Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. CH-33728
RIVERA, J.
Jose Antonio Merel and Michael William Magidson (collectively defendants) appeal judgments entered upon jury verdicts finding them guilty of second degree murder. They contend on appeal that the trial court committed instructional error and that the prosecutor acted improperly during trial. Defendant Merel also contends the evidence is insufficient to support the verdict against him. We affirm.
I. BACKGROUND
The outline of this case can be stated briefly. Defendants and some friends met the victim, whom they knew as Lida and who appeared to be a young woman, and became friendly with her. Both defendants had sexual encounters with her. Upon discovering that Lida was a biological male, defendants and two of their friends, Jaron Chase Nabors and Jason Cazares, assaulted and killed her. Lida, whose legal name was Edward Araujo, was 17 years old when she died. She had dressed and presented herself as a female since she was 14 years old, and was also known by the name Gwen.
Nabors was charged with murder (Pen. Code, § 187, subd. (a)), with a hate crime allegation (id., § 422.75, former subd. (c); Stats. 1998, ch. 936, § 8.5, No. 12 West’s Cal. Legis. Service). As part of a negotiated disposition, he pled guilty to voluntary manslaughter, and anticipated a prison term of 11 years, in exchange for his truthful testimony against defendants. As we shall explain, Cazares was tried along with defendants. The jury was unable to reach a verdict as to him, and he subsequently pled no contest to voluntary manslaughter.
Because defendants knew Araujo as Lida at all times relevant to this case, we shall refer to her as Lida. We intend no disrespect by this designation. We shall refer to Edward/Lida/Gwen Araujo as “she” because it is clear the victim self-identified as female.
Much of the prosecution’s evidence regarding the events on the night Lida was killed was based on Nabors’s testimony. Others who were present that night also testified on behalf of the People. Each defendant testified in his own defense, and there were significant discrepancies in the versions of the events given by Nabors, Magidson, Merel, and Cazares. As will be seen, the events immediately surrounding the killing were chaotic, and there was evidence that, with the exception of one of Merel’s brothers, all of those present on the evening in question were intoxicated.
A. The People’s Case
Nabors, Magidson, Merel, and Cazares often “hung out” together during 2002 at the house in Newark that Merel shared with his brothers, Paul and Emmanuel (Manny). They would drink, smoke marijuana, use other drugs, and play dominoes. Nicole Brown, who had a romantic relationship with Merel’s brother Paul, also joined them.
Manny did not drink or smoke marijuana, and did not join the others when they were doing so.
During the summer of 2002, Lida began going to Merel’s house on occasion as well. She appeared to be a pretty and flirtatious girl, and acted in a sexually suggestive manner toward the men at the house. The night Nabors met Lida, he commented that she might be a man, but he did not seriously believe she was not a woman. Paul discussed the possibility that Lida might be a man on about three occasions, once because he noticed her hands appeared masculine, and once after Lida got into a fight with Brown and Paul noticed that Lida moved like a man in “drag.” Magidson, Merel, Cazares, and Nabors were all present at one or more of the conversations, but they did not appear upset by the topic.
About two weeks before Lida’s death, Merel told Nabors that Lida had performed oral sex on him, and that they had also had anal intercourse. Lida had told Merel that she could not have vaginal intercourse because she was menstruating.
About 11 or 12 days later, Magidson told Nabors and Merel that Lida had orally copulated him as well, and that he had had anal intercourse with her. He had tried to touch the front of her genital area and her breasts, but she had moved his hand away. During this conversation, Magidson, Merel, and Nabors expressed suspicions that Lida might be a man. Magidson and Merel discussed the fact that on both occasions, Lida had said she could not have vaginal intercourse because she was menstruating, although the encounters took place about a week and a half apart, and Merel noted that when he had anal intercourse with Lida, she had not pulled her pants down all the way. Magidson commented to Nabors and Merel that some men dressed as women. Nabors recalled that when he first met Lida, he had wondered whether she was actually a man or a woman. The men also discussed the fact that Lida had a scratchy voice and defined cheekbones, that she sometimes wore garments that covered her Adam’s apple, that she engaged in anal sex, and that she appeared to them to be unusually promiscuous for a woman of her age, which they believed was 19. Magidson appeared to be disgusted, but not angry or anxious, and Merel appeared “a little agitated.”
The three asked Merel’s brother Paul whether he had had sexual relations with Lida, and he said he had had vaginal intercourse with her. The three men were relieved to hear that, believing it settled the question of Lida’s gender. Later, they had a discussion about men who dressed as woman and “l[ed] men into sex,” and Nabors said someone could get killed for doing that, but discussed the fact that it would be a problem to dispose of the body. Magidson was “feeding [Merel’s] anxiety,” and Merel said to Magidson, “Do you want to be fucking gay? Is [that what] you want? You want to be fucking gay?”
Paul testified at trial that Lida had performed oral sex on him on one occasion, but that he had had no other sexual encounters with her. He also testified that he, Merel, Magidson, Cazares, and Nabors all participated in the conversation about the sexual encounters the men had had with Lida, and that it was his impression that Cazares was the only one in the group who had not had such an encounter. In the conversation, Paul reassured the others that Lida was a girl.
On the evening of October 3, 2002, Merel, Magidson, Cazares, and Nabors went to a bar. They stayed there for an hour or two, drinking beer or cognac. They went to a nightclub, had another round of drinks, and left at about 1:30 a.m. Merel, Magidson, and Cazares appeared to Nabors to be drunk. They went to the Merel home. They thought Lida would be there, and on the ride to the house said that they could ask her whether she was a man or a woman. Lida and Brown were at the house when they got there.
Nabors, Magidson, Merel, and Cazares began playing dominoes and drinking at the dining room table, and Lida joined them. Lida appeared to be intoxicated. She interfered with the game of dominoes, and Merel stood up and put his fingers across her throat, then ran his fingers through the front part of her hair. She asked what he was doing, and he said in a demanding tone, “We want to know why everybody—you want everybody to fuck you in the ass,” then asked in the same tone, “Are you a woman or sloppy ass nigga?” Lida looked at Merel and Magidson, and asked, “How can you ask me that?” All four men asked her why she would not answer the question, in an effort to get her to answer, and asked if she was a man or a woman. Merel’s tone of voice was loud and angry. Magidson leaned over Lida and asked her to “let [him] feel” so he would know if she was a woman or a man. Lida appeared upset and told Magidson she would not let him molest her. Someone suggested Lida and Magidson should go into the bathroom alone, and they did so. On the way to the bathroom, Lida said she wanted to go outside for a cigarette, and Nabors told her she had “do this” first, and pushed the front door closed.
While Lida and Magidson were in the bathroom, Merel, Brown, and Nabors discussed Lida’s gender, and Merel said, “I swear if it’s a man, I’m going to fucking kill him.” He appeared to be angry. Nabors told Merel to be calm and to think about what he was going to do, and Brown referred to the comment as “gangster shit.” Merel said, “She ain’t leaving; she ain’t leaving.” Merel got up and went to the bathroom door, and Nabors followed him. Merel began knocking hard on the bathroom door and asking Magidson for information. Magidson opened the door and told them that Lida was not letting him feel her, then closed the door again.
The evidence of this statement was admitted only against Merel.
Although Nabors testified to this exchange, Brown did not recall it.
After some discussion, Brown went into the bathroom in the hope that Lida would be more likely to let a woman feel her. Nabors went outside for a cigarette, and Merel joined him. Nabors went back inside and saw Magidson coming from the bathroom. Magidson told Nabors he had felt two pairs of underwear, and that Lida “got to be a man.” Nabors told Magidson to be calm, to be cool, and “whatever you do, don’t make a mess.” Magidson put his arm around Nabors’s throat, applied enough pressure to restrict his breathing, and said, “How about this? What about this?” Nabors indicated that would be effective, and Magidson released him.
Magidson suggests we should distrust Nabors’s testimony, and particularly this portion, because it indicated he acted with premeditation and deliberation, a conclusion the jury rejected when it found him guilty of only second degree murder. We see no basis to accept Magidson’s suggestion. In any event, this point does not affect our analysis of any of the issues defendants raise.
Nabors found Merel outside the house, and told him that Magidson had said Lida was a man. They went back inside. Brown came out of the bathroom and yelled that she had felt Lida and that Lida was a man. Cazares went into the bathroom and closed the door, and Merel began pounding on the door, telling Cazares to let him in. He was yelling and appeared upset. Merel went up to his brother Manny, who had been sleeping until he was awakened by the others’ voices. Merel began crying and saying, “I can’t be fuckin’ gay.” Manny and Nabors tried to console him, and Nabors told him something to the effect that Lida “ain’t shit” and that he should not let her upset him.
