Opinion
F070024
01-08-2018
THE PEOPLE, Plaintiff and Respondent, v. RICHARD VICTOR ESCALON et al., Defendants and Appellants.
Dale Dombkowski, under appointment by the Court of Appeal, for Defendant and Appellant Richard Victor Escalon. A.M. Weisman, under appointment by the Court of Appeal, for Defendant and Appellant Marcos Gonzalez, Jr. Xavier Becerra and Kamala D. Harris, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Melissa Lipon, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F11902504)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Wayne R. Ellison, Judge. Dale Dombkowski, under appointment by the Court of Appeal, for Defendant and Appellant Richard Victor Escalon. A.M. Weisman, under appointment by the Court of Appeal, for Defendant and Appellant Marcos Gonzalez, Jr. Xavier Becerra and Kamala D. Harris, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Melissa Lipon, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
A jury convicted appellants Richard Victor Escalon and Marcos Gonzalez, Jr. of first degree murder (Pen Code, § 187, subd. (a)) for the death of Christopher Michael Zuniga, finding true that appellants both personally used a deadly weapon. Gonzalez was sentenced to 28 years to life in prison and Escalon was sentenced to 31 years to life.
On appeal, they claim that Gonzalez's statements to police were improperly used against him at trial. They further assert that the trial court erred in failing to instruct on attempted murder, and the court abused its discretion in permitting introduction of certain trial evidence. Finally, they claim prosecutorial misconduct. We affirm.
BACKGROUND
I. A Synopsis Of The Relevant Trial Facts.
It is undisputed that appellants killed Zuniga on January 28, 2011, in a residence in Fresno County. In the basement, Gonzalez struck Zuniga's head with a wooden baseball bat and Escalon cut Zuniga with a knife, severing his aorta. Zuniga had been unarmed. Two witnesses, Delilah Luna and A.F., observed the incident.
A.F. was 15 years old when Zuniga's homicide occurred.
When these events occurred, Luna was "seeing" Gonzalez, but they had ended an eight-year relationship. A.F. was a teenager who had just met Luna and Gonzalez the day before Zuniga's homicide.
It is undisputed that appellants, Luna, A.F., and Zuniga all smoked methamphetamine on the day before this crime. They each smoked again on the day Zuniga was killed.
A. The motive to kill.
The prosecution and the defense disputed why appellants were in the basement with Zuniga in the moments leading to his death. The prosecutor argued that appellants were involved in a fraudulent check-cashing scheme, and they killed Zuniga because he tried to steal from them. The parties presented substantial trial evidence regarding this issue. We need not, however, summarize all of those facts.
It is undisputed that Zuniga, in the early morning hours of January 28, 2011, had deposited a forged check into Escalon's bank account using Escalon's ATM card. The forged check belonged to Mary Ann Mitchell, the residence's owner. Zuniga had attempted to withdraw funds from Escalon's bank account, but the bank froze the account.
It is undisputed that, later that same day, appellants drove to the bank. Luna, A.F., and Escalon's wife, Moneca Alcala, accompanied them. Appellants learned that Escalon's bank account was frozen because of Zuniga's activity. According to A.F.'s and Luna's independent statements to police, appellants then argued about money and they believed that Zuniga owed them money. Appellants drove back to the residence to confront Zuniga. According to appellants, however, they simply wanted to talk to Zuniga because Gonzalez wanted both Escalon and Zuniga to leave the residence. Gonzalez wanted Escalon to speak with Zuniga because "they were the ones trying to cash [Mitchell's] checks."
Alcala did not testify in this trial.
It is undisputed that appellants went from the bank to the residence where they encountered Zuniga, and the killing occurred. Luna testified that Gonzalez, who drove, did not drop her or A.F. off at another location as planned. Instead, he drove back to the residence a little too fast.
B. Alma Barragan and Maggie Meza hear and see part of the murder.
Two women, Alma Barragan and Margarita (Maggie) Meza, were sharing a room at the residence on the day of Zuniga's murder. Barragan saw appellants get out of their vehicle when they returned to the residence. She did not see Gonzalez carrying a bat. Meza heard people returning to the residence. According to Meza, Escalon's wife came into their room and warned them to stay there because "something was going to happen." Meza then heard yelling and a girl scream "no" or "stop" or something similar. Barragan also testified that she heard yelling.
Meza initially testified that they heard loud noises and then Escalon's wife came into their room. After further questioning by the prosecutor, Meza agreed that she heard yelling after Escalon's wife warned them. Escalon argues that Meza's testimony was unreliable, contending the prosecutor led her. No objections were lodged in the trial court regarding this examination. After reading Meza's testimony, we disagree that this evidence is unreliable.
Barragan looked out the door and she saw Zuniga running. He fell in the kitchen near a back door. Barragan closed her door. Later, she looked out her door and saw Zuniga lying on the kitchen floor. Appellants were pacing in the kitchen. Gonzalez told Zuniga to get up. Gonzalez held a bat and Escalon held a knife. Escalon threw very hot water on him, but Zuniga did not move. Zuniga was lying in a pool of his own blood. Appellants hugged each other and appeared happy.
At some unknown time, A.F. came into Barragan's room with smeared blood on her arm. A.F. look scared. She said "they" confronted Zuniga downstairs "and then they attacked him." They hit Zuniga's head, and "he was trying to get away." Zuniga pushed them and tried to run upstairs, and "they ran behind him." Zuniga was stabbed after he started fighting back and was trying to get away. A.F. kept saying something like "they got him" or "they hit him."
C. The events in the basement.
The prosecution's evidence is in conflict regarding when appellants were first armed. A.F. provided inconsistent statements regarding the circumstances of the killing. Two or three days after this murder, A.F. told police that appellants approached Zuniga while armed, and they immediately attacked him because of money. Gonzalez struck the front of Zuniga's head with a wooden bat. Zuniga said something like "what the fuck?" Escalon then stabbed Zuniga around the stomach with a silver bladed folding knife. Zuniga fled up the basement stairs to the kitchen, where he collapsed. Appellants continued to hit Zuniga in the kitchen.
During her statements to police, A.F. made other claims which became the subject of much examination and argument at trial. For instance, she initially claimed that Luna had kidnapped her and she had been sexually assaulted at the residence. However, during both her police interview and at trial, A.F. eventually admitted that she had lied to police about being abducted. At trial, she did not claim that she had been sexually assaulted at the residence.
