Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. BA324675 Bob S. Bowers, Judge.
Donald R. Tickle, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, and Catherine Okawa Kohn, Deputy Attorney General, for Plaintiff and Respondent.
MANELLA, J.
RELEVANT PROCEEDINGS
On January 2, 2008, an information was filed charging appellant Jesus Alonso Perez with the attempted second degree robbery (Pen. Code, §§ 211, 664) and murder (Pen. Code, § 187, subd. (a)) of Antonio Torres Simental. The information alleged that the murder had been committed during the attempted robbery (§ 190.2, subd. (a)(17)), and that appellant had personally used a knife in committing the offenses (§ 12022, subd. (b)(1)). Appellant pleaded not guilty and denied the special allegations.
All further statutory citations are to the Penal Code.
A jury found appellant guilty of first degree murder but not guilty of second degree attempted robbery, and found true only the allegation that appellant had used a knife in committing the murder. The trial court sentenced appellant to a total term of imprisonment of 25 years to life. This appeal followed.
FACTS
A. Prosecution Evidence
On June 16, 2007, J. C. Clines worked as a security guard at the Hubert Humphrey Health Clinic on Slauson and Main Street in Los Angeles. At approximately 9:45 p.m., he was in the clinic’s control room, viewing the monitor of a security system whose cameras he controlled with a “joy stick.” When Clines noticed a car traveling on Main Street, he decided to focus a camera on the car. The car stopped near the clinic’s main parking lot, and after several minutes, the driver left the car and walked toward another man seated on a brick wall facing Main Street. After the driver and the man engaged in a struggle, the driver folded up what appeared to be a knife. Clines shifted the camera to follow the driver as he returned to his car and drove away. When Clines moved the camera in the direction of the brick wall to locate the other man, he saw a person lying on the far side of Main Street. A video recording of the incident viewed by Cline was played for the jury.
Los Angeles Police Department (LAPD) officers found Antonio Simental lying on Main Street with stab wounds to his chest. Simental died of his wounds while being transported to a hospital. Officers located the car shown in the video recording from the clinic’s security camera and arrested appellant, its registered owner.
On June 21, 2007, LAPD Detectives Miguel Terrazas and Dennis Fanning interviewed appellant in a room equipped with an audio recorder. After Terrazas advised appellant of his rights under Miranda v. Arizona (1966) 384 U.S. 436, appellant agreed to speak with the detectives. Appellant initially denied any role in the incident involving Simental. During an unrecorded break, the detectives took appellant from the interview room to Terrazas’s cubicle, where appellant watched the video recording from the clinic’s security camera. When appellant returned to the audio equipped interview room, he told the detectives that he had tried to rob Simental. Appellant also stated that he struck Simental while holding a knife, without intending to “stick[]” him. Recordings of the interview were played for the jury, and it received translations of the recordings.
Appellant and Terrazas spoke Spanish during the interview.
B. Defense Evidence
Appellant testified on his own behalf. According to appellant, he was born in Mexico, and emigrated to the United States 15 or 16 years before the trial. He worked as a roofer, but lost his job. For three months prior to Simental’s death, appellant lived in a vacant lot. During that period, appellant consumed cocaine and alcohol, as did other inhabitants of the lot. Simental passed the lot and called its inhabitants “drunks, ” “scum, ” and “worthless.” Later, Simental and his friends repeatedly attacked appellant.
Appellant further testified that after he obtained some work, he bought a car. While driving to buy liquor, he saw Simental and stopped his car to confront him. According to appellant, he did not intend to rob or kill Simental, but to “fight[] with him the same way that he [Simental] would fight [appellant] with his friends.” Appellant did not remember carrying a knife; he recalled only that he fought Simental, who ran away.
DISCUSSION
Appellant contends (1) that the trial court incorrectly denied his motion to suppress his admissions to Detectives Terrazas and Fanning, (2) that there was instructional error, and (3) that the prosecutor engaged in misconduct. Finding no error, we affirm.
