PEOPLE v. BOOKER










Filed 1/20/11



IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE, )
)
Plaintiff and Respondent, )
) S083899
v. )
)
RICHARD LONNIE BOOKER, )
) Riverside County
Defendant and Appellant. ) Super. Ct. No. CR67502
__________________________________ )

STORY CONTINUE FROM PART II….

With respect to Powalka and Amanda, the evidence supports these first degree murder convictions: a trier of fact reasonably could have concluded that after defendant’s initial incident with Corina, he murdered these two victims because they could identify him. (See, e.g., Elliot, supra, 37 Cal.4th at pp. 470‑472 [the jury could have concluded a victim was killed to eliminate her as a witness].) Although the decision to kill Powalka and Amanda may have been formed quickly, a trier of fact reasonably could have concluded that defendant killed them in a cold and calculated attempt to silence them.
With respect to Corina, the evidence also similarly supports a conviction of first degree murder. Although defendant claims he only “nicked” Corina, the wounds on her throat indicate she, too, was killed deliberately. Even under defendant’s version of the events that night, Corina either retreated to the bathroom or he threw her in there. Defendant told the police that he then locked the bathroom. Defendant denied barricading the bathroom door with the chest of drawers, but a trier of fact reasonably could have concluded otherwise, as that certainly was a reasonable explanation (if not the most reasonable one) as to who placed the furniture there and for what purpose. Regardless, defendant told the police that Corina was alive when she went into the bathroom and he trapped her in there. From this, a trier of fact reasonably could have concluded that prior to returning to the bathroom to eventually kill Corina, defendant rapidly and coolly concluded he needed to eliminate her, too, as a witness.
Defendant contends it would have been illogical for him to kill the young women yet let Maddox live. The evidence at trial, however, supports the reasonable conclusion that the two men were friends, and that defendant believed Maddox would not tell the police about the crimes. Maddox in fact did not report the killings and initially lied to the police when he was questioned.
To the extent defendant argues the young women had just met him and thus would not have been unable to identify him, which would have obviated the need to kill them (to eliminate them as witnesses), this rationale also fails: the young women all knew Maddox, and also knew Maddox knew defendant. Had any of the young women survived, they would have readily identified their assailant as a friend of Maddox’s, which, as the evidence at trial demonstrated, would have led the police to defendant. In addition, the young women had spent much of the night with defendant, making it more likely they would be able to identify him, contrary to defendant’s arguments.