At trial, however, A.F. provided different accounts. She initially testified that Zuniga fought with appellants in the basement and Gonzalez struck Zuniga's head during the fight. After being refreshed by her statements to police, A.F. agreed that she told the police the truth and she told police that appellants were armed going down into the basement. They argued with Zuniga, and Zuniga said he did not have the money. A.F. testified that Gonzalez struck Zuniga over the head with the baseball bat and Escalon stabbed him. She could not remember where Zuniga was stabbed on his body.
Later at trial, however, A.F. testified that she saw appellants holding an aluminum bat and a silver knife in the vehicle on the way back to the residence. She claimed that they carried these weapons into the residence, but she later admitted that she did not remember. A.F. also testified that the three men fought in the basement for about 30 minutes, before suggesting that was the length of time she was in the basement. She also stated that Zuniga was first stabbed in the neck and then hit multiple times with the bat. At trial, A.F. admitted multiple times that her memory of the events was poor.
At trial, the jury learned that A.F. never told police that she saw appellants with weapons in the vehicle as they drove back to the residence.
Based on Luna's statements to police and trial testimony, appellants were not armed when they began arguing with Zuniga. Zuniga initiated a fight, and a fistfight occurred in the basement involving all three men.
With her attorney present, Luna spoke with police a little over one month after Zuniga's murder. At trial, she agreed that she delayed contacting police because she was hoping to work out a deal for herself. During her police interview, she discussed a pending probation problem. Luna testified at the preliminary hearing under a grant of immunity, but she did not have any immunity for her trial testimony.
According to Luna, Gonzalez struck Zuniga's forehead with a baseball bat, not during the fight, but when Zuniga was trying to show him a piece of paper. The bat had been in the basement. After being struck, Zuniga said, "What the fuck?" Luna told both the police and the jury that the incident was Gonzalez's fault, and Zuniga did not pose a threat when he was struck. Zuniga fled up the stairs. Gonzalez yelled for Escalon to get Zuniga. Luna next saw Zuniga lying on the kitchen floor unresponsive. In the kitchen, Escalon and Gonzalez continued to strike Zuniga's body. She never saw Escalon hold a knife or stab Zuniga. However, she heard Escalon say, "I done him[.] I done him."
D. Appellants' efforts to hide the evidence.
The prosecution's evidence established that appellants tried to hide evidence of this crime. Using cut coaxial cables, appellants fashioned handles around Zuniga's body. They both moved the corpse to Zuniga's SUV, which Escalon drove away.
Gonzalez ordered Luna to clean the basement. Luna and A.F., along with Escalon's wife, cleaned blood from the basement, the stairway, and the kitchen. Luna testified at trial that she did so because she was afraid of Gonzalez and she feared for her life. A.F. testified that she cleaned the basement because Luna asked her to do so, and A.F. was scared.
While they cleaned the basement, Gonzalez ripped away the carpeting that covered the basement stairs. A friend of Luna's, Cesar Quezada, came to the residence while everyone was cleaning. The carpet and bat where loaded into Quezada's vehicle and driven away.
E. The women were held hostage.
With the exception of Escalon's wife, who did not testify at trial, the women in the residence all testified or told police that they were not allowed to leave the residence after the killing. Luna overheard appellants arguing about whether or not they should kill the witnesses. Gonzalez told Barragan "we're going to have to get rid of [Meza]" who saw or knew too much. At some point, Gonzalez asked Meza for her cell phone, which she refused to give him.
Sometime during that day, Gonzalez told Meza that a fight had occurred but Zuniga "was okay." Gonzalez told Barragan that Zuniga had been stealing, but he was not going to do that again. To leave, Barragan suggested that she could drive Gonzalez to get more methamphetamine. Gonzalez agreed. Barragan and Meza drove Gonzalez to a house in Clovis. Shortly after Gonzalez went inside, Barragan and Meza drove away, leaving him there. Sometime later that day, Gonzalez returned to the residence alone.
F. Law enforcement's investigation.
On approximately February 1, 2011, both A.F. and Barragan independently informed police about Zuniga's homicide, and both were interviewed. That evening, police arrested Gonzalez at the residence. The following morning, police interviewed Gonzalez, who generally denied any knowledge of Zuniga's death or his whereabouts. At trial, a detective testified that he did not observe any injuries on Gonzalez's face during that interview.
A more detailed summary of Gonzalez's police interview is in section I of the Discussion, below.
When police searched the residence, they found pieces of severed coaxial cable, and evidence of recent cleaning, including the odor of bleach. A broken-handled kitchen knife was found in the trash. The knife blade was approximately three inches in length. Police found blood spatter in several locations in the basement. DNA testing confirmed it was Zuniga's blood.
By the side of a road away from the residence, police recovered pieces of the carpet that had been ripped from the basement. A baseball bat was inside the carpet, and it had blood on it. Zuniga's DNA was the "major profile" of genetic material found on the bat. Police arrested Escalon on February 2, 2011.
G. Zuniga's charred remains are found.
On February 2, 2011, police located Zuniga's SUV in a rural orchard. It had been burned and Zuniga's charred body was found inside. Zuniga's corpse had been wrapped with coaxial cable. A color photo, People's exhibit 16, shows Zuniga's charred corpse in the back of his SUV.
An autopsy revealed a depressed fracture on the right side of Zuniga's forehead consistent with blunt force trauma that could have been caused by a baseball bat, but not a fist. A color photo, People's exhibit 23, shows Zuniga's scorched skull and the obvious depressed fracture.
The cause of death was a perforation of Zuniga's aorta. Because of the burning to Zuniga's corpse, the pathologist could not confirm a stab wound from an external exam. A color photo, People's exhibit 21, shows Zuniga's charred torso (absent arms) lying on the exam table. The pathologist opined that the fatal penetrating wound was caused from a blade approximately three inches long, and the wound entered from the front. The wound was caused by a moderate to severe degree of force. Zuniga could have survived for three to seven minutes after the aorta perforation, and he could have traveled five to 15 yards before dying. The pathologist could not determine which occurred first: the blow to Zuniga's head or his fatal stab wound.
Because of the corpse's condition, the pathologist could not identify any other stab wounds, bruising, or other injuries. The autopsy, however, revealed a very significant amount of methamphetamine in Zuniga's system. The pathologist explained at trial that ingestion of this drug can cause a person to have inappropriate and aggressive behavior.
