P. v. Lopez








Filed 8/15/11 P. v. Lopez CA6




NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. RAYMOND EDUARDO LOPEZ, Defendant and Appellant.

H034631 (Santa Clara County Super. Ct. No. CC783063)

Defendant Raymond Eduardo Lopez was convicted by jury trial of first degree murder (Pen. Code, §§ 187, 189), and the jury found true that he had personally used a deadly or dangerous weapon (Pen. Code, § 12022, subd. (b)(1)) in the commission of the murder. On appeal, he (1) challenges the sufficiency of the evidence of premeditation and deliberation, (2) claims that the court erred in responding to jury inquiries regarding premeditation and deliberation, (3) asserts that the prosecutor committed prejudicial misconduct, and (4) maintains that the trial court made numerous prejudicial instructional errors. Although we conclude that the trial court made two instructional errors, we conclude that defendant was not prejudiced by these errors individually or cumulatively. Therefore, we affirm the judgment.
I. Facts
In October 2007, Rosa Townes and Ryan Townes were married, but they had separated.[1] Rosa and Eric Diaz were friends, and they had been “get[ting] high together” on methamphetamine for a couple of months. They were not romantically involved. Ryan had met Diaz about three times and “didn’t like him.” The two men never had any arguments, but Rosa had told Diaz that Ryan did not like it that Rosa was associating with Diaz. Ryan knew that Rosa visited Diaz at his apartment, but Ryan did not know which apartment was Diaz’s apartment. Ryan had seen Diaz’s Ford Explorer, and Diaz believed that Ryan had slashed one of the tires on Diaz’s Explorer on the evening of October 2, 2007. On the afternoon of October 3, 2007, Rosa accused Ryan of having slashed Diaz’s tire. Ryan denied having done so. At about 10:00 p.m. that evening, Rosa told Ryan that she would not go home with him that night. Ryan was “hurt.” He called Rosa repeatedly after that, but she did not answer her phone.
At about 11:00 p.m. on October 3, 2007, Diaz picked Rosa up from the motel where she was staying and took her in his Explorer to his apartment building. They went into Diaz’s second-floor apartment and used methamphetamine. After midnight, Ryan telephoned Rosa and said he knew where she was and he was outside. Ryan said he wanted to “clear the air” with Diaz about the slashing of the tire on Diaz’s Explorer. Rosa and Ryan telephoned and texted back and forth, arguing. Rosa told Diaz that Ryan was outside the apartment building. Rosa had previously told Diaz that Ryan had beaten her a number of times, “nearly killing her sometimes.” Diaz wanted someone to pick up Rosa and take her home. He figured that Ryan would leave if Rosa left.
Diaz tried to call his cousin defendant on his cell phone.[2] Diaz also sent a text to defendant that read: “Cousin, I need help ASAP, no joke.” Rosa had met defendant several times at Diaz’s apartment. Eventually, Diaz reached defendant by telephone and sought his assistance. Defendant told Diaz to “relax” and “wait it out.” Diaz sent defendant additional texts and continued to telephone him. “I told him someone was out there and we needed to get out of there, that he might have a weapon, I’m not sure. I was scared, and my daughter was there, and I didn’t want anything to happen to me or my daughter or Rosa.” Diaz’s three-year-old daughter was in the apartment with Diaz and Rosa. Diaz told defendant that the man outside “could be dangerous” and that he was afraid that this person would “hurt” him. The reason Diaz thought Ryan might have a weapon was because he believed Ryan had slashed his tire.
A couple of Diaz’s phone calls to defendant’s cell phone were answered by Diaz’s other cousin Vincent Lopez.[3] Diaz told Vincent the same thing he had told defendant, and Vincent also told him to “relax” and “wait it out.” Vincent expressed concern that this “someone” might have a gun or a knife. Because by now Diaz could hear Ryan yelling outside and knocking on doors downstairs, he told either defendant or Vincent that “a dude was outside acting crazy.” Diaz told Vincent that the man outside had slashed the tire on his vehicle and was a “crazy motherfucker.” He asked Vincent to come and pick up Rosa. Diaz never described Ryan to either of his cousins, and neither of his cousins had ever met Ryan.
Meanwhile, Rosa texted Ryan that he “needed to leave” because Diaz had “called his cousin” and “I was scared for him.” Ryan responded that he “wasn’t going anywhere.” They continued to text back and forth for about an hour. She falsely told him she had called the police, but he did not leave. At some point, Rosa heard Ryan yelling outside for about 10 minutes. Shortly after 2:00 a.m., Ryan knocked repeatedly on the door of one of the downstairs apartments in the building. The resident was awakened, and she came to the door. Ryan asked “if Rhonda was there.” She told him “no one is here by that name.” Ryan said: “Thank you, I’m sorry to bother you.” He did not sound angry, and he was not speaking loudly.
Two hours after Diaz’s first text to defendant, defendant texted Diaz “we’re going to be on our way soon . . . .” Vincent also texted Diaz: “We are going to try and do something right now.” Diaz texted Rosa that his “cousins were on the[ir] way.” Rosa heard Ryan’s yelling stop. About 10 to 15 minutes later, Rosa heard Ryan loudly say “whoa,” followed by sounds of “a fight” outside. Rosa looked out the window and saw two males and a female “around” Ryan. The female was standing to the side, while one male was in front of Ryan and the other was behind him. “It looked like they were punching him.” Ryan was “[t]rying to fight back.” Rosa opened the apartment door and started screaming. She saw the two males and the female leaving the scene, and one of the males looked up at her. Rosa recognized him as defendant.
