Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County Super. Ct. No. FWV028218. Ingrid Adamson Uhler, Judge.
David Joseph Macher, under appointment by the Court of Appeal, for Defendant and Appellant Christopher Benjamin Martinez.
Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant Ken Aldo Marchesin.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch, Supervising Deputy Attorney General, and William M. Wood and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P. J.
I. INTRODUCTION
Defendants Christopher Benjamin Martinez and Ken Aldo Marchesin were both convicted of first degree murder (Pen. Code, § 187); conspiracy to commit a crime (§ 182, subd. (a)(1)); residential robbery (§ 211); and residential burglary (§ 459) and the jury found true the special allegations that the murder was committed during commission of robbery and burglary (§ 190.2, subd. (a)(17)). Both defendants were sentenced to life without the possibility of parole.
All further statutory references are to the Penal Code unless otherwise specified.
On appeal, Martinez contends: (1) the prosecutor engaged in misconduct in cross-examining Martinez and in argument to the jury; (2) the trial court abused its discretion in sustaining the prosecutor’s objection to defense counsel’s closing argument; (3) the trial court erred in instructing the jury on flight after crime; and (4) the judgment should be reversed under the cumulative error doctrine. Marchesin contends the evidence was insufficient to support his conviction based on aiding and abetting or conspiracy. Both defendants contend the abstract of judgment must be corrected to delete reference to a parole revocation fine.
The People concede that the trial court erred in sustaining a prosecution objection during Martinez’s closing argument, but contend the error was harmless. The People also concede that the abstracts of judgment should be corrected for both defendants. We agree with the People as to both issues. We find no other prejudicial errors.
II. STATEMENT OF FACTS AND PROCEDURAL BACKGROUND
A. Procedural Background
Martinez, Marchesin, and codefendant Carlos Montgomery were charged in an amended information with murder (§ 187, subd. (a); count 1); conspiracy (§ 182, subd. (a)(1); count 2); residential robbery (§ 211; count 3); and residential burglary (§ 459; count 4). The information further alleged that the murder was committed during the commission of robbery and burglary. (§ 190.2, subd. (a)(17).)
Montgomery entered a plea bargain under which he was to receive 18 years four months in prison and was required to testify truthfully as a prosecution witness.
In an earlier trial, the jury found Martinez guilty of conspiracy and residential burglary but was unable to reach verdicts on the murder and robbery counts, and the trial court declared a mistrial as to those counts. Martinez’s retrial on the mis tried counts was joined with Marchesin’s trial on all counts, with each defendant being tried to a separate jury. Marchesin’s jury found him guilty of all four counts, found the murder to be first degree, and found the special circumstance allegations true. Martinez’s jury found him guilty of first degree murder and residential robbery and found the special circumstance allegations true.
The trial court sentenced Marchesin and Martinez to life without possibility of parole for their murder convictions and imposed and stayed the middle term as to each other count under section 654.
The facts are taken from the joint trial because Martinez raises no issues regarding his first, separate trial, which resulted in his convictions for conspiracy and residential burglary.
The victim, 80-year-old Richard Harter, lived alone in a mobilehome park in Upland; Marchesin was his next door neighbor. On June 3, 2003, the victim’s son called the Upland Police Department because he had been unable to reach his father by telephone for several days. Another neighbor of the victim told the police she had not seen the victim for several days, and he had not told her he would be away. The victim’s car, a white 2001 Mercury Marquis, was not in his carport.
Police officers Cotton and Todd entered the victim’s mobilehome and found it had been ransacked, although there were no signs of forced entry. Cabinet doors and drawers were open or ajar throughout the victim’s mobilehome, and some of the contents of drawers had been dumped out. The wall phone had been torn off. A heavy dresser with broken legs had been placed to block the bathroom door from opening.
The two police officers moved the dresser and entered the bathroom, where they discovered the victim’s body on the floor. The victim had been severely beaten. He had suffered at least 19 blows to the head, he had two defensive wounds on his right arm, and his skull had been fractured in numerous places. The cause of death was multiple blunt force head injuries. The distribution of the injuries and the pattern of blood spatter indicated the wounds had been inflicted from several angles, and the wounds were consistent with the victim having been hit while he was sitting on the toilet, while he was getting up, and when he was on or near the floor. A newspaper dated June 1 was strewn on the floor.
