Opinion
D071096
03-27-2017
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH ANDREW PHIPPS, Defendant and Appellant.
Lynne Patterson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott C. Taylor, and Allison V. Hawley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. FMB1300048) APPEAL from a judgment of the Superior Court of San Bernardino County, Rodney A. Cortez, Judge. Affirmed. Lynne Patterson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott C. Taylor, and Allison V. Hawley, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Joseph Andrew Phipps of second degree murder (Pen. Code, § 187, subd. (a)) and found that he personally and intentionally discharged a firearm (Pen. Code, § 12022.53, subd. (c)) in killing Christy Phipps, his wife of many years. Joseph challenges the sufficiency of the evidence to support his conviction and enhanced sentence, and asserts a number of other grounds for reversal, including instructional errors, evidentiary errors, failure to preserve evidence, and prosecutorial misconduct.
We conclude that there is sufficient evidence to support the jury's findings, and that the trial court did not err on any asserted ground. Accordingly, we affirm the judgment.
FACTUAL BACKGROUND
We present the facts in the light most favorable to the judgment in accord with established rules of appellate review. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
For many months prior to Christy's death, she and Joseph were having marital problems, and they frequently argued. She had filed for divorce, was engaging in a secret sexual relationship with another man, and planned to move out of the family home. Joseph opposed the divorce. On various occasions, Christy told her boyfriend, sister, and close friend, that she was scared of Joseph and that he had threatened her. Christy said that Joseph threatened to kill her before he would allow her to divorce him, and told her that if he ever found out she was having an affair, he would do something that would land him in jail.
Because the victim, defendant, and many of the witnesses were family members with the same last names, we refer to them by first name for clarity. No disrespect is intended.
Joseph ultimately found out that Christy was having an affair and that she was determined to leave him. On the night of January 29, 2013, Christy refused to accept some gifts that Joseph tried to give her. They argued loudly. Their four children (the children) were in the home at the time. At around 11:19 p.m., Joseph called his sister, Laura, who decided that she would go to the home and try to calm Christy down. Over the phone, Laura could hear Christy calling Joseph "a piece of shit" and telling him "that he was no good." It would be another 20 or 25 minutes before Laura arrived.
The couple's 12-year-old daughter, H., heard Joseph yelling that Christy had "changed" and heard Christy saying, "Stop, Joseph." As she walked into the master bedroom to say goodnight, H. could see her mother sitting on her parents' bed and her father standing on the left side of the bed, grabbing Christy's arm and pointing a gun at Christy's head. Joseph "kicked [H.] out" of the room and told her to go back to bed. Joseph then closed the bedroom door. After the door was closed, H. heard a gunshot and heard her mother fall to the ground. By looking under the door of her parents' bedroom, H. could see her mother's foot on the ground. Joseph came out from the bedroom and told H. to go back to bed, which she did.
H. disclosed these events to a police officer in May 2013. At trial in 2015, H. recanted and testified that she had lied to the officer. The audio recording of H.'s May 2013 interview was played for the jury.
Laura arrived at the home with her teenage son Brandon at some point after the shooting. Joseph's and Laura's other brother, Troy, arrived at around the same time. Troy entered the home, discovered Christy's dead body, and instructed Brandon to wake up his cousins and get them out of the house. The children, who were not permitted to enter their parents' closed bedroom, were transported away by a relative. Troy called another brother, James, to come over and keep an eye on Joseph while Troy called 911. Officers arrived on the scene after midnight in response to the 911 call.
Based on the crime scene and physical evidence, investigators determined that Christy was likely shot while she was sitting on the bed, and then rolled off the bed onto the floor, where officers found her body. A single bullet traveled in and out of Christy's head from left to right and pierced through bed sheets. The bullet was located in the bed with some of Christy's hair around it. The gun used to kill Christy, which belonged to Joseph, was found on the bottom left corner of the bed, covered by a blanket. Christy's hair, tissue, and blood were visible on the end of the gun's barrel. Officers observed apparent blood stains in various locations: on the bed, striated down the side of the bed, on the floor by Christy's head, and on a t-shirt found behind the door. Christy's bare feet were on the ground by the door.