Rosa ran to Ryan, who said “baby, I got stabbed. They stabbed me.” Rosa ran back toward Diaz’s apartment to get her phone. On her way, she saw a knife lying on the ground next to the tire of Diaz’s Explorer. Rosa picked up the knife because she thought it would “help” to “get justice” for Ryan. She then retrieved her phone and returned to Ryan. Rosa dropped the knife after she returned to Ryan because she needed her hands free to call 911.[4] Diaz came downstairs and moved his Explorer before the police arrived because he did not want the police to see his Explorer near Ryan.
When the police arrived, Ryan was bloody and unresponsive. His body was lying on some bushes. A police officer attempted CPR, but Ryan did not respond. A closed knife was clipped to the inside of Ryan’s right front pants pocket. There was no blood on the knife. A large knife was found on the ground a few feet from Ryan’s body. There was no visible blood on this knife.
Diaz told the police that “it was [defendant and Vincent] there.” Defendant was arrested on the evening of October 4. Vincent, who is defendant’s uncle, was in the same car with defendant when the police stopped the car. When the police asked for his name, defendant provided his name and said “you’re here for me.”[5] Defendant had a bandaged wound on one hand. The bandage covered a cut on his thumb. He had no other injuries.
An autopsy determined that Ryan died from stab wounds to his head, neck, and torso. He had 20 “sharp force injuries,” which included both stab wounds and slash wounds. Stab wounds are deeper than slash wounds. Ryan had suffered a stab wound to the back of his neck, a deep stab wound to his upper right chest, which penetrated a large artery and a lung, 13 stab wounds to his back, and a stab wound to the back of his upper right arm. Half of the stab wounds to his back had penetrated the chest cavity and entered his lungs. Each of these stab wounds was potentially fatal. There were also multiple slash wounds on his face and head, and slash wounds to his right hand. Ryan was under the influence of methamphetamine at the time of his death. He was five feet, seven inches tall, and he weighed 193 pounds. Defendant was six feet, one inch tall and weighed 225 pounds.
Defendant spoke to the police 10 days later. He told them that he was at Diaz’s apartment building when Ryan was killed, but he did not see the killing. He heard the screams and came upon a man and a woman fleeing the scene, so he too ran. Defendant told the police that Diaz had told him that Ryan “had a gun.”[6]


II. Procedural Background
Defendant was charged with Ryan’s murder. The only defense witnesses at trial were defendant and an expert on the effects of methamphetamine on human behavior.
The defense expert testified that a person under the influence of methamphetamine had an increased “propensity for violence” and would be “highly unpredictable.” He also testified that “methamphetamine motivated or influenced violence . . . typically appears to be unprovoked.” “[T]hey may interpret [something] as offensive or threatening in some way . . . .” Such a person would be “primed for fighting.” However, he testified on cross-examination that such a person would also be “fearful” and “more prone to run away, depending on the circumstances.”
Defendant testified at trial and admitted that he had stabbed Ryan. He asserted that he had taken methamphetamine earlier that day. He testified that he received “urgent” messages over a couple of hours from Diaz, who sounded “scared.” Defendant was aware that Diaz, his daughter, and Rosa were in Diaz’s apartment. Rosa had told defendant previously that her husband had slashed a tire on Diaz’s vehicle. Defendant assumed that a knife would have been used to slash the tire. “If he had a knife to slash the tire, he’s not going to throw it away after he slashes the tire.” Diaz told defendant that Rosa’s husband was outside, and he needed someone to pick up Rosa. Defendant testified that Diaz also told him on the phone “he’s going to kill me, he’s right outside my door.” He also claimed that Diaz had said on the phone: “he’s crazy, he’s out there, he’s going to kill me.” Defendant claimed that he was spurred to action by a final text from Diaz, which he claimed was the text which read: “Cousin, I need help ASAP, no joke.” Defendant asserted that he was mainly concerned about the safety of Diaz’s daughter. He thought Ryan might have a weapon because “I don’t think you’re going to go to an apartment looking for your wife with no weapon . . . .”
When he decided to go to Diaz’s apartment building, defendant brought two knives with him. He brought these knives because “it seemed like the right thing to do at the time.” One of the knives was his own, and the other knife was someone else’s knife that he grabbed “on the way out the door” to go to Diaz’s apartment building. Defendant admitted that he frequently carried a knife, and that he did so so that “[i]f I had it and a situation occurred, I would probably use it if I had to.” The second knife he grabbed was a large, double bladed knife that was bigger than a dagger. A woman gave him a ride over to Diaz’s apartment building. Although defendant did not deny that other people were outside Diaz’s apartment building at the time of the stabbing, he refused to identify any of them.[7] Defendant denied that Vincent was with him that evening, and he denied that Diaz had spoken to Vincent on defendant’s cell phone that evening.
When defendant arrived at Diaz’s apartment building, he walked up to within a few feet of Ryan before he saw him. Defendant had never met Ryan, and he initially had no idea whether this man was Rosa’s husband. According to defendant, when Ryan saw defendant, he asked “do you know Eric‌” Defendant said “no.” Ryan then asked “do you know Rosa‌” Defendant again said “no.” At that point, defendant assumed that Ryan was Rosa’s estranged husband and that Ryan was “very mad.” Ryan was standing sideways to defendant, and defendant could not see Ryan’s right hand. Defendant reached into his pocket and unfolded his folding knife inside his pocket. He kept his hand on the knife. Defendant positioned himself so that he was between Ryan and the apartment building, and his back was to the apartment building. He turned and faced Ryan, told Ryan “fucker, just leave,” and “smirk[ed].” Ryan refused to leave. Defendant said “you need to immediately leave.” Ryan was an “arm’s length” from defendant. Defendant continued to tell Ryan to leave, and Ryan continued to refuse to leave.