An officer spoke to Marchesin at the mobilehome park. Marchesin said he had spoken to the victim on May 29 and June 1. Marchesin said he had heard the victim’s car leaving, and he had picked up the victim’s newspapers and put them in the back of the stairwell to the residence. Marchesin said the victim had told him the victim was going to Florida.
On June 3, an officer spotted the victim’s vehicle turning into an apartment complex in Upland. The officer took the driver of the vehicle — Martinez — into custody. Martinez was wearing a watch that belonged to the victim. Martinez asked the officer, “Why have I been arrested? Did that guy say that I hit him?”
Martinez was interrogated at the police station. He said he had obtained the victim’s car as a loaner the same day he was arrested, and he did not know who owned the car. He denied stealing the car or beating the victim.
Numerous latent fingerprints recovered from the victim’s car matched Martinez’s fingerprints, and two latent palm prints matched those of Martinez’s girlfriend, Sarah Grant. No prints matched Montgomery or Marchesin. A suitcase in the trunk matched luggage found in the victim’s mobilehome, and other items that belonged to the victim were found in the trunk.
Grant had been staying with a man named Bill Parker at a motel in Indio for a week or two before the murder. During their stay, they used a lot of methamphetamine. Parker wanted Grant to dance at parties, but she refused, and after he commented that some girls would do anything for money, she started looking for a ride away from Indio. On June 1, Grant got a ride to a house in Rialto where she had previously done drugs, but the driver refused to take her to her Upland home.
On June 1, Grant spoke to Martinez on the telephone and asked him to pick her up in Rialto. A short time later, Martinez and Montgomery picked her up in a white car. They drove to Indio where they spent the night in a motel and used drugs. Grant had never seen the white car before, and when she asked about it, Martinez said he had bought it off a showroom floor. Grant knew Martinez was collecting Social Security and was not working; he told Grant he had borrowed money from a friend to buy the car, but later he said he had taken the car from a man who lived in a mobilehome park. Martinez said the man, Marchesin’s neighbor, was 81, his wife had died of cancer, and the man’s son was a truck driver. Martinez said he had sneaked into the mobilehome while Montgomery stood outside as a lookout. The victim watched television while Martinez hid. When the victim got up to go to the bathroom, Martinez followed him and hit him over the head more than once while he was on the toilet. Martinez left the bathroom, but returned and hit the victim again after he heard the victim moaning. He then moved the dresser in front of the bathroom door. He took the victim’s keys and wallet and left. He told Grant he had committed the crimes so he could steal a car to pick her up in Palm Springs.
On June 3, Martinez tried to buy a car from a dealership in Ontario for $3,000. Martinez and a woman had arrived at the dealership in a large white or silver late model car. Martinez had $800 in cash for the down payment but could not come up with the remaining cash required, so he and Grant left the dealership.
Montgomery testified he had gone to Marchesin’s mobilehome on May 30. Martinez was also there, and they drank beer and used methamphetamine. Martinez talked about needing a ride to pick up his girlfriend in Indio, and Marchesin suggested taking his neighbor’s (the victim’s) car because the neighbor was an old man who lived alone and who appeared to have money. The three discussed knocking the victim out, taking his keys, and taking the car. They first planned that Martinez would go into the victim’s mobilehome to steal his car keys while Marchesin distracted the victim by talking to him about cable or satellite service. Marchesin left to talk to the neighbor but returned less than a minute later, saying that the victim was not interested in the cable or satellite service.
A new strategy was discussed: Martinez and Montgomery would go inside and knock out the victim. However, Montgomery changed his mind about going in, and he testified Marchesin did “[n]ot really” have a role in the new plan.
Martinez entered the victim’s mobilehome carrying a sock that appeared to contain a 10- to 12-inch-long tool. Marchesin and Montgomery waited on Marchesin’s porch. Marchesin told Montgomery that the victim’s car had started — that was the signal for Montgomery to leave Marchesin’s mobilehome to rendezvous with Martinez nearby. Montgomery carried a bag with Martinez’s property to where he met Martinez driving the victim’s white Mercury. They started driving toward Indio, but on the way, they stopped to buy new Adidas tennis shoes and sweat suits.
