Filed 4/10/17 P. v. Fleming CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Sacramento)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

ORVILLE GENE FLEMING,

Defendant and Appellant.


C080213

(Super. Ct. No. 14F02911)


Defendant Orville Gene Fleming murdered his girlfriend, Sarah Douglas, by stabbing her multiple times with a kitchen knife and strangling her with a bed sheet. He was convicted by jury of second degree murder and found to have personally used a knife during the commission of the offense. The trial court sentenced him to serve an indeterminate prison term of 15 years to life plus a consecutive determinate term of one year.
On appeal, defendant contends: (1) the trial court violated his constitutional rights by instructing the jury with CALCRIM No. 362 on consciousness of guilt; and (2) the prosecutor engaged in prejudicial misconduct by arguing a fact not in evidence, i.e., the knife defendant used to stab Douglas became dull during the attack. We disagree and affirm the judgment. As we explain, defendant’s challenge to CALCRIM No. 362 has been repeatedly rejected by our Supreme Court. His second contention fails because the knife itself was in evidence and the prosecutor was entitled to offer the jury his impression of that evidence. Whether to accept that impression was, of course, up to the jury.
FACTS
Defendant was a battalion chief for Cal Fire. He met Douglas through an online escort service and paid her for sex three or four times before their relationship became more romantic than professional. Eventually, defendant left his wife and moved into a house with Douglas. In addition to paying the rent, utilities, and other household expenses, defendant also paid Douglas an “allowance” of $1,000 per month. Their relationship was tumultuous, devolving into heated fights once or twice a week.
During the early morning hours of May 1, 2014, one such fight ended in Douglas’s murder. Douglas had been gambling that night at Red Hawk Casino with her sister and mother. They left the casino around 11:00 p.m. Douglas’s sister was driving. She dropped their mother off first, and then Douglas. It was also around 11:00 p.m. that defendant, who had fallen asleep in a recliner while waiting for Douglas to come home, woke up to find she had not yet arrived. He sent her a text message with a single question mark. Receiving no response, he sent another saying: “I’m leaving right now.” According to defendant, he was worried Douglas was involved in an accident and left to drive to the casino to make sure that had not happened. Douglas apparently did not receive these text messages, at least not when they were sent. According to her sister, Douglas’s phone died while they were at the casino. When they reached Douglas’s house, defendant was already gone. Douglas was upset, not knowing why he was not home, and agreed to call her sister once her phone was charged to let her know what happened.
Douglas went into the house to charge her phone. She apparently received defendant’s text messages a short time later and responded with “WTF,” text shorthand for “what the fuck,” followed by a series of text messages saying she was home, her phone had died, and calling defendant a “piece of shit” and “fucking loser.” Defendant was still driving to the casino when he received these text messages and turned around to drive home, responding to them as he drove. What followed was an argument via text message that included defendant accusing Douglas of lying about her phone dying, Douglas calling defendant a number of names, including “bitch ass trick,” and defendant responding by calling Douglas a “lying . . . ho” and “fucking whore.”
When defendant got home shortly after midnight, Douglas was on the phone with her sister. His sudden presence in the hallway startled her, prompting her to say: “Oh, you fucking scared me.” Douglas’s sister then heard defendant mumble something, followed by Douglas saying: “See, Stephanie, I can’t even go to the casino with my own fucking mom and sister.” Douglas called defendant a “bitch” and defendant again said something Douglas’s sister described as “mumbling.” Douglas then screamed and the phone went dead.
Defendant is the only living person who knows exactly what transpired during the ensuing minutes leading up to Douglas’s murder. According to his testimony, Douglas screamed as he took her phone and put it in his pocket. Their argument then continued for several minutes, during which Douglas went into their bedroom, defendant followed, climbed on top of her on the bed, and held her arms down, which he claimed was something she had previously asked him to do to calm her down whenever she “start[ed] to go off and get a little crazy.” They argued in that position on the bed for awhile until defendant felt it was not calming Douglas down. He then went out to the living room. The arguing continued. At some point, defendant decided to try holding her down again and returned to the bedroom. As he did so, Douglas kept repeating: “You are a piece of shit. You are a piece of shit. You are a piece of shit.” It was at this point, according to defendant, he became “sweaty” and “felt like a zombie.” He then got up and walked to the kitchen, retrieved a knife from a drawer, returned to the bedroom, and stabbed Douglas to death. Defendant claimed he did not remember anything after the first plunge of the knife into Douglas’s right clavicle area. Nor did he remember strangling her with a sheet as she slowly bled out in the bedroom.