A forensic pathologist testified that Christy died from a gunshot wound to her head and that her death was a homicide. The bullet entered Christy's left scalp and exited her right scalp with no movement front to back or back to front and a very slight upward trajectory. The pathologist opined that at the time the gun was fired, it was in "hard contact" with the left side of Christy's head; based on various indicators, no gases escaped from between the barrel of the gun and Christy's skin. She would have died immediately from the gunshot. Christy was right-handed. The forensic pathologist described the unlikelihood that a right-handed person could have self-inflicted the particular gunshot wound, based on human anatomy (i.e., length of arms and wrist flexibility) and the bullet's trajectory.
The pathologist testified that the directional descriptions he used (e.g., left, right, front, back) were with reference to the standard anatomic position—a human body standing up, feet flat, facing forward, and palms forward.
A firearms expert conducted a physical demonstration for the jury using a plastic replica gun. He attempted to use his right hand to hold the gun perpendicular to the left side of his head so that if he discharged the gun, the bullet would travel from left to right with no movement from front to back or back to front. The expert was able to discharge the gun only by changing his grip on the gun and using his thumb to pull the trigger rather than his forefinger.
The morning after Christy died, officers interviewed Joseph at the police station. Although he coherently provided his background information, Joseph would not provide an explanation of how his wife had been killed. During the course of the interview, he made certain incriminating statements, including, "It should have been me," "It was supposed to be me," "I'm a piece of shit," "They were leaving," "I didn't want to hurt her," and "I had the gun to my head."
Both Christy's and Joseph's DNA were found on the gun—Christy as a possible major contributor and Joseph as a possible minor contributor. The DNA expert testified that these findings could be consistent with Joseph holding the gun for a short period of time, pointing it at Christy's head, and shooting her. The expert could not draw any definitive conclusions regarding the shooter's identity due to many unknown variables, including the manner in which the DNA was transferred (e.g., perspiration, skin, etc.), the rate and quantity at which the individuals normally shed DNA, and how long the DNA had been on the gun.
Similarly, a criminalist who analyzed gunshot residue (GSR) testified that he could not reach any conclusions regarding whether Joseph had fired the gun. Although no GSR was detected on Joseph's hands, he could have washed off the particles. The GSR found on Christy's hands could have been from her being in close proximity to the discharged gun or having contact with a surface that had GSR on it. The criminalist testified that it was not surprising to find GSR on someone who was in the same room in which a gun has been fired.
At trial, Joseph testified that Christy pointed the gun at his head and that he "grabbed her forearms," out of fear of being shot and to get the gun pointed away from him. Christy jerked her arms back, the two of them fell back onto the bed, Joseph fell to one side, and "the gun went off." Joseph could not explain how Christy was shot in the manner that she was, but he maintained that he heard the gun go off and saw Christy fall off of the bed. Joseph testified that he never touched the gun on the night of the shooting. After seeing Christy's body fall to the ground, he "blacked out" and could not remember anything else, including his interview at the police station.
Despite purportedly having no memory of talking to his siblings, children, or any police officers after the shooting occurred, Joseph testified that he did not wash his hands after the shooting.
DISCUSSION
I. Sufficiency of the Evidence to Support Joseph's Conviction and Enhanced Sentence
Joseph contends that there is insufficient evidence to support his murder conviction and enhanced sentence. He principally argues that he "established self-defense." In making this argument, Joseph essentially asks this court to reweigh the evidence. His argument reflects a fundamental misunderstanding of the standard of review and of our role on appeal.
In reviewing a claim of insufficient evidence, we determine " 'whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.' " (People v. Crittenden (1994) 9 Cal.4th 83, 139, fn. 13, quoting People v. Ainsworth (1988) 45 Cal.3d 984, 1022.) Under this standard, we review the facts adduced at trial in the light most favorable to the judgment, drawing all inferences in support of the judgment to determine whether there is substantial evidence that the defendant committed the charged crime. (People v. Hillhouse (2002) 27 Cal.4th 469, 496.) The question on appeal is whether substantial evidence, of credible and solid value, supports the jury's conclusions, not whether the evidence proves guilt beyond a reasonable doubt. (People v. Mincey (1992) 2 Cal.4th 408, 432.)
"Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence." (People v. Maury (2003) 30 Cal.4th 342, 403.)
