Opinion
B189428
4-26-2007
THE PEOPLE, Plaintiff and Respondent, v. HENRY VASQUEZ, Defendant and Appellant.
Edward J. Haggerty, 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, Victoria B. Wilson and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appellant Henry Vasquez appeals from a judgment entered after a jury found him guilty of count 1, murder (Pen. Code, § 187, subd. (a)); count 2, attempted murder (§ 664, subd. (a); § 187); count 3, lesser offense of attempted voluntary manslaughter (§ 192, subd. (a); § 187); count 4, shooting at an inhabited dwelling (§ 246); count 5, inflicting willful harm or injury to a child (§ 273a, subd. (a)); and counts 6 and 7, assault with a firearm (§ 245, subd. (b)). The jury found true the allegations that appellant had personally discharged a firearm in counts 1 and 2 (§ 12022.53, subds. (b)-(d)); appellant personally inflicted great bodily injury in commission of counts 2 and 6 (§ 12022.7, subd. (e)); appellant personally used a firearm in counts 6 and 7 (§§ 12022.5, 12022.53, subd. (b)); and that appellant personally discharged a firearm in counts 3, 4, 6 and 7. The jury found not true the allegation that count 2 was committed willfully, deliberately, and with premeditation.
All further statutory references are to the Penal Code unless otherwise indicated.
CONTENTIONS
Appellant contends that: (1) the trial court abused its discretion when it admitted evidence of prior domestic disputes during the Peoples rebuttal; (2) the trial court abused its discretion in permitting the People to reopen its rebuttal to present further domestic dispute evidence; (3) the trial court erred in instructing on voluntary manslaughter; (4) the instructions on murder and attempted murder were inconsistent and confusing as to the necessary mental state for attempted murder; (5) the trial court abused its discretion in allowing the medical examiner to offer his opinion regarding the distance from which Dora Ulloa (Dora) was shot; (6) the People committed prosecutorial misconduct in its opening statement; (7) the trial court abused its discretion when it denied appellants motion for mistrial based on prosecutorial misconduct committed by the People in cross-examining appellant; (8) the People engaged in prosecutorial misconduct by improperly describing the provocation and heat of passion required for voluntary manslaughter; (9) the trial court erred in denying appellants mistrial motion based on Rachel Ulloa (Rachel) crying on the witness stand; (10) the trial courts denial of appellants request to videotape Rachels testimony deprived appellant of an adequate record on appeal; (11) the trial courts failure to give the jury a cautionary instruction regarding emotional displays by witnesses was prejudicially erroneous; (12) appellant was denied his right to due process and to a fair trial because of cumulative error; (13) there was insufficient evidence to support appellants conviction for felony child endangerment; and (14) the trial court erred in imposing and staying the lesser enhancements under section 12022.53, subdivisions (b) and (c) instead of striking them.
FACTS AND PROCEDURAL HISTORY
The Peoples Evidence
Viewing the record in the light most favorable to the judgment below as we must (People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139), the evidence established the following.
Appellant met Dora when they were teenage neighbors. They had two children together, Ashley and Aaron. Appellant and Dora had a tumultuous relationship and fought frequently. During the summer of 2003, Dora broke up with appellant. She and her children moved out of her grandmothers residence where they and appellant had been living, and moved in with her parents, Rachel and Sammy Ulloa (Sammy). Appellant continued to live with Doras grandmother until February 2004, when he was asked to move out. Appellant moved in with his mother, and was angry at Dora and her parents for refusing to allow him to live with Dora. Dora obtained a restraining order against appellant as part of a custody agreement.
On June 18, 2004, Dora and Ashley drove to a liquor store a block and a half away from their residence. After parking, Dora saw appellant drive behind them and block her car from the rear. She told 11-year-old Ashley to lock the door. Appellant left his car, walked to the drivers side window and repeatedly shouted at Dora to open the door. Dora refused and called 911 from her cell phone. She also called her mother. Appellant then broke the car window with a gun, went back to his car to get bullets, returned and began shooting Dora. He shouted "I am going to kill you, bitch. I am going to kill you. If I cant have you, no one can have you." Ashley got out of the car and ran into the liquor store where she told an employee to call the police. Ashley ran back out and pleaded with appellant to stop shooting Dora. Appellant continued shooting Dora then ordered Ashley into his car. Appellant told Ashley that he shot Dora because she "was a whore." Dora died from multiple gunshot wounds, three to her head and five to her torso.
Appellant then drove to Sammy and Rachels residence, honking the horn repeatedly. He shouted that he killed Dora, and "no one is going to have her." Sammy, with his son Sammy Jr., opened the front door and looked out. Appellant shot at Sammy, grazing him on his right forearm, and Sammy pushed his son back into the house. From her upstairs bedroom, Rachel yelled at appellant to shoot himself. Appellant shot twice at Rachel, who was holding her granddaughter in her arms. Appellant then put the gun to his head and said he was going to shoot himself, but got back into his car and drove away.
