P. v. Gomez
Filed 3/11/13 P. v. Gomez CA2/3
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
PATRICIA ARAUJO GOMEZ,
Defendant and Appellant.
B236372
(Los Angeles
County
Super. Ct.
No. TA114046)
APPEAL from a judgment of the Superior Court of
County, Gary E. Daigh, Judge.
Affirmed.
Kathy Moreno, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette,
Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General,
Steven D. Matthews and David F. Glassman, Deputy Attorneys General, for
Plaintiff and Respondent.
INTRODUCTION
A jury
found defendant and appellant Patricia Araujo Gomez (Patricia) guilty of the
improperly refused to instruct the jury on imperfect and perfect self-defense
and that evidence relevant to those defenses was improperly excluded. She also argues that the prosecutor committed
prejudicial misconduct during closing
arguments. We reject these arguments
and affirm the judgment.
FACTUAL AND PROCEDURAL
BACKGROUND
I. Factual background.
A. Prosecution
case.
In August
2010, defendant, Patricia, was living at home with her parents, brothers Ismael
(known as Junior) and Jose, and her sister, Anna.
was a lesbian may have contributed to tension between her and Junior, who,
according to his brother, had anger management issues. Their fights sometimes became physical, and
Junior hit Patricia. They threatened to
kill each other.
On the
morning of August 27, 2010,
Patricia and Anna argued when Anna told Patricia to take her dog outside. The fight escalated, and they hit each
other. Anna went to Junior’s room, where
she called their mother to say she didn’t want Patricia in the house anymore.
Overhearing
Anna’s conversation with their mother, Junior got mad and asked Anna if
Patricia had hit her. When Anna
confirmed that Patricia had hit her, Junior went to the kitchen and punched
Patricia with a closed fist on her jaw.
According to Jose who was watching, Junior hit Patricia more than once,
and Patricia was also swinging, defending herself. Jose separated them. Junior and Patricia continued to swear at
each other, and Patricia pushed Junior and said, more than once, that she would
kill him. Telling her to “ ‘go for it,’
†Junior slid a knife across the floor, repeating, “ ‘do it.’ â€
told her to calm down, she put it on the table.
After Junior and Patricia argued for about five minutes, Junior went
back to his room.
Patricia
called her girlfriend, Michelle Martinez.
Patricia also called 911 and said, “I have an emergency just ‘cause my
brother hit me and I’m a diabetic.’ â€
Wanting Patricia to move out, Anna
and Junior put Patricia’s clothes into a basket. When Patricia saw her clothes being removed,
she and Junior argued again, with Patricia demanding, “ ‘Who do you think
you are to be kicking me out [of] the house?’ †Anna told Patricia that their mother told her
to leave.
Patricia
again told Junior she would kill him.
They continued to argue, with Patricia saying she would “ ‘fucking
kill’ †him. Pulling a knife from a
kitchen cabinet or drawer and repeating she was going “ ‘to fucking kill’ â€
him, Patricia walked to Junior, who was unarmed, and stabbed him in the chest.
down, she said she’d kill him and Anna too.
Jose picked up a chair, and Patricia dropped the knife. Just before Patricia stabbed Junior, Anna
called 911.
From the
time Junior first confronted Patricia to the time she stabbed him, about 15
minutes passed. Junior died from a
single stab wound to the chest. A
coroner’s examination revealed no injuries or bruises to Junior’s face or upper
torso, although his right hand knuckles were bruised.
B. Defense
case.
Martinez
was Patricia’s girlfriend at the time of the incident. About one month before Patricia stabbed
Junior, Martinez called the house and spoke to Junior, who told her to come and
get Patricia, they didn’t want her there, he would kill both Patricia and
Martinez, and his friends would rape and “ ‘fuck [her] up . . .
in the streets.’ †Around
9:00 a.m. on August 27, the day Patricia stabbed Junior, Patricia called
Martinez, who could hear Junior in the background threatening to have Patricia
fucked up in the streets.
At her
booking, Patricia had bruising to her right bicep and under her left eye, and
she complained of pain.
II. Procedural background.
On August
26, 2011, a jury found Patricia guilty of second degree murder (Pen. Code,
§ 187)
title="">[5]
and found true a dangerous weapon-use enhancement allegation (§ 12022,
subd. (b)(1)). The trial court, on
September 26, 2011, sentenced Patricia to 15 years to life plus one year for
the weapon enhancement, for a total of 16 years to life.