b. Rape and lewd act by force

Notwithstanding the sufficiency of the evidence to support his first degree murder conviction for murdering Corina on a theory of premeditation and deliberation, defendant contends the evidence at trial did not prove that he raped Corina, committed a lewd act on her by force, or attempted to do either for purposes of a felony-murder theory. As noted, in addition to the first degree murder convictions, the jury further found true that Corina’s murder was committed during the commission or attempted commission of a rape^[1] (§ 190.2, former subd. (a)(17)(iii), now (a)(17)(C)) or a lewd act by force on a child under 14^[2] (§ 190.2, former subd. (a)(17)(v), now (a)(17)(E)). Corina was 12 years old when defendant committed these crimes.
In addition to instructing the jury that a verdict of first degree murder required the jury find that defendant acted with premeditation and deliberation, the trial court instructed it in the alternative that a murder is committed in the first degree if the killing occurred “during the commission or attempted commission of the crime of rape or lewd act by force with a child.” (See § 189.)
For felony murder, the required mental state is the specific intent to commit the underlying felony. (People v. Friend (2009) 47 Cal.4th 1, 49 (Friend).) The killing is considered to be committed in the perpetration of the underlying felony if the acts were part of a continuous transaction. (E.g., People v. Prince (2007) 40 Cal.4th 1179, 1259 (Prince).) No strict causal or temporal relationship between the murder and underlying felony is required. (E.g., ibid.)
The jury found true the special circumstance that Corina’s murder was committed while defendant “was engaged in . . . the commission of, attempted commission of, or the immediate flight after committing, or attempted to commit” rape or a lewd act by force. (§ 190.2, subd. (a)(17).) As with felony murder, there need not be a strict temporal relationship between the murder and the target felony for purposes of the special circumstance finding. (E.g., People v. Rowland (1992) 4 Cal.4th 238, 271-272.)
An attempt to commit a crime requires the specific intent to commit the target crime (in this case, rape or a lewd act by force) and a direct but ineffectual act, beyond mere preparation, done towards its commission. (People v. Rundle (2008) 43 Cal.4th 76, 138, disapproved on another ground by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 21.) Intercourse after death does not necessarily negate the felony-murder rule or the rape-murder special-circumstance finding, as postmortem intercourse could constitute an attempt to commit rape, provided it was part of a continuous transaction and the intent to commit rape was formed prior to the murder. (See, e.g., People v. Lewis (2009) 46 Cal.4th 1255, 1299-1301 (Lewis).) The same is true for a postmortem lewd act. (See, e.g., People v. San Nicolas (2004) 34 Cal.4th 614, 660-661 (San Nicolas).)
Defendant contends there was insufficient evidence to support the inference that he intended to commit a sexual act on Corina. Defendant correctly notes Corina did not exhibit any signs of genital trauma, and no semen was found on her body or clothing. As noted, however, Corina was discovered with her shorts and panties around her left knee, her legs spread open, and with bloodstains on her thighs that were consistent with hand prints.
Citing People v. Anderson (1968) 70 Cal.2d 15, People v. Granados (1957) 49 Cal.2d 490, and People v. Craig (1957) 49 Cal.2d 313, defendant contends the physical evidence was insufficient to support a finding that he intended to commit a sexual act. Anderson, Granados, and Craig are dependent on their particular facts. Defendant, notably unlike the defendants in those three cases, at one point admitted to the police that he “kind of helped” Corina take off her shorts and “might of touched” her “down there”; he also admitted that he touched her during the course of removing her shorts and the bloodstains on her thighs were consistent with handprints. Thus, the case against defendant rested on more than simply Corina’s nudity. (See, e.g., Lewis, supra, 46 Cal.4th at pp. 1290-1291, fn. 24.) Thus, a reasonable trier of fact could have relied upon the physical evidence, coupled with defendant’s (albeit somewhat equivocal) admission, and concluded that he took direct action toward the commission of a lewd act.
Moreover, Powalka, like Corina, had her shorts and panties rolled around her left knee; this similarity supports the inference that he harbored the lustful intent required by section 288. In People v. Holloway (2004) 33 Cal.4th 96, 138-139, we affirmed a burglary conviction (and related special circumstance finding) where a conclusion that the defendant possessed the requisite felonious intent to commit rape reasonably could have been drawn from the fact that he entered the victim’s residence after attempting to sexually assault another victim outside the residence. In this case, Corina’s and Powalka’s nearly identical states of undress similarly support the inference that Corina’s murder occurred during an attempt to commit a lewd act with her.^[3]
Defendant finally contends there was insufficient evidence Corina was alive when he sexually assaulted her, or at least attempted to do so. A trier of fact, however, reasonably could have concluded Corina was alive during the sexual assault (or attempt), as defendant specifically told the police he instructed her to remove her shorts and then “kind of helped” her in doing so. For defendant to have so instructed Corina and then assisted in removing her shorts, she necessarily still must have been alive at the time. Regardless, even if Corina’s death preceded defendant’s sexual assault on her, a trier of fact reasonably could have found the assault and murder to be a continuous course of conduct, and that defendant formed the intent to sexually assault Corina while she was still alive. (See Lewis, supra, 46 Cal.4th at pp. 1299-1301; San Nicolas, supra, 34 Cal.4th at pp. 660‑661.)

