Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside CountySuper.Ct.No. RIF130486, Gloria Connor Trask, Judge. Affirmed.
Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Christine Levingston Bergman, Deputy Attorney General, for Plaintiff and Respondent.
McKINSTER, J.
INTRODUCTION
A jury found defendant guilty of two counts of assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).) The trial court found true the allegations that defendant suffered a prior strike conviction (Pen. Code, §§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)), a prior serious felony conviction (Pen. Code, § 667, subd. (a)), and six prior convictions that resulted in prison terms (Pen. Code, § 667.5, subd. (b)). The trial court sentenced defendant to 20 years in state prison. Defendant contends that the jury’s findings should be reversed because (1) the district attorney made an improper comment regarding defendant’s decision not to testify at trial, and (2) the district attorney made an improper comment that called into question the integrity of defendant’s trial counsel. We affirm the judgment.
FACTS
The two assaults for which defendant was convicted were unrelated. The crimes took place on different days and involved different victims.
1. Count 1
On September 2, 2005, defendant was traveling on a commercial bus on Interstate 10 in Riverside County. For no apparent reason, defendant stabbed another passenger in his neck. People on the bus restrained defendant, who had a knife in his hand.
2. Count 2
On December 29, 2005, defendant was in custody at the Smith Correctional Facility in Banning when a melee erupted between inmates in the dayroom. An inmate, who had been cleaning the showers, entered the dayroom to observe the commotion. Defendant, for no apparent reason, struck him in the back of his head with a large push broom, causing lacerations.
DISCUSSION
Griffin v. California (1965) 380 U.S. 609.
Defendant contends that the district attorney made an improper comment regarding his decision not to testify. We disagree.
We begin by addressing the People’s assertion that defendant has waived his argument by failing to preserve it for appellate review.
“To preserve a claim of prosecutorial misconduct for appeal, a criminal defendant must make a timely objection, make known the basis of his objection, and ask the trial court to admonish the jury. [Citation.]” (People v. Brown (2003) 31 Cal.4th 518, 553.) “Failure to make a specific and timely objection and request that the jury be admonished forfeits the issue for appeal unless such an objection would have been futile. [Citation.]” (Ibid.) “[T]he failure to request that the jury be admonished does not forfeit the issue for appeal if . . . the trial court immediately overrules an objection to alleged misconduct such that the defendant has no opportunity to make such a request.” (People v. Cole (2004) 33 Cal.4th 1158, 1201.)
During closing arguments, the following discourse took place:
“[District attorney]: Now, I’m not shifting the burden here because I have to prove my case beyond a reasonable doubt. But you cannot speculate, oh, gee, there must have been somebody who saw something new. Well, why? That’s speculation. That would be you making up evidence. [¶] Now, the defendant does not have to testify. He has an absolute right to remain silent. But he has the power; if there are witnesses, he may call them.
“[Defendant’s trial counsel]: Your Honor, objection
“[District attorney]: But you don’t
“[Defendant’s trial counsel]: —it’s shifting the burden.
“The Court: Overruled.”
We conclude defendant has not waived his argument. Defendant’s trial counsel made a timely objection. The reasoning for the objection was not precise; however, we are able to infer that defendant’s trial counsel was objecting to what she most likely believed was the district attorney’s attempt to capitalize on defendant’s decision not to testify. Defendant’s trial counsel did not request an admonition; however, the objection was quick and the overruling immediate, which causes us to conclude that defendant’s trial counsel had no opportunity to make such a request.
We now address the merits of defendant’s contention. “Griffin [v. California], supra, 380 U.S. 609, protects a defendant’s right not to have the prosecutor comment on his failure to testify. A prosecutor is permitted, however, to comment on a defendant’s failure to introduce material evidence or call logical witnesses. [Citation.]” (People v. Brown, supra, 31 Cal.4th at p. 554.) In this case, the district attorney’s comments directed the jury’s attention to the lack of evidence presented by defendant. The district attorney’s comments did not highlight defendant’s failure to testify, but defendant’s decision not to call witnesses that had been on the bus or in the dayroom. Consequently, we conclude there was no error, because the prosecutor was only noting defendant’s failure to introduce material evidence or call logical witnesses.
2. Prosecutorial Misconduct
Defendant contends the district attorney erred by improperly calling into question the integrity of defendant’s trial counsel. We disagree.
We begin by addressing the People’s assertion that defendant has waived this argument for appellate review.
To avoid waiver, a defendant alleging prosecutorial misconduct is required to make a timely objection, state his reason for the objection, and request the jury be admonished. (People v. Brown, supra,31 Cal.4th at p. 553.) The admonishment requirement is subject to an exception for futility. (People v. Cole, supra, 33 Cal.4th at p. 1201.)
During closing arguments, the following discourse took place:
“[District attorney]: Is it reasonable to believe some mystery man came in and stabbed [the victim]? No, that’s silly. Come on. You know, sometimes when you’re a defense attorney you just don’t have much to work with.
“[Defendant’s trial counsel]: Objection, that’s improper.
“The Court: Overruled.”
Defendant’s trial counsel made a timely objection. The reason for the objection was stated in general terms; however, we are able to infer that defendant’s trial counsel was alleging prosecutorial misconduct by claiming the district attorney made an “improper” statement. Defendant’s trial counsel’s objection was immediately overruled, which did not provide her with an opportunity to request an admonishment. Accordingly, we conclude defendant has not waived this argument.
We now reach the merits of defendant’s claim. “‘A prosecutor commits misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel.’ [Citation.] ‘If there is a reasonable likelihood that the jury would understand the prosecutor’s statements as an assertion that defense counsel sought to deceive the jury, misconduct would be established.’ [Citation.] ‘“An attack on the defendant’s attorney can be seriously prejudicial as an attack on the defendant himself, and, in view of the accepted doctrines of legal ethics and decorum [citation], it is never excusable.”’ [Citation.]” (People v. Turner (2004) 34 Cal.4th 406, 429-430.) However, closing arguments are “traditionally vigorous and therefore accorded wide latitude.” (People v. Fierro (1991) 1 Cal.4th 173, 212.)
The prosecutor’s comment did not suggest that defendant’s trial counsel fabricated a defense. Rather, it suggested that defendant was likely guilty because he did not call any witnesses from the bus or dayroom to refute the testimony of the People’s witnesses, which falls within the bounds of acceptable argument. Furthermore, we note that later in the closing argument, the prosecution stated that defendant’s trial counsel “has to actually make up facts.” No objection was raised as to that comment. We conclude that the prosecution was not attacking defendant’s trial counsel during closing argument; rather, he was presenting the issue of whether or not “it [is] a reasonable interpretation to believe someone else did these crimes.”
Consequently, we conclude there was no error.
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ, P. J., KING, J.