Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. Nos. C145608 & 145754.
STEIN, J.
James Lamont Baldwin (defendant) was convicted by jury of first degree murder, and being a felon in possession of a firearm. The jury also found true an enhancement allegation that he discharged a firearm causing great bodily injury. The court sentenced defendant to a prison term of 25 years to life for first degree murder, and a consecutive term of 25 years to life for the firearm use.
Defendant waived his right to a jury trial on a prior prison term allegation. The court found this allegation true, but later granted the prosecutor’s motion to strike pursuant to Penal Code section 1385.
On appeal defendant contends: (1) The prosecutor engaged in numerous instances of misconduct that individually or cumulatively rendered the trial fundamentally unfair; (2) the court abused its discretion under Evidence Code section 352 by admitting many portions of recorded telephone calls between defendant and one of his girlfriends, and the admission of this evidence violated his federal constitutional right to due process; (3) the court erred by admitting evidence of threats and violence against witnesses that were neither made nor authorized by defendant; (4) the court failed adequately to investigate jury misconduct; and (5) the cumulative prejudicial effect of the foregoing errors deprived defendant of due process and a fair trial.
Facts
On July 1, 2002, the Oakland police found the body of Terrill Zachary lying between two parked cars on 91st Avenue between A and B Streets. He had been shot five times, twice to the back of the head and three times to the back of the lower torso. Firearms experts determined that the murder weapon was a .40 caliber Glock pistol, and that all nine .40 caliber shell casings found at the scene came from a single gun.
Wesley Tucker
Sergeant Medeiros, a member of the Oakland Police Department’s homicide unit, was assigned to investigate Terrill Zachary’s murder. Other than a few anonymous tips, the case was essentially inactive until September 10, 2002, when Wesley Tucker was arrested standing near a car containing illegal drugs. To avoid being returned to custody, Tucker offered to provide information about the murder. He was interviewed by Sergeant Longmire, and identified Mr. Baldwin as the killer and Eric Gaines, also known as “Little E,” as the person who drove him to the scene of the murder. Tucker had not reported what he knew to the police earlier because there was a code on the street—if you talk to the police you get killed. He was worried that if he cooperated with the police something might happen to his children or their mother, who lived in Oakland.
Tucker testified that, prior to the murder, he had been Mr. Baldwin’s friend for approximately 10 years. On July 1, 2002, Tucker and his four-year-old son were leaving a baseball game at the Oakland Coliseum when defendant called from his girlfriend, Mocha Aldridge’s, house on 100th Avenue and asked Tucker to pick him up. Tucker first picked up his brother Phil Jones and their friend Aaron Thigpin, then drove to 100th Street, where he picked up Mr. Baldwin. While riding in the car, Mr. Baldwin borrowed Tucker’s cell phone to make several calls. In one of these calls, he told someone to meet him at 90th Street and bring “his 40,” meaning his .40 caliber pistol. Tucker dropped his son off at his mother’s house before he and the others went to a liquor store near the corner of 90th Avenue and East 14th Street.
Mr. Baldwin and Phil Jones began a heated argument over an incident that had occurred a few nights earlier. Phil threatened Mr. Baldwin with a small bat, and Mr. Baldwin responded with verbal threats. As Tucker tried to stop them from fighting, a white Nissan Altima drove up. Another of Mr. Baldwin’s girlfriends, Tynesha Ross, was in the back seat. Mr. Baldwin walked over to the car, leaned in and while looking for his gun, muttered, “Where is it?” After a few seconds, he turned around, walked over to Phil, and punched him in the face. When Phil fled into a nearby liquor store, Mr. Baldwin yelled at him to come back and fight.
Tucker continued to try to calm Mr. Baldwin down, but others arrived, including Erik (Little E) Gaines, and urged him on. When Gaines offered to join Mr. Baldwin in a fight against Phil, Tucker started arguing with Gaines about escalating the fight. Eventually, Mr. Baldwin calmed down, and decided to go for a ride with Gaines.
Later, Tucker and Aaron Thigpin, who were standing at the corner of 90th Avenue and East 14th Street, heard a series of “pops” and saw Mr. Baldwin running up the street saying someone was shooting at him. He jumped into Tucker’s car and told Tucker to take him to his brother Kenny’s house on 71st Avenue. As he drove, Tucker asked what had happened. Mr. Baldwin replied he had made Terrill Zachary because he believed Terrill Zachary had killed his friend, “Little T.” Mr. Baldwin, who had previously told Tucker that he had shot someone else whom he believed had killed “Little T,” said that he was sure Terrill Zachary was the real killer because he had the same kind of gun used to kill “Little T.” Mr. Baldwin told Tucker he had been riding in Erik Gaines’s car when he saw Terrill Zachary. He got out of the car, ran up to Terrill Zachary and shot him. The only person who saw his face was Randy Hicks, also known as “Bone.” During the drive, Mr. Baldwin removed a .40 caliber pistol from the pocket of his hoodie. When they reached his brother’s house, Mr. Baldwin went inside and changed into a Pendleton jacket and a Raiders hat. Tucker then drove him to a nearby gas station where Mr. Baldwin drove off with another friend.
Tucker drove back to 91st Avenue to see if what Mr. Baldwin had said was true. The police had blocked off the crime scene, Terrill Zachary was lying on the ground under a sheet and Mr. Baldwin, Aaron Thigpin, Jermaine Fudge and Reggie Brown were in the crowd that had gathered.
After murder charges were filed against Mr. Baldwin, a friend of his told Tucker that he knew Tucker was a witness, and that he should leave town. Despite being on probation in Alameda County, Tucker moved out of state because he was afraid he would be killed for his involvement in the case. Someone also approached the mother of his children at a shopping mall and asked whether they still lived in the same place. Eventually Tucker was arrested out of state and returned to California for violating his probation. Tucker continued to fear for his safety in custody, and for the safety of his children and their mother, because of his cooperation with the police.
He testified that Mr. Baldwin’s sister had gone to his house and told the people there to tell Tucker not to come to court and testify.
Mr. Baldwin’s Arrest
After obtaining this information from Tucker, Sergeant Medeiros decided to conduct a parole search of Mocha Aldridge’s home, where Mr. Baldwin resided. In order not to alert him that he was the target of a murder investigation, Sgt. Medeiros informed the patrol officers who were to conduct the search to treat it as a parole search without mentioning the murder investigation. The officers conducted the search on September 20, 2002, and found a small amount of marijuana in a shoe box, and a dreadlock wig. They arrested Mr. Baldwin for marijuana possession, his parole was revoked. The murder charges were filed against him in April 2003.
Mr. Baldwin’s phone calls
In telephone conversations with Mocha Aldridge following his arrest for the parole violation, Mr. Baldwin repeatedly complained that somebody was “snitching.” He referred to being investigated by homicide officers and also discussed leaving town with Aldridge, or by himself. At one point he told her that she could “have been gone too” and the authorities would offer her “low term 25.”
Erik Gaines
On October 22, 2002, the police picked up Erik Gaines on an outstanding warrant. He provided a detailed account of Mr. Baldwin’s involvement in Terrill Zachary’s murder and was released without charges. In his statement, Gaines said he was willing to tell the police all he knew about the murder but he would not sign any papers or go on tape because he was afraid he would be killed. Throughout the interview he repeated that he was afraid to give information and did not want to testify because he was concerned he would be killed. Gaines said that Randy Hicks was also scared because he had come face to face with defendant right after the shooting, and that Jermaine Fudge and Reggie Brown were also afraid that defendant was “going to try to kill them.”
Sergeant Medeiros surreptitiously taped the interview.
Gaines said that shortly before the shooting, he and Mr. Baldwin were cruising the neighborhood in Gaines’s car. Gaines turned onto 91st Avenue at A Street but when he reached the end of the block, at B Street, Mr. Baldwin asked Gaines to turn around and loop back. As Mr. Baldwin looked at Terrill Zachary he said, “That’s that [person who] killed T.” Terrill Zachary was talking to Bone; nearby were Jermaine Fudge and Reggie Brown. Mr. Baldwin, who was wearing a black hoodie and jeans, instructed Gaines to drive around the block and let him out. As he got out of the car, he put on a braided wig. Gaines also noticed that he had a .40 caliber pistol that he regularly carried. Gaines drove away, but then headed back to 91st Street. When he reached 91st Avenue and D Street, he saw Bone and Jermaine Fudge running and picked them up. Bone told him that Mr. Baldwin walked up to Terrill Zachary with his gun out and when he started to run, Mr. Baldwin shot him in the back several times. Terrill Zachary fell and Mr. Baldwin stood over him and “let him have it.”
Gaines saw Mr. Baldwin about an hour and a half later at 90th Avenue and East 14th Street. He had changed his clothes. Gaines complained to him that he had made his car “hot” by shooting Terrill Zachary. Mr. Baldwin said that no one would connect the car to the murder. When Gaines asked why he had killed Terrill Zachary, Mr. Baldwin responded that he had killed “Little T” and that it was “murder for murder.” After that conversation, Gaines stayed away from Mr. Baldwin.
Before Gaines testified at the preliminary hearing, Deputy District Attorney Ford read to him the transcript of his taped interrogation. Gaines was distressed to learn it had been taped, but confirmed the statement was accurate. He also expressed concern about who would be in the courtroom. When the prosecutor told him that Mr. Baldwin and several members of his family were present, Gaines said he was afraid to testify because he was in custody, going to prison for robbery, and feared a “snitch jacket” would place his life in danger.
When Gaines took the stand at the preliminary hearing, he refused to answer questions. The court ordered him to respond and he testified he simply told the police what he thought they wanted to hear so that he could go home, and that a lot of his statement was “gibberish” based upon rumors on the street. He acknowledged that he had asked the district attorney who would be in the courtroom, explaining that he had to go back to live in the neighborhood and “you can get killed” for testifying.
Jermaine Fudge
Jermaine Fudge testified in Mr. Baldwin’s defense that on the night of July 1, 2002, he was hanging out with Bone on 91st Avenue. He saw Terrill Zachary walking down 91st Avenue, followed by another person wearing a black hoodie. Fudge did not recognize the person, but recalled that he was shorter and thinner than defendant. The person walked behind a van and started shooting. He and everyone else ran away from the scene. Later, Fudge and Bone were picked up by Gaines and in the car they discussed why Terrill Zachary had been shot, but Bone never said he saw the killer.