"The standard of review is the same in cases in which the People rely mainly on circumstantial evidence." (People v. Stanley (1995) 10 Cal.4th 764, 792.) " ' Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.' " (People v. Bean (1988) 46 Cal.3d 919, 933.)
To support a finding of murder, the People were required to prove that Joseph caused Christy's death, with malice aforethought, and without lawful excuse or justification. In addition, the People sought to prove that Joseph caused Christy's death by personally discharging a firearm.
Rejecting Joseph's explanation of events, as the jury was entitled to do, the evidence amply supports a finding that Joseph murdered Christy by shooting her with his gun. There is substantial evidence that Christy's fatal gunshot wound was not self-inflicted, that Joseph had a motive to kill her, and that he shot her without any excuse or justification. The forensic pathologist determined that Christy's death was a homicide based on a detailed examination of her body as well as reports of the crime scene, and determined that it was extremely unlikely that Christy could have inflicted the fatal wound herself. Various witnesses testified to a possible motive for Joseph to kill Christy—he did not want her to divorce him, he had previously threatened her, and he was upset about her having an affair. In contrast, there was no substantial evidence that Christy would want to provoke or try to kill Joseph. In addition, immediately before the shooting, Joseph and Christy's daughter H. witnessed Joseph pointing the gun at the left side of Christy's head in a threatening manner and not in any apparent fear for his life. H.'s account matched the forensic and physical evidence, and it was unlikely that she could have described the events as she did unless she had actually witnessed them. Further, Joseph's conduct and statements at the police station suggested his guilt and that he had not acted in self-defense.
On appeal, Joseph reargues the significance of certain facts and draws inferences from those facts to support a theory that Christy shot herself. In so doing, Joseph essentially asks this court to reweigh the evidence and to draw inferences from the evidence in his favor. For example, he points to the fact that Christy's DNA was found on the gun and that there was GSR on her hands. However, those facts are not inconsistent with Joseph's having shot her. It is not this court's function to reweigh the evidence, but rather, to determine whether there is substantial evidence in the record to support the judgment. Further, on review, we draw all inferences in support of the judgment. The jury rejected Joseph's theories, and there is substantial evidence to support its findings.
II. Imperfect Self-Defense Instruction
Joseph contends that the trial court erred in failing to instruct the jury sua sponte on imperfect self-defense. The court instructed the jury on self-defense, accident, accident in the heat of passion, heat of passion/sudden quarrel, and necessity. However, the court found that there was not sufficient evidence to support an imperfect self-defense instruction and accordingly, declined to give one. We conclude that the court did not err.
A. Legal Principles
When a defendant is charged with murder, the trial court has a sua sponte duty to instruct on imperfect self-defense if the evidence is such that a jury could reasonably conclude that the defendant killed the victim in the unreasonable but good faith belief in having to act in self-defense. (People v. Breverman (1998) 19 Cal.4th 142, 159.) The need to instruct "arises only when there is substantial evidence that the defendant killed in unreasonable self-defense, not when the evidence is 'minimal and insubstantial.' " (People v. Barton (1995) 12 Cal.4th 186, 201.) "Substantial evidence is evidence sufficient to 'deserve consideration by the jury,' that is, evidence that a reasonable jury could find persuasive." (Id. at fn. 8, quoting People v. Flannel (1979) 25 Cal.3d 668, 684.)
"Self-defense requires an actual and reasonable belief in the need to defend against an imminent danger of death or great bodily injury. [Citation.] If, however, the killer actually, but unreasonably, believed in the need to defend himself or herself from imminent death or great bodily injury, the theory of 'imperfect self defense' applies to negate malice." (People v. Viramontes (2001) 93 Cal.App.4th 1256, 1261). Under both theories of perfect and imperfect self-defense, the defendant must have believed that the immediate use of deadly force was necessary to prevent imminent danger to himself. (People v. Por Ye Her (2009) 181 Cal.App.4th 349, 353.)
The Judicial Council's jury instruction on voluntary manslaughter based on imperfect self-defense provides in pertinent part: "The defendant acted in [imperfect self-defense] if: [¶] 1. The defendant actually believed that [he] was in imminent danger of being killed or suffering great bodily injury; [¶] AND [¶] 2. The defendant actually believed that the immediate use of deadly force was necessary to defend against the danger; [¶] BUT [¶] 3. At least one of those beliefs was unreasonable." (CALCRIM No. 571.)
