Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 050519512
Richman, J.
A jury found defendant guilty of arson of an inhabited structure. (Pen. Code, § 451, subd. (b).) Defendant waived his right to a jury trial on allegations in the information that he had served four prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). After a bench trial, the trial court found the prior prison term allegations to be true and imposed three one-year enhancements for these prior terms, staying imposition of the remaining prior term in the interest of justice. As to the arson count, the court imposed the mid-term sentence of five years, and entered judgment sentencing defendant to eight years in prison.
Defendant makes the following arguments on appeal: (1) the trial court erred in instructing the jury pursuant to CALCRIM No. 361 that it could consider defendant’s failure to explain or deny the evidence against him; (2) the trial court’s response to the jury’s question regarding this instruction was erroneous and improper; (3) the prosecutor engaged in misconduct during closing argument; (4) defense counsel’s failure to object to the prosecutor’s misconduct constituted ineffective assistance of counsel; and (5) the cumulative impact of the trial court’s errors and the prosecutor’s misconduct mandates reversal. We affirm.
FACTUAL BACKGROUND
I. The People’s Case
A. The Apartment Complex’s Management and Defendant’s Neighbors
Defendant rented an apartment in Lafayette. While defendant was a tenant there, there were several complaints about him for excessive noise and for parking in other tenants’ parking spots. Defendant had also twice been late to pay his rent, on both of which occasions he had contacted the apartment complex’s management about his inability to pay on time, and he was not evicted. In June 2005, defendant again failed to pay the rent, but this time he did not contact management, and management was unable to contact him. On June 23, 2005, management posted on the door to defendant’s apartment a three-day notice to pay the June rent or vacate the apartment.
Less than 48 hours later, early on June 25, 2005, there was a fire inside defendant’s apartment which spread to the adjacent apartment. No one was injured in the fire.
Neighboring tenants testified concerning the morning of June 25. Kevin Bell, defendant’s downstairs cater-corner neighbor, testified that between 4:00 a.m. and 6:15 a.m., he heard loud noises off and on coming from his wall heater, which sounded “like something was sliding up and down the wall next to the pipe.” Sometime after 5:00 a.m. that morning, defendant’s next-door neighbor, Beatriz Carballo, heard what sounded like a hammer banging in defendant’s apartment. Jeff Stahl, who lived directly below defendant, heard “a huge boom,” and about fifteen seconds later heard defendant’s front door open and close. The explosion in defendant’s apartment shook the building. After the explosion, defendant’s neighbors knocked on his front door, but there was no response. Carballo saw smoke coming from defendant’s apartment and called 911. Firefighters arrived a few minutes later and evacuated the building.
After the firefighters arrived, Carballo saw defendant outside the apartment building. When she asked where he had been, he told her that he had been sleeping. However, unlike the apartment building’s other residents, who were in their pajamas, defendant was dressed in a shirt and jeans. Defendant did not appear to be “scared or [a]sleep or anything.” Carballo testified that defendant looked as if “he wanted me to see him in that moment . . . .”
B. Captain Jeffrey Peterson
Captain Jeffrey Peterson of the Contra Costa County Fire District testified that the origin of the fire was in the hallway of defendant’s apartment. When Peterson and other firefighters arrived at the scene, they discovered that defendant had locked his apartment’s front door, not only by the knob but also with a key-operated deadbolt. Peterson explained that “it was unusual to see somebody leaving and take the time to lock their door because usually I’d say 90 percent of my fires the doors are open if somebody’s at home. They’re not locking the doors.”
Defendant had also placed objects which blocked entry and interfered with the firefighters’ efforts to control the fire. A television set behind the front door had to be moved out of the way before the door could be opened fully. Once inside the apartment, the firefighters came upon a couch that had been up-ended on one of its arms, which they also had to move out of their way in order to fight the fire. Defendant had also placed a mattress in the hall, which created a very dangerous hazard because the heated springs could have popped out and entangled the firefighters. In the hallway and in one of the bedrooms there was common household debris. Peterson thought that “all this debris packed up in [the apartment’s] entryway was suspicious.”
Defendant had also covered the apartment’s windows with “heavy blanket type material” that not only prevented exterior observation of the fire, but also prevented the firefighters from breaking a window with a stream of water in order to create ventilation and improve visibility. In one of the bedrooms, a mattress and box springs “were forced up against the window blocking any observation from the exterior into the rooms.”
C. Fire Investigator Richard Ryan
Fire investigator Richard Ryan testified as an expert in fire cause and origin. Ryan entered defendant’s apartment around 8:45 a.m. the morning of the fire. He looked for accidental causes of the fire, such as electrical defects or a problem with the apartment’s natural gas furnace, but concluded that someone had deliberately set the fire. He opined that the fire originated in front of the furnace in the hallway. Based on burn marks and statements from firefighters, he believed that the furnace’s gas had been turned on at the time of the fire and was ignited by an open flame. Ryan believed that the explosion, which two witnesses had described to him, was caused by unburned natural gas escaping out of the furnace valve, hitting an ignition source in the hallway, and igniting. He believed that the ignition source was likely from a propane torch found nearby. The person who started the fire could have used the torch to first set on fire the clothes that were hanging in the hallway, which would then ignite the natural gas coming from the furnace in that hallway.