c. Arson

Defendant contends there was insufficient evidence he started the fire in the apartment with the intent to destroy the crime scene, and thus did not commit arson.^[4] Defendant told the detectives he might have placed the bag of clothing on the kitchen stove and then turned on the burner.
Arson, as a general intent crime, requires only that a person possess the intent to burn (or cause to be burned) a structure (or forest land or property); it does not require an intent to do a further act or achieve a future consequence. (See People v. Atkins (2001) 25 Cal.4th 76, 87-89.)
Defendant, cursorily citing several cases, contends the prosecutor failed to prove the typical indicia of arson, such as multiple distinct fires in the dwelling, the presence of inflammatory materials or accelerants, a motive such as indebtedness, or a history of pyromania. Defendant here, however, admitted he starting the fire by placing flammable materials on a stove and then turning it on; in other words, this fire was not accidental. Consequently, a trier of fact reasonably could have concluded that he intended to set the apartment on fire. That his methodology was not the most efficient way to start a fire does not undermine the jury’s finding that he intended to burn the structure. Moreover, given that defendant had committed three murders, his possible motive for arson was readily apparent: to spoliate the crime scene and create a distraction while he made his escape.

d. Attempted murder

Defendant contends there was insufficient evidence he attempted to murder Powalka’s infant son, Eric. Defendant denied knowing Eric was in the apartment, but recalled hearing a baby cry during the evening.
Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. (People v. Ervine (2009) 47 Cal.4th 745, 785 (Ervine).) Attempted murder requires express malice, that is, the assailant either desires the victim’s death, or knows to a substantial certainty that the victim’s death will occur. (See People v. Smith (2005) 37 Cal.4th 733, 739.)
Defendant contends the evidence does not support the finding that he intended to kill Eric. Defendant claims he did not know Eric was in the apartment, as he told the police only that he had heard a baby, somewhere, crying that night. Eric’s playpen, however, was next to Powalka’s bloodstained bed. Given his acknowledgment of the presence of a baby and the location of the playpen, a trier of fact reasonably could have concluded defendant was aware Eric was in the apartment when defendant attempted to set it on fire. Furthermore, defendant placed flammable materials on a stove and turned it on, which generated a lethal amount of smoke and caused moderate damage to the kitchen. Thus, a trier of fact reasonably could have found that defendant, by starting a fire and then leaving the apartment, was substantially certain that the remaining inhabitant — a helpless infant — would be killed. That the fire did not spread to other rooms, or that Eric was rescued before dying from smoke inhalation, does not undermine the jury’s finding regarding defendant’s intent.

e. Multiple-murder special-circumstance findings

Defendant contends there was insufficient evidence to support the multiple-murder special-circumstance findings, because for this special circumstance to apply at least one of the murders must have been in the first degree, and he disputes the sufficiency of the evidence to establish that any of the murders were of the first degree. (See § 190.2, subd. (a)(3); People v. Cooper (1991) 53 Cal.3d 771, 828.) As we have explained, however, the evidence supports the jury’s verdict that all three murders were of the first degree.
As noted, the jury found true the multiple-murder special-circumstance allegation with respect to each victim. Defendant contends, and we agree, that two of the three multiple-murder special-circumstance findings are superfluous. (E.g., People v. Zamudio (2008) 43 Cal.4th 327, 363.) Prior to the start of the penalty phase, however, the trial court explained to the jury that its three separate findings were to be considered as a single special circumstance. Moreover, the judgment reflects only one multiple-murder special-circumstance finding. Although defendant is correct two of the jury’s three multiple-murder special-circumstance findings were superfluous, the trial court’s instructions removed any potential error, and the judgment correctly reflects a single finding.