B. Analysis
After carefully reviewing the record, we conclude that the trial court correctly declined to instruct on imperfect self-defense. Joseph's defense was that Christy accidentally shot herself, and was based on his testimony concerning the relevant events, as described above. Joseph's testimony does not support that he shot Christy because he believed the "immediate use of deadly force was necessary" to avoid imminent danger. (CALCRIM No. 571.) On the contrary, Joseph denied that he shot Christy. He testified that he never touched the gun and that he merely grabbed Christy's forearms during their altercation. Joseph claimed that he did not know how the gun "went off," but implied that Christy shot herself as she jerked her arms back or as she fell back onto the bed. According to Joseph, he was not at any time trying to fire the gun at Christy, and he employed only nonlethal force to attempt to get the gun pointed away from him. Thus, there was no substantial evidence that Joseph shot Christy based on his belief that he had to kill or gravely injure Christy in order to save himself. "Under this victim-inflicted-[her]-own-injuries theory, [Joseph] arguably was not entitled even to the actual self- defense instruction that the court gave." (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 834.) Joseph clearly was not entitled to an imperfect self-defense instruction.
III. Gun Demonstration
Joseph contends that the gun demonstration by the People's firearms expert was more prejudicial than probative under Evidence Code section 352. In particular, he asserts that the demonstration was improper because the barrel of the expert's plastic replica gun was slightly longer than the actual gun used in the shooting.
Evidence has probative value if it has "any tendency in reason to prove or disprove any disputed fact . . . ." (Evid. Code, § 210.) Under Evidence Code section 352, unduly prejudicial evidence refers to " ' "evidence that uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues." ' " (People v. Carter (2005) 36 Cal.4th 1114, 1168.) "Evidence is not prejudicial, as that term is used in a section 352 context, merely because it undermines the opponent's position or shores up that of the proponent." (People v. Rivera (2011) 201 Cal.App.4th 353, 362 (Rivera).)
A trial court may admit demonstrative evidence if it: (1) is a reasonable representation of that which it is alleged to portray; and (2) would assist the jurors in their determination of the facts of the case, rather than serve to mislead them. (People v. Jones (2011) 51 Cal.4th 346, 375 (Jones); People v. Rodrigues (1994) 8 Cal.4th 1060, 1114 (Rodrigues).) A demonstration need not be conducted under conditions identical to those of the actual occurrence. (Rodrigues, at pp. 1114-1115.)
Under Evidence Code section 352, the trial court has wide discretion to admit or reject demonstrative and experimental evidence. (Jones, supra, 51 Cal.4th at pp. 375-376.) We review the trial court's decision to admit or exclude such evidence for clear abuse of discretion. (Id. at p. 376.)
The People sought to demonstrate for the jury the unlikelihood that Christy, who was right-handed, could have inflicted the gunshot wound—a contact shot that entered the left side of her head and had no front to back or back to front movement—herself. The forensic pathologist had already testified to the unlikelihood of this scenario based on typical limitations of human anatomy. Although the firearms expert did not use the actual weapon during his demonstration, the differences between the gun used to kill Christy and the plastic replica were explained to the jury. The jurors were permitted to handle the actual gun, feel its weight, and observe the length of its barrel. Thus, "any potentially prejudicial effects of the inaccuracies [in the demonstration] were minimized, if not virtually eliminated." (Rodrigues, supra, 8 Cal.4th at p. 1115.) Given the purpose of the demonstration, we conclude that the expert's demonstration was reasonable.