Brown recalled that she tried to console Merel; that she told him that the situation was dangerous and that Lida, who was still in the bathroom, should be allowed to leave; and that he agreed.
The bathroom door opened, with Lida still inside. Merel went quickly to the bathroom and tried to go inside. Cazares physically prevented him from doing so, and Merel struggled to get in. After a moment, Merel went with Manny to Manny’s bedroom.
Lida stepped out of the bathroom, and Magidson pulled her to the floor and moved her underwear to the side, revealing testicles. He put his arm around Lida’s throat, using the same hold he had used earlier on Nabors, while Lida tried to pull his arm off her. Manny approached, pulled on Magidson’s arm to get him off of Lida, and told him to let go. Magidson did so. Manny tried to push Lida out the front door, but Magidson and Nabors prevented him. Magidson again began choking Lida, and Manny again tried to pull him away as Lida struggled. Magidson let go. Manny left the area, and Magidson immediately put a choke hold on Lida again, and appeared to apply force to her neck. Cazares approached Magidson and Lida, put a hand on Magidson’s arm, and told Magidson he would “sock” him if he did not let go. Magidson let Lida go. Soon afterward, Nabors saw Magidson and Lida lying on the floor of the living room, Magidson’s arm around Lida’s neck in a choke hold again. Cazares again put his hand on Magidson’s arm and told him to release Lida, and he again did so.
Brown saw Magidson punch Lida once in the face. According to Brown, Lida threatened to call the police and Magidson grabbed her by the neck and began choking her “[w]ith all his might.” Cazares and Manny both tried to pull Magidson off Lida. After going to the bedroom to awaken Paul so they could leave the house, Brown saw Magidson with sprinkles of blood sprayed across both arms. After Brown and Paul left, Paul told Brown he had given a hair tie to someone.
Merel entered the living room. Lida was on her knees, and Nabors saw Merel and Magidson standing over her. Lida received two slaps to the head area, from either Merel or Magidson. Lida said, “No, please don’t. I have a family.” Merel left the living room and returned with a food can in his hand, then struck Lida on the top of the head with the can, hard enough to dent the can. Lida fell to a seated position, her hair matted and wet with what appeared to be blood. Merel left the room and came back with a frying pan in his hand. He told Magidson to get out of the way, then hit Lida hard with a frying pan on the crown of her head, near the hairline. The blow was not as hard as the blow with the can. Lida fell to the floor.
On cross-examination, Nabors testified that the blow with the can was “a little bit toward the front; basically center of the head.”
Nabors moved toward Cazares, who asked him, “Are you down?” Nabors understood that to mean that Cazares was asking whether he “had [the] back” of Cazares, Merel, and Magidson, meaning whether he was “with them.” Nabors said that he was, understanding that he was agreeing to participate in harming Lida.
Cazares asked Magidson for his keys, and Magidson handed them to Cazares. Nabors and Cazares left the house and they got into Magidson’s truck. Cazares said they were “going to get some shovels so they can kill that bitch.” They went to Cazares’s house. During the ride, Cazares told Nabors that Lida had told him that she was related or had protection from members of the Norteño gang, and that Lida had offered him money to help her get out of the house. They got three shovels and a pick axe from a shed at Cazares’s house, and returned to the Merel house.
Brown heard someone in the truck tell Paul, who had pulled up alongside in his car, that they were going to get shovels.
When they entered the house, Lida was sitting on a couch and was conscious. There was blood on her face. Magidson and Merel were standing in front of her. Merel was holding a dumbbell bar that had some free-weights attached to it. Magidson left the room and came back with rope, and asked Nabors for his knife. Nabors handed him the knife he carried in his pocket. Merel had told Lida to get off the couch, and he began scrubbing it. Magidson left the room again, and returned with a bundle of rope.
Cazares told Magidson, “Knock that bitch out.” Nabors said, “Yeah, knock that bitch out.” Magidson went up to Lida and struck her twice in her face with a closed fist. She dropped to the floor, and he kneed her twice in the face, using a great deal of force, so that her head flew back and struck the wall behind her, causing a dent in the wall. Magidson used the rope to tie Lida’s wrists and ankles, and Cazares went and got a blanket. Lida was placed on the blanket. She did not move or resist, and appeared to be unconscious. Magidson, Nabors, and Cazares carried Lida to the garage and set her down. Nabors saw Magidson “grab the loose end of rope and move it up towards the upper part of Lida’s body.”
Nabors left the garage to check on Merel. Merel was in the living room, scrubbing the carpet. Nabors returned to the garage, and saw Magidson and Cazares carrying Lida out of the garage and into the bed of the truck. She was wrapped in the blanket and was not moving. Nabors was told to get Merel, and did so. Merel was still cleaning blood. Nabors told him that Magidson and Cazares had said “let’s go.” Nabors asked Merel for a shirt because he did not want to get his own shirt dirty, and Merel gave him one. Nabors took off his own jacket and shirt and put on Merel’s shirt. Merel did not ask him anything about Lida or about what had happened in the garage. He locked the front door as they left.
They got onto a freeway. Someone suggested throwing Lida off a bridge. Magidson said he had not been sure whether or not Lida was dead until “he”—referring to someone else—had hit her with a shovel a couple of times. Cazares responded, “Fuck the dumbshit.”
The group decided to take Lida to Silver Fork, an area where Magidson and Cazares had camped in the past. When they reached Silver Fork, they found an area off an unpaved road, and they all dug a hole. While they were digging, Merel said he was “still so mad that he could still kick her a couple times.” When they had finished digging the hole, Magidson dragged Lida’s body out of the truck and to the grave. After the body was in the ground, the men filled the grave with rocks and then dirt. Someone wiped away the group’s footprints, and Cazares and Nabors moved a log on top of the grave. They then returned to Newark. On the ride home, Magidson made a reference to having twisted the rope, and Cazares immediately remarked that Lida had urinated.
Later in the day, Nabors told a friend about the killing, and told other friends in the days that followed. Police officers contacted him, and he eventually led them to Lida’s body.
An autopsy revealed that Lida was anatomically male. There was rope around Lida’s neck, hands, knees, and ankles, and fabric in her mouth that was tied around her head. The marks from the ropes were consistent with Lida being either unconscious or dead when she was tied up. The cause of death was asphyxia due to strangulation, associated with blunt trauma to the head. There were two lacerations on the upper forehead, with hemorrhaging inside the scalp. The blows were caused by a hard, blunt object, which could have been a heavy-duty frying pan, a can of food if applied with enough force, a shovel, or a weight. Both the strangulation and the blunt force trauma were potentially fatal, and death could have occurred from the blunt trauma to the head even if Lida had not been strangled. After the blows, she could have remained conscious and able to communicate and move on her own.
B. Cazares’s Testimony
Cazares testified at trial, and his testimony from an earlier trial was also read to the jury as part of the prosecution’s case. According to Cazares, on the evening of October 3, he went to two bars with Magidson, Merel, and Nabors. The question of whether Lida was a man or a woman did not arise. At Merel’s house, before realizing Lida was male, Cazares stopped Magidson, Merel, and Nabors several times from beating Lida. Magidson, Merel, and Nabors all looked angry. After realizing Lida was not a woman, Cazares went outside to smoke. When he went back inside, 15 or 20 minutes later, he saw Merel cleaning the floor and Magidson standing next to him. Lida was not in the room. Nabors came in from the garage and said that Lida was dead and that they needed to get rid of the body. At Magidson’s request, Cazares went to his house to get shovels, and Nabors accompanied him. When they returned, Merel was cleaning the living room floor and crying. Lida’s body was in the garage, wrapped in blankets and rope.
As we explain (p. 15, post), a previous trial of Cazares, Merel, and Magidson on the same charges ended in a hung jury.
C. Merel’s Testimony
Merel testified that when he met Lida, he found her attractive, and he had one sexual encounter with her, which had included both oral and anal intercourse. At the time, she told him she was menstruating. A few days before October 4, he had a conversation with Nabors and Magidson about whether Lida was a man or a woman. Paul later implied to them that he knew she had female genitalia, and Merel believed him.
From the evening of October 3 to the early morning hours of October 4, 2002, Merel had been drinking alcohol. Merel, Magidson, Cazares, and Nabors were drunk when they returned to Merel’s home in the early morning hours. Merel also had smoked marijuana that night. The four men had not discussed Lida’s gender that evening.
Lida, Brown, Paul, and Manny were at the Merel house. Lida was behaving in a way that annoyed Merel, and he asked Lida whether she was a man or a woman, and why she preferred anal intercourse. However, he did not seriously believe that she was a man. He was surprised that she did not deny being a man. He asked her twice more whether she was a man or a woman, raising his voice. Magidson, Cazares, and Nabors asked her as well, but she did not answer. Magidson tried to feel Lida’s groin area, and they went into the bathroom.