Ryan had been told that a firefighter had turned the gas valve off.
As Ryan walked into the apartment through the front door, he found a propane torch on the floor on his way to the place in the hallway where he believed the fire began. The torch was at that location when the firefighters initially entered the apartment; they did not move the torch as they fought the fire. While it would not be surprising to find such a torch in a garage, or in or near a tool box, Ryan opined that it was unusual to find one “in a hallway on the floor in an apartment unit.”
Ryan also found a mirrored closet door lying on the floor in the hallway, propped up at the corner by an empty kitchen knife holder. According to Ryan, that was “extremely unusual. I wouldn’t find that in a hallway of a home. [¶] I believe that that was placed there with intention of causing injury to firefighters” who would be crawling on the floor in such a fashion that glass would “go right into [their] knees and thighs.” Peterson testified that the firefighters did in fact fight this fire on their knees.
The apartment’s furnace was in the hallway where the fire started. In front of that furnace there was a metal rack, similar to an oven rack, which was suspended about four to five feet off the floor by electrical cords tied to door knobs. Material was stacked on top of the rack, and clothes on plastic hangers hung from the bottom of the rack. Ryan described the rack as “extremely unusual” in that it blocked the way to the apartment’s bathroom, bedrooms, and closet, and concluded it was “pretty significant,” opining that it was placed in the hallway “to make the fire larger to cause more damage to the structure.”
Ryan also concluded that the debris he found in the hallway was “pretty unusual.” The debris was about two to four inches deep and included a ketchup bottle and a pair of scissors. Ryan noted that “our firefighters are trained not to move debris unless directed by the fire investigator.”
Peterson also testified that “we try to not move anything that we deem is evidence. If we find something on the floor . . . or something suspicious, we make a note of it and leave it . . . .” However, he admitted that some things had been moved from their original locations in the apartment during the fire fight because the first priority is putting out the fire.
The furnace was located inside a closet in the hallway. There, Ryan found a pair of pliers underneath the shut-off switch which controlled the natural gas. The door to the closet had been closed at the time the fire began. Ryan found that the hose that usually connects the natural gas shut-off valve to the furnace had been removed. Ryan opined that the hose had been removed with the pliers before the fire. He believed that the gas valve had been opened and the gas ignited by an open flame. Ryan surmised that the propane torch was the source of the open flame. There was a kitchen pot in the furnace’s closet which had fire debris in it. Ryan had no idea what the pot was for, but noted that kitchen pots typically are not found “inside closets like that or inside of a natural gas furnace.”
Ryan found that a scuttle hole cover had been removed in one of the apartment’s bedrooms. This cover blocked access to the attic. With the cover removed, the fire went up through the hole and spread laterally, causing extensive damage to defendant’s apartment as well as to his next-door neighbor’s apartment.
At the time the fire started, the apartment’s interior doors and a sliding glass door to the balcony were closed. Ryan opined that all the doors were closed “to maximize the damage to the structure” because the closed doors, in combination with the coverings defendant put on the windows, limited “the ability of anyone outside the building to notice that a fire was occurring inside the building.”
Ryan did not find in the apartment a vacuum cleaner or carpet cleaning supplies. He looked for, but did not find, evidence of candles or evidence of “smokers’ materials” such as lighters or cigarettes. He explained that candles do not burn away completely: there’s always something left of them such as a puddle of wax.
D. Richard Wolkenhauer
At around 9:15 a.m. on the morning of the fire, defendant called Richard Wolkenhauer, a minister whom defendant had known for approximately 35 years, and asked him for a ride to “the doctor’s.” Wolkenhauer picked up defendant on Ygnacio Valley Road in Walnut Creek. When Wolkenhauer asked defendant which doctor he wanted to be taken to, defendant replied that he did not know and said it would be better if Wolkenhauer took him to a friend’s place so that he (defendant) could get some rest. Defendant looked very disheveled and was not wearing any shoes. He seemed very confused and almost “in a state of shock.” Defendant was hard to understand, but he mentioned a fire a couple of times that morning. Wolkenhauer eventually dropped defendant off on a corner in Castro Valley.
Defendant knew that the fire investigator suspected him of starting the fire. In the weeks after the fire, Wolkenhauer told defendant that an investigator was looking for him. Wolkenhauer passed on to defendant an offer to come in to the fire department and discuss the fire with the investigator, with the guarantee that he would be allowed to leave afterwards, but with the understanding that “if the district attorney was going to press some charges they would go after him.” Defendant replied that “he would not go unless he had an attorney.” As far as Wolkenhauer knew, defendant did not obtain an attorney or speak to that investigator.
Defendant told Wolkenhauer several different stories about how the fire started. In one, defendant woke up, discovered the fire, tried to put it out and left. In another version, someone had come into the building to set the fire, which defendant tried to extinguish only to have someone rekindle it. Defendant “said most of the time that he had not been responsible for” the fire. A few weeks after the fire, defendant told Wolkenhauer that he had set the fire in an effort to take his own life and he asked Wolkenhauer to call the investigator. According to Wolkenhauer, defendant seemed to be throwing up his hands at that point and saying, “Okay, I did it.”
