Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Riverside County, Super. Ct. No. BAF005989, Elisabeth Sichel, Judge.
McDONALD, J.
Steven Ray Strebe appeals a judgment following his jury conviction of involuntary manslaughter. On appeal, he contends his conviction must be reversed because the prosecutor committed prejudicial misconduct while cross-examining him during trial.
FACTUAL AND PROCEDURAL BACKGROUND
On the evening of December 31, 2007, Strebe arrived at a bar in Banning to celebrate New Year's Eve. He drank beer and bought drinks for other people. Melissa Florez and her friend, Mark Owsley, were also at the bar that evening. Strebe began talking to Florez, whom he knew from prior visits to the bar, and Owsley. He invited Florez, who had been flirting with him, to his house and to use his Jacuzzi. When she replied she would go only if Owsley could join them, Strebe agreed. At about 9:00 p.m., Strebe paid his bar tab and drove Florez and Owsley to his house.
On arrival at Strebe's house, they each drank a shot of tequila and then got in the Jacuzzi. Strebe and Florez flirted with each other. Florez asked Owsley to leave so she could be alone with Strebe and suggested that Owsley call a cab or his mother to take him home. Owsley ultimately relented and got out of the Jacuzzi. Strebe followed Owsley into the house and told him, "You gotta go."
At some point thereafter, Owsley knocked on a neighbor's door. The neighbor's brother opened the door and saw Owsley, wearing jeans but no shirt or shoes, sitting against a wall. When asked what happened, Owsley stated: "I have been shot. Call [911]." He elaborated: "I was using the restroom at the guy's house.... [¶]... I was accused of stealing, and I stabbed, and I have been shot." The neighbor called 911 and handed the telephone to Owsley to speak with the dispatcher.
After 10 minutes of sitting alone in the Jacuzzi, Florez got out of the Jacuzzi and went inside the house. She opened the front door and saw Strebe sitting on the curb in front of the house.
At 10:23 p.m., Banning Police Officer Nissa Tammany responded to the 911 call and was flagged down by Florez and Strebe in front of Strebe's house. Strebe was bleeding from his abdomen and neck. He stated he was stabbed by an unknown man and had shot him. He stated his gun was in the living room. He told the paramedic treating him that he was stabbed by an unknown man, they wrestled, and then he shot the man. The paramedic believed Strebe was intoxicated.
Officer Erich Oertel and another officer arrived and questioned Owsley. He responded to their questions by stating he was dying and asking for help. He appeared pale and was going in and out of consciousness. Owsley was taken to a hospital where he died from wounds caused by a bullet that entered the right side of his back, travelled through his liver and upward to the left, and lodged in his sternum. There were wood splinters on the bullet, in the entrance wound on Owsley's back, and on his buttocks. He also had an abrasion on his back.
Strebe was treated at a hospital for two superficial lacerations on the right side of his abdomen and a superficial laceration on his neck. The lacerations could have been caused by self-inflicted stabbings. He did not have any defensive-type wounds. His treating physician believed Strebe was intoxicated, and at about 3:00 a.m., his blood was drawn.
At the hospital, Strebe told Detective Vincent Avila he was lying in bed trying to sleep when a man entered his bedroom and started stabbing him. Strebe grabbed his gun and shot the man. Later while still at the hospital, Strebe told Detective Robert Fisher he had an argument and was trying to sleep in bed when a man got on top of him and started stabbing him. Strebe got his gun and fired from his bedroom doorway.
Police found Strebe's.45-caliber semiautomatic firearm on his kitchen counter. There was blood on its barrel, but not on its handle. The gun was fired from inside the house and a spent casing was found near the west wall of the foyer inside the front door. There was a bullet hole through the wood front door. Police did not find any blood in Strebe's bedroom. The bed was made and it was not wet. On his front lawn, police found Strebe's Spyderco folding knife that he normally kept on his bedroom dresser. Strebe's blood was found on its blade. No DNA or usable prints were found on the knife. Police found Owsley's blood on the grass of Strebe's front yard.