II. Relevant Defense Facts.
Both Gonzalez and Escalon testified at trial. They both admitted to smoking methamphetamine in the days leading up to this homicide, and they both used methamphetamine on the morning of the homicide. Gonzalez admitted at trial that he was very high when these events occurred. Escalon admitted that he was high when he burned Zuniga's SUV.
Appellants testified that they feared Zuniga, who had a reputation for violence. Zuniga claimed to have killed a lot of people as a marine sniper. He had a temper, and he was often armed with a nine-millimeter handgun, which he had displayed at the residence. Appellants provided the jury with first-hand accounts wherein they observed Zuniga brutally beating and robbing various victims.
Another defense witness, Ruben Garcia, knew Zuniga from prison and Garcia confirmed that Zuniga had a reputation for violence. Zuniga was intimidating, used his body weight, and he often boasted of violent criminal exploits. Garcia described him as "a beast in nature." Zuniga could switch his demeanor quickly and make something "an all-in situation." Garcia believed that Zuniga had no morals or values, and Zuniga was prepared to lie, cheat and steal to get what he wanted. In 2008, Garcia warned Gonzalez about Zuniga's character for "shadiness" and relayed an incident where Zuniga had stabbed someone.
Based on his DMV information, Zuniga was five feet nine inches tall, and weighed approximately 200 pounds.
At trial, appellants admitted that they went down into the basement on January 28, 2011, to speak with Zuniga. They denied any plans to assault or kill him. Instead, they were going to tell Zuniga that he had to leave the residence. Escalon testified that Zuniga was "high as hell" that day and Escalon was scared to speak with him.
According to appellants, Escalon told Zuniga that he had to leave the residence. Zuniga jumped up and said something like, "You fucking bitch. You told him about the check?" Zuniga then attacked Gonzalez. Zuniga overpowered Gonzalez and bloodied his face.
Gonzalez testified that Zuniga repeatedly struck him and Gonzalez felt himself blacking out. Fearing for his life, Gonzalez grabbed a bat. Gonzalez believed that Zuniga might retrieve his gun. Gonzalez struck Zuniga once with the bat when Zuniga charged at him. Gonzalez claimed that he did not strike Zuniga's head where the fracture occurred. Instead, Zuniga partially blocked the blow and the bat struck the side of his head. Gonzalez did not think he struck Zuniga hard with the bat, claiming he "bunted" him.
According to appellants, Zuniga then attacked Escalon, punching him. Escalon saw that Zuniga was reaching for a knife on a desk. Escalon, however, grabbed the knife first. Zuniga punched Escalon, who feared that Zuniga would take the knife from him. Escalon swung the knife one time to defend himself because he was afraid for his life. Zuniga ran up the stairs out of the basement.
Appellants both testified that they followed Zuniga up the stairs. They claimed that they did so over a concern that he might retrieve his gun. They found him lying on the kitchen floor, unresponsive. They believed he was pretending. Escalon threw hot water on him. Appellants became panicked and scared. Escalon threw the knife into the kitchen sink. Appellants denied striking Zuniga while he lay on the kitchen floor.
According to Escalon, it was Luna who suggested that they should dispose of Zuniga's corpse or burn it. She and Escalon used a tarp and coaxial cables to move Zuniga's body to his SUV. They drove it out into a remote area and started it burning. Escalon testified that Gonzalez, who had been down in the basement, was not involved in removing Zuniga's corpse.
Gonzalez denied cleaning the residence or removing the carpet. He went down into the basement to look for Zuniga's gun and to fix his cell phone, which had been damaged during the fight. He left the residence with Barragan and Meza, and he went to a house in Clovis. He returned to the residence about seven or eight hours later. When he returned, the stairway carpet was gone. According to Gonzalez, Luna said that she and Quezada had disposed of it. Appellants denied talking about killing witnesses or preventing anyone from leaving the residence.
DISCUSSION
I. Gonzalez's Statements To Police Were Admissible As Impeachment Evidence.
At trial, after Gonzalez testified that he acted in self-defense, the prosecutor played for the jury the recordings of Gonzalez's police interview. Gonzalez argues that his statements to police were introduced against him at trial in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
A. Background.
1. Gonzalez's interview with detectives.
On February 2, 2011, detectives interviewed Gonzalez at the police station. The audio/visual recording lasts approximately 27 minutes. Gonzalez was read his Miranda rights after the detectives first obtained some background information regarding his living arrangements at the residence. He indicated that he understood his rights, but said, "I don't want to say nothing." Gonzalez, however, immediately asked the detectives questions about the case and the interview continued.
During the course of the short interview, the detectives initially informed Gonzalez that Zuniga was missing, then they said Zuniga had been injured in the residence, and finally they accused Gonzalez of murdering Zuniga. At least five times during the interview, Gonzalez indicated that he did not want to give a statement. The detectives continued to talk to him, telling him this was his chance to explain his role. Throughout the interview, Gonzalez expressed surprise that Zuniga might be missing, he consistently denied any knowledge of a murder or any events occurring at the residence, and he denied cleaning any blood at the residence.
2. Gonzalez's trial testimony regarding his interview.
At trial, Gonzalez claimed that he had asked for an attorney repeatedly during his police interview, but the detectives ignored his requests. He said that, on the way to the interview room, a detective told him to lie and throw Escalon "under the bus." As a result, "red flags went up" and Gonzalez did not want to cooperate. He claimed that he did not necessarily lie during his interview because he did not know that day that Zuniga was dead or what had happened to his corpse.
3. The trial court's ruling.
Outside the jury's presence, the trial court and counsel discussed whether or not Gonzalez could be impeached with his statements to the detectives. The trial court noted it had been unaware prior to the start of trial that Gonzalez had made any statements to police that might be used against him. The court stated it had reviewed the transcript of the recorded police interview, and the transcript did not establish that Gonzalez had asked for an attorney. The court, however, expressed a concern that Gonzalez made statements that he did not want to answer questions. Without ruling whether or not this interview was coerced, the court permitted the prosecutor to impeach Gonzalez's trial testimony with his police interview. When the jury reconvened, the prosecution provided the jurors with a transcript of Gonzalez's police interview. The audio and video recordings of that interview were played for the jury.
B. Standard of review.
A de novo standard of review is used following a trial court's granting or denial of a motion to suppress a statement under Miranda. (People v. Waidla (2000) 22 Cal.4th 690, 730.) Likewise, we independently review whether a challenged statement was obtained in violation of Miranda (People v. Gurule (2002) 28 Cal.4th 557, 601) and whether a defendant's statements to police were voluntary based on all of the surrounding circumstances. (People v. Benson (1990) 52 Cal.3d 754, 779.)
