P. v. Larios

Filed 6/25/07 P. v. Larios CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, Arthur H. Jean, Jr., Judge. Affirmed.

Mark D. Greenberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell and Erika D. Jackson, Deputy Attorneys General, for Plaintiff and Respondent.

____________________

INTRODUCTION

Defendant Nancy Jean Larios appeals from a judgment of conviction entered after a jury found her guilty of first degree murder (Pen. Code,  187, subd. (a)), committed for financial gain (id.,  190.2, subd. (a)(1)), in the commission of which she personally used a deadly or dangerous weapon (id.,  12022, subd. (b)(1)). She was sentenced to state prison for life without the possibility of parole plus one year. On appeal, she claims ineffective assistance of counsel and prosecutorial misconduct. We affirm.

FACTS

Defendant and her husband, Luis Larios (Luis), were married in 1975. They had two adult childrena daughter, Carmen, and a son, Miguel.

Defendant and Luis lived in Tucson for many years. Both taught school there. Luis left Tucson in the 1990s because of an incident at the school where he taught. He obtained a teaching job in Los Angeles and bought a house in San Pedro. Defendant and Luis legally separated in 1997, but they reconciled soon after that. In 1999, defendant moved to San Pedro and lived with Luis.

Defendant was concerned about money Luis had inherited but not told her about. The money was in Spain, where he was from. Eventually, the money problem was resolved. In 2001, she and Luis used $95,000 from his inheritance to purchase a duplex in San Pedro. Luis also created a family trust, naming defendant as the trustee.

In 2003, defendant and Luis sold the San Pedro house and moved into the front unit of the duplex. John Soward (Soward) became their financial advisor. He had eight to ten counseling sessions with defendant; Luis attended only three of those sessions. Luis had $335,000 in life insurance, and he and defendant had $100,000 in annuities, with defendant named as the beneficiary. In addition, defendant and Luis owned the duplex and a condominium in Chicago, in which their daughter lived. Even with these assets, Soward was concerned about their financial condition due to expenditures they made on their children. He sold them a $425,000 ten-year term life insurance policy on Luiss life. Defendant paid the premium and obtained the policy on August 12, 2004.

Emily White (White) and her husband, who taught with Luis, socialized with defendant and Luis. White never saw defendant and Luis display affection toward one another. White had a conversation with defendant about why defendant moved to San Pedro from Tucson. Defendant said she had to decide whether she hated her job or her husband more. Defendant said she moved to San Pedro, [s]o it must be that I hated my job more.

White and her husband went out to dinner and a museum exhibit with defendant and Luis on Friday, August 20, 2004. Luis was grumpy and irritated, complaining about the service, the parking situation, and defendants comments and behavior.

At about 9:30 p.m. on Sunday, August 22, Michael Aranda, who lived next door to defendant and Luis, was awakened by the sound of a man and a woman arguing. He went back to sleep but was awakened again by the sound of something falling or being thrown around. He went outside to look around but saw nothing.

Shortly before 1:00 a.m. on August 23, defendant telephoned 911 to report that Luis had died. She said he had fallen down the stairs while carrying a pair of scissors, which had gone into his eye. She said, Its been awhile, I called for a priest and nobody came, so Im here all alone . . . [a]nd I just need somebody here.

When the sheriffs department and paramedics arrived, they found Luiss body on its back at the foot of the stairs. Defendant told the sheriffs deputies that she and Luis had been drinking and watching television. She fell asleep. She awoke to the sound of a thud. She saw Luis lying on his side on the staircase, his head near the bottom of the stairs and his feet pointed toward the top. There was an overturned chair at the bottom of the stairs. Defendant turned Luis over and saw the scissors in his eye, with his fingers wrapped around the scissors. Luis was covered with vomit and urine. Defendant telephoned St. Mary Star Church to request a priest. Not wanting the priest to see Luis in the condition he was in, she pulled his body down the stairs, removed the scissors from his eye, cleaned his body and changed his clothes. When no one arrived from the church, she called 911.

Los Angeles County Sheriffs Deputy Jody Little took defendant to the sheriffs station. At one point, defendant volunteered, I know that I am a suspect because my husband and I were alone. If I wanted my husband dead, I wouldnt have used scissors, but I didnt want him dead anyway.

Later that morning, Sergeant Kent Wegener and Detective Margarita Barron interviewed defendant. Defendant gave them background on her marriage and what she and Luis had done on Sunday. She explained that she had her own bedroom upstairs while Luis had a separate bedroom downstairs, because he snored loudly. On Sunday evening, she brought Luiss dinner upstairs so they could watch a DVD in her bedroom while he ate. He was sitting on a chair while she lay on her bed.