Detective Fisher had Florez make four pretext calls to Strebe. During the first two calls on January 1, 2008, while Strebe was in the hospital, he told Florez that Owsley stabbed him several times, but he did not remember what happened or shooting Owsley through the front door. Strebe said he thought he was in the hallway when the incident happened, but could not remember. He stated: "You know I wasn't trying to shoot anybody[;] I was just trying... to get him [Owsley] out of there." He said he told police what happened and they did not take him into custody. He then told her: "Self-defense, " apparently indicating his understanding of why police did not take him into custody. During the third call on January 4 and the fourth call on January 7, Strebe told Florez to just tell police she was in the Jacuzzi. He also told her "you know self[-]defense is what it was."
On February 1, Strebe told Fisher he could not remember anything, but thought he was sitting on the edge of the bed when a man came up from behind him. Strebe told his roommate, Matthew Dalton, he did not remember too much, but stated he was stabbed by a man, got his gun, and chased the man to the front door. Strebe stated he was by the front door when he fired his gun. Dalton testified that their house had been burglarized a couple of months before the instant incident. He awoke when he heard Strebe calling his name and stating they were being robbed. Dalton saw one of the two burglars standing in the hall and apprehended and threw him to the ground. Strebe recovered his stolen rifle from the man.
An information charged Strebe with first degree murder (Pen. Code, § 187, subd. (a)). It further alleged that, in committing that offense, Strebe personally and intentionally discharged a firearm and proximately caused great bodily injury or death to another person. (§§ 12022.53, subd. (d), 1192.7, subd. (c)(8).)
All statutory references are to the Penal Code.
At trial, the prosecution presented witness testimony and other evidence substantially as described above. In Strebe's defense, James Miranda testified he drank beer and tequila with Strebe and another friend at Strebe's house from 9:00 a.m. until 5:00 p.m. on December 31, 2007. When Miranda left, Strebe was intoxicated, but he was not a violent drunk. Dustin Campbell testified that Strebe arrived at his (Campbell's) house at about 1:00 p.m. that day and drank beer there for about an hour before they went to Strebe's house, where they continued drinking beer; Strebe was also drinking Tequila. Strebe was intoxicated and wobbly. At about 7:00 p.m., Campbell and Strebe went to a bar and saw Florez and Owsley there. Owsley was slurring his words. At about 8:30 p.m., Campbell left the bar when his girlfriend picked him up.
Various coworkers testified that Strebe was not a violent person. Strebe's brother testified he is not a violent person and is happy when he drinks. In January 2008, Strebe told his brother he blacked out and could not remember what happened during the incident.
Mickey Lewis testified Florez moved in with him in January 2000, they dated for about two years, and they continued living together for another five years after their dating relationship ended. During that period, Owsley visited Florez at their house almost every day. It was obvious to Lewis that Owsley had a crush on Florez. Florez agreed with him that Owsley had a crush on her. Lewis believed Florez took advantage of Owsley by letting him take her out to eat and give her rides. Owsley could use his left arm and hand and right hand, but not his right arm. Owsley was a good, nonviolent person. Strebe also was a good, nonviolent person.
Deputy Coroner Aimee Roberts testified that cash and a red metal key chain with a single key were taken from Owsley at the hospital. On January 2, 2008, Owsley's wife picked up those items.
A lab test of Strebe's blood drawn at about 3:00 a.m. on January 1, 2008, showed he had a blood alcohol content (BAC) of.19. Darrell Clardy, a forensic toxicologist, testified that a 195-pound man with a BAC of.19 at 3:00 a.m. could have had a BAC of between.27 and.40 at 10:00 p.m. (i.e., five hours earlier). With a BAC of.27, 95 percent of the population would be intoxicated and the remainder would be significantly impaired. Clardy expected a person with that BAC would be confused, disoriented, and unable to store and recall information. That person also would have slurred speech and impaired fine and gross motor coordination. Alcohol affects the registration and recall of information, although intoxicated persons may later recall information.
Strebe testified in his defense. When not working as a seasonal firefighter, he kept his "state key" and knife on his bedroom dresser. He had not seen his state key since December 31, 2007. At about 9:00 a.m. that day, Strebe began drinking beer and tequila with friends. At about 4:00 p.m., he and Campbell went to his (Strebe's) mother's house. At about 7:30 p.m., he and Campbell arrived at the bar. He ordered drinks for himself and his friends. Florez approached him and flirted with him. She was there with some friends, but he did not recall talking to Owsley at the bar. Florez agreed to go to his house. At about 9:00 p.m. or a little while later, he left the bar and drove Florez and Owsley to his house.