DISCUSSION
I. Exclusion of evidence.
Patricia contends that the trial
court violated her federal due process
rights to a fair trial and to present a defense under the Fifth and Sixth
Amendments by excluding evidence of (a) Junior’s prior threats and acts of
aggression, (b) Patricia’s text message to Martinez that she had been hit,
and (c) that Junior was a gang member.
We find that Patricia’s constitutional rights were not violated by any
exclusion of this evidence.
The abuse of discretion standard of
review applies to a trial court’s rulings on the admissibility of
evidence. (People v. Rowland (1992) 4 Cal.4th 238, 264.) Under this standard, a trial court’s ruling
will not be disturbed, and reversal of the judgment is not required, unless the
trial court exercised its discretion in an arbitrary, capricious, or patently
absurd manner that resulted in a manifest miscarriage of justice. (People
v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
Even erroneous evidentiary rulings usually do not violate a defendant’s
due process rights. (
52-53 [such due process claims, usually citing Chambers v. Mississippi (1973) 410 U.S. 284, are often overbroad,
as Chambers was a fact intensive,
specific case]; People v. Falsetta
(1999) 21 Cal.4th 903, 913; People v.
Partida (2005) 37 Cal.4th 428, 433-438; People
v. Tafoya (2007) 42 Cal.4th 147, 165, fn. 5.)
A. Prior
threats and acts of aggression.
Patricia first argues that the
trial court improperly excluded evidence that Junior had threatened her in the
past. Because evidence of his past
threats was admitted, we reject Patricia’s argument.
The decisive factor in determining
what crime—first or second degree murder or voluntary manslaughter—has been
committed is the defendant’s state of mind at the time of the homicide. (People
v. Danielly (1949) 33 Cal.2d 362, 385.)
Where self-defense or voluntary manslaughter are at issue, prior threats
can be relevant to a defendant’s state of mind.
components, an actual subjective belief and objective reasonableness. (People
v. Humphrey (1996) 13 Cal.4th 1073, 1093.)
“[T]he objective component is not measured by an abstract standard of
reasonableness but one based on the defendant’s perception of imminent harm or
death. Because his state of mind is a
critical issue, he may explain his actions in light of his knowledge concerning
the victim. [Citations.] Antecedent threats as well as the victim’s
reputation for violence, prior ‘assaults, and other circumstances [are]
relevant to interpreting the attacker’s behavior.’ †(Id. at
p. 1094; see also People v. Minifie (1996)
13 Cal.4th 1055 [trial court improperly excluded threats made to defendant by
third parties close to the victim; such threats were relevant to self-defense,
but their exclusion was harmless error].)
Assuming that Junior’s prior
threats were relevant and admissible to at least the voluntary manslaughter theory, the trial
court did not issue an order excluding all such threats. At a pretrial hearing, defense counsel
referred to Martinez’s statement in “the People’s discovery†that on the day of
the incident she overheard Junior threatening to get his
“ ‘homeboys’ †to beat and rape Patricia. The court asked about “other statementsâ€
“concerning things [Patricia] previously told [Martinez] about the family
situation and that kind of thing†and their admissibility.
Defense counsel said the issue
concerned, first, Patricia’s statements to her girlfriend, Martinez, about her
family, and, second, Patricia’s statements to Martinez about Junior’s threats
to Patricia. Counsel argued that the
statements went to Patricia’s state of mind and were admissible under Evidence
Code section 1103. The trial court ruled
that Martinez could testify about what she overheard on her phone call with
Patricia on the morning of the incident.
The trial court put “on hold†prior threats Junior made to Martinez,
because the court wanted to see what the testimony would be. It does not appear that this issue was
directly discussed again.
Defense counsel, however, also
alluded to threats of violence Junior made three months before the
incident. The trial court excluded those
threats: “[T]hings that happened three
months, no sooner than three months before, really aren’t relevant as to her
state of mind unless she makes them relevant and things like that. You can’t get character evidence in like
that, through the statements of the defendant.
[¶] So you can’t ask Miss
Martinez, ‘Did the defendant tell you these things?’ That’s just inappropriate. It’s hearsay and not admissible.â€
Thereafter, at trial, Martinez
testified that one month before Patricia stabbed Junior, he threatened to kill
both Patricia and Martinez. On the
morning Patricia stabbed Junior, Martinez, who was on the phone with Patricia,
heard Junior in the background threatening to have Patricia “fucked up†in the
streets.
