Opinion
G054514
08-15-2018
THE PEOPLE, Plaintiff and Respondent, v. MANUEL PEREZ TORRES, Defendant and Appellant.
Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15NF3168) OPINION Appeal from a judgment of the Superior Court of Orange County, James Edward Rogan, Judge. Affirmed. Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Manuel Perez Torres was convicted of attempted voluntary manslaughter for stabbing a man during a confrontation in La Habra. On appeal, he contends: 1) The trial court erred in instructing the jury on mutual combat; 2) the prosecutor violated his due process rights by refusing to grant immunity to a potential defense witness; and 3) the prosecutor committed prejudicial misconduct in closing argument. Finding these contentions unmeritorious, we affirm the judgment.
FACTS
On November 22, 2015, Gloria Sotelo celebrated her 72nd birthday by having her niece Elizabeth Aguirre and appellant, Aguirre's boyfriend, over to her apartment for food and drinks. John Magdaleno, a homeless friend of Sotelo, also attended the party. Magdaleno had to leave, and Sotelo invited him to come back later in the evening. Her only caveat was the timing of Magdaleno's return: She told him he was welcome to rejoin the party, so long as he was there by 10:00 p.m., which is when she usually went to bed.
Sotelo actually turned in around 9:00 that night, and sometime between 10:30 and 11:00 p.m., Aguirre woke her up and told her Magdaleno had returned to the apartment. Aguirre went into the living room to see what was going on. Although Magdaleno and appellant had never had any problems in the past, it was clear they were angry with each other. They were arguing and scowling, and Magdaleno was making threatening gestures toward appellant. Pacing back and forth between the kitchen and the living room, Magdaleno got in appellant's face several times. He never made physical contact with appellant, but he was pumping his fist and making an aggressive grunting sound, like an "angry bear." Sensing trouble, Sotelo told appellant and Magdaleno to "take it outside." They did.
Outside, a physical altercation ensued. Sotelo did not see the fight, but Aguirre witnessed it from the doorway of the apartment. She repeatedly yelled for appellant to "stop it." He did, eventually, but not before stabbing Magdaleno six times in the chest and abdomen with a pocket knife. Bleeding badly, Magdaleno staggered away from the scene and collapsed in a nearby parking lot. He sustained life-threatening injuries but emergency surgery including a transfusion saved him.
Appellant returned to Sotelo's apartment after the stabbing. He changed shirts and then abruptly left with Aguirre. They drove to appellant's brother's apartment in La Habra, where the police contacted them two days later. Appellant initially told investigators he didn't do anything to Magdaleno but later in the interview admitted stabbing Magdaleno. He said he did so because Magdaleno hit him and was being aggressive toward Aguirre and Sotelo.
There was evidence appellant and Aguirre had planned to stay over at Sotelo's apartment that evening. Sotelo testified they often stayed overnight with her, and when they arrived at her place on the night in question, they had two bags of clothing with them. But after the stabbing, they grabbed the bags and hastily departed.
At trial, appellant testified that when Magdaleno returned to the apartment after Sotelo went to sleep, he was drunk and belligerent. He was also mad at appellant and Aguirre because they closed the door on him and did not want him to come inside. However, Magdaleno pushed his way in, kicked Aguirre in the leg and punched appellant in the jaw. Appellant did not want any trouble. He tried to leave the apartment peacefully, but Magdaleno blocked his way. Then Magdaleno shoved him outside, threatened to kill him, and began hitting and kicking him. Appellant did his best to block the blows, but Magdaleno did not relent. Because he had a history of back problems, appellant was worried he would end up dead or in a wheelchair if he did not do something. So, he pulled out his pocket knife, opened it up and began swinging it around. He admitted he intended to kill Magdaleno but claimed he had no other choice under the circumstances.
Based on appellant's testimony, defense counsel argued appellant was not guilty of any crime because he had acted in self-defense. However, the jury convicted appellant of attempted voluntary manslaughter - a lesser included offense of attempted premeditated murder - on the theory he acted in imperfect self-defense or in the heat of passion. The jury also found true allegations appellant used a deadly weapon and inflicted great bodily injury. The trial court sentenced him to seven years in prison for his actions.