C. Analysis.
Gonzalez argues that the detectives deliberately disregarded his Miranda rights. He contends a deliberate disregard of his Miranda rights, without more, constitutes coercion. He asserts his statements were thus inadmissible even for impeachment purposes. We disagree with this claim. Even if Gonzalez's statements were obtained in deliberate violation of Miranda, an issue we do not address, these statements were nevertheless admissible as impeachment evidence because no coercion occurred under the totality of the circumstances.
A truly coerced confession is inadmissible for all purposes. (Kansas v. Ventris (2009) 556 U.S. 586, 590.) However, if a confession is not coerced, a defendant's statements may be used against him for impeachment purposes even if they were acquired in violation of Miranda. (Michigan v. Harvey (1990) 494 U.S. 344, 350; see also Kansas v. Ventris, supra, 556 U.S. at p. 591 [violations of the prophylactic rules for the Fifth and Sixth Amendments do not automatically require inadmissibility].)
Likewise, statements obtained in violation of the Sixth Amendment's right to counsel are admissible as impeachment evidence. (Kansas v. Ventris, supra, 556 U.S. at p. 594.) Although custodial interrogation must cease once an accused requests the assistance of counsel (Edwards v. Arizona (1981) 451 U.S. 477, 484 (Edwards)), coercion is not inherently present when an interrogation is continued after a defendant has invoked his right to counsel. (People v. Bradford (1997) 14 Cal.4th 1005, 1039.) The rules in Miranda and Edwards are prophylactic, designed to implement pre-existing rights. (People v. Bradford, supra, 14 Cal.4th at p. 1039.)
In People v. Peevy (1998) 17 Cal.4th 1184 (Peevy), our Supreme Court addressed whether a law enforcement officer's deliberate violation of Miranda and continued interrogation rendered the defendant's statements inadmissible for purposes of impeachment. (Peevy, at p. 1188.) Our high court noted that deliberate police misconduct "may cross the line into coercion" [citations] but concluded that an officer's deliberate misconduct does not, by itself, render a defendant's statements inadmissible for impeachment purposes. (Id. at p. 1202; see also People v. Neal (2003) 31 Cal.4th 63, 78 [summarizing Peevy with approval].) A balance must be struck between deterring police misconduct and exposing defendants who commit perjury at trial. (Peevy, supra, 17 Cal.4th at p. 1202.)
To determine whether coercion occurred, we must look at all of the surrounding circumstances. (People v. Bradford, supra, 14 Cal.4th at p. 1041; see also People v. Neal, supra, 31 Cal.4th at p. 68 [all the surrounding circumstances, including the officer's deliberate violation of Miranda, were used to determine whether statements were involuntary].) The issue is whether police brought influences upon the accused so that his or her will to resist was overcome. (People v. Thompson (1990) 50 Cal.3d 134, 166.) We must examine both the defendant's characteristics and the details of the interrogation. (Ibid.)
Both the United States Supreme Court and our high court have listed the relevant factors to examine when determining whether a police interview was coercive. Some of the factors to consider are (1) the defendant's age or maturity; (2) the defendant's level of education; (3) the defendant's level of intelligence; (4) the lack of any advice given to the defendant regarding his constitutional rights; (5) the length of the detention; (6) whether the questioning was repeated and prolonged; (7) whether physical punishment occurred, such as the deprivation of food or sleep; (8) whether any threats were used; (9) whether any direct or implied promises were made; and (10) whether police used deceptive tactics. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 226; People v. Linton (2013) 56 Cal.4th 1146, 1176; People v. Dykes (2009) 46 Cal.4th 731, 752; People v. Musselwhite (1998) 17 Cal.4th 1216, 1240.)
Here, Gonzalez's conduct during the police interview contradicts his claim of coercion. Throughout the short interview, Gonzalez denied any knowledge of Zuniga's whereabouts or what happened to him. Gonzalez rejected the detectives' suggestions that he was involved. This record does not demonstrate that the detectives overbore Gonzalez's will and forced him to say something against his wishes.
Nothing in this record suggests that Gonzalez was immature, had low intelligence, or failed to understand the nature and circumstances of the questions or the situation. The detectives treated Gonzalez courteously and they did not berate him. The detectives indicated that they had fed Gonzalez before this interview began, and he is seen in the video with three small bottles of water. The interview was very short and it took place in a conference room at a table with chairs. Nothing suggests that Gonzalez was in physical pain or distress. The detectives never threatened Gonzalez and they made no promises to him. As evidenced by his parole status and his probationary report, Gonzalez had substantial prior experience dealing with law enforcement.
We have reviewed the interview transcript in detail, both the audio and video recordings, and Gonzalez's trial testimony regarding this interview. Although deliberate police misconduct may cross the line and become coercive, any deliberate misconduct here, by itself, did not render Gonzalez's statements inadmissible for impeachment purposes. Under the totality of the circumstances, Gonzalez's pretrial statements to the detectives were voluntary and not coerced. As such, even if the detectives intentionally violated Gonzalez's rights outlined in Miranda and/or Edwards, an issue we do not address, his statements were nonetheless admissible at trial as impeachment evidence. (Michigan v. Harvey, supra, 494 U.S. at p. 350; see also Kansas v. Ventris, supra, 556 U.S. at p. 594.) Accordingly, reversal is not required and this claim fails.
II. The Trial Court Did Not Abuse Its Discretion Regarding Gonzalez's History Of Domestic Violence.
During Luna's redirect trial testimony, she testified about abuse she had suffered from Gonzalez during their relationship together. Gonzalez contends that the trial court abused its discretion in permitting Luna to testify about the domestic violence. Escalon joins this claim.
A. Background.
1. Luna's trial testimony.
During Luna's direct examination, she testified that she began cleaning the residence after appellants moved Zuniga's body from the kitchen. She said she "had to" clean because Gonzalez asked her to do so and she was afraid of him. She denied that Gonzalez threatened her that day. Later in her testimony, she agreed that she was afraid of bodily harm if she had not helped appellants clean the residence.
During Luna's cross-examination, she denied that Gonzalez displayed any weapons to get her to remain at the residence. She denied that Gonzalez told her he was going to get a weapon.