Aaron Thigpin
Aaron Thigpin, testifying in Mr. Baldwin’s defense, stated that he, Tucker and Phil Jones were driving around together on the night of July 1, 2002; however, Mr. Baldwin was never in the car with them and he did not see him until later that week. Later that evening, while he and Tucker were hanging around a liquor store at 90th Avenue, they heard what sounded like firecrackers. He walked up the street and came across the crime scene. Aaron testified that Tucker and Mr. Baldwin had been good friends, but that they had a falling out. Tucker told Aaron that he did not like Mr. Baldwin, and wanted to “pay[] him back.” Aaron acknowledged that it would put his life in danger to be a “snitch,” but testified he had nothing to fear because he did not know anything about the murder.
Phil Jones
Phil Jones was out of state and did not testify at the trial.
Randy Hicks
Randy Hicks was killed prior to the trial.
Defense Case
Mocha Aldridge testified that she and Mr. Baldwin had arranged to go to his mother’s house in Modesto on June 30, 2002, the day before the murder. Deborah Baldwin, defendant’s mother, arrived in Oakland in a rented car to pick them up but defendant was out with friends and could not be located. Aldridge drove to Modesto with Mr. Baldwin’s family, and returned later that evening in the rental car to get him. They arrived in Modesto late that evening, and stayed through the July Fourth holiday.
Cecelia Franklin, a good friend of Deborah Baldwin’s, testified that she had seen defendant at Deborah Baldwin’s house on June 30 and July 1. Denise Pitts, another close friend of Deborah Baldwin, testified that she recalled seeing Mr. Baldwin at his mother’s house in the evening of July 1.
Deborah Baldwin testified that she rented a car from Enterprise Rent-A-Car (Enterprise) in Modesto on June 30 and drove to Oakland, arriving around noon. Her son could not be found, so she drove back to Modesto with Aldridge. Later that day, Deborah Baldwin let Aldridge take the car back to Oakland to pick up her son. Aldridge returned with him late that night and they stayed at her house until the evening of July 4. Deborah Baldwin acknowledged on cross-examination that she had been barred from renting from Enterprise since 2001 because of an outstanding debt. She explained that Cecilia Franklin had rented the car for her on or around June 28 and that she had paid for the rental expenses in cash.
Defendant testified that he and Mocha Aldridge drove to his mother’s house in a rented car, arriving in Modesto at 8:30 p.m. on June 30, 2002, and that they stayed there until the evening of July 4. When asked about his taped jail conversations with Aldridge, defendant denied that he believed he was being investigated for murder. His reference to “low term 25” in the call was not to the 25-year-to-life sentence for murder, but rather a reference to a 25-month term for a drug offense that Aldridge would have to serve if she were convicted and got the low term of three years for selling marijuana. He explained that when he talked about someone “snitching” he was referring to his marijuana stash. He would not identify the third party he was talking to on the phone until, after four refusals, the court ordered him to answer. He said he knew the person only as Boo or Booby, and that he and Boo had agreed to become partners in a record business. His directions to Boo to “handle that shit,” “check your surroundings,” and “snitching” all referred to handling record business arrangements. Boo had $1,500 dollars for defendant, and when defendant told him not to let anyone send him the “b’zat” he was referring to this cash. He stated that his reference to a “b’zat” did not refer to a gun, and he was concerned that if anyone sent his cash to Aldridge, she would spend it.
Mr. Baldwin denied shooting Terrill Zachary, and testified that he had no ill feelings towards him. He and Tucker, on the other hand, had a falling out sometime before July 2002. Their friendship cooled over an affair he had with the mother of one of Tucker’s children, and after he had a physical fight with Tucker’s brother, Phil Jones.
Germain Tapia lived at 91st Avenue between A and B Streets. He had tried to stay uninvolved, but was located by the defense and subpoenaed to testify near the end of trial. He testified that on the night of July 1, 2002, he was at 91st Avenue and A Street helping a friend work on a car. At 11:00 p.m. he saw a person in a blue hoodie walk by. Tapia could not see his face because his hood was up, but the person was shorter and skinnier than Mr. Baldwin and walked with a limp. A few minutes later Tapia heard approximately 10 shots. He saw two guys run past, and then ran inside his house.
Rebuttal
Jason Tardiff, the custodian of records for Enterprise, testified that a silver Pontiac Grand Am had been rented to Cecelia Franklin on July 2, 2002, at 5:44 p.m., the day after the murder. The car was rented from July 2, 2002, through August 12, and was paid for in cash. Cecelia Franklin had also rented a Toyota Camry on June 19, 2002, which she returned on June 24, 2002. Tardiff confirmed that since May 17, 2001, Enterprise had in effect a “do not rent” flag for Deborah Baldwin.
Analysis
I
Prosecutorial Misconduct
Defendant contends the prosecutor committed misconduct by repeatedly (1) asserting or arguing facts not in evidence; (2) vouching for the integrity of his witnesses; (3) misstating the facts; (4) misstating the law; (5) appealing to passion and prejudice; (6) using leading questions as a means to testify, and accusing defense witnesses of concealing exculpatory evidence such as defendant’s alibi until the trial, or simply fabricating their testimony; and (7) accusing defense counsel of concealing evidence and participating in a conspiracy to threaten or intimidate witnesses. He contends each incident of misconduct was part of the prosecutor’s overall strategy to cast the trial as a personal contest between the prosecutor “as an embodiment of morality and the social order—against the [defendant] and [defendant’s] loved ones, whom the prosecutor collectively demonized as lowlifes and killers.”
The threshold problem, as defendant acknowledges, is that defense counsel did not object to most of the questions, statements, or arguments that defendant now contends constituted misconduct. A claim of prosecutorial misconduct is usually waived by failure to object. (People v. Coddington (2000) 23 Cal.4th 529, 595, overruled on other grounds by Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) The record does not support defendant’s reliance upon the futility exception recognized in People v. Hill (1998) 17 Cal.4th 800, 821. In Hill, the court excused defense counsel’s failure to object because the court not only failed to rein in the excesses of the prosecutor in the face of defense objections, it also made comments in front of the jury characterizing the defense objections as meritless, chastising defense counsel for making them, and suggesting that defense counsel was an obstructionist. (Id. at pp. 821-822.) By contrast, the record here shows that the court regularly sustained meritorious defense objections throughout the trial. (See, e.g., RT 172, 175, 185, 197, 206, 210, 212, 275, 326, 442, 443, 444, 473, 486, 571, 677, 696, 698, 699, 701, 702, 704, 714, 717, 736, 806, 810-813, 816, 819, 830, 834-837, 840, 865, 909, 912, 915, 916-919, 922-923, 927-929, 931-933, 937, 939, 941, 942, 970, 980, 995, 998, 1005, 1049, 1093, 1095, 1097-1098, 1100, 1102, 1108, 1115-1117, 1124-1125.) The court once even made an objection on the defense’s behalf. Moreover, there is no record of the court criticizing defense counsel or otherwise penalizing him for making objections. Under these circumstances timely objections would not have been futile, and the failure to assert these objections at trial waived most of his claims of misconduct on appeal. (People v. Noguera (1992) 4 Cal.4th 599, 638.)
To the extent his claims based upon prosecutorial misconduct have been waived, defendant argues counsel was ineffective for failing to object. (See People v. Pitts (1990) 223 Cal.App.3d 606, 693.) In this context, defendant must show that counsel’s omission fell outside the range of an objective standard of reasonableness. (People v. Ledesma (1987) 43 Cal.3d 171, 216.) When the claim of misconduct is based upon arguments or comments the prosecutor made before a 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.’ ” (People v. Ochoa (1998) 19 Cal.4th 353, 427.) If the challenged statement or argument was not misconduct then, of course, it would not be outside the range of competence for counsel to fail to object. Even where the prosecutor may have engaged in objectionable conduct, mere failure to object does not establish incompetence. (People v. Wharton (1991) 53 Cal.3d 522, 567.) Defendant must show that counsel’s omission involved a critical issue, and that the failure to object could not be explained as a reasonable trial tactic. (People v. Lamphear (1980) 26 Cal.3d 814, 828-829; People v. Jenkins (1975) 13 Cal.3d 749, 753.) If counsel’s performance does fall outside the range of reasonable competence, defendant then bears the burden of showing that counsel’s omission resulted in prejudice. (People v. Ledesma, supra, at p. 217.)
We shall apply these standards to our review, grouped by category, of the numerous instances of misconduct cited by defendant.
1. Statements of Fact Not in Evidence.
Although the prosecutor is free to “ ‘argue all reasonable inferences from evidence in the record,’ ” our state Supreme Court has repeatedly warned that “ ‘statements of facts not in evidence by the prosecuting attorney . . . constitute misconduct.’ ” (People v. Bolton (1979) 23 Cal.3d 208, 212.) In the worst case scenario, such statements may imply that there is additional evidence known to the prosecutor, but unavailable to the jury. “These implications . . . make the prosecutor his own witness—offering unsworn testimony not subject to cross-examination. It has been recognized that such testimony, ‘although worthless as a matter of law, can be “dynamite” to the jury because of the special regard the jury has for the prosecutor, thereby effectively circumventing the rules of evidence.’ ” (Id. at p. 213.)
Defendant begins with the prosecutor’s comment during voir dire that in most murder cases there are no eyewitnesses. Defendant did not object, but now argues the comment was misconduct because it offered as “fact” that most murder cases do not involve eyewitness, to explain away the primary weakness of the prosecution’s case, i.e., the absence of an eyewitness to the shooting. There is no reasonable likelihood that the jury so understood it. (See People v. Ochoa, supra, 19 Cal.4th at p. 427.) The prosecutor made the statement merely as a prelude to inquiring whether the prospective jurors would have difficulty basing a decision on circumstantial evidence in the absence of eyewitness testimony. That is an appropriate line of inquiry during voir dire. Since the prefatory comment was not misconduct, it was not ineffective for counsel to fail to object.
Next, defendant cites the portion of the prosecutor’s opening statement discussing reluctant witnesses. The prosecutor began by noting that witnesses did not “want to be in here, and you’ll see that as time passes in this case. In fact, some defendants themselves go to the crime scene to see who’s talking to the police.” The prosecutor continued: “And when cases come to court, family members come from various sides to report back on the street what’s happening.” Defendant argues that this latter statement was misconduct because it was not supported by any evidence at trial. To the contrary, the prosecutor’s statement was supported by testimony that Erik Gaines asked Deputy District Attorney Ford, before the preliminary hearing, who would be present in the courtroom, and specifically whether defendant or his family would be present. When Gaines was told that 15 to 20 members of defendant’s family were present, he said he was worried about his safety, and did not want to testify. The district attorney also testified that at the preliminary hearing it was “obvious” that many people present at the hearing were defendant’s family members and that defendant waved and nodded to them. It was also supported by Tucker’s testimony that defendant’s sister went to his house and told his family to warn him against testifying.