Therefore,
the record shows that prior threats were introduced at trial. The only prior threat the trial court
expressly excluded was one that occurred three months before Patricia stabbed
Junior. It is unclear, however, what was
the exact threat made. Patricia also
does not make clear what other specific threats
were excluded. Given that the precise
nature of any excluded threats is not before us, we cannot see how Patricia was
prejudiced by their exclusion. This is
especially true since other evidence was admitted that Patricia and Junior had
a tumultuous relationship and that he had threatened her prior to the
incident. This other evidence included
Junior’s threat to have Patricia and her girlfriend “fucked up†in the streets
and that Junior had hit Patricia in the past.
Martinez was allowed to testify not only about threats Junior made the
day of the incident but also about past threats.
Moreover, the trial court said it
would consider prior threats Junior made to Martinez, but it does not appear
that defense counsel obtained further clarification or a ruling.
made without fully knowing what the trial evidence would show, will not
preserve the issue for appeal if the appellant could have, but did not, renew
the objection or offer of proof and press for a final ruling in the changed
context of the trial evidence itself.†(
133.) Where a trial court reserves its
decision, the party desiring to introduce the evidence must renew the motion or
remind the court that a ruling is desired.
(Ibid.)
We therefore reject Patricia’s
contention her federal due process rights were violated by the exclusion of
Junior’s prior threats of violence. Even
if the trial court abused its discretion by excluding the threat Junior made
three months before, there was no order excluding all evidence of Junior’s
prior threats. To the contrary, evidence
of his prior threats was admitted, and it was clear that Junior and Patricia
had a rocky, sometimes violent, relationship.
B. The
text message.
On the morning Junior was stabbed,
Patricia sent a text message at 11:59 a.m. to Martinez stating she had been
hit. Two minutes later, Anna called 911
to report that her brother had been stabbed.
The trial court excluded the text message, finding it did not go to the
nonhearsay purpose of Patricia’s state of mind.
Under Evidence Code section 1250,
an out-of-court statement to prove the declarant’s state of mind is not made
inadmissible by the hearsay rule when the declarant’s state of mind is in issue
or if the evidence is offered to explain the declarant’s acts or conduct.
decedent’s state of mind can be relevant to a defendant’s motive, if there is
independent, admissible evidence that the defendant knew of the decedent’s
state of mind before the crime and may have been motivated by it];
Cal.App.4th 863, 884 [prerequisite to this exception is the declarant’s mental
state or conduct must be placed in issue].)
Here, by virtue of at least the
sudden quarrel/heat of passion theory, Patricia’s mental state was at
issue. Her text message could explain
why she stabbed Junior minutes after sending it; namely, he hit her and, in a
fit of passion, she stabbed him.
Patricia’s out-of-court statement that she had been hit showed her
mental state and her conduct in conformity with it. (See
People Riccardi, supra, 54 Cal.4th at pp. 818-819 [the declarant’s state of
mind must have a relevant connection to some conduct in conformity with it];
statements were admissible under state of mind exception because her mental
state was placed in issue].)
name="_ftnref9" title="">[9]
Even if it was error to exclude the
text message, Patricia suffered no prejudice from the error. There was ample other evidence of Patricia’s
state of mind. There was no dispute, for
example, that Junior hit Patricia before she stabbed him. Both Anna and Jose testified that Junior hit
Patricia. Patricia called 911 to report
that her brother had hit her. Patricia
also had bruising under her eye and on her arm.
The text message was merely additional evidence that Junior hit Patricia
before she stabbed him.
C.
The defense asked to admit evidence
Junior was a gang member, including evidence “ ‘V’ †and
“ ‘L’ †were tattooed on his eyelids, based on the argument that the
evidence went to Patricia’s state of mind, namely, she was afraid of him
because of his gang affiliation. Noting
it was not necessarily true that people are more afraid of threats from a gang
member where, as here, the gang-member victim was the defendant’s brother, the
trial court excluded the evidence as irrelevant and under Evidence Code section
352, stating it would open “the door to all sorts of things as to whether he’s
in a gang or not, what the tattoos mean.
But really what the most important thing is whether that has effect on
the defendant at all. [¶] And I think it’s clearly more prejudicial
than probative. I think it would take
way too much time, and we don’t even know if it affected her.â€
Only relevant evidence is
admissible. (Evid. Code, § 350.) “ ‘Relevant evidence’ means evidence,
including evidence relevant to the credibility of a witness or hearsay declarant,
having any tendency in reason to prove or disprove any disputed fact that is of
consequence to the determination of the action.†(Evid. Code, § 210; see also
642; People v. Mills (2010) 48
Cal.4th 158, 193; People v. Williams
(2008) 43 Cal.4th 584, 633-634.)