During Luna's redirect trial testimony, the prosecutor asked her if she had feared Gonzalez. She said yes, and explained that it was based on their past history. When asked to explain, Luna described a "very abusive relationship" in which Gonzalez had frequently beaten her, including punching her face, dragging her, and kicking her. She described an incident wherein she fought him over a meth pipe and he hit her with a golf club twice on her back, which left a "black and blue" bruise that did not go away for months. He fired a gun in her presence on occasions, including a time he pointed a gun at a wall near her. They had been in an eight-year relationship together, which ended because he "was always a cheater." Luna confirmed that she never contacted police when Gonzalez struck her, but she did go to the hospital once because he "dislocated" or "cracked" her rib. She never reported the abuse because she was in love with him. She agreed with the prosecutor that her past history with Gonzalez was a factor in why she was afraid of him that day.
2. The trial court's ruling.
After Luna finished her trial testimony, and outside the jury's presence, the trial court explained that it had allowed this testimony because (1) it was relevant to why Luna might be afraid to testify at trial and (2) why she might have engaged in conduct that arguably made her an accessary after the fact to murder. Gonzalez's trial counsel noted that he had objected to this testimony pursuant to Evidence Code section 352 and because it was beyond the scope of cross-examination.
B. Standard of review.
We review relevancy and Evidence Code section 352 rulings for abuse of discretion. (People v. Weaver (2001) 26 Cal.4th 876, 933.) A trial court abuses its discretion when its ruling is outside the bounds of reason. (People v. Waidla, supra, 22 Cal.4th at p. 714.) Under this standard, a trial court's ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
C. Analysis.
Gonzalez contends that Luna's testimony regarding his past domestic violence was not properly admitted under Evidence Code section 1103 or 1109. He also argues that this should have been excluded under Evidence Code section 352. We disagree.
1. Gonzalez has forfeited his claim that the trial court's ruling violated Evidence Code section 1103 or 1109.
As an initial matter, this record does not establish that Gonzalez raised an objection to this evidence based on Evidence Code sections 1103 and/or 1109. As such, he has forfeited that issue on appeal. (People v. Partida (2005) 37 Cal.4th 428, 435.) In any event, we also reject this claim on the merits.
2. The trial court did not abuse its discretion.
A trial court retains discretion regarding the extent of a witness's redirect examination. (People v. Hamilton (2009) 45 Cal.4th 863, 921.) "'It is well settled that when a witness is questioned on cross-examination as to matters relevant to the subject of the direct examination but not elicited on that examination, he may be examined on redirect as to such new matter.' [Citation.]" (People v. Steele (2002) 27 Cal.4th 1230, 1247-1248.) "Redirect examination's 'principal purposes are to explain or rebut adverse testimony or inferences developed on cross-examination, and to rehabilitate a witness whose credibility has been impeached.' [Citation.]" (People v. Cleveland (2004) 32 Cal.4th 704, 746.)
Relevant evidence is defined as having a "tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) A trial court may exclude otherwise admissible evidence if its probative value is substantially outweighed by its prejudicial effect; that is, if its admission would result in the undue consumption of time, a danger of undue prejudice, confusion about the issues or the danger of misleading the jury. (Evid. Code, § 352.) "Evidence is substantially more prejudicial than probative [within the meaning of section 352] if, broadly stated, it poses an intolerable 'risk to the fairness of the proceedings or the reliability of the outcome' [citation]." (People v. Waidla, supra, 22 Cal.4th at p. 724.)
Here, Luna agreed on cross-examination that Gonzalez neither threatened her with a weapon nor threatened to retrieve a weapon. This testimony called into question whether she reasonably feared for her safety and whether she may have voluntarily assisted appellants. Luna's redirect testimony regarding Gonzalez's past abuse provided additional information regarding why she cleaned the crime scene following Zuniga's murder. This evidence assisted the jury in resolving Luna's role in this crime, whether it was Luna or appellants who orchestrated the post-killing activities, and her credibility as a witness. This evidence tended to resolve disputed issues of fact that were of consequence to the determination of the action. As such, this testimony was relevant.
We disagree with Gonzalez's suggestion that Evidence Code sections 1103 and/or 1109 were applicable in this situation. We also reject Gonzalez's arguments that Luna's testimony was cumulative and unduly inflammatory. Although other evidence established that Luna was afraid that day, her rebuttal testimony provided a clear explanation why she felt fear despite Gonzalez not threatening her with a weapon. Although Luna's testimony depicted Gonzalez in an unfavorable light, it did not create a substantial danger of undue prejudice, and it paled in comparison to the charges and evidence against Gonzalez. The trial evidence established that Gonzalez struck Zuniga over the head with a baseball bat, chased Zuniga up the stairs and into the kitchen, celebrated upon learning that Zuniga was dead, and then tried to hide evidence of this crime, including lying to police.
Evidence Code section 1103 authorizes character evidence of an alleged criminal victim to prove the victim's conduct in conformity with character or a character trait. (Evid. Code, § 1103, subd. (a)(1).) Evidence Code section 1109 allows evidence of a defendant's prior domestic violence in a prosecution for an offense involving domestic violence. (Evid. Code, § 1109, subd. (a)(1).)
It is unpersuasive that a reasonable jury might have convicted Gonzalez for first degree murder not based on the trial evidence but to punish him for his past abuse of Luna. This evidence did not pose an intolerable risk to the fairness of the proceedings or the reliability of the verdicts. The probative value of this evidence was not substantially outweighed by its prejudicial effect.
Based on this record, the trial court did not exercise its discretion in an arbitrary, capricious, or patently absurd manner. As such, an abuse of discretion did not occur. Accordingly, we reject his claim.
III. The Trial Court Had No Duty To Instruct On Attempted Murder.
Escalon contends that the trial court erred in failing to instruct on attempted murder. He asserts that Gonzalez could have independently attempted to kill Zuniga but he (Escalon) fatally stabbed Zuniga based on self-defense, heat of passion or sudden quarrel separate and apart from Gonzalez's intent and actions. He argues that the record does not establish any plan to kill Zuniga, and Gonzalez attacked Zuniga spontaneously without Escalon's involvement. Gonzalez joins the claim of instructional error. We disagree.
A trial court is required to instruct the jury on a lesser included offense only if there is substantial evidence that absolves the defendant from guilt of the greater offense but not the lesser. (People v. Cole (2004) 33 Cal.4th 1158, 1218.) Substantial evidence in this regard has been defined as evidence a reasonable jury could find persuasive. (Ibid.) In reviewing this claim, we are to view the evidence in the light most favorable to appellant. (People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137.)