Cal Fire Captain Charles Bryant had earlier testified that he believed Strebe had been issued a "state key, " which is a common key that unlocks padlocks and doorknobs to Cal Fire facilities throughout the state.
At Strebe's house, they each had at least one shot of tequila. Strebe kissed Florez in the hallway and gave her a t-shirt to wear in the Jacuzzi. While all three were in the Jacuzzi, Florez told Strebe that if he wanted things to go further, he needed to ask Owsley to leave. Strebe asked Owsley if he wanted to leave his house or at least go inside. Owsley was uncooperative and became agitated and angry. Strebe walked in the house with Owsley, who became hostile and cussed at him. When Owsley raised the tequila bottle over his head, Strebe took it away. Strebe handed Owsley his clothes, escorted him outside, and told him to leave. Owsley yelled and cussed and stated he did not want to leave. With Owsley in the front yard, Strebe went to his bedroom to get a towel and slippers. While standing at his bed, Owsley came up from behind him and attacked him. Strebe struggled to get away and then grabbed his gun. When Strebe pointed the gun at Owsley, he ran out of the bedroom. Strebe left the bedroom to look for his telephone. The house was dark, except for the kitchen. Strebe heard a noise, which he described as a "commotion or a rustle, " and fired the gun toward the entryway. He walked to the front door, which was already open about six inches, opened the door further, and looked outside. He did not see Owsley and, thinking he did not hit anyone, put his gun on the kitchen counter. He applied pressure to his wounds and walked outside toward his car to get his first aid kit. When he saw a police car, he flagged it down. He vaguely remembered being interviewed by police at the hospital because he was still drunk. He explained he told police he was attacked while sleeping because at that time he could only remember being attacked while on his bed.
Sergeant Michael Loader testified that he spoke with Owsley at the scene of the incident. When Loader asked Owsley if he stabbed "this guy across the street, " he replied: "I think so. I don't know." Loader asked him, "You think so?" Owsley replied, "Yeah." At the time, Owsley appeared pale and disoriented and was going in and out of consciousness.
The jury acquitted Strebe of first and second degree murder and voluntary manslaughter and found him guilty of involuntary manslaughter (§ 192, subd. (b)). The jury also found a firearm allegation (§ 12022.5, subd. (a)) true. The trial court imposed the middle term of three years for the involuntary manslaughter conviction and a consecutive, three-year term for the firearm enhancement, for a total term of six years in prison. Strebe timely filed a notice of appeal.
DISCUSSION
I
Prosecutorial Misconduct Generally
A prosecutor in a criminal case can commit misconduct under either federal or state law. "A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to persuade either the trial court or the jury." (People v. Morales (2001) 25 Cal.4th 34, 44 (Morales).)
To preserve a claim of prosecutorial misconduct, a defendant must timely object and request a curative admonition unless an admonition would not have cured the harm caused by the misconduct. (People v. Hinton (2006) 37 Cal.4th 839, 863 (Hinton); People v. Earp (1999) 20 Cal.4th 826, 858 (Earp).) Therefore, to avoid forfeiture or waiver of prosecutorial misconduct, a defendant generally "must make a timely objection, make known the basis of his objection, and ask the trial court to admonish the jury." (People v. Brown (2003) 31 Cal.4th 518, 553 (Brown).) Alternatively stated, "[a]s 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 (Samayoa).) However, "[a] defendant will be excused from the requirement of making a timely objection and/or a request for an admonition if either would have been futile. [Citation.] In addition, the failure to request that the jury be admonished does not forfeit the issue for appeal if an admonition would not have cured the harm caused by the misconduct or the trial court immediately overrules an objection to alleged misconduct such that the defendant has no opportunity to make such a request." (People v. Cole (2004) 33 Cal.4th 1158, 1201 (Cole).)
