Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. VCR196753.
RUVOLO, P. J.
Appellant was identified as one of three or four young men who were seen coming out of a house that had just been burglarized. Appellant’s defense at trial was mistaken identification. On appeal, he contends that the prosecutor committed misconduct in closing argument in two respects, contending that: (1) the prosecutor’s stated reason for not calling additional police officers to testify constituted improper vouching, and (2) the prosecutor improperly accused appellant’s trial counsel of wasting taxpayer money by hiring an expert to present testimony on eyewitness identification.
As to the first argument, we conclude that the issue was forfeited by appellant’s trial counsel’s failure to object, and that on the merits, the prosecutor’s argument did not constitute improper vouching. As to the second argument, we conclude that the argument was not improper, and that in any event, any error was harmless. Accordingly, we affirm.
FACTS AND PROCEDURAL BACKGROUND
Burglary and Arrest
On March 19, 2008, at about 11:30 a.m., a man named Don Morgan was sitting in his living room when he saw four teenaged Black men, all wearing hoodie sweatshirts, walking past his house. He observed them for about 10 or 15 seconds, and did not recognize any of them. They looked at him through his screen door, possibly because he had his television turned up loud, but could not really see him; he could see them, however, “just as plain as day” from about 49 feet away, but he did not see that they were carrying backpacks. Morgan believed that they did not live on his street, because no one on his block had children that age. After the young men passed his door, Morgan went outside, and heard glass breaking. Concerned that the young men were breaking into his neighbors’ house next door (the burglarized house), Morgan called 911.
All further references to dates are to the year 2008 unless otherwise indicated. As of March 19, 2008, appellant was 18 years old.
The prosecution’s theory was that the men had their backpacks hidden under their outer clothing.
Morgan did not actually see anyone enter the burglarized house, but his suspicions later proved to be correct. When the occupants of the burglarized house returned home, they found that someone had broken a rear window, disturbed the contents of the bedrooms, searched through drawers, and taken some jewelry and several pairs of expensive shoes.
Meanwhile, several police officers were dispatched in response to Morgan’s call to 911. The first to arrive were Douglas Wilcox and his partner, Officer Muster. Wilcox recalled hearing a broadcast indicating that three young Black men were involved. This was inconsistent with Morgan’s testimony, and with the transcript of the 911 call played for the jury at trial, both of which indicated that there were four suspects.
After Morgan directed him to the burglarized house, Wilcox saw three Black male teenagers coming out of a door in the carport area of the burglarized house, and ordered them to stop. One complied, but the other two ran away. The one who complied was D.L., a juvenile. D.L. had a backpack with shoes in it, and was arrested on the spot. D.L. later admitted being involved in the burglary, and was convicted of first degree burglary in juvenile court.
Meanwhile, Wilcox chased one of the suspects who fled. The fleeing suspect was wearing a gray sweatshirt and dark pants, probably blue or black jeans, and carrying a black backpack. When Wilcox first saw the fleeing suspect, he was 10 or 12 feet away, and Wilcox had a clear view of him, but he was only able to see his face for “a brief second.” Wilcox focused on the suspect’s face during the chase, however.
Wilcox chased the suspect over fences and through neighboring backyards, and then watched for about 10 seconds as the suspect paused in one of the backyards and took off the sweatshirt and backpack, leaving them under a table. When the suspect took off his sweatshirt, Wilcox saw that he was wearing a white t-shirt underneath it. During this time, Wilcox had a clear view of the suspect from about 16 feet away, and focused on his face. After the suspect discarded the sweatshirt and backpack, Wilcox thought he was going to head toward where another officer was waiting. Wilcox therefore stopped chasing the suspect, and radioed the other officer to alert him. However, the suspect went in a different direction than Wilcox had expected, and Wilcox then lost sight of him.
