P. v. Webber







Filed 9/19/11 P. v. Webber CA1/3





NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, v. DOYAL M. WEBBER, Defendant and Appellant.

A127222 (San Mateo County Super. Ct. No. SC067084-B)

Defendant Doyal M. Webber appeals his jury-trial conviction for the second degree murder of Lon Dell Wilson. Defendant contends his conviction must be reversed on the grounds of prosecutorial misconduct. Defendant also contends his conviction must be reduced to a verdict of manslaughter because the evidence was constitutionally insufficient to disprove his defense of imperfect defense of others. We conclude defendant’s contentions lack merit, and affirm the judgment.
Procedural Background
In September 2008, the San Mateo County District Attorney (DA) filed an information charging defendant and Mohammad Rabah[1] with the murder of Lon Dell Wilson, in violation of Penal Code section 187.[2] The DA also alleged that defendant personally and intentionally discharged a firearm in the commission of the crime (§ 12022.53, subd. (d).) Defendant and Mohammad pleaded not guilty to the charge and defendant denied the firearm allegation.
The case was tried to a jury over several weeks. After deliberating for four days, the jury found Mohammad not guilty. The jury found defendant guilty of second-degree murder, rejecting the prosecution’s request for a verdict of first degree murder. The jury also found true the firearm allegation against defendant. After trial, the court denied defendant’s motion for a new trial or, in the alternative, to reduce his conviction to manslaughter.
On November 20, 2009, the trial court sentenced defendant to a term of 15 years to life on the murder conviction, as well as a consecutive term of 25 years to life on the firearm allegation, for a total term of 40 years to life in state prison. On the same day as sentencing, defendant filed his notice of appeal.
Facts
The shooting incident on Highway 101 that resulted in the death of Lon Dell Wilson was witnessed by Debra Pulido, a cab driver, and her passenger, Benjamin Denckla. Both testified at trial. On the evening of September 30, 2007, Pulido picked up Denckla outside a restaurant in San Mateo at around 10:15 p.m. Denckla wanted to go to a hotel in Daly City. Pulido pulled onto Highway 101 at Third Street and drove north towards San Francisco. Just after entering the freeway, she noticed three cars passing in the next lane. One of the cars was a blue station wagon, one was red and one was white. All three cars had “big rims” and “looked like show cars.” Pulido drove in the slow lane (lane number four) and the three cars were ahead of her in lane number three. Suddenly, the three cars started making lane changes very close together. Next, Pulido saw a person shooting from the passenger side of one of the three vehicles. The shooter had his right arm curved forward and fired four or five shots. After the shots were fired, all three of the cars sped off. Pulido then observed that the rear window of a silver or grey colored car was shattered. Pulido called her dispatcher, who then connected Pulido to 911 and Pulido reported what she had just witnessed. When she last observed the grey car it was driving straight ahead.
Benjamin Denckla, the passenger in Pulido’s cab at the time of the shooting, also testified. Denckla was seated behind the driver in the middle of the first row of passenger seats. During the drive, Denckla became aware that another car was “tailgating” the cab and was “very close behind us.” The car accelerated past the cab and Denckla noticed it had custom rims or hubcaps. He also observed the car “with the rims” and several other vehicles were involved in a chase but could not tell which vehicle was being pursued. The vehicles were rapidly changing lanes, sometimes accelerating and decelerating. During these maneuvers, the bumpers of the cars came “within inches of each other.” The occupants of the cars were shouting at each other but Denckla could not hear what was said. At some point during this chase, Denckla noticed that two of the vehicles stayed “locked” one behind the other. As these vehicles drove in tandem, someone leaned out of the passenger side window of the rear vehicle and reached forward beyond the front windshield. Denckla then heard several shots fired in rapid succession. He could not see the gun. The cab driver then reported the incident to 911. Denckla estimated the whole incident, from the point he noticed the car tailgating the cab until the shooting occurred, lasted only about a minute. He observed the shooting from a distance of six car lengths back. His attention was “rivet[ed]” on the incident the entire time because it was like something out of the movies.
