Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. KA075768, Tia Fisher, Judge.
Janice Wellborn, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Ellen Birnbaum Kehr, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Elman Stanley Trujillo appeals the judgment entered following his conviction by jury of voluntary manslaughter in which he personally used a dangerous or deadly weapon and leaving the scene of an accident. (Pen. Code, §§ 192, subd. (a), 12022, subd. (b)(1); Veh. Code, § 20001, subd. (a).) The trial court sentenced Trujillo to a term of 13 years in state prison.
We reject Trujillo’s claim of prosecutorial misconduct and affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
1. The People’s evidence.
a. The bar fight.
On July 15, 2006, Anthony Gallardo had a barbecue attended by numerous family members and friends including his cousin, David Carlos, who lived in the apartment above Gallardo, and Timothy Cyrilik, who lived in the next apartment area. After the barbecue, Gallardo, Carlos and Cyrilik walked to a bar called the Red Dragon. Carlos’s girlfriend, Cara Noto, met them at the bar. Carlos saw Trujillo in the bar playing pool. Carlos had a brief conversation with Trujillo, after which Trujillo resumed playing pool. While Trujillo and Cyrilik played pool, Trujillo called Cyrilik, who was 6 feet 5 inches and weighed about 400 pounds, “Gordo” and poked him in the stomach with a pool cue. Carlos noticed Cyrilik was agitated by Trujillo’s kidding.
Later in the evening, Carlos saw Trujillo say something to Noto that upset her. Carlos confronted Trujillo and argued with him. Carlos claimed he thought Trujillo was going to hit him with a bottle and so Carlos struck Trujillo in the head with a beer bottle. A fight ensued in which Cyrilik pinned Trujillo against the bar. Gallardo and Carlos fought with a bouncer.
According to the owner of the Red Dragon, Lorena Rivas, Cyrilik started a scuffle with two other individuals who frequented the bar. They were pushing Trujillo against the bar. Trujillo came behind the bar and Rivas told him to stay there. Trujillo appeared to be concerned about another attack. Rivas went to ensure that Cyrilik and his friends had left the bar and, when Rivas returned, Trujillo was not there. He apparently had gone out the back door. Trujillo was wearing only a tank top. It appeared to Rivas that Trujillo’s shirt had been ripped off.
Carlos, Gallardo and Cyrilik went out the front door and were driven by Noto to Gallardo’s house.
b. The fatal hit and run incident.
After Carlos, Gallardo and Cyrilik exited Noto’s vehicle, Noto backed up to look for a parking place. Carlos was helping Cyrilik across the street because he had something wrong with his right foot related to diabetes and he was intoxicated. As they arrived at the curb, Carlos heard “a car coming fast.” Carlos saw lights and froze but Cyrilik shoved him to the curb immediately before the car struck Cyrilik. Carlos felt “these big hands push me.”
Carlos saw Cyrilik lying on the ground missing his left leg. Carlos claimed he left Cyrilik only momentarily to go inside to call his father and, by the time he returned, several other people were at the scene.
When Gallardo got out of Noto’s car, he noticed a vehicle parked in the middle of the street. Gallardo heard the sound of a vehicle accelerating as hard as possible, then heard “a big bang” followed by Cyrilik’s body “flying up in the air,” and landing face down on the sidewalk.
Penny Hull, Cyrilik’s girlfriend of 10 years, heard what sounded like “two trains hitting” outside her home at about midnight. Hull went outside and found Cyrilik lying in the street. His left leg was gone. There was too much blood to see his face. Cyrilik’s leg flew to the next apartment building. When Hull arrived at the scene, not even a minute after the loud noise, Cyrilik was lying alone in the street.
A police officer found Cyrilik’s leg approximately 138 feet south of the collision scene. There was blood splatter at the second floor level of the apartment complex above where the leg was found.
