Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CC324261
McAdams, J.
This is defendant James Wilson Richard’s second appeal. In his first trial in 2003, defendant was convicted by jury of one count of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). The jury also found true enhancement allegations that defendant had personally used a dangerous and deadly weapon (a knife). (§§ 667, 1192.7.) In a bifurcated proceeding, the court found true allegations that defendant had suffered two prior prison terms (§ 667.5, subd. (a)). At sentencing, the court struck the prior prison term enhancements (§ 1385) and sentenced defendant to the lower term of two years in prison.
All further statutory references are to the Penal Code, unless otherwise stated.
In defendant’s first appeal, we reversed because of error in the jury instructions on self-defense. The case was retried to a jury in June 2006. In the second trial, the jury again convicted defendant of one count of assault with a deadly weapon (§ 245, subd. (a)(1)) and found true enhancement allegations that defendant had personally used a dangerous and deadly weapon (a knife). (§§ 667, 1192.7.) In a bifurcated proceeding, defendant admitted the two prior prison terms (§ 667.5, subd. (b)). At sentencing, the court struck the additional punishment for the prior prison terms (§ 1385), sentenced defendant to the lower term of two years in prison, and deemed that sentence served.
In this appeal, defendant contends the prosecutor violated his due process rights under Doyle v. Ohio (1976) 426 U.S. 610 (Doyle) when he called attention to his post-arrest silence in his examination of a police officer, in his cross-examination of defendant, and in argument. Defendant contends the prosecutor committed misconduct when he presented a false or misleading argument to the court in limine, elicited misleading testimony from the police officer, and made a false and misleading argument to the jury. He also asserts his counsel was ineffective when he failed to object to the repeated incidents of Doyle error, to the prosecutorial misconduct, and to testimony and argument regarding defendant’s prior acts of domestic violence against his former girlfriend. Defendant also claims cumulative error and contends the court erred in imposing a security fee pursuant to section 1465.8. We find no prejudicial error and affirm the judgment.
Defendant has filed an original petition for writ of habeas corpus in this court (In re Richard on Habeas, case no. H031852) in which he challenges his conviction on the grounds of ineffective assistance of counsel based on the same arguments raised in this appeal, supported by evidence that is not part of the record on appeal. We have disposed of the habeas petition by separate order filed the same day as this opinion.
FACTS
Prosecution Case
The incident that led to defendant’s conviction occurred on August 5, 2003, at CJ’s Sports Bar (CJ’s) in Santa Clara. Morgan Stevenson worked at CJ’s as a doorman and bar back. It was Stevenson’s night off and he stopped by the bar with his friend, Mike Eberle, to talk to his boss. While at CJ’s, Stevenson stepped outside to smoke a cigarette and noticed that Lisa Ruelas, an acquaintance, was crying. She was upset that a friend had passed away. Both Stevenson and Ruelas had been drinking; Stevenson had had one drink and Ruelas was “buzzing.”
While Stevenson and Ruelas were talking near the front door of the bar, Stevenson noticed defendant talking on a cell phone. According to Stevenson, defendant was very upset and pacing back and forth; he was using profanity and yelling at someone on his cell phone. Ruelas was standing with her back up against the exterior wall of the bar. Stevenson was facing her, with his back to some shrubs that were in front of the bar. His feet were backed up to the curb that surrounded the shrubs. Defendant was pacing back and forth along the sidewalk in front of the bar. He stopped with his shoulders between Stevenson and Ruelas for a matter of seconds. Although he was practically touching Stevenson, defendant did not seem to notice that they were there.
In a normal, calm tone, Stevenson asked defendant to take his conversation to the other side of the front doors of the bar. Defendant was “super mad” and “pumped up” and said, “I’ll talk wherever the fuck I want” and told Stevenson “that whining girl should be around the corner crying anyways.”
Stevenson said, “I’m going to give you a chance” and told defendant he needed to “chill out” and step out of Stevenson’s personal space. Stevenson was backed up against the curb and felt nervous because he had nowhere to go. He was a little rude and raised his voice when he spoke to defendant the second time. Defendant got upset and stepped closer to Stevenson. Stevenson put his hands on defendant’s shoulders, said “Dude, you need to get out of my space,” and moved him back a step or two. Defendant responded, “You going to do this? You going to do this?” Stevenson said, “No, … I’m just going to give you a chance to get out of my space.” Stevenson used profanity but does not recall what he said.
Stevenson felt three blows to his left side. The first one felt like a punch; the third one felt like a sharp object. When Stevenson realized defendant had a knife, he grabbed defendant’s wrist and yelled “This guy’s got a knife.” Stevenson was not sure whether the knife blade hit him the first two times; it may have been the butt of the knife. It was a flip-type knife with a three- to four-inch blade.
After he was stabbed, Stevenson gave defendant a push. He was on top of defendant, trying to hold his hands and they ended up falling into the bushes. Defendant did not say anything while they were in the bushes. Defendant never told Stevenson he did not want to fight.
Stevenson sustained a stab wound to his left side in the area of his lower left ribs. There is a second smaller cut below that wound. He was taken by ambulance to Valley Medical Center, where the wound was glued together. He spent one night in the hospital. Stevenson testified that he did not strike, punch, slap, or choke defendant prior to the stabbing.
Stevenson’s friend, Eberle, was outside the bar and heard Stevenson say he had been stabbed. He ran over to Stevenson and saw Stevenson lying in the bushes with defendant on top of him. Defendant had a knife in his hand and was trying to stab Stevenson. Stevenson was holding both of defendant’s hands and trying to keep defendant off of him. Eberle grabbed defendant’s wrist and tried to get him to release the knife. Eberle punched defendant’s hand. Defendant folded the knife and took off running. Eberle chased defendant but lost sight of him. Eberle did not see Stevenson put his hands on defendant’s throat or try to choke defendant.
Stevenson admitted a prior conviction for the petty theft of two paint brushes from the Home Depot at age 19 (three years prior to the subject incident).