At about 11:30 p.m. fire personnel located Lon Dell Wilson’s vehicle in a ditch about 60 feet off northbound Highway 101 near Burlingame. The rear window of Wilson’s grey Honda Accord was shattered. Wilson was lying beside his vehicle clutching his cell phone. He had been shot. Wilson was transported to San Francisco General Hospital and died a short time later during surgery. An autopsy revealed that Wilson died of wounds caused by a bullet that went through his right arm into the chest cavity, passed through a lung and lodged above the heart, severing the base of his carotid artery in the process. The bullet was removed from his chest and retained as evidence in the investigation.
As a part of its investigation, the CHP closed Highway 101 two lanes at a time between the Broadway and Millbrae exits to facilitate the officers’ search for evidence. Police ultimately recovered a damaged bullet and four 9mm cartridge cases. Forensic testing established that the 9mm cartridges found at the scene were fired from the same weapon and that the bullet recovered from the victim’s chest and the damaged bullet found at the scene were 9mm caliber, made of lead, and displayed markings showing a right hand twist. Police officers were unable to locate any firearms during the search of Wilson’s Honda Accord.
In addition, police matched Pulido’s description of the blue station wagon to a vehicle depicted in a surveillance video. The video was distributed to local television stations in an effort to locate and identify the owner of the blue station wagon. A security guard at West Park Apartments in East Palo Alto saw the video and informed law enforcement that the blue station wagon was parked there. As the police were in the process of towing the blue station wagon, Toby Hernandez identified himself to the officers as its owner. Hernandez was taken in for questioning. When he arrived at the station, Hernandez called Z.D (a minor). Z.D. came to the station with her sister Ruby C. Z.D. spoke with the police and agreed to place a recorded, “pretext” phone call to defendant. During the call, Z.D. told defendant she had talked to police but “not told them anything.” Defendant replied, “Ruby’s going to be a snitch and say woo woo Ali (defendant) did it.” Defendant assured Z.D. that Ruby “ain’t gonna go down for what I did” and stated he had “somewhere to go” and was “about to cut it.”
Later the same day, a police swat team surrounded defendant’s residence in Hayward. Defendant tried to escape out of the back door. Defendant was arrested after a struggle.
Based on interviews with occupants of the vehicles, investigators were able to locate all three vehicles and establish the identity of all the passengers at the time of the shooting. In the blue station wagon were Toby Hernandez (driver), his girl friend Aide Romero (front passenger seat) and Z.D. (back seat, driver’s side). In the white Buick Skylark were Jose Morelos (driver), his older brother Juan Morelos (front passenger seat), and Ruby C. and her child (back seat). In the red Caprice were the Rabah brothers, Mohammad and Mohmoud, also known as “Mickey” (front seats), Donald Reid, also known as “Duck” (back seat, driver’s side) and defendant (back seat, passenger side). The drivers of the vehicles and passengers were a group of friends who, on the night in question were in route from East Palo Alto to San Francisco for a night on the town.
Toby Hernandez, Aide Romero, Z.D. (blue station wagon), the Morelos brothers (white Buick) and Donald Reid (red Caprice) testified during the course of the trial. Defendant testified on his own behalf for the defense. We recount the trial testimony of these witnesses as necessary to resolve appellant’s contentions on appeal.
Discussion
I Prosecutorial Misconduct
A. Applicable Legal Standards
During closing argument, “[p]rosecutors have considerable leeway to strike ‘hard blows’ based on the evidence and all reasonable inferences from the evidence.” (United States v. Henderson (9th Cir. 2000) 241 F.3d 638, 652; People v. Zambrano (2004) 124 Cal.App.4th 228, 241.) Nevertheless, a prosecutor may not utter statements in closing argument that are “designed to appeal to the passions, fears and vulnerabilities of the jury.” (United States v. Weatherspoon (9th Cir. 2005) 410 F.3d 1142, 1149; People v. Redd (2010) 48 Cal.4th 691, 742 [same]; see also People v. Zambrano, surpra, 124 Cal.App.4th at p. 241 [while prosecutor “may strike hard blows” he or she is “not at liberty to strike foul ones”].)) In particular, a prosecutor may not urge a jury to convict for reasons unrelated to the defendant’s guilt; for example, to preserve civil order or deter future lawbreaking. (United States v. Weatherspoon, supra, 410 F.3d at p. 1149; People v. Redd, supra, 48 Cal.4th at p. 743.)