II. The Defense Case
Defendant testified on his own behalf and was the only witness for the defense. At the time of the fire, he was working for a pool service and repair company. In this job, he would use the propane torch found in his apartment to repair copper plumbing and pool sweeps. He used to be a contractor licensed to build houses.
Defendant admitted that he had not paid his rent for June and had received a three-day notice two days before the fire. However, he did not believe he would be evicted because he had been late to pay his rent before.
He testified that he spent the night before the fire in Castro Valley with friends, then left around midnight to get some groceries and go home. After he got to his apartment, he moved some furniture, including a couch and mattress, out of the living room so that he could clean the carpets the next morning. The carpets were stained, and he thought management might want to inspect the apartment because of the three-day notice for failure to pay his rent. He had previously covered the windows and sliding glass door to reduce the noise from his playing music and the noise from people who stayed with him in the apartment.
The night before the fire, he played his guitar until very late into the night. He did this in the little hallway off of the main hallway. He testified that with the furniture moved and the hallway partially blocked by the couch set on its end, the acoustics of the little hallway reminded him of a sound studio when he played his guitar. He said that in order to create “baffles,” which he explained were “anything that changes the acoustics,” he strung cords across the hallway, anchored on doorknobs, and hung clothes on the cords. He also pulled some shelving out of the furnace area and hung the shelves in different ways, lining the top with clothes, in order to create different sounds. Defendant said that he put the eight-foot mirrored closet door in the hallway because it kept coming off its tracks and he used it for its “resonance” when he “was dealing with the sound baffles.”
Defendant eventually took an aromatherapy bath and lit a candle. He fell asleep in the bathtub and awoke to a loud explosion that blew off the bathroom door. Defendant testified that he must have been asleep in the bath tub for a while because when he woke up the bath water was cold. He was not sure what caused the explosion, but his “instinct told [him] it was from the gas” furnace, which was broken. Defendant explained that a few weeks before the fire he had accidentally punctured the flex line connecting the furnace to the valve. He had removed the flex line with pliers in order to replace it. He had purchased another flex line, but it was the wrong size. He had not yet replaced the flex line because it was summer and he did not need the furnace.
According to the apartment complex’s management, defendant did not make a maintenance request about the gas line or fixtures in his apartment.
Defendant testified that he thought he went to the furnace after the explosion to shut off the gas. But he could not be certain because during the explosion he had hit his head on the bath tub. After going to the furnace, he went to his room and grabbed some shorts. Defendant blacked out while pulling on his shorts. When he regained consciousness there was black smoke everywhere. He left his apartment without his shoes, phone, or wallet, exiting through the sliding glass door that led to his balcony. On the balcony, he threw on some old work clothes he had left there. As he escaped from the burning apartment, he heard fire engines. Defendant climbed from balcony to balcony until he got to the last unit. He then opened the door to the last unit and walked through it. His neighbor, Beatriz Carballo, started yelling at him. Defendant testified that he did not have a clear memory of what exactly happened next, but he left the apartment building to search for a phone so that he could call Wolkenhauer. Wolkenhauer picked up defendant on Ygnacio Valley Road in Walnut Creek and dropped him off in Castro Valley. Defendant testified that he could not really remember the conversation he had with Wolkenhauer on the way to Castro Valley or how he got to Ygnacio Valley Road.
Defendant explained that he did not call 911 because the fire trucks were already at the apartment building by the time he escaped. Defendant denied starting the fire and testified that he could only guess at what caused it. He said he was not angry about receiving the three-day notice, was not angry at the people in the apartment complex, and liked living in that apartment. He testified he was depressed after the fire, having just lost everything he owned, and he told Wolkenhauer that he wished he would have died in the fire. He never returned to his apartment. Defendant said he did not speak with a police investigator who wanted to discuss the fire with him because someone from a legal help line told him not to speak to anyone without an attorney. Defendant said that he was “being flippant” when he told Wolkenhauer to “[j]ust tell [the investigator] I set the fire, get her off your back, whatever it takes.” Defendant admitted that he never went to the police and never spoke with authorities about the fire until he was arrested in November.
Defendant admitted having felony convictions for grand theft in 1989, for making a false statement on a loan application, and for burglary in 1995 and 1997.
DISCUSSION
1. Instruction with CALCRIM No. 361
Pursuant to the prosecutor’s request, but without any objection by defense counsel, the trial court instructed the jury with CALCRIM No. 361 as follows: “If the defendant failed in his testimony to explain or deny evidence against him and if he could reasonably be expected to have done so based on what he knew, you may consider his failure to explain or deny in evaluating that evidence. Any such failure is not enough by itself to prove guilt. The People must still prove each element of the crime beyond a reasonable doubt. If the defendant failed to explain or deny, it’s up to you to decide the meaning and importance of that failure.”