Stevenson was not able to identify defendant as his assailant. Eberle identified defendant as the assailant. Michael Dastrup, the bartender, recognized defendant and identified him to a detective that investigated the incident.
Santa Clara Police Sergeant Jerry Rodriguez testified that he and Detective Hayes arrested defendant on August 25, 2003. When a third person told defendant the officers were there to arrest him, defendant looked around, fell to his knees, and appeared to faint. Defendant received medical attention. After the doctor concluded there was nothing wrong with defendant, he was booked into jail. Defendant did not speak to the officers that day.
Defense Case
Defendant testified at trial. He was at CJ’s on the night of the incident. He stepped outside the bar around 11:45 p.m. to answer a call on his cell phone. While he was outside, Stevenson asked him, “Why don’t [you] take [your] conversation somewhere else?” Stevenson’s tone was angry and hostile. Defendant was surprised and startled and said, “Why don’t you take your conversation somewhere else?” He admitted he was rude and defensive. Stevenson started walking toward defendant, saying that Ruelas was upset and they were trying to have a conversation.
Defendant started backing up. Ruelas ran up to him and yelled that they were mourning the loss of a friend. Defendant responded with “Excuse me, ma’am. … I’m not in the mood for that tonight.” Stevenson said, “You got one more time,” put both hands firmly around defendant’s neck, and started choking him. Stevenson had a firm grip around defendant’s throat for three to five seconds before defendant stabbed him. Defendant was “petrified, terrified,” felt he was in “imminent danger,” and thought he was going to die. As he fell backward into the shrubs, defendant pulled out a “buck” knife and stabbed Stevenson. They fell into the shrubbery. Stevenson took his hands off defendant’s neck when they hit the ground.
Eberle put his knee on defendant’s wrist. When Eberle released his hold, defendant got up and ran. He ran because he was scared; he knew he had done something wrong and was afraid no one would believe him. Defendant never reported his version of events to the police or the bar. As he ran, he threw away the knife, which belonged to his stepson.
Defendant admitted prior felony convictions for possession of cocaine for sale in 1991, second degree commercial burglary in 1995, and perjury in 1999. He told the jury he had been involved in domestic violence in 1999, had completed 52 weeks of domestic violence counseling, and had lied to a police officer in 1999.
Defendant called a former security guard from Home Depot, who testified regarding Stevenson’s petty theft in 2000. The guard saw Stevenson remove the security tags from two paint brushes worth $13 each, hide the brushes in his pants, and walk out of the store without paying for them. The security guard’s testimony was offered, in part, to impeach Stevenson’s testimony regarding how far he got out of the store before being stopped and whether he ran and swung at the security guard.
Ruelas did not appear at trial. The parties read her preliminary hearing testimony to the jury. According to Ruelas, defendant was five to six feet away from her and Stevenson when he was talking on the cell phone. Defendant was not disturbing her and did not stand between her and Stevenson. Stevenson was polite, not angry or upset, when he asked defendant to move. Defendant was rude and refused to leave. Stevenson then walked toward defendant in a non-threatening manner. Ruelas could not recall what happened next. The next thing she knew, the two men had fallen into the shrubs.
Discussion
I. Alleged Doyle Error
Defendant contends his conviction must be reversed because his due process rights under Doyle, supra, 426 U.S. 610 were violated when the prosecution called attention to his post-arrest silence. He contends Doyle error occurred in three ways during the trial: (1) when Sergeant Rodriguez testified that defendant did not speak to him or give him a statement on the day he was arrested; (2) when the prosecutor cross-examined defendant; and (3) when the prosecutor argued in closing that defendant feigned illness to avoid explaining what happened.
A. Applicable Legal Standards
Doyle holds that the prosecution violates due process if it uses a defendant’s post-arrest silence “to impeach a defendant’s exculpatory story, told for the first time at trial, by cross-examining the defendant about his [or her] failure to have told the story after receiving Miranda warnings at the time of his [or her] arrest.” (Doyle, supra, 426 U.S. at pp. 611, 619-620.) The Supreme Court explained the rationale of this holding as follows: “[The] use of silence for impeachment [is] fundamentally unfair … because ‘Miranda warnings inform a person of his right to remain silent and assure him, at least implicitly, that his silence will not be used against him.… Doyle bars the use against a criminal defendant of silence maintained after receipt of governmental assurances.’ ” (Fletcher v. Weir (1982) 455 U.S. 603, 606.)
Miranda v. Arizona (1966) 384 U.S. 436, 467-473.
“Doyle stands for the more general principle that a person’s silence in apparent reliance on Miranda advice cannot be used against him or her in a criminal trial. By extension, the prosecution also cannot use a person’s refusal to answer questions or his or her invocation of the right to remain silent or the right to counsel. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 65, … (Coffman) [the prosecutor asked whether the defendant had asked for a lawyer when the police talked to him]; People v. Evans (1994) 25 Cal.App.4th 358, 367-369, … [the prosecutor asked whether the defendant denied culpability when the defendant said he did not want to talk to the police]; Fields v. Leapley (8th Cir.1994) 30 F.3d 986, 990 [the defendant stated, ‘ “I ain’t saying nothing” ’ and ‘ “I won’t talk to you about that without an attorney” ’]; U.S. v. Szymaniak (2d Cir.1991) 934 F.2d 434, 436 [the defendant was vague and did not answer questions and stated: ‘ “ ‘I’m in a lot of trouble and I want to speak to my lawyer’ ” ’].)” (People v. Lopez (2005) 129 Cal.App.4th 1508, 1525-1526 (Lopez).)