However, to warrant reversal of a conviction on the grounds of prosecutorial misconduct under federal constitutional standards, “it ‘is not enough that the prosecutors’ remarks were undesirable or even universally condemned.’ (Citation.) The relevant question is whether the prosecutors’ comments ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’ (Citation.)” (Darden v. Wainwright (1986) 477 U.S. 168, 181.) Conduct by a prosecutor that does not render a criminal trial fundamentally unfair under federal law nevertheless may constitute prosecutorial misconduct under state law if “it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.” (People v. Morales (2001) 25 Cal.4th 34, 44.) “Furthermore, . . . when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.]” (Ibid.)
B. Analysis
Defendant argues that the prosecution engaged in multiple instances of misconduct during questioning of witnesses and in closing argument. First, defendant contends that in questioning certain prosecution witnesses, the prosecutor failed to comply with the trial court’s ruling on gang association testimony. Second, defendant contends the prosecutor committed misconduct during his closing argument to the jury. We discuss each of these claims in turn.
1. Gang Association Evidence
Without objection from defense counsel, the prosecutor elicited testimony from Jose Morelos on direct examination that he was never a gang member but can recognize gang signs. After the prosecutor elicited similar testimony from Juan Morelos, Jose’s older brother, defense counsel moved to exclude, as irrelevant and prejudicial under Evidence Code sections 350 and 352, any further evidence concerning the prior gang associations of members of the three-car caravan that included defendant.
Prior to the resumption of testimony, the court held a hearing on the motion and granted defendant’s motion in part. The court ruled that the prosecutor could not ask “the people in the cars whether they were gang members,” but could question them on the basis of their knowledge about gang signs and familiarity with gangs.[3]
When trial resumed, the prosecutor elicited from Aide Romero that there are gangs in East Palo Alto, she associated with gang members, and that she was a former, not a current member of the Surenos. Romero testified that she recognized gang signs, acknowledged that they are used to intimidate people and stated no one in her vehicle or the victim flashed any sort of gang sign. Romero’s testimony was admitted without objection.
Donald Reid also testified in response to the prosecutor’s questions that he lived in Hayward and did not know of any gangs there. He observed black students throwing gang signs at high school and knew they were gang signs “from movies.” He had never seen Jose or Juan throw gang signs. Outside the presence of the jury, defense counsel objected to the prosecutor’s questions to Reid about whether he had seen Juan or Jose throw gang signs. The prosecutor argued that his questions were relevant to Reid’s pre-trial statement that he thought Jose knew the victim because the victim flashed a gang sign. The court gave the prosecutor some latitude to explore this area, but stated, “I don’t want to go far down that road, Mr. Cannon.”
Upon resumption of questioning, the prosecutor asked Reid if it was when he first noticed the Honda that he “saw this hand sign or gang sign . . . between Jose and the person in the [Honda]”. Reid replied, “No.” Defense counsel objected, “Misstates testimony. He said Mr. Wilson made the gang sign, not gang sign between these two individuals.” The court sustained the objection. Subsequently, Reid testified that he saw the victim make the hand sign about five or six minutes after he first noticed the Honda. Reid testified, “It looked like [the victim] was saying, ‘What’s up‌’ or try to throw gang sign or something. I’m not sure.” Reid also demonstrated that the victim raised both hands “from his forearm upwards, all ten of his fingers extended out.”
Against this procedural and evidentiary background, defendant contends the prosecutor committed prejudicial misconduct by failing to conduct his subsequent questioning of Aide Romero and Donald Reid in compliance with the trial court’s evidentiary ruling on gang association testimony. We disagree.