While Magidson and Lida were in the bathroom, Merel was wondering if he might be homosexual, based on his belief that it was impossible for a heterosexual man to receive sexual pleasure from another man. He thought Magidson and Lida were taking too long in the bathroom and knocked on the door, asking what Magidson had found out. Magidson told him Lida would not show him anything. Cazares went into the bathroom, and Merel continued to be concerned about his sexuality, and he became agitated. He went outside for a cigarette. Magidson joined him and said, “That’s a man, I know that’s a man.” Merel threw up, disgusted that he had had sexual relations with a man and concerned that he might be homosexual. He went back inside, and Brown told him she had seen male genitalia on Lida. Merel was emotionally crushed and began to cry. Manny and Brown tried to console him, and he said that he could not believe he was gay. He did not want to look at Lida. Brown told Merel that Lida should be allowed to go, and Merel told her to get Lida out of the house.
Merel denied having seen anyone pull aside Lida’s underwear to expose her genitalia.
Merel went into his bedroom to calm down. When he came back out into the hallway, he saw Magidson, Cazares, and Nabors in the entryway with Lida. It looked as if Lida was trying to go out the door, and she was saying that they should let her go or else she would have her Norteño family members come to the house and beat them up. She tried to slap Magidson, and he wrestled her to the floor, one hand around her neck. Merel, Cazares, and Nabors told Magidson to let her go. They grabbed Magidson, and he let go. The group went into the living room. Magidson again put his arm around Lida’s neck, and Cazares pulled him off her and told him to let go. Magidson and Nabors began hitting Lida, and Merel slapped her twice, asking her if she thought “this shit” was funny. Cazares or Nabors said, “Knock that bitch out,” and Magidson punched her so that she “stumbled down the wall.”
Merel went to the kitchen and got a can. He returned to the others, but did not swing at her or hit her with the can. He went back to the kitchen and got a frying pan, then returned to the living room. He brought it down to make Lida flinch, but did not strike her with it, and she said she was sorry. He then raised the pan again and struck her, although he had not intended to make contact with her. According to Merel, he did not strike her hard, and the pan “skipped” off Lida’s head. Lida said again that she was sorry. Merel put the pan back in the kitchen. When he left for the kitchen, Lida was sitting, but when he returned, she was lying face down, bleeding from her forehead. Blood was running down on to the carpet, as Magidson and Nabors stood over her, apparently hitting her. Merel told them to stop. Magidson asked what they should do, and Merel suggested dropping Lida off on a corner where they normally picked her up. He began cleaning the carpet. Magidson tied Lida’s wrists and began to tie up her feet and ankles. He said they needed to “take her further,” which Merel understood to mean drop her off farther away than the usual corner. Merel looked at Lida, saw her as a man, and went out of the room and cried.
After about 10 minutes, he came back out into the living room and began cleaning blood from the rug. Lida, Cazares, and Nabors were gone. Magidson entered the room, pointed out some blood spots, and left. About 15 minutes later, Cazares came back into the room and told Merel, “Come on, we got to go.” Merel thought they were going to drop Lida off somewhere further away than the corner where they picked her up. He went outside, but had no reason to believe Lida was dead until he saw her body in the back of the truck, wrapped in bedclothes, with shovels next to it, and Cazares told him they needed to get rid of the body.
Later that day, after returning from burying Lida, Magidson told Merel that if he needed to answer questions from the police, Merel should say that Magidson had strangled Lida with the rope in the garage, and Merel took this to mean that Magidson had actually done so. There were small dumbbell weights in Merel’s house, and a few days after Lida’s death, Nabors suggested checking the weights for blood.
This testimony was given on cross-examination with great reluctance and only after significant prodding by the prosecutor.
D. Magidson’s Testimony
Magidson testified that he had a sexual encounter with Lida sometime between a few days and two weeks before her death. She joined him one night when he was in the bathroom at Merel’s home and began to orally copulate him. Later that night, Lida again began to perform oral sex on him. She told him she could not have vaginal intercourse because she was menstruating, and suggested anal intercourse. He initially agreed, but did not complete the act. The next day, he told Merel and Nabors about the incident, and they discussed the fact that Lida had given the same reason for having anal intercourse with Merel 10 to 15 days earlier. He did not recall the group questioning Lida’s gender. They wondered whether Lida simply preferred anal sex or whether there was some other explanation for her actions, and asked Paul “what kind of sex” he had had with her. Paul indicated that he had had vaginal intercourse with her. Magidson did not recall any other conversations about whether Lida was a man or a woman, and had no doubts about her gender.
According to Magidson, Nabors implied he had had a sexual encounter with Lida the first time she came to the house, and that he had touched her genitals.
On the afternoon of October 3, 2002, Magidson had been drinking beer and smoking marijuana with some other friends, and was “pretty drunk.” He went to Cazares’s house in the evening and had more beer. He, Merel, Cazares, and Nabors went to two bars, beginning around 9:00 or 10:00, and drank beer and tequila until around 2:00 in the morning.
The group returned to Merel’s house. Their usual practice was to smoke marijuana and to continue to drink. They played dominoes and Lida sat at the table with them. She interrupted the game by taking dominoes, and Merel became upset and asked her why she wanted everyone to have anal intercourse with her and whether she was a man. Magidson did not take the questions seriously. At some point, he realized Merel’s questions had become serious, and he tried to get Lida to answer, although he still believed she was a woman. The men told Lida that she would have to leave if she would not prove she was a woman, and Magidson suggested that Lida needed privacy and went with her into the bathroom. He believed she was a woman, and she began to orally copulate him. He heard Merel banging on the bathroom door and asking what he had found out, and he responded that he did not know anything yet. At some point Brown came into the bathroom, and Magidson left and told Merel he had not found out anything. Brown came out of the bathroom shortly afterward, screaming that she had felt something and she thought Lida was a man. Cazares and Merel both tried to enter the bathroom, and Cazares succeeded and closed the bathroom door. Merel banged on the door, crying, yelling, and demanding to be let in. He cried uncontrollably, and Magidson and Manny tried to console him. Magidson went outside with Merel, who vomited. Magidson was worried about Merel’s emotional reaction, and he wanted to prove that Lida was a woman. He told Merel he was going to find out Lida’s gender, and they went back inside.
Once inside, Magidson grabbed Lida and pinned her down on the floor. Someone pulled her underwear aside, revealing male genitals. Magidson was shocked. The next thing he could recall was Lida standing in front of him, yelling threats and saying that her family members who belonged to the Norteño gang would come and “shoot up this house and you guys are all dead.” He wanted Lida to stop shouting, and he grabbed her by the throat and pinned her against the wall, choking her and shouting at her. Merel, Cazares, Nabors, and Brown were all present. Someone suggested knocking Lida out, and Magidson punched her in the face or head. She fell to a kneeling or sitting position. He was enraged and wanted to hurt her.
Magidson testified that there were gaps in his memory of the events.
Merel approached with a cast iron skillet-like tortilla pan in his hands and told Magidson to watch out. Magidson pulled Lida’s head down so Merel could hit her in the back of the head, and Merel hit Lida’s head with the pan. Magidson had the impression Merel was trying to knock Lida out, and he believed the blow was hard. Nabors then hit Lida. After the blow, Magidson saw that he had a five-pound weight in his hand. Magidson, Merel, and Nabors all began beating Lida. At some point, Magidson noticed that Lida was not responding to the blows. The beating stopped, and Magidson noticed blood on the carpet where Lida lay. Magidson and Nabors moved her to a couch, and someone suggested making her walk home.
Magidson thought that when Lida regained consciousness, she would start screaming again, and he asked Merel if he had something to use as a gag. Merel said he did not have anything, so he went to Paul’s room and got a “do-rag,” which Magidson put on Lida. He had no memory of tying Lida up with rope, but did not doubt that he had done so. Nabors and Magidson carried Lida into the garage so she would not bleed on the furniture and carpet, and Magidson asked for something to put under her to soak up the blood. They put a sheet under Lida.
Magidson noticed he was covered in blood, and reacted with panic and shock. He went to the bathroom to clean himself. On his way back to the garage, he told Merel, “let’s go, meet me outside.” He then looked into the garage and asked Nabors if Lida had woken up yet. Nabors told him Lida was dead and that he, Nabors, had killed her. Magidson began to panic, afraid they would go to jail. He told Merel that Lida was dead and that Nabors had killed her, and he helped Merel clean up blood. He asked Cazares and Nabors to get some shovels from Cazares’s house, and they left to do so.