Detective Barron asked what happened next. At that point, defendant became upset. She said she did not want to say more without an attorney because she felt like it was assumed that she had killed her husband. She was not being treated like someone who was innocent and had lost her husband after 29 years of marriage. The officers attempted to convince her that she was not under arrest, was free to leave and was there as a witness, not a suspect.

Eventually, defendant agreed to continue. She said that Luis had a balance problem and there was no handrail on the staircase because they were remodeling. Then she said she had something to reveal that was somewhat embarrassing. Luis had grown a beard and was always playing with it, and she was always telling him to stop. While they were watching the DVD, he was playing with his beard. She told him that if he did not stop, she was going to tie his hands down. When he did not stop, she loosely tied his arms to the chair with some bicycle straps. He then dozed off with his feet propped up on the bed, and tied his feet together with the straps to play a joke on him. Eventually, he woke up and they had some brandy. When he was drinking, he did not play with his beard, so she suggested that he drink water to break the habit of playing with his beard. Luis continued to drink brandy; defendant did not know how much he had, but it was a lot.

Defendant fell asleep on the bed. When she woke up, Luis and the chair were no longer in the bedroom. When she went to the hallway, she saw Luis lying on the stairs, holding the scissors, which were lodged in his eye. The chair was at the bottom of the stairs.

Defendant could tell that Luis was dead. Unable to look at him as he was, she pulled the scissors out of his eye and put them in a bag. Then she telephoned Mary Star of the Sea Church, because Luis came from a conservative Catholic family, who would want to know if she had called a priest. Additionally, she thought a priest could tell her what to do. She spoke to someone at the church who told her that if no one called back in ten minutes, she should call again. When no one called back, she called again, requesting a priest.

While she waited for a priest, defendant cleaned Luiss body and the area around him. She pulled his body down the stairs, bandaged his eye and changed his clothes. She threw the dirty clothes in the trash, then she changed her own clothes, which had become covered with blood. She also cleaned the chair. After awhile, when a priest did not come, she telephoned 911. After defendant finished relating this explanation of what had happened, the interview ended.

Sheriffs deputies at the scene found Luiss clothing in the kitchen trash can. It was covered with blood, there was vomit on the shirt and the shorts were wet. Defendants nightgown also was in the trash, stained with Luiss blood. There were bloody towels and rags in the kitchen and blood on the kitchen faucet.

Deputies found four bicycle straps in a cabinet by the side door. They found a bottle of brandy and two brandy glasses in defendants bedroom.

The deputies found bloodstains on the wall along the staircase.[1] They also found a bloodstain on the wall in defendants bedroom. Under the dresser in the bedroom was a plastic bag containing bloody scissors. Also in the bag was a small piece of gray duct tape. There were several rolls of duct tape in a bin in the kitchen. One of the rolls had two pieces of duct tape rewrapped on it. These pieces had Luiss blood on them.

Adhesive residue was found on Luiss shirt, on the chair, and on one of the bicycle straps. There also was adhesive residue on Luiss head, face, left elbow, right arm, right hip, right knee, right ankle and left leg. While the adhesive residue found on the chair was not consistent with the adhesive on the duct tape roll, the difference could have been caused by exposure to cleanser. The adhesive residue on the shirt and some of the residue on the body were consistent with the adhesive on the duct tape roll.[2]

An autopsy revealed that Luis died from blunt force trauma to the back of the head and the injury from the scissors in his eye, which penetrated his brain, causing hemorrhaging. These injuries did not kill him immediately, however. He could have lived up to an hour after being injured, losing consciousness 15 to 20 minutes after being injured.

Additionally, there were superficial holes on the top of Luiss head. These were consistent with a glancing blow by a pair of scissors. There were additional superficial wounds on the body, some of which could have been caused by duct tape being removed. Toxicology reports showed a blood alcohol level of .10.

After defendants August 23 interview, defendant called Whites husband, who picked her up at the sheriffs station and took her to his house. When White asked defendant what happened to Luis, defendant said his death was suspicious and she could not talk about it. She then told White how she found Luis and added, Luis was dead when I got to him, at least I hope he was. White and her husband then took defendant to see an attorney. Then they returned to Whites house, where defendant spent the night.