On the other hand, the government does not violate Doyle when it relies on evidence regarding the defendant’s demeanor and physical evidence, since such evidence does not engender Fifth Amendment protection. (U.S. v. Velarde-Gomez (2001) 269 F.3d 1023, 1030-1031 (Velarde-Gomez), citing Pennsylvania v. Muniz (1990) 496 U.S. 582, 592.) Demeanor evidence includes evidence concerning a defendant’s slurred speech or apparent nervousness or whether the defendant was sweating or vomiting. (Velarde-Gomez, at pp. 1030, 1031.) Physical evidence includes such things as fingerprints, handwriting, vocal characteristics, blood characteristics, gestures or stance. (Id. at p. 1031)
Moreover, Doyle is not implicated by impeachment pertaining to a defendant’s silence during the period prior to his or her receipt of the Miranda warnings. (People v. Earp (1999) 20 Cal.4th 826, 856-857 (Earp).) The “implicit assurance” upon which the Unites States Supreme Court has relied in its Doyle line of cases is “the right-to-remain-silent component of Miranda. Thus, the Constitution does not prohibit the use for impeachment purposes of a defendant’s silence prior to arrest, [citation], or after arrest if no Miranda warnings are given, [citation]. Such silence is probative and does not rest on any assurance by law enforcement authorities that it will carry no penalty.” (Brecht v. Abrahamson (1993) 507 U.S. 619, 628, superseded by statute on other grounds as stated in Hale v. Gibson (2000) 227 F.3d 1298, 1324.) Doyle error is not committed by questions or commentary concerning a defendant’s post-arrest silence where the Miranda warnings have not been given. (People v. Delgado (1992) 10 Cal.App.4th 1837, 1842.)
We begin our analysis by reviewing the testimony and argument at issue.
B. Factual Basis for Alleged Doyle Error Claims
We review the conduct at issue in the order in which it occurred at trial.
1. Sergeant Rodriguez’s Testimony
Sergeant Rodriguez testified that on August 25, 2003, approximately three weeks after the stabbing, he and Detective Hayes went to an unspecified location to take defendant into custody and speak to him. Rodriguez told someone at the location he was there to arrest defendant. When that person spoke to defendant, defendant “took a moment, looked around, kind of scanned the area, and then shortly after fell to his knees and, for lack of a better description, appeared to faint.” Sergeant Rodriguez stated that defendant looked at him prior to fainting. Sergeant Rodriguez also testified that defendant did not speak to him or give him a statement that day. He told the jury that defendant was taken to Valley Medical Center, that the doctors found nothing wrong with him, and that defendant was booked into jail an hour or two later. When defendant testified, he told the jury that he was in court on another matter and that when his attorney told him the detectives were there to speak to him about “an incident,” he sat down and started hyperventilating.
Defendant claims the prosecutor violated his rights under Doyle when he asked Sergeant Rodriguez, “And did he speak to you that day or give you a statement?” and the officer replied, “No, he didn’t.” Defendant contends this testimony violated Doyle because defendant invoked his right to remain silent after being taken into custody.
There was no evidence in this case that defendant had been given the Miranda warnings or invoked his right to remain silent. However, the record in the previous appeal, which we have agreed to judicially notice, contains a copy of a police report that indicates that after defendant fainted and was treated by paramedics at the scene, a deputy informed him that he was under arrest. Defendant was handcuffed to a stretcher and taken by ambulance for medical treatment. As defendant was leaving the courthouse, Detective Hayes told defendant he was aware defendant was being represented by the Public Defender and asked whether he had any desire to give the officer a statement. Defendant responded that he would wait and talk to his attorney. The police report does not state whether defendant was given the Miranda warnings before he made this statement. The jury in the second trial did not hear this evidence.
2. Prosecutor’s Cross-Examination of Defendant
Defendant also contends the prosecutor violated his rights under Doyle by impermissibly calling attention to his post-arrest silence during his cross-examination of defendant. Defendant complains of the following testimony:
“Q. [by Prosecutor]: After the stabbing, you never came back to C.J.’s that night, did you?
“A.: No, I did not.
“Q.: And you never called police to report yourself as a victim.
“A.: No, I did not.
“Q. In the time between August 5th, 2003, and August 25th, 2003, you never called police.
“A.: No, I didn’t.
“Q.: Never filed a complaint.
“A.: No, I did not.
“Q.: Never made an anonymous report.
“A.: No, I did not.
“Q.: Never called the bar to complain.
“A.: No, I did not.”
Defendant argues that the prosecutor violated his rights under Doyle and called attention to his post-arrest silence because he repeatedly used the word “never” in this line of questioning and failed to limit each of his questions to the “pre-Doyle period.” He argues the prosecutor should have limited each question to the time period prior to his arrest. He contends this error is especially egregious, since in our opinion in his first appeal, this court had cautioned the parties to be mindful of defendant’s rights under Doyle when retrying the matter.
3. Prosecutor’s Closing Argument
Defendant asserts that the prosecutor violated his rights under Doyle three times during his argument. In his opening argument, the prosecutor stated: “The detective said, ‘Hey, we’re here to talk to you’ – or ‘We’re here to talk to this person and ask you about this incident.’ That’s your chance to explain any of this. What does he do? He feigns illness, faints, and falls to the ground. [¶] And we know, from what we have heard about the defendant, it’s not his first time being contacted by law enforcement. That just means now you’re going to hyperventilate and fall down? You’re familiar with law enforcement officers. Obviously you’ve dealt with them in the past and talked to them. That’s just ridiculous. I mean, obviously, he was trying to get out of being arrested and get out of being talked to, so that’s what he did. And the fact that he was cleared after about an hour at the hospital tells you that there was actually nothing wrong with him. [¶] The witnesses don’t have a motive to lie; the defendant does. And his motive is he doesn’t want to take responsibility. Unfortunately, you have to do that for him with your verdict.”
Defendant also complains of the portion of the argument where the prosecutor stated: “Circumstantial evidence are [sic] the other little things that you can consider about the case: flight of the defendant, throwing the knife away, feigning illness, his general demeanor and behavior that night. Taken all together, they all prove the defendant’s guilty.” (Italics added.)