Relevant evidence, however, may be excluded, in the trial court’s
discretion, if its probative value is substantially outweighed by the
probability that its admission will (a) necessitate undue consumption of
time or (b) create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury.
(Evid. Code, § 352; Lee, at p.
643.) A trial court has broad discretion
in determining whether evidence is relevant and whether Evidence Code section
352 precludes its admission. (
v. Brown (2003) 31 Cal.4th 518, 547.)
As we have said, the abuse of discretion standard applies to a trial
court’s rulings on the admissibility of evidence, including those turning on
the relevance or probative value of the evidence in question. (Lee,
at p. 643.)
“Gang evidence is admissible if it
is logically relevant to some material issue in the case other than character
evidence, is not more prejudicial than probative, and is not cumulative.†(People
v. Avitia (2005) 127 Cal.App.4th 185, 192.)
Even where relevant, gang evidence should be carefully scrutinized
before it is admitted because it may have a highly inflammatory impact on the
jury.
pp. 192-193.) We cannot conclude, under
Evidence Code section 352, that the trial court abused its discretion by
excluding evidence Junior was a gang member.
Other than the tattoos on Junior’s eyelids (the “ ‘V’ †and
“ ‘L’ â€), it is not clear what, if any, other evidence there was that
he belonged to a gang. Rather, according
to defense counsel, Junior’s sister, Anna, merely said he hung around the Vatos
Locos gang, but he was not “super active.â€
Although Junior told Patricia he would have his “homeboys†“fuck†her up
in the streets, there was no evidence “homeboys†referred to gang members;
hence, the trial court ordered Martinez not to use the word, “homeboys.â€
Therefore, other than Junior’s
tattoos, there was no clear evidence Junior associated with a gang or that any
such association affected Patricia’s state of mind. Also, the trial court observed that while the
general public might be afraid of gang members, it was unclear what impact, if
any, Junior’s alleged gang membership had on Patricia, who was his sister and
lived with him. There simply was no
evidence of a connection between Junior’s gang membership and the crime. (See, e.g., People v. Cash (2002) 28 Cal.4th 703, 726-727 [evidence of the
victim’s prior use of force was irrelevant to defendant’s state of mind because
there was no evidence the defendant knew of those violent acts].) Given the familial connection and the lack of
evidence that Patricia was specifically afraid of Junior because he was a gang
member, we cannot say the court abused its discretion by finding that the
effect, if any, of Junior’s gang membership on Patricia was speculative and
prejudicial when weighed against its low probative value.
II. Self-defense.
Patricia next contends that the
trial court’s failure to instruct the jury on perfect and imperfect
self-defense deprived her of rights guaranteed under the United States
Constitution, thereby requiring reversal of her conviction for Junior’s
murder. We disagree.
A trial court must instruct the
jury, sua sponte, on the general principles of law that are closely and openly
connected to the facts and that are necessary for the jury’s understanding of
the case. (People v. Moye (2009) 47 Cal.4th 537, 548; People v. Abilez (2007) 41 Cal.4th 472, 517; People v. Breverman (1998) 19 Cal.4th 142, 154.) Instructions on a lesser included offense
must be given when there is substantial evidence from which the jury could
conclude the defendant is guilty of the lesser offense, but not the charged
offense. (People v. Manriquez (2005) 37 Cal.4th 547, 584;
596.) Substantial evidence is evidence
that a reasonable jury could find persuasive.
(Manriquez, at p. 584.) In deciding whether there is substantial
evidence of a lesser included offense, we do not evaluate the credibility of
the witnesses, a task for the trier of fact.
(Id. at p. 585.) We
independently review whether the trial court erred by failing to instruct on a
lesser included offense. (
The trial court instructed on first
and second degree murder and on voluntary manslaughter under a heat of passion
theory. The trial court did not instruct
on either voluntary manslaughter under an imperfect self-defense theory or on
perfect self-defense. Voluntary
manslaughter, a lesser included offense of murder, is the intentional but
nonmalicious killing of a human being.