The following day, White took defendant to see a doctor. Later that day, White and her husband took defendant to Oceanside, where she met her nephew, with whom she was going to stay. Two days later, defendant was back in the Los Angeles area. She told White that her life was over, and she was going to die in jail.

Sergeant Wegner contacted defendants daughter, Carmen, to have her come in for an interview. On September 2, defendant accompanied Carmen to the sheriffs station. After Carmens interview, Sergeant Wegner asked defendant if she would talk to him and Detective Barron. She agreed to do so.

Sergeant Wegner began by telling defendant that she was not under arrest and was free to leave at any time. He then asked her why the bicycle straps were found downstairs. She said that maybe she or Luis had taken them downstairs. When Sergeant Wegner continued to question her about the bicycle straps, she said that the only reason she had mentioned them was because they had left marks on Luis, and she did not want the sheriffs to think that she had strapped him down.

Sergeant Wegner then asked defendant if she taped Luis down. She asked what he was talking about. At that point, Sergeant Wegner and Detective Barron urged defendant to get this off your chest and youre gonna feel a lot better. Defendant insisted she knew nothing about the duct tape on Luiss clothes and body but pointed out that she and Luis had been remodeling the duplex, so there was duct tape around.

Sergeant Wegner suggested that defendant had taped Luis to the chair and killed him. She denied it. Sergeant Wegner asked defendant whether she would be willing to take a lie detector test to prove that she did not kill Luis. Defendant refused, insisting that it was a trap to make her look guilty.

Sergeant Wegner and Detective Barron continued questioning defendant about Luiss death, suggesting that she taped Luis to the chair and killed him. Defendant continued to deny doing so. She insisted that she had no motive to kill him: they loved one another, he treated her well, and he worked and gave her all his money. She believed that Luis had been drunk and fallen down the stairs while carrying the chair out of her bedroom to place it where it belonged. She eventually asked if she could leave. Sergeant Wegner told her she could, and she left.

In November 2004, defendant moved to the Chicago condominium. She listed the San Pedro duplex for sale, and it sold in December. On December 8, defendant was arrested for Luiss murder.

DISCUSSION

Ineffective Assistance of Counsel

Defendant claims ineffective assistance of counsel in two respects. First, she claims her counsel should have brought a motion to suppress her September 2 statement to the sheriffs on the ground they failed to give her a Miranda[3]warning before questioning her. Second, she claims her counsel should have objected to, or moved to redact, that portion of her September 2 statement that referred to a polygraph test.

When defendant raises a claim of ineffectiveness of counsel, she must establish that either: (1) As a result of counsels performance, the prosecutions case was not subjected to meaningful adversarial testing, in which case there is a presumption that the result is unreliable and prejudice need not be affirmatively shown [citations]; or (2) counsels performance fell below an objective standard of reasonableness under prevailing professional norms, and there is a reasonable probability that, but for counsels unprofessional errors and/or omissions, the trial would have resulted in a more favorable outcome. (In re Cudjo (1999) 20 Cal.4th 673, 687.)

A. Failure toMake a Suppression Motion

Defendant contends that by the time Sergeant Wegner and Detective Barron interviewed defendant on September 2, 2004, they had probable cause to arrest her. They conducted the interview in an accusatory fashion. It thus constituted a custodial interrogation, for which Miranda warnings were required. Her counsels failure to move to suppress her statement given at that interview therefore deprived her of the effective assistance of counsel.

A custodial interrogation takes place in any situation in which a person has been taken into custody or otherwise deprived of his [or her] freedom of action in any significant way. [Citations.] . . . The test for whether an individual is in custody is objective . . . : [was] there a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. [Citations.] (People v. Ochoa (1998) 19 Cal.4th 353, 401.)

In making the determination as to whether a defendant was in custody, the court examines the circumstances surrounding the interrogation and determines whether, under those circumstances, a reasonable person would have felt that he or she was not at liberty to terminate the interrogation and leave. (People v. Ochoa, supra, 19 Cal.4th at pp. 401-402.) Circumstances to consider include the location of the interrogation, the presence of indicia of arrest, whether the investigation has focused on the defendant as a suspect, and the length and form of the questioning. (People v. Morris (1991) 53 Cal.3d 152, 197, disapproved on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) The court may consider not only express questioning but also other words or actions designed to elicit an incriminating response. (People v. Mickey (1991) 54 Cal.3d 612, 648.) The court must examine the totality of the circumstances; [n]o one factor is dispositive. (Morris, supra, at p. 197; People v. Boyer (1989) 48 Cal.3d 247, 272, disapproved on other grounds in Stansbury, supra, at p. 830, fn. 1.)