Here, when viewing the evidence in the light most favorable to appellants, substantial evidence does not exist that established Gonzalez's guilt for attempted murder but not for murder. It is undisputed that appellants discussed confronting Zuniga and they both walked down together into the basement where Zuniga was fatally injured. Gonzalez struck Zuniga's head with a baseball bat and Escalon stabbed him. Zuniga was unarmed during this encounter. For purposes of this analysis, we will assume that appellants injured Zuniga after Zuniga began to fight them. However, when Zuniga fled from the basement, Gonzalez yelled for Escalon to get Zuniga, and appellants chased after him to the kitchen where they found him unresponsive. Steps were taken to hide evidence of this crime, including Escalon burning Zuniga's corpse. Assuming for this analysis that Gonzalez had no involvement in attempting to conceal or destroy evidence, he still lied to police mere days after this killing, claiming he had no knowledge of any incident involving Zuniga at the residence.
We reject Escalon's claims that substantial evidence shows that appellants acted independently vis-à-vis Zuniga's death. The trial evidence strongly suggests that appellants aided and abetted each other. Based on this record, a reasonable jury would not find persuasive evidence that absolved Gonzalez from guilt of murder but not attempted murder. As such, the trial court did not have a duty to instruct the jury regarding the lesser offense of attempted murder and this claim fails.
IV. The Trial Court Did Not Abuse Its Discretion Regarding The Photographs.
Escalon asserts that the trial court abused its discretion in permitting introduction of three color photographs at trial: (1) People's exhibit 16 (showing Zuniga's burnt corpse in the back of his burned-out SUV); (2) People's exhibit 21 (showing Zuniga's burnt corpse, absent arms, lying on the autopsy table); and (3) People's exhibit 23 (showing Zuniga's charred skull). Escalon contends that the prejudicial effect of these photos greatly outweighed their probative value. Gonzalez joins this claim.
A. Standard of review.
A trial court enjoys broad discretion to admit photographs of a criminal victim when a defendant claims that the photos are unduly gruesome or inflammatory. (People v. Gonzales (2012) 54 Cal.4th 1234, 1272.) Unless the probative value of such photos is clearly outweighed by their prejudicial effect, we will not disturb the trial court's exercise of that discretion. (Ibid.) An abuse of discretion requires a showing that the trial court's decision was arbitrary, capricious or patently absurd resulting in a manifest miscarriage of justice. (People v. Rodrigues, supra, 8 Cal.4th at pp. 1124-1125.)
B. Analysis.
Appellants argue that these photos were not probative in this trial because they were neither relevant, material nor necessary. They contend that the trial court relied upon the prosecutor's erroneous representations regarding their probative value, and they claim that the prejudicial effect required exclusion. We find these contentions unpersuasive.
"Whether the trial court erred in admitting into evidence the challenged photographs of the murder victims depends upon two factors: (1) whether the photographs were relevant, and (2) whether the trial court abused its discretion in determining that the probative value of each photograph outweighed its prejudicial effect. [Citation.]" (People v. Ramirez (2006) 39 Cal.4th 398, 453.)
Our Supreme Court has consistently upheld the introduction of autopsy photos showing how a victim was wounded. (People v. Gonzales, supra, 54 Cal.4th at p. 1272.) Photos of the victim's wounds are relevant to support the prosecution's theory of how the crime occurred. (People v. Pride (1992) 3 Cal.4th 195, 243.) Even gruesome photos may be admitted if highly relevant to the trial issues or to clarify the testimony of the medical examiner. (People v. Gonzales, supra, 54 Cal.4th at p. 1272.) Our Supreme Court has noted that photographs of murder victims are always disturbing, but gruesome photos can accurately portray the shocking nature of the charged crime. (Ibid.) "The jury can, and must, be shielded from depictions that sensationalize an alleged crime, or are unnecessarily gruesome, but the jury cannot be shielded from an accurate depiction of the charged crimes that does not unnecessarily play upon the emotions of the jurors." (Ibid.)
A prosecutor is not required to prove these details of a victim's injuries only from live testimony. (People v. Pride, supra, 3 Cal.4th at p. 243.) A jury is entitled to view the physical details of the scene or the victim. (Ibid.) Our Supreme Court has often rejected any argument that photographs of a murder victim should be excluded as cumulative even though testimony has established the same facts depicted in the images. (People v. Price (1991) 1 Cal.4th 324, 441.)
Here, prior to trial, a relatively lengthy hearing occurred wherein the parties argued these issues. In ruling that these disputed photos were admissible, the trial court noted that the jury was entitled to see evidence of the crime even though the images were distressing and upsetting. In exercising its discretion, the trial court excluded from evidence three other photos depicting Zuniga's charred corpse. The excluded photos also showed the body in the burned-out SUV and on an exam table. One excluded photo, People's exhibit 17, clearly shows Zuniga's blackened intestines. The record reflects that the experienced trial judge was well aware of his duty to weigh prejudice versus probative value, and he did so.
We have independently reviewed the disputed photos. Exhibits 16 and 21 show the condition of Zuniga's body in his burned-out SUV and on the autopsy table. Exhibit 23 clearly shows the traumatic head injury that Zuniga suffered. Although these photos are disturbing, they are not unnecessarily so and they simply depict what occurred without sensationalizing the crime. Any revulsion they create is attributable to the acts done and not to the photographs. (People v. Cage (2015) 62 Cal.4th 256, 284; see also People v. Anderson (2001) 25 Cal.4th 543, 592 ["[T]he admitted photos are not offensive beyond the events and conditions they portray."].)
We reject appellants' claim that the trial court abused its discretion based on alleged erroneous offers of proof at the hearing. Regarding People's exhibit 21, the prosecutor had argued that this photo was relevant to corroborate the pathologist's expected trial testimony that it depicted a stab wound to the heart. At trial, however, the pathologist explained that it was difficult to appreciate a stab wound in this photo based on the body's condition. Likewise, regarding People's exhibit 23, the prosecutor had argued that the jury should see the injury to Zuniga's skull, noting it was possible the pathologist might not commit to the cause of this injury because of possible thermal heat fracturing to the skull. At trial, however, the pathologist confirmed that the depressed facture to Zuniga's skull was caused by blunt force trauma consistent with a bat. The pathologist conclusively stated that the blunt force injury was not the result of a heat fracture. Regardless of the prosecutor's pretrial offers of proof, we disagree that the trial court abused its discretion. These photos were highly probative in this case.
