (2002) 27 Cal.4th 1187, 1200.) The cautionary language used in this case referred to oral statements without distinguishing between inculpatory and exculpatory statements, suggesting the jury should apply caution to evidence of all oral statements, whether incriminating or not. To comply with Slaughter, the cautionary language should have been limited to evidence of the defendant’s inculpatory statements.
As further support for this conclusion, we note that the current version of CALCRIM No. 358 has been more narrowly drafted. The cautionary language at the end of the instruction now states: “Consider with caution any statement made by (the/a) defendant tending to show (his/her) guilt unless the statement was written or otherwise recorded.” The revision reinforces our conclusion that the version of CALCRIM No. 358 given in Lopez’s case contained error.
We conclude, however, that Lopez was not prejudiced by the error for three reasons. First, the statement Lopez gave to law enforcement apparently was recorded and transcribed and the transcript frequently was referred to during testimony. Consequently, we presume the jury did not apply the cautionary instruction to Lopez’s statement to law enforcement since it was otherwise recorded as the instruction states. Absent some contrary indication in the record, and here there is none, we presume the jury followed the instructions. (Hardy, supra, 2 Cal.4th at p. 208.)
Second, evidence of Lopez’s alibi was not dependent solely on his pretrial statement. Lopez presented other evidence supporting his alibi defense. R.M. testified that Lopez was with him and some other friends the afternoon of the shooting and accompanied them to a tuxedo store. The tuxedo store provided receipts showing that R.M. and his friends rented tuxedos at 5:31, 5:32, and 5:33 p.m. The clerk at the store told law enforcement there was a fourth boy with R.M. and his friends, but that boy did not rent a tuxedo. Clearly, the challenged instruction did not substantially interfere with the presentation of evidence supporting Lopez’s alibi defense.
Third, the jury was instructed on the presumption that a defendant is innocent and the prosecution’s burden of proving its case beyond a reasonable doubt. (See CALCRIM No. 103.)
Lopez was not precluded in any way from presenting evidence of his alibi defense and the jury had before it ample evidence of Lopez’s alibi. It was for the jury to decide whether Lopez’s defense, even if believed, precluded his involvement in the shooting at 3:30 p.m. on April 6, 2004, as testified to by Elizarraraz. The jury received numerous instructions on evaluating the testimony of witnesses and the evidence.
Even assuming the harmless-beyond-a-reasonable-doubt standard set forth in Chapman, supra, 386 U.S. at page 24 is applicable, the error in the present case did not prejudicially affect Lopez’s constitutional rights.
CALCRIM No. 370
CALCRIM No. 370, as given to the jury, stated in relevant part: “The People are not required to prove that a defendant had a motive to commit any of the crimes charged.” Lopez contends that instructing the jury with CALCRIM No. 370 undercut the prosecution’s burden of proof because motive is an element of the section 186.22, subdivision (a) offense. We disagree.
Even though Hernandez objected to instructing the jury with CALCRIM No. 370, Lopez did not join in or voice any objection to this instruction in the trial court. Lopez also did not request any modification to, or clarification of, the CALCRIM No. 370 instruction. The People contend Lopez has therefore forfeited this issue on appeal.
Section 1259 provides in relevant part: “The appellate court may also review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.” This section distinguishes claims of instructional error, which may be asserted even without objection if they affect the defendant’s substantial rights, from other claims of error, which require a trial objection. (See, e.g., People v. Hillhouse (2002) 27 Cal.4th 469, 505-506 (Hillhouse).) Because Lopez contends the giving of CALCRIM No. 370 affected his substantial rights, we decline to consider the issue forfeited and address the merits.
“The test is whether there is a reasonable likelihood that the jury understood the instruction in a manner that violated the defendant’s rights. In making this determination, we consider the specific language under challenge and, if necessary, the instructions as a whole. [Citation.]” (People v. Andrade (2000) 85 Cal.App.4th 579, 585; see also People v. Jablonski (2006) 37 Cal.4th 774, 831.)