As we have noted, Nabors testified that the trip to get shovels took place while Lida was still alive, before she was tied up and taken to the garage, and not afterward, as Magidson and Cazares both testified. This discrepancy will be important to our analysis of one of the issues Magidson raises.
Magidson went to the garage, where he saw Lida lying with a rope around her neck. He checked for a pulse, but felt none, then went to help Merel clean up the blood. They covered Lida’s body with rope and a comforter, carried it outside, and placed it in the back of the truck. Cazares asked if it they were sure she was dead. Magidson said he did not know, and Nabors took a shovel and hit Lida with it twice in the area of her head, saying, “she is now.” Magidson went into the house, told Merel to meet them in front, and went to the truck. The group drove off to bury Lida’s body at Silver Fork.
Magidson later told Merel, Nabors, and Cazares that if questioned, they should say he had killed Lida because, unlike the others, he had no children. After being arrested, because of his agreement with the others, he told a police detective that he had put the rope around Lida’s neck. He later decided he did not want to take responsibility for things that he had not done, and he told a deputy district attorney and an investigator that he was not the one who had put the rope around her neck.
E. Procedural History
Magidson, Merel, and Cazares were charged by information with murder (Pen. Code, § 187, subd. (a).) The information included allegations that the defendants had committed a hate crime in concert. (§ 422.75, former subd. (c); Stats. 1998, ch. 936, § 8.5, No. 12 West’s Cal. Legis. Service.) The first time the three defendants were tried, the jury deadlocked, and the court declared a mistrial. The second trial took place in 2005. The jury found Magidson and Merel guilty of second degree murder, and found not true the hate crime allegation. The jury was unable to reach a verdict as to Cazares, and the trial court declared a mistrial as to him. Merel moved for a new trial or, in the alternative, for a reduction of his conviction from murder to manslaughter, but the trial court denied the motion. The court sentenced Magidson and Merel to prison terms of 15 years to life.
All subsequent statutory references are to the Penal Code.
Section 422.75 was amended in 2004, and the relevant provisions are now contained in subdivision (b). (Stats. 2004, ch. 700, § 10, No. 11 West’s Cal. Legis. Service; see also §§ 422.55, subd. (a), 422.56.)
Cazares later pled no contest to voluntary manslaughter and was sentenced to six years in prison pursuant to a plea agreement.
II. DISCUSSION
A. Instruction Pursuant to CALJIC No. 8.42
Defendants contend the trial court erred in instructing the jury on the law of voluntary manslaughter. The court instructed the jury pursuant to CALJIC No. 8.42 as follows: “To reduce unlawful killing from murder to manslaughter upon the grounds of sudden quarrel or heat of passion, the provocation must be of the character and degree as naturally would excite and arouse the passion, and the assailant must act under the influence of that sudden quarrel or heat of passion. [¶] The heat of passion which will reduce... a homicide to manslaughter must be such a passion as naturally would be aroused in the mind of an ordinarily reasonable person in [the] same circumstances. A Defendant is not permitted to set up his own standard of conduct to justify or excuse himself because his passions were aroused, unless the circumstances in which the Defendant was placed and [the] facts that confronted him were such as would have aroused the passion of the ordinarily reasonable person faced with the same situation. Legally adequate provocation may occur in a short, or over a considerable period of time. [¶] The question to be answered is whether or not at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause an ordinarily reasonable person of average disposition to [act] rashly, and without deliberation and reflection, and from passion rather than from judgment. [¶] If there was a provocation, whether of short or long duration, but of a nature not normally sufficient to arouse passion, or if a sufficient time elapsed between the provocation and the fatal blow for passion to subside and reason to return, and if an unlawful killing of a human being followed the provocation and had all the elements of murder as I defined it, the mere fact of a slight or remote provocation will not reduce the offense to manslaughter.” (Italics added.)
Defendants asked the trial court to modify the italicized portion of this instruction either to insert the word “liable” between “disposition” and “to act,” or else to substitute for the word “would,” either “could” or “sufficient to cause,” arguing that under California Supreme Court precedent, the correct inquiry for the jury was whether the defendant’s reason was so disturbed or obscured by passion as to make an ordinarily reasonable person liable to act rashly, not whether such a person would act rashly. The trial court refused the request and gave the standard instruction. Defendants contend this was error.
Nearly a century ago, our Supreme Court explained that it was left to the jury to decide whether the defendant committed the offense under a heat of passion. (People v. Logan (1917) 175 Cal. 45, 48-49 (Logan).) The court went on: “The jury is further to be admonished and advised by the court that this heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances, and that, consequently, no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man.... [W]hile the conduct of the defendant is to be measured by that of the ordinarily reasonable man placed in identical circumstances, the jury is properly to be told that the exciting cause must be such as would naturally tend to arouse the passion of the ordinarily reasonable man.... For the fundamental of the inquiry is whether or not the defendant’s reason was, at the time of his act, so disturbed or obscured by some passion... to such an extent as would render ordinary men of average disposition liable to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.” (Id. at p. 49, italics added.) In reaching this conclusion, the Logan court at page 49 cited Maher v. People (1862) 10 Mich. 212, 219-220, which stated that the rule was “that reason should, at the time of the act, be disturbed or obscured by passion to an extent which might render ordinary men, of fair average disposition, liable to act rashly or without due deliberation or reflection, and from passion, rather than judgment.” The Supreme Court reiterated the “liable” language numerous times after its decision in Logan. (See, e.g., People v. Wharton (1991) 53 Cal.3d 522, 569-570; People v. Wickersham (1982) 32 Cal.3d 307, 326, disapproved on another ground in People v Barton (1995) 12 Cal.4th 186, 201 (Barton); People v. Berry (1976) 18 Cal.3d 509, 515; People v. Morse (1969) 70 Cal.2d 711, 734-735; People v. Valentine (1946) 28 Cal.2d 121, 138-139.)
In other cases, however, our Supreme Court has used slightly different formulations to describe the objective standard for determining whether provocation could support a finding of manslaughter. Quoting Berry, the court in People v. Breverman (1998) 19 Cal.4th 142, 163, explained that an intentional, unlawful homicide in the heat of passion is voluntary manslaughter “if the killer’s reason was actually obscured as the result of a strong passion aroused by a ‘provocation’ sufficient to cause an ‘ “ordinary [person] of average disposition... to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.” ’ [Citations.]” (Italics added.)
Moreover, the court has in at least four cases used the language of CALJIC No. 8.42 or similar language to describe the correct standard for assessing the effect of provocation or heat of passion on the defendant's actions. In Barton, the court cited this instruction with approval, stating: “Heat of passion arises when ‘at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment.’ [Citations.]” (Barton, supra, 12 Cal.4th at p. 201.) Similarly, citing Berry and Valentine, the court in People v. Lee (1999) 20 Cal.4th 47, 59 (Lee) stated that the conduct of the victim “must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection.” The court went on to quote the language in Barton that we have just discussed. (Lee, at p. 59) Quoting Lee, the court in People v. Manriquez (2005) 37 Cal.4th 547, 583-584, stated that the victim’s conduct “ ‘must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection,’ ” and that heat of passion arises when the defendant is “ ‘ “obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition” ’ ” to act rashly and from passion rather than judgment. (See also id. at pp. 585-586.) Moreover, the Supreme Court in People v. Cole (2004) 33 Cal.4th 1158, 1211 (Cole), stated that provocation for purposes of voluntary manslaughter had “nothing to do with intent and everything to do with circumstances, specifically, whether the circumstances would have caused a reasonable person to do as defendant did.” (Italics added.)
In light of these cases, we cannot conclude that CALJIC No. 8.42 incorrectly explains the standard to be applied in determining whether the defendant acted under heat of passion that was sufficient to negate malice and reduce a homicide from murder to manslaughter. (See Lee, supra, 20 Cal.4th at pp. 58-59.)
Defendants contend, however, that the challenged language worked its way into the case law through a series of semantic mistakes on the part of the Supreme Court, and that we should conclude that the language of Barton and Lee states the law incorrectly to the extent it differs from the Logan formulation. As they point out, several post-Logan Supreme Court cases express the fundamental inquiry as whether the defendant’s reason was disturbed or obscured by passion to an extent that would render a reasonable person “likely to act rashly” (italics added) or without deliberation, and from passion rather than judgment, citing either Logan or cases applying its formulation, but changing the word “liable” to “likely.” (See, e.g., People v. Brubaker (1959) 53 Cal.2d 37, 44 [citing People v. Borchers (1958) 50 Cal.2d 321, 329, which quotes Logan]; People v. Bridgehouse (1956) 47 Cal.2d 406, 414 [citing Logan].) Defendants argue that “likely” involves a higher degree of probability than “liable,” and that in adopting the word “likely,” the Supreme Court ignored the “subtle though important distinctions” between the two terms “under the influence of the strong assonant similarity between the words.” From this error, according to defendants, it was but a short step to the assertedly erroneous CALJIC formulation, which the Supreme Court mistakenly used in Barton, Lee, and Manriquez.