Absent a fundamentally unfair trial under the federal Constitution, prosecutorial misconduct does not require reversal of the judgment unless it was prejudicial under state law, i.e., it is reasonably probable the defendant would have obtained a more favorable verdict absent the misconduct. (People v. Bell (1989) 49 Cal.3d 502, 534, 542 (Bell); People v. Castillo (2008) 168 Cal.App.4th 364, 386 (Castillo); People v. Crew (2003) 31 Cal.4th 822, 839 (Crew).) If the prosecutorial misconduct renders the defendant's trial fundamentally unfair under the federal Constitution, reversal of the judgment is required unless the misconduct is harmless beyond a reasonable doubt. (Castillo, at pp. 386-387, fn. 9; People v. Bordelon (2008) 162 Cal.App.4th 1311, 1323-1324.)
II
Asserted Prosecutorial Misconduct
Strebe contends the prosecutor committed about 40 instances of misconduct during trial. He asserts the prosecutor repeatedly asked argumentative or other improper questions while cross-examining him.
A
We conclude Strebe forfeited or waived this contention on appeal by not timely objecting to the purported improper questions on the ground of prosecutorial misconduct and requesting an admonition that the jury disregard the impropriety. (Hinton, supra, 37 Cal.4th at p. 863; Earp, supra, 20 Cal.4th at p. 858; Brown, supra, 31 Cal.4th at p. 553; Samayoa, supra, 15 Cal.4th at p. 841.) We have reviewed each of the prosecutor's questions purported by Strebe to constitute misconduct. Although Strebe objected in each instance, he did not object on the ground of misconduct or otherwise make an assignment of misconduct relating to each challenged question. Rather, he objected to the prosecutor's questions on ordinary evidentiary grounds (e.g., argumentative question). Accordingly, Strebe did not make a sufficient objection to preserve for appeal any claim of prosecutorial misconduct. Furthermore, when Strebe objected to the prosecutor's questions, he did not request an admonition that the jury disregard the impropriety. Therefore, lacking both a timely objection on the specific ground of prosecutorial misconduct and a timely request for a curative admonition, Strebe has forfeited or waived any contention on appeal that the prosecutor committed misconduct while cross-examining him. (Hinton, at p. 863; Earp, at p. 858; Brown, at p. 553; Samayoa, at p. 841.)
As we discuss below, the trial court sustained each evidentiary objection made by Strebe to the prosecutor's questions, thereby presumably precluding or curing any harm that may have been caused by the purported improper question.
To the extent Strebe cites two instances in which he complained to the trial court regarding the prosecutor's conduct during cross-examination, we conclude neither instance shows he satisfied the requirements that he make a timely objection and request for admonition, or that the requirements were futile and/or an admonition could not have cured any harm caused by the purported misconduct. Strebe first cites a discussion that occurred outside the jury's presence during an afternoon recess on the first day of his testimony. During that recess, the follow colloquy occurred:
"[Strebe's counsel]: Your Honor, just briefly. I'd like the Court to admonish counsel [i.e., the prosecutor]—I've noticed numerous occasions where [the prosecutor] is looking at the jury with expressions on her face as in disbelieving the witness's testimony, giving them sarcastic glances. Communicating with the jury in that way is improper, and I'd ask that she be admonished not to do so.
"THE COURT: I think we're close to the line, but we're not over it. [¶]... [¶]
"THE COURT [addressing the prosecutor]:... But I admire the vigor of your cross-examination, but your tone sometimes does get very close to being
"[Prosecutor]: I have really mellowed it out.
"THE COURT: There you go.
"[Prosecutor]: You have no idea.
"THE COURT: Well, then, you've still got some work to do. Thank you. All right. We're in recess."
Strebe does not argue that the foregoing complaint by his counsel constituted either a timely objection to a prosecutor's question on the ground of misconduct or a timely request for an admonition that the jury disregard the impropriety. Rather, he argues the colloquy shows the trial court admonished the prosecutor for her improper conduct (i.e., tone) in cross-examining him and that any future objections and requests for admonition would have been futile. Based on our review of the record, we do not interpret the trial court's comments as an admonition of the prosecutor for misconduct. Rather, the court implicitly rejected the request by Strebe's counsel to admonish the prosecutor, concluding she had not yet "crossed the line" (i.e., had not committed misconduct). Rather than admonishing the prosecutor, the court merely expressed its observation that she still had some work to do toward "mellowing out" the vigor of her cross-examination. Because there is nothing in the court's response to Strebe's request that it would reject any objections to and requests for admonitions regarding future instances of purported prosecutorial misconduct, we do not conclude any such future objections and requests for admonitions would have been futile. (Cole, supra, 33 Cal.4th at p. 1201.)