A. Admissions
Appellant contends that the trial court erred in concluding that his admissions to Terrazas and Fanning were voluntary. Appellant does not dispute that he was advised of his Miranda rights, which he expressly waived. His sole contention is that his statements were the result of coercive circumstances, including offers of leniency and other misconduct by the detectives.
1. Governing Principles
“The Fourteenth Amendment to the federal Constitution and article I, section 15, of the state Constitution bar the prosecution from using a defendant’s involuntary confession. [Citation.]... [¶] Under both state and federal law, courts apply a ‘totality of circumstances’ test to determine the voluntariness of a confession. [Citations.] Among the factors to be considered are ‘“the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity” as well as “the defendant’s maturity [citation]; education [citation]; physical condition [citation]; and mental health.”’ [Citation.]... In determining whether a confession was voluntary, ‘[t]he question is whether defendant’s choice to confess was not “essentially free” because his will was overborne.’ [Citation.]” (People v. Massie (1998) 19 Cal.4th 550, 576.)
The standard of review applicable to the findings of the trial court hinges on the subject matter of the finding in question. “[T]he determination of a trial court as to the ultimate issue of the voluntariness of a confession is reviewed independently in light of the record in its entirety, including ‘all of the surrounding circumstances....’ [Citations.]” (People v. Benson (1990) 52 Cal.3d 754, 779, quoting Schneckloth v. Bustamonte (1973) 412 U.S. 218, 226.) Similarly, findings regarding “whether coercive police activity was present, whether certain conduct constituted a promise and, if so, whether it operated as an inducement” are subject to independent review as well. (Ibid.) In contrast, “the trial court’s findings as to the circumstances surrounding the confession -- including ‘the characteristics of the accused and the details of the interrogation’ [citation] -- are [] subject to review for substantial evidence.” (Ibid.)
2. Underlying Proceedings
After the preliminary hearing, appellant filed a motion to suppress his statements to Terrazas and Fanning on the ground that they were not voluntary. At the hearing on the motion, the trial court heard testimony from Terrazas and two psychologists, Drs. David Jimenez and Armando De Armas, and it reviewed audio recordings and transcripts of the detectives’ interview with appellant.
Terrazas testified that appellant was interviewed at noon on June 21, 2007, approximately five and one-half hours after his arrest. Terrazas spoke to appellant in Spanish. Also present was Fanning, who does not speak Spanish. The interview occurred in two segments, separated by an interruption of approximately 23 minutes. During the initial segment, which lasted approximately 45 to 50 minutes, the detectives displayed some “stills” from the video recording taken by the clinic’s security camera, but did not show appellant the video recording. The detectives then halted the interview, and decided to show the video recording to appellant. Because the interview room lacked video display devices, they led appellant to Terrazas’s cubicle to view the video recording and returned him to the interview room, where the interview resumed.
The transcript of the initial segment of the interview discloses the following facts: When Terrazas questioned appellant about his activities on June 16, 2007, appellant stated that he had remained all night at the lot at which he had been residing, and denied that he had loaned his car to anyone. As the interview progressed, Terrazas explained that his inquiries concerned a murder, rather than -- as appellant apparently believed -- an outstanding arrest warrant. Terrazas said that he had a video recording showing appellant driving his car on Main Street, stopping, and stabbing Simental. In addition, Terrazas told appellant (falsely) that passersby remembered seeing appellant, that the officers had found appellant’s footprint, and that the video recording disclosed the license plate number of appellant’s car and the presence of a female passenger. Appellant repeatedly denied that he was present at the scene of the murder.
In response to appellant’s denials, the detectives urged appellant to tell the truth and provide his “side of the story.” The detectives said that they could help appellant only if they knew what the fight was about, and that they could tell the judge that appellant was sorry only if he told them the truth. In addition, they suggested that he may have acted in self-defense. At one point, Terrazas asked appellant whether he believed in God. When appellant answered in the affirmative, Terrazas said “[i]t’s a sin... to tell lies.”