A deputy medical examiner testified Cyrilik died of multiple blunt force traumatic injuries. Cyrilik had numerous skull fractures that were “severe and fatal” as well as massive injuries to his internal organs. Cyrilik had multiple fractures of the left side and 17 inches of the left leg was completely avulsed (removed). Cyrilik’s right side had fewer injuries but there was a fracture of the right wrist and fractures of the right leg but without contusions and lacerations. The fracture to the right leg was 18 inches above the heel. Cyrilik had a blood alcohol content between 0.16 and 0.17.
An accident reconstruction expert testified the minimum speed at which an avulsion will occur is 45 miles per hour. Avulsions generally occur to a load bearing leg. The expert opined both of Cyrilik’s legs were struck in the collision but only the load bearing leg avulsed.
c. Apprehension of Trujillo.
At approximately 1:30 a.m. on July 16, 2006, John Bowers was working in his garage on West Center Street in Covina when Trujillo entered and said he needed to use the phone because someone “jacked his car and beat him up.” Trujillo appeared to have a laceration on his neck. Bowers went outside and called the police on his cellular telephone.
At the same time, City of Covina Police Officer Ryan Davis was looking for a suspect in a hit and run fatality. Davis saw Bower’s open garage door and stopped to investigate. Trujillo was in the garage bleeding from his head. Trujillo appeared intoxicated, he had a gash on the back of his head that was bleeding down his back, he had a small cut on the bridge of his nose and he seemed disoriented. He was not wearing a shirt.
A Toyota Corolla with substantial traffic collision damage was found approximately three blocks from Bower’s home.
City of Covina Police Detective Tom Tardiff interviewed Trujillo at 10 a.m. on July 16, 2006. An audio tape recording of the interview was played for the jury. Trujillo told Tardiff he was attacked at a bar by individuals with whom he had been playing pool. When bouncers stopped the fight, Trujillo ran outside but his father’s Toyota Corolla was not where he had parked it. Trujillo ran, looking for the police, until he stopped at a garage and asked to call the police. After Tardiff urged Trujillo to tell the truth, Trujillo admitted he drove from the bar and that he stopped next to the individual he had fought and demanded the return of his house keys and other personal property. One of the males in the group swung at Trujillo and Trujillo stepped on the gas. As he drove away, a tire blew out and he pulled over to look for the police. Trujillo claimed he just wanted to go home but needed his house keys. Trujillo knew someone had been hit because his windshield was cracked.
Trujillo is five foot seven and he weighs 180 pounds.
2. Defense case.
One of Gallardo’s neighbors found Cyrilik’s body in the street after she parked her vehicle. There was no one standing around him.
Marcos Ramirez, one of the bouncers at the red Dragon Bar, testified it appeared Trujillo was “getting a good beating” by Cyrilik and two other individuals. Ramirez was unable to stop the confrontation until patrons of the bar assisted him push Cyrilik and his friends out of the bar.
A forensic chemist opined that Trujillo’s blood-alcohol content at the time of the collision would have been 0.14 percent.
3. Argument.
a. Prosecutor closing argument.
The prosecutor argued Trujillo ran Cyrilik over in “a cold-blooded, premeditated, deliberate fashion . . . . He weighed; he considered. He waited for the right time to strike, and with all of the force he could muster, he put his foot on that gas pedal.” The prosecutor claimed Carlos would have been the object of Trujillo’s anger because Carlos struck Trujillo with the beer bottle. The prosecutor noted the doctrine of transferred intent applied both to first and second degree murder if the jury found Trujillo intended primarily to kill Carlos. In closing, the prosecutor stated Trujillo had reached a safe place when he left the Red Dragon and got into his car. At that point, his defenses “are gone. So in the end, we have a simple case, simple, violent, despicable.”
b. Defense counsel’s argument.
Defense counsel told the jury the People had failed to prove first or second degree murder of Cyrilik beyond a reasonable doubt. However, defense counsel conceded Trujillo had committed voluntary manslaughter and hit and run. Defense counsel argued: “[B]ased on what happened, what we have here is we have a killing without malice aforethought. What we have here is voluntary manslaughter. Everything in this case points to voluntary manslaughter. And unless the prosecution was able to prove otherwise, prove that it wasn’t voluntary manslaughter beyond a reasonable doubt, that’s what you have to come back with, a verdict of guilty on voluntary manslaughter. Just like you are going to come back . . . with a guilty verdict on the hit and run.”