Because Strebe does not argue that an admonition could not cure the harm caused by any future prosecutorial misconduct, we need not address the question whether future objections and admonitions would be futile based on that ground. (See, e.g., Cole, supra, 33 Cal.4th at p. 1201.)
The second instance Strebe cites is the trial court's response to his counsel's objection to an inappropriate question asked by the prosecutor. During his cross-examination, Strebe denied he was trying to explain what another witness had meant, stating: "I'm just trying to tell the truth." The prosecutor then asked him: "Since when?" Strebe's counsel objected to the question as "[a]rgumentative." The court sustained that objection and stated: "Counsel, that's not an appropriate question." Strebe's counsel interjected: "And again for the record, I'd like to object to [the prosecutor's]... [¶]... [¶]... tone." The court did not rule on that objection. Thereafter, the prosecutor rephrased her question: "[H]ave you told us the truth while you've been here?" Strebe answered: "Yes, ma'am, I have." Contrary to Strebe's assertion on appeal, the trial court did not admonish the prosecutor regarding the tone of her questioning. Rather, the court merely sustained his objection to the prosecutor's question on the ground it was argumentative and then commented that the question was inappropriate. Based on our review of the record, we do not interpret the court's ruling and comment to be an admonition to the prosecutor (much less an admonition to the jury that it should disregard the purported prosecutorial misconduct).
Contrary to Strebe's assertion in his reply brief, his counsel did not object to the prosecutor's question on the alternative ground of "improper facial gestures."
Because there is nothing in the court's response to Strebe's objection that it would reject any objections to and requests for admonitions regarding future instances of purported prosecutorial misconduct, we do not conclude any future objections and requests for admonitions would have been futile. (Cole, supra, 33 Cal.4th at p. 1201.) Because Strebe does not show any exception applied to the requirement that he make a timely objection to and request for admonition regarding his cited instances of purported prosecutorial misconduct, his failure to so timely object and request an admonition forfeited or waived that claim on appeal. (Ibid.; Hinton, supra, 37 Cal.4th at p. 863; Earp, supra, 20 Cal.4th at p. 858; Brown, supra, 31 Cal.4th at p. 553; Samayoa, supra, 15 Cal.4th at p. 841.)
Because Strebe does not argue that an admonition could not cure the harm caused by any future prosecutorial misconduct, we need not address the question whether future objections and admonitions would be futile based on that ground. (See, e.g., Cole, supra, 33 Cal.4th at p. 1201.)
B
Assuming arguendo Strebe did not forfeit or waive his claim of prosecutorial misconduct, we briefly address the merits of that claim. Strebe primarily complains that the prosecutor repeatedly asked argumentative questions while cross-examining him.
Because we conclude below any prosecutorial misconduct was not prejudicial, we only briefly discuss the merits of certain claims by Strebe of prosecutorial misconduct.
"Once a defendant takes the stand and testifies to the circumstances of the charged offenses, the prosecutor on cross-examination is permitted 'to explore the identical subject matter in much greater detail.' " (People v. Mayfield (1997) 14 Cal.4th 668, 754.) "[T]he permissible scope of cross-examination [of a testifying defendant] is 'very wide.' " (People v. Cooper (1991) 53 Cal.3d 771, 822.) "[B]y choosing to testify, defendant put his own veracity in issue." (People v. Tafoya (2007) 42 Cal.4th 147, 179.) "The prosecutor is entitled to attempt to impeach the credibility of a defendant's testimony [citation] and... [w]hen a defendant chooses to testify concerning the charged crimes, the prosecutor can probe the testimony in detail and the scope of cross-examination is very broad." (People v. Dykes (2009) 46 Cal.4th 731, 764.)