The detectives also told appellant that his statements had consequences for the “[t]he rest of [his] life, ” and that if appellant persisted in his denials, he would “go... to jail for the rest of [his] life.” In connection with these remarks, the detectives explained that a jury was likely to convict him of murder on the basis of the video recording. Toward the end of the initial portion of the interview, Terrazas elaborated on this theme. He said: “You’re going to jail no matter what. You know what... the difference will be? [Either] you want to go to jail for the rest of your life or for just a few years. That will be the difference.” Shortly afterwards, Terrazas stated: “[I]f I’m going to jail, I’d rather do a few years instead of the rest of my life.” Near the end of the initial portion of the interview, Terrazas predicted that after appellant had been convicted of murder on the basis of the evidence in the detectives’ possession, appellant would say, “‘It would have been better for me to do five years and come out in two than to be in all my life.” When appellant responded, “I didn’t do anything, ” the detectives halted the interview.
According to Terrazas, after appellant watched the video recording, a third detective accompanying Terrazas and Fanning asked appellant why he had stabbed Simental. When appellant answered that “it wasn’t supposed to happen that way, ” Terrazas and Fanning escorted appellant back to the interview room. The transcript of the second segment of the interview discloses that appellant told the detectives that he had intended to rob Simental. Appellant also admitted that he struck Simental while holding a knife, but denied that he had “the intention of sticking him.”
Dr. David Jimenez testified that he had administered the Slauson Full Range Intelligence Test to appellant. Dr. Jimenez saw no signs that appellant malingered while taking the test. According to Dr. Jimenez, appellant’s I.Q. score under the test was 57, which was suggestive of mental retardation. Dr. Jimenez nonetheless believed that appellant’s I.Q. had been higher, in view of appellant’s level of education and social history. He opined that before appellant had engaged in substance and alcohol abuse, appellant’s I.Q. fell between 71 and 84, which Dr. Jimenez characterized as “[t]he borderline range of intelligence.” During cross-examination, Dr. Jimenez conceded that individuals within that range were capable of functioning effectively in society.
Dr. Armando De Armas testified that the Slauson Full Range Intelligence Test is inappropriate for people of appellant’s age and cultural background, even though appellant received a version of the test that had been translated into Spanish. According to Dr. De Armas, the test should not be administered to a 39-year old Spanish speaker such as appellant, as it was designed for English speakers from 5 to 21 years of age. Dr. De Armas also believed that it was inappropriate for Dr. Jimenez to give the test to appellant without a supporting test to detect malingering.
In denying the motion to suppress, the trial court declined to determine appellant’s I.Q. score, but found no evidence that appellant was “unable to understand and respond to the questioning or interrogation.” The court stated: “It did not seem at any time that [appellant] was suffering from some cognitive [disability]... so [that] he could not understand or effectively participate in those proceedings.” The trial court further concluded that appellant’s statements were voluntary, notwithstanding the detectives’ remarks during the interview, which the court described as “very aggressive.” The court stated that Terrazas’s statements regarding the possibility of a reduced sentence were “ill advised, ” but determined that Terrazas made no express or implied promise of leniency. The court also concluded that even if Terrazas’s statements amounted to a promise of leniency, the promise did not cause appellant’s inculpatory admissions, as “no admission was made at or near that particular sequence [of statements].”
3. Analysis
Appellant contends that the detectives’ questioning involved coercive psychological tactics that rendered his admissions involuntary. We disagree. To begin, appellant challenges the trial court’s finding that he suffered from no material cognitive disability during the interview, arguing that the detectives took improper advantage of his low intelligence. In support of this contention, he points to Dr. Jimenez’s testimony and a remark by Fanning during the interview that appellant appeared to be “brain dead.” We see no error in the trial court’s finding, which is reviewed for the existence of substantial evidence (People v. Boyette (2002) 29 Cal.4th 381, 412).