Defense counsel asked the jury to acquit Trujillo of the attempted murder of Carlos because the People failed to prove Carlos was standing next to Cyrilik at the time of the impact. Defense counsel argued Cyrilik could not have reacted quickly enough to save Carlos’s life and “the only person who suffered the consequences of that instant impact was Mr. Cyrilik.”
c. Rebuttal argument.
The prosecutor noted Trujillo waited for Noto’s vehicle to move before he drove down the street, thereby demonstrating premeditation. Also, when Trujillo spoke to Bowers in the garage, he attempted to distance himself from the murder weapon, the vehicle, by stating he had been car jacked, thereby demonstrating consciousness of guilt. The prosecutor noted Trujillo basically admitted committing the offense in the statement to Tardiff by claiming he stopped to speak to males in the street. The prosecutor stated, “His revenge is so obvious. His premeditation. And it could only mean murder, folks.”
4. Verdicts
The jury convicted Trujillo of voluntary manslaughter of Cyrilik in which he personally used a deadly and dangerous weapon, to wit, a vehicle, and leaving the scene of an accident, a felony. The jury acquitted Trujillo of first and second degree murder of Cyrilik and acquitted Trujillo of attempted murder and attempted voluntary manslaughter of Carlos.
At the time of sentencing, the prosecutor stated, “It appears the jury gave him a gift. I obviously saw the facts very differently than the jury did and it’s a disappointment for the People.”
DISCUSSION
1. Trujillo’s contention.
a. The prosecutor’s comments.
Trujillo contends the prosecutor committed misconduct based on the manner in which the prosecutor concluded rebuttal argument. The prosecutor stated:
“You know, I was thinking about the evidence in the case and I was thinking, boy, is that how it ends? Just on a slab with a blue tag. Is that what a human being amounts to?
“You know, life is precious. Human life is precious.
“I can tell you a little bit about Tim [Cyrilik] from the evidence. . . . He lived with Penny [Hull and her son] for ten years. He had some good friends that cared about him, got choked up on the witness stand talking about him. And as in all human life he had value. He was so young. He was full of life. . . . He had friends. He lived modestly. He enjoyed playing pool with his friends, enjoyed having a few drinks. You know he wasn’t in . . . good . . . health.
“But what [did] he do? What was his last act on this earth? I was thinking about the physical evidence in this case and the fact that Tim was left handed and in fact the testimony [indicated] all his weight was on the left side of his body. We know the left leg would be the load bearing leg for the avulsion to occur. And it’s as if the whole left side of his body was thrusting forward. Remember no damage to the left arm as if that left arm was doing something, moving not running but moving. . . . What did David Gary Carlos tell us? He felt a big hand . . . push him out of the way, saved his life. That’s what Timothy Cyrilik did.
“[Trujillo] looked at a human being and he killed. Timothy Cyrilik looked at a human being and he saved his life; that was his last act on this earth and that will be his legacy.
“There he is. That’s how he lived. This is how he looked. Think about his legacy. Think about his last act on earth and remember him that way. In the end a decent human being. In the end a fragile decent human being. [¶] Thank you.”
b. Trujillo’s argument.
Trujillo contends this argument amounted to a eulogy intended to engender sympathy for Cyrilik and to create anger toward Trujillo. (People v. Fields (1983) 35 Cal.3d 329, 362.) Such an appeal is improper because it invites the jurors “to depart from their duty to view the evidence objectively . . . .” (Ibid.) Trujillo concedes defense counsel did not object to the improper argument at the time it was made. However, given the obvious emotional impact, an admonition would have been ineffective to cure the prejudice. (People v. Herring (1993) 20 Cal.App.4th 1066, 1074.) Additionally, a timely objection would have been perceived as showing a lack of respect for the Cyrilik’s life. (See People v. Boyette (2002) 29 Cal.4th 381, 432.) Alternatively, Trujillo asks this court to consider the issue on the merits to forestall a claim of ineffective assistance of counsel.