3. Lack of jury instruction on necessity of a live victim

Defendant contends the trial court erred by failing to instruct the jury, on its own motion, that the commission of a rape or lewd act by force required a live victim. Although defendant did not request a jury instruction on this precise point, he contends there was sufficient evidence that Corina was dead before he sexually assaulted her, and the trial court therefore was required to instruct the jury it was not legally possible for him to commit rape or a lewd act by force if she already was dead, he knew she was dead, and he formed the intent to commit the sex act only after she had died.
The crime of rape requires a live victim; the intent to have sexual intercourse with a dead body is neither rape nor attempted rape. (E.g., Lewis, supra, 46 Cal.4th at pp. 1299-1301.) The same is true for committing a lewd act. (See, e.g., San Nicolas, supra, 34 Cal.4th at pp. 660-661.)
This contention lacks merit. Defendant’s contrary assertions on appeal notwithstanding, his statements to police implied Corina was alive when he helped her remove her shorts. Defendant admitted Corina was bleeding at the time, but he specifically told the police that “[s]he wasn’t stabbed all the way, I only cut [her] a little bit.” Although defendant stated Corina was lying down at the time and did not say anything, that is not evidence that she was dead, especially in light of defendant’s specific statement that her injuries were not serious at that time. And, as noted, defendant also initially told the police that he ordered Corina to remove her shorts; defendant does not explain why he would give orders to someone who was already dead.
Even were we to agree with defendant that the evidence suggested Corina already might have been dead, the trial court did not err in failing to instruct on its own motion as to this particular theory. In criminal cases, even absent a request, a trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence. (E.g., People v. Martinez (2010) 47 Cal.4th 911, 953 (Martinez).) A trial court, however, has a duty to instruct on its own initiative on a particular defense only if it appears the defendant is relying on such a defense, or substantial evidence supports the defense and it is consistent with defendant’s theory of the case. (Ibid.)
At trial, defendant did not rely upon the theory that Corina was already dead; rather, defense counsel suggested that Maddox was partially (or totally) responsible for the crimes, or, alternatively, that defendant’s own actions did not rise to the level of first degree murder. Although this claim that Corina was already dead, raised for the first time on appeal, is not entirely inconsistent with the theory defendant presented at trial, as we have explained, no substantial evidence was presented at trial that would have compelled the trial court to instruct the jury on this particular defense.
Defendant relies heavily on People v. Sellers (1988) 203 Cal.App.3d 1042 (Sellers), in which the Court of Appeal reversed the defendant’s conviction of rape and first degree murder, as well as a rape-murder special-circumstance finding, due to the trial court’s failure to instruct the jury that rape requires a live victim. Sellers is readily distinguishable, however, because in that case substantial evidence was presented at trial that the victim was dead when the defendant had sexual intercourse with her body. Under the defendant’s theory of the case in Sellers, he killed the victim, left and returned to the crime scene an hour or two later, and then performed the sex act. This substantial passage of time bolstered the defendant’s theory the victim was dead, that he formed the intent to commit the sex act only after her death, and that the rape and murder were not part of a continuous course of conduct. Moreover, the lack of a live victim was a key theory of the defendant’s case, and the trial court there refused to use the defendant’s proffered jury instructions that highlighted this theory. Similarly, in People v. Kelly (1992) 1 Cal.4th 495 (Kelly), due to instructional error we reduced a rape conviction to attempted rape because there was some evidence that the defendant, despite his admission to the contrary, killed a victim at one location and had sexual intercourse with her body in another. This reduction, however, had no effect on the accompanying murder and special circumstance findings. (Id. at p. 528.)
In contrast to Sellers and Kelly, the evidence presented at defendant’s trial of any purported postmortem sexual activity (or intent) consisted solely of a highly charitable interpretation of defendant’s statements to the police, as he never specifically told them he sexually assaulted Corina (or formed the intent to do so) only after her death. Even if Corina was dead when defendant removed her shorts, the evidence at trial still supported a theory that defendant’s acts constituted a continuous course of conduct following from an intent that defendant formed while Corina was still alive. As we have explained, ante, the evidence was sufficient to support the conviction for first degree murder based on a felony-murder theory, as well as the related felony-murder special-circumstance findings. In addition, there was no evidence the killing and sexual assault took place at different locations. Moreover, defendant at trial did not advance, let alone rely on, this theory of the case. Consequently, the trial court did not err in failing to instruct the jury on a theory of the case that was neither substantially supported by the evidence nor relied on by defendant at trial.
To the extent defendant contends the trial court failed to instruct the jury that an antemortem-formed intent to commit rape or a lewd act by force is required for a first degree felony-murder conviction, we repeatedly have held that CALJIC No. 8.21,^[5] which the trial court read to the jury here, adequately conveys that the required intent must be formed before the murder occurred. (E.g., People v. Jones (2003) 29 Cal.4th 1229, 1258-1259.)