Further, the demonstration assisted the jurors in understanding what would be physically required for a right-handed person to shoot the gun in a manner consistent with the forensic evidence. We are not persuaded that the gun demonstration was prejudicial within the meaning of Evidence Code section 352. The expert was not purporting to reenact the crime, and the vast majority of his testimony involved explaining the mechanical operations of the actual gun used in the shooting. If the demonstration was damaging to Joseph, it was due to its high probative value and not to any emotional bias that it would provoke against him. (Cf. Rivera, supra, 201 Cal.App.4th at p. 364 [asking defendant to strangle a lifeless mannequin was "suggestive of a slapstick parody"].) Joseph has not established an abuse of the court's discretion. IV. H.'s Prior Inconsistent Statement
At trial in July 2015, the People called H. as a witness. H. testified that she heard her father and mother arguing on the night of the shooting, but for the most part disclaimed having seen or heard anything else. She further testified that she had lied and made up statements that she had made to a police officer several months after the shooting. After H. testified, the People called Officer Steve Pennington to the stand. Pennington testified that he interviewed H. in May 2013. Over Joseph's objections, Pennington's recorded interview of H. was played for the jury as a prior inconsistent statement. During the interview, H. implicated Joseph in Christy's murder. She described seeing him point the gun at Christy while standing on the left side of the bed, getting kicked out of her parents' bedroom, and then hearing the gunshot.
Joseph contends that the trial court erred in admitting the recorded interview of H. He argues that H.'s statements were inherently unreliable and/or untrustworthy, and that their admission in evidence violated Joseph's constitutional rights of confrontation and due process. His arguments lack merit.
The recorded interview was properly admitted as a prior inconsistent statement. (Evid. Code, § 1235; People v. Zapien (1993) 4 Cal.4th 929, 953 (Zapien).) "The receipt in evidence of a prior inconsistent statement does not violate the confrontation clauses of the federal and state Constitutions where the declarant testifies at trial and is subject to cross-examination." (Zapien, at p. 955.) Because H. testified at trial and was subject to cross-examination, there was no infringement of Joseph's confrontation rights.
Further, contrary to Joseph's contention on appeal, there was no requirement that H.'s prior statement show indicia of inherent reliability or trustworthiness. (Zapien, supra, 4 Cal.4th at p. 957.) Through " 'adversarial testing,' " the jurors could properly consider the reliability of H.'s statements. (Ibid.) H. described the circumstances under which she talked to Officer Pennington, admitting that he had not forced her to say anything. She explained that she had lied to Officer Pennington because her best friend and best friend's mother had promised to give her a necklace if she would say what they told her to say. According to H., her friend had written things down for H. to say, on her phone. Then during H.'s police interview, her friend, who was present, gave her the phone to read, in response to Pennington's questions. It was the jury's role to decide which of H.'s statements to believe, if any. There was no violation of Joseph's constitutional rights.
V. Evidence of Christy's State of Mind
The trial court permitted several witnesses, including Christy's boyfriend, sister, and close friend, to testify that Christy was scared of Joseph because he had threatened her. For example, boyfriend Sean Turner testified that a week or two before she died, Christy "was really worried and saying that [Joseph] had threatened her . . . ." Similarly, her close friend recalled that Christy said "she didn't think she would ever be able to be divorced because . . . [Joseph] told her that he would kill her before he divorced her or allow[ed] her to divorce him."
Joseph contends that the hearsay statements were improperly admitted. We disagree. The statements were admissible as evidence of Christy's state of mind, an exception to the rule against hearsay. (Evid. Code, § 1250, subd. (a).) Evidence of a victim's fearful state of mind is admissible when relevant to an element of an offense or to rebut a claim that the victim's death was accidental or provoked. (People v. Riccardi (2012) 54 Cal.4th 758, 816, abrogated on other grounds.)
Joseph also claims that the prosecutor misquoted Turner's testimony regarding the content of one of Joseph's threats. There was no objection during the relevant part of the prosecutor's closing argument, and the claim is therefore forfeited. In any event, having reviewed the record, we conclude that the prosecutor fairly represented Turner's testimony.
In his testimony, Joseph portrayed Christy as the aggressor, claiming that she had retrieved the gun and pointed it at him. He implied that her aggressive conduct resulted in her accidentally shooting herself. Christy's fear of him was thus relevant to show that she was not the aggressor, did not provoke him, and did not kill herself. Moreover, Christy made the same type of statements to her boyfriend, sister, and close friend—people she normally and naturally spoke with about her relationship issues. The trial court could have reasonably concluded that Christy's statements were trustworthy, as well as more probative than prejudicial under Evidence Code section 352. (See People v. Harris (2013) 57 Cal.4th 804, 844 [statements are trustworthy when made in a natural manner, and not under circumstances of suspicion]; cf. People v. Ervine (2009) 47 Cal.4th 745, 778-779 [defendant's notes, written when he was already a murder suspect, were not sufficiently trustworthy to be admissible as state of mind evidence]; People v. Doolin (2009) 45 Cal.4th 390, 439 [a section 352 objection should fail unless dangers of undue prejudice, confusion, or time consumption substantially outweigh the probative value of relevant evidence].) The court did not err.