Applying this standard, Lopez’s contention fails for two reasons. First, he confuses motive with the specific intent requirement of the section 186.22, subdivision (a) offense. Second, the instructions taken as a whole adequately and properly instructed the jury on the gang offense.
Motive describes the reason a person decides to commit a crime. The reason, however, is different from a required mental state, such as a specific intent. (Hillhouse, supra, 27 Cal.4th at pp. 503-504.) The jury was instructed on the elements of the criminal street gang offense and the specific mental state required for a guilty verdict on that charge. CALCRIM No. 1400 defined the offense of active participation in a criminal street gang, including the specific intent requirement, and CALCRIM No. 252 also emphasized the need to find that the defendant acted with a specific intent in order to return a guilty verdict on this offense. These instructions correctly stated the law. (§ 186.22, subd. (a); People v. Posey (2004) 32 Cal.4th 193, 218.)
It is well settled that the correctness of jury instructions is determined from the entire charge of the trial court and not from consideration of parts of the instruction or from a particular instruction. (People v. Harrison (2005) 35 Cal.4th 208, 252.) There is no reasonable likelihood the jury would have been confused regarding the elements of the gang offense and the prosecution’s burden of proof, considering the instructions as a whole. (People v. Riggs (2008) 44 Cal.4th 248, 314.)
CALCRIM No. 1400 does not use the word “motive” anywhere in the definition of the offense. CALCRIM No. 252 does not use the word “motive.” The jury was instructed that each charged offense was a separate crime and each offense must be considered separately. (See CALCRIM No. 3515.) CALCRIM No. 103 instructed the jury that the prosecution had to “prove each element of a crime … beyond a reasonable doubt.” The jury also was instructed that it was to pay “careful attention to all of these instructions and consider them together.” (See also CALCRIM No. 200.)
We assume that jurors are capable of understanding and correlating all instructions that are given. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.) Based on the totality of the instructions given, we conclude there is no reasonable likelihood the jury misconstrued or misapplied the instructions and therefore no constitutional violation occurred. (People v. Maury (2003) 30 Cal.4th 342, 437.)
IV. Closing Argument Issues
Lopez challenges two statements made during closing argument -- one by Hernandez’s counsel and one by the prosecutor. Lopez contends Hernandez’s counsel committed reversible error by commenting on Lopez’s decision not to testify. He also claims the prosecutor committed misconduct by referring to inculpatory evidence never admitted at trial during closing argument. We reject Lopez’s challenges.
Comments by Hernandez’s counsel
During his testimony, Hernandez stated he told detectives at the time of his arrest that “I just want him to man up and tell the truth of what he did.” Hernandez testified he was referring to Lopez when he made this statement. There was no objection to the questions that elicited this testimony or to the answers given by Hernandez.
During closing argument, Hernandez’s counsel stated that Hernandez was the one who “manned up” and that Hernandez “hoped three years ago that [Robert] Lopez would do the same, that he would man up and come forward and admit to what he did.” At this point, Lopez’s counsel objected and asked to make a motion outside the presence of the jury. There was a bench conference that was not reported. After the bench conference, Hernandez’s counsel continued his argument, again stating that Hernandez was the one who “manned up”; Hernandez wanted Lopez to do the same; and Hernandez did not come up with “bogus alibis.” There was no objection to these comments from Lopez’s counsel.
After Hernandez’s counsel concluded his argument and the jury had been dismissed for the weekend, Lopez’s attorney moved for a mistrial based on the comments made by Hernandez’s counsel, which Lopez’s attorney argued amounted to improper comment on Lopez’s failure to testify. The trial court denied the motion, finding that counsel’s argument focused on the testimony of Hernandez, the statements Hernandez made to detectives, and Lopez’s alibi defense.
Lopez contends he was denied a fair trial by virtue of the comments made by Hernandez’s counsel. The People argue Lopez has forfeited this issue by not objecting during Hernandez’s testimony or objecting during counsel’s argument.
The Fifth Amendment prohibits comment by the prosecutor on a defendant’s failure to testify. (Griffin v. California (1965) 380 U.S. 609, 615 (Griffin).) In a joint trial, comment by an attorney representing one defendant on the failure of a codefendant to testify violates the codefendant’s right to a trial free of comment on his or her silence at trial. (People v. Jones (1970) 10 Cal.App.3d 237, 243-244.)