However, in cross-examining a defendant, the prosecutor may not ask argumentative questions. (People v. Mayfield, supra, 14 Cal.4th at p. 755.) "An argumentative question is designed to engage a witness in argument rather than elicit facts within the witness's knowledge." (People v. Guerra (2006) 37 Cal.4th 1067, 1125.) "An argumentative question that essentially talks past the witness, and makes an argument to the jury, is improper because it does not seek to elicit relevant, competent testimony, or often any testimony at all." (People v. Chatman (2006) 38 Cal.4th 344, 384.) Nevertheless, questions "designed to elicit facts within defendant's knowledge that relate[] to the assessment of his credibility" are appropriate and not argumentative. (Guerra, at p. 1125.)
Strebe argues the prosecutor committed misconduct by asking him the argumentative question: "Do you remember anything about that evening that might be detrimental to your case?" The trial court sustained his counsel's objection to the question as argumentative. We conclude that question did not constitute prosecutorial misconduct. Immediately prior to that question, Strebe testified he remembered turning around and shooting the gun, but did not remember where he was located when he shot it. In asking the question, the prosecutor apparently was attempting to attack Strebe's veracity, albeit by using sarcasm. Because sarcasm and other rhetorical devices may highlight for the jury the improbability of a defendant's explanation or testimony, their use in cross-examining a defendant is not necessarily improper. (People v. Guerra, supra, 37 Cal.4th at p. 1127; People v. Bemore (2000) 22 Cal.4th 809, 847.) Here, the prosecutor presumably wanted to show the improbability of Strebe's testimony that he was unable to recall where he was when he shot the gun. Employing sarcasm, the prosecutor asked him whether he could remember anything about that evening "that might be detrimental to [his] case." However, in so doing, she in effect argued he was "selectively" remembering only those matters not detrimental to his case. Accordingly, the trial court reasonably exercised its discretion in sustaining Strebe's objection to the question as argumentative. However, that question was not so egregious that it infected the trial with such unfairness as to deny Strebe due process, and did not constitute a deceptive or reprehensible method to attempt to persuade the jury. (Morales, supra, 25 Cal.4th at p. 44.) Not every objectionable question constitutes misconduct. Although the challenged question was improper, we conclude it did not constitute prosecutorial misconduct.
Strebe also argues the prosecutor committed misconduct by asking him the argumentative question: "How come when [defense counsel] asked you the question[, ] you know, and I asked you the question, you don't know[?]" The trial court sustained his counsel's objection to the question as argumentative. The prosecutor then rephrased her question: "Is there a difference between the way [defense counsel] asks the question and I ask the question that affects your memory?" The trial court overruled his counsel's objection to that question as argumentative. On appeal, Strebe asserts the first question constituted prosecutorial misconduct, but not the second question. Again, the prosecutor used sarcasm to attack Strebe's veracity by showing the apparent inconsistency between the answers he gave to her questions and to the same questions asked by his counsel. Although the trial court reasonably exercised its discretion in sustaining Strebe's objection to the first question as argumentative, that question was not so egregious that it infected the trial with such unfairness as to deny Strebe due process, and also did not constitute a deceptive or reprehensible method to attempt to persuade the jury. (Morales, supra, 25 Cal.4th at p. 44.) Not every objectionable question constitutes misconduct. Although the challenged question was improper, we conclude it did not constitute prosecutorial misconduct.
Strebe also argues the prosecutor committed misconduct by asking him the argumentative question: "Why is it that you don't remember any details that would hurt you?" When his counsel objected, the trial court instructed Strebe not to answer the question. The prosecutor's question was in response to Strebe's testimony that he remembered "some details" of the incident, but "[n]ot a lot, " because he was very drunk. As with the first question discussed above, the prosecutor's question employed sarcasm to in effect argue Strebe was "selectively" remembering only those matters not detrimental to his case. Although the prosecutor was entitled to attack Strebe's veracity, the trial court reasonably exercised its discretion in instructing him not to answer the question. However, that question was not so egregious that it infected the trial with such unfairness as to deny Strebe due process, and also did not constitute a deceptive or reprehensible method to attempt to persuade the jury. (Morales, supra, 25 Cal.4th at p. 44.) Not every objectionable question constitutes misconduct. Although the challenged question was improper, we conclude it did not constitute prosecutorial misconduct.