Appellant drove to his grandmothers house where he was apprehended by police. Appellant told the officers that Dora "got a restraining order against me. She wont let me see the kids so I shot the bitch." He asked if Dora was dead and said he wanted to see Ashley.
Dr. Yulai Wang, a deputy medical examiner in the Los Angeles County Coroners office, testified that Dora suffered two gunshot wounds to her left cheek and one to her left temple. The wound to her temple had stippling around it, indicating that she had been shot from a distance of no more than two feet.
Appellants Defense
Appellant testified in his defense. He stated that he continued seeing Dora after their separation and that he believed they would reconcile. He testified that they had some arguments, but that she paid for a hotel room once a week to have sexual encounters with him. A week prior to the killing, Dora had informed him that she was seeing someone else. Appellant told her that "if [he] couldnt put [his] hands on her nobody would." Appellant purchased a gun from a drug addict in a parking lot a week prior to the incident because he found it hard to cope with not seeing his kids and with Dora seeing other people.
The night of the shooting, appellant smoked marijuana with cocaine. He then drove to the liquor store and saw Doras car. He parked behind her and approached the car on the drivers side. Dora refused to talk to him. He drove around the liquor store and then parked behind Dora again. He began arguing with Dora, saying that he wanted to see the kids. Appellant was "in a rage" and tried to break the window with a spark plug he found on the ground. He then broke the window with the butt of the gun, and began shooting. He denied planning to kill Dora that night.
Appellant testified that he drove Ashley to Sammy and Rachels home and shot at Sammy to force him "to go back in the house." After holding the gun to his own head, he drove to a friends house to get more drugs, and then to his grandmothers house.
Appellants mother and aunts testified that appellant was very caring toward his daughter.
The Peoples Rebuttal
Los Angeles Police Detective Joseph Preciado, who investigated the shooting, testified that he did not find a spark plug near Doras vehicle. He found three live rounds outside the vehicle and stated that if a live round became jammed, appellant would have had to clear the weapon and eject the live round prior to firing the weapon again.
Los Angeles Police Officer Werner Flores testified that on January 22, 2004, in response to a call he had spoken with Dora at her parents house. Dora was very upset, crying and shaking with fear. Ashley was also crying and afraid. Dora told the officer that she had a restraining order against appellant. In the officers presence, appellant called Doras cell phone 11 times. At one point, Officer Flores answered the telephone and identified himself as a police officer. Appellant screamed profanities and said that the whole world was against him, that he did not care about anything, and that he wanted to see his kids. After the officer hung up, appellant called three more times.
Los Angeles School District Police Detective Ray Jordan testified that on January 28, 2004, he was called to the school where Dora worked. He testified that Dora told him about the restraining order against appellant, and that appellant called Doras cell phone at least three times while he was interviewing Dora. Detective Jordan identified himself as a police detective on the cell phone to appellant, who sounded angry and agitated. Appellant told the detective that he knew he should not have followed Dora to the school and violated the restraining order, but he was angry with Dora because she kept playing with him and breaking up with him.
John Dominguez (John) testified that on May 29, 2004, Dora, appellant, and their children attended a party at Johns home. John heard appellant tell his son Aaron to tell Dora that appellant was going to "kick her ass," and "kill her." Appellant was not laughing, joking, or smiling when he made those statements.
Joseph Vasquez (Joseph), appellants brother, testified that appellant carried a gun. With respect to Dora, appellant said to Joseph, "Fuck that bitch, I have a gun." Often, when he was mad at Dora, appellant said he was going to kill her.
DISCUSSION
I. Whether the Trial Court Abused Its Discretion in Allowing the People to Introduce Evidence of Prior Domestic Disputes During Rebuttal
A. Standard of Review
Appellant contends that under Evidence Code section 1101, the trial court abused its discretion in admitting the rebuttal testimony of Officer Flores and Detective Jordan regarding prior domestic disputes, because the testimony did not have any tendency to prove the disputed issues of premeditation or provocation and heat of passion. We disagree.
We first note that appellant did not object to the admission of the officers rebuttal evidence at trial, and his claim is waived. (People v. Hinton (2006) 37 Cal.4th 839, 893, fn. 19 [failure to object at trial to evidence under Evidence Code section 352 waives claim].) The record shows that prior to the testimony of appellants aunts and mother, appellants counsel merely expressed concern that their testimony might open the door to rebuttal evidence of prior acts of domestic violence, pursuant to Evidence Code section 1109. The trial court noted that Evidence Code section 1109 was not implicated, because the evidence would not be presented as the Peoples case-in-chief. Rather, pursuant to Evidence Code section 1103, the evidence would tend to rebut character evidence put on by appellant. After hearing the testimony of the aunts and the mother, the trial court found that the testimony had not opened the door to any rebuttal evidence concerning prior acts of domestic violence. Appellant then testified, and did not subsequently object to the testimony of Officer Flores and Detective Jordan. Thus, his claim is waived. In any event, his claim fails on its merits.