Here, defendants interview took place at the sheriffs station, at about 10:30 a.m. Sergeant Wegner prefaced it by stating that defendant voluntarily came in with her daughter, Carmen, who we spoke with, uh, just previous to her and, uh, [defendant] underunderstands that shes, uh, shes here, and shes free to go anytime she wants to. Shes not under arrest. Uh, she has her own car here and were gonna talk to her regarding, uh, the death of her husband.

The interview proceeded. Sergeant Wegner and Detective Barron questioned defendant regarding discrepancies between the evidence and her previous statement. They encouraged her to confess. At one point, Sergeant Wegner told defendant that what happened was something that you cannot cover up. Its not something thats gonna go away. Its something that you have to take a deep breath and deal with.

Sergeant Wegner and Detective Barron suggested that defendant take a lie detector test to prove that she did not kill Luis. Defendant refused and asked if they could stop talking about the lie detector test. The sheriffs then continued questioning her about what had occurred.

Sergeant Wegner eventually told defendant that the truth eventually would come out, and her opportunity to tell the truth if there are mitigating factors into what happened is right now. I know its aits a terrible thing that happened but nothing can change what happened and the truth and about your involvement in it, needs to be said cause you cant live with it. You know it and I know it. He suggested that what happened might have occurred in the heat of passion or anger. Defendant responded, No passion, no anger and the just all Iokay, can I please leave? Sergeant Wegner told her she could and noted that the time was 11:30 a.m.

That defendant was questioned at the sheriffs station as a suspect does not establish a custodial interrogation. (People v. Morris, supra, 53 Cal.3d at p. 197; People v. Boyer, supra, 48 Cal.3d at p. 272.) Similarly, that she was there voluntarily and told that she was not under arrest and was free to leave at any time does not establish that the interrogation was not custodial. (Green v. Superior Court (1985) 40 Cal.3d 126, 131-135; People v. Aguilera (1996) 51 Cal.App.4th 1151, 1162-1165.)

The crucial factor here is that defendant herself felt free to leave at any time. During the interrogation, she was not threatened with arrest or told that she could not leave until she told the truth or her statements were verified. (See, e.g., People v. Aguilera, supra, 51 Cal.App.4th at pp. 1162-1163.) After only an hour of questioning, she asked to leave and was given permission to do so. The balance of the circumstances thus weighs in favor of a finding that she was not subject to a custodial interrogation, requiring Miranda warnings. (People v. Ochoa, supra, 19 Cal.4th at pp. 402-403.)

Inasmuch as the evidence supports the conclusion that Miranda warnings were not required prior to the September 2 interview, it is not reasonably probable that a suppression motion would have been successful. Therefore, defendant was not deprived of the effective assistance of counsel by her attorneys failure to make such a motion. (In re Cudjo, supra, 20 Cal.4th at p. 687; cf. People v. Coddington (2000) 23 Cal.4th 529, 577, disapproved on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)

B. Failure to Move to Exclude References to a Polygraph Test

As previously stated, during the September 2 interview, Sergeant Wegner and Detective Barron suggested that defendant take a lie detector test to prove she had not killed Luis. Defendant refused. She told them that if she took it and passed, that would not necessarily be accepted as proof of her innocence, but if she refused to take it, she would be viewed as guilty. She told the officers that their request that she take the lie detector test was a trap to make her look guilty.

As the People acknowledge, evidence of the request that defendant take a lie detector test and defendants refusal was inadmissible. (Evid. Code,  351.1, subd. (a).) Her trial counsel therefore should have moved to redact the transcript of the September 2 interview to exclude the references to a lie detector test. The question before us, however, is whether counsels failure to do so was prejudicial. (In re Cudjo, supra, 20 Cal.4th at p. 687.)

In proving prejudice, [i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. . . . The defendant must show that there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citations.] Specifically, . . . the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt. . . . [Citation.] (Peoplev.Ledesma (1987) 43 Cal.3d 171, 217-218.)

In light of the wealth of circumstantial evidence against defendant and the brevity of the reference to a lie detector test, it is not reasonably probable that the jury would have had a reasonable doubt as to defendants guilt had the transcript of the September 2 interview been redacted to exclude reference to a lie detector test. (Cf. People v. Cox (2003) 30 Cal.4th 916, 952-953.) She therefore was not deprived of the effective assistance of counsel by the failure to move to exclude the reference to a lie detector test. (Peoplev.Ledesma, supra, 43 Cal.3d at pp. 217-218.)