With these disputed photos, the jurors could see for themselves the blow to Zuniga's head, and the images assisted the jury in understanding the pathologist's testimony. The photos clarified the testimony of the various witnesses regarding the location and condition of Zuniga's body. Because the photos assisted the jury in understanding and evaluating the trial testimony, we reject any argument that the photos were not necessary, they were cumulative, or they lacked sufficient materiality. "The photographs were not made inadmissible by the prosecutor's ability to prove motive, intent, and cause of death through other evidence. [Citation.]" (People v. Montes (2014) 58 Cal.4th 809, 862.)
Based on this record, we will not disturb the trial court's exercise of its discretion because the probative value of these photos is not clearly outweighed by its prejudicial effect. The trial court's decision to admit these photos was not arbitrary, capricious or patently absurd resulting in a manifest miscarriage of justice. An abuse of discretion is not present. Accordingly, we reject this claim.
V. The Prosecutor Did Not Commit Misconduct.
Appellants seek reversal based on alleged prosecutorial misconduct. They point to three instances in the record: (1) during opening statements, the prosecutor displayed photos of Zuniga; (2) during closing arguments, the prosecutor discussed the presumption of innocence and later misstated testimony; and (3) during rebuttal arguments, the prosecutor emphasized that Gonzalez's trial counsel had conceded that Gonzalez probably knew what happened to Zuniga's body.
A. Standard of review.
A prosecutor's misconduct violates the federal Constitution and requires reversal when it infects the trial with such unfairness as to deny due process. (People v. Tully (2012) 54 Cal.4th 952, 1009.) Under state law, a prosecutor's conduct that does not render a criminal trial fundamentally unfair is still misconduct if it involves the use of deceptive or reprehensible methods in attempting to persuade the trier of fact. (Id. at pp. 1009-1010.)
B. Appellants have forfeited these claims on appeal.
As a general rule, a claim of prosecutorial misconduct is preserved for appeal only if the defense makes a timely objection and requests an admonition to cure any harm. (People v. Centeno (2014) 60 Cal.4th 659, 674.) Here, appellants' respective trial counsel failed to object to the prosecutor's disputed comments. Nothing shows grounds for applying any exception to forfeiture—such as futility, or when an admonition would not have cured the harm, or when the court immediately overrules an objection prohibiting a request for admonition. (People v. Hill (1998) 17 Cal.4th 800, 820-821.) As such, these claims are barred on appeal. In any event, even if we presume that no forfeiture occurred, these claims fail on the merits.
Appellants each contend that their respective trial counsel was ineffective for failing to object to the alleged prosecutorial misconduct, which resulted in forfeiture of these claims. As discussed below, however, there was no misconduct. As such, any failure to object did not constitute ineffective assistance of counsel. (See People v. Lucero (2000) 23 Cal.4th 692, 732 [counsel is not deemed incompetent when he or she fails to lodge meritless objections.].)
C. The reference to Zuniga's photographs in opening statements.
During opening statements to the jury, the prosecutor displayed a photo of Zuniga while alive and a photo of his charred remains. Appellants contend that showing these photos was an improper appeal for sympathy. We disagree.
An opening statement is used to prepare the jury to follow the evidence. (People v. Wash (1993) 6 Cal.4th 215, 257.) It is appropriate to use photographs as visual aids during opening statements so long as the photos are intended to be later admitted into evidence. (Ibid.) Our Supreme Court has "repeatedly cautioned against the admission of photographs of murder victims while alive unless the prosecution can establish the relevance of such items. [Citations.]" (People v. DeSantis (1992) 2 Cal.4th 1198, 1230.) Nevertheless, the possibility that a photograph generated sympathy for the victim "is not enough, by itself, to compel its exclusion if it was otherwise relevant." (Ibid.)
Here, just before opening statements started, the parties and the court discussed the photos that the prosecutor planned to show. During trial, the prosecution moved into evidence at least two photos of Zuniga while alive. This record establishes that the prosecutor used photos during his opening statements that were later admitted into evidence. Although these photos may have generated sympathy for Zuniga, the prosecutor's conduct did not render this trial fundamentally unfair, and this was not a deceptive or reprehensible attempt to persuade the jury. Misconduct is not present in this situation. Accordingly, we reject this claim.
D. The presumption of innocence discussed in closing arguments.
At the conclusion of trial evidence, and after the trial court concluded its jury instructions, the prosecutor opened his closing arguments with the following statement:
"Thank you. Good morning. Just because this matter has gone to trial doesn't mean that there's some big mystery about what has happened. When the case started and this process started, judge instructed you that the defendants were presumed innocent. But now that you've heard the evidence, you've heard the witnesses testify, you've seen the defendants' ridiculous testimony from the witness stand, the evidence has overcome that presumption and now these defendants are guilty of murder."
Appellants argue that the prosecutor improperly stated that they did not enjoy a presumption of innocence. We disagree.
A prosecutor commits misconduct if he or she misstates the applicable law or the facts. (People v. Boyette (2002) 29 Cal.4th 381, 435.) Of course, it is particularly improper for a prosecutor to make remarks meant to absolve the government "'from its prima facie obligation to overcome reasonable doubt on all elements. [Citation.]' [Citation.]" (People v. Hill, supra, 17 Cal.4th at pp. 829-830.) "'[T]he prosecutor has a wide-ranging right to discuss the case in closing argument. He has the right to fully state his views as to what the evidence shows and to urge whatever conclusions he deems proper.' [Citation.]" (People v. Panah (2005) 35 Cal.4th 395, 463 (Panah).) We find Panah instructive.
In Panah, the prosecutor argued in closing that the evidence had "'stripped away'" the defendant's presumption of innocence. (Panah, supra, 35 Cal.4th at p. 463.) Our Supreme Court interpreted the prosecutor's remark as an argument that the strength of the prosecution's evidence had overcome the presumption of innocence. This argument was not seen as a legal statement that the presumption no longer applied. Panah found no prosecutorial misconduct. (Ibid.)
Here, the prosecutor's comments do not reasonably suggest he was arguing that appellants no longer enjoyed a presumption of innocence. To the contrary, the prosecutor expressed his general view that the evidence proved appellants' guilt. Similar to Panah, the prosecutor's comments do not establish misconduct. As such, we reject this claim.