Without addressing the specifics of all the other instances of purported prosecutorial misconduct, we have reviewed each instance and likewise conclude that they, whether considered individually or collectively, did not constitute prosecutorial misconduct. (Cf. Earp, supra, 20 Cal.4th at p. 865 ["when considered together, the instances of alleged prosecutorial misconduct discussed above, which constituted only a fraction of the questions and comments during the lengthy trial on the issue of defendant's guilt, did not adversely affect the fundamental fairness of the trial"].) Whether the prosecutor's questions were improper as argumentative, speculative, insulting, or misstating Strebe's testimony, they did not show so pervasive a pattern of improper questioning during the prosecutor's two-day cross-examination of Strebe that the questions constituted prosecutorial misconduct. (Cf. People v. Teixeira (1955) 136 Cal.App.2d 136, 146-147.) Considered individually and collectively, the challenged questions were not so egregious that they infected the trial with such unfairness as to deny Strebe due process, and did not constitute a deceptive or reprehensible method to attempt to persuade the jury. (Morales, supra, 25 Cal.4th at p. 44.)
Those instances include the following challenged questions by the prosecutor: 1. "Every time you're asked a question that could be detrimental, why do you reply with, 'I don't know. I can't explain it. I was drunk?' "; 2. "Can you explain why you have no blood of your own inside the house?"; 3. "[W]hy were you lying to Melissa Florez about stab marks in the bed?... [¶]... [¶] You know you were lying; right?"; 4. "Since when?" (asked in response to Strebe's testimony, "I'm just trying to tell the truth"); and 5. "Do you only remember the parts that are good for you?"
C
Assuming arguendo the challenged questions constituted prosecutorial misconduct, we nevertheless conclude Strebe has not carried his burden on appeal to show the purported misconduct was prejudicial and requires reversal of his conviction for involuntary manslaughter. Because the purported misconduct could have constituted, at most, deceptive or reprehensible conduct under state law, Strebe must show prejudice by persuading us it is reasonably probable he would have obtained a more favorable verdict had the purported misconduct not occurred. (Bell, supra, 49 Cal.3d at pp. 534, 542; Castillo, supra, 168 Cal.App.4th at p. 386; Crew, supra, 31 Cal.4th at p. 839.) Strebe has not met that burden.
Based on our review of the entire record, we cannot conclude the challenged questions were so egregious that they infected the trial with such unfairness as to deny Strebe due process under the federal Constitution. (Morales, supra, 25 Cal.4th at p. 44.) Therefore, the "harmless beyond a reasonable doubt" standard of prejudice for federal constitutional error does not apply. (Castillo, supra, 168 Cal.App.4th at pp. 386-387, fn. 9; People v. Bordelon, supra, 162 Cal.App.4th at pp. 1323-1324.)
First, as noted above, the trial court sustained Strebe's objections to each of the challenged questions by the prosecutor. "A party generally is not prejudiced by a question to which an objection has been sustained." (People v. Johnson (2003) 109 Cal.App.4th 1230, 1236; see also People v. Dykes, supra, 46 Cal.4th at p. 764 ["because the trial court sustained objections to the argumentative element of the prosecutor's questioning, we assume any prejudice was abated"]; People v. Riggs (2008) 44 Cal.4th 248, 299-300 ["the trial court sustained defendant's objection to the question..., thereby eliminating any possible prejudice from that alleged instance of misconduct on the part of the prosecutor"]; People v. Roldan (2005) 35 Cal.4th 646, 742 [prosecutor's comments were "met with a quick objection, sustained by the trial court, thereby ameliorating any potential harm"], disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421 & fn. 22; People v. Pinholster (1992) 1 Cal.4th 865, 943, disapproved on another ground in People v. Williams (2010) 49 Cal.4th 405, 459.)