Ryan took a step toward defendant, which defendant took as a “challenge.” At some point, Ryan started to pull a knife out of his sweatshirt’s front pocket. Ryan “didn’t have [the knife] all the way out. He was still pulling it out.” Defendant could see “[a] couple inches” of the blade, “[e]nough to know that it’s a knife.” When defendant was shown the large knife that Rosa had found, he did not claim that Ryan had possessed that knife. Instead, he claimed that he never saw “the full knife.” Defendant immediately pulled out his knife and “started stabbing him.” “As soon as I seen the knife it just happened. There was no time to think.” Defendant started by stabbing Ryan in chest. “Once I started stabbing him I just kept going, pretty much.” All of the stabbing occurred within a 30-second period. Defendant paid no attention to what happened to the knife he had seen Ryan begin to remove from his pocket. Defendant thought: “It was either him or me.” When he was done stabbing Ryan, defendant “turned and ran.” The large second knife that defendant had in his pocket fell out of his pocket as he was running away. Defendant denied that this second knife was the one Rosa found.
The court instructed the jury prior to arguments. Defendant’s trial counsel did not request any additional instructions or ask the court to modify any instructions that it gave. The jury deliberated for four days before finding defendant guilty of first degree murder and finding the personal use allegation true. The trial court committed defendant to state prison to serve a term of 25 years to life consecutive to a one-year determinate term. Defendant timely filed a notice of appeal.



III. Discussion
A. Premeditation and Deliberation
“Our task in deciding a challenge to the sufficiency of the evidence is a well-established one. ‘[W]e review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] In cases in which the People rely primarily on circumstantial evidence, the standard of review is the same. [Citations.]’ [Citation.] ‘ “An appellate court must accept logical inferences that the jury might have drawn from the evidence even if the court would have concluded otherwise. [Citations.]” ’ [Citation.] [¶] . . . ‘A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill. [Citation.] “Deliberation” refers to careful weighing of considerations in forming a course of action; “premeditation” means thought over in advance. [Citations.]’ [Citation.] ‘ “Premeditation and deliberation can occur in a brief interval. ‘The test is not time, but reflection. “Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly.” ’ ” [Citation.]’ [Citations.] [¶] People v. Anderson (1968) 70 Cal.2d 15, 73 Cal.Rptr. 550, 447 P.2d 942 (Anderson) discusses three types of evidence commonly shown in cases of premeditated murder: planning activity, preexisting motive, and manner of killing. [Citation.] Drawing on these three categories of evidence, Anderson provided one framework for reviewing the sufficiency of the evidence supporting findings of premeditation and deliberation. In so doing, Anderson’s goal ‘was to aid reviewing courts in assessing whether the evidence is supportive of an inference that the killing was the result of preexisting reflection and weighing of considerations rather than mere unconsidered or rash impulse.’ [Citation.] But, as we have often observed, ‘Anderson did not purport to establish an exhaustive list that would exclude all other types and combinations of evidence that could support a finding of premeditation and deliberation.’ ” (People v. Solomon (2010) 49 Cal.4th 792, 811-812.)
Here, the jury’s verdict was supported by substantial evidence of “planning activity” and of a “manner of killing” that were highly indicative of a deliberate and premeditated murder.
Defendant did not simply encounter Ryan and use a knife he just happened to have available on his person to kill him. First, defendant deliberated for more than two hours before deciding to respond to Diaz’s request for assistance. Next, after finally deciding to respond, defendant arranged for a ride over to Diaz’s apartment building and, even though he already had one knife on his person, took a second larger knife to aid in his encounter. Then, almost immediately after coming upon Ryan, defendant unfolded his knife in his pocket so that it would be ready, and kept the knife in his hand and concealed from sight. With his knife at the ready, defendant positioned himself so that his back was protected by the apartment building before launching his attack on Ryan. In addition, the jury could have reasonably concluded that defendant had also arranged that another man would be present to provide him with backup. All of this evidence reflected that defendant had planned to stab Ryan and placed himself in the most advantageous position available before launching his attack. The fact that defendant suffered no wounds other than a small cut on his hand strongly supported a conclusion that his attack took Ryan so unaware that he had no opportunity to defend himself.
The manner in which defendant killed Ryan was also indicative of premeditation and deliberation. A stab wound to the chest is likely to be fatal, but defendant did not content himself with simply stabbing Ryan once in the chest. He continued to stab him in the back, both in the neck and the torso, vital areas of Ryan’s body. Defendant also inflicted several slashes on Ryan’s face, wounds which the jury could have reasonably inferred could not have been inflicted unless Ryan had already been rendered defenseless. The sheer number of potentially fatal stab wounds reflected that defendant had made a deliberate decision to ensure that Ryan died.
We reject defendant’s challenge to the sufficiency of the evidence of premeditation and deliberation.

B. Responses to Jury Inquiries
Defendant contends that the trial court’s responses to jury inquiries regarding premeditation and deliberation were “inadequate and unbalanced.” He contends that the jury’s questions reflected that it was struggling with the distinction between premeditation and deliberation, and the court’s responses erroneously “conflated” these two independent requirements.
1. Background
At the end of the trial, the court instructed the jury with CALCRIM No. 521 on what was required to prove first degree murder. “If you decide the defendant committed murder, you must decide whether it is murder in the first degree or murder in the second degree. [¶] The defendant is guilty of first degree murder if the People have proved that he acted willfully, deliberately and with premeditation. The defendant acted willfully if he intended to kill. The defendant acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. [¶] The defendant acted with premeditation if he decided to kill before commission of the act that caused death. [¶] The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate or premeditated. The time required for deliberation and premeditation may vary from person to person and according to the circumstance. A decision to kill made rashly and impulsively without careful consideration is not deliberate and premeditated. [¶] On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection. The length of time alone does not determine it. [¶] All other murders are second degree murders.”