Wilcox later recovered the sweatshirt and backpack from the backyard in which the suspect had left them, and took them back to the burglarized house, where another officer photographed them. The items found in the backpack were later identified by the occupant of the burglarized house as being among the things that had been stolen from her. The police did not identify anything in the backpack that connected it with appellant, and did not do any testing to try to determine whose backpack it was. The gray sweatshirt was given to the burglary victims by mistake.
Another police officer named Edward Barrientos also responded to the burglary report, accompanied by his partner, Lloyd Douglas. Barrientos heard a report that a suspect in a white t-shirt was running northbound from the burglarized house, so he went to the next street north. Barrientos was then told that the suspect was now headed southbound, so he and his partner drove south in order to try to head off the suspect. He saw appellant running southbound along the street, alone, possibly talking on a cell phone. Appellant was wearing a white t-shirt and blue jeans, and for that reason matched the description of the suspect whom Wilcox had been chasing earlier. Accordingly, Barrientos turned on his lights and sounded his siren. After Barrientos got out of his car, appellant kept running, so Barrientos unholstered his taser and yelled to appellant to get down on the ground. At that point, appellant complied, and was detained. At around that time, Barrientos was told that D.L. had been detained at the burglarized house.
Douglas testified at trial that he was already in position on the next street north, as part of a general effort to place officers all around the perimeter of the burglarized house, when he heard the report about the suspect in the white t-shirt running north. Another officer, Mary Pedretti, testified that in response to the burglary report, there were five or six officers present doing “yard-to-yard searches” in the general area near the burglarized house.
Wilcox heard over the police radio that Barrientos had caught a young man running along the street. Wilcox estimated that Barrientos detained appellant about three to five minutes after Wilcox lost sight of the fleeing suspect. When Wilcox arrived at the scene, he immediately identified appellant as the suspect, who then became angry and verbally abusive as he was being taken to the police station. When Wilcox identified appellant, the latter was handcuffed, and was the only person shown to Wilcox as a possible match for the fleeing suspect. At trial, Wilcox testified that he was a “[h]undred percent” certain that appellant was the person he had been chasing.
Police dispatch records introduced into evidence at trial showed that Wilcox arrived at the burglarized house at 11:27 a.m., and Barrientos arrested appellant at about 11:36 a.m.
Ricardo Bautista, a parole agent, testified that he was in the area that day, planning to visit the home (the parolee’s house) of a parolee who was under Bautista’s supervision. When he arrived, however, Bautista could see that there was a lot of police activity in the area, so he parked and waited to see what it was about. While he was watching, Bautista saw a Black man about 17 or 18 years old, wearing a long white t-shirt and blue or black jeans, leave the parolee’s house. Bautista did not see the young man’s face, did not recognize him as someone he had seen before, and would not have been able to identify him. The man was with a young Black woman and a child about six years old. The woman was someone whom Bautista did recognize, though he did not recall her name; he had often seen her in the parolee’s house. The three people Bautista saw were walking, not running. As the three people walked along the street where Bautista was parked, he saw some police officers detain and handcuff the young man, at which point the woman and child walked away. After the young man was arrested, Bautista identified himself to the police officers, told them that he had just seen the young man leave the parolee’s house, and asked if there was any way he could help the officers.
D.L., the young man who was arrested at the burglarized house and later confessed to participating in the burglary, lived at the parolee’s house.
The defense investigator testified at trial that he tried to find the young woman, and did get a statement from her by telephone, but was unable to serve her with a trial subpoena.
In order to look for the other burglars, Barrientos and several other police officers entered the parolee’s house at around noon. Bautista accompanied them, planning to conduct a parole search. There were three or four young Black men in the house. Bautista had not seen the young men enter, but they could have come in through a sliding glass door in the rear without his seeing them.
Two of the men found in the parolee’s house, Terry Jasper and E.S., a juvenile, were arrested at the house around noon, after Morgan identified them. Morgan also identified appellant. At the time of these identifications, Morgan was in his own car, some distance along the street from the suspects, and appellant was shown to Morgan in police custody and wearing handcuffs.