Wesley Tucker testified that after the shooting he saw defendant back at the scene along with Aaron Thigpin and Jermaine Fudge. Defense counsel objected that the statement that defendant was there to see who was talking to the police was argument, and the court responded, “Ladies and gentlemen, I’ll leave that to your own conclusion.”
Defendant next cites several instances in which he contends the prosecutor improperly testified, and stated his own personal belief that the alibi defense was a fabrication.
The first example occurred in the context of cross-examination of Mocha Aldridge. The prosecutor established that Aldridge had attended the preliminary hearing, was aware of the pending charges against defendant, and yet did not come forward with the information that defendant had been with her in Modesto. He also established that she had given her calendar, where she kept a record of her daily activities, and a statement to the defense investigator in 2003. The prosecutor then stated, “[T]he record should reflect that I didn’t receive any knowledge of this until I got a letter” from defense counsel shortly before the trial began. Defendant argues this latter statement was improper testimony. Statements by attorneys are not evidence, and defendant could have objected on that ground, and asked for an admonition that the jury disregard it, but he did not. Nonetheless, the failure to object was not incompetent. The specific information about precisely when the prosecutor first learned of the alibi was not a critical issue, and was collateral to the basic point that the prosecutor was making with this line of questioning, i.e., that Aldridge had not disclosed the alibi to the authorities before the trial. Moreover, defense counsel could reasonably make a tactical decision not to object to the prosecutor’s statement, because the facts could easily have been established by other proper means.
Next, defendant asserts that, during the cross-examination of Deborah Baldwin, the prosecutor made testimonial statements in the form of argumentative questions that conveyed his personal belief that she lied to him and intentionally concealed key facts when he interviewed her before trial to get further information about the car rental. As he had done with Mocha Aldridge, the prosecutor interrogated Baldwin about why she had not previously disclosed to any law enforcement authorities the facts relevant to the alibi defense. At one point during this line of questioning, the prosecutor became argumentative. In response to Baldwin’s explanations for not coming forward earlier, the district attorney said: “No. If my kid were locked up for murder, and he was with me, I’d go to the police officer and say, ‘Hey, my kid was with me. He couldn’t have done it.’ [¶] Why didn’t you do that?” The court sustained the defense objection. At another point, in response to Baldwin’s explanation as to why, in a pretrial interview, she told the prosecutor she had rented the car, and had not mentioned Cecelia Franklin’s role, the prosecutor stated, “You lied to me when you said that you rented the car.” The court overruled the objection that this was argumentative, but restated the assertion that she lied as a question. Later, when the district attorney asked Baldwin if she believed he was going to check out whatever information she gave him, she acknowledged she knew he would. The district attorney responded, “Right. I did check it out. I did.” The court sustained the defense objection and instructed the prosecutor not to testify. The court repeated this admonition when the district attorney stated in reference to Cecelia Franklin, “I had no idea who she is . . . until she arrived here, right?”
Baldwin testified that when the district attorney came to interview her shortly before the trial she told him that she had rented the car from Enterprise and that there was only one Enterprise agency in the area. She acknowledged that she did not disclose that it was actually Cecelia Franklin who rented the car, nor did she correct her statement to the district attorney when she learned that there were actually several Enterprise rental locations in Modesto.
In the foregoing exchanges, the prosecutor undoubtedly became argumentative, and made assertions of fact instead of asking the witness questions. Nonetheless, his conduct did not prejudice defendant. The court sustained defense objections in all but one instance. In that one instance, the court overruled the objection but restated the prosecutor’s assertion that Baldwin lied, in the form of a question. Generally, a defendant cannot show prejudice when the court sustained an objection to claimed misconduct. (See People v. Price (1991) 1 Cal.4th 324, 482; People v. Pinholster (1992) 1 Cal.4th 865, 943.) Moreover, the substance underlying these argumentative questions, i.e., that Deborah Baldwin failed to come forward with the alibi evidence when it would have been logical to do so, lied about the details of the car rental when the prosecutor interviewed her, and was lying about the alibi at trial, was proper argument that the prosecutor could and did make at the close of trial. (See People v. Price, supra, at p. 484 [no prejudice caused when argumentative questions did not imply the existence of facts not otherwise before the jury, and would have been the proper subject of closing argument].) We also find no reasonable likelihood that the jury would have construed the prosecutor’s comments during cross-examination as a statement of his personal belief that Baldwin lied or intentionally concealed information from him. Instead, the jury would have recognized that he was using cross-examination aggressively to expose the inconsistencies in her testimony, and to impeach her credibility. (See People v. Ochoa, supra,19 Cal.4th at p. 427.)
Defendant next contends the prosecutor committed misconduct when cross-examining defendant about what he meant when he referred to the “low-term 25” in a telephone call to Aldridge. Defendant testified he was referring to the low term of three years for marijuana sales, resulting in actual time of 25 months, not a term of 25 years to life for murder. The prosecutor retorted that “there’s no crime in the Penal Code that you get low term of 25.” When defendant persisted with his explanation, and added that was the term he had received when he was convicted of selling marijuana, the prosecutor admonished defendant not to “deceive the jury.” The prosecutor insisted that defendant must know that two years is the low term for sale of marijuana, because that was the sentence he received. The court sustained the defense objection that these were argumentative statements only nominally in the form of questions, and told the jury to disregard his comments. It allowed the prosecutor to restate the assertions as questions. Again, the form of questioning was improper, but defendant was not prejudiced because the court sustained an objection and told the jury to disregard the prosecutor’s comment. The prosecutor also later introduced evidence that defendant had in fact been sentenced to two years for a marijuana sales conviction. Moreover, defendant did not suffer any prejudice because the arguments contained in the questions would have been proper if made at the appropriate time. (See People v. Price, supra, 1 Cal.4th at p. 484.)
Defendant also cites as misconduct the prosecutor’s assertion in closing argument that it was not common to be able to “crack an alibi like this,” because there was no evidence regarding how common it was to “crack” an alibi. He argues that the effect of this remark was to persuade the jury, based upon the prosecutor’s own experience, that this was a particularly strong case for the prosecution. It was not ineffective to fail to object. The prosecutor’s statement did not concern a critical issue. The critical point was that the prosecutor had presented overwhelming evidence undermining the alibi. Whether this was a rare or common event was a collateral point that added nothing to the strength of the prosecution’s case.
Defendant next argues the prosecutor improperly argued to the jury that Wesley Tucker and Erik Gaines would not, under Proposition 36, have faced long prison sentences for possession of drugs. Again, no defense objection was made at the time. Defendant now argues this was a particularly egregious example of misconduct because there was no evidence regarding sentencing under Proposition 36, and because, as he reads the record, both witnesses would have faced more serious charges than simple possession of drugs. We need not resolve the dispute whether the prosecutor accurately described the charges and consequences to either witness because, assuming arguendo that the description was inaccurate, it was not incompetent to fail to object. The prosecutor’s argument merely minimized the degree of penal consequence these witnesses faced, but it did not undermine defense counsel’s basic point that they both faced incarceration, and admitted that they gave information concerning the killing of Terrill Zachary in the hope of gaining their freedom.
The Attorney General argues that defendant misreads the record, and that although Tucker had a prior conviction for selling drugs, he was either on probation for drug possession or under arrest for mere possession when he talked to the police. He also argues that there is nothing in the record to support defendant’s assertion that Gaines had already suffered a conviction for armed robbery and another serious felony conviction, and therefore was subject to punishment under the Three Strikes Law.
Defendant further contends the prosecutor committed misconduct during his rebuttal by stating, “We checked every car that Cecelia Franklin rented. We brought the one from July 2nd, and the one from June 19th. There was nothing rented in between.” Defendant argues that this was an improper attempt by the prosecutor to close an evidentiary gap created by the testimony of the custodian of records, who stated that he had been asked only to examine the records for car rentals to Cecelia Franklin for June 19 and July 2. Defense counsel had relied on this testimony to suggest that the prosecution failed to rule out the possibility that there were records of other rentals by Cecelia Franklin in between those dates. Counsel was not ineffective for failing to object, because a timely objection would only have forced the prosecutor to restate his argument more carefully as a reasonable inference from the failure of the defense to present records, or Franklin’s testimony that she did rent a car on June 30. In any event, it is clear from the remainder of the prosecutor’s rebuttal on this point that this is the unobjectionable argument he was making. The prosecutor pointed out that defense counsel could have subpoenaed the car rental records, or called Cecelia Franklin to testify, and suggested the reason they did not is because the records did not exist, and that the alibi was “a lie.” The obvious inference was that if such evidence existed the defense would have introduced it. (See People v. Gonzalez (1990) 51 Cal.3d 1179, 1216 [permissible for prosecutor to comment upon defendant’s failure to introduce logical evidence].)
We also see no analogy between this conduct and that of the prosecutor in People v. Gaines (1997) 54 Cal.App.4th 821, the case upon which defendant relies. In Gaines, the court found prejudicial misconduct because the prosecutor, in the guise of argument, provided the jury with a summary of what a missing defense witness would have said, and told the jury the defense had the witness available but did not call him because the witness would have impeached the defendant’s testimony. None of this information was based upon evidence in the record. The court held this argument went far beyond urging an adverse inference from the failure of the defense to present logical witnesses because none of these assertions about what the defense witness would have said, or that his testimony would have impeached the defendant, was in the record. (Id. at pp. 825-826.) In this case, by contrast, the prosecutor did nothing more than argue a reasonable inference from the failure of the defense to present logical witnesses.
2. Vouching
Defendant identifies four instances of misconduct consisting of vouching for witnesses. The defense did not object to any of them. Vouching consists of bolstering the credibility of a witness by placing the prestige of the government behind the witness, through personal assurances that the witness is truthful, or the suggestion that information outside the record exists, to which the prosecutor is privy, that demonstrates the witness is truthful. (See People v. Frye (1998) 18 Cal.4th 894, 971.) We have reviewed each claim and determined that, in context, the jury would not reasonably have understood the comment as vouching, and counsel therefore was not ineffective for failing to object.