On the jury’s second day of deliberations, the jury submitted the following inquiry: “521 Murder: Degrees clarification [¶] 1 Premeditation - do we need to determine & agree at what time the premeditation occurred‌ [¶] 2 Would you please clarify premeditation further, i.e. via an example OR if ‘the test is of the extent of the reflection’ - is 1 or 2 seconds adequate‌” “521” refers to CALCRIM No. 521, the jury instruction on first degree murder. The judge responded in writing: “In answer to Question 1, you do not need to determine and agree at what time the premeditation occurred. [¶] With respect to Question 2, I am unable to give you an example or further clarify the extent of reflection required. I would note that the third paragraph of Instruction 521 appears to answer your question.”
On the jury’s third day of deliberations, the jury submitted another inquiry to the judge. “1 Can a decision to kill be NOT pre-meditated‌ (besides in self defense or imperfect self defense).” The next morning, the judge provided the jury with a lengthy written response which began: “Hopefully the following additional instructions will be helpful to you.” The trial court’s “additional instructions” were: (1) CALJIC No. 8.11, which defines malice; (2) CALJIC No. 8.20, which defines first degree murder; and (3) CALJIC No. 8.30, an instruction that, where “the evidence is insufficient to prove deliberation and premeditation,” a murder is “[m]urder of the second degree.” Later that day, the jury asked for a read back of defendant’s testimony. The jury returned its verdict the next day.
2. Analysis
Penal Code section 1138 provides: “After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.” The trial court has a “duty to clear up any instructional confusion expressed by the jury.” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1212; People v. Moore (1996) 44 Cal.App.4th 1323, 1331 [court must “help the jury understand the legal principles it is asked to apply”].)
“To perform their job properly and fairly, jurors must understand the legal principles they are charged with applying. It is the trial judge’s function to facilitate such an understanding by any available means. The mere recitation of technically correct but arcane legal precepts does precious little to insure that jurors can apply the law to a given set of facts. A jury’s request for reinstruction or clarification should alert the trial judge that the jury has focused on what it believes are the critical issues in the case. The judge must give these inquiries serious consideration. Why has the jury focused on this issue‌ Does it indicate the jurors by-and-large understand the applicable law or perhaps it suggests a source of confusion‌ If confusion is indicated, is it simply unfamiliarity with legal terms or is it more basically a misunderstanding of an important legal concept‌” (People v. Thompkins (1987) 195 Cal.App.3d 244, 250.) “It is hardly preferable for a judge to merely repeat for a jury the text of an instruction it has already indicated it doesn’t understand. We are convinced both jurors and the justice system will be well served in the vast majority of cases if the trial judge thoughtfully considers the jury’s inquiry, clarifies it if necessary, studies the applicable legal principles, and responds to the jury in as simple and direct a manner as possible.” (Id. at p. 253.)
In People v. Beardslee (1991) 53 Cal.3d 68 (Beardslee), a jury inquired about the definition of premeditation and deliberation, and the court told the jury that it would not explain any of the jury instructions. On appeal, the defendant claimed that the trial court had violated Penal Code section 1138. (Beardslee, at pp. 96-97.) The California Supreme Court held that the court’s response was erroneous. “The court has a primary duty to help the jury understand the legal principles it is asked to apply. [Citation.] This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury’s request for information. . . . But a court must do more than figuratively throw up its hands and tell the jury it cannot help. It must at least consider how it can best aid the jury. It should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given.” (Beardslee, at p. 97, first italics added, second italics in original.) Nevertheless, the court found that the error was harmless because any ambiguity in the instructions would have favored rather than prejudiced defendant, and it was mere “speculation” that the court’s response might have discouraged the jury from asking further questions. (Beardslee at pp. 97-98.)
The trial court’s responses to the jury’s inquiries did not violate Penal Code section 1138. The trial court could have reasonably concluded that any direct response to the jury’s initial inquiry requesting “an example” and asking “is 1 or 2 seconds adequate” would have improperly invaded the jury’s province. The court properly referred the jury back to CALCRIM No. 521, which directly addressed this issue. Even if that response was inadequate, the court gave a much more detailed response to the jury’s second inquiry. This time, having apparently concluded that the jury was having difficulty with the language of CALCRIM No. 521, the court decided to supply the jury with the alternative language used in CALJIC No. 8.20, in hopes that this language would further illuminate the concept for the jury. The fact that the jury made no further inquiries reflects that the court’s detailed response to its second inquiry was satisfactory.
Defendant claims that the court’s response to the jury’s first inquiry should have been to “refer[] to the requirement of deliberation and [tell the jury that] one or two seconds is only adequate if deliberation is shown.” We disagree. First, our review is for abuse of discretion. The trial court was responding to an inquiry regarding the time necessary for premeditation. It could have reasonably determined that a response focused on deliberation would not be appropriate. Instead, the trial court reasonably concluded that the jury should be referred back to the applicable jury instruction, CALCRIM No. 521, which fully addressed this issue.
Defendant maintains that the court’s response to the jury’s second inquiry should have been to tell the jury that “a decision to kill may not be sufficient if premeditation and deliberation are not shown.”[8] Both CALCRIM No. 521 and CALJIC No. 8.20 inform the jury that a decision to kill is not sufficient and that both premeditation and deliberation must be proved. (CALCRIM No. 521 [“A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated”]; CALJIC No. 8.20 [“a mere unconsidered and rash impulse, even though it includes an intent to kill, is not deliberation and premeditation”].) Since the trial court’s initial reference back to CALCRIM No. 521 in response to the jury’s first inquiry and its subsequent instruction to the jury with CALJIC No. 8.20 in response to the jury’s second inquiry conveyed precisely this concept, defendant’s contention lacks substance.