The parties stipulated at appellant’s trial that Jasper was later convicted of second degree burglary, and that at the time of trial, proceedings were pending against E.S. in juvenile court.
TRIAL AND CONVICTION
On April 23, the Solano County District Attorney filed an information jointly charging appellant and Jasper with one count of first degree residential burglary. (Pen. Code, § 459.) For reasons not evident from our record, but not relevant to the issues on appeal, the two defendants were tried separately. Appellant’s jury trial took place on June 11 and 12.
All further statutory references are to the Penal Code unless otherwise noted.
Appellant’s defense was that he had been misidentified. In contending that appellant was properly identified as one of the burglars, the prosecution relied in part on the testimony of Wilcox, who was sure that appellant was the same person whom he had chased from the burglarized house before losing sight of him. To counter this, appellant relied on the testimony of Bautista, who was called as a defense witness, and who stated that he saw appellant come out of the parolee’s house shortly before the police arrested him, and that appellant was walking with a woman and child rather than running.
The prosecution also relied on the testimony of Morgan, the neighbor who called the police. Morgan testified that he was 98 percent sure that appellant was one of the four young men whom he had seen passing his house shortly before the burglary. Morgan also testified, however, that he was 98 percent sure that he had seen appellant leaving the driveway of the burglarized house, carrying a backpack and wearing a gray or black hoodie, and that it was appellant whom he observed being questioned by the police in the driveway, and then arrested there. This testimony was directly contradicted by the evidence that appellant was not arrested until Barrientos caught him several minutes later, a few blocks away. From the evidence, it appears that the person whom Morgan saw being arrested in the driveway was not appellant, but D.L. In addition, Morgan did not recall identifying appellant to the police that day as one of the people in the group that passed his house, and admitted on cross-examination that he did not know how many people entered the house, or whether appellant was one of them.
The jury was instructed, and the prosecution argued, that if appellant was the suspect whom Wilcox chased, he could be found guilty on an aiding and abetting theory based on the presence of stolen items in the backpack he dropped, so it did not matter whether or not he actually entered the burglarized house. Appellant does not contest this on appeal.
As part of appellant’s defense case, he presented the testimony of a psychologist, Dr. Robert Shomer, as an expert on perception, memory, and eyewitness identification. Shomer characterized eyewitness identification as “the least reliable means of identification we have.” Shomer testified that a study by the United States Department of Justice had found that in cases in which a criminal defendant was convicted, but later exonerated by DNA evidence, 80 percent of the convictions were due to erroneous eyewitness identification. The same study cautioned, and Shomer agreed, that field showups were inherently suggestive and had a very high rate of error. Shomer also noted that an erroneous field showup can influence a later identification conducted with a different procedure.
Shomer testified that stress, such as that experienced while chasing someone, interferes with the brain’s ability to perceive and remember information, and interferes significantly with the ability to make a good identification. He stated that contrary to “the commonsensical notion” and the beliefs of police officers themselves, substantial research has shown that “[t]rained police officers are no better at facial recognition than the average citizen,” even when they are very experienced and “streetwise.” In addition, he testified that the level of a person’s confidence in their identification bears no relationship to how accurate the identification actually is.
Shomer noted that although cross-racial identifications tend to be even less accurate, the accuracy rate for identification of person’s of the viewer’s own race is only relatively higher. Shomer testified that when the person to be identified is wearing any kind of clothing, such as a hood, that conceals the hair, hairline, and shape of the head, and casts shadows on the face, this interferes very significantly with the viewer’s ability to identify the person. He also noted that an identification may be made because a person looks familiar, even if the familiarity is due to some source other than actually having seen the person commit a crime. In response to hypothetical questions based on the facts of this case, Shomer opined that identifications made under such circumstances would not tend to have a high degree of accuracy.