Martinez told Montgomery that he had hit the victim over the head and had continued to hit him because he did not go down. Martinez said the victim was still breathing when he left, and Martinez moved the dresser in front of the bathroom door. Montgomery told the police Martinez had said he had obtained the tool in the sock from Marchesin. For his role in the crimes, Montgomery received $200 in cash, a cell phone, a camera, and other property from the victim’s house.
Martinez testified in his own behalf. He denied killing the victim and he said Montgomery and Grant had lied when they said he had confessed the killing to them. Martinez testified he had spent the weekend before the crimes with Marchesin using drugs. On Sunday, June 1, he left to buy drugs and cigarettes and was gone for over an hour. When Martinez returned, he found Marchesin and Montgomery standing next to the victim’s car. Marchesin offered to let Martinez use the car to pick up Grant in exchange for some drugs. Martinez testified he had about $900 of his own money from various sources that weekend.
Martinez testified he had felt his relationship with Grant was over after she had gone to Indio with another man, so “it really wasn’t important for [him] to go get [her],” but he had done so at Marchesin’s suggestion. He denied he had discussed stealing a car and testified, “At any point in time I could have borrowed a car from my family. I had more than enough money in my pocket to rent a car.”
Martinez testified he had found the victim’s watch on the gear selector of the victim’s car. He denied telling Grant about how the victim had died or about taking anything out of the victim’s home. He denied asking the police at the time of his arrest if “the guy [said] I hit him.” He admitted lying to the police during his interrogation because he did not want to implicate Marchesin and he was irritable from not having slept for days before his arrest.
Other facts are set forth in the discussion of the issues to which they relate.
III. DISCUSSION
A. Sufficiency of Evidence of Marchesin’s Guilt
Marchesin’s jury was instructed on both conspiracy and aiding and abetting residential burglary and robbery and on the doctrine of liability for natural and probable consequences. The prosecutor argued both the conspiracy and aiding and abetting theories to the jury. The jury found Marchesin guilty as charged. Marchesin now contends the evidence was insufficient to support the jury’s verdict under either theory.
1. Standard of Review
When a criminal defendant challenges the sufficiency of the evidence to support his conviction, we examine the evidence to determine whether any rational trier of fact could have found the elements of the offense true beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) Substantial evidence is evidence that 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.) Reversal on the ground of insufficient evidence “is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331; accord, People v. Hughes (2002) 27 Cal.4th 287, 370.) “‘“Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.]” . . . .’ [Citation.]” (People v. Barnes (1986) 42 Cal.3d 284, 306.) The trier of fact is entitled to believe and accept as true only part of a witness’s testimony and disregard the rest, and on appeal, we must accept the part of the testimony that supports the judgment. (In re Daniel G. (2004)120 Cal.App.4th 824, 830.)
2. Analysis
Preliminarily, we note that although Marchesin challenges the sufficiency of the evidence to support his conviction, his argument is based on inferences favorable to his own position rather than to the jury’s verdict, and he has omitted from his statement of facts evidence that supports the jury’s verdict — namely, his own statements to the police.
a. Argument that two plans were created
Marchesin’s argument is based on a narrow and artificial reading of the record, focusing on one version of the events leading up to the murder derived from Montgomery’s testimony and statements to the police. Marchesin posits that the planning before the crimes produced two distinct plans and conspiracies, and he was party to only the first — the plan for Marchesin to distract the victim while Martinez entered the victim’s home and took his car keys. However, Marchesin’s own statements to the police, along with Montgomery’s testimony and statements, viewed in the light most favorable to the judgment, indicate that the single plan was to enter the victim’s home, knock him out, and take his car and other belongings, although defendants discussed more than one way of carrying out that plan.