Douglas’s body was found the following morning when her sister came over to check on her. She was stabbed seven times (once in the head, once in the chest, twice in the back, and three times in the arm), received about a dozen other cuts to her body (including defensive wounds to her hands), and was also strangled with the aforementioned sheet. The tip of the knife blade broke off when Douglas was stabbed in the head and lodged between her skin and skull. This piece of the blade was recovered during her autopsy. The cause of death was a combination of the stab wound to the chest, which would not have killed her very quickly, and ligature strangulation.
DISCUSSION
I
Instruction on Consciousness of Guilt
Defendant contends the trial court prejudicially erred and violated his federal constitutional rights by instructing the jury with CALCRIM No. 362 on consciousness of guilt. He is mistaken.
“It is well established that pretrial false statements by a defendant may be admitted to support an inference of consciousness of guilt by the defendant.” (People v. Edwards (1992) 8 Cal.App.4th 1092, 1102, citing People v. Showers (1968) 68 Cal.2d 639, 643.) Where there is evidence the defendant made a pretrial false statement, the trial court is required to instruct the jury on the proper method of analyzing this evidence. (Id. at p. 1104.) CALCRIM No. 362 correctly instructs the jury on how to do so. (People v. McGowan (2008) 160 Cal.App.4th 1099, 1103-1104.) As given to the jury in this case, the instruction provides: “If the defendant made a false or misleading statement before this trial relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he [or she] was aware of his [or her] guilt of the crime and you may consider it in determining his [or her] guilt. [¶] If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. [¶] However, evidence that the defendant made such a statement cannot prove guilt by itself.”
Defendant does not argue the instruction was unsupported by evidence he made a deliberately false pretrial statement concerning matters within his knowledge and relating to the charged crime. (See People v. Kimble (1988) 44 Cal.3d 480, 496.) After defendant was taken into custody, he provided a statement to law enforcement, during which he made a number of statements that contradicted his trial testimony. For example, he denied taking Douglas’s phone during the argument and claimed she threatened to use her taser on him.
Instead, defendant argues the instruction “creates an unlawful presumption that lightens the prosecutor’s burden of proof and violated his . . . rights to due process, a fair trial, and a reliable jury determination on guilt.” This and other arguments attacking the constitutionality of CALCRIM No. 362 and its nearly-identical predecessor, CALJIC No. 2.03, have been repeatedly rejected by our Supreme Court. (See People v. Page (2008) 44 Cal.4th 1, 50-52; People v. Howard (2008) 42 Cal.4th 1000, 1024-1025; People v. Nakahara (2003) 30 Cal.4th 705, 713; People v. Jackson (1996) 13 Cal.4th 1164, 1223-1224; People v. Kelly (1992) 1 Cal.4th 495, 531-532.) Because CALCRIM No. 362 instructs the jury it may infer a consciousness of guilt only if it first finds the defendant made a knowingly false or intentionally misleading statement relating to the charged crime, and further informs the jury such evidence is not alone sufficient to prove his or her guilt, the instruction properly guides the jury’s consideration of the evidence and does not lessen the prosecution’s burden of proof. (People v. Jackson, supra, 13 Cal.4th at p. 1224.) Moreover, “because [the instruction] precludes a jury from convicting a defendant based solely upon his or her dishonest statements relating to the crimes,” it is favorable to the defense. (People v. Page, supra, 44 Cal.4th at p. 51.) And “[i]f the court tells the jury that certain evidence is not alone sufficient to convict, it must necessarily inform the jury, either expressly or impliedly, that it may at least consider the evidence.” (People v. Kelly, supra, 1 Cal.4th at pp. 531-532.)
There was no error, constitutional or otherwise, in providing the jury with CALCRIM No. 362 in this case.
II
Prosecutorial Misconduct
Defendant also claims the prosecutor engaged in prejudicial misconduct by arguing a fact not in evidence, i.e., the knife defendant used to stab Douglas became dull during the attack. Not so.
A.
Additional Background
The prosecutor argued during his closing argument that defendant committed a premeditated first degree murder, making a cold and calculated decision to kill either when he walked to the kitchen to retrieve the knife and then walked back to the bedroom with it, or when, after the stabbing, he strangled Douglas with the bed sheet rather than call for help.