Either theory would have supported an attempted manslaughter verdict and the jury is not required to explain this choice.
DISCUSSION
Instructions on Mutual Combat
Appellant argues the trial court erred by instructing the jury on mutual combat, which limits the self-defense doctrine by imposing requirements on the defendant's use of force. Appellant's argument has two components. On the one hand, he contends there was insufficient evidence to warrant any instructions on mutual combat. And on the other hand, he contends the instructions that were given did not go far enough in terms of explaining that concept to the jury. We disagree with both contentions.
In this regard, the trial court told the jury, "A person who engages in mutual combat has a right to self-defense only if: [¶] 1. He actually and in good faith tried to stop fighting; [¶] and [¶] 2. He indicated, by word or by conduct, to his opponent, in a way that a reasonable person would understand, that he wanted to stop fighting and that he had stopped fighting; [¶] and [¶] 3. He gave his opponent an opportunity to stop fighting." (CALCRIM No. 3471.)
At the prosecution's request, the trial court gave the standard instruction on mutual combat, which states, "A fight is mutual combat when it began or continued by mutual consent or agreement. That agreement may be expressly stated or implied and must occur before the claim to self-defense arose." (CALCRIM No. 3471.) The defense opposed the instruction for lack of evidentiary support, but the trial court determined there was sufficient evidence from which the jury could find appellant and Magdaleno stepped outside Sotelo's apartment for the purpose of fighting each other.
In reviewing this determination, we apply the substantial evidence test. (People v. Ross (2007) 155 Cal.App.4th 1033, 1049-1050 (Ross).) We must ascertain whether the evidence of mutual combat was "'sufficient to "deserve consideration by the jury," that is, evidence that a reasonable jury could find persuasive.' [Citation.]" (Ibid.)
In Ross, the court found it was error to instruct the jury on mutual combat because neither the defendant nor the victim indicated a desire to fight. Although the two exchanged heated words before getting into a physical altercation, the evidence indicated the defendant's words were rhetorical and humorous in nature, and the victim never manifested an intention to fight. (Ross, supra, 155 Cal.App.4th at pp. 1052-1054.) Rather, the victim simply became exasperated by the defendant's antics and slapped him in an "impulsive and unexpected" fashion. (Id. at p. 1052.)
The situation in the present case was far more ominous than in Ross. Sotelo testified that when she woke up and came out into her living room, Magdaleno and appellant both looked very upset. Although Sotelo could not make out what they were saying to each other, she got the sense they were arguing because they were glowering at each other with fierce intensity. Moreover, while Magdaleno was pacing around appellant, he was grunting and pumping his fist in an aggressive fashion. Although he did not make contact with appellant, he provocatively invaded his personal space more than once, and appellant looked "really mad." Given the hostility between the two men, Sotelo told them to "take it outside," and they did. It appears little time passed between the moment they left the apartment and when the stabbing occurred.
On these facts, the jury could reasonably conclude Magdaleno and appellant wanted to fight each other. Magdaleno's conduct inside the apartment made it clear he was ready to rumble, and appellant was obviously none too pleased with Magdaleno's threatening antics. In fact, according to appellant, Magdaleno was not just menacing inside the apartment, he was physically aggressive to him and his girlfriend Aguirre. This provided appellant with further reason to be mad at Magdaleno and to want to fight him.
Any doubt as to the parties' intentions was removed when they exited the apartment after Sotelo told them to "take it outside." Appellant contends this evidence doesn't mean much because Sotelo testified she could not recall how soon appellant and Magdaleno left the apartment after she told them to take it outside, nor could she remember who left first. However, in describing the order of events at her apartment, Sotelo testified "when I got up [Magdaleno] was at the kitchen table, [he] went up to [appellant] once, then he went back to the kitchen table and [then] he went back again with [appellant]. And then the third time [he went up to appellant] I don't know who walked out first, [if] it was [appellant] or [Magdaleno], but they walked out of [sight]."