Although defendant repeatedly complains without elaboration that these instructions “conflated and confused the separate concepts of premeditation and deliberation,” he does not directly attack either CALCRIM No. 521 or CALJIC No. 8.20 and does not present any argument that either of these instructions is constitutionally deficient. Appellate courts may disregard assertions which are not supported by adequate argument but merely suggested in a brief. (People v. Gordon (1990) 50 Cal.3d 1223, 1244 fn. 3, overruled on another point in People v. Edwards (1991) 54 Cal.3d 787, 835.)
The trial court did not abuse its discretion in responding the jury’s inquiries.
C. Evidence Code Section 1103 Evidence
Defendant claims that the trial court erred in admitting a “raft of violent character evidence” against him. He asserts that the court abused its discretion under Evidence Code section 352 and violated his right to due process.
1. Background
In its trial brief, the prosecution noted that it intended to impeach defendant with evidence that he had committed an aggravated assault (Pen. Code, § 245, subd. (a)), dissuaded a witness (Pen. Code, § 136.1), and committed arson (Pen. Code, § 451, subd. (d)). The prosecution also pointed out that, if defendant introduced character evidence regarding Ryan’s propensity for violence, the prosecution should be permitted to introduce such evidence as to defendant under Evidence Code section 1103.[9] The evidence that the prosecution sought to introduce was the same conduct that it sought to impeach defendant with: the assault, dissuasion, and arson.
During in limine discussions, defendant’s trial counsel argued that the evidence he intended to introduce would not be Evidence Code section 1103 evidence but instead Evidence Code section 1101, subdivision (b) evidence, which would not permit the prosecution to introduce character evidence regarding defendant. He also asserted that admission of character evidence regarding defendant would involve “a great deal of prejudiciality. Clearly, the court has to decide under 352, does it come in, is the probative value outweighing it.” The court found that the evidence defendant intended to introduce was Evidence Code section 1103 evidence. It proceeded to address defendant’s Evidence Code section 352 contention. The court agreed that the “gang aspects” of defendant’s prior criminal conduct were “very prejudicial,” and it excluded any “gang evidence.” Otherwise, the court found “that the probative value of the evidence outweighs the prejudice and time consumption and future issues.” The court also tentatively ruled that defendant’s Penal Code section 136.1 (witness dissuasion) violation would be admissible to impeach him if he testified.
Before testimony began, the court instructed the jury: “From time to time certain evidence may be admitted for a limited purpose. At the time this evidence is admitted, I’ll try to instruct you on what purpose you may consider it. It may not be considered for any other purpose other than its limited purpose.”
In his opening statement, defendant’s trial counsel mentioned the Evidence Code section 1103 evidence he intended to present. “You’re going to hear evidence in this case that Ryan Townes was extremely abusive towards Rosa Townes, his wife. He threatened her, he threatened to kill her by slitting her throat, he threatened her -- there is a specific instance observed by a police officer in part, 90 days to the day before this homicide occurred when he was being extremely forceful with her, and there will be, I believe, testimony to show that he was trying to get a knife at that time in a parking lot on San Carlos near Meridian where there is a Safeway and McDonald’s -- a very open, public place in broad daylight, this was happening. [¶] I think there will be evidence that Mr. Townes was an extremely jealous person with respect to Rosa Townes, and that drove him to extreme anger, and extreme almost in the sense of paranoia. . . . [H]e would follow her around even when they were separated, even after he had been ordered not to have contact with her by the court because he had been accused of a domestic violence . . . .” Defendant’s trial counsel asserted that the evidence would show that Diaz “was aware of Mr. Townes’ violent proclivities with respect to Rosa” and “communicated to [defendant]” this information.
In his cross-examination of Rosa, defendant’s trial counsel adduced evidence of Ryan’s prior violence against Rosa. One incident took place on the day before the killing when Ryan tried to force Rosa into a car and tried to take her cell phone. Rosa admitted that this was a “common thing” due to the fact that Ryan was “very, very jealous” since they had separated. Another incident had taken place three months earlier, in July 2007. They had arranged to meet at a public location so that their children could visit with each other. A public location was selected because Rosa was “afraid” of Ryan due to the fact that he “had been very violent towards [her], [and] he had beaten [her] up on many occasions.” Defendant’s trial counsel elicited testimony from Rosa that Ryan had “an interest in knives” and had “threatened [her] with a knife during [their] relationship.” On this occasion, Ryan tried to push Rosa into a van, and he pushed Rosa up against the van. He also demanded her cell phone and reached toward a folding knife. After this incident, Rosa told the police that Ryan “had an explosive temper.”[10] Ryan had previously punched, kicked, and strangled her nearly to unconsciousness. He had also twisted her arms and used a knife to intimidate her. Rosa also testified that she did not want Ryan to come to Diaz’s apartment on the night of the killing because Ryan “can get really angry, has a bad temper.” Ryan was “quite upset” about Rosa’s accusation earlier that day that he had slashed the tire of Diaz’s vehicle. Rosa was afraid to leave Diaz’s apartment because Ryan would see where she was located and would engage in a “confrontation” with Diaz.
After this testimony, the prosecutor asked the court to make a finding that the defense had introduced “1103 character evidence,” and the court so found. On redirect examination, Rosa testified that Ryan did not have a reputation for being violent. She also testified that she was afraid when Diaz said he was calling defendant because defendant had previously said that he was “wanted for fugitive watch.” She thought “anybody really wanted by fugitive watch obviously did something wrong.”[11] On recross, defendant’s trial counsel elicited Rosa’s testimony that she kept Ryan’s “abuse” of her “a secret” and “didn’t tell anybody about it.”