VI. Preservation of Evidence
Joseph moved under California v. Trombetta (1984) 467 U.S. 479 (Trombetta) and Arizona v. Youngblood (1988) 488 U.S. 51 (Youngblood), for a special instruction that would allow the jury to draw an evidentiary inference against the prosecution based on the alleged failure of the police to preserve exculpatory evidence. Specifically, Joseph asserts that a key to his gun safe, found on the floor of the master bedroom after the shooting, could have been tested for DNA, and that if his DNA were not found on the key, he would have been eliminated as a suspect. The trial court declined to give the special instruction that Joseph requested as written. We conclude that the court did not err.
The following facts were adduced at trial: As Officer Pennington was walking through the crime scene, he saw a key on the ground by the bed, next to Christy's body. There was also a locked safe in the closet of the bedroom. Pennington used the key to unlock the safe and observed only a hookah inside. He closed the safe and locked it. Pennington thought he gave the key (key 2) to a crime scene specialist (CSS), but the key was not collected by police. It was found two weeks later in the bedroom by someone who was cleaning the house. Joseph kept another key to the safe (key 1) on his key ring. Pennington testified that key 2, by itself, was not important evidence because even if Christy's or Joseph's DNA had been found on it, there would be no way to prove that either one had used it to open the safe on the night of the shooting. DNA has no "time stamp." In Officer Pennington's opinion, key 2 was irrelevant to the investigation.
Police officers have no duty to " 'gather up everything which might eventually prove useful to the defense.' " (People v. Hogan (1982) 31 Cal.3d 815, 851.) Instead, due process imposes "a duty on the state to preserve 'evidence that might be expected to play a significant role in the suspect's defense.' " (People v. Montes (2014) 58 Cal.4th 809, 837, quoting Trombetta, supra, 467 U.S. at p. 488.) For the obligation to preserve evidence to arise, the "evidence 'must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.' " (Montes, at p. 837, quoting Trombetta, at p. 489.) "A trial court's ruling on a Trombetta motion is upheld on appeal if a reviewing court finds substantial evidence supporting the ruling." (Montes, at p. 837.)
The trial court's finding that key 2 possessed no apparent exculpatory value is supported by substantial evidence. At the time Officer Pennington found the key, there was nothing to indicate that the gun had been stored in the safe. He found nothing related to the crime or the gun in the safe. Even if the safe key had been found not to have Joseph's DNA on it, he would not have been eliminated as a suspect. Assuming that the gun had been retrieved from the safe on the night of the shooting, regardless of who retrieved the gun, Joseph could still have used it to kill Christy. Further, there could be a number of reasons why his DNA might not be on key 2, or Joseph could have used key 1 to open the safe. In short, key 2 had no apparent exculpatory value.
Joseph also failed to establish that the police acted in bad faith. (Youngblood, supra, 488 U.S. at p. 58 ["[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law."].) Although Pennington considered the key to be irrelevant from an evidentiary standpoint, he believed that he had handed it off to CSS personnel for collection. It is possible that one of them may have left it at the scene. Under the circumstances, the failure of the police to collect the key from the crime scene "can at worst be described as negligent." (Ibid.) Pennington explained why he would not have had the key tested for DNA. There was no denial of due process, and Joseph was not entitled to a special evidentiary instruction.
VII. Prosecutorial Misconduct
Joseph challenges a number of the prosecutor's questions, comments, and arguments before the jury as "misconduct" that he contends rendered his trial fundamentally unfair. Joseph failed to preserve his right to challenge much of the alleged misconduct and in any event, his claims are meritless.