(§ 192, subd. (a); People v. Moye,
supra, 47 Cal.4th at p. 549;
37 Cal.4th at p. 583.) Under
imperfect self-defense, a killing may be reduced from murder to voluntary
manslaughter where the defendant kills another human being under the actual but
unreasonable belief that the killer was in imminent danger of death or great
bodily injury. (In re Christian S. (1994) 7 Cal.4th 768, 771, 773;
108-110; People v. Cruz (2008) 44
Cal.4th 636, 664.) Imperfect
self-defense differs from a “perfect†self-defense in that the latter requires
an actual and reasonable belief in
the need to defend one’s self. (
p. 1082.) For a “ ‘perfect
self-defense,’ †“the defendant must actually and reasonably believe in
the need to defend. . . . To constitute
‘perfect self-defense,’ i.e., to exonerate the person completely, the belief
must also be objectively reasonable.
[Citations.]
. . . ‘[T]he circumstances must be sufficient to excite
the fears of a reasonable person . . . .’
[Citations.]†(
For both perfect and imperfect
self-defense, the fear must be of imminent harm. (People
v. Humphrey, supra, 13 Cal.4th at p. 1082.)
“ ‘Fear of future harm—no matter how great the fear and no matter
how great the likelihood of the harm—will not suffice. The defendant’s fear must be of
injury.’ [Citation.]†(Ibid.;
see also People v. Butler (2009) 46
Cal.4th 847, 868.) The defendant must
fear a harm that must be “ ‘ “ ‘instantly dealt with.’ †’ †(People
v. Rogers (2006) 39 Cal.4th 826, 883, italics omitted.) “The danger must be imminent; [the] mere fear
that it will become imminent is not enough.â€
(People v. Lopez (2011) 199
Cal.App.4th 1297, 1305; see also In re
Christian S., supra, 7 Cal.4th at p. 783.)
All the relevant circumstances in which the defendant found herself may
be considered in determining whether the accused perceived an imminent threat
of death or great bodily injury. (
There was insufficient evidence
Patricia feared imminent harm. True,
Junior hit Patricia and they violently argued.
Junior taunted Patricia to “do it†and pushed a knife across the floor
to her. But there is no evidence he
wielded the knife against her in a threatening manner at any time. Jose separated them, and Junior left the
room. Then, when Patricia saw Junior
throwing her clothes into a basket, they argued again, with Patricia repeating
her threats to kill Junior. Junior did
not, however, hit Patricia again, move towards her or verbally threaten to kill
her. He was also unarmed. Although Junior made no threatening gesture,
Patricia went to the kitchen drawer, opened it, and removed a knife. She walked to Junior and swung at him twice
with the knife, stabbing him the second time in the chest. Although this evidence could show a heat of
passion, it does not show an “imminent†threat to Patricia requiring her to
stab her unarmed brother.
Nor do we think that the excluded
evidence, discussed above in part I of the Discussion, supplied the
missing “imminence.†There was no
evidence what effect Junior’s gang membership had on Patricia. Also, that he was a gang member was
irrelevant to the “imminence†of the threat.
Junior had, in the past, threatened to have his “homeboys†“fuckâ€
Patricia up. But this was a threat of
future harm, not of imminent harm. It
therefore would not have helped Patricia prove that element had Martinez been
allowed to use the word, “homeboys.â€
Finally, there was ample evidence that Junior and Patricia had a
turbulent relationship and that he had hit her in the past and threatened
her. Additional evidence of such past
threats would not have demonstrated an imminent threat to Patricia.
III. Prosecutorial misconduct.
Patricia contends that the
prosecutor committed prejudicial misconduct by
vouching for her witnesses, appealing to jurors’ passions and
prejudices, and misstating the law. We
find that no prejudicial misconduct occurred.
A.
“The applicable federal and state
standards regarding prosecutorial misconduct are well established. ‘ “A prosecutor’s . . . intemperate behavior
violates the federal Constitution when it comprises a pattern of conduct ‘so
egregious that it infects the trial with such unfairness as to make the
conviction a denial of due process.’ †’ [Citations.]
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 court or the jury.’ †’ [Citation.]â€
(People v. Samayoa (1997) 15
Cal.4th 795, 841.) Misconduct that
infringes upon a defendant’s constitutional rights mandates reversal of the
conviction unless the reviewing court determines beyond a reasonable doubt that
it did not affect the jury’s verdict. (
18.) A violation of state law only is
cause for reversal when it is reasonably probable that a result more favorable
to the defendant would have occurred had the district attorney refrained from
the untoward comment. (
Comments by prosecutors are
generally treated by juries as words of an advocate in an attempt to
persuade. (See People v. Clair (1992) 2 Cal.4th 629, 663, fn. 8.) The prosecution is given wide latitude during
closing argument to make fair comment on the evidence, including reasonable
inferences or deductions to be drawn from it.