The prosecutor subsequently submitted “proposed language for the limiting instruction,” and defendant’s trial counsel noted: “I saw it. I think it’s fine.” At a hearing outside the presence of the jury, the court informed counsel that it had itself drafted an admonition regarding the Evidence Code section 1103 evidence. Both the prosecutor and defendant’s trial counsel agreed that the court’s admonition was fine and better than the prosecutor’s proposed admonition.
Before Crystal Lopez, the first witness to testify about defendant’s prior violent conduct, testified, the trial court read the admonition to the jury. “Ladies and gentlemen, this witness, as well as Officer Meeker, who I anticipate will testify later today, may introduce evidence for the limited purpose of showing that the defendant engaged in conduct involving violence or threats of violence on one or more occasions other than that charged in this case. [¶] If you find the defendant was violent or threatened violence on a prior occasion, you may but are not required to infer that the defendant has a trait of character for violence. [¶] If you find the defendant has that trait of character, you may but you are not required to infer that he acted in conformity with that trait of character at the time of the crime for which he is accused in this trial; however, if you find the defendant has such a trait of character, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crime in this case. [¶] The weight and significance of the evidence, if any, are for you to decide. For the limited purpose for which you may consider this character evidence, you must weight it the same way you would weigh all other evidence in the case. Unless you are otherwise instructed, you must not consider this evidence for any other purpose.”
Crystal testified that she was defendant’s former girlfriend. In May 2007, she was in a car containing defendant, a man named “Roach,” and two other females. Roach was driving the car, which belonged to one of the females, and defendant was in the backseat. A car containing two males began directing “mean faces and gestures” toward their car. Defendant became “upset.” Roach asked what he “should do.” Defendant told Roach to “pull over,” but he did not. Defendant pointed out that someone in the other car had a knife. The other car followed their car, and defendant kept telling Roach to pull over. The other car “rammed” the back of their car, and their car stopped. The driver of the other car got out and tried to stab defendant through the car window. He failed to make any contact with defendant. Defendant got out of the car and chased the other man. Roach also exited the car and ran toward the other car. Crystal saw the four men fighting. Roach and one of the other men disengaged, but defendant continued fighting with one of the men. When defendant and Roach returned to the car, they were both bleeding. Roach’s fingers were bleeding, and defendant’s thigh was bleeding. Roach said “he got one of the guys really good,” and defendant told him to “shut up.” Later that day, defendant told Crystal and the other two females to “lie to the police” about the incident. He told them to say that their car had been stolen. Crystal was scared that defendant would have someone hurt them if they did not obey this command. Defendant had previously told Crystal that “if anything happened I better not tell the cops or better not snitch to anybody” because “snitches end up in ditches.” She understood this to mean that she would be killed if she spoke to the police. Defendant had also threatened to kill her grandmother if she “snitched.” Crystal and the other two females originally told the police that the car had been stolen, as they had been instructed to do. Crystal had seen defendant with a knife before, but she had not previously seen him act violently. San Jose Police Officer Brian Meeker testified that he made contact with the two men who had fought with defendant and Roach. The passenger in the car was bleeding profusely from more than 10 stab wounds to his back, chest, abdomen, and neck. Defendant’s trial counsel did not interpose any objections to any portion of the testimony of Crystal or Meeker.
The following day, before correctional officer Mario Rogers testified, the court told the jury: “Ladies and gentlemen, the instruction I gave you yesterday with respect to two of the witnesses also applies today for the witness and possibly another witness.” The court then reread the admonition it had given the previous day. Rogers testified that, in March 2008, he saw an inmate trustee named Michael Alfaro struck in the face by someone Rogers could not see. This punch was followed immediately by defendant and Julio Ledesma attacking Alfaro.[12] Defendant punched and kicked Alfaro. Robert Candelaria joined the fight. Rogers ordered the men to stop, but defendant did not stop. Alfaro was knocked to the ground, and the men continued to assault him. Defendant repeatedly punched Alfaro. Eventually, the assailants were pepper sprayed, and they ran to their cells. Alfaro suffered numerous injuries to his face and a cut near his ear.
San Jose Police Officer Julie Marin was the next witness. Before she testified, the court reminded the jury that “some of the testimony of this witness may also be in areas I instructed you on with respect to the last witness, so please keep that instruction in mind.” Marin testified very briefly about the May 2007 incident that Crystal had described. On cross-examination, defendant’s trial counsel elicited Marin’s testimony that she had been present and seen Ryan with his arm up against Rosa’s throat pressing her up against a vehicle during the July 2007 incident that Rosa had described. Marin found a folding knife inside a vehicle that she was told had been in Ryan’s possession during the incident. Marin arrested Ryan for domestic violence.
When defendant testified at trial, his description of the May 2007 incident was similar to Crystal’s description. He claimed that he used only his fists until after he was stabbed in the thigh. He took the knife from the other man. “[O]nce I got the knife I just started stabbing him.” “I just stood there and just stabbed.” Defendant admitted that he had stabbed the man in the chest, stomach and head, and multiple times in the back. Defendant claimed that, while he was stabbing the man, “there was no thought put into it, it just happened.” “It was all just, like, the heat of the moment.” At some point, he “just stopped” and walked back to the car. Defendant denied that Roach had stabbed anyone during that incident. After he got in the car, he told the others: “You guys didn’t see nothing; nothing happened.” He was trying to dissuade the others in the car from cooperating with the police. He also told them that the car (which belonged to one of the females) needed to be burned because he had bled on it.