Based on the hypothetical questions posed to the defense expert by appellant’s trial counsel, and on the prosecutor’s closing argument, it appears that Morgan was Black.
On June 13, the jury found appellant guilty as charged. On July 14, the trial court suspended imposition of sentence and placed appellant on probation for three years, with conditions including serving 180 days in county jail. This timely appeal ensued.
DISCUSSION
A. Comment on Lack of Testimony from Other Officers
Police records introduced by the defense showed that numerous officers responded to Morgan’s 911 call. The prosecution presented only the testimony of officers Wilcox, Barrientos, Walker, and Tolentino. Anticipating a defense argument that the prosecution should have called the other officers as witnesses, the prosecutor conceded in his closing argument that “[t]here were many other police officers out at the scene,” and opined that “[i]f they testified, we could have dragged this trial into next week.” He contended that “[i]f they would have had [sic] something relevant to say [as to] whether or not [appellant] was involved in this case, we would have called them,” and that although “[t]hey were obviously on the scene, but... there’s nothing relevant they would have added.” (Italics added.) As an example, he cited Pedretti, who testified that she was involved in the effort to catch the burglars, but who he said “had nothing to do with [appellant].” He represented that “that’s basically what other officers would have probably said, because they didn’t catch him. They didn’t chase him.”
In addition, officers Douglas and Pedretti testified in the defense case.
As the prosecutor anticipated, appellant’s trial counsel noted in his closing argument that “there’s a lot more that could have been brought out here.” As an example, he noted that the prosecution had not produced officer Bottomley to explain a portion of the incident report in which Bottomley reported seeing a “gray hoodie, hi tops,” but then apparently retracted that report. In rebuttal, the prosecutor responded to this by pointing out that appellant could have subpoenaed Bottomley to testify, as he did with officers Douglas and Pedretti. He also noted that six officers had testified, and stated that “[i]f the other ones had something pertinent to add, they would have been here. [¶] They were out there setting up perimeters, doing other things. They were not relevant in this case.” (Italics added.) He explained that as a prosecutor, he was trained not to bore the jurors or waste their time.
Appellant now contends that the portions of the prosecutor’s argument quoted or summarized above constituted improper vouching. Appellant’s trial counsel did not object to this argument, however, or ask for an admonishment. “Generally, a reviewing court will not review a claim of [prosecutorial] 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, 1215; see also People v. Riggs (2008) 44 Cal.4th 248, 298-299; People v. Crittenden (1994) 9 Cal.4th 83.) Appellant acknowledges the application of this rule here, but argues that the asserted misconduct still warrants our review.
Considering the merits of his claim of misconduct, we conclude that no misconduct occurred. In the cases on which appellant principally relies, People v. Hall (2000) 82 Cal.App.4th 813 and People v. Woods (2006) 146 Cal.App.4th 106, the prosecutors made affirmative representations that the testimony not presented would have corroborated existing testimony and confirmed the defendant’s substantive guilt. Both cases are therefore distinguishable.
In People v. Hall, supra, 82 Cal.App.4th 813, police officer Williams testified that he and his partner, Tinsley, had arrested the defendant for being under the influence of cocaine, and then found cocaine in the defendant’s pocket when they searched him. (Id. at p. 815.) Defense counsel argued that the testifying officer was not credible, and pointed out that Tinsley had not been called as a witness. (Id. at p. 816.) In rebuttal, the prosecutor stated that “ ‘If Officer Tinsley had some kind of fantastic light to shed on this case to exonerate this defendant, you know that this attorney would have called Officer Tinsley.’ ” After the defendant’s counsel’s objection to this line of argument was overruled, the prosecutor went on to argue that defense counsel was “ ‘suggesting that we are hiding Officer Tinsley because he’s going to reveal something some kind of incredible evidence to exonerate her client. And that’s just not the case. You could have heard repetitive testimony from Officer Tinsley, basically telling you the same thing, that he was there and recovered the rock....’ ” (Ibid., italics added.) The defense counsel’s objection was again overruled.