Generally, low intelligence, by itself, does not render a defendant’s admissions involuntary. (People v. Kelly (1990) 51 Cal.3d 931, 951 (Kelly).) Here, Terrazas testified that appellant seemed to understand the detectives’ questions, and betrayed no sign of mental or physical distress. In view of Dr. De Armas’s challenges to the intelligence test upon which Dr. Jimenez relied, the trial court was not obliged to accept Dr. Jimenez’s opinions regarding appellant’s intelligence. Moreover, nothing before us suggests that the detectives tried to take advantage of any mental incapacity. The transcripts of the interviews disclose no such tactics. Fanning’s remark occurred after appellant made his incriminating admissions, and appears to be an expression of frustration regarding appellant’s continued reticence during the interview.
Appellant also contends that the detectives’ remarks to him during the interview amounted to coercion. He argues that the detectives improperly deceived him about the evidence against him, preyed upon his religious sensibility, and made promises of leniency. For the reasons explained below, we conclude that none of these remarks rendered his admissions involuntary.
We begin with Terrazas’s deceptive statements about the evidence against appellant. As our Supreme Court explained in People v. Farnam (2002) 28 Cal.4th 107, 182 (Farnam), “‘[l]ies told by the police to a suspect under questioning can affect the voluntariness of an ensuing confession, but they are not per se sufficient to make it involuntary.’ [Citations.] Where the deception is not of a type reasonably likely to procure an untrue statement, a finding of involuntariness is unwarranted. [Citation.]” There, the court held that the defendant’s confession to an assault and robbery was voluntary, even though the interrogating officers had falsely told the defendant that his fingerprints had been found on the victim’s wallet. Again, in People v. Thompson (1990) 50 Cal.3d 134, 161, 166-170 (Thompson), the court determined that the defendant’s confession was voluntary, notwithstanding the interrogating officer’s false representations that several items of evidence identified the defendant as the perpetrator of a murder.
Here, the deceptive statements are similar to those in Farnam and Thompson. As noted above (see pt. A.2., ante), Terrazas falsely asserted that there were witnesses to the murder, that appellant’s footprint had been found, and that the video recording disclosed the license plate number of appellant’s car and other material details. As none of these remarks was likely to trigger a false statement from appellant, they did not amount to coercion.
We also reject appellant’s contention that Terrazas engaged in coercion by telling appellant that “[i]t’s a sin... to tell lies.” Generally, officers may properly advise suspects to tell the truth, and point out the benefit that “‘“flows naturally from a truthful and honest course of conduct.”’” (People v. Holloway (2004) 33 Cal.4th 96, 115, quoting People v. Jimenez (1978) 21 Cal.3d 595, 611-612, overruled on other grounds in People v. Cahill (1993) 5 Cal.4th 478, 509-510, fn. 17.) Moreover, officers may properly suggest explanations for the suspect’s conduct -- including that it was “a self-defensive reaction” -- and offer the suspect an opportunity to provide details of the crime. (People v. Carrington (2009) 47 Cal.4th 145, 171.) Under these principles, the detectives did not act improperly in urging appellant to tell his side of the story and in suggesting that he may have acted in self-defense.
Nor did Terrazas’s remark regarding the sinfulness of lies constitute coercion. Although officers may not exploit a defendant’s religious sensibilities, advisements to tell the truth based on the defendant’s religious beliefs are not coercive when they take no advantage of religious anxiety or other “psychological vulnerability.” (Kelly, supra, 51 Cal.3d at p. 953.) In Kelly, the interrogating officer urged the defendant to admit that he had committed a murder because the defendant believed in Jesus Christ and had been raised as a Christian. (Id. at pp. 951-952.) The defendant nonetheless denied any wrongdoing. (Id. at p. 952.) Later, after a half hour break in the interview, the defendant made a confession. (Id. at pp. 945-946.) Our Supreme Court determined that the officer’s remarks were not coercive because they exploited “no acute religious anxiety or sense of guilt... apparent from prior questioning” and the defendant adamantly denied guilt in response to them. (Id. at p. 953.) We reach the same conclusion here. Appellant displayed no religious anxiety prior to Terrazas’s remark, and he maintained his innocence after it.