The comments were as follows: In his opening statement the prosecutor described Sergeant Medeiros as “one of Oakland’s finest homicide detectives.” In closing argument, the prosecutor stated, “I met Wesley Tucker in Santa Rita jail on May 10, 2004, and he essentially told me the same thing in the presence of Inspector Pat Johnson.” The prosecutor also stressed, with respect to deals made by the witnesses, “[E]verything is open. I have never in any way deceived you.” Finally, the prosecutor stated, “I have tried to bring you all the witnesses that I can.” Defendant acknowledges that the single comment in opening statements about Sergeant Medeiros would not by itself have been prejudicial, but argues that, taken together with the other three, these comments had the effect of personally vouching for the credibility of the prosecution’s witnesses, and the integrity of the prosecutor himself.
No reasonable jury would have understood the comment about Wesley Tucker as a personal assurance that Tucker was truthful, or a suggestion that the prosecutor was privy to information outside the record that demonstrates the witness is truthful. (See People v. Frye, supra, 18 Cal.4th at p. 971.) Instead, the prosecutor was simply arguing that one of the reasons the jury should find Wesley Tucker credible was that his testimony at trial was consistent with his prior statement, and Tucker himself had so testified.
Similarly, when read in context, the assertion that “everything is open. I have never in any way deceived you” was not reasonably likely to have been understood as a personal assurance that the prosecutor had not concealed evidence. The comment was made in the course of argument acknowledging that both Wesley Tucker and Eric Gaines provided information to law enforcement in exchange for leniency. The prosecutor was simply urging the jury not to discredit these witnesses on that basis because this was a lawful method of obtaining information and the evidence showed the deals were openly made, and the witnesses had disclosed the benefits they received or expected to receive.
Finally, the prosecutor’s assertion that he presented all the witnesses he could would not reasonably have been understood as urging the jury to accept his personal promise based upon facts outside the record that all available witnesses had been presented. This statement was merely prefatory to the prosecutor’s specific explanation that Phil Jones was out of state, and the prosecutor referenced trial testimony in support of that assertion.
We conclude that none of these comments were reasonably likely to have been understood as vouching, and it therefore was not ineffective for counsel to fail to object.
3. Misstatement of Evidence
Defendant contends that the prosecutor mischaracterized or misstated the evidence in his closing arguments relating to the credibility of defense witnesses Aaron Thigpin and Jermaine Fudge. Again, the defense did not object to any of the statements that defendant now contends constituted misconduct.
“Although prosecutors have wide latitude to draw inferences from the evidence presented at trial, mischaracterizing the evidence is misconduct. [Citations.] A prosecutor’s ‘vigorous’ presentation of facts favorable to his or her side ‘does not excuse either deliberate or mistaken misstatements of fact.’ ” (People v. Hill, supra, 17 Cal.4th at p. 823.) The line between permissible argument regarding inferences from the evidence and impermissible misstatement of the evidence is, however, often difficult to draw. (Ibid.) We shall conclude the prosecutor’s statements fell on the side of permissible argument advocating reasonable inferences from the evidence. Since the challenged statements did not constitute misconduct, it was not ineffective to fail to object.
In the context of a general argument that many defense witnesses believed their lives would be in danger if they testified for the prosecution, the prosecutor stated: “Aaron Thigpin would not have made it home alive, he said, if he saw Wesley Tucker with the defendant on this day.” Defendant argues that by inserting the words “he said,” the prosecutor incorrectly implied that Thigpin expressly testified that he would not have made it home alive had he seen Wesley Tucker with defendant that day. We do not find it reasonably likely that the jury would construe this argument as a literal statement of Thigpin’s testimony. Thigpin’s testimony, in response to a hypothetical question, was that he personally believed his life would be in danger if he identified a person responsible for a murder. He added that “everybody thinks that.” He also claimed not to be worried because “I don’t involve myself in that.” He testified that defendant was not with him, Wesley Tucker, and Phil Jones, the night Terrill Zachary was killed. The prosecutor’s use of the phase “he said” logically referred to Thigpin’s admission that he believed he would be killed if he identified a person responsible for the murder. The jury would have understood the prosecutor to be arguing that the reasonable inference was that Thigpin believed he would be killed if he had testified he saw defendant on the day of the murder, and therefore the jury should not credit his testimony that defendant was not there.
The prosecutor made a similar point with respect to Jermaine Fudge: “Jermaine Fudge would not have made it home alive, if I saw someone like the defendant who did this killing.” Defendant contends that, by inserting the pronoun “I,” the prosecutor suggested he was quoting Fudge’s testimony despite the fact that Fudge never so testified. Again, we do not find it reasonably likely that the jury would have understood the comment as a direct quote. The injection of the pronoun “I” was a rhetorical device the prosecutor used to portray what Fudge might be thinking. The prosecutor was clearly suggesting to the jury that it could infer Fudge shared the same fear that Thigpin acknowledged, and that is why Fudge testified he saw a person firing shots but could not identify the shooter, except to say with certainty that the person was not defendant.
Defendant also argues the prosecutor mischaracterized Thigpin’s testimony that defendant and Wesley Tucker had had a falling out, by describing this testimony as coming “out of the blue,” and referring to the claimed dispute between the two as “really, really old.” Defendant asserts this argument misstated the evidence because it was an “uncontroverted fact” that Thigpin had long before given the information regarding a fight between Tucker and defendant to defense counsel and the defense investigator. He also contends the vendetta was not “really, really old,” since the fight Thigpin described had occurred only a few months before the shooting.
Counsel was not ineffective for failing to object, because the prosecutor’s statements were nothing more than fair argument based upon the evidence, and therefore unobjectionable. Thigpin admitted that he had not told defense counsel or the defense investigator about the fight defendant had with Tucker until his last meeting with them. Although it was unclear precisely when Thigpin finally did disclose the information that defendant and Tucker had a falling out, it was fair argument to characterize the testimony as a recent fabrication, in light of the fact that Thigpin delayed in disclosing it. Whether a fight that was a few months old was too remote to provide a motive for Tucker falsely to incriminate defendant is simply a debatable point, not a mischaracterization of the record. That defendant disagrees with the prosecutor’s reasoning, or interpretation of the evidence, does not convert fair argument into misconduct. (See People v. Pitts, supra, 223 Cal.App.3d at p. 702 [“ ‘adverse party cannot complain if the reasoning be faulty and the deductions illogical, as such matters are ultimately for the consideration of the jury’ ”].)
4. Misstatements of Law
Defendant argues the prosecutor misstated the law, by repeating the theme throughout his closing argument that “[i]f you believe this alibi is a lie, is untrue, you have to find him guilty.” Defense counsel did not object to these remarks. Nonetheless, defendant now asserts this argument was an “egregious” misstatement of applicable law because it suggested all the prosecution had to do was disprove the alibi, without proving the elements of the offense beyond a reasonable doubt, and that if the jury found the alibi to be untrue, it was required to convict defendant.
There is no reasonable likelihood that the jury would have construed this, and similar remarks throughout the prosecutor’s closing, in the manner defendant suggests. (People v. Ochoa, supra, 19 Cal.4th at p. 427.) Counsel therefore was not ineffective for failing to object. Read as a whole, it is obvious that the prosecutor was not purporting to state the law. Rather, he was making a factual argument. At the outset of closing argument the prosecutor posited this basic theme: “This is a case of a choice. Do you believe the testimony of Eric Gaines and . . . Wesley Tucker, two people [who] independently at different times tell essentially the [same] description of the defendant committing this murder. Do you believe them, or do you believe the alibi presented by the defense, as you now know, a clearly fabricated alibi. It is your choice. It is a clear choice. If you reject this alibi, which I will urge you to do, you must find the defendant guilty. Only a guilty person would present that type of fabricated evidence, and it was.” The prosecutor never suggested he did not have the burden of proving defendant’s guilt. To the contrary, the prosecutor argued at length all the reasons why the testimony of Eric Gaines and Wesley Tucker, if credited by the jury, constituted overwhelming evidence of defendant’s guilt. Any reasonable jury would have understood the prosecutor was merely arguing that, if the jury determined the alibi was false, it would be left only with overwhelming evidence of defendant’s guilt, further bolstered by a reasonable inference of consciousness of guilt based upon the fabrication of an alibi. This was entirely proper and unobjectionable argument.
Positing the case as a choice was also responsive to defense counsel’s opening statement that told the jury it would have a clear-cut choice between the defense alibi and the testimony of the prosecution witnesses.
5. Appeals to Passion and Prejudice
Defendant contends the prosecutor committed misconduct by making an appeal to the jury to convict defendant to protect community values, preserve civil order, or deter future lawbreaking, instead of weighing the evidence and making an individualized decision based upon the evidence before it. (See United States v. Witherspoon (9th Cir. 2005) 410 F.3d 1142, 1149.) He cites the prosecutor’s concluding remarks, in which the prosecutor urged the jury, “It’s not a crusade against bad guys in Oakland. It is this case—this is homicide in this case in this area, and this is the way it happens. If you permit him to get away with this, you know, it’s essentially lawlessness out there. [¶] Don’t subject the citizens. Don’t send that message out there. Treat this case individually. This is our facts on this defendant. Understand the context.” (Italics added.) Again defense counsel did not object. Counsel was not ineffective for failing to object because, to the extent that the prosecutor’s remarks could have been construed as an appeal to the jury to convict without regard to the evidence simply to preserve order, or to deter future criminals, the prosecutor himself undermined the prejudicial effect of these remarks by cautioning the jury that, “It’s not a crusade” and that it must “[t]reat this case individually.” Although defendant dismisses these cautionary remarks as a rhetorical device designed to convey the opposite (see People v. Wrest (1992) 3 Cal.4th 1088, 1107), read as a whole, we find no reasonable likelihood that they had that effect because the prosecutor’s brief references to lawlessness and the need to send a message to the citizens of the community were preceded by lengthy and detailed argument focused entirely upon the evidence.
6. Improper Examination of Witnesses
Defendant contends that the prosecutor committed misconduct by using leading questions in the examination of Wesley Tucker that were “designed to elicit very prejudicial and inadmissible evidence regarding threats by third parties against Mr. Tucker and family.” He argues the prosecutor also used leading questions to substitute his own testimony for that of the witness.