4. Lack of jury instruction on lesser included offense of manslaughter

Defendant contends the trial court erred by refusing his request to instruct the jury on voluntary manslaughter with respect to the deaths of Powalka and Amanda.^[6] Defendant told the police that he accidentally “nicked” Corina, and Powalka responded by retrieving her handgun and threatening to shoot him. Defendant then claimed he struck Powalka and took the gun from her. Amanda, defendant told police, charged him, and during the ensuing melee he stabbed both victims and eventually shot Amanda.
As noted, a trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence. (E.g., Martinez, supra, 47 Cal.4th at p. 953.) It is error for a trial court not to instruct on a lesser included offense when the evidence raises a question whether all of the elements of the charged offense were present, and the question is substantial enough to merit consideration by the jury. (E.g., Taylor, supra, 48 Cal.4th at pp. 623-625.) When there is no evidence the offense committed was less than that charged, the trial court is not required to instruct on the lesser included offense. (E.g., People v. Moye (2009) 47 Cal.4th 537, 548 (Moye).) Voluntary manslaughter is a lesser included offense of murder. (E.g., id. at p. 549.)
On appeal, we review independently whether the trial court erred in failing to instruct on a lesser included offense. (E.g., People v. Avila (2009) 46 Cal.4th 680, 705.)
Defendant, relying on People v. Vasquez (2006) 136 Cal.App.4th 1176, contends there was sufficient evidence that he committed voluntary manslaughter under a theory of imperfect self-defense, and thus the trial court should have instructed the jury on this lesser included offense. Imperfect self-defense is the killing of another human being under the actual but unreasonable belief that the killer was imminent danger of death or great bodily injury. (E.g., People v. Cruz (2008) 44 Cal.4th 636, 664.) Such a killing is deemed to be without malice and thus cannot be murder. (E.g, ibid.) The doctrine of imperfect self-defense cannot be invoked, however, by a defendant whose own wrongful conduct (for example, a physical assault or commission of a felony) created the circumstances in which the adversary’s attack is legally justified.^[7] (E.g., People v. Valencia (2008) 43 Cal.4th 268, 288; cf. People v. Randle (2005) 35 Cal.4th 987, 1001-1003 [defendant’s retreat, and the subsequent recovery of the decedent’s stolen goods, extinguished the decedent’s legal justification to attack], overruled on another ground by People v. Chun (2009) 45 Cal.4th 1172, 1201; Vasquez, supra, 136 Cal.App.4th at pp. 1178-1180 [although the defendant initiated the verbal quarrel, the decedent’s physical response was unlawful].)
Defendant contends he was entitled to an instruction on imperfect self-defense, as there was evidence that he (actually but unreasonably) believed he was in imminent danger of being killed or suffering great bodily injury at the hands of Powalka and Amanda. As defendant initiated the attack on Corina, however, and there was no evidence that Powalka’s and Amanda’s subsequent actions were not legally justified, he may not claim imperfect self-defense.
Defendant nonetheless contends there was evidence that he was not the initial aggressor because he told the police that he accidentally inflicted Corina’s injuries, and thus he claims his conduct was not wrongful. (See § 26, class Five.) Accordingly, defendant contends because there was evidence that he harbored no criminal intent when he first cut Corina, there was sufficient evidence to warrant the voluntary manslaughter instruction.
Even were we to agree with defendant that an “accidental” stabbing is not wrongful, which according to him would allow him to claim imperfect self-defense, the evidence was not sufficiently substantial to warrant this jury instruction. (See, e.g., Taylor, supra, 48 Cal.4th at pp. 623-625.) Defendant told the police, “I already stabbed [Corina] once on accident[;] I just stabbed her again.” (Italics added.) As such, any potential claim of imperfect self-defense evaporated when he intentionally stabbed Corina a second time. Although defendant on appeal prefers to highlight his statements to the police in which he omitted mentioning this second, intentional stabbing, the evidence introduced at trial — consisting of his contradictory accounts of how he stabbed Corina — simply was not substantial enough to merit the requested jury instruction.
Finally, defendant contends he was entitled to a voluntary manslaughter instruction based on a theory of heat of passion,^[8] claiming he was provoked into killing Powalka and Amanda by their aggressive actions towards him. Unsurprisingly, defendant fails to cite any case or statutory law supporting his proposition that Powalka’s anger at him for cutting Corina, and Amanda’s later anger for his attack on Powalka, somehow “provoked” him into killing them. Consequently, the trial court did not err in declining to instruct the jury on this theory.