Evidence Code section 1109 permits the introduction of a defendants prior acts of domestic violence in the Peoples case-in-chief under certain circumstances, after the Peoples pretrial disclosure of intent to introduce such material.
Evidence Code section 1103 allows the People to introduce character evidence in rebuttal to the defendants evidence regarding conduct in conformity with character evidence.
We review the trial courts decision to admit evidence under the abuse of discretion standard. (People v. Jordan (1986) 42 Cal.3d 308, 316.)
B. The Officers Testimony Was Proper Rebuttal Evidence
Appellants theory of defense was that he did not kill Dora with premeditation, but killed her in a heat of passion after she told him that she was seeing another man. To that end, he testified that he and Dora continued to date during the year after they separated; they had a weekly sexual rendezvous at a hotel; he believed they would eventually reconcile; and he became distraught when he found out she was seeing someone else. His argument is twofold. He urges that intent to kill and identity were undisputed issues and the only disputed issues were premeditation and provocation/heat of passion. Thus, he reasons, because the officers rebuttal testimony evidence did not have any tendency to prove the disputed issues, the evidence was inadmissible under Evidence Code section 1101. He also contends that the prejudicial effect of the evidence outweighed its probative value.
Murder is the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) Malice is express when there is a deliberate intention unlawfully to take away the life of a victim, and implied when no considerable provocation appears, or when the circumstances of the killing show the defendant has an abandoned and malignant heart. (§ 188.) A willful, deliberate and premeditated murder is murder in the first degree. (§ 189.) Voluntary manslaughter is the unlawful killing of a human being without malice, upon a sudden quarrel or heat of passion. (§ 192.)
We conclude that the rebuttal testimony did tend to disprove appellants claims regarding his mental state at the time of the shooting. "`No witness including a defendant who elects to testify in his own behalf is entitled to a false aura of veracity. [Citation.]" (People v. Zack (1986) 184 Cal.App.3d 409, 415 [defendant not entitled to have the jury determine his guilt or innocence on a false presentation that his and the victims relationship and their parting were peaceful and friendly].) And, evidence of discord in a relationship can show ill will and motive, and supports an inference of an intention to commit a premeditated murder. (People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1613 [evidence of marital discord and prior assaults admissible to show motive, ill will, premeditation, planning, and intent to kill].) Moreover, "[e]vidence tending to establish prior quarrels between a defendant and decedent and the making of threats by the former is properly admitted and is competent to show the motive and state of mind of the defendant." (People v. Cartier (1960) 54 Cal.2d 300, 311.)
Here, the Peoples evidence was admissible to disprove appellants theory that he and Dora had a continuing romantic relationship and that he suddenly became enraged one week prior to the killing when Dora told him that she was seeing other people, or that he became enraged when she refused to talk to him in the parking lot of the liquor store. The evidence showed that the relationship was not an ongoing one, since Dora called the police repeatedly to complain of appellants conduct and to enforce the restraining order against him. The evidence also showed appellants motive and intent to commit premeditated murder: he was furious with Dora and he was angry about not seeing his children as much as he wanted in the year preceding the killing. The challenged testimony thus tended to disprove appellants claim concerning his mental state at the time of the shooting and appellants attempt to distinguish a long line of cases upholding the admission of a defendants prior assaults fails.
C. Any Error Was Harmless
Even if the trial court abused its discretion when it permitted the People to introduce the officers testimony, it is not reasonably probable that appellant would have received a more favorable outcome at trial had the challenged testimony been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836.)
The rebuttal evidence, consisting of testimony by two officers regarding Doras fear and appellants state of rage and comments to them, was much less likely to have inflamed the jury than the evidence of the violent way in which appellant shot Dora to death, in front of their 11-year old daughter. (People v. Linkenauger, supra, 32 Cal.App.4th at p. 1614 [testimony of prior assaults no stronger and no more inflammatory than testimony concerning charged offenses].) Indeed, during closing argument, appellants trial counsel used the rebuttal evidence, arguing that the prosecution witnesses testified that appellant was incredibly distraught over the loss of the relationship. Also, the evidence of appellants premeditated intent to kill Dora was overwhelming. He told his brother he was going to kill Dora; he told his son to tell Dora he was going to kill her; he told Dora that if he could not have her, no one else could; he blocked her car in at the liquor store so she could not escape; he screamed that he was going to kill her; he smashed her window with his gun; and he shot her eight times at close range.
We conclude that any error in admitting the testimony was harmless.
II. Whether the Trial Court Abused Its Discretion In Granting the Peoples Motion to Reopen Its Case
Appellant urges that the trial court abused its discretion in allowing the People to reopen under section 1094 because Officer Floress testimony was not relevant to the issues in dispute.