As the prosecutor questioned Tucker about a warning he received from a mutual friend of his and defendant’s that he should leave town because it was known that he was a witness in the case, Tucker was reluctant to identify the person who warned him, and his answers became cryptic. The prosecutor, summing up his understanding of Tucker’s preceding responses, asked: “So basically some friend of the defendant’s came up to you, since you all came up together, says you better get out of town now, and you just got out of town?” When defendant objected that this was a leading question the court agreed, but said it would allow it. Thereafter, the prosecutor continued to use leading questions that elicited testimony about threats to Tucker’s family made at the mall, a threatening visit from defendant’s sister, and Tucker’s testimony that he was afraid that members of defendant’s family might cause harm to Tucker or his family. The prosecutor also asked a series of leading questions concerning what promises the prosecutor had made to Tucker in exchange for his information and testimony.
The mere use of leading questions does not constitute prosecutorial misconduct, absent a showing that they were used to elicit inadmissible evidence. (People v. Williams (1997) 16 Cal.4th 635, 672; People v. Hayes (1971) 19 Cal.App.3d 459, 470.) The evidence of these threats was admissible to show that the witness was afraid and feared retaliation, even in the absence of evidence that the threats were made, or authorized, by defendant. (See People v. Olguin (1994) 31 Cal.App.4th 1355, 1368; see also People v. Burgener (2003) 29 Cal.4th 833, 869-870.) It therefore was not misconduct to elicit this information.
The court in Hayes also noted that “[a] witness’s mere affirmation of an attorney’s question may have less impact on the jury than an answer in the witness’s own words.” (People v. Hayes, supra, 19 Cal.App.3d at p. 471.) Defense counsel could therefore have valid tactical reasons not to object to the leading form of the questions.
Defendant contends that the prosecutor committed misconduct by using leading questions as a means to offer his own testimony without submitting to cross-examination. The case upon which he relies, People v. Barajas (1983) 145 Cal.App.3d 804, 810-811, involved conduct that is distinguishable from the mere use of leading questions that occurred in this case. In Barajas, in his opening statement, the prosecutor told the jury that an uncooperative informant would identify the defendant as having been involved in a robbery and murder. When called to the stand the witness invoked his Fifth Amendment privilege, and refused to testify. Over a defense objection, the court allowed the prosecutor to ask a series of leading questions in front of the jury. Despite the fact that the witness did not answer any of the questions, and was not cross-examined, the jury was left with the clear impression that this witness would have identified the defendant. The court held that “[a] prosecutor may compel a witness to assert a privilege to specific questions, but ‘he may not, under the guise of cross-examination, get before the jury what is tantamount to devastating direct testimony.’ ” (Id. at p. 810.) No such misconduct occurred in this case because Tucker answered the prosecutor’s questions, and was subject to cross-examination.
We shall address in section III of this opinion defendant’s further contention that the prosecutor committed misconduct by urging the jury to consider evidence of threats and intimidation against witnesses as evidence of defendant’s consciousness of guilt. In that section we also address defendant’s related contention that the court erred in admitting the evidence of threats and intimidation of witnesses.
Defendant next contends that the prosecutor committed misconduct by repeatedly questioning Mocha Aldridge and Deborah Baldwin about why they failed to come forward with evidence of the alibi earlier, and accusing them of keeping “this a big secret until trial.” During this line of questioning the court sustained some defense objections when the questions became repetitive and argumentative, or when the prosecutor improperly testified by making statements about what he would have done in such circumstances. By sustaining these objections the court effectively kept the cross-examination under control, and eliminated any prejudice that might otherwise have flowed from such questions. (See People v. Pinholster, supra, 1 Cal.4th at p. 943; People v. Mayfield (1997) 14 Cal.4th 668, 755.)
Defendant nevertheless contends that it was prejudicial misconduct even to ask these witnesses why they did not come forward earlier, and to argue that the delay supported the inference that the alibi was a recent fabrication. The authority upon which defendant relies, People v. Lindsey (1988) 205 Cal.App.3d 112, is inapposite. In Lindsey, the court held it was misconduct to argue that defense counsel fabricated the alibi based upon his failure to disclose it before trial. The court reasoned that the argument was the functional equivalent of commenting on the defendant’s post-arrest silence because defense counsel was acting as the agent for a nontestifying defendant. (Id. at p. at 117.) The same concerns do not apply here, where the prosecution made a charge of recent fabrication against defense witnesses, not defense counsel. There is “nothing inherently improper about cross-examining a defense witness as to his failure to come forward at an earlier date. In fact, the information discovered during this type of questioning may well aid the trier of fact in its effort to determine whether the testimony is an accurate reflection of the truth or a recent fabrication. [¶] Although a citizen ordinarily has no legal obligation to offer exculpatory information to law enforcement officials, there are many situations where the natural response of a person would be to come forward in order to avoid a mistaken prosecution of a relative or friend. In that situation a witness’s silence may be akin to a ‘prior inconsistent statement,’ and therefore, has probative value. [Citation.]” (People v. Ratliff (1987) 189 Cal.App.3d 696, 701; see also People v. Tauber (1996) 49 Cal.App.4th 518, 524-525; People v. Santos (1990) 222 Cal.App.3d 723, 736-737.)
Defendant further argues that the prosecutor committed misconduct by offering his own testimony under the guise of cross-examination when he asked Deborah Baldwin a series of leading questions about what happened when he made a surprise visit to her house seeking more information about the recently revealed alibi. It is not misconduct to use leading questions on cross-examination. Ms. Baldwin was free to deny, affirm, or clarify any of the facts included in the questions and did so. Moreover, the jury was instructed that it should not consider facts implied in the attorney’s questions, but not supported by the witness’s answers.
7. Bullying and Insulting Defense Witnesses
Defendant next contends that the prosecutor personally attacked defense witnesses, and the defendant himself, accusing them of being liars and denigrating their character. We need not enumerate and separately analyze each instance he cites. We have carefully reviewed the record and conclude that, although the prosecutor occasionally became argumentative and overzealous, the challenged conduct reduces to nothing more than aggressive cross-examination. (RT 968-969 [prosecutor rhetorically asks Fudge whether he “seriously believe[d]” his testimony that he was not afraid of retaliation]; RT 880-881 [prosecutor questions Denise Pitts about her ability to recall the days she saw defendant at his mother’s house]; RT 1048, 1057 [prosecutor admonishes defendant to “[t]ry to be honest”].) Nor does the record support the charge that the prosecutor called Aldridge a “bitch.” The prosecutor was using defendant’s words in one of the recorded calls. In that call, defendant asserted, “I can do whatever I want with you, Bitch.” The prosecutor then used defendant’s words, asking Aldridge if he indeed could do “whatever he wants with you, Bitch,” including prevail upon her to lie on his behalf. The parallel use of foul language may have been poor judgment, but it does not rise to the level of prejudicial misconduct.
Competent counsel could also make an informed strategic decision not to object in recognition of the possibility that the prosecutor’s periodic overzealous and aggressive cross-examination techniques could actually work in defendant’s favor by alienating the jury, and engendering sympathy for the defense witnesses.
Any possible prejudice was eliminated with respect to the remaining exchanges when the court sustained the defense objections. (People v. Mayfield, supra, 14 Cal.4th at p. 755.) (RT 997-998 [court sustained objection that question was argumentative to prosecutor’s sarcastic rhetorical question to Thigpin, “When did you come up with this?]; RT 1123-1124 [objection sustained to prosecutor’s admonishment, “Don’t deceive the jury”]; RT 835 [court sustained relevance objection to question about rent Aldridge paid for section 8 housing]; RT 837 [objection sustained to question about whether defendant got money from selling drugs].) Moreover, the substance of many of the argumentative questions, or admonitions, was to urge the inference that the witnesses were being evasive, untruthful, or that their testimony was a recent fabrication, all of which would be a proper subject for argument.
8. Accusations Against Defense Counsel
Defendant contends that the prosecutor, through questions and argument, insinuated that defense counsel had fabricated and concealed the alibi defense until trial, and implied that defense counsel was participating in a conspiracy to intimidate witnesses. “It is improper for the prosecutor to imply that defense counsel has fabricated evidence or to otherwise malign defense counsel’s character.” (People v. Herring (1993) 20 Cal.App.4th 1066, 1075.)
We are satisfied that the jury would have understood the prosecutor’s questions and argument as directing his accusation of perjury and recent fabrication at defendant and other defense witnesses, not defense counsel. After detailing how Aldridge, Deborah Baldwin and defendant fabricated an alibi, the prosecutor argued: “That’s deceitful; it’s dishonest; it’s misleading; it’s an attempt to subvert the truth, not by [defense counsel]. No. No. No. Deborah Baldwin and Cecilia Franklin. It’s them.” (Italics added.) At another point he argued: “Would this family put this perjury together for you, put this alibi together to free their son? Yes, they would.” (Italics added.) Later he argued that “defendant and his family” tried to create an alibi, and “they got caught.” (Italics added.)
Nor would the jury reasonably have understood the prosecutor’s comment that the discovery in the case went to defense counsel and copies ended up on the street as a suggestion that defense counsel was personally and actively participating in a conspiracy to intimidate witnesses. The prosecutor made the comment about discovery information ending up on the street in the context of explaining why the police had to rely upon the method of giving Gaines and Tucker some benefits in exchange for information, rather than gleaning information from disinterested citizen informants. To explain the police methods, the prosecutor enumerated factors affecting potential witnesses’ state of mind that engendered the fear of retaliation, and discouraged them from providing information to the police. Directly preceding his comment about discovery going to defense counsel and getting out on the streets, the prosecutor referred to the fact that “defendant’s family is back there . . . . All the cell phones going off in here. How fast does the word get to the street?” In this context the jury would have understood the next comment regarding discovery sent to defense counsel also ending up on the streets as a reference to the fact that defendant’s family had access to this information and the witnesses knew that, not that defense counsel was personally participating in or authorizing the intimidation of witnesses.
9. Cumulative Effect
Finally, defendant argues that even if the individual incidents of misconduct were not prejudicial, the cumulative effect of the prosecutor’s conduct in his case was prejudicial. Yet, we have found that nearly every instance cited by defendant was either not objectionable misconduct, or that, assuming arguendo it was misconduct, it was not prejudicial. We conclude that, even considered cumulatively, the few instances in which arguable misconduct may have occurred did not result in prejudice. In the words of our Supreme Court, “Whether viewed singly or cumulatively, no error in this case warrants reversal. Even when a defendant’s life is at stake, he ‘ “is entitled to a fair trial but not a perfect one.” ’ [Citation.]” (People v. Miranda (1987) 44 Cal.3d 57, 123, disapproved on other grounds by People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4.) Our review of the entire record convinces us that Mr. Baldwin received a fair trial. (See also People v. Houston (2005) 130 Cal.App.4th 279, 320.)