Defendant argues the trial court erred in giving CALCRIM No. 361 because defendant did not fail to deny or explain the evidence against him. (See People v. Kondor (1988) 200 Cal.App.3d 52, 57 [“CALJIC No. 2.62 is unwarranted when a defendant explains or denies matters within his or her knowledge, no matter how improbable that explanation may appear”]; cf. People v. Mask (1986) 188 Cal.App.3d 450, 455 [“[I]f the defendant tenders an explanation which, while superficially accounting for his activities, nevertheless seems bizarre or implausible, the inquiry whether he reasonably should have known about circumstances claimed to be outside his knowledge is a credibility question for resolution by the jury”].) He also argues it was error to instruct with CALCRIM No. 361 because, as written, it is flawed. We conclude that, even assuming it was error to instruct with CALCRIM No. 361, either because it was factually inapplicable or flawed, such error was harmless.
Defendant has arguably waived this claim by failing to object to the giving of CALCRIM No. 361 below. However, the Attorney General does not make this argument on appeal.
Error in giving CALCRIM No. 361, like its predecessor instruction CALJIC No. 2.62, is measured by the harmless error standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (Saddler, supra, 24 Cal.3d at p. 683.) Defendant argues that the standard set forth in Chapman v. California (1967) 386 U.S. 18, 24 should apply instead, because CALCRIM No. 361 impermissibly lowered the prosecution’s burden of proof in violation of his rights under the due process clause. Defendant contends the instruction lightens the burden of proof because, though it says that the failure to explain or deny “is not enough ‘by itself to prove guilt,’ ” it does not provide “further indication of what sort of evidence the failure to explain or deny need be coupled with in order to establish guilt.” Defendant cites no authority in support of his assertion. And it has no merit, as the very next sentence of CALCRIM No. 361 clarifies that the “People must still prove each element of the crime beyond a reasonable doubt.” As the Attorney General points out, “[t]he instruction cannot both restate the burden of proof beyond a reasonable doubt and lower the People’s burden.” Moreover, other instructions given at trial explained the People’s burden of proof to the jury. (See, e.g., CALCRIM Nos. 220 [reasonable doubt], 1502 [arson: inhabited structure].)
CALJIC No. 2.62 reads as follows: “If you find that . . . [the] defendant failed to explain or deny any evidence against [him] . . . introduced by the prosecution which [he] . . . can reasonably be expected to deny or explain because of facts within [his] . . . knowledge, you may take that failure into consideration as tending to indicate the truth of this evidence and as indicating that among the inferences that may reasonably be drawn therefrom those unfavorable to the defendant are the more probable. [¶] The failure of a defendant to deny or explain evidence against [him] . . . does not, by itself, warrant an inference of guilt, nor does it relieve the prosecution of its burden of proving every essential element of the crime and the guilt of the defendant beyond a reasonable doubt. [¶] If a defendant does not have the knowledge that [he] . . . would need to deny or to explain evidence against [him,] . . . it would be unreasonable to draw an inference unfavorable to [him] . . . because of [his] . . . failure to deny or explain this evidence.”
Defendant also argues that CALCRIM No. 361 lightens the prosecution’s burden of proof because it fails to include the following cautionary language from CALJIC No. 2.62: “The failure of a defendant to deny or explain evidence against him does not create a presumption of guilt or by itself warrant an inference of guilt, nor does it relieve the prosecution of its burden of proving every essential element of the crime and the guilt of defendant beyond a reasonable doubt.” However, CALCRIM No. 361 says largely the same things: (1) the defendant’s failure to explain or deny “is not enough by itself to prove guilt”; (2) while the jury may “consider” defendant’s failure to explain or deny, it is up to the jury to decide “the meaning and importance” of such a failure; and (3) the “People must still prove each element of the crime beyond a reasonable doubt.” Nothing in CALCRIM No. 361 “imposes ‘an inference of guilt,’ ” as defendant asserts.
The cases relied upon by defendant, Saddler, supra, 24 Cal.3d 671, and People v. Lamer (2003) 110 Cal.App.4th 1463 (Lamer), are not to the contrary. In those cases, the courts relied on CALJIC No. 2.62’s cautionary language to conclude there was no due process violation. The apparent basis to argue there was such a violation was the language in CALJIC No. 2.26 stating that the jury may take the defendant’s failure to deny or explain evidence “as tending to indicate the truth of this evidence and as indicating that among the inferences that may reasonably be drawn therefrom those unfavorable to the defendant are the more probable.” (CALJIC No. 2.62; Saddler, supra, 24 Cal.3d at pp. 678, 680; Lamer, supra, 110 Cal.App.4th at pp. 1468, 1471.) No such language appears in CALCRIM No. 361; that instruction does not specifically tell the jury that it may draw these particular inferences against the defendant and instead leaves it to the jury to decide “the meaning and importance” of a defendant’s failure to deny or explain.