Section 1094 provides that the trial court has the discretion to depart from the order of procedure set forth in section 1093.
First, appellant failed to object to the Peoples motion to reopen during trial, and has waived that claim on appeal. (People v. Saunders (1993) 5 Cal.4th 580, 589-590 [appellate court will not consider procedural defects where objection could have been, but was not, presented at trial].)
Nevertheless, the record compels us to conclude that the trial court did not abuse its discretion. The factors an appellate court will consider in reviewing the trial courts decision to allow a party to reopen include consideration of the stage the proceedings had reached when the motion was made, the diligence shown by the moving party in discovering the new evidence, the prospect that the jury would accord it undue emphasis, and the significance of the evidence. (People v. Rodriguez (1984) 152 Cal.App.3d 289, 294-295.)
Here, as a matter of judicial efficiency, the trial court told the parties that it would deem the People to have rested its case so that it could give preliminary instructions. It stated it would allow the People to reopen the next day if a witness was available. Prior to instructing the jury, the trial court informed the jury that it wanted to defer closing arguments to the next morning when the jury was fresh. It also stated that additional evidence might be given the next day. The next day, the People made a motion to reopen, to which appellants counsel did not object. Thus, the reopening occurred after preliminary instructions and prior to the remaining instructions and closing arguments, and fit neatly into the continuation of the trial. The People were diligent and cooperative in presenting the witness the first thing in the morning, and because the trial court informed the jury that more evidence might be presented the following morning, the testimony was not accorded undue significance. Finally, appellants argument that the evidence was irrelevant fails, as discussed supra at Part IB.
III. Whether CALJIC Nos. 8.42 and 8.43 Created an Impermissible Burden-shifting Presumption In Favor of a Murder Verdict
Appellant next contends that CALJIC Nos. 8.42 and 8.43 instructions on voluntary manslaughter created an impermissible burden-shifting presumption in favor of a murder verdict because both instructions expressed the concept that a jury must first presume that the offense was murder and then determine whether to reduce it to voluntary manslaughter because of the presence of provocation or heat of passion. We disagree.
In reviewing instructions given by the trial court, the appellate court must examine the totality of the instructions to determine whether the applicable law was correctly conveyed to the jury. (People v. Kelly (1992) 1 Cal.4th 495, 525.) CALJIC No. 8.42 provides that the jury may reduce an intentional felonious homicide from murder to manslaughter upon a sudden quarrel or heat of passion where there is sufficient provocation. CALJIC No. 8.43 provides that the jury may not reduce a killing from murder to manslaughter where there is heat of passion or quarrel and where the perpetrator has had sufficient time to cool off.
First, the instructions correctly stated the law on involuntary manslaughter. (People v. Lee (1999) 20 Cal.4th 47, 59 ["[A]n intentional killing is reduced to voluntary manslaughter if other evidence negates malice. Malice is presumptively absent when the defendant acts upon a sudden quarrel or heat of passion on sufficient provocation"].) Second, the jury was charged with instructions that correctly informed it of: the prosecutions burden of proof beyond a reasonable doubt (CALJIC No. 2.90); that the distinction between murder and manslaughter is the existence of malice (CALJIC No. 8.50); that the jury is to give the defendant the benefit of the doubt in favor of manslaughter rather than murder (CALJIC No. 8.72); and that malice does not exist if the killing occurred upon a sudden quarrel or heat of passion (CALJIC No. 8.40). The jury is presumed to be capable of understanding and following the instructions of the trial court (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17), and we conclude that the instructions did not shift the burden of proof but clearly directed the jury to find each element of the crime beyond a reasonable doubt.
Appellants citation to People v. Owens (1994) 27 Cal.App.4th 1155 does not avail him. In that case, the First Appellate District found that CALJIC No. 10.46.2 created the inference that the People had established guilt because of part of the instruction which provides: "`The People have introduced evidence tending to prove that . . . ." (People v. Owens, at p. 1158.) The challenged instructions did not create such an inference.
Mullaney v. Wilbur (1975) 421 U.S. 684, cited by appellant, also does not assist him. There, the United States Supreme Court held that a Maine law requiring a defendant to establish by a preponderance of the evidence that he acted in the heat of passion on sudden provocation in order to reduce murder to manslaughter violated the due process clause. Rather, the burden is on the prosecution, as the instructions provided in this case, to prove beyond a reasonable doubt the absence of heat of passion when the issue is properly presented in a homicide case. (Id. at p. 703.)
Nor are we persuaded by appellants reliance on People v. Kurtzman (1988) 46 Cal.3d 322 where the First Appellate District concluded that CALJIC No. 10.42.6 forced the jury into a strict pattern of considering offenses by being instructed not to deliberate on voluntary manslaughter unless it had unanimously agreed on second degree murder. (Id. at pp. 328-335.) The challenged instructions did not inform the jury of such a requirement. Rather, the jury was instructed with CALJIC No. 17.10, that it had the discretion to choose the order in evaluating each crime and considering the evidence pertaining to it.