(People v. Collins (2010) 49
Cal.4th 175, 213.) When a claim of
misconduct focuses on comments the prosecutor made before the jury, the
question is whether there is a reasonable likelihood the jury construed or
applied any of the complained-of remarks in an objectionable fashion. (People
v. Samayoa, supra, 15 Cal.4th at
p. 841.) We must place the challenged
statement in context and view the argument as a whole. (People
v. Cole (2004) 33 Cal.4th 1158, 1203.)
“To preserve a misconduct claim for
review on appeal, a defendant must make a timely objection and, unless an
admonition would not have cured the harm, ask the trial court to admonish the
jury to disregard the prosecutor’s improper remarks or conduct.†(People
v. Martinez (2010) 47 Cal.4th 911, 955-956.)
B.
Based on comments the prosecutor
made about Jose’s and Anna’s honesty, Patricia contends that the prosecutor
improperly vouched for their credibility.
We disagree.
A prosecutor may not express a
personal opinion or belief in the guilt of the accused, or vouch for the
credibility of a witness, when there is a substantial danger that the jury will
view the comments as based on information other than evidence adduced at trial,
or when the comments will induce the jury to trust the prosecutor’s judgment
rather than its own view of the evidence.
(United States v. Young (1985)
470 U.S. 1, 18-19; People v. Lopez
(2008) 42 Cal.4th 960, 971; People v.
Mayfield (1997) 14 Cal.4th 668, 781-782; People v. Martinez, supra, 47 Cal.4th at p. 958.) Although it is improper to bolster a witness
by referring to facts outside the record (People
v. Huggins (2006) 38 Cal.4th 175, 206-207; People v. Williams (1997) 16 Cal.4th 153, 257), a prosecutor is
free to give an opinion on the state of the evidence and has wide latitude to
comment on its quality and the credibility of witnesses (People v. Padilla (1995) 11 Cal.4th 891, 945-946, disapproved on
other grounds in People v. Hill
(1998) 17 Cal.4th 800, 823, fn. 1; Martinez,
at p. 958 [prosecutor may comment on the credibility of witnesses
based on facts contained in the record and on any reasonable inferences that
can be drawn from them]; Mayfield, at
p. 782 [expressing a belief in the defendant’s guilt is not improper if the
prosecutor makes clear the belief is based on the evidence]). It is not misconduct for a prosecutor “to ask
the jury to believe the prosecution’s version of events as drawn from the
evidence.†(Huggins, at p. 207.) Using the first person or the phrases
“ ‘I believe,’ †“ ‘I think,’ †or “we know†do not
constitute improper vouching or opinion where the prosecutor’s argument is
directed to the state of the evidence and the inferences that may be drawn from
it. (See People v. Cummings (1993) 4 Cal.4th 1233, 1303, fn. 48;
1018-1019, disapproved on other grounds in People
v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; U.S. v. Bentley (8th Cir. 2009) 561 F.3d 803, 812.)
The prosecutor here did talk about
Anna’s and Jose’s honesty, but this did not amount to improper vouching. She said:
“Both Anna and Jose testified to these same facts. Both of them agree that there were many
minutes between when Junior initially confronted the defendant about decking
his little sister. And when the
defendant ultimately took it upon herself to cross that kitchen, open that
drawer, select the right tool for the task, she had in mind and carried out her
vicious plan. [¶] They both also agree that between the time
Junior initially confronted the defendant and the time she stabbed him, he
never physically approached her again.
He never verbally threatened her in that altercation. And they both agree that she was unarmed with
his hand at his side at the time that steel was cutting through his flesh. [¶]
they’re telling the truth because they didn’t sugarcoat anything. They were honest about her part in screaming
and calling names. They were honest that
there was cussing and cursing going on.
They were honest that there had been arguments in the past between
Junior and the defendant. [¶] They’re not hiding anything. At one point[,] Anna even said, when I asked
her about something, I said, ‘How did you feel about that?’ [¶]
And she said, ‘She’s my sister.’
[¶] They weren’t here to take
sides. They were here to tell the truth,
and they did. And that truth is
corroborated by all of the other evidence that has been presented to you in
this case.†(Italics added.)