We note that the defendant did not object to the testimony given by Romero that he now challenges. Generally, a defendant may not complain on appeal of prosecutorial misconduct unless he objected to the misconduct in the court below and asked that the jury be admonished to disregard the impropriety. (People v. Cunningham (2001) 25 Cal.4th 926, 1000.) If no objection was made, the point is reviewable on appeal only if an admonition would not have cured the harm caused by the misconduct. (Id. at pp. 1000-1001.) Had defendant objected to the prosecutor’s question about Romero’s former gang membership, the court could have cured any harm by admonishing the jury either to ignore the evidence or receive it only for the limited purpose of establishing the basis for Romero’s ability to recognize gang signs. Defendant’s failure to object bars his claim on appeal. In all events, defendant’s claim of prosecutorial misconduct fails on the merits. For the most part the prosecutor’s questions fairly probed the basis of Romero’s knowledge about and degree of familiarity with gang culture. To the extent the prosecutor exceeded the bounds of the trial court’s order precluding inquiry about Romero’s past gang membership, the prosecutor cured any impropriety by asking, “Are you no longer a gang member” in order to clarify that she was not currently a gang member. We conclude that the prosecutor’s questioning of Romero neither “infected the trial with unfairness” (Darden v. Wainwright, supra, 477 U.S. at p. 181), nor involved “the use of deceptive or reprehensible methods to attempt to persuade . . . the jury,” (People v. Morales, supra, 25 Cal.4th at p. 44).
Defendant also contends the prosecutor violated the trial court’s evidentiary ruling by asking Reid whether he saw Jose or Juan Morelos throw gang signs and mischaracterized Reid’s testimony regarding an exchange of gang signs between the victim and Jose Morelos. This contention also fails. The trial court properly afforded the prosecutor some latitude to explore the interaction between the victim and the Morelos brothers, in light of Reid’s pre-trial statement that he assumed Jose knew the victim because he saw the victim flash a gang sign. There was no prosecutorial misconduct on this point.[4]
2. Closing Argument
Defendant also contends that the prosecutor committed misconduct on several occasions during closing argument. Specifically, he cites as misconduct the following: (a) the prosecutor’s statement, directed at defendant, “This man is dead and you killed him”; (b) the prosecutor’s comment on the reasons why it is unlawful to carry a concealed weapon in a vehicle; and, (c) the prosecutor mischaracterized the reasonable doubt standard by analogy to a jigsaw puzzle. We address each of these claims in turn.
(a) Prosecutor’s Accusatory Remark
During his summation, the prosecutor accused defendant of murder when he stated “This man [the victim] is dead and you killed him.” At a recess, defense counsel objected and argued that the prosecutor committed misconduct by accusing defendant directly of killing the victim. The court overruled defendant’s objection. At the conclusion of the prosecutor’s summation, defendant renewed his objection. Counsel argued that in view of defendant’s failure to respond to the prosecution’s accusation, the jury might construe defendant’s silence as an adoptive admission under the court’s instruction. The trial court, in an “abundance of caution” and with the agreement of defense counsel, instructed the jury before argument resumed, as follows: “I have instructed you at least a couple of times in the past that statements by the attorneys are not evidence. And because statements of attorneys are not evidence, any part of Mr. Cannon’s argument yesterday where he addressed the defendants directly should be disregarded and ignored by you.”
On appeal, defendant contends when the prosecutor directly accused defendant of the murder, he offered the jury his personal opinion regarding the defendant’s guilt and committed misconduct. Defendant also contends that the trial court’s curative instruction was insufficient because it failed to expressly state that the prosecutor’s accusatory statement is not encompassed by the adoptive admissions instruction. We reject defendant’s contentions.