IV. Whether the Instructions on Murder and Attempted Murder Were Inconsistent and Confusing
Appellant urges that the trial court erroneously instructed the jury regarding the mental state required for attempted murder so that the jury might have based its verdict of attempted murder on implied malice, rather than a specific intent to kill. We disagree.
Initially, we note that appellants argument is waived because he failed to object to the instructions and request modifying or clarifying language. (People v. Maury (2003) 30 Cal.4th 342, 426.) In any case, his argument is meritless.
With respect to the murder of Dora (count 1), the jury was instructed with CALJIC No. 8.10, that murder is the unlawful killing of a human being with malice aforethought. The trial court immediately thereafter instructed the jury with CALJIC No. 8.11, that malice may be express or implied: express malice is a manifested intention to unlawfully kill a human being. Implied malice occurs when the killing resulted from an intentional act; the natural consequences of the act are dangerous to human life; and the act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.
The trial court also gave CALJIC No. 8.66 with respect to attempted murder as charged in counts 2 and 3 that attempted murder is: a direct but ineffectual act done by one person towards killing another; and the person committing the act harbored express malice aforethought, namely a specific intent to kill unlawfully another human being.
Appellant argues that the jury may have based its verdict in count 2 on a finding of implied malice because CALJIC No. 8.66 provides that murder is the unlawful killing with malice aforethought, while CALJIC No. 8.11 defines malice as either express or implied. We disagree. CALJIC No. 8.66 specifically defines "express malice aforethought," as "a specific intent to kill unlawfully another human being" and was given only in connection with the attempted murder counts. Thus, appellants citation to People v. Beck (2005) 126 Cal.App.4th 518 is unavailing, because there the Fifth Appellate District held that the jury should not have been instructed with CALJIC No. 8.11 in connection with the charge of attempted murder.
V. Whether the Trial Court Abused Its Discretion in Permitting the Coroner to Offer His Opinion as to the Distance From Which the Gun Was Fired
We disagree with appellants contention that the trial court abused its discretion when it permitted the deputy medical examiner, Dr. Wang, to offer his opinion regarding the distance from which one of Doras head wounds was inflicted based on the presence of stippling around the wound.
A person is qualified to testify as an expert if he "has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates." (Evid. Code, § 720, subd. (a).) A witness may establish his or her qualification as an expert through his or her own testimony. (Evid. Code, § 720, subd. (b).) An expert witness may offer an opinion at trial if it is related to a subject beyond common experience that would assist the trier of fact, and based on matter known to the witness. (Evid. Code, § 802.) We review the trial courts determination that an expert witness is qualified to offer an opinion under the abuse of discretion standard. (People v. Robinson (2005) 37 Cal.4th 592, 630.)
Error regarding a witnesss qualifications as an expert exists only if the evidence shows that the witness clearly lacks qualification as an expert. (People v. Robinson, supra, 37 Cal.4th at p. 632 [forensic pathologist who had performed hundreds of autopsies involving gunshot wounds qualified as an expert to testify as to distance and position of victim and shooter].) Here, the evidence showed that Dr. Wang was qualified to testify as an expert. Dr. Wang testified that he had received standard training as a forensic pathologist to look for wounds that show signs of close range gunshots, such as soot and stippling. He attended a one-year fellowship program related to firearms in 1997 at the Detroit medical examiners office. He testified that he studied soot and stippling in standard forensic textbooks. Using his training and expertise with respect to the analysis of soot and stippling, he had performed more than 2,000 autopsies during the seven years he had been employed at the coroners office. And, more than 500 of those autopsies were gunshot related. Despite appellants contention on appeal that Dr. Wang was not a ballistics expert, we conclude the trial court did not abuse its discretion in concluding that Dr. Wangs training and experience qualified him as an expert in this area which was beyond the common experience of the jury.
VI. Whether the People Committed Misconduct in Its Opening Statement
Appellant contends that the People committed misconduct in its opening statement when it described the circumstances of the shooting from Ashleys perspective: that it was her last day of school; she witnessed her mother being shot to death with eight bullets; and that the shooting was a tragedy in her life.
Where counsel declines the trial courts offer to admonish the jury regarding a claim of misconduct during opening statements, he or she cannot then seek relief on appeal. (People v. Turner (2004) 34 Cal.4th 406, 435.) The record shows that while appellants trial counsel posed an objection to the description of the shooting as a tragedy in Ashleys life, he did not raise the other points, and refused the trial courts offer to admonish the jury because he did not want the effect of the killing on Ashleys life to be an issue in the trial. Therefore, he has waived the issue on appeal. In any event, our review of the record indicates that the People did not commit misconduct.