Applying the Watson standard, no published opinion has ever concluded that giving CALJIC No. 2.62 was prejudicial error. (See Lamer, supra, 110 Cal.App.4th at p. 1472 [“[W]e have not found a single case in which an appellate court found the error to be reversible under the Watson standard”].) Nor have we found any opinions so holding in the context of CALCRIM No. 361. As the court in Lamer explained, “One reason courts have found the improper giving of CALJIC No. 2.62 to be harmless is that . . . ‘CALJIC No. 2.62 does not direct the jury to draw an adverse inference. It applies only if the jury finds that the defendant failed to explain or deny evidence.’ ” (Lamer, supra, 110 Cal.App.4th at p. 1472.) This reason applies equally well to CALCRIM No. 361. Similarly, as defendant acknowledges, courts have not found prejudice because juries are usually also instructed to ignore factually inapplicable instructions (Lamer, supra, 110 Cal.App.4th at p. 1472)—as was the case here. Consequently, if the jury here found that defendant did explain and deny the evidence against him, we can assume the jury disregarded this instruction and defendant cannot have suffered any prejudice. (Weeks v. Angelone (2000) 528 U.S. 225, 234 (Weeks) [“A jury is presumed to follow its instructions”]; see also People v. Haynes (1983) 148 Cal.App.3d 1117, 1120 [“if [this instruction’s] terms are adhered to, as presumably they will be, its message will be essentially irrelevant in the absence of some designated glaring hiatus in the defendant’s testimony”].)
Indeed, as defendant points out, “No cases have yet considered CALCRIM No. 361.”
The jury was instructed with CALCRIM No. 200 as follows: “Some of these instructions may not apply, depending on your findings about the facts of the case. Do not assume just because I give a particular instruction that I am suggesting anything about the facts. [¶] After you have decided what the facts are, follow the instructions that do apply to the facts as you find them.”
Defendant asserts that the record shows that the jury did in fact rely on CALCRIM No. 361. He points out that the prosecutor twice directed the jury to CALCRIM No. 361 while arguing that defendant had failed to explain or deny the evidence against him during closing arguments, and that the jury sent the court a note asking about the instruction. However, even assuming the jury relied on and applied this instruction, we still conclude that it is not “reasonably probable a more favorable result would have been reached had the instruction been omitted.” (Kondor, supra, 200 Cal.App.3d at p. 57.)
First, and most importantly, the evidence against defendant was overwhelming. Fire investigator Ryan testified in great detail regarding why he believed someone had deliberately set the fire. And Captain Peterson’s testimony regarding the suspicious obstacles and unusual challenges the firefighters encountered in fighting the fire supported Ryan’s conclusion. Defendant’s testimony did not contradict the relevant factual underpinnings of Ryan’s and Peterson’s testimony. Indeed, in the process of explaining his actions, defendant admitted many of the facts supporting Ryan’s and Peterson’s testimony. Defendant admitted there was a propane torch in the apartment; he admitted covering the windows and sliding glass door; he admitted setting the couch on its end in the hallway, hanging clothes from a rack there, and also placing a mirrored closet door there; he admitted removing the flex line from the furnace with pliers; he admitted that the furnace’s gas was on at the time of the explosion; he admitted fleeing the scene without calling 911; he admitted telling Wolkenhauer that he had set the fire; and he admitted refusing to speak with the police or with authorities about the fire until he was arrested. Also, defendant’s testimony indicated that he was the only person present in the apartment both during the hours before the fire and at the time it started. (See People v. Marsh (1985) 175 Cal.App.3d 987, 994 [holding it was harmless error to instruct with CALJIC No. 2.62 where there was expert testimony that the child victim died from blows to his head suffered during a deliberate battering and “the sole adult person present” at the time was the defendant].) Furthermore, defendant’s neighbors testified that they heard suspicious sounds coming from his apartment during the hours preceding the fire.
Second, if the jury did in fact use CALCRIM No. 361, this instruction “ ‘contains other portions favorable to the defense . . . cautioning that the failure to deny or explain evidence does not . . . by itself warrant an inference of guilt, nor relieve the prosecution of the burden of proving every essential element of the crime beyond a reasonable doubt . . . .’ ” (Lamer, supra, 110 Cal.App.4th at p. 1472.)
Finally, it was entirely proper for the prosecutor to emphasize the weaknesses in defendant’s testimony, and she likely would have done so even had CALCRIM No. 361 not been given. Defendant’s testimony was often improbable, such as his testimony regarding the acoustics created by the myriad objects he placed in the hallway and his pre-fire, “aromatherapy” bath. As the court in Haynes explained, if there is a “glaring hiatus in the defendant’s testimony,” then, “of course, this lacuna will presumably be the subject of debate and emphasis during the parties’ arguments to the jury, with or without the neutral guidelines contained in” CALCRIM No. 361. (Haynes, supra, 148 Cal.App.3d at p. 1120; see also People v. Redmond (1981) 29 Cal.3d 904, 911 [“It is entirely proper for [the] jury, during its deliberations, to consider logical gaps in the defense case”].)
2. Response to Jury Question About CALCRIM No. 361
a. Procedural Background
During its deliberations, the jury submitted the following question to the trial court: “Is his defendant’s [sic] failure to present evidence, the same as [No.] 361 ‘Failure to Explain or Deny Adverse Testimony’?” The court responded as follows: “You are correct that instruction 361 covers the topic of the failure to explain or deny adverse testimony.” Counsel did not object to the court’s response. There were no further questions or requests from the jury. Then, in response to an earlier jury request, the jury sat in the courtroom for read backs of the testimony of Wolkenhauer, defendant, and fire investigator Lisa Martinez. Before retiring for the evening, the jury resumed deliberations for about 40 more minutes. The next morning, after deliberating about 50 more minutes, the jury returned its verdict.