Prior to the challenged remark, the prosecutor asserted defendant had “reverse engineer[ed]” his defense: Defendant was “stuck with” the fact that he shot the victim, “so it has to be some other kind of justification.” Because the victim had “a bunch of tattoos,” the prosecutor argued, the defense painted him as a gang member and “that becomes your defense.” The prosecutor sought to humanize the victim, reminding the jury he “had people who loved him. He had a mom and he had a girlfriend. He had siblings. He had plans. He had a life. He was working on keeping himself out of trouble.” The prosecutor argued the defense painted the victim as a gang member to make his murder “more acceptable,” and in so doing had dragged the victim’s “character . . . through the mud for things he did almost a decade ago.” Seeking to bolster his point that the defense was a fabrication, the prosecutor argued that “the people in the caravan . . . all tried to minimize their own conduct” because they felt guilty about the victim’s death. The prosecutor noted that the Morelos brothers became emotional during their testimony and argued that in contrast to the Morelos brothers, defendant was unremorseful and unmoved by the victim’s death. The prosecutor sought to show defendant’s lack of remorse by deriding defendant’s flippant demeanor on the stand, stating, “He is here on trial for homicide for murdering this man. At one point he is trying to mimic what they were doing on the highway and laughing and pointing and he is kind of joking up on the stand. ‘Yeah, this is a real riot.’ This man is dead and you killed him. . . . There is nothing funny about ending that man’s life” [italics added].
We conclude that viewed in its proper context, there is no reasonable likelihood that the prosecutor’s accusatory remark would be understood by the jury as expressing a personal opinion based on information known to the prosecutor but not presented at trial. The prosecutor’s comment, in context, emphasized the evidentiary basis upon which the jury could conclude the defendant deliberately shot the victim. Accordingly, even if the remark complained of was an improper expression of the prosecutor’s personal belief in defendant’s guilt, which we do not think it was, it did not amount to misconduct. (People v. Lopez (2008) 42 Cal.4th 960, 971 [prosecutor’s expressed belief in defendant’s guilt is not misconduct if, when viewed in context, the prosecutor’s remarks carry no “substantial risk that the jury would consider the remarks to be based on information extraneous to the evidence presented at trial”].)[5]
In addition, we find the trial court’s admonishment instructing the jury to disregard and ignore the prosecutor’s remark fully negated any possibility that the jury could construe defendant’s silence, in the face of the prosecutor’s accusation, as an adoptive admission. (See People v. Hernandez (2010) 181 Cal.App.4th 1494, 1502 [jurors are “presumed to have followed the court’s instructions”].)
In sum, we reject defendant’s claim of misconduct based on the accusatory remark directed at defendant by the prosecutor during closing argument.
(b) The Prosecutor’s Comments About Guns in Cars
At the outset of his lengthy closing argument, the prosecutor stated that “the defense would have you believe this is all perfectly innocent.” He sarcastically described how defendant and his friends, having smoked marijuana all day and with a loaded gun in their car, went “on their way up the candy apple express [] to a pier in San Francisco, no idea that any trouble could possibly occur.” Seeking to dispel the idea that defendant’s actions were innocent, the prosecutor continued, “People that are looking for fun and are looking to have a good time aren’t typically driving around in motor vehicles smoking marijuana, carrying a loaded nine millimeter firearm. [¶] There is a specific reason why it is against the law to be carrying a concealed loaded firearm inside of a vehicle. One of those reasons would be things like this don’t happen. We don’t want people driving up our main traffic arteries getting ready with people that are self-admittedly trigger happy driving up 101 so next time they decide it might be cool to shoot someone as they are cruising with their friends, they don’t do that.”
Defendant contends the prosecutor committed prejudicial misconduct when he made the comments shown in italics. Defendant asserts these comments were improper, and warrant reversal, because they show the prosecutor urged the jury to convict defendant, not based on the evidence, but in order to protect the community’s main highways from irresponsible gun-carrying motorists. We disagree.
“A prosecutor is allowed to make vigorous arguments and may even use such epithets as are warranted by the evidence, as long as these arguments are not inflammatory and principally aimed at arousing the passion or prejudice of the jury.” (People v. Pensinger (1991) 52 Cal.3d 1210, 1251.) On the other hand, a prosecutor may not urge the jury to convict defendant for reasons unrelated to the evidence presented at trial. (See e.g., U.S. v. Solivan (6th Cir.1991) 937 F.2d 1146, 1155 [prosecutor committed misconduct by asking the jury to send a message and consider the impact a conviction would have on the ‘War on Drugs’ because “[t]he fear surrounding the War on Drugs undoubtedly influenced the jury by diverting its attention away from its task to weigh the evidence and submit a reasoned decision finding defendant guilty or innocent of the crimes with which she was charged”].)