We turn to appellant’s final contention, namely, that the detectives improperly coupled warnings about the consequences of appellant’s failure to confess with promises of leniency in exchange for his confession. He directs our attention to the detectives’ remarks about the possibility of a life sentence if appellant failed to explain his role in the crime, and Terrazas’s references to the possibility of a reduced sentence. We conclude that the remarks in question did not invalidate appellant’s admissions because no improper remark (if any occurred) caused the admissions.
Our Supreme Court has explained: “In general, ‘“any promise made by an officer or person in authority, express or implied, of leniency or advantage to the accused, if it is a motivating cause of the confession, is sufficient to invalidate the confession and to make it involuntary and inadmissible as a matter of law.’” [Citations.] In identifying the circumstances under which this rule applies, we have made clear that investigating officers are not precluded from discussing any ‘advantage’ or other consequence that will ‘naturally accrue’ in the event the accused speaks truthfully about the crime. [Citation.] The courts have prohibited only those psychological ploys which, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable. [Citations.]” (People v. Ray (1996) 13 Cal.4th 313, 339-340.)
Under these principles, officers are permitted to provide truthful information to a suspect about potential sentences, but may not couple threats of a harsh sentence with promises of leniency in exchange for the suspect’s cooperation. (People v. Ray, supra, 13 Cal.4th at p. 340.) Here, the detectives told appellant that his refusal to explain his conduct could result in a life sentence because a jury was likely to convict him of murder on the basis of the video recording. We see no error in these statements, as first degree murder ordinarily carries a sentence of 25 years to life (§ 190, subd. (a)). Regarding the remaining statements, however, we agree with the trial court that Terrazas’s remarks were “ill advised, ” insofar as Terrazas suggested that appellant’s cooperation could reduce his sentence to a “few years, ” and that appellant might “do five years and come out in two.”
We recognize that Terrazas could have intended these remarks to convey that if appellant had stabbed Simental while trying to act in self-defense -- as the detectives suggested during the interview -- appellant might have committed manslaughter, rather than murder, and thus be subject to a reduced sentence. (See 1 Witkin & Epstein, Cal. Criminal Law (3d. ed. 2000) Defenses, § 77, pp. 411-412 [honest but unreasonable belief in need for self-defense is sufficient to reduce murder to manslaughter].) However, Terrazas never expressly linked the reduced sentence he mentioned to a potential claim of self-defense.
Nonetheless, it is unnecessary for us to determine whether Terrazas’s remarks constituted improper promises of leniency, as the record establishes that they did not cause appellant’s admissions. Generally, “[a]lthough coercive police activity is a necessary predicate to establish an involuntary confession, it ‘does not itself compel a finding that a resulting confession is involuntary.’ [Citation.] The statement and the inducement must be causally linked. [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 404-405, quoting People v. Bradford (1997) 14 Cal.4th 1005, 1041.) The connection requires proximate causation, rather than mere “causation-in-fact.” (People v. Benson, supra, 52 Cal.3d at p. 778.)
An instructive application of these principles is found in People v. Williams (1997) 16 Cal.4th 635. There, the defendant was arrested for four murders and interrogated for less than an hour. (Id. at pp. 660-661.) During the interview, a police officer promised leniency by suggesting that if the defendant cooperated, the district attorney might not seek the death penalty. (Id. at p. 661.) Although the defendant maintained his innocence for the greater part of the interview, he eventually admitted that he was present at the scene of the killings, but insisted he played no role in them. (Id. at p. 660.) Our Supreme Court concluded that defendant’s admissions were not involuntary because the promise of leniency was not their “motivating cause.” (Id. at p. 661.)
The same is true here. Despite Terrazas’s remarks, appellant adamantly denied any involvement in the crime throughout the first segment of the interview. Only after appellant viewed the video recording did he state that he had tried to rob Simental with a knife. Following an independent review of the record, we agree with the trial court that Terrazas’s remarks were not the motivating cause of appellant’s admissions. Accordingly, appellant’s motion to suppress his admissions was properly denied.