Martinez testified briefly regarding conversations she had with Wolkenhauer during which he told Martinez that defendant had said he started the fire in order to kill himself. During closing argument, the prosecutor encouraged the jury “to ask for as much readback as you need to help you.”
b. Analysis
Defendant argues the court erred in responding to the jury’s question in that its response (1) “failed to address the actual question asked by the jury” and (2) “incorrectly informed the jury that [defendant’s] failure to present evidence other than his own testimony was the same as a failure to deny or explain adverse testimony.” Defendant contends the court thereby lowered the burden of proof and violated his rights to due process and trial by jury. We conclude there was no error. The court’s response was legally correct, and there is no indication in the record that the jury was misled by the response.
Defendant acknowledges that the court’s response was “an accurate statement of the law—CALCRIM No. 361 does indeed cover the subject of [defendant’s] failure to explain or deny incriminating testimony.” However, defendant asserts the court should have provided the jury with more information: that defendant’s “failure to present evidence other than his own testimony was not equivalent to a failure to explain or deny adverse testimony.” The court had no obligation to do so here. “An appellate court applies the abuse of discretion standard of review to any decision by a trial court to instruct, or not to instruct, in its exercise of its supervision over a deliberating jury.” (People v. Waidla (2000) 22 Cal.4th 690, 745-746.) A trial court need not “always elaborate on the standard instructions” in response to a jury’s question. (People v. Beardslee (1991) 53 Cal.3d 68, 97.) “Where the original instructions are themselves full and complete, the court has discretion under [Penal Code] section 1138 to determine what additional explanations are sufficient to satisfy the jury’s request for information. [Citation.] Indeed, comments diverging from the standard are often risky.” (Ibid.)
The trial court did not abuse its discretion by taking a cautious approach and limiting its response as it did. The jury did not ask the court about the defendant’s failure to present evidence other than his testimony; it simply asked about defendant’s failure to present evidence. There was no issue during trial about defendant’s failure to present other evidence, nor does defendant assert there was such an issue. Although the prosecutor discussed weaknesses in the defendant’s testimony, she did not mention any failure by defendant to present other evidence during her closing argument. Consequently, it was reasonable for the court to remind the jury that CALCRIM No. 361 covered the topic of the failure to explain or deny adverse testimony, in effect referring the jury back to that instruction. The jury seemed satisfied with the court’s admittedly correct response. There is no indication in the record to the contrary. (Weeks, supra, 528 U.S. at p. 234 [“a jury is presumed to understand a judge’s answer to its question”].) Indeed, after receiving the court’s response, the jury did not ask any further questions or make any other requests. (Ibid. [a response to the jury’s question which was limited to directing the jury’s attention to a portion of an instruction already given was proper where the “jury did not inform the court that after reading the relevant paragraph of the instruction, it still did not understand its role”].) The jury instead continued with its deliberations that afternoon and into the following morning.
Defendant contends that his “failure to present any evidence besides his own testimony cannot be considered to his detriment, and the jury should not have been left with the impression that it could be so used.” Defendant cites no authority in support of this proposition. In fact, it is appropriate in a proper case for a jury to consider a defendant’s failure to present evidence besides his own testimony: “The failure of a defendant to call an available witness whom he could be expected to call if that witness testimony would be favorable is itself relevant evidence. The omission traditionally has been considered an admission by conduct—an admission that the witness’s testimony would not be favorable.” (People v. Ford (1988) 45 Cal.3d 431, 448.) Moreover, there is nothing in the record here to indicate that the jury was left with the impression that it could, or should, consider whether defendant had failed to present evidence besides his own testimony. Again, the prosecutor did not mention any such failure by defendant during her closing argument. Such a failure simply was not an issue during defendant’s trial.
Defendant concedes “that, as a general principle, the prosecutor may comment on a defendant’s failure to call a logical witness.” He also acknowledges that the prosecutor did not do so during defendant’s trial.
Finally, defendant argues that “the court’s response instructed the jury that it could consider—to [defendant’s] detriment—his failure to mount an affirmative defense case.” We disagree with this characterization of the court’s response. The court simply told the jury that CALCRIM No. 361 “covers the topic of the failure to explain or deny adverse testimony.” The response said nothing about affirmative defenses, the burden of proof, or the presumption of innocence. Other instructions given to the jury addressed these issues. (See, e.g., CALCRIM Nos. 220 [reasonable doubt], 1502 [arson: inhabited structure]; Weeks, supra, 528 U.S. at p. 234 [“A jury is presumed to follow its instructions”].) Defendant has not shown a reasonable likelihood that the jury understood the court’s response as indicating it could consider the defendant’s failure to mount an affirmative defense. (Weeks, supra, 528 U.S. at pp. 232, 236 [its is defendant’s burden to show a “reasonable likelihood” that the jury applied the court’s response to its question in an unconstitutional manner].)
3. Prosecutorial Misconduct and Related Ineffective Assistance of Counsel Claim
Defendant contends “the prosecutor committed several acts of misconduct during her closing argument, including mischaracterizing [defendant’s] testimony, referring to evidence outside the record, and asking the jury to consider the details of [defendant’s] prior conviction,” thereby violating defendant’s state and federal constitutional rights. He also makes a cursory ineffective assistance of counsel (IAC) claim based on defense counsel’s failure to object to the alleged misconduct. We conclude that the prosecutor did not commit misconduct in any of the instances cited by defendant.