The prosecutor did not invite the jury to convict defendant based solely upon the undesirability of armed motorists driving the freeways. Rather, the prosecutor’s statement of the purpose behind the concealed weapons law was part of his discussion of the evidence establishing defendant’s guilt. The prosecutor’s remarks about guns in cars, in the context of the argument as a whole, were neither deceptive nor reprehensible. (People v. Dennis (1998) 17 Cal.4th 468, 522; see also United States v. Monaghan (D.C.Cir.1984) 741 F.2d 1434, 1441 [because the prosecutor did not urge the jury to convict appellant for reasons “wholly irrelevant to his own guilt or innocence,” the prosecutor’s arguments fell within the permissible boundaries of closing argument].)
(c) The Prosecutor’s Jigsaw Puzzle Analogy for Reasonable Doubt
At the outset of his rebuttal argument, the prosecutor argued as follows: “Let’s put a lot of what the defense said into context about proceeding from a presumption of guilt rather than a presumption of innocence. What the defense is suggesting to you is: Look at the case piece by piece, evaluate each piece separately, and unless you do it that way you must be proceeding from a presumption of guilt. And that is absolutely false. You look at the totality of the circumstances. You compare the evidence of each piece of evidence against the other and see what is credible. Is each piece of evidence corroborated or is it not corroborated‌ If so, how‌ [¶] An analogy I use for presumption of innocence and reasonable doubt is sort of like putting a puzzle together. The presumption of innocence is like the table where you put the puzzle together. . . . [A]nd when you start the trial the minute you sit there up until the first witness gets up and testifies, that presumption of innocence stands. But as each piece of evidence is put on against the defendants, piece by piece, that presumption of innocence is given away until and unless you reach a guilty beyond a reasonable doubt, the puzzle gets put together.
“And for example, let’s say you are putting together a puzzle of the Golden Gate Bridge. You put on piece by piece, beginning --- you start to put on the border. You are not totally clear first of what you are looking at, but as the pieces go together, you start to realize what’s there. When you get to the end, there may be a piece of water missing, maybe a piece of cable missing, but you know what you are looking at is the Golden Gate Bridge. That is proof beyond a reasonable doubt, when you are convinced beyond a reasonable doubt—when you have an abiding conviction of the truth. Just like they said, when you walk out of here ten years from now, 20 years from now, you are confident that was the truth of the charges what truly happened out there.” Defense counsel did not object to these remarks by the prosecutor.
Relying principally on People v. Katzenberger (2009) 178 Cal.App.4th 1260 (Katzenberger), defendant asserts the prosecutor’s analogy that reasonable doubt is like a jigsaw puzzle of the Golden Gate Bridge misstated the concept of reasonable doubt and diminished the prosecution’s burden of proof. Defendant further asserts that trial counsel’s failure to object to the prosecutor’s analogy constituted ineffective assistance of counsel. We disagree.
In Katzenberger, the prosecutor used a Power Point presentation as a visual aid in closing argument to illustrate the concept of reasonable doubt: “The Power Point presentation consisted of eight puzzle pieces forming a picture of the Statue of Liberty. The first six pieces came onto the screen sequentially, leaving two additional pieces missing. The prosecutor argued it was possible to know what was depicted ‘beyond a reasonable doubt’ even without the missing pieces. The prosecutor then added the two missing pieces to show the picture was in fact the Statue of Liberty.” (178 Cal.App.4th at p. 1262.)