5. Asserted prosecutorial misconduct

Defendant contends the prosecutor, during closing arguments, improperly attempted to shift the burden of proof onto him. During the closing argument, the prosecutor told the jury:
“I had the burden of proof when this trial started to prove the defendant guilty beyond a reasonable doubt, and that is still my burden. It’s all on the prosecution. I’m the prosecutor. That’s my job.
“The defendant was presumed innocent until the contrary was shown. That presumption should have left many days ago. He doesn’t stay presumed innocent.”
Defendant objected to this remark; in response, the trial court instructed the jury: “Well, ladies and gentlemen, the presumption of innocence is the point at which you start the case. At some point you come to the conclusion the person is guilty, the presumption is gone. On the other hand, if you find the person is not guilty, the presumption of innocence is always there. Again, you have to interpret how to use that.”
After this instruction, the prosecutor continued: “As the Court instructed you, I was correct, that the defendant starts out with the presumption of innocence. That doesn’t stay. That isn’t an automatic thing forever. That’s why we have a trial. Once the evidence convinces you he is no longer innocent, that presumption vanishes. That’s all it is.”
Later during his closing argument, the prosecutor stated: “If you read histories about the theory of reasonable doubt — not theory, the facts and the presumption of innocence, you’ll understand that when the law tried many centuries ago to prove — there was a requirement at one time that everything had to be proved absolutely. They found they couldn’t do it. They could never prove everything absolutely to anybody as long as it had to do with human affairs. There was no way to ensure that, so you were allowed some possible or imaginary doubt. The real test, the law says, is do you have an abiding conviction as to the truth of the charges. Don’t you already before we go through it‌” Outside the presence of the jury, defendant objected to these remarks, and the trial court overruled the objection.^[9]
A prosecutor’s conduct violates the federal Constitution when it infects the trial with unfairness, and violates state law if it involves the use of deceptive or reprehensible methods of persuasion. (See, e.g., Martinez, supra, 47 Cal.4th at p. 955.) To preserve a misconduct claim for appellate review, a defendant must make a timely objection and ask the trial court to admonish the jury to disregard the remark (or conduct) unless such an admonition would not have cured the harm. (E.g., id. at p. 956.) When the claim focuses on the prosecutor’s comments to the jury, we determine whether there was a reasonable likelihood that the jury construed or applied any of the remarks in an objectionable fashion. (Friend, supra, 47 Cal.4th at p. 29.)
A defendant is presumed innocent until proven guilty, and the government has the burden to prove guilt, beyond a reasonable doubt, as to each element of each charged offense. (§ 1096; e.g., People v. Kobrin (1995) 11 Cal.4th 416, 419; People v. Freeman (1994) 8 Cal.4th 450, 501-505.) Defendant contends the prosecution’s remarks lessened its burden of proof by implying defendant was not entitled to be presumed innocent.
This contention lacks merit. In People v. Goldberg (1984) 161 Cal.App.3d 170, 189-190, the Court of Appeal rejected a similar claim, noting that similar comments by the prosecutor in that case were merely rhetorical restatements of the law as reflected in section 1096 and CALJIC No. 2.90. As the Court of Appeal noted, “Once an otherwise properly instructed jury is told that the presumption of innocence obtains until guilt is proven, it is obvious that the jury cannot find the defendant guilty until and unless they, as the fact-finding body, conclude guilt was proven beyond a reasonable doubt.” (Goldberg, supra, 161 Cal.App.3d at pp. 189-190, original italics.) We agree. Although we do not condone statements that appear to shift the burden of proof onto a defendant (as a defendant is entitled to the presumption of innocence until the contrary is found by the jury), the prosecutor here simply argued the jury should return a verdict in his favor based on the state of the evidence presented.
Defendant relies upon United States v. Perlaza (9th Cir. 2006) 439 F.3d 1149, 1169, in which the prosecutor argued to the jury, “ ‘[The presumption of innocence], when you go back in the room right behind you, is going to vanish when you start deliberating. And that’s when the presumption of guilt is going to take over you . . . .’ ” (Original italics.) The Ninth Circuit ruled the prosecutor’s remark constituted misconduct, and that the trial court’s curative instruction failed its correct its initial ratification of the prosecutor’s argument when it stated in the presence of the jury, “ ‘That’s proper rebuttal. Go ahead. You are all right.’ ” (Id. at p. 1171, fn. 25.) Perlaza, which is not binding on us, is distinguishable as not only did that prosecutor make an incorrect statement of law (“ ‘presumption of guilt’ ”, but the error was compounded by the trial court’s initial ratification of the misstatement (“ ‘[y]ou are all right’ ”, and the Ninth Circuit ruled the curative instruction neither set forth the prosecutor’s burden of persuasion (that is, proof beyond a reasonable doubt), nor clarified that the presumption of innocence “ ‘goes with the jury when it deliberates.’ ” (Id. at pp. 1171-1172 & fn. 25.) Although defendant here contends the prosecutor’s argument (and the trial court’s follow up remarks) in his case failed to specify explicitly that the presumption of innocence continued until jury deliberations, that concept was addressed adequately by CALJIC No. 2.90, which the trial court read to the jury. Moreover, the prosecutor here emphasized that he bore the burden of proof beyond a reasonable doubt, and defense counsel noted he had no burden of proof and argued the prosecutor had failed to meet his burden. As such, the jury was not misled.
Defendant also relies on People v. Hill (1998) 17 Cal.4th 800, 831, in which we concluded it was reasonably likely that the prosecutor’s remark, “ ‘There has to be some evidence on which to base a [reasonable] doubt’ ” (italics original), was understood by the jury to mean the defendant had the burden of producing evidence to demonstrate that a reasonable doubt existed. Although we reversed the verdict in Hill, that was but one of the many acts of prosecutorial misconduct and other errors that plagued that trial.
Even were we to assume the prosecutor committed misconduct, prejudice is lacking under either the state law (see People v. Watson (1956) 46 Cal.2d 818, 836) or the federal constitutional standard of review (see Chapman, supra, 386 U.S. at p. 24). Viewing the prosecutor’s statements in the context of his entire argument, the jury was properly informed about the prosecutor’s burden, and the evidence of defendant’s guilt (notably, his own confession) was overwhelming.