We are not so ready to conclude that our Supreme Court has misunderstood the law and the meaning of its own precedents. CALJIC No. 8.42 closely tracks Logan, which states that the heat of passion under which the defendant committed the offense “must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances,” and that “the exciting cause must be such as would naturally tend to arouse the passion of the ordinarily reasonable man.” (Logan, supra, 175 Cal. at p. 49, italics added.) The portion of CALJIC No. 8.42 that defendants challenge is consistent with these statements. As we have noted, since Logan (and the cases citing its “liable” language) the court has at least four times used the challenged language, or similar language, to describe the correct standard for deciding whether a defendant acted under sufficient provocation or heat of passion to reduce a homicide from murder to manslaughter. (Barton, supra, 12 Cal.4th at p. 201; Lee, supra, 20 Cal.4th at p. 59; Cole, supra, 33 Cal.4th at p. 1211; Manriquez, supra, 37 Cal.4th at pp. 583-584.) In light of this precedent, we will not conclude that CALJIC No. 8.42 is an incorrect statement of the law.
Defendants also argue that the formulation of CALJIC No. 8.42 “tends to abrogate voluntary manslaughter as a crime” because it suggests that “the defendant, in perpetrating a homicide, must have been acting reasonably.” Not so. The instruction is clear that the question is whether the defendant’s reason is “obscured or disturbed by passion” to the extent that an “ordinarily reasonable” person would act “rashly and without deliberation and reflection, and from passion rather than from judgment.” (CALJIC No. 8.42, italics added.) The instruction cannot reasonably be read to mean that to fall within its terms, the defendant must have been acting reasonably. Nor does it suggest that a defendant who acted unreasonably in committing the homicide could not be guilty of manslaughter. Rather, the instruction is clear that a homicide is manslaughter if the reason of the defendant is obscured or disturbed by passion to the extent that a person who is ordinarily reasonable would act without deliberation and reflection, and from passion rather than judgment. (Ibid) As noted in People v. Coad (1986) 181 Cal.App.3d 1094, 1107 (Coad), citing CALJIC No. 8.42, the jury decides “whether a reasonable person in the circumstances would have acted out of passion rather than judgment,” but the law does not forgive or condone as reasonable the act chosen.
The relevant question in Coad was whether voluntary manslaughter was a crime of moral turpitude. (Coad, supra, 181 Cal.App.3d at pp. 1103, 1106.) As defendants point out, Division Two of the First Appellate District concluded that it was, stating that while the law looked on the motivation behind the killing with empathy and compassion, it did not forgive the intentional killing. (Id. at pp. 1108, 1110.) Justice Kline disagreed with this conclusion, stating, “The law finds mitigation because the act is found objectively reasonable.” (Id. at p. 1122 (conc. & dis. opn. of Kline, P.J.)) Defendants suggest that the dissent was based on CALJIC No. 8.42’s “would cause... to act rashly” formulation and that the majority was based on Logan’s “liable to act rashly” formulation. The majority opinion does not support this argument. As we noted above, the majority framed the question before the jury in a manslaughter case as whether a reasonable person would have acted out of passion, and it cited CALJIC No. 8.42. (Coad, at p. 1107.)
Therefore, we conclude the trial court instructed the jury correctly on the law. We need not consider whether defendants were prejudiced by any error, because we find none.
B. Sufficiency of the Evidence to Support Merel’s Conviction
Merel contends there is insufficient evidence to support his conviction for second degree murder because there is no evidence of malice aforethought, and that he could properly have been convicted only of assault with a deadly weapon or, at most, voluntary manslaughter.
Our standard of review in considering such a challenge is well established. “ ‘A reviewing court faced with such a claim determines “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citations.] We examine the record to determine “whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citation.] Further, “the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” ’ [Citations.]” (People v. Moon (2005) 37 Cal.4th 1, 22.)
The elements of the crime of second degree murder are “(1) an unlawful killing; (2) accomplished with malice aforethought, whether express or implied.” (People v. Malfavon (2002) 102 Cal.App.4th 727, 735.) Malice is express “when the defendant manifests ‘a deliberate intention unlawfully to take away the life of a fellow creature.’ ” (People v. Lasko (2000) 23 Cal.4th 101, 107; § 188.) It is implied “ ‘when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life’ [citation].” (Lasko, at p. 107.) This mental state is referred to as “ ‘conscious disregard for life.’ ” (Ibid.)
The record here contains sufficient evidence to support the verdict of second degree murder. There is evidence that Merel was the first to ask Lida whether she was a man or a woman; that he said of Lida, “I swear if it’s a man, I’m going to fucking kill him,” and, “She ain’t leaving; she ain’t leaving”; that he gave the top of her head a blow with a can hard enough to bloody her head; that he delivered a hard blow with a frying pan to the crown of her head, near the hairline; and that at the burial site he said he was “still so mad that he could still kick her a couple times.” The pathologist who performed the autopsy on Lida’s body testified that Lida died of “[a]sphyxia due to strangulation associated with blunt trauma to the head”; that there were two lacerations on the upper forehead, one in the center of the forehead and one apparently under the hairline; that the lacerations could have been caused by a heavy frying pan or a can of food applied with enough force; and that the trauma to the head could have contributed to Lida’s death and could have been fatal in itself even if Lida had not been strangled. From this evidence, the jury could reasonably have concluded that Merel acted with either express or implied malice and that his actions contributed to Lida’s unlawful death. It could also have concluded that by his actions he aided or encouraged Lida’s murder. (See People v. Joiner (2000) 84 Cal.App.4th 946, 966-967 (Joiner) [to be liable as aider and abettor, person must act with knowledge of unlawful purpose of perpetrator and with intent of “ ‘committing, encouraging, or facilitating the commission of the offense,’ ” and must aid, promote, encourage, or instigate commission of crime by act or advice].)
Merel contends, however, this evidence is insufficient, arguing that Magidson was the one who put Lida in a choke hold and threw her to the floor; that the blows Merel delivered to the crown and top of Lida’s head were glancing ones; that Magidson testified Merel did not strike Lida’s head near the location of the lacerations; that Lida survived the blows; that Merel had no further contact with her after those blows, restricting his activities to crying and cleaning up blood; and that he played no part in further assaulting Lida, tying her up, strangling her, getting shovels, or carrying her to the garage and the truck. The question before us, however, is not whether the evidence would have supported a different verdict, but whether there was sufficient evidence to support the verdict the jury actually reached.
Merel points out that there is evidence that he struck her on a part of her head different from that where she suffered lacerations. We are bound, however, by long-established California law: “ ‘It is blackletter law that any conflict or contradiction in the evidence, or any inconsistency in the testimony of witnesses must be resolved by the trier of fact who is the sole judge of the credibility of the witnesses. It is well settled in California that one witness, if believed by the jury, is sufficient to sustain a verdict. To warrant the rejection by a reviewing court of statements given by a witness who has been believed by the trial court or the jury, there must exist either a physical impossibility that they are true, or it must be such as to shock the moral sense of the court; it must be inherently improbable and such inherent improbability must plainly appear.’ [Citations.] It also is true that uncertainties or discrepancies in witnesses’ testimony raise only evidentiary issues that are for the jury to resolve.” (People v. Watts (1999) 76 Cal.App.4th 1250, 1258-1259.) There was evidence to support a conclusion that the blows Merel struck contributed to Lida’s death and that, although he did not take part in the later events, he acted with malice in striking those blows. There is no physical impossibility or inherent improbability in this testimony. Moreover, although there is ample evidence that Merel was upset, the jury could conclude either that his reason was not so obscured as to cause him to act from passion rather than from judgment, or that the provocation was not adequate to reduce the offense to manslaughter. In the circumstances, we must reject Merel’s contention that the evidence was insufficient to support his conviction.
C. Prosecutor’s View of Merel’s Guilt
Merel contends the prosecutor should have either dismissed the murder charges against him or concurred in his motion to reduce the offense to manslaughter, and that as a result his due process rights were violated. “The standards under which we evaluate prosecutorial misconduct may be summarized as follows. A prosecutor’s conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. 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 trial court or the jury.” (People v. Morales (2001) 25 Cal.4th 34, 44; see also People v. Espinoza (1992) 3 Cal.4th 806, 820 (Espinoza).)