During a videotaped interview on June 17, Marchesin at first denied any involvement in or knowledge of the crimes. Later, however, he admitted Martinez was going to “jack the car” so Martinez could go save his girlfriend and also take some of the victim’s property. Marchesin agreed to, and did, distract the victim by talking to him about the satellite company while Martinez entered the victim’s home. Marchesin said Martinez had intended to knock the victim out, although Marchesin had told Martinez not to kill the victim. Marchesin told Martinez that when Martinez was finished with the car, he should leave it by the side of the road and wipe off his prints. The videotape of Marchesin’s interview was played for the jury, and a transcript of the videotape was marked as an exhibit and entered into evidence against Marchesin.
Thus, Marchesin’s own statements fully support his liability as an aider and abettor and co conspirator to the plan to enter the victim’s house, knock him out, and take his property. Moreover, Montgomery likewise told a police officer that the three of them had come up with a plan to enter the victim’s house and knock him out so they could steal the victim’s car and rob him. As the prosecutor argued, the conspiracy among Marchesin, Martinez, and Montgomery was “to steal, burglarize and rob Mr. Harter in this case, to take his car, to take his possession[s]. There was also a conspiracy among the three of them that if this could not be done peacefully then Mr. Harter would be knocked out in order to facilitate this.”
To support his argument that there were two distinct plans, Marchesin relies on People v. Horton (1995) 11 Cal.4th 1068, among other authorities. In that case, the trial court held that a witness’s agreement to drive the defendant to a drug dealer’s apartment the evening before the dealer’s murder, “an arrangement that never was carried out, did not constitute evidence of [the witness’s] having planned, encouraged, or instigated the commission of a robbery or any other crime committed by defendant at a future time.” (Id. at p. 1115.) Here, in contrast, Martinez entered the victim’s mobilehome less than an hour after Marchesin had initially tried unsuccessfully to divert the victim’s attention, and the record indicates that defendants continued to discuss ways of stealing the victim’s car during the interim.
Moreover, even if we accept for purposes of argument only that two distinct plans were created, the record contains evidence — in Marchesin’s own words — from which the jury could reasonably have found that the first plan in fact succeeded. Marchesin told the police he believed Martinez had entered the victim’s mobilehome while Marchesin was talking to the victim to distract him: “And I ain’t seen Chris go in but I do believe he went into this old guys [sic] place when I was talking to him.” (Italics added.) This statement, combined with the other evidence, established overwhelmingly that Marchesin conspired to commit or aided and abetted the commission of the burglary and robbery of the victim.
b. Withdrawal from a conspiracy or from aiding and abetting
Marchesin’s theory also ignores the law concerning withdrawal from a conspiracy or from aiding and abetting. A co conspirator seeking to withdraw must communicate such withdrawal to his co conspirators. (See People v. Belmontes (1988) 45 Cal.3d 744, 793 [“to withdraw from a conspiracy, one need only make an affirmative repudiation communicated to his coconspirators”].) And, as the jury was instructed, for a person to withdraw as an aider and abettor, “[f]irst, he must notify the other principals known to him of his intention to withdraw from the commission of those crimes; second, he must do everything in his power to prevent its [sic] commission.” (CALJIC No. 3.03.)
Here, the record does not show that Marchesin took any steps either to notify the others of his intention to withdraw from the commission of the crimes or to prevent their commission.
c. Natural and probable consequences
The evidence was also sufficient to establish that murder was a natural and probable consequence of the crimes (residential burglary and robbery) that Marchesin aided and abetted or conspired to commit. (See People v. Prettyman (1996) 14 Cal.4th 248, 260-261.) Marchesin admitted to the police that Martinez had stated his intention to knock out the victim, although Marchesin said he had tried to dissuade Martinez from doing so. Montgomery told the police that their plan was to knock out the victim so they could steal his car. In another interview, Montgomery told the police that before Martinez entered the victim’s mobilehome, defendants had talked about how many blows it might take to knock him out, and they thought it “might just take two — three hits.” The plan was that Martinez would come up behind the victim and “[h]it him once and then if he doesn’t go down then hit him again, I guess.” Montgomery clarified that the plan was to hit the victim over the head with a tool that Martinez had wrapped up and that he “[m]ost likely” had obtained from Marchesin. Moreover, the victim was elderly, and Marchesin told the police the victim was “dying of cancer.” Murder committed by repeated blows to the head to the elderly victim was a natural and probable consequence of a plan to knock out the victim by hitting him over the head.