When the prosecutor said “we†know
Anna and Jose told the truth, she was basing the argument on evidence. (See People
v. Cummings, supra, 4 Cal.4th at p. 1303, fn. 48; People v. Frye, supra, 18 Cal.4th at pp. 1018-1019.) Both Anna and Jose, for example, said that
Junior and Patricia were cursing and had argued in the past; hence, Anna and
Jose were being truthful because they weren’t trying to “sugarcoat†what either
Patricia or Junior did. The prosecutor
did not imply she had extraneous information not presented to the jury. Because the argument was based on the
evidence, it did not amount to improper vouching for a witness.
C.
prejudices.
Next,
Patricia contends that the prosecutor improperly appealed to the jurors’
passions and prejudices when she said:
“Clearly, she was acting with reasoning and judgment, not under some
crazy ‘I can’t control myself’ situation that was just brought on by a sudden
quarrel. This was not a sudden
quarrel. [¶] And it’s not acceptable to murder her brother
just cause he hit her. That’s what the
defense needs you to believe. That’s
what the defense needs you to find. But
it’s absolutely unsupported by the facts and the law in this case. [¶]
The defendant murdered her brother in front of her siblings in a willful
and a deliberate and a premeditated way.
[¶] For you to find otherwise
means that you’re agreeing to live in a community, in a society where you could
kill ‘just because’––and where anybody can set up their own standard of what
they want to do at any given time.
[¶] No one wants to live in that
kind of world. In fact, the laws of our
state are designed to prevent us from descending to doing that, exactly kind of
savagery.â€
It is
misconduct for a prosecutor to make comments that are calculated to arouse
passion or prejudice. (
p. 803.) “ ‘It is, of course, improper
to make arguments to the jury that give it the impression that “emotion may
reign over reason,†and to present “irrelevant information or inflammatory
rhetoric that diverts the jury’s attention from its proper role, or invites an
irrational, purely subjective response.â€
[Citation.]’ †(
742.) It is, for example, misconduct to
ask the jury to put itself in the victim’s position and imagine what the victim
experienced. (People v. Vance (2010) 188 Cal.App.4th 1182, 1192.) It is also misconduct to ask the jury to
consider the crime’s impact on the victim’s family. (Id. at
p. 1193.)
But it is
not misconduct for a prosecutor to comment on the “ ‘serious and increasing
menace of criminal conduct and the necessity of a strong sense of duty on the
part of jurors.’ †(People v. Adanandus (2007) 157 Cal.App.4th 496, 513; cf.
1984) 741 F.2d 1434, 1441-1442 [a prosecutor may not suggest that the defendant
be convicted to protect community values, preserve civic order or to deter
future lawbreaking in an attempt to excite prejudice or passion].) A prosecutor’s comments, for example, that
the jury could restore “law and order†and “justice†with a guilty verdict was
not misconduct. (Adanandus, at pp. 511-513.)
Such comments were an exhortation to the jury to take its duty
seriously. (Id. at p. 513; see also People
v. Wash (1993) 6 Cal.4th 215, 261-262 [no prejudicial misconduct occurred
when prosecutor urged the jury to “ ‘make a statement,’ †to “do ‘the
right thing,’ †and to restore confidence in the criminal justice
system].)
The comments the prosecutor here
made similarly were an appeal to the jury to take its duty seriously, to
maintain law and order. The prosecutor
argued there was no evidence Patricia acted under a sudden heat of passion and
then suggested that the jurors would not want to live in a world where the
facts gave rise merely to voluntary manslaughter rather than premeditated
murder. This argument related the facts
of the case to the law. It was a permissible
exhortation to the jury to follow the law.
D. Misstating
the law.
When arguing before a jury, counsel
has “broad discretion in discussing the legal and factual merits of a case,â€
but “it is improper to misstate the law.â€
(People v. Bell (1989) 49 Cal.3d
502, 538.) Patricia argues that the
prosecutor, in closing argument, misstated the law as to the provocation
sufficient to negate malice.
The provocation that incites the
defendant to homicidal conduct must be caused by the victim or be conduct reasonably
believed by the defendant to have been engaged in by the victim. (People
v. Manriquez, supra, 37 Cal.4th at p. 583.)
It may be physical or verbal, but it must be sufficiently provocative to
cause an ordinary person of average disposition to act rashly or without due
deliberation and reflection. (
Cal.4th at p. 59.)
Patricia argues that the prosecutor
misstated this law when she argued to the jury:
·
“The defendant basically needs you to believe
that anyone would have done what she did in that situation. And that’s preposterous†and “it’s offensive
to think that this was how anyone would have acted in the situation. [¶]
First off, she had a myriad of other options. She could have left, could have left the
house.â€
·
“You may not be comfortable with it [Junior
hitting Patricia]. It may not be what
you would have done, but it does not rise to that kind of provocation where
anyone would have taken that––taken that punch to the face and said, ‘That’s
it. You’re gonna get it’ and done
it. [¶]
That’s not how everybody of an
average disposition would react to that type of situation.†(Italics added.)