On appeal, the Katzenberger Court concluded “that the prosecutor’s use of the Power Point presentation . . . misrepresented the ‘beyond a reasonable doubt standard’” and constituted misconduct. (Katzenberger, supra, 178 Cal.App.4th at pp. 1266, 1268.) First, the court noted that the Statue of Liberty is so well known that “most jurors would recognize the image well before the initial six pieces were in place” and some “might guess the picture is of the Statue of Liberty when the first or second piece is displayed.” (Id. at p. 1267.) This left the jury with “the distinct impression that the reasonable doubt standard may be met by a few pieces of evidence” and invited it “to guess or jump to a conclusion. . . .” (Ibid.) Second, the court concluded the Power Point presentation amounted to an “[i]mproper quantification of the concept of reasonable doubt. . . .” The court reasoned that, because the prosecutor argued reasonable doubt was met when six out of eight pieces were on display, she thereby suggested “a specific quantitative measure of reasonable doubt, i.e. 75 percent.” (Id. at pp. 1267-1268.) Accordingly, the court concluded the prosecutor’s presentation amounted to misconduct because her “use of an easily recognizable iconic image along with the suggestion of a quantitative measure of reasonable doubt combined to convey an impression of a lesser standard of proof than the constitutionally required standard of proof beyond a reasonable doubt.” (Id. at p. 1268.)
The prosecutor’s jigsaw puzzle analogy of the Golden Gate Bridge is wholly distinguishable from the Power Point presentation found infirm in Katzenberger. Most importantly, unlike the Power Point presentation the prosecutor’s analogy did not quantify the concept of reasonable doubt by arguing that a specific quantity of pieces — although insufficient to depict fully the Golden Gate bridge — were sufficient to convict. Rather, the prosecutor invited the jurors to think of the pieces of a jigsaw puzzle as pieces of evidence. As more and more puzzle pieces go on the board, he continued, there comes a point when a single piece is missing but the image is unmistakable. By analogy, he reasoned that at the point the evidence supports a finding of guilt, the presumption of innocence gives way to guilt beyond a reasonable doubt, which he correctly stated as “an abiding conviction of the truth.”
We are satisfied that the jigsaw puzzle analogy used by the prosecutor in this case did not invite the jury to base defendant’s guilt on a lesser standard of proof than beyond a reasonable doubt, therefore we conclude the prosecutor did not commit misconduct on this point. Accordingly, we also conclude that defendant’s counsel did not render ineffective assistance by failing to object when the prosecutor used the jigsaw puzzle analogy to explain the concept of reasonable doubt to the jury. (Cf. People v. Gray (2005) 37 Cal.4th 168, 208 [counsel was not ineffective for failure to object that certain testimony “constituted comment on his invocation of the work-product privilege” because the evidence in question “did not constitute ‘comment’ on the ‘exercise of a privilege’ ”].)
In sum, having considered the instances of alleged prosecutorial misconduct identified by defendant, we find none have merit. Accordingly, we also reject defendant’s claim of cumulative error based on alleged prosecutorial misconduct.
II Sufficiency of the Evidence
“Under California law, murder is the unlawful killing of a human being . . . with malice aforethought. Malice is express when the killer harbors a deliberate intent to unlawfully take away a human life. Malice is implied when the killer lacks an intent to kill but acts with conscious disregard for life, knowing such conduct endangers the life of another.” (People v. Lasko (2000) 23 Cal.4th 104.) “In certain circumstances, however, a finding of malice may be precluded, and the offense limited to manslaughter, even when an unlawful homicide was committed with intent to kill. In such a case, the homicide, though not murder, can be no less than voluntary manslaughter.” (People v. Rios (2000) 23 Cal.4th 450, 460.) One of the circumstances in which a finding of malice may be precluded is when a defendant “kills in ‘unreasonable self-defense’ — the unreasonable but good faith belief in having to act in self-defense” (Ibid. [citations omitted].) Where “the issue of . . . imperfect self-defense is . . . ‘properly presented’ in a murder case, . . . the People must prove beyond reasonable doubt that these circumstances were lacking in order to establish the murder element of malice. . . . In such cases, if the fact finder determines the killing was intentional and unlawful, but is not persuaded beyond reasonable doubt that . . . imperfect self-defense[] was absent, it should acquit the defendant of murder and convict him of voluntary manslaughter. [Citations.]” (Id. at p. 462, fns. and italics omitted.)