A. Applicable Law
" ' "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." [Citation.] When a claim of misconduct is based on the prosecutor's comments before the jury . . . " 'the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.' " [Citation.] To preserve a claim of prosecutorial misconduct for appeal, a defendant must make a timely and specific objection and ask the trial court to admonish the jury to disregard the improper argument. [Citation.]' [Citation.] A failure to timely object and request an admonition will be excused if doing either would have been futile, or if an admonition would not have cured the harm." (People v. Linton (2013) 56 Cal.4th 1146, 1205.)
B. Direct Examination of H.
Joseph argues that the prosecutor committed misconduct by "badgering" 15-year-old witness H. on the stand. As we have discussed, H. was called as the People's witness to describe what she saw and heard on the night of Christy's death. However, for the most part, H. denied having seen or heard anything and testified that she had previously lied to a police officer in order to obtain a necklace. The prosecutor was entitled to probe into H.'s reasons for purportedly lying to the police officer in May 2013. The forensic and physical evidence validated H.'s earlier account, suggesting that she had been telling the truth during her police interview (and actually witnessed the events) but had decided more recently to protect her father. Defense counsel objected to certain questions, mostly as argumentative and/or lacking in foundation, and the court sustained some of the objections.
We conclude that Joseph forfeited his claim to the extent that he did not specifically object to the prosecutor's questions. Further, the prosecutor asked appropriate, challenging questions in order to pin down H.'s account of events. For example, the jury learned of a possible motive for H. to be lying at trial—her desire to live with her father:
Based on our review of the record, the court sustained well-made objections to the prosecutor's questions. For example, when counsel stated, "You have a pretty creative imagination to come up with all of that," in reference to H.'s alleged lies to the officer, the court sustained an objection to the question as argumentative. Thus, the assertion of appropriate objections would not have been futile, and Joseph's claim is forfeited to the extent that he did not object.
"Q Is your love then for your dad, is [that] what is making you testify that you told lies to Sergeant Pennington about what you saw that night?
"[Defense counsel]: Objection, your Honor. That's argumentative.
"The court: Overruled. You can answer.
"[Prosecutor]: Q Is that why you're doing it?
"A I don't get that question.
"Q Well, you said you love your dad; right?
"A Yes.
"Q And you said you wanted to live with your dad; right?
"A Yes.
"Q Do you know that if you came here into Court and testified to what you actually saw that night, what happened between your mom and your dad, that you may not be living with your dad? You understand that; right?
"A Yes.
"Q And how does that make you feel?
"A Sad.
"Q Yeah, because you want to live with your dad; right?
"A Yes."
Joseph has not shown that the prosecutor's questioning of H. was deceptive or reprehensible. Instead, the prosecutor's questions were fair in light of H.'s vacillating and strained testimony. There was no misconduct.
C. Cross-Examination of Joseph
Joseph also claims that the prosecutor committed misconduct by using her cross-examination of him as an opportunity to "testify" before the jury. We have reviewed the record and conclude that the prosecutor fairly questioned Joseph. Further, the trial court sustained his objections to questions that were compound or that called for speculation.
Critical parts of Joseph's testimony contradicted the physical and forensic evidence, and he had no explanation for certain events when he should have had one. For instance, Joseph could not explain how Christy was shot from left to right despite her being right-handed if he did not touch the gun and was holding her forearms. In addition, Joseph's testimony that he "blacked out" after the shooting was not credible, given that he was not drinking alcohol that night and his family members and police officers described him being sentient and lucid, albeit distraught. Joseph's claim that he never handled the gun that night was arguably contrived. Even though he claimed that he could not remember anything after Christy fell to the ground, he somehow knew that he had not washed his hands after the shooting, presumably because if he had, he would have washed off any GSR. These and other discrepancies abounded throughout his testimony.
As with H., the prosecutor's zealous questioning was necessary to test Joseph's account of events, which was implausible and internally inconsistent. The prosecutor's questioning did not amount to misconduct.
D. Opening Statement
Joseph next claims that, during her opening statement, the prosecutor intentionally misstated certain evidence. The prosecutor stated: "Laura could hear the mean things that Christy was yelling at the defendant. [Christy] was yelling things like, 'You're useless. You're a piece of -- I don't love you. I have a new boyfriend. He's better than you.' The defendant found out that Christy was cheating on him." The prosecutor also discussed the past threats that Joseph had reportedly made against Christy. On appeal, Joseph claims that Laura did not testify that she heard anything about a new boyfriend and that the prosecutor misstated the wording of some of Joseph's threats.