The prosecutor made several statements that Merel contends showed his belief in his innocence of second degree murder. In arguments to the court regarding the instructions to be given the jury, the prosecutor took the position that Merel alone was entitled to an instruction on assault with a deadly weapon. (§ 245.) He said that his theory of the case was that Magidson had killed Lida, that Cazares was an aider and abettor, and that: “Mr. Merel’s liability flows from, I believe, primarily what happened with this can and pan. There was a threat that the evidence indicates was made earlier to, I believe, the effect of kill the bitch if it’s a man, or something like that. But I recognize that Mr. Merel made efforts after that point in time to get the victim out of the house, and so the question is, I believe, for the jury in terms of his liability at the time he struck the victim with the can and pan, did he do so as an aider and abettor to the victim’s ultimate killer?... [¶]... [¶] So as I view these Defendants and their liability relative to each other. To me, it’s just inappropriate, although I’m not obligated—my sense of justice and fair play is such that I believe that Mr. Merel is entitled to a [section] 245 instruction, and frankly, more so than just my sense of justice towards what’s right for him, but the jury very well may find that he did not have the requisite mental state of aider and abettor at the time h[e] struck the victim with the pan and can. They may find he did so independent of the actions of others, and he should bear criminal responsibility for that ability [sic]. [¶] And so that if they believe he was not an aider and abett[o]r in the killing, he should nonetheless suffer the just and appropriate consequence, and that would result, if the jury had the option of finding him guilty, of the lesser.” He went on to state that he saw the defendants as being “very differently situated.”
During closing argument, after describing Magidson and Cazares as killers, the prosecutor told the jury: “I’ll tell you this: I see all—don’t see the Defendants all the same way. This man here, Jose Merel, tell you right at the very beginning, I don’t see Jose Merel, whatever he is, I don’t see him as a killer....” However, he continued, the jurors would have to ask themselves “if what he did, he did in order to help, to assist in some fashion, to facilitate, to encourage, to aid the killers.” He told the jurors they had the option to find Merel guilty of murder, manslaughter, or assault with force likely to cause great bodily injury, and said that while the evidence that Magidson and Cazares were guilty of murder was “overwhelming,” he was “going to leave Mr. Merel’s fate in [the jury’s] hands. I’m going to suggest that you do what you think is right, that you look at the evidence, you look at the law, and you return the verdict that you feel is just and appropriate.”
In rebuttal, the prosecutor reiterated that Merel was not “driving” events the night of the killing, that “[i]t wasn’t Jose that killed somebody in that house that night,” that Merel’s position was different from that of the other defendants, and that he was looking for an “appropriate distribution of criminal liability,” and that while he asked for verdicts of first degree murder against Magidson and Cazares, he left it up to the jury to return a just and appropriate verdict as to Merel.
Merel contends he was deprived of due process because the prosecutor did not ask for a murder verdict against him yet failed to dismiss the murder charge. He points out that although the prosecutor argued that he should be treated differently from the other participants in the killing, he in fact received harsher treatment than two of them—Nabors and Cazares, who received prison terms of 11 years and 6 years respectively after pleading to voluntary manslaughter. Merel complains that the prosecutor “allowed” him to stand convicted of the same offense as Magidson and to receive a harsher sentence than Cazares, whom the prosecutor had indicated he believed were more culpable than Merel.
Merel points out that the prosecutor’s duty is not simply to obtain a conviction, but to act as a guardian of the defendant’s constitutional rights and that the prosecutor has a duty not to bring or maintain charges that are not supported by probable cause. (People v. Trevino (1985) 39 Cal.3d 667, 681, disapproved on another ground in People v. Johnson (1989) 47 Cal.3d 1194, 1221; see also People v. Hill (1998) 17 Cal.4th 800, 820 (Hill).) Here, of course, we have already concluded that there was substantial evidence to support the verdict of second degree murder against Merel. In the circumstances, we cannot conclude that the charge was not supported by probable cause.
We also reject Merel’s contention that the prosecutor should have taken the option of a murder verdict out of the jury’s hands because he “invited” the jury to return a lesser verdict. As the portions of the closing arguments discussed above show, it is certainly correct that the prosecutor indicated that he believed Merel’s culpability was different than that of Magidson and Cazares. However, he did not tell the jury he did not believe the evidence would support a murder verdict, instead stating that he was leaving to the jury the question of whether Merel intended by his actions to aid or encourage Magidson and Cazares. If he aided and abetted the commission of a crime, as the jury was instructed, he would also be guilty of that crime. (See Joiner, supra, 84 Cal.App.4th at pp. 966-967.) The fact that the prosecutor indicated that the jury might also conclude Merel was guilty only of assault with a deadly weapon does not mean he believed the evidence would not support a conviction of murder.
Merel’s reliance on People v. Alverson (1964) 60 Cal.2d 803 (Alverson), does not persuade us otherwise. In Alverson, three defendants were tried for burglary. One of them, Williamson, testified that he had driven the getaway car, but that he did not know of the burglary until the other two defendants got into the car, told him they had burglarized a store, and advised him to drive away. (Id. at p. 804.) At trial, the prosecutor asked the jury to believe Williamson, to acquit him, and to convict the other two defendants. In doing so, he told the jury that he believed Williamson was telling the truth and did not think he was guilty of the charge, and said that his duty as a prosecutor was not to convict innocent people, but to convict the guilty. (Id. at pp. 805-806.) The jury acquitted Williamson and found his codefendants guilty. (Id. at p. 804.) One of the codefendants appealed, and our Supreme Court reversed. (Id. at pp. 804, 810.) The court concluded that the prosecutor’s statement that he believed Williamson was innocent and did not want to convict an innocent man amounted to a statement that he personally believed the codefendants were guilty, and that such a statement constituted reversible misconduct. (Id. at p. 808.) The court stated that the prosecutor could have used other procedures once he became convinced of Williamson’s innocence, such as moving for a mistrial or for dismissal of the case against Williamson. (Id. at pp. 806-807.) This precedent, however, is not controlling here. The court in Alverson concluded that the statements in question were unfair to the other defendants, not to Williamson. More importantly, unlike the prosecutor in Alverson, the prosecutor here did not proclaim any belief that Merel was innocent of murder and should be acquitted.
Finally, we reject Merel’s contention that the prosecutor improperly “allowed” the jury to convict him of the same offense as Magidson and “allowed” the court to impose the same sentence on the two men. The prosecutor asked the jury to find Magidson and Cazares guilty of first degree murder, but the jury declined to do so, finding Magidson as well as Merel guilty of second degree murder and failing to reach a verdict as to Cazares. As we have discussed, the evidence supported the verdict against Merel. After two mistrials as to Cazares, the district attorney accepted his plea of voluntary manslaughter and agreed to the midterm sentence. (§ 193, subd. (a).) The trial court imposed the sentence required by law on Merel and Magidson. (§ 190, subd. (a).) We cannot infer from the prosecutor’s partial success that he violated his professional responsibilities or that Merel was deprived of due process, and we certainly cannot blame him for the sentence.
Merel argues, however, that the prosecutor’s failure to concur with his posttrial request to reduce the verdict to voluntary manslaughter deprived him of his due process right to a fair trial. According to Merel, the prosecutor had an ethical duty to concur in his motion, particularly after allowing Cazares to plead no contest to voluntary manslaughter with an agreed-upon sentence of six years. He relies upon People v. Sherrick (1993) 19 Cal.App.4th 657, 660, which states: “ ‘To the extent the prosecutor becomes involved in the sentencing process, he or she should seek to assure that a fair and informed judgment is made on the sentence and to avoid unfair sentence disparities.’ ” We see no violation of this rule here. Whatever the prosecutor’s view of Cazares’s guilt, the jury was unable to reach agreement on the issue. We see no impropriety in the district attorney’s recognizing the difficulty in obtaining a conviction of Cazares and agreeing to a plea bargain. Nor do we see any impropriety in the prosecutor accepting the jury’s verdict against Merel, one that was supported by the evidence.
D. Vouching
In a partially related argument, Magidson contends the prosecutor improperly vouched for Merel’s credibility through friendly cross-examination, through seeking an instruction on assault with a deadly weapon against only Merel, and through his closing argument.
At the prosecutor’s request, and over Magidson's objection, the instruction on assault with a deadly weapon was given as to Merel only. A defendant has no unilateral right to instructions on lesser offenses not necessarily included in the charge. (People v. Birks (1998) 19 Cal.4th 108, 136.)