6. Cumulative error

Defendant contends that if we do not conclude that any individual guilt phase error mandates reversal, the cumulative effect of the guilt phase errors requires reversal. We disagree. To the extent that there are a few instances in which we found or assumed the existence of error, we concluded that no prejudice resulted from any such error. Accordingly, the cumulative nature of the guilt phase errors, if any, does not lead us to conclude that defendant was denied a fair trial.

C. Penalty Phase Issues

1. Admission of photographs

Defendant contends the trial court erred by “re-introduc[ing]” during the penalty phase the photographs it admitted into evidence during the guilt phase. During the penalty phase, the prosecutor did not introduce any new photographs but rather referenced the ones previously introduced, and the trial court instructed the jury that it could consider the evidence admitted during the entire trial.
Photographic evidence is generally admissible, just as all relevant evidence is admissible (unless excluded by the federal or state Constitution or by statute), and trial courts have broad discretion in determining relevance. (E.g., D’Arcy, supra, 48 Cal.4th at p. 298.) As we have noted repeatedly, the trial court’s discretion to exclude photographs as unduly prejudicial during the penalty phase is even more circumscribed than admission of photographs during the guilt phase, as “ ‘ “ the sentencer is expected to subjectively weigh the evidence, and the prosecution is entitled to place the capital offense and the offender in a morally bad light.” ’ [Citations.]” (Id. at p. 299, original italics.)
As discussed, ante, we have reviewed the photographs and the trial court did not abuse its discretion in admitting the photographs during the guilt phase. With respect to the penalty phase, the photographs graphically here depicted the crime scene and the victims’ wounds, and as such were relevant to the penalty determination as evidence of the circumstances of the crime. (See § 190.3, factor (a); see, e.g., D’Arcy, supra, 48 Cal.4th at pp. 298-299.) Accordingly, it was permissible for the jury to rely on those photographs during the penalty phase, and the trial court did not err in instructing the jury that it could consider the evidence admitted during the guilt phase.^[10]