·
“He didn’t escalate. He didn’t step it up. He didn’t make it up so that any average
person would have been forced into a position of ‘What else could I do?’ [¶] Of
course, and she’s gonna snap and have to drive a knife into his chest? It’s preposterous. It’s preposterous. [¶] No
person of average disposition would act this way. And––and that is the standard, the average
disposition.â€
Patricia analogizes these comments
to ones the prosecutor made in People v.
Najera (2006) 138 Cal.App.4th 212, 223.
Najera found that the
prosecutor misstated the law on heat of passion when he told the jury that
whether the defendant acted under a heat of passion was based on the
defendant’s conduct rather than on the circumstances in which the defendant was
placed. (Ibid.) The prosecutor, for
example, repeatedly asked what a reasonable person would do in similar
circumstances. Najera noted that the focus of a heat of passion theory is on
provocation—whether the surrounding circumstances were sufficient to cause a
reasonable person to act rashly. (
The reasonableness of the killer’s response is not relevant. (Ibid.)
The prosecutor’s comments here are
different. The prosecutor focused on
provocation by stating that Junior hitting Patricia “does not [give] rise to
that kind of provocation†and that he didn’t “escalate†or “step it up.†The comments that Patricia did not have an
“average disposition†could reasonably be interpreted to mean that the
provocation was insufficient to cause her to act rashly. The prosecutor’s comments, even if inartful,
did not remove the focus from provocation and instead place it on the
reasonableness of Patricia’s response.
To the extent the prosecutor’s
comments could be interpreted as a misstatement of the law, the jury was
instructed on, among others, voluntary manslaughter, heat of passion and that
the jury must follow the instructions even if an attorney’s comments conflict
with them. (CALJIC No. 570.) Also, placed in the whole context of the
argument, we cannot find that these comments prejudiced Patricia to the extent
that a more favorable outcome would have resulted. (Cf. People
v. Hill (1998) 17 Cal.4th 800, 819-839, 845 [prosecutor’s wide-ranging and
“pervasive campaign to mislead the jury on key legal points,†combined with
other errors, required reversal of the conviction].)
E.
Patricia’s
trial counsel did not object to any of these instances of alleged
rendered ineffective assistance. Because
we have concluded either that no misconduct occurred or that prejudice did not
result from any prosecutorial misconduct, Patricia’s ineffective assistance of
counsel claim similarly fails. We add
that a trial attorney’s decision whether to object or to seek a jury admonition
is a strategic one, and the failure to do either seldom establishes
constitutionally ineffective assistance of counsel. (See, e.g., People v. Castaneda (2011) 51 Cal.4th 1292, 1335;
233.) The “decision facing counsel in
the midst of trial over whether to object to comments made by the prosecutor in
closing argument is a highly tactical one,†and we should be reluctant to
second-guess defense counsel. (
at p. 942, overruled on other grounds by People
v. Hill, supra, 17 Cal.4th at p. 823, fn. 1.) “Moreover, ‘[i]f the record on appeal fails
to show why counsel acted or failed to act in the instance asserted to be
ineffective, unless counsel was asked for an explanation and failed to provide
one, or unless there simply could be no satisfactory explanation, the claim
must be rejected on appeal.’ †(
38 Cal.4th at p. 206.)
There are several reasons why
defense counsel may not have objected to the prosecutor’s closing
statements: they were not objectionable,
she did not want to draw attention to isolated comments, and she believed that
the jury instructions would be adequate to address any misstatement. We therefore cannot conclude that defense counsel
rendered ineffective assistance.
IV. Cumulative error.
To the extent Patricia contends
that the cumulative effect of the purported errors undermined the trial’s
fundamental fairness and requires reversal, as we have “ ‘either rejected on
the merits defendant’s claims of error or have found any assumed errors to be
nonprejudicial,’ †we reach the same conclusion with respect to the cumulative
effect of any purported errors. (
1235-1236; People v. Butler (2009) 46
Cal.4th 847, 885.)
DISPOSITION
The judgment is affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH,
J.
We concur:
KLEIN,
P. J.
CROSKEY,
J.
some family members share a last name, we use first names.
had only been living at the house one week.
There had been times in the past when Patricia had to leave the house.