We conclude the evidence was sufficient to establish Marchesin’s guilt.
B. Prosecutorial Misconduct
Martinez contends the prosecutor committed multiple acts of misconduct, both during cross-examination of Martinez and during closing argument.
1. Forfeiture
The People argue that Martinez’s claims of prosecutorial misconduct were forfeited because Martinez never raised an objection on that basis in the trial court. As a general rule, a defendant may not raise a complaint about prosecutorial misconduct on appeal unless he made a timely and specific objection in the trial court and requested that the jury be admonished to disregard improper argument or statements. (People v. Stanley (2006) 39 Cal.4th 913, 952.) Assuming arguendo Martinez forfeited his right to appellate review by failing to object in the trial court, we will nonetheless exercise our discretion to address the issue on the merits. (See People v. Smith (2003) 31 Cal.4th 1207, 1215.)
2. Analysis
Under the federal standard, a prosecutor’s intemperate behavior violates the Constitution when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to deny the defendant due process. (People v. Stanley, supra, 39 Cal.4th at p. 915.) Under the state standard, conduct that does not render the trial fundamentally unfair is misconduct if it involves the use of deceptive or reprehensible methods to attempt to persuade the trier of fact. (Ibid.)
a. First instance of alleged misconduct during cross-examination
During the prosecutor’s cross-examination of Martinez, the prosecutor questioned Martinez about how long he had known Marchesin and Montgomery. The following exchange occurred:
“Q Okay.
“So they showed up with a car. They had a car there, right?
“A That’s correct.
“Q They didn’t tell you, ‘Hey, Chris, we’re gonna get you a car so you could go out there and get your girlfriend.’ That didn’t happen, did it?
“A No.
“Q Mr. Marchesin, instead of getting a car — this car didn’t belong to Mr. Marchesin, correct?
“A That’s correct.
“Q Mr. Marchesin, evidently, instead of lending you his own car to get to Indio — he didn’t do that, right?
“A That’s correct.
“Q So your story is that two people who you’ve only known for less — a year and a half or less, who you rarely see, killed an elderly man to get you a car. Is that about it?”
Martinez’s counsel interposed an objection on the ground that the question called for speculation, but the trial court overruled the objection. Cross-examination continued:
“Q Is that about it?
“A I can’t tell you why it was done.
“Q I am asking you a question and maybe I am being vague again. Are you testifying that these two individuals you’ve known a year and a half or less and who you rarely see killed a man to give you a car to pick up your girlfriend?”
Martinez’s counsel interposed an objection on the ground the question had been asked and answered, but the trial court overruled the objection. Defendant then responded, “I don’t think that they did what they did to get me the car to get my girlfriend. Maybe they gave me the car to clean their hands of it. Like I said, I can’t put myself in their shoes.”
Martinez argues that the prosecutor’s questions were argumentative and called for speculation. Even if we accept Martinez’s position for purposes of argument, Martinez nonetheless fails to explain how he might have been prejudiced by those questions. In fact, rather than being prejudicial, the questions actually afforded Martinez the opportunity to speculate about a version of the facts favorable to himself — that Marchesin and Montgomery had taken the car and then had given it to Martinez to “clean their hands of it.”
b. Second instance of alleged misconduct during cross-examination
Martinez argues the prosecutor used cross-examination to badger and lecture him, and cites the following exchange as “typical of the prosecutor’s hectoring style of questioning [him].”
“Q And, of course, for this woman who is not a priority to you[,] you immediately, without asking any questions, get into this car that you probably have seen before and you drive off; is that correct?
“A Should I answer the first question or the last question?
“Q Well, it’s funny, sir. It’s actually one question, but as the Judge has
“A You asked me
“Q Sir, as the Judge
“THE COURT: Just wait until the question is asked. You have an attorney. If he wants to object, he’ll object. Do you understand, Mr. Martinez?
“THE WITNESS: Yes, ma’am.