II.
Denial of Motion to Exclude or Further Redact Tapes of Jailhouse Calls
Defendant contends that the court abused its discretion by denying defense counsel’s pretrial motion to exclude, pursuant to Evidence Code section 352, the tapes of his two jailhouse calls to Mocha Aldridge. Prior to trial, the court held a hearing on the motion and examined the taped conversions in detail. It ultimately ruled that the entire conversation between defendant and Mocha Aldridge that began at 7:10 p.m. on September 24, 2002, was admissible. With respect to the second conversation that took place later that night, the court ordered portions of it redacted. Some of these redacted portions were later admitted during the cross-examination of Aldridge, when she denied that defendant controlled her.
Defendant concedes that the court properly admitted the portion of the conversation with the third party, later identified as “Boo,” in which defendant (1) discussed his belief that he was not in jail because of the “loose weed” found in the search of Aldridge’s house; (2) directed Boo to “handle that shit,” apparently referring either to “snitching” or the repeated searches of Aldridge’s house and garage; and (3) warned Boo not to let anybody send him the “bizat.” Nonetheless, he argues the remainder of the taped conversations the court admitted should have been excluded because they contained no relevant statements, or were cumulative of the portions he acknowledges were properly admitted. He argues these portions of the recorded calls served only to convey to the jury defendant’s bad character, and portrayed him as a person who was verbally abusive, unfaithful, had contempt for women in general, called women “bitch” or “ho” and repeatedly used the term “nigger” to describe himself and others. He concludes the probative value of such statements was outweighed by the prejudicial effect of the picture painted of defendant, which he contends, “could hardly have been more revolting to the jury, unless he had admitted to murder or a similarly heinous crime.”
We may not reverse a trial court’s exercise of discretion on an Evidence Code section 352 motion absent a showing that the court’s decision to admit this evidence was arbitrary, capricious, or patently absurd. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124 [trial court’s exercise of discretion on an Evidence Code 352 motion may be reversed only upon a showing that it was “ ‘arbitrary, capricious or patently absurd’ ”].)
We find no abuse of discretion. Throughout the conversations, defendant made repeated references to (1) his belief that he was not in jail because of the discovery of marijuana, but rather because somebody in his circle was “snitching”; (2) his belief that he was being investigated by the homicide unit looking for guns; and (3) his intentions to pack up and leave, with or without Aldridge. These comments are interspersed throughout the conversation and are intertwined with the surrounding argument he is having with Aldridge. Defendant minimizes the relevance and probative value of this evidence as showing consciousness of guilt by offering alternative meanings or innocent interpretations of these statements. For example, he argues he never expressly stated that the “snitching” was about homicide. He also suggests that the fact that he described the officers conducting the parole search as homicide officers could have been triggered not by consciousness of guilt but rather by the fact, as Aldridge testified, that many East Oakland residents believed that one of the officers involved in the parole search was a member of the homicide unit. We have considered each specific variation of this line of argument, and shall not belabor each detail. We conclude that, at most, defendant demonstrates there was more than one reasonable inference that could have been drawn from these statements. The court, however, was well within its discretion to adopt the interpretation advanced by the prosecution in assessing the strength of the inference of consciousness of guilt for the purpose of weighing the probative value against any potential prejudicial effect.
Defendant does not dispute that the clearest of these comments made in the context of his warning to Boo, not to let anyone send defendant the “b’zat,” was properly admitted. Defendant said, “Don’t let nobody send me that because there’s somebody in our circle snitching, blood.”
For example, defendant tells Aldridge he is in jail “because the bitch ass police want to find guns.” He blames the search on “these homicide motherfuckers.” He tells her she fails to understand the seriousness of his situation, that he got “jacked by homicide” and keeps telling her she is “blind to the facts” and that, “What they just did me, they done offer you low term 25.”
He tells Aldridge; “It’s cool though. We about to cut through on everything . . . . We ain’t about to sit around for this bullshit no more. So, just get ready, we’re out of here.” Later, he tells her she needs to pack because “it’s time. There ain’t no playing right now. . . . [Y]ou don’t see what’s going on?” He also warns her that if she lags behind he will leave without her.
We also find the court was within its discretion to reject, as overstated, the defendant’s characterization of the prejudicial impact of exposing the jury to some of the surrounding conversation and argument as the equivalent of hearing defendant admit to murder or a “similarly heinous crime.” Prejudice, within the meaning of Evidence Code section 352, refers to evidence that uniquely tends to evoke an emotional bias against an individual and which has very little effect on the issues. (People v. Wright (1985) 39 Cal.3d 576, 585.) Defendant’s persistent use of profanity and epithets such as “nigga,” “bitch” and “ho” might indeed be offensive to some people. Nonetheless, it was obvious from the context that he was venting his anger and under a great deal of stress. The use of such language under these conditions in an urban context is not likely to be particularly shocking or inflammatory, especially when considered against the backdrop of the other evidence to be presented in the case, and the use of similar language by other witnesses. Nor were Aldridge’s accusations of infidelity particularly prejudicial. She merely voiced her suspicions, and defendant denied the accusations. Neither the profane and abusive language used in anger, nor the accusations of infidelity, are anywhere near the equivalent of an admission to a heinous crime in terms of the risk of undue prejudice.
Defendant further contends that because there was more than one example of each type of statement reflecting consciousness of guilt, it would have sufficed to admit only one instance of each. Defendant argues it was an abuse of discretion not to further redact the conversation to allow only one reference to each of defendant’s assertions that someone was snitching, that he was being investigated by homicide, and that he was ready to pack up and leave town. He reasons that after one example of each type of statement was admitted, the others were merely cumulative, and their probative value was outweighed by the prejudicial effect of repetition and exposing the jury to some of the surrounding material showing defendant in a bad light. The argument fails to demonstrate an abuse of discretion, because the court could instead reasonably conclude the jury would not have a complete sense of defendant’s state of mind and the degree and immediacy of these concerns without hearing how he repeatedly returned to these themes.
Overall, the record shows the court carefully considered the relevance of these portions of the recorded calls, and weighed their probative value against the risk of prejudice. The court struck the proper balance in redacting some portions of the conversation, and we find no abuse of discretion with respect to its conclusion that, with respect to those portions it admitted, the probative value outweighed the minimal risk that defendant’s angry expressions of contempt, profanity, and epithets would evoke a unique emotional bias against him. Defendant’s exhaustive statements of reasons for disagreeing with the court’s assessment of the probative value of this evidence, the degree of prejudice, and ultimately its weighing of these factors demonstrates only that reasonable minds could differ, not an abuse of discretion. (See, e.g., People v. Hines (1997) 15 Cal.4th 997, 1044-1045 [court did not abuse its discretion by admitting a profanity-laden tape-recorded jailhouse conversation because the risk that the jury would be offended by his constant use of profanity did not outweigh the probative value of the statement made during the conversation that were probative of consciousness of guilt]; see also People v. Nicolaus (1991) 54 Cal.3d 551, 577-578 [not an abuse of discretion to admit documents in which defendant expressed contempt for Christianity because court could reasonably conclude probative value outweighed risk that jurors would be offended or passion inflamed by such views].)
We also find no merit to defendant’s contention that the admission of these recorded calls violated his due process right to a fair trial. He asserts the prosecutor used the bad character evidence contained in these calls throughout the trial to vilify him, and the court never gave an instruction limiting the use to which the evidence in the telephone calls could be put. The court, however, has no sua sponte duty to give a limiting instruction, and defendant does not contend one was ever requested. Nor is this an “ ‘extraordinary case in which unprotected evidence . . . is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose.’ ” (People v. Hernandez (2004) 33 Cal.4th 1040, 1051-1052.) As we have said, defendant’s use of profanity, the accusations of infidelity, and the contemptuous attitude defendant displayed towards women were not highly prejudicial, and were deeply intertwined with other probative evidence contained in the recorded calls. (See People v. Farnam (2002) 28 Cal.4th 107, 163-164.)
III.
Evidence of Threats or Killing of Witnesses
Defendant contends that the court erred by admitting evidence of threats and violence against witnesses. He also makes a related contention that the prosecutor committed misconduct by misusing this evidence to suggest, despite the absence of any evidence to support such a conclusion, that defendant was responsible for or had authorized these acts, and that the jury should rely on this evidence for the purpose of inferring defendant’s consciousness of guilt.
Admissibility of Evidence of Threats and Violence
Defendant contends it was error to admit Wesley Tucker’s testimony concerning the threats made to him and his family because there was no evidence that any of these threats were made or authorized by defendant. Defendant’s reliance upon cases that hold that evidence of threats are inadmissible unless there is evidence the defendant made or authorized the threat are inapposite. (See People v. Hannon (1977) 19 Cal.3d 588, 599-601; People v. Terry (1962) 57 Cal.2d 538, 566; People v. Perez (1959) 169 Cal.App.2d 473, 477-478; see also People v. Williams (1997) 16 Cal.4th 153, 200.) In each of these cases the court held that, absent evidence that the defendant made or authorized the threats, such evidence is inadmissible to prove the defendant’s consciousness of guilt. Nonetheless, “[e]vidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible. [Citations.] An explanation of the basis for the witness’s fear is likewise relevant to her credibility and is well within the discretion of the trial court.” (People v. Burgener, supra, 29 Cal.4th at p. 869.) For this purpose, “[i]t is not necessary to show threats against the witness were made by the defendant personally, or the witness’s fear of retaliation is directly linked to the defendant for the evidence to be admissible.” (People v. Gutierrez (1994) 23 Cal.App.4th 1576, 1588.)
Defendant’s only contemporaneous objections were on hearsay grounds. “[T]he failure of defendant’s attorney to object to such questions or to move to strike the resulting testimony waived any error.” (People v. Hannon, supra, 19 Cal.3d at p. 600.)
Defendant acknowledges this distinction, but argues that if the evidence was admitted for the purpose of showing the witnesses’ state of mind, the court must give a limiting instruction. The court has no sua sponte duty to give such a limiting instruction. “ ‘When evidence is admissible as to one party or for one purpose and is inadmissible as to another party or for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly.’ [Citation.] However, as this court has noted, ‘absent a request by defendant, the trial court has no sua sponte duty to give a limiting instruction.’ ” (People v. Smith (2007) 40 Cal.4th 483, 516); see also People v. Jennings (2000) 81 Cal.App.4th 1301, 1316 [trial court has no sua sponte duty to give a limiting instruction absent a request].) Defendant provides no record citation showing that defense counsel asked the court to give a limiting instruction. Therefore any contention that it was an abuse of discretion not to give a limiting instruction is waived.