This testimony suggests appellant and Magdaleno left simultaneously in close proximity to Sotelo's demand for them to take it outside. While appellant testified he did not want to fight Magdaleno, and there could have been other reasons why he exited the apartment, the objective circumstances indicate he and Magdaleno took their beef outside to settle it by means of physical violence. "Take it outside" is a well-known and time-honored shorthand for suggesting a fight, and the jury was entitled to interpret the parties' relatively immediate exit of the premises as pursuant to such an intention. This is especially true considering Aguirre's testimony that Magdaleno had suggested he and appellant go outside and fight. Finding substantial evidence to support this conclusion, we uphold the trial court's decision to instruct on the doctrine of mutual combat. (Cf. People v. Pitts (1990) 223 Cal.App.3d 606, 879 [that there may be more than one explanation for the defendant's conduct does not preclude the court from giving an instruction pertaining to one].)
The remaining question is whether the trial court erred in denying appellant's request to modify the instructions on mutual combat. Relying on Ross, supra, 155 Cal.App.4th at pp. 1045, 1051, the defense wanted the court to supplement the standard instruction in two respects by telling the jury 1) the prosecution is required to prove beyond a reasonable doubt that appellant engaged in mutual combat, and 2) mutual combat requires more than just a reciprocal exchange of blows in that the parties must agree to fight before the blows commenced.
With respect to the burden of proof, appellant is correct that the trial court's instructions on mutual combat were silent on that issue. However, the context in which the instructions were given made it clear the burden fell on the prosecution to prove beyond a reasonable doubt that appellant's fight with Magdaleno was mutually agreed upon. (See generally People v. Dieguez (2001) 89 Cal.App.4th 266, 276 [in reviewing claims of instructional error, "we must consider the jury instructions as a whole, and not judge a single jury instruction in artificial isolation out of the context of the charge and the entire trial record."].)
Before instructing the jury on mutual combat, the trial court gave full and complete instructions on self-defense. (See CALCRIM No. 3470.) Those instructions explained the conditions for self-defense and concluded with the lines, "The People have the burden of proving beyond a reasonable doubt that the defendant did not act in lawful self-defense or defense of another. If the People have not met this burden you must find the defendant not guilty
The trial court then turned to the issue of mutual combat, which is a subset of self-defense. How would the jury have known that? Well, for starters, the prosecutor linked the concepts of self-defense and mutual combat in her closing argument. Specifically, she told the jurors that if they determined appellant engaged in mutual combat, they would then have to decide whether he had the right to self-defense. The prosecutor then went on to argue why she believed the fight between appellant and Magdaleno constituted mutual combat and why appellant failed to satisfy the conditions for obtaining the right to self-defense in that context.
The linkage between self-defense and mutual combat was also made evident in the body of the mutual combat instructions. In fact, the very first line of those instructions explained to the jury, "A person who engages in mutual combat has a right to self-defense only if" certain conditions are met. (CALCRIM No. 3471.) This signaled to the jury that the mutual combat doctrine puts additional conditions on the right to self-defense. Since the jury was told the prosecution had the burden to prove beyond a reasonable doubt that the conditions for self-defense were not met, the jury would have logically understood that burden extended to the conditions for preserving that right in the context of mutual combat. It was therefore not necessary for the trial court to reiterate the burden of proof in instructing the jury on mutual combat.
Independent of that issue, appellant contends his proposed instruction was necessary to clarify for the jury that the mere exchange of reciprocal blows is insufficient to constitute mutual combat. He fears that without this clarification, the jury could have found he engaged in mutual combat with Magdaleno simply because they got into a physical altercation outside Sotelo's apartment. However, the court's instructions stated that in order for a fight to constitute mutual combat, it must have been preceded by mutual agreement. While the nature of the agreement was not particularly important (the law provides it could be express or implied), the court made it clear the agreement had to take place "before the claim to self-defense arose." (CALCRIM No. 3471.) By instructing the jurors in this fashion, the court adequately apprised them of the fact that fighting alone is insufficient to constitute mutual combat under California law.
Immunity Issue
Appellant claims the prosecutor violated his due process rights by failing to grant immunity to his girlfriend Aguirre. The claim is not well taken.