Defendant asserts the prosecutor also violated his Doyle rights in his closing argument when he asked the jury to evaluate all of defendant’s actions, including “the way he acted when detectives tried to talk to him about the incident; and how [Stevenson] stayed at the scene, the other witnesses stayed at the scene, explained everything, got their statements locked in that night.”
C. Forfeiture of Doyle Error Claim
Defendant did not object on the ground of Doyle error to any of the prosecutor’s questions or the portions of the prosecution argument that he has placed at issue on appeal. The Attorney General asserts defendant has forfeited his claims of Doyle error by failing to object on that basis in the trial court. If a defendant fails to object in the trial court on the grounds that the prosecutor violated the rule of Doyle, the defendant forfeits the contention on appeal. (Coffman, supra, 34 Cal.4th at p. 118.) We review the contention nonetheless, since defendant argues his counsel rendered ineffective assistance by failing to object to the prosecutor’s questions, cross-examination, and argument. (Ibid.) In our analysis, we apply the rules and standards applicable to the claim of ineffective assistance of counsel. We turn to those next.
D. General Legal Principles Regarding Ineffective Assistance of Counsel
“To prevail on a claim of ineffective assistance of counsel, a defendant must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. [Citations.] Counsel’s performance was deficient if the representation fell below an objective standard of reasonableness under prevailing professional norms. [Citation.] Prejudice exists where there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different.” (People v. Benavides (2005) 35 Cal.4th 69, 92-93 (Benavides), citing Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694 (Strickland).)
“ ‘Tactical errors are generally not deemed reversible; and counsel’s decision-making must be evaluated in the context of the available facts. [Citation.] 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.” ’ ” (People v. Hart (1999) 20 Cal.4th 546, 623-624 (Hart).) Case law recognizes that “counsel’s omission legitimately may have been based in part on considerations that do not appear on the record, including confidential communications from the client.” (People v. Lucas (1995) 12 Cal.4th 415, 443.) “ ‘Finally, prejudice must be affirmatively proved; the record must demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” ’ ” (Hart, at p. 624.)
E. Analysis – Ineffective Assistance of Counsel Based on Failure to Object to Alleged Doyle Error
For the purpose of our analysis, we review the conduct at issue in reverse order.
1. Prosecutor’s Closing Argument
In our view, counsel’s performance was not deficient and, consequently, counsel was not ineffective for failing to object to the prosecution’s argument because none of the cited passages from the prosecution’s argument violated defendant’s rights under Doyle. In the first passage, the prosecutor told the jury that defendant feigned illness, fainted and fell to the ground; that he hyperventilated and fell down because he was trying to get out of being arrested. This argument does not violate Doyle for two reasons. First, this was permissible comment regarding defendant’s demeanor. (Velarde-Gomez, supra, 269 F.3d at pp. 1030-1031 [evidence regarding demeanor does not implicate Doyle].) Second, it refers to matters that occurred prior to his arrest. (Earp, supra, 20 Cal.4th at pp. 856-857.) Likewise, the second and third passages at issue from the prosecution’s argument contain permissible references to defendant’s demeanor and do not run afoul of Doyle. The latter part of the third passage (“how [Stevenson] stayed at the scene, the other witnesses stayed at the scene, explained everything, got their statements locked in that night”) discusses the fact that defendant did not give a statement at the scene, while other witnesses did. This passage does not violate Doyle because it refers to the night of the incident, three weeks prior to defendant’s arrest. In summary, since the prosecution’s argument did not violate Doyle, defense counsel was not ineffective for failing to object.
2. Prosecutor’s Cross-Examination of Defendant
Likewise, we are not persuaded that defense counsel’s performance was deficient when he failed to object to the portion of the prosecution’s cross-examination of defendant, in which he repeatedly used the word “never.” This is because we conclude this line of questions did not violate defendant’s rights under Doyle.
The first question (“After the stabbing, you never came back to C.J.’s that night, did you?”) is clearly limited in time to the night of the incident and thus refers to a time prior to defendant’s arrest.
The second question (“And you never called police to report yourself as a victim”) is ambiguous as to time. It may be read as referring to the same time period as the first question at issue, which refers to the night of the stabbing. In that case, there was no Doyle violation and defense counsel’s performance was not deficient for failing to object. The question may also be read as referring to the entire time period since the stabbing, including the time after defendant’s arrest and invocation of his right to counsel. Interpreted in that way, the question would have violated Doyle if there had been evidence that defendant had been informed of his right to remain silent. (Lopez, supra, 129 Cal.App.4th at pp. 1525-1526.) But since there is no evidence that defendant was given the Miranda warnings, we cannot conclude that defense counsel’s performance was deficient for failing to object. (People v. Delgado, supra, 10 Cal.App.4th at p. 1842.)
The third question and the string of questions that follow (“In the time between August 5th, 2003, and August 25th, 2003, you never called police. [¶] … [¶] Never filed a complaint. [¶] … [¶] Never made an anonymous report. [¶] … [¶] Never called the bar to complain.”) refer to the time period between the date of the incident and the date of defendant’s arrest. In our view, it was not necessary for the prosecutor to repeat the time frame in each question. Since these questions refer to pre-arrest silence, they do not violate Doyle. (Earp, supra, 20 Cal.4th at p. 856-857.)
3. Sergeant Rodriguez’s Testimony
Defendant contends the prosecutor violated Doyle when he asked Sergeant Rodriguez, “And did he speak to you that day or give you a statement?” and the officer replied, “No, he didn’t.” He also contends defense counsel was ineffective when he failed to object to this testimony. The question refers to the day defendant was arrested, which includes the time both before and after defendant told the officer he would wait and talk to his attorney about whether he should give the officer a statement. As we explained in Lopez, supra, 129 Cal.App.4th at pages 1525-1526, the defendant’s silence in apparent reliance on Miranda after he or she has invoked the right to remain silent or the right to counsel cannot be used against the defendant in a criminal trial. Since there was no evidence defendant was given the Miranda warnings before invoking his right to speak to counsel, we cannot say the prosecution violated Doyle and therefore hold defense counsel’s performance was not deficient for failing to object to this testimony.