Defendant further contends that the court erred in admitting evidence of Randy (Bone) Hicks’s statement to Eric Gaines. In a taped statement that was admitted at trial, Gaines stated that, immediately after the shooting, Hicks told Gaines he was standing near Terrill Zachary when defendant shot him. Hicks was afraid defendant might shoot him too, because Hicks and defendant bumped into each other as Hicks started to run, but instead defendant just walked away. Defendant argues that Hicks’s statement to Gaines should have been excluded as triple hearsay. The contention is waived because the record shows defense counsel did not object to the admission of this portion of the taped statement on these grounds.
Defendant also contends that the court erred by allowing other witnesses to testify that Bone had been killed, “over repeated defense objections.” Yet, the record citations he provides show only a relevance objection when the prosecutor asked where Hicks was killed. Defense counsel made no objection at all to the preceding questions eliciting testimony that Hicks had been killed. Nor did defense counsel object when the prosecutor asked another witness if he knew what happened to Hicks, and the witness replied, “He got killed.” Therefore, defendant’s contention that the court erred in admitting this evidence is waived. (See People v. Kirkpatrick (1994) 7 Cal.4th 988, 1014.)
Counsel was not ineffective for failing to object to this line of questioning because evidence of the witnesses’ state of mind, specifically that they feared retaliation, is admissible even if threats or intimidation are not directly linked to the defendant. (See People v. Burgener, supra, 29 Cal.4th at pp. 869-870.) We also note that defense counsel later himself elicited this same evidence when he asked defense witness Fudge at the beginning of his testimony on defendant’s behalf whether he knew Hicks, and that Hicks was now “deceased.”
In any event, even if not waived, defendant’s contention that this evidence was inadmissible is without merit. Defendant asserts that, pursuant to Evidence Code section 1231.4, the jury should not have been informed that Hicks died from other than natural causes. Evidence Code section 1231.4 is inapplicable. Neither Hicks’s statement to Gaines nor Gaines’s taped statement was admitted pursuant to Evidence Code section 1231, which applies only to admission of a decedent’s sworn statements relating to acts relevant to a criminal prosecution pursuant to Penal Code section 186.20. Instead, Gaines’s taped statement was admitted because he invoked his Fifth Amendment privilege at trial. The prosecutor therefore introduced his preliminary hearing testimony pursuant to Evidence Code section 1291, and the taped statement, which had been admitted at the preliminary hearing as a prior inconsistent statement, was also admitted pursuant to Evidence Code sections 1235 and 1294.
Defendant also contends that even if this evidence was admissible, the prosecutor committed misconduct by urging the jury to infer that defendant had killed or authorized the killing of Hicks, despite the absence of any evidence that defendant was involved. (See People v. Olguin, supra, 31 Cal.App.4th at p. 1368.) He also argues that the prosecutor committed misconduct by urging the jury to consider all of the evidence of threats or violence against witnesses for the improper purpose of inferring defendant’s consciousness of guilt.
The record does not support these contentions. The prosecutor did not argue or imply that defendant had killed or authorized the killing of Hicks, nor did he suggest that the jury should consider the evidence of threats and violence against witnesses for the purpose of inferring defendant’s consciousness of guilt. There is no reasonable likelihood that the jury would have construed his arguments as a suggestion that they could or should draw such an inference. (People v. Ochoa, supra, 19 Cal.4th at p. 427.) To the contrary, the prosecutor’s argument expressly stated that witnesses’ awareness that Hicks was a potential witness and that he had been killed was relevant to their state of mind, and affected the willingness of witnesses to come forward.
The prosecutor referred to Hicks in the context of his argument explaining why the police had to resort to making deals with witnesses like Gaines and Tucker, rather than rely on information from citizen informants. To put the police methods “in perspective,” the prosecutor argued: “I think there was testimony regarding Bone is the only one that saw it. And Bone saw this and Bone knows who killed him. Bone knows the defendant did this. Bone was killed, was shot to death. . . . [Y]ou don’t think these witnesses currently here know that ? This is admissible for the state of mind of these witnesses. You don’t think they are thinking about that when they testify or the defendant’s family is back there, and Wesley Tucker is here the first day, all those guys are back there. You don’t think that that scares them? You don’t think that they know that? All the cell phones going off in here. How fast does the word get to the street?” (Italics added.)
Later, in the context of arguing that Deborah Baldwin and other defense witnesses testifying to the alibi were lying to protect defendant, the prosecutor argued: “They are on the same team. Would this family put this perjury together for you, put this alibi together to free their son? Yes, they would. [¶] Would this family threaten witnesses, intimidate witnesses to free their son? Yes, they would. [¶] Would it be reasonable for witnesses to think that witnesses would be killed to free their son? Yes, they would.” (Italics added.) This argument was not directed at defendant, but rather at members of his family. Moreover, in context, the prosecutor was clearly advancing reasons to discredit the defense witnesses, not suggesting that the jury should draw an inference of defendant’s consciousness of guilt.
This was an apparent reference to testimony that defendant’s sister had gone to Tucker’s home and warned his family members that he should not testify against defendant.
The prosecutor’s remark at the beginning of his closing argument that defendant conducted his own “star chamber, including intimidating and terrorizing witnesses to this day” (italics added) could be construed as suggesting that defendant did personally participate in or authorize threats or intimidation of witnesses, and was objectionable on that basis. Nevertheless, the claim of prosecutorial misconduct is waived because defense counsel did not interpose an objection. Defense counsel also was not ineffective for failing to object. The comment may have been a reference to defendant’s statement in the recorded call about some “snitching” and asking the third party to “handle” it. Rather than risk underscoring the point, it was within the range of reasonable competence to elect instead simply to remind the jury in his own argument that arguments of counsel are not evidence.
This was a rhetorical characterization of defendant’s decision to take the law into his own hands by executing Terrill Zachary because he believed Zachary had killed one of defendant’s friends.
IV.
Failure to Investigate Communication Between Juror and Victim’s Mother
Defendant contends that his rights to an impartial jury and due process guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution were violated because, after learning of possible jury misconduct, the court failed to fulfill its duty to make whatever inquiry is reasonably necessary to determine if the juror should be discharged. (People v. Engelman (2002) 28 Cal.4th 436, 442.)
1. Relevant Facts
In response to a note Juror No. 8 gave to the judge, the court held a hearing with the parties and Juror No. 8 regarding an out-of-court conversation she had with the victim’s mother. Juror No. 8 explained the conversation took place during a break, and after the break, a bailiff informed her she had to report it to the judge. At the court’s request, the juror described the encounter as follows:
“So I go downstairs to smoke during breaks, and the woman came up to me and just said, ‘I bet you guys are going to be glad when this is done.’ I said, ‘Yeah,’ and she said that he killed my son, that he was my son. And I said, ‘I’m sorry.’ And she said, ‘He was 25,’ and she said, ‘No, 24,’ and said something else about smoking is bad for you to that effect and walked away . . . .”
Juror No. 8 added that one of the alternate jurors was in a position to hear the exchange. The parties agree that the alternate juror was Juror No. 14, who ultimately sat on the jury.
The court asked Juror No. 8 whether the conversation would affect her decision. Juror No. 8 responded, “[A]s far as my decision, there was nothing discussed about that . . . [¶] . . . [N]o I don’t have a problem with that, because no detail was discussed or anything like that.” Juror No. 8 did, however, say that she was uncomfortable about having been called in to chambers “in front of all these people,” and wanted the victim’s mother to know she reported the incident to avoid a mistrial. Juror No. 8 stated she did not want the families thinking that she was “getting them in trouble . . . .” The court asked whether she felt “that this would influence [her] decision in any way” and Juror No. 8 stated that it would not. She also agreed not to discuss the contact she had with the victim’s mother with any other juror.
The court sent Juror No. 8 back to the courtroom, and asked defense counsel whether Juror No. 8 should be retained. Defense counsel stated that he assumed that “her word and her integrity [have not] been compromised.” Nonetheless, he expressed concern, in light of the testimony already heard during trial concerning “threats that are posed to informants,” the victim’s family’s “attitude of vindictiveness” and the fact that it was “obvious in the courtroom the two families have been at odds with each other.” He stated that it was possible this juror might feel intimidated, because “anybody [could] figure out” the reason she was called into chambers was because of her contact with the victim’s mother.
The prosecutor responded that there was already a lot of emotion in the courtroom, and that Juror No. 8 had unequivocally stated that she could still be fair. He also volunteered to have “a very stern conversation” with the victim’s mother to admonish against further contact with jurors.
The court asked defense counsel whether he was “making a motion for mistrial” or “to remove the juror.” Defense counsel stated he moved for a mistrial “without any authority to support the motion,” and the court denied it. The court then specifically asked whether defense counsel moved to replace Juror No. 8 with an alternate. Defense counsel responded: “No. Frankly, I don’t, and the reason for that is one of the alternates, as we’ve heard, is apparently tainted by the same brush, and then we’d be left with one alternate.”
With respect to the alternate, the court noted, “[T]he content of the communication was relatively innocuous. In other words, it didn’t pass any information that all of the jurors don’t already know, the general age of the victim, and so on. And so if anything, you know, I see it as the emotional content between two individuals, and that the person talked to, so that the fact that an alternate may have heard it is rather innocuous, and that’s why I choose not to . . . bring him in here to make any more out of it.” The court started to state how it would rule on a motion to replace the alternate, but then interrupted itself, observing that defense counsel was not “making that motion.” Defense counsel did not assert that the alternate should be interviewed, and with respect to replacement of the alternate, confirmed: “No, I’m not making that motion.”
2. Adequacy of Inquiry into Misconduct
The contact between Juror No. 8 and the victim’s mother constituted jury misconduct even if Juror No. 8 did not invite the conversation with the victim’s mother. (See People v. Nesler (1997) 16 Cal.4th 561, 579.) “ ‘[A] nonjuror’s tampering contact or communication with a sitting juror, usually raises a rebuttable “presumption” of prejudice.’ ” (People v. Danks (2004) 32 Cal.4th 269, 302, 307.) The court therefore had “a duty to conduct reasonable inquiry into allegations of juror misconduct or incapacity—always keeping in mind that the decision whether (and how) to investigate rests within the sound discretion of the court.” (People v. Engelman, supra, 28 Cal.4th at p. 442, italics added.)