2. Admission of evidence of uncharged violent criminal conduct

Defendant contends the trial court erred by admitting evidence of uncharged violent criminal conduct. Over defense objection, the trial court permitted the prosecutor to introduce evidence that defendant: stabbed his uncle; threatened a neighbor; chased someone down the street while wielding a stick; and displayed a knife while others fought.
Jurors may consider evidence of uncharged violent criminal conduct by defendant that involved the use or attempted use of force or violence, or express or implied threat to use force or violence, but only if they were convinced beyond a reasonable doubt that defendant had engaged in such activity.^[11] (See, e.g., People v. Wallace (2008) 44 Cal.4th 1032, 1079.) Although a trial court lacks the discretion to exclude all such evidence, it retains the traditional discretion to exclude specific evidence if it is misleading, cumulative, or unduly prejudicial. (Ibid.)
Defendant notes other jurisdictions have prohibited or otherwise limited the introduction of uncharged violent criminal conduct. (See Cook v. State (Ala. 1979) 369 So.2d 1251, 1257; Provence v. State (Fla. 1976) 337 So.2d 783, 786‑787; State v. McCormick (Ind. 1979) 397 N.E.2d 276; Scott v. State (Md. 1983) 465 A.2d 1126, 1132-1134; Commonwealth v. Hoss (Pa. 1971) 283 A.2d 58, 68-69; State v. Bartholomew (Wn. 1984) 683 P.2d 1079, 1082-1085.) As defendant concedes, however, we repeatedly have ruled there is no prohibition against such evidence in California.^[12] (E.g., People v. Gurule (2002) 28 Cal.4th 557, 653-654.) Defendant offers no persuasive reason to reexamine these prior decisions.
Defendant further contends evidence of this violent criminal activity was unduly prejudicial and misleading, and violated his constitutional rights to due process and to a fair and reliable penalty determination. Defendant fails to explain how any of the evidence was misleading, other than weakly suggesting the evidence wrongly portrayed him as a “dangerous knife wielding assassin.” “Prejudice” in the context of Evidence Code section 352 is not synonymous with “damaging”: it refers to evidence that poses an intolerable risk to the fairness of the proceedings or reliability of the outcome. (See People v. Alexander (2010) 49 Cal.4th 846, 904-905.) Although the evidence of his violent criminal activity likely was damaging to defendant, he fails to demonstrate how it was unduly prejudicial — the inference that he was dangerous was entirely proper. Accordingly, the trial court did not abuse its discretion in admitting this evidence, and defendant’s constitutional rights were not violated.
Defendant finally contends the prosecutor failed to prove beyond a reasonable doubt that his uncharged conduct rose to the level of violent criminal activity. “We review the record ‘for substantial evidence from which a jury could conclude beyond a reasonable doubt that violent criminal activity occurred.’ [Citations.]” (People v. Carrington (2009) 47 Cal.4th 145, 194 (Carrington).)
Defendant does not dispute that he stabbed his uncle, but rather contends he did so in self-defense, which would make his use of force lawful. Although the uncle’s testimony supported defendant’s claim of self-defense, other evidence indicated defendant was not in imminent danger, and that he stabbed his uncle out of anger. Moreover, the trial court instructed the jury with the elements of self-defense, which we presume it understood and applied. (See, e.g., People v. Butler (2009) 46 Cal.4th 847, 873.)
Defendant similarly does not dispute saying that he would kill a neighboring family, but rather contends one of the neighbors testified that he was not afraid of defendant.^[13] Another neighbor, however, did feel threatened, and reported defendant’s statements to the police.
Defendant further does not dispute that he chased somebody down the street while wielding a stick. Although there was no evidence defendant actually struck this other person with the stick, the evidence supported the inference that he was attempting to do so.



TO BE CONTINUED AS PART IV….

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