“ ‘To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner.’ [Citation.] ‘Prosecutors have wide latitude to discuss and draw inferences from the evidence at trial. [Citation.] Whether the inferences the prosecutor draws are reasonable is for the jury to decide. [Citation.]’ [Citation.]” (People v. Wilson (2005) 36 Cal.4th 309, 337 (Wilson).) In each instance cited by defendant, the prosecutor made arguments based on reasonable inferences drawn from the evidence.
a. Mischaracterizing Evidence
First, defendant asserts the prosecutor mischaracterized defendant’s testimony by telling the jury that defendant “failed to explain or deny particular pieces of evidence when, in fact, he had fully explained or denied the evidence against him.” For example, the prosecutor argued that defendant “didn’t explain a lot of things, the TV, the scuttle door, where he sat, how the doors were all closed.” At another point, the prosecutor argued: “During this whole time he never explained why the TV was at the door. Why is the TV blocking the door? Why is the knife holder in the hallway? How could he have sat in the room in the hallway with all that other stuff there? Where was he sitting? There’s no room for him to sit there with all that stuff.”
For anyone who listened to defendant’s testimony, it was obvious that the defendant had come up with “explanations” for much of the evidence against him. The prosecutor’s argument simply highlighted how incomplete—not to mention implausible—those explanations were. For example, although defendant testified that he moved “big furniture” into the hallway to prepare to clean the carpets the next morning, he never specifically said that he moved the television set nor offered any explanation for why he had placed the television directly in front of the apartment’s front door. With her series of questions, the prosecutor in effect asked the jury to consider whether the defendant’s testimony had adequately answered the questions she posed, which were well within the scope of defendant’s direct examination. This constituted proper argument. (See People v. Bemore (2000) 22 Cal.4th 809, 847 (Bemore) [“the prosecutor simply employed a rhetorical device calculated to focus the jury’s attention on strong circumstantial evidence of guilt and on any corresponding weakness in the defense case”].)
Defendant also finds fault with the prosecutor’s argument regarding the candle defendant said he lit while taking his bath: “The candle’s in the bathroom, the gas is outside the bathroom behind a closed door that he says blew off. How does the candle light the gas?” Later, the prosecutor argued: “And if he’s saying there was a candle in the bathroom with him and the gas is in the living room, . . . what’s the torch—or what’s the ignition to make the explosion in the living room or the hallway? What did that?” Defendant points out that he “never said that the candle ignited the fire; he testified that he did not know how the fire started but thought that it originated from the furnace.” However, the prosecutor never asserted that defendant testified that the candle ignited the fire. Instead, she apparently was asking the jury to reconcile defendant’s testimony about the candle with Ryan’s testimony that an open flame ignited the gas coming from the furnace. Defendant’s testimony did not adequately address Ryan’s testimony: defendant did not explain how the only open flame he claimed was in the apartment at that time—the candle in the bathroom—ignited the gas. This was proper argument based on the evidence.
Finally, defendant asserts the prosecutor mischaracterized the evidence when she argued that “the defendant said he heard an explosion and he got out of the bathtub and he ran around the corner and he put his shorts on and he went out the back and he saw the firemen. There’s not enough time for him to have seen the firemen that short period of time. [¶] . . . [¶] But remember, Beatriz Carballo had made two phone calls, walked twice back and forth from her apartment, there had been a dispatch and 6 more minutes before the time that the firemen came up Second Street. And I submit to you that if he was in that apartment for that long, he wouldn’t be with us today. . . . [¶] You heard testimony from those firemen who said it was hot in there. . . . [¶] [Defendant’s] in a room very close to the beginning and the seat of this really hot fire. He would have significant burns, permanent burns.” Defendant points out that he testified that he “blacked out on his bed after the explosion but before he escaped and saw the firemen.” The fact that the prosecutor omitted defendant’s testimony that he blacked out did not constitute misconduct. The point of the prosecutor’s argument was that if the defendant had stayed in his apartment, for whatever reason, for as long as he said he did (until the firefighters came), then he either would have been killed or severely injured by the very hot fire there—which he was not.
b. References to Matters Outside the Record
Defendant contends that the “prosecutor held herself out as an expert in criminal trials and asked the jury to reject [defendant’s] defense based on her own trial experience and expertise” when she made the following argument in rebuttal: “There’s a thing that’s very common that happens in trials and they’re called hidden persuaders, and what happens with hidden persuaders is things like ice cream. When the person eats ice cream or when they cry on the stand or when they go and they buy different things and they bring them home, because it wouldn’t make them burn their house if they just bought stuff that they brought to it, or when they have something that they really like and they’re trying to—these facts are trying to reach out and burn on the sympathy of the jury and create a picture of a real person that’s a special person that you grow to like so that you don’t want to convict him.”