Thus, in People v. Hall, supra, 82 Cal.App.4th at page 813, the prosecutor in effect represented to the jury that Tinsley’s testimony would have substantively corroborated Williams’s testimony regarding the defendant’s guilt. The appellate court held that this was reversible error, reasoning that “the prosecutor went too far when he told the jury the absent witness’s testimony would have been repetitive. The effect of this argument was to tell the jury that the witness, if called, would have testified exactly as Officer Williams did, in a manner favorable to the prosecution. This was misconduct. [Citation.]” (Id. at p. 817.)
Here, in contrast, the prosecutor did not characterize the hypothetical testimony of the non-testifying officers as corroborative of existing testimony; rather, he characterized it as irrelevant. In the context of the overall state of the evidence, this argument essentially asked the jury to draw an inference that during the chaotic search for the burglars, none of the non-testifying officers either spotted Wilcox’s fleeing suspect, or saw what appellant was doing before his arrest, and therefore that none of them was in a position to shed light one way or the other on whether appellant and the fleeing suspect were the same person. Accordingly, this argument did not constitute vouching, and even if it did stray impermissibly close to relying on facts outside the record, it did not go so far over the line that it could not have been cured by an admonition to the jurors not to speculate as to what the officers’ testimony would have been if they had been called. (Cf., e.g., People v. Hughey (1987) 194 Cal.App.3d 1383, 1396 [prejudicial effect of mild misconduct during argument may be dissipated by instruction that statements of attorneys are not evidence].)
In the other case on which appellant relies, People v. Woods, supra, 146 Cal.App.4th 106, the prosecutor committed numerous instances of misconduct in closing argument, to each of which defense counsel objected, only to be overruled. The prosecutor rebutted defense counsel’s attack on a testifying officer as being a “bad cop” by stating that evidence of the officer’s wrongdoing did not exist (id. at p. 112); “implicitly suggested that all 12 unidentified, mostly non-testifying officers, would testify to the same factual version of what occurred” as the officers who did testify (id. at p. 115); and attempted to rebut the defense’s argument that the police version of his open drug sale activity was implausible by stating, without any evidentiary foundation, that “[i]t is a regular swap meet in Los Angeles County right now, ladies and gentlemen. If you want the drugs, you can pretty much drive up to any street in Los Angeles....” (Ibid.) The appellate court reversed, holding that the prosecutor “engaged in multiple instances of misconduct,... several [of which] were significant.” (Id. at p. 118.)
Obviously, the prosecutorial misconduct involved in People v. Woods, supra, 146 Cal.App.4th 106, was far more pervasive than what appellant argues occurred in the present case. More importantly, it involved affirmative representations by the prosecutor concerning the substance of testimony and facts outside the record, not merely a statement that the testimony of non-witnesses would have been irrelevant. Thus, People v. Woods is distinguishable on its facts, and does not persuade us that the prosecutor’s asserted misconduct in the present case warrants reversal.
In the alternative, appellant argues that we should reverse on the basis that trial counsel’s failure to object constituted ineffective assistance of counsel. To prevail on an ineffective assistance of counsel claim, the defendant must demonstrate by a preponderance of the evidence both (1) that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) that there is a reasonable probability that the verdict would have been more favorable to the defendant if counsel’s performance had not fallen below the applicable standard. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Weaver (2001) 26 Cal.4th 876, 925; People v. Ledesma (1987) 43 Cal.3d 171, 215-218.)
Initially, we note that having found the comment by the prosecutor not to be impermissible vouching, it plainly met the standard of care for defense counsel not to object to the comment. For this reason alone, appellant’s ineffective assistance claim fails. Additionally, we conclude that even if the statement was misconduct, defense counsel had a tactical reason not to object.