A prosecutor can refer to evidence that he or she will produce with respect to elements of the charged offense. (People v. Barajas (1983) 145 Cal.App.3d 804, 809.) Appellant was charged in count 5 with inflicting willful harm or injury to a child in violation of section 273a, subdivision (a), which provides in part: "Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering . . . ." The Peoples reference to a tragedy related to the evidence the People intended to produce with respect to the elements of the offense charged in count 5, and was therefore proper.
Moreover, "[t]he function of an opening statement is not only to inform the jury of the expected evidence, but also to prepare the jurors to follow the evidence and more readily discern its materiality, force, and meaning." (People v. Dennis (1998) 17 Cal.4th 468, 518 [dramatic comments regarding sensations felt by witness to murder not improper, and the circumstances and impact of killing would be obvious to jury anyway].) Here, the Peoples comments that the day of the killing was Ashleys last day of school, that she would view her mother being shot, and that the killing was a tragedy, set up the chronology and evidence that was to be presented to the jury. As noted by the trial court, our review of the Peoples opening statement shows that it was "fairly even keeled" and not overly dramatic. Indeed, any reasonable juror could not but conclude that the event was a tragedy for Ashley.
We conclude that the statements were not misconduct. Moreover, appellants counsel repeatedly referred to the event as a "horrible tragedy," in his closing argument, undermining appellants argument on appeal that the Peoples use of the word was designed to incite passion and prejudice.
VII. Whether the Trial Court Abused Its Discretion in Denying Appellants Motion for a Mistrial
Appellant urges that the trial court abused its discretion in denying his motion for a mistrial based on the Peoples cross-examination of appellant regarding prior acts of domestic violence.
"A trial court should grant a mistrial only when a partys chances of receiving a fair trial have been irreparably damaged, and we use the deferential abuse of discretion standard to review a trial court ruling denying a mistrial." (People v. Bolden (2002) 29 Cal.4th 515, 555.)
It is improper for a prosecutor to pose a question to a defendant that suggests the existence of facts harmful to the defendant without a good faith belief that he or she will obtain an affirmative answer or that facts can be proved, if their existence is denied. (People v. Mooc (2001) 26 Cal.4th 1216, 1234.) Good faith can be shown by the factual specificity of the questions indicating they have been gleaned from the record. (People v. Mickle (1991) 54 Cal.3d 140, 191.) Where the defendant admits some acts, denies others, and gives equivocal answers, the prosecutor properly can ask leading questions of the defendant, a hostile witness, and leave the jury to deem his nonaffirmative responses incredible. (Ibid.)
Appellant claims the People committed misconduct when it asked appellant whether, a day before the shooting, he told Dora that if he could not put his hands on her, no one else could, and that since she would not go to lunch with him, he would sneak up on her and make her beg. Appellant also challenges the question posed by the People whether, a few days before the shooting, appellant told Dora that since she was dating someone else, "I know what to do. I will take care of you and me."
The record shows that appellant was evasive, hostile, and claimed not to recall or denied making the statements, thereby opening the door to leading questions. Moreover, after the first sequence of questions, the People later asked appellant if he said to Dora, "Didnt you tell her that if you couldnt put your hands on her nobody would?" Appellant replied in the affirmative to that question as well as to the next question "And that was a week or so before you killed her?" Additionally, the trial court found that the People had asked the questions in good faith based on the police reports of statements made by appellant.
We conclude that the trial court did not abuse its discretion in denying appellants motion for a mistrial.
VIII. Whether the People Committed Misconduct by Misstating the Law Regarding Provocation and Heat of Passion
Appellant next complains that the prosecutor engaged in misconduct when she erroneously told the jury that it could only find heat of passion for the purposes of voluntary manslaughter if the provocation was such that "every" person would have been led "to kill" and to conduct themselves as appellant did in shooting Dora. We disagree.
Initially, we note that appellant did not preserve his claim of prosecutorial misconduct because he failed to object and seek an admonition that would have cured the injury below. (People v. Crew (2003) 31 Cal.4th 822, 839.) In any event, we conclude that the People did not misstate the law concerning adequate provocation and heat of passion for voluntary manslaughter.
Specifically, appellant takes issue with the Peoples statement that the provocation must be of a type that would lead "an ordinarily reasonable person in exactly the same circumstances and situation . . . to kill." Relying solely on People v. Najera (2006) 138 Cal.App.4th 212, 223 (Najera), appellant urges that the required provocation must be such as to cause a reasonable person to act "rashly," not "to kill." It is true that Najera and other cases state that for purposes of voluntary manslaughter, "Heat of passion arises when `at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment. [Citation.]" (People v. Barton (1995) 12 Cal.4th 186, 201.) However, it is this rash conduct that results in a killing. "The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim." (People v. Lee (1999) 20 Cal.4th 47, 59.) The provocation must be such as to adequately "arouse a reasonable person to make the kind of sudden and devastating attack that he participated in making." (People v. Waidla (2000) 22 Cal.4th 690, 740, fn. 17.) "An unlawful killing without adequate provocation is murder; but if the defendant killed under provocation so serious as to produce that response in a reasonable person, the crime will ordinarily be manslaughter. [Citations.]" (1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against the Person, § 213, pp. 823-824.) Therefore, the Peoples reference to the act of killing was not improper.