Aguirre was interviewed by authorities two days after the stabbing, at the same time appellant was taken into custody. Initially, she told the police that Magdaleno was already beaten up by the time he arrived back at Sotelo's apartment, implying appellant had nothing to do with his injuries. Then she admitted appellant fought with Magdaleno but claimed he did not use a knife during their altercation. Considering the nature and severity of Magdaleno's injuries, the police knew that was a lie. They told Aguirre that if she was not truthful with them, it would make her look bad, and she could be charged with conspiracy to commit murder. The police also made it clear to Aguirre they were very interested in knowing what happened to the knife appellant used to stab Magdaleno. They promised her she would not be charged with conspiracy to commit murder if she revealed the knife's location. She took the deal and led the police to the knife. She never denied their allegation she collected the knife after the stabbing and hid it to protect appellant.
A search for the knife at the scene of the stabbing turned up empty.
But during her police interview, Aguirre badmouthed Magdaleno quite a bit. She said he abused drugs and alcohol and had been violent with her and Sotelo in the past. In addition, she claimed Magdaleno was drunk and intemperate in the time leading up to the stabbing. Not only did he punch appellant in the face and throw something at her leg, he was also verbally offensive and urged appellant to go outside to fight. Aguirre did not provide any details as to how the stabbing transpired, but after the police raised the prospect that appellant may have acted in self-defense, Aguirre said, "Yeah, he was defending himself."
Although Aguirre was on probation for an unrelated matter at the time of the stabbing, she was not arrested or charged with any new crimes in the weeks leading up to appellant's preliminary hearing. During that hearing, the defense wanted to call Aguirre as a witness to establish appellant acted in self-defense. As Aguirre was about to take the stand, the prosecutor suggested to the court there was a chance Aguirre might incriminate herself as an accessory after the fact to the stabbing, and therefore she might need legal counsel. The court appointed Aguirre an attorney and continued the preliminary hearing. When the hearing resumed, Aguirre invoked her right not to testify, so she was never heard from. However, the court did allow defense counsel to elicit the statements Aguirre made during her interview with the police. Still, the court was not convinced appellant acted in self-defense; it bound him over for trial on the charge of attempted premeditated murder.
Before trial, defense counsel moved to obtain use immunity for Aguirre so she could be compelled to testify. At the motion hearing, Aguirre appeared with her appointed attorney and again refused to answer any questions about the case. When the court asked Aguirre's attorney if he felt his client's invocation of the Fifth Amendment was justified, he said that if Aguirre testified at trial, she could "very well place herself in a position to have charges filed against her." With that, the court found Aguirre's invocation proper and determined she was unavailable as a witness.
Defense counsel took great issue with this ruling. Given that Aguirre had never been arrested or charged in connection with the stabbing, defense counsel felt she was not in any real legal jeopardy. Indeed, defense counsel surmised the only reason the prosecutor suggested otherwise at the preliminary hearing was to intimidate Aguirre and persuade her not testify on appellant's behalf. Defense counsel asserted this tactic infringed appellant's right to compulsory process and to present a defense. She argued that if the prosecution was unwilling to grant Aguirre immunity at trial, then the court should take it upon itself to do so. And if the court was unable or unwilling to do that, then it should dismiss the case on due process grounds. In response, the prosecutor made it clear she had no intention to grant Aguirre immunity. She also denied there was any intention on behalf of her office to intimidate Aguirre in any fashion.
The trial court denied appellant's motion, finding there was no basis to grant Aguirre immunity or dismiss the case. Regarding the prosecutor's motivation at the preliminary hearing, the court stated there is generally nothing wrong with an attorney for either party informing the court that a potential witness might be put in a position to incriminate herself if she took the stand. In fact, "To the extent that counsel is able to flag that for the magistrate in advance, since the magistrate by law is not privy to police reports and so forth, that is proceeding as an officer of the court, assuming it isn't done in a manner to interfere with the witness' testimony or to improperly dissuade the witness from testifying." By denying appellant's motion, the court impliedly rejected his claim that the prosecution improperly dissuaded Aguirre from testifying on his behalf.