B. Instructional Error
Appellant contends the trial court erred in instructing the jury regarding the mens rea required for first degree murder. The jury received CALJIC No. 8.20, which states in pertinent part: “If you find that the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is murder of the first degree.” (Italics added.) Appellant argues that the italicized portion of the instruction improperly lowered the prosecution’s burden of proof and denied appellant’s rights to due process and a fair trial. We see no instructional error.
At the threshold, respondent argues that appellant waived or forfeited his contention by failing to raise it before the trial court. However, a defendant need not assert an objection to preserve a contention of instructional error when the error affects the defendant’s “substantial rights.” (§ 1259.) In this regard, “[t]he cases equate ‘substantial rights’ with reversible error” under the test stated in People v. Watson (1956) 46 Cal.2d 818. (People v. Arredondo (1975) 52 Cal.App.3d 973, 978.)
Generally, the adequacy of any instruction given must be judged in the context of all the instructions. (5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, § 663, pp. 953-954.) Thus, an instruction is not assessed in isolation, but must be viewed in the context of the overall charge. (People v. Reliford (2003) 29 Cal.4th 1007, 1013.) When an instruction is potentially ambiguous or misleading, the instruction is not error unless there is a reasonable likelihood that the jurors misunderstood or misapplied the pertinent instruction. (Ibid.; People v. Avena (1996) 13 Cal.4th 394, 416-417.)
The focus of appellant’s contention is on the term “precluding” in the italicized portion of CALCRIM No. 8.20, which he maintains is equivalent in meaning to the term “preventing.” He argues that CALCRIM No. 8.20, so understood, directed the jury that it could find that the defendant did not act with deliberation only if there was evidence of a condition that prevented deliberation. He states: “[T]he use of the term ‘precluding’ in CALJIC No. 8.20 lowered the prosecution’s burden of proof by requiring evidence preventing deliberation when reasonable doubt is all that due process required.” According to appellant, “[t]he jury should have been instructed that, if it found evidence of a sudden heat of passion [] or other condition sufficient to give rise to a reasonable doubt of deliberation, it must give the defendant the benefit of that doubt and find him not guilty of first degree murder.”
As appellant recognizes, our Supreme Court has rejected a similar challenge to CALCRIM No. 8.20. In People v. Nakahara (2003) 30 Cal.4th 705, 715 (Nakahara), the court stated: “[D]efendant challenges an instruction (CALJIC No. 8.20) advising the jury that premeditation and deliberation ‘must have been formed upon pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation....’ (Italics added.)” “Defendant suggests that the word ‘precluding’ is too strong and could be interpreted as requiring him to absolutely preclude the possibility of deliberation, as opposed to merely raising a reasonable doubt on that issue.... We think that... this instruction is unobjectionable when, as here, it is accompanied by the usual instructions on reasonable doubt, the presumption of innocence, and the People’s burden of proof. These instructions make it clear that a defendant is not required to absolutely preclude the element of deliberation.” (See also People v. Crew (2003) 31 Cal.4th 822, 848 [“There is no reasonable likelihood that any jury would misconstrue this [pertinent portion of CALCRIM No. 8.20] as lessening the prosecutor’s burden of proof.”].)
Appellant contends that Nakahara is not controlling because he has presented authority not addressed there. We disagree. Because the authority establishes only that the term “preclude” means “prevent” in many contexts, the authority supports a premise of the contention rejected in Nakahara, but does notmaterially modify the contention itself. We therefore are obliged to follow our Supreme Court’s ruling regarding the contention. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455). As the jury below received the “usual instructions” enumerated in Nakahara, supra, 30 Cal.4th at page 715, the trial court did not err in instructing the jury with CALJIC 8.20.