Defendant does not contend that the inquiry the court conducted with respect to Juror No. 8 was inadequate, or that any presumption of prejudice that may have arisen was not dispelled with respect to Juror No. 8. Instead, defendant argues the comments made by the victim’s mother gave rise to a presumption of prejudice, because they (1) implied she had out-of-court information concerning defendant’s guilt, (2) were an attempt to induce Juror No. 8 to decide the case based upon sympathy for the victim’s family rather than the evidence, or (3) could have engendered a “sense of vulnerability” or fear of retaliation. Defendant contends that the failure to call the alternate juror in chambers for an interview leaves this presumption of prejudice unrebutted as to the alternate and compels reversal, despite the absence of any evidence in the record on appeal that the alternate juror even actually overheard the conversation, or that his impartiality was actually compromised.
We first exercise our discretion to find the issue was not waived by defense counsel’s failure to seek removal of the alternate. (See, e.g., People v. Barber (2002) 102 Cal.App.4th 145, 150.) Nevertheless, on the merits, we shall hold that the inquiry the court conducted, while not perfect, was adequate, and the communication with the victim’s mother was not “ ‘inherently and substantially likely to have influenced’ ” the jurors, and there was no “ ‘substantial likelihood’ ” that actual bias arose. (People v. Danks, supra,32 Cal.4th at pp. 303-304.)
Defendant arguably waived this contention by standing silent when the court stated its reasons for not interviewing the alternate juror, and by informing the court that he would not, in any event, seek replacement of the Juror No. 8 or the alternate. (See People v. Holloway (2004) 33 Cal.4th 96, 124, 126-127 [defendant waived his contention that the court deprived him of his Sixth Amendment right to an impartial jury by failing to request removal of juror involved in misconduct and by defense counsel’s failure “to suggest any additional examination was required”]; see also People v. Gallego (1990) 52 Cal.3d 115, 188 [claim on appeal of prejudicial jury misconduct was waived by the defendant’s failure to seek removal of the affected jurors]; see also People v. McIntyre (1981) 115 Cal.App.3d 899, 906 [failure to renew motion for mistrial or request that juror be removed after interview waived contention on appeal].) Defendant contends that these cases are distinguishable because he did seek a mistrial after the court interviewed juror No. 8. Yet, the claimed error on appeal pertains not to the denial of the motion for mistrial, but rather to the court’s failure to interview the alternate. By expressly stating that he would not seek removal of Juror No. 8 or the alternate, defense counsel eliminated any reason for the court to conduct further inquiry with respect to the alternate. Moreover, if counsel required further inquiry before making an informed decision whether to seek removal of the alternate, it was incumbent upon counsel to inform the court when it still had the opportunity to cure the defect.
Defendant argues that the improper contact between Juror No. 8 and the victim’s mother created a presumption of prejudice that remains unrebutted as to the alternate juror because of the failure to interview him. He reasons that the “silent record” as to the alternate compels the conclusion that the misconduct was prejudicial, and requires reversal of the judgment. In People v. Hardy (1992) 2 Cal.4th 86, 174 -175, the court rejected a similar argument. In Hardy, a juror gave a prosecution witness a gift of fruit cocktail. The gift was made in court with defense counsel also present. No conversation took place between the juror and the prosecution witness. The defense asserted the juror had engaged in misconduct and should be discharged because the juror’s acts showed a bias in favor of the prosecution. Without interviewing the juror, the court denied the motion. The court stated it found the act was “innocent,” and prompted, not by a pro-prosecution bias, but rather the fact that the female witness was attractive. (Id. at pp. 173-174.) Our Supreme Court rejected the defendant’s assertion that the court was required to question the juror, noting that although the court has a duty to inquire, its decision whether to interview the juror was discretionary. (Id. at p. 174.) Next, it addressed the defendant’s assertion that he was “entitled to reversal because the jury misconduct raised a presumption of prejudice that was left unrebutted by the prosecution.” The court disagreed. It explained: “The presumption of prejudice may be rebutted, inter alia, by a reviewing court’s determination, upon examining the entire record, that there is no substantial likelihood that the complaining party suffered actual harm.” (Ibid.) The Supreme Court acknowledged that if there had been “personal contact” it might have held it necessary to interview the juror, but since there was no conversation or contact beyond giving the gift of fruit cocktail, it could find any inference of prejudice arising from giving of the gift to be rebutted based upon the record before it. The Supreme Court concluded there was no substantial likelihood of bias because the misconduct was “de minimis,” and there was no evidence that the juror even spoke to the prosecution witness. (Id. at p. 175.)
Similarly, here, only Juror No. 8 had direct personal contact with the victim’s mother. The court did not fail to conduct any inquiry. It called into chambers the juror who participated in the conversation with the victim’s mother. The court ascertained exactly what was said, and determined that the conversation did not provide any information that was not otherwise before the jury. It is undisputed that the presumption of prejudice was dispelled with respect to Juror No. 8 because she did not describe or perceive the conversation as containing any implicit threat, or plea to decide the case based upon sympathy. Nor did she interpret the comment “he killed my son” as an assertion that the victim’s mother had information not presented to the jury that established defendant’s guilt. She unequivocally stated her understanding that the conversation did not relate to her decision in the case, and expressed certainty that the conversation would not affect her ability to be impartial.
In Dennis v. United States (1950) 339 U.S. 162, the court observed that “[o]ne may not know or altogether understand the imponderables which cause one to think what he thinks, but surely one who is trying as an honest man to live up to the sanctity of his oath is well qualified to say whether he has an unbiased mind in a certain matter.” (Id. at p. 171.)
No doubt the better course, at least from the standpoint of creating a record invulnerable to attack on appeal, might have been to call in the alternate juror to ascertain whether he actually overheard the conversation, and, if so, how he interpreted it, and whether he believed it would affect his ability to be impartial. Nonetheless, we cannot say that, having satisfied itself that the only juror who actually engaged in the conversation could act impartially, the court’s stated reasons for not calling the alternate in chambers to be interviewed demonstrate an abuse of its discretion. The court’s duty is to conduct whatever inquiry is reasonably necessary to determine if the juror should be discharged, not to perform whatever type and scope of inquiry a defendant demands, or deems necessary in hindsight. The decision as to how to conduct a reasonable inquiry into allegations of juror misconduct “rests within the sound discretion of the court.” (People v. Engelman, supra, 28 Cal.4th at p. 442, italics added; see also People v. Ray (1996) 13 Cal.4th 313, 343-344; People v. Osband (1996) 13 Cal.4th 622, 675-676.) The court reasonably concluded that further interview of the alternate was unnecessary because the conversation was simply an emotional exchange between those “two individuals,” who had direct contact with each other, and it did not even affect the impartiality of the juror directly involved. Since the alternate was merely a bystander, it was reasonable to conclude the impact on him was also “innocuous,” assuming arguendo that he even overheard it.
In any event, the mere absence of a personal interview with the alternate juror does not compel this court to find prejudicial misconduct necessitating reversal of the unanimous jury verdict. This court may instead find any presumption of prejudice rebutted based upon one of two tests for determining whether jury misconduct caused prejudice. (People v. Danks, supra,32 Cal.4th at p. 303.)
The Danks court “emphasize[d] that before a unanimous verdict is set aside, the likelihood of bias under either test must be substantial . . . . [T]he criminal justice system must not be rendered impotent in quest of an ever-elusive perfection. The jury system is fundamentally human, which is both a strength and a weakness. [Citation.] Jurors are not automatons. They are imbued with human frailties as well as virtues. If the system is to function at all, we must tolerate a certain amount of imperfection short of actual bias. To demand theoretical perfection from every juror during the course of a trial is unrealistic.” (People v. Danks, supra, 32 Cal.4th at p. 304.)
First, the comments made by the victim’s mother, judged objectively, did not convey the type of information that was “ ‘inherently and substantially likely to have influenced the jurors,’ ” meaning the “ ‘information was so prejudicial in context that its erroneous introduction in the trial itself would have warranted reversal of the judgment.’ ” (People v. Danks, supra, 32 Cal.4th at p. 303.) The comment, “[H]e killed my son,” and that he was only 24 or 25, conveyed nothing more surprising than the mother’s natural grief over her loss, and her opinion that defendant was guilty. A juror would have assumed the former, and had no reason to assign particular weight to the latter. Moreover, the jurors were already undoubtedly aware, based upon other courtroom behavior, that emotions ran high between the family members and that the hostility was based at least in part upon their respective beliefs as to defendant’s guilt or innocence. Therefore, the fact that a family member also directly expressed her opinion to a juror was not inherently likely to impact the impartiality of that juror or the alternate who may have overheard it. (See People v. Hinton (2006) 37 Cal.4th 839, 898 [court held mother’s statement in front of jury after jury announced its guilty verdict, “Thank you, Jesus. Kill him,” was not inherently prejudicial with respect to the next death penalty phase because her opinion was not surprising, and jury not likely to give it any weight].)
Second, our examination of the entire record, the nature of the misconduct and the “ ‘totality of the circumstances surrounding the misconduct’ ” satisfies us that “ ‘no substantial likelihood of actual bias arose,’ ” and therefore any “ ‘ “presumption of prejudice [is] rebutted.” ’ ” (People v. Danks, supra, 32 Cal.4th at pp. 303-304.) Viewed objectively, the mother’s remarks did not imply she had outside evidence establishing defendant’s guilt. To the extent that her comments could have been understood as a plea for sympathy, they added nothing to the sympathy the jury members would otherwise naturally feel toward the victim’s family, and they were instructed in their deliberations to base their verdict only upon the evidence. Nothing about the context of this brief friendly exchange suggested that the comment would be perceived as a veiled threat, or would engender a sense of vulnerability, especially since it was not even directed to the alternate juror. For all the foregoing reasons, we are confident that there was no substantial likelihood that overhearing the conversation between Juror No. 8 and the victim’s mother would have resulted in actual bias. (Ibid.)
Defendant further contends that even if none of the claimed errors individually resulted in prejudice, the cumulative effect was prejudicial and denied him a fair trial. Since we have found no error, we need not reach this contention.
Conclusion
The judgment is affirmed.
We concur: MARCHIANO, P. J. MARGULIES, J.