When considering a claim that the evidence presented at trial was insufficient to support the conviction, “we examine the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—that would support a rational trier of fact in finding the essential element of intent beyond a reasonable doubt. [Citations.]” (People v. Lewis (2001) 25 Cal.4th 610, 642.) We presume “ ‘in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ [Citation.]” (People v. Moon (2005) 37 Cal.4th 1, 22.) “Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the . . . jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. (Citation.)” (People v. Jones (1990) 51 Cal.3d 294, 314.)
Defendant contends a finding of malice is precluded here because the evidence presented at trial was insufficient to negate his defense of imperfect self-defense of others. Defendant asserts the evidence conclusively establishes that the victim “attacked” the white Buick driven by Jose Morelos and threatened its occupants with death or great bodily injury. Defendant relies on evidence tending to show the victim repeatedly swerved his vehicle at the white Buick, yelled verbal threats at the occupants, and, most importantly, just before defendant fired from the Caprice, the victim deliberately maintained his vehicle in a position alongside the white Buick for some time while repeatedly reaching around inside the vehicle for a gun.
Defendant’s contention rests on a selective view of the evidence, which not only ignores substantial evidence to the contrary, but would require us to reweigh the evidence. In particular, neither of the two independent eye-witnesses, cab driver Debra Pulido and her passenger Benjamin Denckla, saw vehicles swerving at one another before the shooting erupted. Rather, both described multiple vehicles making rapid lane changes in which the vehicles were dangerously close together, and Denckla testified this maneuvering ended abruptly when two vehicles locked together, one behind the other, and a shooter immediately leaned out of the rear vehicle and fired several shots into the vehicle in front. Also, Z.D., the passenger in the back seat of the blue station wagon driven by Toby Hernandez, testified that immediately after the station wagon overtook the Honda and pulled half a car length in front of it, defendant fired at the Honda from the Caprice. Like Denckla, Z.D. placed the Caprice in the same lane and directly behind the Honda when the shooting erupted. The testimony of Denckla and Z.D. on the position of the vehicles when the shooting occurred, and the fact that the shooting occurred immediately after the vehicles assumed that position, if believed, contradicts testimony, relied upon by defendant, that just before the shooting the Buick was directly in front of the Caprice, and the Honda (victim’s car) drove alongside the Buick for a time while the victim searched for his gun.[6] Moreover, no witness testified the victim actually brandished a gun and no gun was ever found in his car.
Also, the testimony of several percipient witnesses to the shooting support, rather than undermine the jury’s verdict. Donald Reid told police that after defendant fired, someone in the Caprice said, “What did you shoot that nigga for‌ For no reason.” Juan Morelos testified that defendant “didn’t have to shoot him.” A few days after the shooting Z.D. told defendant, “you are stupid,” and defendant replied, “I get trigger happy.”
Last, the actions of defendant and his friends after the shooting were hardly consistent with persons involved in a justifiable homicide. Everyone fled the scene immediately after the shooting. No one called 911 to report the victim had been shot in self defense and his vehicle had crashed on the freeway. Defendant ran from police when they surrounded his residence and was apprehended after a violent struggle with an officer and police dog. After his arrest, defendant told police he did not shoot anyone, and that he heard shots but the shots did not come from his vehicle.
In sum, the evidence did not compel a finding that the victim posed an imminent threat to the occupants of the Buick. On the contrary, given the conflicting evidence regarding the victim’s conduct and defendant’s actions, the jury obviously chose to disbelieve defendant’s testimony that he shot the victim because he sincerely believed the victim was going to kill the occupants of the Buick. The jury resolved this issue against defendant, and “we are not free to reweigh or reinterpret the evidence” in order to arrive at a contrary determination. (People v. Mercer (1999) 70 Cal.App.4th 463, 466-467 [in reviewing the record to determine the sufficiency of the evidence, court may not re-determine the credibility of witnesses, nor reweigh the evidence, and must draw all reasonable inferences, and resolve all conflicts, in favor of the judgment].) Accordingly, defendant’s second degree murder conviction stands.
Disposition
The judgment is affirmed.

Jenkins, J.

We concur:

Pollak, Acting P. J.
Siggins, J.


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