Even if we were free to examine the contention, we would reject it. CALJIC 8.20 informed the jury that “[a]ll murder which is perpetrated by any kind of willful, deliberate and premediated killing with express malice aforethought is murder of the first degree.” In addition, CALJIC 8.20 provided the following definitions: “The word ‘deliberate’ means formed or arrived at or determined upon as the result of careful thought and weighing of considerations for and against the proposed course of action. The word ‘premeditated’ means considered beforehand.” The jury also received standard instructions regarding reasonable doubt and the prosecutor’s burden of proof (CALJIC Nos. 2.62, 2.90, 8.71). These instructions, viewed collectively, properly informed the jury that it could not convict appellant of first degree murder if it had a reasonable doubt about the existence of the requisite deliberation on any basis, including -- but not limited to -- the possibility that appellant’s state of mind was the result of “sudden heat of passion or other condition precluding the idea of deliberation” (CALCRIM No. 8.20). Accordingly, there was no instructional error.
Because we conclude that there was no instructional error, we do not address appellant’s contention that his counsel rendered ineffective assistance by failing to object to the instructions.
C. Prosecutorial Misconduct
Appellant contends that the prosecutor engaged in misconduct during his closing argument by attempting to shift the burden of proof at trial to appellant. “‘[I]t is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements. [Citation.]’ [Citation.]” (People v. Hill (1998) 17 Cal.4th 800, 829, quoting People v. Marshall (1996) 13 Cal.4th 799, 831.) To prevail on a claim of prosecutorial misconduct based on remarks to the jury, “the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner.” (People v. Frye (1998) 18 Cal.4th 894, 970, overruled on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) As explained below, the prosecutor made no improper comments during closing argument.
At trial, appellant testified that he decided to fight with Simental after being subjected to repeated unprovoked attacks by Simental and his friends. During closing argument, the prosecutor noted appellant’s testimony and explained why he had presented evidence of appellant’s guilt: “The answer is[, ‘] I didn’t know that’s what [appellant] was going to do.[’] They don’t ever tell me what he is going to say in court. It’s also my burden anyway independent of [appellant] to establish the elements of the crime.” (Italics added.)
Later, the prosecutor offered the jury several reasons for rejecting appellant’s version of the underlying events. Over appellant’s objection, the prosecutor argued as follows: “The second reason you should not believe what he said here [is] he did not testify correctly in this trial. He does not get a bone just because he took the witness stand.... Every single witness who testifies is to be judged with the same critical eye. He doesn’t get points just because he testified. He had a right not to testify.... Once he does, he is like any other witness. And you should not believe him because of the fact there is absolutely no corroboration for his story. No other witness would come in here and say these fights happened. [¶]... [¶] There [are] no police reports. It’s not like he went to the police to document these supposed fights. There are no medical records to establish any truth to the injuries he is saying. [¶] In fact there is not even a name he can give us of a single other member of the supposed mob that attacked him other than [] Simental, not even a first name. That’s because they didn’t exist. It didn’t happen.”
Appellant contends that the prosecutor’s argument impermissibly shifted the burden of proof to appellant to provide evidence of his innocence. We disagree. Generally, “[a] prosecutor may make fair comment on the state of the evidence.” (People v. Cook (2006) 39 Cal.4th 566, 608.) Under this principle, when the defendant testifies but fails to call logical corroborating witnesses, the prosecutor may invite the jury to infer that the defendant’s testimony is false, unless the witnesses are unavailable to testify. (People v. Ford (1988) 45 Cal.3d 431, 448-449.) As the prosecutor expressly told the jury that he had the burden of establishing appellant’s guilt independent of appellant’s testimony, there is no reasonable likelihood that the jury viewed the prosecutor’s argument as an attempt to shift the burden of proof to appellant. In sum, there was no prosecutorial misconduct.
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J.WILLHITE, J.
Here, appellant contends that the purported instructional error implicates his substantial rights; moreover, to the extent his counsel’s failure to object worked a forfeiture, he contends that his counsel rendered ineffective assistance. We address his contention on the merits to determine whether there was an impairment of his substantial rights or ineffective assistance of counsel. (See People v. Anderson (2007) 152 Cal.App.4th 919, 927.)