4. Prejudice
Defendant argues that Doyle applies because he expressly invoked his right to counsel and Detective Hayes’ words provided the government assurances that Doyle emphasized. We need not decide this issue. But, assuming defense counsel could have produced evidence that defendant had been informed of his right to remain silent before invoking his right to speak to counsel, the prosecutor’s second question to defendant (“And you never called police to report yourself as a victim”) and the testimony he elicited from Sergeant Rodriguez (that defendant did not speak to him that day or give him a statement), would have violated defendant’s rights under Doyle. Since defense counsel’s performance would have been deficient for failing to object in those circumstances, we address the issue of prejudice.
To prevail on a claim of ineffective assistance of counsel, the defendant must show that defense counsel’s deficient performance was prejudicial. “Prejudice exists where there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different.” (Benavides, supra, 35 Cal.4th 69, 92-93, citing Strickland, supra, 466 U.S. at pp. 687-688, 693-694.) Even if defendant had received the Miranda warnings, we are not persuaded that defense counsel’s failure to object was prejudicial.
In this case, there were only two brief references to defendant’s post-arrest silence over the course of a six-day trial. This case is distinguishable from People v. Veloria (1998) 136 F.3d 648, a case defendant cites. In Veloria, the court concluded the officer’s testimony regarding the defendant’s post-arrest silence could not be characterized as innocuous, because there was no other point to the testimony. (Id. at pp. 652-653.) In this case, the bulk of Sergeant Rodriguez’s testimony was admissible and did not violate Doyle. As set forth above, the prosecution did not refer to defendant’s post-arrest silence in its closing argument and instead made permissible references to defendant’s pre-arrest silence. There was also overwhelming evidence that pointed toward guilt. An eyewitness other than the victim saw defendant with the knife in his hand, stabbing Stevenson. Although Ruelas could not recall what occurred after Stevenson walked toward defendant, her testimony about the two men’s demeanor tended to corroborate Stevenson’s version of events. Defendant fled from the scene and disposed of the knife, even though it belonged to his stepson. Moreover, defendant’s credibility was significantly impaired, with evidence of prior felony convictions for possession of cocaine for sale, second degree commercial burglary, and perjury. Defendant also told the jury he had lied to a police officer in 1999. This tended to undermine defendant’s self-defense claim, which relied in large part on his credibility. For these reasons, we conclude there was not a reasonable probability that, but for counsel’s errors, the results of the trial would have been different. (Benavides, supra, 35 Cal.4th at pp. 92-93.)
II. Prosecutorial Misconduct
Defendant contends the prosecutor committed prejudicial misconduct in three ways during the trial. He asserts it was misconduct for the prosecutor: (1) to present a false and misleading argument to the trial court during in limine discussions regarding the admissibility of evidence that defendant fainted when he was advised that he was going to be taken into custody; (2) to elicit misleading testimony from Sergeant Rodriguez that gave the jury the false impression that defendant had feigned illness to avoid speaking to the police when he had in fact invoked his constitutional rights; and (3) to exploit this false and misleading theory in his closing argument to the jury.
The Attorney General contends defendant forfeited any claim of prosecutorial misconduct by failing to object and failing to request an admonition in the trial court. On the merits, he argues that defendant has failed to explain how this evidence was false or perjurious and that Doyle precluded the prosecution from presenting evidence of defendant’s post-arrest exercise of his rights to remain silent and speak to counsel.
Defendant asserts there was no forfeiture because the “prosecutor’s special role made it incumbent upon him not to present a false or misleading argument and obligated [him] not to present misleading testimony.” He argues further that the circumstances in this case call out for this court to exercise its discretion to reach the issue, since we had cautioned the parties to be aware of Doyle error in the previous appeal. We begin by addressing the forfeiture issue.
A. Forfeiture of Prosecutorial Misconduct Claim
“As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.” (People v. Samayoa (1997) 15 Cal.4th 795, 841; see also, e.g., People v. Farnam (2002) 28 Cal.4th 107, 167; People v. Stewart (2004) 33 Cal.4th 425, 502-503.)
There is an exception to the general rule of forfeiture, however, which applies in the case of futility, incurability, or impracticability. (People v. Hill (1998) 17 Cal.4th 800, 820-821 (Hill).) “A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile. In addition, failure to request the jury be admonished does not forfeit the issue for appeal if an admonition would not have cured the harm caused by the misconduct. Finally, the absence of a request for a curative admonition does not forfeit the issue for appeal if the court immediately overrules an objection to alleged prosecutorial misconduct [and as a consequence] the defendant has no opportunity to make such a request.” (Id. at p. 821, internal quotation marks and citations omitted; see also, e.g., People v. Estrada (1998) 63 Cal.App.4th 1090, 1099 (Estrada) [curative admonition inadequate where the misconduct was “constant and pervasive”].)
Defense counsel did not object to the asserted prosecutorial misconduct at trial, nor did he ask the court to admonish the jury to disregard the evidence and argument. Accordingly, he has forfeited the argument for the purpose of this appeal. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1253 [claim that prosecutor presented perjurious testimony].)
As noted, defendant argues that we should ignore the forfeiture because the prosecutor’s special role obligated him not to present misleading testimony or false or misleading argument and that the circumstances in this case call out for us to reach the issue, since we had cautioned the parties to be aware of Doyle error in the previous appeal. Defendant does not cite any legal authority that supports either proposition. He does not argue that this case fits within the exception for futility, incurability or impracticability. The special role that the prosecutor occupies in criminal cases applies in every criminal case and is not grounds for excusing a defendant’s forfeiture. Likewise, our admonition to the parties to be aware of the potential for Doyle error upon retrying this case does not coincide with any recognized exception to the rule of forfeiture. However, defendant’s claim of ineffectiveness of counsel based on this same conduct persuades us that we should reach the merits of his prosecutorial misconduct claim. (People v. DeJesus (1995) 38 Cal.App.4th 1, 27.)