Hernandez’s testimony about wanting Lopez to “man up” was admitted without objection. Having failed to object to this evidence, Lopez cannot complain about its admission. (Evid. Code, § 353, subd. (a).) As for the comments of Hernandez’s counsel during closing argument, there was no objection made on the record until after counsel concluded his closing argument. A criminal defendant forfeits an appellate claim of Griffin error by failing to object at trial. (People v. Valdez (2004) 32 Cal.4th 73, 127 (Valdez); People v. Williams (1997) 16 Cal.4th 153, 254 [subsequent arguments of prosecutorial misconduct in a motion for new trial do not substitute for a timely objection].)
Assuming arguendo any claim of error has been preserved, the comments by Hernandez’s counsel reasonably could be deemed a fair comment on the state of the evidence, falling outside the purview of Griffin. (Valdez, supra, 32 Cal.4th at p. 127.) When making the challenged comments during closing argument, Hernandez’s counsel made the remarks in the context of discussing Hernandez’s testimony, Hernandez’s statements to the detectives, and Lopez’s alibi defense. Counsel are given wide latitude during closing argument to make fair comments on the evidence, including reasonable inferences or deductions to be drawn from it. (People v. Hill (1998) 17 Cal.4th 800, 819.)
Assuming arguendo the comments by Hernandez’s counsel in closing argument were improper, reversal is required unless the error was harmless. (Hardy, supra, 2 Cal.4th at p. 157.) “‘[O]blique’” or “‘indirect’” references to a codefendant’s failure to testify, made by counsel for another defendant, are harmless error. (Id. at p. 158.)
At most, the comments made by Hernandez’s counsel amount to oblique or indirect references on Lopez’s silence. Hernandez’s counsel commented on Lopez not concurring with Hernandez’s version of the events, not Lopez’s failure to testify. Hernandez’s counsel never asked the jury to infer Lopez’s guilt from his silence; he asked the jury to find Hernandez’s testimony and version of the case credible. A codefendant is allowed to emphasize to a jury that his view of the case is credible because he took the stand and testified and submitted to cross-examination. If some argument indirectly or obliquely refers to a codefendant’s silence, such error generally is harmless. (Hardy, supra, 2 Cal.4th at p. 158; see U.S. v. Patterson (9th Cir. 1987) 819 F.2d 988, 1506 (Patterson).)
The jury was instructed with CALCRIM No. 355, which stated: “A defendant has an absolute constitutional right not to testify. He or she may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt. Do not consider, for any reason at all, the fact that a defendant did not testify. Do not discuss that fact during your deliberations or let it influence your decision in any way.” As did the appellate court in Patterson, we conclude any error was harmless in light of the instruction to the jury and the oblique reference by Hernandez’s counsel. (Patterson, supra, 819 F.2d at p. 1506.)
Prosecutor’s comment
Lopez contends the prosecutor committed prejudicial misconduct by mentioning a videotape showing Hernandez’s car at the crime scene; there was no evidence of such a videotape. Lopez argues further that the trial court’s admonition did not cure the harm.
During closing argument, the prosecutor questioned Hernandez’s portrayal of himself as an “assister of law enforcement” and stated that Hernandez did not acknowledge being at the scene until the detective told Hernandez “there’s a videotape from the Quik Stop that shows your car there and the tire tracks.” Both Lopez’s and Hernandez’s attorneys interposed an objection. The basis for the objection was that the remark misstated the evidence. The trial court admonished the jury:
“It is argument, and what the attorneys say is not argument. You heard the evidence in the case. So [the prosecutor] will keep his argument to the evidence that’s presented.”
“In general, ‘“‘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.’”’ [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1184-1185.) “In the absence of a timely objection the claim is reviewable only if an admonition would not have otherwise cured the harm caused by the misconduct.” (People v. Gutierrez (2002) 28 Cal.4th 1083, 1146.)