Reviewing courts defer to trial counsel’s reasonable tactical decisions, and “should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight.” (People v. Scott (1997) 15 Cal.4th 1188, 1212; see People v. Jones (2003) 29 Cal.4th 1229, 1254; People v. Garvin (2003) 110 Cal.App.4th 484, 490.) Moreover, when a claim of ineffective assistance of counsel is raised on direct appeal, the conviction will be reversed only if the record affirmatively discloses that counsel had no rational tactical purpose for the challenged act or omission. (People v. Fosselman (1983) 33 Cal.3d 572, 581; see also People v. Hart (1999) 20 Cal.4th 546, 623-624 [“ ‘To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment “unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation...” [Citation.].’ ”].)
Appellant contends that his trial counsel “could have had no tactical reason for failing to object,” because the gist of his defense was to raise a reasonable doubt by pointing to indications that the law enforcement officers who did not testify could have had conflicting information. We disagree. Appellant’s trial counsel may have decided that objecting to the prosecutor’s remarks would have given the prosecutor an opportunity to reinforce the notion that the non-testifying officers’ testimony would have been entirely irrelevant, or would have triggered an admonition from the trial court that the jurors were not to speculate about what the officers would have said. Either response would have undercut appellant’s efforts to encourage the jurors to consider the failure to call additional officers as a damaging factor against the prosecution’s case.
Accordingly, on this record it appears that appellant’s counsel had a tactical reason for failing to object. Thus, there is no basis for us to conclude that his performance fell short of constitutional standards. Moreover, because the nature of the prosecution’s assertedly objectionable remarks was not damaging to appellant’s case, we also are not prepared to conclude that there is a reasonable probability that the verdict would have been more favorable to appellant if his counsel had objected.
Comment on Expenditure for Expert Witness
In his closing argument, the prosecutor began his discussion of Shomer’s expert testimony on eyewitness identification by noting that Shomer charged “[b]asically $3,000 to testify [for] about an hour in court,” and added that the prosecution would not have called him to testify, “because that wouldn’t be a prudent use of the taxpayers’ money.” Appellant’s counsel immediately objected that this was improper, because it was “[b]ased upon appeals to public policy and tax payer [sic] money.” The trial court overruled the objection, saying that the court did not think that was what the prosecutor was doing. The prosecutor then went on to argue that Shomer’s testimony could be summed up “in a couple of sentences,” and that “[b]asically he’s saying people make mistakes in identification, and it happens.”
Appellant’s trial attorney, in turn, emphasized in his closing argument that Morgan, though apparently trying to be truthful, had demonstrably misidentified appellant. He called Morgan’s testimony “a shining example of eye witness misidentification and the... inherent problem we have with... eye witness identification,” and characterized such testimony as “the weakest evidence of all.” It was for that reason, he explained to the jury, that “we brought Dr. Shomer in[] to show you the psychological fallacies and to hopefully try to dispel the myth that police officers are better at making ID... than anyone else.” Later, appellant’s counsel reminded the jury of Shomer’s testimony “that confidence is not an indicator of reliability,” using the example of persons convicted of rape based on the victim’s identification testimony, but later exonerated by DNA evidence.
Toward the end of his argument, appellant’s trial counsel returned to Shomer’s testimony, reiterating that counter to what the jurors might believe, “[p]olice officers are not any better than the average citizen in making identifications.” He also reminded them again of Shomer’s testimony that “stress adversely affects identification.”
In rebuttal, the prosecutor argued that “Dr. Shomer was a waste of an hour and fifteen minutes. He got paid 3,000 bucks. Good for him. People make mistakes during identification but, you know, I don’t think you need to come in and get paid extra to say that. And he couldn’t even render an opinion on whether or not these identifications were correct or not anyway, so whatever.”