In any event, any error was harmless, because it is not reasonably probable that appellant would have received a more favorable outcome at trial had the People refrained from making the challenged statement. (People v. Watson, supra, 46 Cal.2d at p. 836.) The trial court instructed the jury with CALJIC No. 8.42, which provides, "The heat of passion which will reduce a homicide to manslaughter must be such a passion as naturally would be aroused in the mind of an ordinarily reasonable person in the same circumstances." It also stated that the passion "would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from passion rather than from judgment." Indeed, appellants trial counsel read the instruction to the jury during his argument. The jury was also instructed to follow the trial courts instructions on the law, rather than anything said by the attorneys, and we presume the jury followed the instructions of the trial court. (People v. Bradford (1997) 15 Cal.4th 1229, 1337.)
IX. Whether the Trial Court Abused Its Discretion in Denying Appellants Motion for Mistrial Based on Rachels Crying on the Witness Stand
Appellant contends that the trial court abused its discretion in denying his motion for a mistrial based on Rachels emotional outbursts on the stand while listening to a recording of Doras 911 call. We disagree.
As stated, we review the trial courts decision on a motion for mistrial for abuse of discretion. (People v. Bolden, supra, 29 Cal.4th at p. 555.)
The trial court does not abuse its discretion for denying a motion for mistrial based on an outburst that provides the jury with no significant information it did not already know or might not readily surmise. (People v. Lewis (2006) 39 Cal.4th 970, 1029 [trial court did not err in denying motion for mistrial based on witnesss comment that the defendant was a "dirty black dog" as she was leaving the witness stand, because the jury was aware that the witness scorned the defendant because she saw him gun down her daughter in church].)
Here, Rachel listened to the recording of Doras call to 911 in order to identify her voice. At the conclusion of the recording, the People asked Rachel if she recognized her daughters voice and she responded, "Yes, I did." Defense counsel moved for a mistrial on the basis that the witness broke down crying in front of the jurors. The People argued that Rachel was unobtrusive because she cried silently with a tissue held up to her eyes, and did not make an audible sob to the jury. The People also noted that the jurors were reading the transcript; Rachel did nothing to draw their attention to her; and that after the playing of the recording, Rachel answered "yes" in a clear voice. The trial court denied the motion for mistrial stating that while Rachel cried and may have made soft whimpering noises, she did not say anything. Also, the trial court noted that the jury seemed to be intent on reading the transcript.
We conclude that Rachels silent tears would not have provided the jury with significant information or information that it could not otherwise surmise—a reasonable jury must have known the death of her daughter would have caused Rachel anguish.
We conclude that the trial court did not abuse its discretion when it denied appellants request for mistrial.
X. Whether the Trial Court Deprived Appellant of an Adequate Record on Appeal When it Refused to Allow Him to Videotape Rachels Testimony
Appellant next contends that the trial court deprived him of an adequate record on appeal when it refused to allow him to videotape Rachels testimony. We disagree.
A criminal defendant is entitled to a record that is adequate to permit meaningful appellate review. (People v. Howard (1992) 1 Cal.4th 1132, 1165.) It is the defendants burden to show that the deficiencies in the record were prejudicial. (Ibid.)
Here, the trial court allowed both counsel to make a record of their observations regarding the playing of the videotape. The trial court then made its own detailed and complete factual record as to Rachels conduct during the playing of the record. As noted in Part IX, the trial court stated that Rachel did not say anything during the playing of the recording. She silently wept and made some soft whimpers while holding a tissue to her eyes. The trial court also noted that the jurors were looking at the transcript during the playing of the recording. The trial court disagreed with defense counsels characterization of the atmosphere as a "zoo." Our review of the reporters transcript shows that Rachel made no outburst or comment during the playing of the recording. Rather, Rachel simply responded "yes, I did" to the question by the People whether she recognized her daughters voice on the 911 recording. We conclude that the record was adequate for our review and that appellant was not prejudiced by the lack of a videotape of Rachel.
XI. Whether the Trial Court Had a Duty to Admonish the Jury Regarding Rachels Crying
Appellant next contends that the trial court erred in failing to instruct and admonish the jury to disregard Rachels expressions and emotions and to limit its deliberations to the facts presented through the evidence. Again, we disagree.