Under state law, the trial courts lack authority to grant a witness immunity, and prosecutors are not required to provide immunity to assist the defense. (People v. Masters (2016) 62 Cal.4th 1019, 1050-1051.) There is federal authority that holds it is a denial of due process for a prosecutor to refuse to immunize a defense witness in some situations. (Id. at pp. 1051-1053, citing United States v. Quinn (3d Cir. 2013) 728 F.3d 243.) However, to establish a due process violation, the defendant must show the prosecutor's refusal was deliberately designed to distort the factfinding process, or it resulted in the loss of testimony that was clearly exculpatory and essential to the defense. (Ibid.)
Neither showing has been made in this case. In arguing the prosecutor's refusal to grant Aguirre immunity was motivated by a desire to distort the factfinding process, appellant finds it suspicious that the state showed no interest in prosecuting Aguirre until she was ready to take the stand in his defense at the preliminary hearing. Appellant also maintains that if the state was really interested in prosecuting Aguirre as an accessory after the fact, it had ample evidence to do so based on the statements she made to the police and her action of bringing them the knife used in the stabbing. Therefore, the state had nothing to lose by granting her use immunity. Based on all the circumstances presented, appellant surmises the "only believable reason" the prosecution refused to grant Aguirre immunity was to discourage her from offering testimony that was favorable to the defense.
We do not see it that way. While appellant infers a nefarious motive from the prosecutor's decision to advise the preliminary hearing judge of the possibility that Aguirre might incriminate herself, and thus need representation, "the prosecutor, as an officer of the court, has a duty to inform the court that it may be necessary for the court to inform a witness of his rights under the Fifth Amendment." (People v. Callington (1983 Mich.App.) 333 N.W.2d 260, 263; accord, State v. Miller (Mo. 1972) 485 S.W.2d 435, 441; see also United States v. Jackson (7th Cir. 1991) 935 F.2d 832, 847 [prosecutors have an ethical duty to warn unrepresented witnesses of the risk of self-incrimination and the possible need for counsel]; Holbert v. United States (D.C.App.1986) 513 A.2d 825 [no impropriety found where prosecutor asked court to advise defense witness of right against self-incrimination].)
The prosecutor is not entitled to threaten, intimidate, or badger a potential defense witness, so as to effectively drive them off the witness stand. (See, e.g., People v. Callington, supra, 333 N.W.2d at pp. 303-306 [defendant's right to present a defense was unduly infringed when the prosecutor threatened a defense witness with life in prison if he testified and the trial court expanded on that threat].) But there is nothing wrong with a prosecutor alerting the court that a witness may be opening herself up to charges if she testifies, which is what the prosecutor did in this case. Doing so led to the appointment of counsel for Aguirre, and it was only after consulting with her own attorney - who agreed with the prosecutor that testifying would endanger her - that she decided to invoke her right against self-incrimination. Thus, it cannot be said that the prosecutor's actions were improper.
In this regard, it is important to keep in mind that, although Aguirre had not been formally charged with any crime at the time of appellant's preliminary hearing, she was a potential target of prosecution. Considering the district attorney's broad discretion to decide how and when to exercise its charging authority, the prosecution should not be put in the position of having to initiate criminal proceedings against a witness before they are allowed to deny them immunity. Appellant's suggestion to the contrary lacks legal support and raises serious questions under the separation of powers doctrine, and would, in the long run, be counterproductive to the rights of people similarly situated. (See generally In re Weber (1974) 11 Cal.3d 703, 720 ["the decision to seek immunity is an integral part of the charging process, and it is the prosecuting attorneys who are to decide what, if any, crime is to be charged"]; People v. Honig (1996) 48 Cal.App.4th 289, 355 [the separation of powers doctrine "precludes courts from interfering with the executive decisions of prosecutorial authorities"].) For all of these reasons, we reject appellant's claim that the prosecution's refusal to grant Aguirre immunity constituted a deliberate attempt to distort the factfinding process in derogation of his due process rights.