B. Ineffective Assistance of Counsel Based on Failure to Object to Alleged Prosecutorial Misconduct
As we discussed previously, to prevail on a claim of ineffective assistance of counsel, a defendant must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. (Benavides, supra, 35 Cal.4th at pp. 92-93.) To determine whether counsel’s performance was deficient for failing to object to the alleged acts of prosecutorial misconduct, we review general principles regarding prosecutorial misconduct.
C. General Principles Regarding Prosecutorial Misconduct
“Prosecutorial misconduct implies a deceptive or reprehensible method of persuading the court or jury.” (People v. Price (1991) 1 Cal.4th 324, 448, superseded by statute on other grounds as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1161-1165.) Although prosecutors are given “wide latitude” in arguing their cases, they nevertheless “are held to an elevated standard of conduct.” (Hill, supra, 17 Cal.4th at p. 819 .) The imposition of this higher standard is justified by their “unique function … in representing the interests, and in exercising the sovereign power, of the state.” (Id. at p. 820.)
To warrant reversal, the challenged conduct must be prejudicial. “What is crucial to a claim of prosecutorial misconduct is . . . the potential injury to the defendant.” (People v. Benson (1990) 52 Cal.3d 754, 793.) When the claim “focuses upon comments made by the prosecutor 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.” (People v. Samayoa, supra, 15 Cal.4th at p. 841; see also, e.g., People v. Smithey (1999) 20 Cal.4th 936, 960.) To answer that question, we examine the prosecutor’s statement in the context of the whole record, including arguments and instructions. (Hill, supra, 17 Cal.4th at p. 832; People v. Morales (2001) 25 Cal.4th 34, 44.) “In conducting this inquiry, we ‘do not lightly infer’ that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements.” (People v. Frye (1998) 18 Cal.4th 894, 970; Donnelly v. DeChristoforo (1974) 416 U.S. 637, 647.)
“ ‘Under well-established principles of due process, the prosecution cannot present evidence it knows is false and must correct any falsity of which it is aware in the evidence it presents, even if the false evidence was not intentionally submitted.’ [Citations.] Put another way, the prosecution has the duty to correct the testimony of its own witnesses that it knows, or should know, is false or misleading. [Citation.] This obligation applies to testimony whose false or misleading character would be evident in light of information known to the police involved in the criminal prosecution [citation], and applies even if the false or misleading testimony goes only to witness credibility [citations][.] Due process also bars a prosecutor’s knowing presentation of false or misleading argument. [Citations.] As [our State Supreme Court] recently summarized, ‘a prosecutor’s knowing use of false evidence or argument to obtain a criminal conviction or sentence deprives the defendant of due process.’ ” (People v. Morrison (2004) 34 Cal.4th 698, 716-717.)
As a matter of federal constitutional law, a prosecutor’s behavior constitutes prejudicial misconduct when it is “so egregious that 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 court or the jury.” (Hill, supra, 17 Cal.4th at p. 819, internal quotation marks and citations omitted.) Thus, for example, federal constitutional error may be found where a pervasive pattern of misconduct “threatened defendant’s right to a fair trial.” (Id. at p. 838.) By contrast, there would be “no error of constitutional dimension” where, for example, “inaccuracies in the [prosecution] witness’s testimony were not material errors ‘in the sense that [their] suppression undermines confidence in the outcome of the trial.’ ” (People v. Padilla (1995) 11 Cal.4th 891, 929, overruled on other grounds in Hill, supra, 17 Cal.4th at p. 823, fn. 1.)
D. Analysis – Ineffective Assistance of Counsel Based on Failure to Object to Alleged Prosecutorial Misconduct
1. Failure to Object to Misconduct During In Limine Remarks to Trial Court
We conclude counsel was not ineffective for failing to object to the prosecution’s in limine argument to the court because there was nothing misleading in the prosecution’s in limine remarks regarding the evidence that defendant fainted when told that the officers were there to arrest him. The in limine discussion of this evidence began when defense counsel asked the court to exclude evidence of defendant’s “demeanor in terms of feigning any illnesses” prior to his arrest. The prosecutor told the court: “Mr. Richard was informed that he was going to be taken into custody, and his reaction … was to faint or to feign fainting after his attorney notified him that … police detectives were there to speak to him about the stabbing.” The prosecutor argued that this was circumstantial evidence that showed consciousness of guilt, that it was “pre-arrest, pre-Miranda,” that defendant avoided discussing the issue with the officers by feigning illness, and that he should be allowed to comment on it if defendant takes the stand. The prosecutor also argued that it was an adoptive admission.
The prosecution’s comments were consistent with the facts and the evidence regarding events that occurred prior to defendant’s arrest and prior to the time defendant declined to give a statement without first speaking with his counsel. As we explained, references to defendant’s pre-arrest conduct did not violate defendant’s rights under Doyle. Since we conclude there was nothing false or misleading about the prosecutor’s argument to the court, defendant’s claim of prosecutorial misconduct on this ground fails and defense counsel was not ineffective for failing to object to the argument.
2. Failure to Object to Alleged Misconduct During Sergeant Rodriguez’s Testimony
Defendant contends the prosecutor elicited false and misleading testimony from Sergeant Rodriguez when he asked the officer “And did [defendant] speak to you that day or give you a statement?” and the officer replied, “No, he didn’t” and that his counsel was ineffective for failing to object to this testimony. Defendant asserts this testimony was false because he did speak to the police that day when he invoked his right to counsel.