During defendant’s trial counsel’s direct examination of defendant, he asked defendant, in regard to the May 2007 incident: “were you ever charged with a crime‌” The prosecution objected on relevance grounds, and the court sustained the objection. At a subsequent hearing outside the presence of the jury, defendant’s trial counsel asked the court to reconsider that ruling. “My position is that it gives a false impression to the jury that he was also charged with that assault . . . .” He asserted “that the reason he never got charged with it is because it’s a self-defense situation.” The prosecutor argued that the only relevant Evidence Code section 1103 evidence was about “conduct,” not “charges.” He claimed that the charging decision was due to the “uncooperative” witnesses and victims. The court denied the request. It found that “the fact of charging or not charging” was not relevant.
As to the jail incident, defendant admitted that he was “involved” in the “fight.” He claimed that the only other person involved in the assault on Alfaro was Candelaria. Defendant denied that Ledesma was involved in the assault on Alfaro. Defendant admitted that his attack on Alfaro was unprovoked and that he initiated the attack.
Defendant denied any knowledge of how Alfaro had gotten “this mark near his ear . . . .” Defendant’s trial counsel objected to the prosecutor’s question about the mark on Alfaro’s face. Defendant’s trial counsel subsequently made a record of the basis for his objection. He complained that the prosecutor’s question implied that some weapon had been used to make the mark. Defendant’s trial counsel argued that the mark could just be a scratch inflicted by a fingernail. He claimed that the question assumed facts not in evidence and should be stricken. The prosecutor responded that Rogers had testified that the wound was a “cut.” A photograph of Alfaro’s wound was also in evidence. The court denied the motion to strike.
At the conclusion of the trial, the court instructed the jury: “During the trial, certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other.” The court also instructed the jury: “You’ve heard testimony that the defendant, [and] Ryan Townes, had character traits for violence. Take that testimony in consideration along with all the other evidence in deciding whether the People have proved whether the defendant was guilty beyond a reasonable doubt. Evidence of Ryan Townes’s character for violence can by itself create a reasonable doubt; however, evidence that Ryan Townes’ character trait for violence may be countered by evidence of the defendant’s bad character for the same trait. You must decide the meaning and importance of that character evidence.”
2. Analysis
Defendant does not contend that the trial court erred in finding that Evidence Code section 1103 applied here. He claims only that “anything beyond general testimony to two fights (from Crystal and a guard) and perhaps Crystal’s testimony appellant had carried a knife, was disproportionate and unfair.” He asserts that “the details” of the Evidence Code section 1103 evidence were “unduly prejudicial” and deprived him of a fair trial. One problem with this contention is that defendant’s trial counsel never interposed any Evidence Code section 352 objection to any particular portion of “the details” or to the scope of the Evidence Code section 1103 evidence. The only Evidence Code section 352 objection he ever interposed in connection with the Evidence Code section 1103 evidence was his general objection during in limine motions that the court should exclude all of the Evidence Code section 1103. He never sought exclusion of any particular “details” of that evidence under Evidence Code section 352.
Defendant’s appellate contention would therefore appear to have been forfeited, but he contends that his trial counsel was prejudicially deficient in failing to preserve it. Consequently, we proceed to consider the merits of his contention. The defense went to great lengths to introduce evidence of Ryan’s prior violence. Its cross-examination of Rosa on this subject was very detailed and extensive, and other witnesses were questioned by the defense about their knowledge of Ryan’s violence. In this context, the trial court would not have abused its discretion in overruling a defense objection to the prosecution introducing the “details” of defendant’s May 2007 and March 2008 acts of violence. Under Evidence Code section 1103, the prosecution was entitled to utilize evidence of the details of defendant’s prior acts of violence to counter the defense’s introduction of the details of Ryan’s prior acts of violence.
Defendant also claims that the court’s allegedly erroneous admission of these “details” was exacerbated by the court’s ruling excluding evidence that defendant had not been charged with assault for the May 2007 incident.[13] Defendant was actually charged with witness dissuasion and arson for the May 2007 incident, but it is difficult to imagine a relevant basis for the prosecution to introduce evidence that those charges had been brought or that the assault victim was uncooperative to counter evidence that no assault charge had been brought. Defendant asserts, without explanation, that “[t]he prosecution was free to offer reasons for non-prosecution.” It is not a sound argument that irrelevant defense evidence could have been rebutted with irrelevant prosecution evidence. The issue here was not whether defendant’s acts were criminal but whether they were violent. The jury was explicitly instructed that the evidence regarding the May 2007 incident was admitted for the sole purpose of demonstrating that defendant had committed prior acts of violence to show his character for violence. The fact that an assault charge had not been brought against him for that incident had no relevance to whether he had engaged in a violent act on that occasion. Furthermore, defendant did not deny engaging in the acts of violence involved in the May 2007 incident. He freely admitted that he had repeatedly stabbed a man on that occasion after having disarmed the man. The trial court did not err in excluding irrelevant evidence that defendant was not charged with assault for the May 2007 incident.
Defendant also claims that, regardless of the propriety of the trial court’s rulings, the admission of the Evidence Code section 1103 evidence violated his right to due process. His argument fails to explain exactly how it was that this evidence violated his right to due process other than to state repeatedly that it created “gross unfairness.” We find no basis in the record for this assertion. Evidence of defendant’s character for violence was admissible at trial only because defendant introduced evidence of Ryan’s character for violence. It was a reasonable tactical choice for defendant’s trial counsel to make, but the result was that evidence of defendant’s violent acts was admissible at trial. This was not unfair, and certainly not “gross unfairness.” The counterbalance required by Evidence Code section 1103 is the essence of fairness, as it allows the defense, and only the defense, to make a decision about whether evidence of a character trait for violence will be admitted at trial. Defendant was not deprived of due process.