“[The prosecutor]: See? It’s a funny thing. [Counsel for defendants] and I, we went to law school. That means we get to ask questions, not answer them.
“Do you understand how the procedure works? I don’t have to answer your questions. Do you understand that?
“THE COURT: ‘Yes’ or ‘no’?
“THE WITNESS: Yes.”
Even if we assume, for purposes of argument only, that the prosecutor was hectoring Martinez in this exchange, the exchange did not result in the admission of any evidence unfavorable to Martinez. The prosecutor was merely pointing out Martinez’s duty to comply with trial rules, and Martinez has failed to explain how he might have been prejudiced from the prosecutor’s conduct in this instance.
c. Third instance of alleged misconduct during cross-examination
Martinez contends the prosecutor used Martinez’s slowness in answering questions as an occasion to commit misconduct about whether Martinez was changing his testimony. Earlier, Martinez had denied that he, Marchesin, and Montgomery had had conversations during the weekend as to whether Grant might be in trouble or might need a ride. Then, Martinez testified that the subject “may have been mentioned.” The following exchange occurred.
“Q And are you changing that now and saying all this was discussed?
“A (No audible response.)
“Q Either you are or you aren’t, Mr. Martinez. Does it take you 20 seconds to know that?
“A No, it does not.
“Q So what’s your answer? Is it the same as it has been or are you changing it now?
“A It may have been discussed.
“Q Again, my question is: Is your answer the same as it was before in all these times or is it different now?
“Do you understand what I’m asking you?
“A Yes, I do.
“Q And what is your answer?
“A (No audible response.)
“Q It’s ‘Yes’ or ‘No.’ It’s very simple, isn’t it? Either you’re changing it or you’re not.
“A (No audible response.)
“Q I’m willing to wait until hell freezes over for your answer. Are we going to get one?
“A It may have been discussed.
“Q So you’re changing your testimony; yes or no?
“A Yes.”
Again, even if we accept, for purposes of argument, that the prosecutor was argumentative and was lecturing Martinez, Martinez fails to suggest how the challenged exchange could have been prejudicial to him. Martinez concedes he took an inordinate amount of time to respond to questions. In stating that he would wait “until hell freezes over” for Martinez to respond, the prosecutor was simply pointing out that Martinez could not avoid answering questions simply by delaying in providing his responses. And any prejudice to Martinez arose from the underlying fact that he changed his testimony, not from the prosecutor’s pointing that fact out.
d. Fourth instance of alleged misconduct during cross-examination
Martinez contends the prosecutor made statements during cross-examination that amounted to testimony proffered without being under oath or subject to cross-examination.
The prosecutor reminded Martinez of his prior testimony that he had stopped at a rest stop when returning from Indio, and Martinez confirmed this testimony. The prosecutor then asked, “Would you be surprised to know that there actually is no rest stop between Indio and Upland? The rest stop is actually east of Indio going towards the Arizona border. Would that surprise you?” When Martinez replied, “There is a rest stop area,” the prosecutor stated, “Actually there isn’t, sir, but I’ve got another witness to come in and testify to that.” However, no witness was ever called to testify about the existence of a rest stop.
The prosecutor himself stated that he needed a witness to support the assertion that no rest stop existed, although he failed to produce such a witness. Moreover, in argument to the jury, Martinez’s counsel pointed out that what the prosecutor had said was not evidence and that the prosecutor had never followed up on proving whether there were any rest stops west of Indio. And the trial court instructed the jury that facts stated by the attorneys were not evidence, and that the jury must base its decisions on the evidence. We presume the jury followed that instruction. (People v. Thornton (2007) 41 Cal.4th 391, 441.) We therefore conclude that any misconduct was harmless.
e. Alleged misconduct in argument
Martinez contends the prosecutor committed misconduct in argument to the jury.
Martinez’s counsel had argued that Officer Cotton was inconsistent in his testimony on two points: whether he could have moved the dresser in front of the bathroom door by himself, and whether there had been phone books stacked on the floor to support the dresser. The implication of the argument was that it would have required two people to place the dresser in front of the bathroom door, and that those people had been Marchesin and Montgomery.