It is not clear from the record that Sergeant Rodriguez’s testimony was false because the question is compound and contains some ambiguity. The question can be interpreted as asking both: “Did defendant speak with you?” and “Did defendant give you a statement?” It is not clear whether the word “you” in the sentence refers solely to Sergeant Rodriguez, or refers to Sergeant Rodriguez and Detective Hayes jointly. If the former, then there is no falsity, since the record reveals that defendant spoke to Detective Hayes when he invoked his right to counsel. In that case, Sergeant Rodriguez did not testify falsely when he stated he did not speak to defendant on the date of his arrest. In addition, the officer may have interpreted the question as asking whether defendant spoke with him about the stabbing incident, not whether defendant spoke to any of the officers on the date of his arrest. We conclude there was no misconduct under the federal standard for prosecutorial misconduct, since this single question was not so egregious that it infected the trial with such unfairness as to make the conviction a denial of due process. Moreover, given the various problems with the interpretation of the question, we cannot say this question involved the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury that made the trial fundamentally unfair under state law. (Hill, supra, 17 Cal.4th at p. 819.) Since we conclude there was no prosecutorial misconduct related to this testimony, defense counsel’s performance was not deficient and his ineffective assistance of counsel claim based on the failure to object to this testimony fails.
3. Failure to Object to Alleged Misconduct During Argument to Jury
Defendant claims the prosecutor committed misconduct in his argument to the jury. He relies on the same portions of the argument that are set forth in our discussion of Doyle error. Defendant argues the argument was false or misleading because he did not avoid speaking to the police by feigning illness. Instead, he spoke to the police and invoked his constitutional rights. As we explained above, none of the three passages from the prosecution’s argument that are at issue violated defendant’s rights under Doyle, since they focus on the time period prior to defendant’s arrest and prior to his invocation of his right to counsel. It was undisputed that defendant fainted upon being told the officers were in court to take him into custody and speak to him about the stabbing incident. That he invoked his rights after being arrested does not alter the fact that he fainted upon being told why the officers were there. We find nothing false or misleading about the argument that would support a claim of prosecutorial misconduct. Consequently, defense counsel’s performance was not deficient for failing to object on the grounds of prosecutorial misconduct.
III. Ineffective Assistance of Counsel Based on Failure to Object to Evidence and Argument Regarding Prior Violence
Defendant contends his trial counsel was ineffective when he failed to object to the alleged Doyle violations and to the alleged prosecutorial misconduct. We have addressed those contentions above.
Defendant also asserts his counsel was ineffective when he failed to object to: (1) the admission of evidence regarding domestic violence between defendant and his former, live-in girlfriend; (2) the admission of evidence regarding defendant’s completion of domestic violence classes; and (3) prosecutorial misconduct in argument about the domestic violence evidence. Defendant argues his attorney should have objected to the evidence regarding defendant’s prior acts of domestic violence involving his former girlfriend because it was not admissible under Evidence Code section 1103 or should have been excluded under Evidence Code section 352.
A. Factual Background
During its case-in-chief, the prosecution told the court it anticipated that the defense case “may open the door” to evidence of defendant’s character for violence under Evidence Code section 1103 and asked that C.M., the victim of the prior domestic violence who had appeared in court, be excused from the courtroom. In his cross-examination of Stevenson, defense counsel asked Stevenson whether he “[took] a swing” at the security guard when he attempted to steal the paint brushes from the Home Depot. Stevenson denied swinging at the security guard. Stevenson also volunteered on direct examination that he had been in “a lot of altercations.”
Defendant called Danny Alegre, a former security guard for Home Depot, who testified that Stevenson “swung at” him when he attempted to stop Stevenson in the parking lot outside the store after Stevenson stole some paintbrushes. Alegre also demonstrated the manner in which Stevenson swung at him and told the jury he “evaded the … punch.”
Subsequently, on cross-examination, the prosecutor asked defendant whether he had ever received counseling for his “violent temper.” Defendant testified that he had attended 52 weeks of domestic violence classes based on a 1998 family violence case involving his former, live-in girlfriend, C.M. He admitted that C.M. called the police in May 1998 for some violence he had committed against her. When asked whether he had “slammed her head into a stucco exterior wall” of their home, defendant responded “[t]hose details are not correct.” When the prosecutor asked whether “during that incident [defendant had] also kicked her in the side, kicked her in the head, and kicked her in the back,” defendant responded, “That’s not what I recall….” Defendant recalled a second incident on December 10, 1999, when he “punched [C.M.] in the back of the head.”
B. Analysis
Defendant contends his attorney was ineffective because he failed to object to the evidence regarding the domestic violence involving C.M. and the domestic violence counseling on the grounds that this evidence was not admissible under Evidence Code section 1103 and that prejudice out-weighed the probative value of this evidence under Evidence Code section 352.
Evidence Code section 1103, subdivision (b) provides: “In a criminal action, evidence of the defendant’s character for violence or trait of character for violence (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) is not made inadmissible by Section 1101 if the evidence is offered by the prosecution to prove conduct of the defendant in conformity with the character or trait of character and is offered after evidence that the victim had a character for violence or a trait of character tending to show violence has been adduced by the defendant….”
“Generally, failure to make objections is a matter of trial tactics as to which we will not exercise judicial hindsight. [Citation.] … ‘It is not sufficient to allege merely that the attorney’s tactics were poor, or that the case might have been handled more effectively … Rather, the defendant must affirmatively show that the omissions of defense counsel involved a critical issue, and that the omissions cannot be explained on the basis of any knowledgeable choice of tactics.’ ” (People v. Lanphear (1980) 26 Cal.3d 814, 828-829, disapproved on another point in People v. Balderas (1985) 41 Cal.3d 144, 188.) “An attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel.” (People v. Kelly (1992) 1 Cal.4th 495, 540.) “[C]ompetent counsel may often choose to forgo even a valid objection.” (People v. Riel (2000) 22 Cal.4th 1153, 1197.)