In general, the trial court does not have a duty to specifically instruct the jury not to be persuaded by feelings of passion or prejudice against the defendant since it is presumed that jurors are fair and intelligent persons, and need no special instruction on obvious basic principles of just conduct. (People v. Jacobs (1989) 210 Cal.App.3d 1135, 1141.) Indeed, appellant here did not request such an admonition, and has waived his claim on appeal. (Ibid.)
In any event, Rachels display of emotion did not affect appellants right to a fair trial. In denying the motion for mistrial the trial court stated, "And based upon what I saw and I heard, I have every confidence that this jury is not going to be overly swayed by anything that this witness did in terms of any appeal to emotion." Furthermore, appellant did not suffer prejudice because the trial court did instruct the jury with CALJIC No. 1.00 wherein they were told not to be influenced by pity for or prejudice against the defendant; and that it must not be influenced by sentiment, conjecture, sympathy, passion, or prejudice. It is presumed that the jury followed the instructions of the trial court. (People v. Bradford, supra, 15 Cal.4th at p. 1337.)
XII. Whether Cumulative Error Denied Appellant His Right to a Fair Trial
We disagree with appellants contention that cumulative errors denied him his due process right to a fair trial.
Where the claims of error are defective, the defendant has presented nothing to cumulate. (People v. Staten (2000) 24 Cal.4th 434, 464.) Here, appellants claims of errors have failed, and he cannot prevail on his argument that the cumulative effect of errors made during trial deprived him of his right to a fair trial.
XIII. Whether There Was Substantial Evidence to Support Appellants Conviction for Felony Child Endangerment
Appellant contends that there was insufficient evidence of probability of great bodily injury to Ashley to support the conviction in count 5. We disagree.
Felony child endangerment is criminalized under section 273a, subd. (a), which provides: "Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished . . . ." (People v. Wilson (2006) 138 Cal.App.4th 1197, 1204 ["likely to produce great bodily injury" means there is a substantial danger that the conduct will cause great bodily harm].)
Here, the record shows that Ashley was sitting in the front passenger seat of a car when appellant smashed the drivers side window with his handgun and shot Dora, who was seated in the drivers seat. Ashley was sitting next to Dora and was in the direct line of fire. After the shooting, officers recovered a bullet from inside the vehicle. Broken glass was also found on the car seats. We conclude that appellants act of shooting Dora while Ashley was sitting in a confined space next to Dora, unquestionably constituted conduct likely to produce great bodily harm or death.
We find that sufficient evidence supports appellants conviction for felony child endangerment and reject appellants request to reduce his felony offense to misdemeanor child endangerment. (§ 273a, subd. (b).)
XIV. Whether the Trial Court Erred in Imposing and Staying the Firearm Enhancement
Appellant next contends that the trial court erred in imposing and staying the firearm enhancement under section 12022.53, subdivisions (b), (c), and (d). In People v. Bracamonte (2003) 106 Cal.App.4th 704 (Bracamonte ), Division Four of this district discussed the conflict between section 12022.53, subdivisions (f) and (h). Subdivision (f) states that only one enhancement may be imposed under section 12022.53, but subdivision (h) prohibits striking any enhancement imposed under section 12022.53. Harmonizing the two sections, the Bracamonte court held that each section 12022.53 enhancement should be imposed with a stay of execution for all but the enhancement with the greatest term of imprisonment. (Bracamonte, at p. 713.) Division Seven of this district followed the reasoning of Bracamonte in People v. Carrasco (2006) 137 Cal.App.4th 1050, 1061-1062, while the Third Appellate District disagreed with Bracamonte in a recently published opinion, People v. Gonzalez (2006) 146 Cal.App.4th 327.
Section 12022.53, subdivision (f) provides: "Only one additional term of imprisonment under this section shall be imposed per person for each crime. If more than one enhancement per person is found true under this section, the court shall impose upon that person the enhancement that provides the longest term of imprisonment. An enhancement involving a firearm specified in Section 12021.5, 12022, 12022.3, 12022.4, 12022.5, or 12022.55 shall not be imposed on a person in addition to an enhancement imposed pursuant to this section. An enhancement for great bodily injury as defined in Section 12022.7, 12022.8, or 12022.9 shall not be imposed on a person in addition to an enhancement imposed pursuant to subdivision (d)." On the other hand, subdivision (h) of section 12022.53 provides: "Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section."
In his opening brief, appellant referred to a previously published version of People v. Gonzalez, which appellants counsel noted at oral argument, is not citable because rehearing was granted on September 22, 2006. (Cal. Rules of Court, rules 8.1105, 8.1115, 8.1125.)
We agree with the holding of Bracamonte and conclude that the trial court correctly imposed the applicable enhancement for each firearm discharge and use allegation found true under section 12022.53, and then stayed the execution of all such enhancements except the one providing for the longest prison term.
DISPOSITION
The judgment is affirmed.
We concur:
BOREN, P. J.
ASHMANN-GERST, J.