D. Prosecutorial Misconduct
Defendant contends that the prosecutor committed three instances of prosecutorial misconduct. First, he claims that the prosecutor committed misconduct in suggesting that the defense had failed to call any of the other people present to testify because Vincent could not have been called to testify as he had invoked the Fifth Amendment. Second, defendant maintains that the prosecutor committed misconduct when he suggested that a cut on Ryan’s face was similar to a cut on Alfaro’s face and that this was defendant’s “signature,” even though there was no evidence that defendant had used a knife or any other weapon on Alfaro. Third, defendant asserts that the prosecutor committed misconduct when he told the jury that there was a warrant for defendant’s arrest for the May 2007 “assault,” which was not true.
“ ‘ “It is settled that a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.]” ’ ” (People v. Williams (1997) 16 Cal.4th 153, 221.) Reversal for prosecutorial misconduct is required only where it is reasonably probable that a result more favorable to the defendant would have occurred in the absence of the misconduct. (People v. Bolton (1979) 23 Cal.3d 208, 214.)
1. References to Vincent
a. Background
At the commencement of the trial, the court instructed the jury that “statements made by attorneys are not evidence.” At the conclusion of the trial, the court instructed the jury: “Nothing that the attorneys say is evidence. In their opening statements and closing arguments, the attorneys discuss the case, but their remarks are not evidence.”
Vincent invoked the Fifth Amendment at trial, and he was found unavailable to testify.[14] The prosecution introduced Vincent’s preliminary examination testimony as rebuttal evidence. Vincent had testified that Diaz was his cousin and defendant was his nephew. He denied having had any contact with Diaz or defendant on the night of Ryan’s death, and he denied that he had used defendant’s phone that night. Vincent claimed that he had never left his house that evening. Vincent testified that his last contact with defendant before the killing was at 5:00 p.m. on October 3, and he did not see defendant again until 10 minutes before they were stopped by the police on the evening of October 4, 2007.
In his opening argument, the prosecutor argued to the jury: “Why have other people, why were other people coming in here and lying for the defendant‌ . . . [¶] Vincent Lopez, I’m sure many of you believe Vincent was involved in this. If this was self-defense, Vince didn’t think it was, because if you believe -- Vincent Lopez was there. You heard his testimony, he wasn’t there. He didn’t see it, he didn’t get any phone calls, he doesn’t know what we’re talking about. [¶] . . . It’s not self-defense. There’s no blood and there’s no blood trail, no fight. The bushes aren’t broken. There’s no injury to [defendant] or Vincent Lopez, there is no struggling, ladies and gentlemen; this was a vicious attack that came out of nowhere. It was quick, it was violent, it was determined. It was premeditated. [¶] This again. You know what‌ If there were any, any shred of believability in the defendant’s version, you know what, those people, he would have brought somebody in. Because, you know what‌ As I talked about before, it’s not snitching on somebody if you didn’t do anything wrong. It’s not snitching on anybody if, as by his version, they weren’t involved.” “He’s lying about being the only person there. He’s lying about being the only person who attacked Ryan Townes.”
Although defendant’s trial counsel did not object to this argument at the time, after the prosecutor had completed his opening argument, defendant’s trial counsel placed on the record his objection to the prosecutor’s argument “regarding people who could have come forward if it was really self-defense and supported [defendant]’s position and testified to that effect. [¶] He specifically stated that Vince did not think it was self-defense.” Defendant’s trial counsel asserted that this was improper argument because Vincent had asserted the Fifth Amendment and therefore could not have been called as a witness. He asserted that this was prosecutorial misconduct and sought a mistrial. The prosecutor maintained that there were people other than Vincent that defendant could have called and noted that he had not said that defendant could have called Vincent. The court denied the mistrial motion. Defendant’s trial counsel did not request an admonition.
The defense argued to the jury: “There has been evidence presented by the District Attorney that another person was there, and a specific person was named. And [defendant], it’s been said, if he had people who were there, they would come forward, I’m simply suggesting to you that people may not come forward because of a fear about what could happen to them if they do that. [¶] The D.A. wants you to believe that hey, there is nobody around, there’s nobody available because -- in fact, he even used the phrase, Vince didn’t think it was self-defense. He doesn’t have any basis for that, he has no evidence for that at all. There’s nothing in the record at all to support that assertion. [¶] . . . [S]o the assertion by the District Attorney that Vince didn’t believe there was self-defense, there’s no basis for that, you should totally reject that suggestion on his part because there’s absolutely no basis for it.”
The prosecutor responded in his closing argument: “When we’re talking about Vincent Lopez, he is exactly as the court instructed you, he’s unavailable. You’re not to speculate on why he’s not here; he might be out of the city, state or country. It’s irrelevant because what we’ve got it is Vince’s testimony that he swore to under oath at a prior hearing. That’s what Vincent Lopez said. So when the defense says there’s no evidence of what Vincent Lopez thought, that’s not true. It’s just not there. [¶] And when I talked about, you know what, bring in those other people, what [defendant] said not on that stand was, well, there were people at the party that I left at the guy’s apartment. Where is the guy who he took the knife from to come in and say, no, the knife that he took from me was, it had that snake and gold embossed handle, or better yet, that it didn’t look like this knife, [the one found at the scene]. Where is that person‌ Where is the person who can say, I drove [defendant] over there on Park Avenue at this time. As he was going, he may have said something about why he was going there. Where is that person to corroborate his story‌ The defendant also said, you know what, there was a guy there and another woman. Where is that person‌ Where is that other woman who was there‌”
Although he did not interpose an objection during the prosecutor’s closing argument, after the jury retired to deliberate, defendant’s trial counsel