We conclude that there is no reasonable likelihood that the jury was misled by any of the prosecutor's remarks. The jury was aware that no witnesses had yet testified and that the prosecutor was predicting and summarizing forthcoming evidence. The record supports that Christy did argue with Joseph on the night she died, that she was having an affair, and that Joseph had recently learned of the affair. In addition, various witnesses testified regarding Joseph's reported threats against Christy to the effect that he would harm her in some way if she were to leave or divorce him. There is no indication in the record that the prosecutor intentionally misstated evidence. Joseph has not established misconduct.
E. Closing Statement
Joseph takes issue with several aspects of the prosecutor's closing argument: (1) characterizations of him as a liar; (2) alleged misstatements regarding the People's burden to prove that he did not shoot Christy in self-defense; and (3) improper vouching for a witness, H.'s friend Cheyanne, and expressing her personal opinion. We conclude that there was no misconduct.
A prosecutor maintains wide latitude in the scope of her closing argument, if the argument amounts to fair comment on the evidence, including all reasonable inferences and deductions drawn therefrom. (People v. Stanley (2006) 39 Cal.4th 913, 951.) Counsels' closing arguments may also rely on jurors' common knowledge or illustrations drawn from common experience, history, or literature. (Id. at pp. 951-952.) A prosecutor may vigorously argue her case, including using appropriate epithets. (Id. at p. 952.)
In addition, we assume that juries generally understand that counsels' assertions are the " 'statements of advocates,' " which lack the force of a court instruction. (People v. Gonzalez (1990) 51 Cal.3d 1179, 1224, fn. 21.) We review arguments in the context in which they are made and do not lightly infer the most damaging meaning to a prosecutor's ambiguous remarks. (Ibid.)
1. References to Joseph as a liar
We have examined the record and conclude that the prosecutor's references to Joseph as a liar and his "lies" were fair comments based on the evidence. Joseph did not initially claim that Christy aimed the gun at him when he was interviewed by police, but he did at trial. Even then, he altered the details as he was testifying. His story contradicted the forensic evidence, and he did not coherently explain why Christy would have retrieved the gun, much less attempted to kill him. Joseph's account also did not comport with what H. witnessed immediately before hearing the gun go off. The prosecutor could fairly argue that Joseph was lying.
2. Argument regarding Joseph's theory of self-defense
Joseph next argues that the prosecutor misstated the law and improperly lowered the People's burden of proof to negate self-defense. He challenges the following prosecutorial arguments: "If you accept the truth -- the story of the defendant as the absolute truth, he is saying that the victim, Christy Phipps, legally deserved to be shot point-blank in the head. You have to accept that if you believe in self-defense . . . . [that] she legally deserved to be shot point-blank in the head." A few lines later, the prosecutor asserted: "Defendant's story is an absolute lie, and this is why. So we will go through it step by step."
The prosecutor's argument was not improper. Just before the challenged comments, the prosecutor unequivocally stated, "People have to prove that the defendant did not act in self-defense" and reviewed the components of self-defense. Read in context, the prosecutor's "[i]f you accept the truth" comments did not misstate the law, which she had correctly recited only moments before. The prosecutor was merely urging the jurors to reject Joseph's story of "self-defense."
3. Improper vouching
Regarding Joseph's assertion of improper vouching, Joseph did not object to the prosecutor referring to Cheyanne as a "straightforward, honest kid" or to any other statements that he now identifies as expressions of the prosecutor's personal opinion. His claim is forfeited as to this third category of alleged misconduct. In any event, the prosecutor did not imply that she had personal knowledge of Cheyanne or H., but instead, drew reasonable inferences based on their testimony. (See People v. Frye (1998) 18 Cal.4th 894, 972 [prosecutor's comment that " 'you must realize by now [[the witness] is telling the truth]' was simply a call to reflect on all of the evidence presented at trial"].)
DISPOSITION
The judgment is affirmed.
/s/_________
AARON, J. WE CONCUR: /s/_________
HUFFMAN, Acting P. J. /s/_________
HALLER, J.