The record also refutes appellant's contention that said refusal violated due process because Aguirre would have provided "clearly exculpatory" testimony that was "essential" to his defense. Aguirre was not a neutral witness. She was appellant's longtime girlfriend, which gave her a motive to protect him. (See United States v. Quinn, supra, 728 F.3d at p. 263 [defense witness' familial connection to defendant undermined claim that witness' proposed testimony would have been clearly exculpatory so as require the state to grant him immunity].) That bias was on full display during Aguirre's interview with the police. In her initial version of events, she intimated appellant had nothing to do with Magdaleno's injuries. Then she admitted the two fought but said nothing about the fact that Aguirre stabbed Magdaleno over and over during their altercation. It was only after the police threatened to charge her with conspiracy to commit murder that she came clean about what appellant did. Even then, she did not utter the words "self-defense" until the police brought up the issue. And while she alleged that Magdaleno provoked appellant by hitting him and taunting him, she did not provide any specific information about how appellant handled the knife in responding to Magdaleno's actions. She did, however, impliedly concede that she hid the knife and fled with appellant after the stabbing was over, which suggests she felt appellant had overreacted to the situation. Thus, had she testified consistently with her police statement, her testimony would not have been clearly exculpatory.
Nor would it have been essential. At trial, the jury heard extensive testimony from appellant in support of his claim of self-defense. Given the lack of specificity in Aguirre's police statement, it's hard to see how she would have been able to shed any additional light on how the stabbing occurred. Admittedly, she may have been able to corroborate some aspects of appellant's testimony, but corroborative testimony is generally not considered essential. (See, e.g., United States v. Whiteford (3d Cir. 2012) 676 F.3d 348, 363-364 [failure to grant immunity to defense witness did not violate due process where witness' testimony was merely corroborative of other testimony]; cf. People v. Samuels (2005) 36 Cal.4th 96, 127-128 [same where witness' testimony was merely cumulative of other testimony].) And when, as here, the source of the corroborative evidence has a close personal relationship with the defendant, the importance of that evidence is further diminished.
At bottom, we do not believe Aguirre was such an important witness for the defense that the prosecution's failure to grant her immunity infringed appellant's fair trial rights. We therefore reject his due process claim.
Closing Arguments
Lastly, appellant contends the prosecutor committed misconduct in closing argument by accusing the defense of failing to call logical witnesses. Appellant assails the prosecutor's argument as misleading and disparaging, but we find no cause for reversal. While some aspects of the prosecutor's argument may have been improper, they were not prejudicial considering the trial court's response to them and the record as a whole.
We note at the outset that it is generally permissible for a prosecutor to comment upon a defendant's failure to call logical witnesses. (People v. Wash (1993) 6 Cal.4th 215, 263; People v. Hall (2000) 82 Cal.App.4th 813, 817.) However, such comment is improper when the witness is unavailable to testify. (People v. Ford (1988) 45 Cal.3d 431, 445; People v. Wolfe (1954) 42 Cal.2d 663, 668; People v. Frohner (1976) 65 Cal.App.3d 94, 108-109.) Here, there were two logical witnesses that were unavailable, Aguirre and Magdaleno. The former was unavailable because she invoked her privilege against self-incrimination, and the latter was unavailable because he refused to comply with defense counsel's subpoena to appear in court.
During closing arguments, it was defense counsel who first raised the issue of Aguirre and Magdaleno's absence from the trial. She argued to the jury, "Where are the other people that were there. Where is John Magdaleno. There were only two people that were there from start to finish: [Appellant] and Mr. Magdaleno. [Appellant] told you what happened. Where is Mr. Magdaleno? Where is the other side of the story? There's something in law called failure to call logical witnesses." The prosecutor objected to this argument on the grounds defense counsel was inviting the jury to engage in speculation, but the objection was overruled.
Later in her argument, defense counsel returned to this theme, asking the jury, "Where is the evidence this was not in self-defense? Where is Mr. Magdaleno telling you, no, no, no, no, I didn't hit him. As far as the, 'stop it, Pepe, stop it, Pepe,' where is Ms. Aguirre?" When the prosecutor objected to this argument, the court overruled the objection and informed the jury it is permissible for counsel to argue the failure to call logical witnesses.