Prosecutorial Misconduct

Defendant claims portions of the prosecutors argument constituted misconduct of several types: misstatement of the law (People v. Gray (2005) 37 Cal.4th 168, 217), appeals to passion and prejudice of the jurors (People v. Mayfield (1997) 14 Cal.4th 668, 803), and reference to defendants failure to testify at trial (People v. Cornwall (2005) 37 Cal.4th 50, 90; People v. Lewis (2001) 25 Cal.4th 610, 670). She contends the misconduct was so pervasive as to violate her due process right to a fair trial. (People v. Cook (2006) 39 Cal.4th 566, 606.) She also claims ineffective assistance of counsel in the failure to object to the misconduct and request an admonition.

Near the beginning of his argument, the prosecutor stated, There are three basic issues that I am going to bring to your attention. First of all, I have to prove beyond a reasonable doubt the charges in this case. Thats my job. Thats what I intend to do in closing argument. So I am first going to approach the evidence from a perspective of doing that.

Secondly, I am going to look at the evidence in this perspective that the evidence itself, not the defendants statement, but the evidence itself is contrary to the issue of accident. We look at the evidence. It doesnt show accident. It shows intentional killing. I will point that out to you.

Thirdly, I am going to talk about the defendants statement, those two statements and put them in context. What I am going to say to you is that this defendant is not believable, is not credible. And she will spin everything she can in her life for you in any possible way that she can to get away with this. She wont answer a direct question to save her life. To save her life, she wont do it.

And when you ask her about exactly where did you find the body, how were the scissors, this is your beloved husband dead, could you tell us where he was exactly on the stairs, in her statements to the police, she cant do it. And you want to know why she cant do it? Because he wasnt there on the stairs the way she said it. Thats why she cant do it and wont do it. And shes worried about the rest of the evidence. Shes not believable.

Now you look at her during this trial. She sits like that, like that, looking at you the whole time. Look [a]t her. She sits there and looks at you the whole time. And you say to yourself, you know what she wants to pull off, I could never do. I could never do this. Look at me. I could never do.

This is a person who left her husband on the ground for four hours without calling the paramedics. Look at her. If you didnt know that, would you believe she could do that? Look at her. She pulled a scissors out of his head. If you didnt know that, do you believe she could do that? She did it. Because she is covering up for herself. Thats who you have there, thats who you have there. Believe it.

In defendants view, the prosecutors argument was an improper plea to the jurors to judge the evidence in light of [defendant]s non-testimonial demeanor, which is not evidence at all, let alone relevant evidence. [Citations.] In addition, this misstatement of law contained the suggestion that the prim appearance of this middle-aged Catholic school French teacher was a front for murderous greed. Although it might be legitimate to advance an argument that the evidence showed [defendant] to have committed murder for financial gain, to argue that her supposedly hypocritical appearance proved it was to appeal to the base and prurient cynicism in many of us.

Defendant adds that certain of the prosecutors statements, references to defendants credibility, defendants spin on the evidence, the reference to, And when you ask her, were at least skirting the edge of a reference to [defendant]s not having actually testified at trial.

As defendant states, a defendants nontestimonial conduct in the courtroom does not fall within the definition of relevant evidence, and it cannot be properly considered by the jury as evidence of defendants demeanor since demeanor evidence is only relevant as it bears on the credibility of a witness. (People v. Garcia (1984) 160 Cal.App.3d 82, 91.) Here, however, [t]he prosecutors remark[s] did not urge the jury to draw any adverse inference from defendants courtroom behavior. On the contrary, it advised the jury, in effect, to ignore defendants courtroom demeanor and to determine [her] guilt or innocence on the basis of the evidence. The comment[s were] not improper. (People v. Price (1991) 1 Cal.4th 324, 454 [prosecutor told the jury it would be spending a lot of time in defendants presence while he plays his Gee willikers, golly shucks, role].)

Additionally, the prosecutor did not suggest that defendants prim appearance was hypocritical and a front for murderous greed. Rather, he suggested that the jury should not be fooled by defendants innocent-looking appearance, when the evidence showed she was guilty. As previously stated, this was not improper. (People v. Price, supra, 1 Cal.4th at p. 454.)

The prosecutors comments about defendants credibility, and references to when you ask her, in context were clearly directed at her statements to the sheriffs in the two interviews. The comments must be viewed in context to determine whether the jury would have understood them in the manner claimed by defendant. (People v. Dennis (1998) 17 Cal.4th 468, 522.) It is not reasonably likely that the jury would have understood the challenged comments to refer to defendants failure to testify at trial. (People v. Ayala (2000) 24 Cal.4th 243, 288.)