E. The testimony regarding the broken mirror in the basement.
During trial, evidence established that the residence's basement had a wall mirror. When police investigated Zuniga's homicide, they found this mirror cracked and broken in multiple places. Appellants generally testified at trial that the basement mirror was damaged during the struggle with Zuniga. The prosecution, however, introduced evidence from Luna's testimony and certain photographs suggesting that this mirror was already partially broken or cracked before Zuniga's murder.
During closing arguments, the prosecutor claimed that Mitchell, the residence's owner, had testified that the basement mirror was broken before Zuniga's death. The parties agree that this was error because Mitchell never testified about the mirror. Respondent argues that the prosecutor's mistake was not misconduct. We agree with respondent.
It is not misconduct for a prosecutor to make an isolated comment that is not tied to the evidence. (People v. Parson (2008) 44 Cal.4th 332, 363.) Such a comment does not render the trial fundamentally unfair. Likewise, such a comment does "not amount to the use of deceptive or reprehensible methods for purposes of persuasion [citations]," and there is no reasonable possibility that it could have influenced the verdict. (Id. at p. 363.)
Here, although the prosecutor incorrectly attributed this evidence to Mitchell, the prosecutor did not misstate evidence because facts strongly suggested that the basement mirror was cracked or broken before appellants killed Zuniga. This was an isolated comment that did not render the trial fundamentally unfair. This was not a deceptive or reprehensible attempt to persuade the jury. As such, misconduct did not occur and we reject this claim.
F. The prosecutor's comments regarding Gonzalez's trial counsel and his defense.
During closing arguments, Gonzalez's defense counsel acknowledged that, despite testifying otherwise, Gonzalez probably knew what had happened to Zuniga's body. Counsel argued, however, that Gonzalez did not kill Zuniga and he was not involved in burning the corpse.
During rebuttal arguments, the prosecutor made the following relevant comments:
".... I spent a lot of time explaining the blood evidence in this case. All that blood that was found down in the basement all of it came back to Mr. Zuniga. None of it came back to either of these defendants. Even [Gonzalez's trial counsel] in his closing argument couldn't explain to you why Mr. Zuniga's blood was in the basement. And couldn't explain to you his own client's testimony about why he would get up on the stand and take an oath to tell the truth and tell you he didn't see any blood. Even [Gonzalez's trial counsel] concedes that his client lied to you on the stand. And I submit to you in this case you can't believe anything that these defendants have told you based on their conduct in this case and their conduct in this courtroom."
Later, the prosecutor stated:
"Well, first of all, let's start with Mr. Escalon. Some of the statements he made on the witness stand, he talked to you about not knowing that he had stabbed [Zuniga]. Didn't know. Made it sound like he had no idea. Why? [Because] he knows that's going to get him in trouble. Been to prison just like the defense said. He didn't want to go back. That's what they are telling you. He knows that's going to get him in trouble. Anything that's going to get him in trouble, he's not going to be honest about. What did he tell you about that knife not knowing he stabbed him? Well, if he didn't know he stabbed him ... he had no idea that he stabbed him, why is he burning him up? Why is he doing that? Why is he loading a body into the back of Mr. Zuniga's truck? Why is he driving that body to the middle of nowhere. And why is he dousing it with lighter fluid and burning it up if he had no idea that he stabbed him? Of course he did. Even [Gonzalez's trial counsel] had to concede that his client, Mr.
Gonzalez, knew what was happening, even when his client testified that he didn't. They are conceding to you the lies from the witness stand, but yet still asking you to believe their testimony. And how could you? How could you? Especially when you have testimony from multiple witnesses that corroborate the physical evidence such as Ms. Luna and [A.F.] both identified and testified about the fact that Mr. Zuniga was hit in the forehead with a baseball bat. Exactly what the physical evidence corroborates in this case. And not only does it corroborate the murder, it proves that Mr. Gonzalez was lying to you when he tried to say that he just hit him on the side of the head. You are not going to as jurors disregard everything that happened after the basement. That's not your duty. Your duty is to consider all the evidence."
Finally, the prosecutor argued that appellants had lied while testifying. He contended that they had no credibility. Regarding Gonzalez, the prosecutor stated that "[e]verything he did in this case, his testimony, lying to you, even his own attorney concedes in his closing statement, and you know that was difficult for him to do. He doesn't want to have to admit his client's a liar. But it's so obvious that his client is lying that he has to concede that." The prosecutor noted that Gonzalez had lied in his interview with police about Zuniga's death. The prosecutor urged the jury to reject Gonzalez's testimony because it was contradicted by the physical evidence.
Appellants contend that the prosecutor committed misconduct in commenting on Gonzalez's defense and trial counsel. They argue this impugned defense counsel and called into question whether the defense suborned perjury. We disagree.
"It is generally improper for the prosecutor to accuse defense counsel of fabricating a defense [citations], or to imply that counsel is free to deceive the jury [citation]." (People v. Bemore (2000) 22 Cal.4th 809, 846.) However, a prosecutor may describe the deficiencies in opposing counsel's tactics and factual account. (Ibid.) A prosecutor may criticize the defense theory because it lacks evidentiary support. (Ibid.) A prosecutor may engage in harsh and vivid attacks on the credibility of opposing witnesses. (People v. Valencia (2008) 43 Cal.4th 268, 305.) A prosecutor may argue, based on the evidence, that a witness's testimony is unbelievable or even a lie. (Ibid.)
Here, a fair reading of the prosecutor's rebuttal arguments establishes that the prosecutor never stated or implied that defense counsel suborned perjury. The prosecutor's comments cannot reasonably be construed as an attack on defense counsel's integrity. Instead, the prosecutor used defense counsel's concession as an example that appellants presented an unbelievable defense that was not supported by the evidence. The prosecutor urged the jury to reject appellants' respective testimony and their proffered defense. "Contrary to defendant's argument, the prosecutor did not denigrate defense counsel; rather, he vigorously denigrated the defense case, as was his right as an advocate." (People v. Valencia, supra, 43 Cal.4th at p. 305.) As such, misconduct is not present and this claim fails.
VI. There Was No Cumulative Error.
Appellants contend that the cumulative errors discussed above created a "synergistic prejudicial effect" requiring reversal. We reject this contention because none of appellants' claims are meritorious.
DISPOSITION
The judgment is affirmed.
/s/_________
LEVY, Acting P.J. WE CONCUR: /s/_________
GOMES, J. /s/_________
FRANSON, J.