In cross-examining Merel, the prosecutor asked him whether Magidson had told him he had strangled Lida. Merel initially refused to answer the questions. After a recess, Merel testified that Magidson had told him to say that he had strangled Lida, and that he had taken Magidson’s words to mean that he had in fact done so. The prosecutor asked Merel whether it had been difficult to answer his questions, whether he was reluctant to harm Magidson, and whether he had been telling the truth, and received affirmative answers to those questions. The cross-examination concluded with the following exchange: “Q. This has been—this last three days now have been a difficult experience for you, hasn’t it, Jose? [¶] A. Yeah. [¶] Q. Have you told the truth? [¶] A. Yes. [¶] Q. Was it ever your intention that Lida die that night? [¶] A. No. [¶] Q. How do you feel about the fact that she did? [¶] A. I’ve had a long time to think about it, and just wish it never happened. We wouldn’t all be here. I wouldn’t be talking to you right now. [¶] [Prosecutor]: Okay. Thank you.”
In his closing argument, Magidson’s counsel contrasted the tone of this cross-examination with the prosecutor's harsher treatment of Magidson and Cazares in cross-examination—in which Magidson’s counsel said the prosecutor “yelled at them and sneered at them and was sarcastic with them”—and in rebuttal the prosecutor said: “Could it be that the DA treated the killer [Magidson] and his brother, the helper [Cazares] in a certain way because he was disgusted by the fact that these two would come in, sit down on that witness stand, and lie through their teeth to everyone in this courtroom? Maybe that’s the reason. Could it be that the DA doesn’t see his obligation as tearing everyone down? Could it be that [the] DA doesn’t see his obligation as getting a murder conviction no matter what? Could it be that the DA is looking for an appropriate distribution of criminal liability in this case? Maybe so. [¶] I told you in my opening statement, I don’t see these guys the same, and I maintain that today. I don’t see them the same. I don’t see Jose Merel the same way I see the killer or his brother Jason. Simply don’t. [¶] So if those feelings, they have those views, they have revealed themselves in the way they cross-examined witnesses. You know, guess what? I ain’t trying to hide it from you. Not trying to hide anything.”
The prosecutor expanded on his view of the case and the three defendants in his closing argument. He said of Magidson: “Take a look at him. When you’re looking at him, what you’re looking at is a killer. You’re looking at [a] narcissistic, self-centered, egotistical, shallow, cold-hearted killer. That’s plain and simple. That’s the way I see him. That’s the way I see this case. [¶] So understand what I say flows from that.” He said of Cazares that he was “the killer’s brother, and he has always got the killer’s back, and he is always there to do what’s necessary to look out for this brother, the killer. And you know what that makes him? That makes him a killer. And that’s the way I see him. And it’s important that you realize that.” As we have already discussed, he said of Merel, “I don’t see Jose Merel, whatever he is, I don’t see him as a killer, and that’s a question that you will be asked to determine when it comes to Jose Merel is, whatever he did, when you figure out what he did, you’ll have to ask yourselves if what he did, he did in order to help, to assist in some fashion, to facilitate, to encourage, to aid the killers.” He went on to say, “Make no mistake about it, I see them differently, and understand that is the position that I operate from as an advocate of [sic] the professional, and based on my beliefs, and that’s where I’m coming from. So as I give the remainder of the comments that I have to give, I think you’re entitled to know that.” In addition, he told the jury it had the option of convicting Merel of assault with force likely to produce great bodily injury, and said he was asking for verdicts of first degree murder against “the killer” and “his helper,” Magidson and Cazares, and that he was leaving Merel’s fate in the jury’s hands. He made a similar closing in his rebuttal argument, telling the jury not to let “these two murderers further stomp on this kid that they killed.”
Finally, the prosecutor suggested in his closing argument that Merel had said some things that were untrue in order to protect Magidson, because he was afraid that if he told the truth, Magidson would later testify in a way that would harm Merel. He noted that Merel’s counsel in his opening statement said that after Nabors and Cazares had been gone for 15 or 20 minutes—presumably on the “shovel run”—they had tied up Lida and carried her to the garage. The prosecutor told the jury that Magidson had not “like[d]” the opening statement of Merel’s counsel; this was because, the prosecutor suggested, it would be “devastating” to Magidson’s defense. In the course of this argument, the prosecutor stated, “Now, I can’t tell you what Jose and his attorney talked about. And really, he [Merel’s attorney] can’t get up and say this [is] what he and I talked about. It’s not evidence, but I think you can infer that Jose said things that weren’t true out of fear of what the killer would do.”
In contrast to the facts as described by Merel’s counsel, Merel did not testify that he saw Lida being tied up after Nabors and Cazares had been gone for an extended period.
“ ‘When we review a claim of prosecutorial remarks constituting misconduct, we examine whether there is a reasonable likelihood that the jury would have understood the remark to cause the mischief complained of.’ [Citation.]” (People v. Ayala (2000) 24 Cal.4th 243, 288.) While a prosecutor may not personally vouch for the appropriateness of a verdict he or she urges, it is unobjectionable for the prosecutor to tell the jury of the People’s position on the appropriate result. (Ibid. [no misconduct in prosecutor telling jury she did not ask for death penalty “lightly”].)
“Impermissible vouching occurs ‘where the prosecutor places the prestige of the government behind a witness through personal assurances of the witness’s veracity or suggests that information not presented to the jury supports the witness’s testimony.’ [Citation.] But ‘so long as a prosecutor’s assurances... are based on the “facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief,” [his] comments cannot be characterized as improper vouching.’ [Citations.]” (People v. Zambrano (2007) 41 Cal.4th 1082, 1167 (Zambrano), disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421 & fn. 22; see also People v. Williams (1997) 16 Cal.4th 153, 257 [vouching “ ‘usually involves an attempt to bolster a witness by reference to facts outside the record’ ”]; People v. Adcox (1988) 47 Cal.3d 207, 259 [inappropriate for prosecutor to state personal belief of defendant’s guilt “ ‘based on facts not in evidence,’ ” but appropriate to present views of deductions and inferences warranted by evidence]; People v. Anderson (1990) 52 Cal.3d 453, 479 [prosecutor may not refer to evidence outside record to bolster witnesses’ credibility or attack that of defendant, but may make argument based on facts of record and reasonable inferences].)
As Magidson acknowledges, he did not object at trial to the statements he now challenges. A defendant who fails to raise a vouching objection at trial ordinarily forfeits the claim on appeal. (Zambrano, supra, 41 Cal.4th at p. 1166; People v. Johnson (1992) 3 Cal.4th 1183, 1224 (Johnson); People v. Fierro (1991) 1 Cal.4th 173, 211 (Fierro).) However, such a claim may be raised on appeal if objection or a request for an admonition would have been futile or if an admonition would not have cured the harm. (Hill, supra, 17 Cal.4th at p. 820; see also Johnson, supra, 3 Cal.4th at p. 1224.) Magidson contends that an objection would have been futile because of the “insidious progression” of the vouching throughout the trial. (See People v. Bandhauer (1967) 66 Cal.2d 524, 530.) In addition, our Supreme Court has on multiple occasions considered such a claim on the merits, even if not raised at trial. (See, e.g., Johnson, supra, 3 Cal.4th at pp. 1224-1227; Zambrano, supra, 41 Cal.4th at pp. 1166-1167; People v. Berryman (1993) 6 Cal.4th 1048, 1072, disapproved on another ground in Hill, supra, 17 Cal.4th at p. 823, fn. 1; Fierro, supra, 1 Cal.4th at p. 211.) We will do the same here.
Magidson contends the prosecutor committed “general” vouching when he treated Merel gently in cross-examination, had his parents sit in the front row of the courtroom with an investigator while he testified, sought an assault instruction only against Merel, and made the statements in his closing statement that we have discussed. Although he acknowledges that this “general” vouching may have been ineffective, as shown by the fact that the jury convicted Merel of murder, Magidson argues that he was prejudiced in a more “focused manner” when the prosecutor and Merel’s counsel argued that Merel was holding back information about who had strangled Lida. He contends that when the prosecutor told the jury that he could not tell them what Merel and his attorney had talked about, but that the jury could infer that Merel said things that were not true from fear of what Magidson would do, his words “could only have referred to the cross-examination in which Merel was reluctant to say that [Magidson] had admitted to strangling Lida.” “Could there be,” Magidson asks, “a clearer implication that Jose Merel told [his counsel and the prosecutor] that [Magidson] had said he had strangled Lida?” Magidson argues that the prosecutor’s statement implied that he had special knowledge of facts outside the record, and was a “finger on the scale” that persuaded the jury that it was Magidson, and not Nabors, who had strangled Lida.
Magidson contends that this conclusion is buttressed by Merel’s counsel’s closing argument, in which he stated that he did not believe Merel had told the jury everything he knew, and characterized Magidson’s statement as “words to the effect of, ‘I strangled Lida, so if it comes down to it, you can tell the police that I did it,’ or words to that effect.”