The next challenged comments occurred after the prosecutor discussed the financial aspects of the case, how defendant would have obtained more money after Luiss death than she would have if she had divorced him after their previous separation: You know, I was thinking about the theory for this case, and I was thinking about focus. And what happens in relationships to people and their lives. They are separated for nine years. You know that now. You wouldnt know that from her statement, would you? You wouldnt know that. Why doesnt she say that to you? Because to disclose that may give her motive why she did this to the police . . . .

Again, defendant claims that the prosecutors repeated references to you, meaning the jury, constituted impermissible comment on her failure to testify. Again, however, in context it is clear that the prosecutor is referring to defendants statements to police in her interviews. After listing the items defendant did not disclose to police, the prosecutor added: She doesnt want to tell you that. She never says that. In two and a half hours of a statement . . . it never says that. She is not being truthful with you in her statement. She is spinning everything she can. (Italics added.)

Defendant also asserts that the prosecutor committed misconduct in addressing her directly. (Mitchell v. State (Okla.Crim.App. 2006) 136 P.3d 671, 710.) At one point, the prosecutor stated: Miss Larios, you should have just got a divorce. Thats what she should have done. Went through with it this time. (Italics added.) Then, toward the end of his argument, in discussing why defendant was not believable, the prosecutor stated: You know, in our nature as people, I like to look at people and we like to accept what they say and we like to treat certain subjects with respect. We do that in general. Doesnt matter if you are Catholic, Lutheran, doesnt matter.

One of them is religion in that context. And we treat it with respect. We do. And People say I wanted my husband to get his last rites. And our initial reaction to that is respect, absolute respect.

But then we kind of listen to what she had to say. And she says, well, I waited four and a half hours to a half hour, I dont know how long. I waited for a priest. He never came. So I finally decided to call 911. That lacks respect to the concept. Doesnt it?

Okay. Lets add another thing to that. She has a funeral on a boat with a captain, no priest, no service, no mass. Do you think she was waiting for a priest or cleaning up? Talk about respect. Miss Larios, dont use religion that way. Dont. Religion isnt there for you to hide behind, Miss Larios. (Italics added.)

Assuming arguendo that these comments directed at defendant constituted prosecutorial misconduct, reversal is not necessary unless defendant was prejudiced therebyif it is reasonably probable defendant would have obtained a more favorable result absent the misconduct. (Peoplev.Bolton (1979) 23 Cal.3d 208, 214; see also People v. Huggins (2006) 38 Cal.4th 175, 208.) It is not reasonably probable that these two appeals to defendant, in the context of a rather lengthy argument, swayed the jury to convict defendant.

Defendant also claims that [f]or the prosecutor to address the defendant directly in an emotional manner . . . communicates to the jurors the prosecutors extra-evidentiary belief that the defendant is guilty, which is misconduct. (People v. Kirkes (1952) 39 Cal.2d 719, 723.) We see nothing in the prosecutors comments to imply that his belief in defendants guilt was based on anything other than the evidence presented, which he discussed at length.

In summary, in the prosecutors argument we find no misstatement of the law, appeals to passion and prejudice of the jurors, and no reference to defendants failure to testify at trial. While the prosecutor vigorously argued his case, his argument was based on the evidence presented. As such, it was proper. Even if some of the [comments] crossed the line into prosecutorial misconduct, none were so outrageous or inherently prejudicial as to require reversal. (People v. San Nicholas (2004) 34 Cal.4th 614, 666.)[4]

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED

JACKSON, J.*

We concur:

VOGEL, Acting P. J.

ROTHSCHILD, J.

[1] They found no damage to the wall or staircase that might have been caused by the chair falling down the stairs.

[2] Sergeant Wegner and Detective Barron did not know about the duct tape when they interviewed defendant.

[3]Miranda v.Arizona (1966) 384 U.S. 436.

[4] For this reason, even if defendants claim of prosecutorial misconduct is waived by her counsels failure to object to the challenged comments and request an admonition (Peoplev.Stansbury (1993) 4 Cal.4th 1017, 1056, overruled on other grounds in Stansbury v. California (1994) 511 U.S. 318), defendant is not entitled to reversal based on ineffective assistance of counsel (In re Cudjo, supra, 20 Cal.4th at p. 687).

* Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.