This argument was a proper response to defense counsel’s argument, during which she thrice referred to defendant’s testimony that, the night before the fire, he had purchased ice cream and other groceries and brought them to the apartment, ate the ice cream, and then enjoyed making music. Defense counsel argued that it would not make sense for defendant, after these activities, to proceed to burn down his own apartment. The only portion of the prosecutor’s response which could be construed as holding herself out as an expert is her short, introductory statement that hidden persuaders are a very common thing that happen in trials. (See People v. Hill (1998) 17 Cal.4th 800, 838 (Hill) [the prosecutor’s “brief and mild” statements that “the jury would hear defense arguments that prosecutors always hear . . . could not have been prejudicial standing alone”].) This statement was largely irrelevant to the heart of the prosecutor’s argument, which was in essence that defendant’s testimony about ice cream and music were calculated to gain the jury’s sympathy. This was a reasonable inference to draw from defendant’s testimony, and proper to call to the jury’s attention. (Bemore, supra, 22 Cal.4th at p. 846 [“the prosecutor has wide latitude in describing the deficiencies in opposing counsel’s tactics”].)
Defendant also contends the prosecutor improperly held herself out as an expert in criminal trials when she made the following argument: “Defense counsel spent a lot of time suggesting that no one can show that defendant started the fire and that the photos can’t show it because they happened 2 hours ago. But I submit to you that that happens in every homicide, every burglary. Every piece of evidence that’s collected in a jury trial—that’s shown to jurors in a jury trial is collected after the crime, and it’s collected by people that have experience collecting evidence to paint a picture and explain to the jury in a setting like we have here and show you what happened.” We disagree with defendant’s characterization of the prosecutor’s argument. She was not holding herself out as an expert, but merely emphasizing what is commonly known: that in most cases, evidence is collected after the crime is committed, not contemporaneously. (Hill, supra, 17 Cal.4th at p. 819 [“ ‘ “ ‘counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience’ ” ’ ”].)
c. Defendant’s Prior Conviction
Defendant’s final assertion of misconduct is that the prosecutor improperly “asked the jury to consider the details of [defendant’s] prior conviction for making a false financial statement to find [defendant] not credible.” Defendant admitted during cross examination that he had previously suffered felony convictions for grand theft, burglary, and making a false financial statement on a loan application. The jury was instructed with CALCRIM No. 316 that it could consider defendant’s conviction of a felony in evaluating his credibility. The prosecutor argued regarding defendant’s prior convictions as follows: “There’s things that you’re supposed to consider when you’re trying to decide whether someone’s lying or telling the truth, and there was a jury instruction about it, it’s credibility. The defendant has priors. You’re only allowed to use those to determine whether a person is telling the truth or telling a lie. [¶] One of those priors is a conviction for making a false statement on a loan application, for lying, admitting he’s a liar. So . . . that’s one of the factors that you need to take into consideration when you’re weighing his testimony.”
Contrary to what defendant asserts, the prosecutor did not dive “into the circumstances or details” of defendant’s conviction. Indeed, defendant did not testify regarding those details. Instead, the prosecutor was asserting that when, defendant admitted on cross examination that he had been convicted of this felony, he had admitted to lying. This was a proper inference from defendant’s testimony. Not surprisingly, one of the elements of the crime of making a false statement on a loan application is knowingly making a false statement in writing, or knowing that such a false statement has been made and using such a statement to procure a loan or the like. (Pen. Code, § 532a; CALCRIM Nos. 2020, 2021, 2022.)
In light of our conclusions, we also reject defendant’s IAC claim as defense counsel cannot be said to have provided ineffective assistance by failing to object to argument which did not constitute misconduct. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126 [to establish an IAC claim, a defendant must establish “that counsel’s representation fell below an objective standard of reasonableness”].) Finally, we note that defendant failed to object to the alleged misconduct, and has thus waived this issue on appeal. (Wilson, supra, 36 Cal.4th at p. 337 [“In order to preserve an appellate claim of prosecutorial misconduct, a defendant must make a timely objection at trial and request an admonition”].)
Defendant did object to some of the prosecutor’s argument regarding the missing scuttle hole cover, but defendant does not discuss this particular portion of the prosecutor’s argument in those sections of his appellate briefs arguing there was prosecutorial misconduct. Rejection by the trial court of this single objection did not excuse defendant from objecting to those portions of the prosecutor’s argument which he now asserts were improper. (Cf. Hill, supra, 17 Cal.4th at p. 820 [“a defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile”].)
4. Cumulative Error
Defendant argues that even assuming the errors he asserts “were harmless when considered individually, the cumulative effect of the trial court’s errors and the prosecutor’s actions prejudiced” defendant. There was no such cumulative effect in this case because we have not found “a series of trial errors,” nor any prosecutorial misconduct. (Hill, supra, 17 Cal.4th at p. 844.)
DISPOSITION
The judgment is affirmed.
We concur: Haerle, Acting P.J., Lambden, J.
Both CALCRIM No. 361 and CALJIC No. 2.62 are based on Evidence Code section 413, “which permits the drawing of inferences against a party from the party’s failure to explain or deny evidence.” (People v. Saddler (1979) 24 Cal.3d 671, 678, 685, fn. 2 (Saddler); see also CALCRIM No. 361 (Fall 2006 ed.), Authority.)