Trujillo claims the jury’s rejection of murder and attempted murder demonstrates “the jury could well have found appellant guilty of the least serious offenses simply out of sympathy for the victim, his family and friends. Consequently, it must be concluded that the misconduct had a prejudicial impact on the jury’s consideration of the case.”
2. Relevant principles.
“A prosecutor’s conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.” (People v. Morales (2001) 25 Cal.4th 34, 44.) Acts of prosecutorial misconduct do not justify the reversal of a conviction “unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct. [Citation.]” (People v. Crew (2003) 31 Cal.4th 822, 839.)
A defendant may not complain on appeal of prosecutorial misconduct unless defense counsel objected in a timely fashion and on the same ground in the trial court, and also requested that the jury be admonished to disregard the perceived impropriety. (People v. Thornton (2007) 41 Cal.4th 391, 454.) “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.]” (People v. Cole (2004) 33 Cal.4th 1158, 1201.)
Where defense counsel fails to object to prosecutorial misconduct, the defendant can argue on appeal that counsel’s inaction deprived defendant of the constitutional right to the effective assistance of counsel. (People v. Lopez (2008) 42 Cal.4th 960, 966; People v. Samayoa (1997) 15 Cal.4th 795, 841; see also People v. Farnam (2002) 28 Cal.4th 107, 167; People v. Stewart (2004) 33 Cal.4th 425, 502-503.) To succeed on a claim of ineffective assistance of counsel, the defendant must prove that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674]; People v. Ledesma (1987) 43 Cal.3d 171, 217-218.)
3. Application here.
Trujillo failed to interpose a timely objection to the prosecutor’s argument and does not show that an admonition by the trial court would not have cured the harm or that a request for an admonition would have been futile. The contention, therefore, has been forfeited. (People v. Tafoya (2007) 42 Cal.4th 147, 176; People v. Farnam, supra, 28 Cal.4th at p. 167.)
However, even if the failure to object is overlooked, the comments were not excessively inflammatory. Rather, it appears the prosecutor merely argued life is valuable, even for a victim who may have engaged in misconduct prior to the fatal attack.
In any event, even assuming the prosecutor’s remarks amounted to an inappropriate appeal to the jury’s sympathy for the victim (see People v. Lopez, supra, 42 Cal.4th at pp. 969-970; People v. Kipp (2001) 26 Cal.4th 1100, 1130), the claim of error fails.
To warrant reversal, prosecutorial misconduct must be prejudicial. (People v. Crew, supra, 31 Cal.4th at p. 839; People v. Benson (1990) 52 Cal.3d 754, 793.) Here, regardless of the standard of review employed (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705]; People v. Watson (1956) 46 Cal.2d 818, 835), Trujillo cannot demonstrate prejudice. The prosecutor asked the jury to convict Trujillo of murder of Cyrilik and attempted murder of Carlos. However, the jury convicted Trujillo only of voluntary manslaughter of Cyrilik. Defense counsel argued Trujillo committed voluntary manslaughter of Cyrilik, not murder, and that he committed no crime with respect to Carlos. The jury agreed. Under these circumstances, any prosecutorial misconduct or ineffective assistance related to the failure to object to the misconduct, was harmless. Indeed, the jury’s verdicts coincided exactly with defense counsel’s view of the case.
Further, defense counsel did not render ineffective assistance by conceding that Trujillo was guilty of voluntary manslaughter. If overwhelming evidence of guilt exists, it is not incompetent for an attorney to concede the defendant’s guilt of a particular offense where good trial tactics demand complete candor with the jury. (People v. Bolin (1998) 18 Cal.4th 297, 334-335; People v. Freeman (1994) 8 Cal.4th 450, 498; People v. Mitcham (1992)1 Cal.4th 1027, 1060-1061.)
In sum, on the present record, Trujillo’s claim of prosecutorial misconduct and the ancillary assertion of ineffective assistance of counsel fails.
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, J., KITCHING, J.