During the defense closing, counsel argued the jury should convict defendant of voluntary manslaughter, not murder, because the prosecution had not proved beyond a reasonable doubt he did not kill Douglas while in the heat of passion after provocation sufficient to cause him to react out of impulse rather than judgment. In response to the prosecutor’s argument regarding premeditation, defense counsel asked: “If you were acting with due deliberation and judgment, why didn’t his method of killing [Douglas] reflect that? [¶] . . . [¶] . . . Envision cold and calculated [defendant] straddling a girl, a young woman, with her arms like this. If you want to kill this person, you are cool and calculated, what do you do? You stab her 14 times with nonfatal wounds, or do you slit her throat? That’s what a cold and calculated killer does. They kill, and they kill efficiently.” Defense counsel continued: “This is a mess. It’s a horrible mess. . . . He did not kill efficiently. Why would you strangle somebody with a sheet? Why not just get an extension cord and do it that way if you are cold and calculated?”
It was during the prosecution’s rebuttal argument, in response to the foregoing line of argument, that the prosecutor made the challenged comments: “But, ultimately, the defendant’s claim about slitting a throat, evidencing a true cold, calculated decision versus strangling someone to death fails for the following reason: The reason he didn’t slit her throat that night is because the knife was too dull. It was dull because he had stabbed her so many times and had broken the tip off in her head that the knife was no longer useful as a weapon.”
Defendant did not immediately object to these statements or ask the trial court to admonish the jury to disregard them. Instead, defense counsel objected after the jury was given its final instructions and excused from the courtroom to begin deliberations. Counsel also indicated he would “come up with” a proposed curative instruction for the court to review the following day. After receiving the proposed instruction via e-mail, the trial court overruled the objection, noting the jury had already been instructed that “nothing the attorneys say is evidence.”
B.
Analysis
“Under the federal Constitution, a prosecutor commits reversible misconduct only if the conduct infects the trial with such ‘ “unfairness as to make the resulting conviction a denial of due process.” ’ [Citation.] By contrast, our state law requires reversal when a prosecutor uses ‘deceptive or reprehensible methods to persuade either the court or the jury’ [citation] and ‘ “it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct” ’ [citation]. To preserve a misconduct claim for review on appeal, a defendant must make a timely objection and ask the trial court to admonish the jury to disregard the prosecutor’s improper remarks or conduct, unless an admonition would not have cured the harm.” (People v. Davis (2009) 46 Cal.4th 539, 612; People v. Gamache (2010) 48 Cal.4th 347, 370-371.) “A claim will not be deemed forfeited due to the failure to object and to request an admonition only when ‘an objection would have been futile or an admonition ineffective.’ [Citation.]” (People v. Thomas (2012) 54 Cal.4th 908, 937.)
Defendant’s claim of prosecutorial misconduct is arguably forfeited by his failure to object and request a curative admonition when the claimed misconduct occurred, rather than wait to do so until after the jury began their deliberations. In any event, the claim fails on the merits. “ ‘The prosecutor should not, of course, argue facts not in evidence.’ [Citation.] However, ‘the prosecutor has a wide-ranging right to discuss the case in closing argument. He [or she] has the right to fully state his [or her] views as to what the evidence shows and to urge whatever conclusions he [or she] deems proper. Opposing counsel may not complain on appeal if the reasoning is faulty or the deductions are illogical because these are matters for the jury to determine.’ [Citation.]” (People v. Tully (2012) 54 Cal.4th 952, 1043.)
Here, defense counsel argued the jury should draw an inference the killing was done in the heat of passion, rather than as a result of a cold and calculated decision to kill, from the fact defendant did not kill Douglas as efficiently as he could have, i.e., by slicing her throat. In response, the prosecutor also asked the jury to draw inferences from the evidence. The ultimate inference for which the prosecutor argued was slicing Douglas’s throat would not have been a more efficient means of killing her than strangling her with a sheet. He asked the jury to draw this inference from the fact defendant stabbed Douglas so many times with the knife resulting in the embedding of its tip in her head, and from this asked the jury to draw the secondary inference that the knife was thereby rendered too dull to make slicing her throat as efficient a means of killing as defense counsel would have the jury believe. It was for the jury to decide whether any of these proposed inferences should be drawn based on the evidence adduced during the trial.
We cannot conclude the prosecutor overstepped the bounds of proper comment on the evidence.
DISPOSITION
The judgment is affirmed.



/s/
HOCH, J.



We concur:



/s/
RAYE, P. J.



/s/
MAURO, J.