"Pepe" is Aguirre's nickname for appellant. Defense counsel was referring to Sotelo's testimony that Aguirre repeatedly yelled out for appellant to "stop it" when he was stabbing Magdaleno. --------
Once her objections had been overruled, the prosecutor was determined to respond to these arguments in her rebuttal. She told the jury, "[Defense] counsel attempted to talk to you about a few things which fall in this category of things that you, as jurors, swore an oath that you would not consider, and that is speculation. [Defense counsel] . . . has asked you to do that numerous times in saying where is Mr. Magdaleno, where is Miss Aguirre. I'll talk about that a little bit more. But what they could say, should say, would say, et cetera, that is speculation. And the reasons that they may not be in court might be because the judge did not allow them to testify, might be because we can't find them. Right?"
Defense counsel objected to this argument as improper and misleading. The court did not expressly rule on the objection. It simply told the jury, "It's proper argument, as I indicated previously, for counsel to argu[e the] failure of opposing counsel to call logical witnesses. In this particular case, jury, rest assured, I have not precluded anybody from testifying who is available to testify."
The prosecutor then resumed her argument by telling the jurors, "My point is that . . . you could speculate, but that's not actual evidence, because you're prohibited from doing that. And what's even greater is that both of us have subpoena power. So while at the same time [defense counsel] is criticizing the People for not calling certain witnesses . . . [¶] . . . [¶] [what she is] not telling you is she has the power to subpoena witnesses, just like I do."
At that point, defense counsel interposed another objection, and the court held a sidebar with counsel outside the presence of the jury. At the sidebar, defense counsel claimed it was improper for the prosecutor to insinuate that she never tried to obtain Magdaleno's testimony because she had in fact subpoenaed him, but he simply refused to appear in court. The prosecutor did not deny knowing about this. However, she defended her remarks on the basis defense counsel had "opened the door" by commenting on Aguirre and Magdaleno's absence from the trial. The prosecutor also told the court that not only did she attempt to subpoena Magdaleno, she and her investigator actually went out looking for him during the trial after learning he had been spotted in La Habra. However, they were unable to locate him.
In the end, the court did not believe either party was to blame for Magdaleno's failure to appear. Accordingly, it instructed the jurors, "I don't want [you] to speculate unduly on something. [¶] The fact is Mr. Magdaleno, the alleged victim in this case, as you heard . . . is homeless. He was tracked down, he was subpoenaed, he refused to appear, even with the subpoena, and it is no fault of either counsel. . . . [¶] And so, now that I have advised you of that, beyond that don't speculate on why Mr. Magdaleno is not here. It is not the fault of either counsel, nor the fault of [appellant]."
In defending the prosecutor's remarks, respondent claims they were primarily intended to prevent the jury from speculating about the absence of certain witnesses. While conceding the prosecutor may have overreached in that regard, respondent also contends any misconduct was cured by the trial court's admonishment. We agree. Not only did the court effectively and articulately instruct the jurors to refrain from speculating about absent witnesses, it specifically told them that neither side was at fault for Magdaleno's failure to appear. This instruction eliminated the prospect of the jury drawing adverse inferences from Magdaleno's absence from the trial. (See generally People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17 ["The crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions."].)
Appellant contends the court should have gone further and explained to the jury that his attorney did in fact subpoena Magdaleno and that she also endeavored to have Aguirre testify. Appellant claims that without this additional information, the jury would have inferred he intentionally failed to call those witnesses for fear they would have incriminated him. However, the court's instruction clearly told the jury neither side was at fault, and appellant failed to object to the wording of the court's curative instruction. It is well established "'[a] party may not argue on appeal that an instruction correct in law was too general or incomplete, and thus needed clarification, without first requesting such clarification at trial.' [Citation.]" (People v. Cleveland (2004) 32 Cal.4th 704, 750.)
In any event, viewing the curative instruction in the context of the parties' closing arguments, the jury would have known they were not allowed to speculate about the absence of logical witnesses. Per the standard jury instructions, they also would have understood their verdict had to be based solely on the evidence that was adduced at trial. (CALCRIM No. 104.) Taking into consideration everything the jury heard, we are convinced the prosecutor's comments regarding appellant's failure to call logical witnesses were harmless beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed.
BEDSWORTH, J. WE CONCUR: O'LEARY, P. J. MOORE, J.