Appellant now argues that the prosecutor’s references to the amount Shomer received for his services constituted misconduct, because it “diverted the jury’s attention from considering the weight to be placed on Dr. Shomer’s expert testimony by focusing the jury instead on the issue of how the defense had spent scarce public money,” which was particularly problematic in light of the state’s fiscal crisis at the time of trial. He concedes that it is proper to comment on the amount of money that an expert witness is receiving for his or her services. (People v. Gray (2005) 37 Cal.4th 168, 217.) He contends, however, that the prosecutor went beyond the permissible scope of such comment when he suggested that the defense had wasted tax dollars by paying Shomer to testify.
Appellant recognizes that an argument similar to the one he makes here was rejected by our Supreme Court in People v. Gray, supra, 37 Cal.4th at pp. 214-217. He argues that the present case is distinguishable, however, because the defendant’s trial counsel in that case did not object to the prosecution’s argument. However, while the Supreme Court did state in People v. Gray that the contention had been forfeited by the defendant’s trial counsel’s failure to object, it went on to consider the merits nonetheless, ultimately holding that “even had [the defendant] preserved the claim by objecting, we find the prosecutor did not act improperly in attempting to impeach [the expert’s] qualifications.” (Id. at p. 217.)
Appellant also argues that People v. Gray, supra, 37 Cal.4th 168, is distinguishable because the prosecutor in People v. Gray did not expressly contend that the tax dollars paid to the expert were wasted. In that case, however, the Supreme Court rejected the argument that “the prosecutor, by mentioning that taxpayers ultimately would pay [the expert’s] compensation, improperly appeal[ed] to the jurors’ self-interest.” (Id. at p. 216.) The court reasoned that because “it is common knowledge that the trial judge, the prosecutor, the prosecution expert witnesses, and even appointed defense counsel [are] all paid from the public coffers, we cannot conclude the attempt to impeach [the expert] with the information [that] the public paid his fee played improperly on the jurors’ emotions.” (Id. at pp. 216-217.)
Applying that reasoning to the specific facts of this case, the prosecutor’s remarks here also did not rise to the level of prosecutorial misconduct. The main thrust of the prosecutor’s argument was to attack the weight of the expert opinion by characterizing it as adding nothing to the commonsense idea that people make mistakes in identifying others. Such an argument is clearly proper, and appellant does not contend otherwise. In that context, the brief mention of Shomer’s compensation as being a waste of money was not so diversionary as to constitute a distraction from the real issues, nor was it an improper appeal to the jurors’ self-interest or an overt denigration of defense counsel.
Moreover, to the extent that the prosecutor’s argument bordered on the improper, it is clear from the record that appellant’s trial counsel succeeded in dissipating any possible prejudice from it. In his own argument, he made a thorough and persuasive case to the jury that Shomer’s testimony was anything but a mere reiteration of commonsense principles. He reminded the jury of Shomer’s testimony that research studies had refuted a number of commonly held misconceptions about eyewitness identification, such as the belief that trained police officers are better at it than ordinary people; that a very confident identification is probably accurate; and that misidentifications rarely occur when the witness and the person identified are of the same race.
No reasonable juror could conclude, after being forcefully reminded of this evidence, that appellant’s counsel had wasted their time and tax dollars by presenting Shomer’s testimony. Accordingly, on this record, we cannot conclude that it is more probable than not that the outcome of the trial would have been more favorable to appellant if the prosecutor had not deprecated Shomer’s testimony as he did. (People v. Watson (1956) 46 Cal.2d 818, 836.)
For much the same reasons, we find no violation of appellant’s federal constitutional rights in the prosecutor’s argument. We therefore need not determine whether the misconduct, if misconduct it was, was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) Appellant also contends that the cumulative effect of the prosecutor’s misconduct was prejudicial and deprived him of due process, requiring reversal. Because we have sustained none of appellant’s individual claims of misconduct, we reject this contention as well.
DISPOSITION
The judgment is affirmed.
We concur: REARDON, J., RIVERA, J.