The People contend Lopez has forfeited this claim of error by objecting on the basis that the prosecutor’s comment misstated the evidence, not that it was prosecutorial misconduct. We reject this contention. A prosecutor’s misstatement of the evidence may constitute prosecutorial misconduct. (People v. Bell (1989) 49 Cal.3d 502, 536-540 [improper for prosecutor to mislead judge or jury by misstating facts or law].) Lopez, however, has forfeited any claim that the admonition failed to cure any harm.
Here, Lopez’s counsel objected to the remark and the judge admonished the jury. The judge misspoke when she stated, “what the attorneys say is not argument.” It is apparent the judge meant to state that what the attorneys say is not evidence. Lopez, however, did not request that the judge correct this admonition. The judge did not specifically admonish the jury to disregard the prosecutor’s comment. Again, Lopez did not request that the judge expand on the admonition to the jury and instruct the jury to disregard the remark. A proper admonition would have cured any error arising from the prosecutor’s argument mentioning excluded evidence completely. (People v. Bradford, supra, 15 Cal.4th at p. 1335.) Because an admonition would have cured any prejudice from the alleged misconduct, Lopez cannot assert prejudicial error arising from this remark in this appeal. (People v. Silva (2001) 25 Cal.4th 345, 373; People v. Sully (1991) 53 Cal.3d 1195, 1248.)
Assuming arguendo the remark was prosecutorial misconduct and the admonition failed to cure the harm, Lopez is not entitled to a reversal on the grounds of prosecutorial misconduct unless it is reasonably probable that a result more favorable to him would have been reached without the misconduct. (People v. Barnett (1998) 17 Cal.4th 1044, 1133.)
“When the issue ‘focuses on 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.’ [Citations.]” (People v. Cole (2004) 33 Cal.4th 1158, 1202-1203.) In making the pertinent 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.]’ [Citation.]” (People v. Gurule (2002) 28 Cal.4th 557, 657.) If we find misconduct occurred, we then determine “whether it is ‘reasonably probable that a result more favorable to the defendant would have occurred’ absent the misconduct. [Citation.]” (People v. Welch (1999) 20 Cal.4th 701, 753 (Welch).)
Before commencing deliberations, the jurors were instructed by the trial court that nothing the attorneys say constitutes evidence and that in “their opening statements and closing arguments, the attorneys discuss the case, but their remarks are not evidence.” (See also CALCRIM No. 104.) The jury also was instructed that “You must use only the evidence that was presented in this courtroom.” (Ibid.) The instruction to the jury that statements made by the attorneys during trial are not evidence reduced or eliminated the chance that the jury relied on any improper statement of facts by the prosecution. (People v. Boyette (2002) 29 Cal.4th 381, 453.) Absent evidence in the record to the contrary, and here there is none, it is presumed the jury followed the instructions. (People v. Mickey (1991) 54 Cal.3d 612, 689 & fn. 17.)
Further, the prosecutor’s remark was one isolated comment and it was not directed at Lopez or Lopez’s defense. The remark was made in the context of arguing Hernandez’s credibility and testimony. It mentioned a videotape of Hernandez’s car at the scene of the shooting. A logical understanding of the remark is that the reference by the officer was a falsehood designed to get Hernandez to admit being at the scene. Thus, Lopez’s claim that the jury potentially could wonder why Lopez did not produce the videotape to prove he was not at the scene is pure speculation.
Even if the prosecutor engaged in misconduct, a review of the entire record demonstrates the trial was not so fundamentally unfair so as to trigger the Chapman standard of prejudicial error. Lopez’s theory of the case, the fleeting nature of the prosecutor’s remark, and the proper instructions to the jury regarding statements by attorneys in closing argument means it is not reasonably probable a result more favorable to Lopez would have been achieved in the absence of the remark. (Welch, supra, 20 Cal.4th at p. 753.)
V. Cumulative Error
Lopez fails to persuade us any prejudicial error occurred, so his cumulative error argument fails. (People v. Heard (2003) 31 Cal.4th 946, 982.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: DETJEN, J., FRANSON, J.