In response, the prosecutor argued that the defense theory of the case was a smoke screen without factual support. The prosecutor argued, “Now, what about the smoke screen? We have the dresser. [Martinez’s counsel] in his argument said it took two people to move that dresser. No, that is not what the evidence said. The evidence said that two officers moved it because it was broken, and for one person at that point in time to move it, it would have broken even further; not that they had to do it, but that they did. As a matter of fact, all of the officers testified, in fact, if that dresser was in one piece, they could have moved it by themselves, and that is, again, where we’ve heard something that wasn’t supported by the evidence.” The trial court overruled the objection of Martinez’s counsel that the argument misstated the evidence, but the trial court admonished the jury, “Again, in terms of what the attorneys say during their closing argument, it’s not the evidence. You’ve heard the evidence from the witness stand, and that’s the evidence that you go by.”
We discern no misconduct in the prosecutor’s argument. Officers Cotton and Todd had each testified they had moved the dresser together. Officer Cotton had testified at the preliminary hearing, in response to the question whether he had been able to move the dresser by himself, “No. It took both myself (sic) and Officer Todd to move the dresser.” Officer Cotton testified at trial he could have moved it alone, but clarified that if he had done so, the dresser “would have fallen into pieces.” Officer Todd testified to similar effect. We conclude the prosecutor’s argument concerning the dresser was consistent with the state of the evidence.
The prosecutor also argued, with respect to defense counsel’s argument concerning the inconsistent testimony about whether there had been phone books holding up the dresser, “Look at the photographs. Officer Cotton got up there and said, ‘At the preliminary hearing, yes, it says right there I testified to phonebooks. I don’t remember any phonebooks.’ Look at the photographs. There are no phonebooks. Look at them.” The trial court overruled defense counsel’s objection that the absence of photographs of phone books did not mean there were none.
We also discern no misconduct in the prosecutor’s argument concerning the phone books. The prosecutor acknowledged inconsistencies between Officer Cotton’s preliminary hearing testimony about phone books and his trial testimony that he did not remember phone books, and the prosecutor asked the jurors to look at the photographs from the bedroom that did not show any phone books. He concluded, “Look at the photographs. There are no phonebooks. Look at them.” In our view, the prosecutor’s argument could reasonably be interpreted as correctly stating that the photographs did not show any phone books. Taken in context, the prosecutor’s argument simply asked the jury to make its findings on the evidence as a whole. That was not misconduct.
Moreover, labeling defense counsel’s argument as a smokescreen was not misconduct. (See People v. Stanley, supra, 39 Cal.4th at p. 952 [finding no misconduct when the prosecutor’s remarks were merely responsive to defense counsel’s argument on the state of the evidence and, “although intemperate in tone, did little more than urge the jury not to be influenced by counsel’s arguments, and to instead focus on the testimony and evidence in the case”].) Finally, the trial court reminded the jury that attorneys’ statements during argument are not evidence, and we presume the jury followed that instruction. (People v. Thornton, supra, 41 Cal.4th at pp. 441-442.)
We conclude that in this lengthy, two-defendant murder trial, there does not appear to have been a pattern of egregious conduct or such unfairness that the trial was rendered a denial of due process. (Cf. People v. Hill (1998) 17 Cal.4th 800, 845-847 [holding that the prosecutor’s “pervasive campaign to mislead the jury on key points, as well as her unceasing denigration of defense counsel on key legal points,” along with other serious errors at trial, deprived the defendant of a fair trial and required reversal of the judgment].
C. Objection to Closing Argument
Martinez contends the trial court erred in sustaining a prosecution objection to Martinez’s counsel’s closing argument.
1. Background
Martinez testified that he had no need to steal a car to get Grant, because he could have borrowed a car from his family. Martinez’s counsel argued to the jury that Martinez had felt no great need to steal a car so as to get Grant, and if Martinez had had such a need, he would have obtained a car earlier. Counsel pointed out that Marchesin had a car, and Martinez’s family had a car. The prosecutor objected on the ground that there was no evidence that Martinez’s family had a car, and the trial court sustained the objection.