An examination of the relevant portion of the prosecutor’s argument undermines this contention. The context indicates that the challenged statement referred not to whether Magidson had admitted to strangling Lida, but to the question of whether Lida was still alive when Nabors and Cazares went to get the shovels that would be used to bury her. That is, the prosecutor was commenting on the discrepancy between Merel’s counsel’s opening statement, which indicated that Lida was tied up and taken to the garage after Nabors and Cazares returned, and Merel’s testimony at trial, which did not refer to Lida being tied up after Nabors and Cazares’s absence. From that discrepancy, the prosecutor invited the jury to infer that Merel had been less than forthcoming in his testimony out of fear of what evidence Magidson might later give against him. Nothing in this argument implied that the prosecutor had outside knowledge that Merel had told his attorney Magidson had admitted to strangling Lida.
Nor do the other statements Magidson challenges suggest the prosecutor was basing his arguments on knowledge outside the record. We recognize that the prosecutor was vigorous in his characterization of Magidson and Cazares, and that he made no secret of his position that they were more clearly guilty of first degree murder than was Merel. However, in expressing his position, he did not stray outside the record and inferences the jury could draw from the record, and indeed, he invited the jury to make its own decision about Merel’s legal culpability based on the evidence and the law. (See Fierro, supra, 1 Cal.4th at p. 211 [prosecutor invited jury to do its own analysis of the evidence and match it with the law].)
Magidson also cites Alverson in support of his argument. As we have discussed, the prosecutor in Alverson told the jury that he believed one defendant, Williamson, was not guilty of the crime with which he had been charged, that Williamson had told “ ‘what [the prosecutor] consider[ed] a plausible, honest, forthright story,’ ” and that it was the prosecutor’s duty to convict the guilty, not the innocent. (Alverson, supra, 60 Cal.2d at pp. 805-806.) On these facts, the court concluded the prosecutor had “[stood] before the jury like a knight in shining armor, and stat[ed] that he would not think of prosecuting a man he believed to be innocent, and that he personally believed one of the defendants whose testimony had implicated the other two,” and in doing so he had secured an unfair advantage and “disturbed the delicate balance between the defense and the prosecution.” (Id. at p. 808.) That is not the case here. While the prosecutor argued that it was his view that Magidson and Cazares were killers and should be convicted of first degree murder, he did not indicate that he believed Merel’s story and thought him innocent. Indeed, he argued that Merel had testified untruthfully in order to protect Magidson. In the absence of any suggestion that his views were based on information outside the record, we cannot conclude he vouched improperly for Merel’s credibility.
We similarly reject Magidson’s reliance on Kindler v. Horn (E.D.Pa. 2003) 291 F.Supp.2d 323. In considering a petition for a writ of habeas corpus, the district court found that the prosecutor had implied in seeking the death penalty that the commonwealth possessed even stronger evidence of the defendant’s guilt and statutory aggravators than had been presented to the jury and that the argument constituted improper vouching. (Id. at pp. 333, 362-363.) In doing so, the court noted that to find vouching, two criteria must be met: “(1) the prosecutor must assure the jury that the testimony of a government witness is credible; and (2) this assurance must be based on either the prosecutor’s personal knowledge, or other information not contained in the record.” (Id. at p. 362.) After briefing in this case was complete, the Third Circuit Court of Appeals disagreed with the district court’s finding that the argument in question met these criteria. (Kindler v. Horn (3d Cir. 2008) 542 F.3d 70, 87-88.) As we have already concluded, these criteria are likewise not met here.
Accordingly, we reject Magidson’s contention that his conviction should be reversed because of improper vouching.
E. Comments on Magidson’s Counsel
Magidson’s final contention is that the prosecutor committed misconduct in commenting about Magidson’s counsel during closing argument. In his closing argument, Magidson’s attorney told the jury: “I’ve had the privilege and the honor to know Mike Magidson and to represent Michael Magidson, as you know, as you’ve heard, for almost three years, and to get to know him and his family and people close to him, and get a sense not only from that but from the evidence and other people in this case what kind of person he is. [¶] And when I hear the prosecutor refer to him as a pathetic, miserable excuse for a man, a cold-hearted, despicable, miserable human being, as you heard him refer to him on Wednesday afternoon, and other adjectives that I lost track of and couldn’t write down, it didn’t fit with what I know and what you’ve heard in this case.” He then pointed to the favorable evidence of Magidson’s character.
In rebuttal, the prosecutor said: “If [it] were not for Nabors leading the cops up there to that kid’s body in the ground, his family would still be wondering what ever happened to him. You know, all these missing person’s case you see on cable news channel at night, hey, would... have been one of them.... [D]id it matter to the killer, who [Magidson’s counsel] for last three years, it’s been his privilege and honor to know Michael Magidson and represent him. [¶] When you make a statement like that, you know, it’s not evidence. But you’re asking the jury to believe you, and let me tell you, that’s not true. I don’t buy it for a minute. In fact, I’ll go so far as to say that’s a dishonesty. Because [Magidson’s counsel is] a good man. And I know him well enough to know what his true opinion would be about somebody like a killer. [¶] [Magidson’s Counsel:] I’m going [to] object. [¶] [Cazares’s Counsel:] Go off the record. [¶] The Court: Personal opinions are irrelevant. Please proceed. [¶] [Prosecutor:] See, rest assured, he doesn’t feel that way about the killer. But when he tells you that he does, I don’t fault him. He represents the guy. What are you going to do? He [has] got an obligation; takes it seriously. And I applaud him for that.” Magidson contends these remarks improperly impugned the integrity of his attorney and implied that his attorney personally believed him guilty.
“It is misconduct for the prosecutor in argument to impugn the integrity of defense counsel or to suggest defense counsel has fabricated a defense. (People v. Cash (2002) 28 Cal.4th 703, 732 (Cash).) Our Supreme Court has explained the principles governing such claims as follows: “ ‘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.’ ” [Citations.] Included within the deceptive or reprehensible methods we have held to constitute prosecutorial misconduct are personal attacks on the integrity of opposing counsel. [Citation.]’ [Citation.] [¶] Generally, a reviewing court will not review a claim of misconduct in the absence of an objection and request for admonishment at trial. ‘To preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct.’ [Citations.]” (People v. Gionis (1995) 9 Cal.4th 1196, 1214-1215 (Gionis); see also Cash, supra, 28 Cal.4th at p. 733; People v. Bell (1989) 49 Cal.3d 502, 538 (Bell) [improper to make personal attacks on integrity of opposing counsel].)
We first note that Magidson made an objection to the first portion of the challenged argument, and that the trial court admonished the jury that opinions were not relevant. The prosecutor continued with his line of argument briefly, but Magidson made no further objection. We see no reason to believe a further objection and request for an admonition would not have cured any harm. (See Bell, supra, 49 Cal.3d at p. 539; see also People v. Price (1991) 1 Cal.4th 324, 461-462 (Price).) To the extent the admonition was insufficient to respond to the later portion of the argument, Magidson has waived his claim.
In any case, we see no possibility that Magidson was prejudiced by the argument. (See People v. Sandoval (1992) 4 Cal.4th 155, 184 (Sandoval) [no reasonable probability jury would have reached more favorable result absent objectionable comments in argument]; see also People v. Bain (1971) 5 Cal.3d 839, 849 [analyzing prosecutorial misconduct for error under People v Watson (1956) 46 Cal.2d 818, 836].) The challenged argument was brief, and in context it is clear that it was intended to emphasize not any purported dishonesty on the part of defense counsel, but Magidson’s own behavior in taking part in killing Lida and concealing her body. Upon Magidson’s objection to the first part of the challenged argument, the court told the jury that opinions were irrelevant. (See Price, supra, 1 Cal.4th at pp. 461-462 [admonition that prosecutor’s opinion was irrelevant would have avoided any possible prejudice from assertedly improper argument]; see also Sandoval, supra, 4 Cal.4th at pp. 184-185 [initial admonition sufficient to obviate concern that prosecutor had commented on defendant’s failure to testify, although later objection to similar argument overruled].) We see no reason to think the jury could have been improperly swayed by it or that it would have reached any other verdict in its absence.
Magidson argues that the argument implicated his federal constitutional rights under the Sixth and Fourteenth Amendments, and that we must therefore reverse unless the error is harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 23-24; see also People v. Herring (1993) 20 Cal.App.4th 1066, 1077.) We cannot characterize the prosecutor’s brief comments as having “ ‘comprise[d] a pattern of conduct “so egregious that it infect[ed] the trial with such unfairness as to make the conviction a denial of due process.” ’ ” (Gionis, supra, 9 Cal.4th at p. 1214; see also Espinoza, supra, 3 Cal.4th at p. 820.) In any case, even under the standard for reviewing federal constitutional error, we would reach the same conclusion.
III. DISPOSITION
The judgments are affirmed.
RIVERA, J.
We concur: RUVOLO, P.J., REARDON, J.