In our view, defense counsel was not ineffective for failing to object on Evidence Code section 1103 grounds to the evidence of defendant’s prior domestic violence. The prosecutor told the court he expected defendant to introduce evidence that opened the door to character evidence under section 1103. Defendant elicited evidence that Stevenson had swung at the security guard, which under Evidence Code section 1103 opened the door for the prosecutor to inquire regarding defendant’s prior acts of violence. Since the evidence was admissible, it would have been futile for defendant to object.
Defendant argues that he offered Alegre’s testimony that Stevenson swung at him to impeach Stevenson’s testimony and show that Stevenson lied when he testified that he did not swing at the security guard and not to show that Stevenson had a character trait for violence. He asserts that since Alegre’s testimony was only used to impeach, the evidence regarding defendant’s prior acts of domestic violence was inadmissible and his counsel was ineffective when he failed to object to this evidence. But the record discloses that this evidence was used for purposes other than impeachment. In closing argument, in addition to arguing the impeachment value of Alegre’s testimony, defense counsel also argued the violent nature of Alegre’s encounter with Stevenson. He stated, “And Mr. Alegre also said that Mr. Stevenson took a swing at him. And he showed you. He did a motion with his arm, and it was a very big motion considering Mr. Alegre’s size. And that he ducked, and that’s why he wasn’t hit. [¶] He also told you that Mr. Stevenson was detained and it took himself and two associates to detain and eventually handcuff Mr. Stevenson. [¶] … But his testimony sheds light on Morgan Stevenson and Morgan Stevenson’s testimony, because Morgan Stevenson minimized his conduct as to the incident in 2000. He minimized his conduct as to the incident we are dealing with here today.”
We note also that defense counsel made no effort to limit the purpose for which the evidence of Stevenson’s prior violence would be admissible. This was most likely the result of a tactical decision. The admission of evidence of prior violent conduct by Stevenson bolstered defendant’s contention that Stevenson was the aggressor and that defendant acted in self-defense. The fact that defense counsel may have had a tactical reason for the evidence to come in also explains why he failed to object on Evidence Code section 352 grounds. For these reasons, we conclude defense counsel was not ineffective for failing to object to the evidence of defendant’s prior acts of domestic violence and domestic violence counseling.
Defendant also contends his attorney was ineffective for failing to object to the prosecutor’s argument on the grounds of prosecutorial misconduct because the prosecutor’s argument misstated the evidence regarding the domestic violence. It is misconduct to refer to facts that are not in evidence in argument to the jury. (People v. Hill, supra, 17 Cal.4th at pp. 827-828.) In closing argument, the prosecutor argued that Stevenson had never been charged with any kind of assaultive behavior and stated: “Compare that to the defendant, who went through counseling for his violence issues, who beat his wife, who smashed her head into a wall, who kicked her in the head, who kicked her in the back, who kicked her in the side.” However, during cross-examination, defendant denied smashing C.M.’s head into a wall, kicking her in the side, or kicking her in the back and there was no other evidence regarding the nature of the acts of domestic violence against C.M.
Defendant does not raise this as a separate ground under his prosecutorial misconduct claim. We conclude, as we did with defendant’s other prosecutorial misconduct claims, that defendant has forfeited any claim of error related to this conduct.
Defense counsel may have had a tactical reason for not objecting to this argument. Although there was no evidence that defendant smashed C.M.’s head into a wall, kicked her in the head, kicked her in the back, or kicked her in the side, there was evidence that there had been two separate incidents of domestic violence involving C.M., that defendant had punched C.M. in the back of the head in the second incident, and that defendant completed 52 weeks of domestic violence classes as a result of the incidents. Defense counsel may have withheld his objection in order not to highlight the fact that there were two incidents of domestic violence.
Assuming counsel’s performance was deficient for failing to object to the lack of evidence to support the argument, we are not persuaded any error was prejudicial. In addition to the evidence regarding the acts of domestic violence and the counseling, defendant admitted prior felony convictions for possession of cocaine for sale, second degree commercial burglary, and perjury and admitted that he had lied to a police officer in 1999. The jury was instructed that the attorneys’ questions and argument are not evidence, that only the witnesses’ answers are evidence, and not to assume anything is true “just because one of the attorneys asked a question that suggested it was true.” In light of these factors, we hold that there was not “a reasonable probability that, but for counsel’s [alleged] errors, the result of the proceeding would have been different” (Benavides, supra, 35 Cal.4th at p. 93) and conclude that defendant was not prejudiced by defense counsel’s failure to object to the prosecution’s argument regarding the domestic violence evidence.
IV. Cumulative Error
Since we find no prejudicial Doyle error, no prosecutorial misconduct, and no ineffective assistance of counsel, defendant’s claim of cumulative error fails.
V. Court Security Fee (§ 1465.78)
At sentencing, the court imposed, among other things, a $20 court security fee pursuant to section 1465.8. Defendant contends the court erred in imposing the fee because section 1465.8 was not operative until August 17, 2003, which was 12 days after defendant committed the offense at issue, and section 3 prohibits the retroactive application of a penal statute unless there is a clear indication the Legislature intended it to apply retroactively.
Section 1465.8, subdivision (a)(1) provides: “To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses as defined in subdivision (i) of Section 1463, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code.” (Italics added.)
Section 3 provides: “No part of [the Penal Code] is retroactive, unless expressly so declared.” Statutes are presumed to operate prospectively absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended retroactive application. (People v. Hayes (1989) 49 Cal.3d 1260, 1274.) The California Supreme Court recently addressed this issue in People v. Alford (Dec. 3, 2007, S142508) ___ Cal.4th ___ [2007 Cal. Lexis 13744] and concluded that section 3 is not implicated and does not prohibit retroactive application of the section 1465.8 court security fee to cases involving convictions that occurred after the operative date of the statute. (Id. at pp. ___ [*2, 3-8].) The Court also held that “the fee does not violate the prohibition against ex post facto laws.” (Id. at p. ___ [*2].)
We therefore conclude the court did not err in imposing the $20 court security fee pursuant to section 1465.8.
Disposition
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Mihara, J.