Second, the trial court instructed the jury both before and after testimony was presented that attorneys' questions and remarks are not evidence. More importantly, the court further instructed with CALCRIM No. 222 in part: "During the trial, the attorneys objected to certain questions or moved to strike answers given by the witnesses. I ruled on the objections according to the law. If I sustained an objection, you must ignore the question. If the witness was not permitted to answer, do not guess what the answer might have been or why I ruled as I did." (Italics added.) We presume the jury followed the court's instructions. (People v. Smithey (1999) 20 Cal.4th 936, 961.) Because there is nothing in the record showing otherwise, we conclude the jury in this case followed the court's instructions and did, in fact, ignore all of the prosecutor's questions (including all of the questions challenged in this appeal) to which the court sustained Strebe's objections. Therefore, because the jury ignored and did not consider any of the prosecutor's questions that Strebe now asserts constituted misconduct, those questions could have caused little, if any, harm to him. Strebe does not show otherwise. It is not reasonably probable Strebe would have obtained a more favorable verdict had the prosecutor not committed the purported misconduct. (Bell, supra, 49 Cal.3d at pp. 534, 542; Castillo, supra, 168 Cal.App.4th at p. 386; Crew, supra, 31 Cal.4th at p. 839.)
In any event, even had the jury disregarded the court's instructions to ignore the prosecutor's questions to which Strebe's objections were sustained, we nevertheless conclude, based on our review of the entire record, it is not reasonably probable Strebe would have obtained a more favorable verdict than an involuntary manslaughter guilty verdict had the purported misconduct not occurred. Strebe argues that had the prosecutor not asked him the challenged questions, it is reasonably probable the jury would have found he acted in self-defense and therefore found him not guilty of murder and its lesser included offenses, including involuntary manslaughter. He argues that because the jury found him not guilty of voluntary manslaughter, the jury must have found he actually believed he was imminent danger of being killed or suffering great bodily injury and believed immediate use of deadly force was necessary to defend against that danger, but found one of those beliefs unreasonable. (See CALCRIM No. 571.) He argues the jury probably would have found both of those beliefs reasonable had the prosecutor not committed the purported misconduct by asking him the challenged questions and therefore found he justifiably killed Owsley in reasonable, or "perfect, " self-defense. (See CALCRIM No. 505 ["[t]he defendant is not guilty of murder or manslaughter if he was justified in killing someone in self-defense"].)
Although Strebe's legal theory is correct, the evidence in this case does not support his conclusion. Strebe basically testified he heard a noise, was afraid, and fired the gun in the direction of the front door. In finding Strebe did not act in "perfect" self-defense, but committed involuntary manslaughter, in killing Owsley, the jury necessarily believed Strebe's basic testimony regarding the circumstances as they were known and appeared to him at the time he fired the gun. The jury found he actually believed he needed to act in self-defense, but that his belief was unreasonable. Contrary to Strebe's assertion, it is not reasonably probable the jury would have found his belief reasonable had the prosecutor not asked the challenged questions. The prosecutor's questions generally attacked Strebe's veracity and his purported lack of recall regarding the incident. However, in finding Strebe actually believed he needed to act in self-defense, the jury clearly found Strebe credible and adopted, at least for the most part, his description of the incident. Although it generally accepted Strebe's testimony, the jury nevertheless found that a reasonable person in his position would not have believed there was a need to immediately use deadly force to defend him- or herself. Accepting Strebe's description of the circumstances, the jury nevertheless decided that objective element without considering Strebe's testimony regarding his actual belief in the need to act in self-defense.
Based on the circumstances as shown by Strebe's testimony and the other evidence admitted at trial, the jury found Strebe did not act reasonably in shooting his gun toward the front door in response to the noise. Most importantly, the evidence supported an inference that Strebe shot his gun through the mostly closed, wood front door and into Owsley's back. Furthermore, to Strebe's knowledge, Owsley had only a knife. Based on those circumstances, there is overwhelming evidence to support the jury's finding that Strebe did not act reasonably in firing his gun in self-defense. It is not reasonably probable the jury would have found otherwise had the prosecutor not asked the challenged questions while cross-examining him. Strebe has not carried his burden to show the purported prosecutorial misconduct was prejudicial. (Bell, supra, 49 Cal.3d at pp. 534, 542; Castillo, supra, 168 Cal.App.4th at p. 386; Crew, supra, 31 Cal.4th at p. 839.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J.McINTYRE, J.