2. Analysis
Martinez’s testimony that he could have borrowed a car from his family did in fact support defense counsel’s argument that Martinez’s family had a car, and the trial court therefore erred in sustaining the objection to counsel’s argument. Nonetheless, the trial court instructed the jury that the arguments of counsel are not evidence and that the jury must make its determination of the facts from the evidence presented, not from any other source. We assume the jury followed the instructions it was given. (People v. Thornton, supra, 41 Cal.4th at p. 441.) Martinez’s testimony that he could have borrowed a car was in evidence regardless of the trial court’s sustaining the objection to counsel’s argument. We therefore conclude the trial court’s error was harmless.
Moreover, the evidence against Martinez was overwhelming. He had a motive to commit the crime — he told Grant she was his reason for committing the murder, and he told other witnesses he needed a car to pick her up. He was found in possession of the victim’s vehicle and property a few days after the killing. He admitted the crimes to two people — Grant and Montgomery. Grant knew nonpublicized details about the killing that she could have learned only from the killer (e.g., that the attack had taken place in the bathroom, that the victim had been sitting on the toilet when the first blow was struck, that a dresser had been pulled in front of the bathroom door). Finally, Martinez made an inculpatory statement to the police, asking if “that guy” had said Martinez had hit him. Thus, the error was harmless.
D. Flight Instruction
Martinez contends the trial court erred in instructing the jury on flight after crime because the instruction was not supported by the evidence.
1. Background
Over defense objection, the trial court instructed the jury under CALJIC No. 2.52: “The flight of a person immediately after the commission of a crime is not sufficient in itself to establish his guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding whether the defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide.”
2. Analysis
A flight instruction is proper when “the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt.” (People v. Ray (1996) 13 Cal.4th 313, 345.)
The evidence showed that immediately after committing the crime, Martinez drove to Indio. The jury could reasonably interpret this trip as flight. Moreover, two days later, he tried to purchase another car, and he talked to Grant about going to Arizona. After his arrest, he admitted he had intended to go to Arizona. Even though, as Martinez argues, other evidence tended to cast a different light on Martinez’s actions, we nonetheless conclude the evidence was amply sufficient to support giving the flight instruction
3. Harmless Error
Even if the trial court erred in giving the flight instruction, the error was harmless. The instruction itself acknowledges there may be no evidence of flight, and another instruction, CALJIC No.17.31 directed the jury to disregard any instruction not supported by the evidence. (See People v. Harris (1992) 10 Cal.App.4th 672, 675, fn. 3.) If, as Martinez contends, the evidence was insufficient to support giving the flight instruction, the jury was perfectly capable of making that finding and disregarding the instruction. (See People v. Barnett (1998) 17 Cal.4th 1044, 1152-1153.) Moreover, as discussed above, the evidence against Martinez was overwhelming.
E. Cumulative Error
Martinez contends the cumulative error doctrine compels reversal of his conviction. Under that doctrine, the reviewing court must “review each allegation and assess the cumulative effect of any errors to see if it is reasonably probable the jury would have reached a result more favorable to defendant in their absence.” (People v. Kronemyer (1987) 189 Cal.App.3d 314, 349.) When the cumulative effect of errors deprives the defendant of a fair trial and due process, reversal is required. (People v. Cuccia (2002) 97 Cal.App.4th 785, 795.)
We have found error only in the trial court’s sustaining an objection to defense counsel’s argument. Any other errors which we have assumed for purposes of argument were, whether considered individually or cumulatively, harmless under any standard.
(See People v. Jablonski (2006) 37 Cal.4th 774, 833.) As discussed above, the case against Martinez was overwhelming.
F. Abstract of Judgment
Both defendants contend their abstracts of judgment must be corrected to delete mention of the parole revocation fines (§ 1202.45) because defendants are ineligible for parole. The People concede error, and we accept their concession as well taken. (See People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183-1186 [holding that section 1202.45 does not apply when a sentence of life without the possibility of parole is imposed].) We will order the abstracts of judgment amended accordingly.
IV. DISPOSITION
The abstracts of judgment are ordered corrected to delete the parole revocation fine for each defendant. In all other respects, the judgments are affirmed.
We concur: RICHLI J., KING J.