Opinion
D058714
11-21-2012
THE PEOPLE, Plaintiff and Respondent, v. PAUL JOSHUA FRYKLIND, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. SCD220343)
APPEAL from a judgment of the Superior Court of San Diego County, Louis R. Hanoian, Judge. Affirmed.
A jury found Paul Joshua Fryklind guilty of one count of second degree murder and two counts of assault with a semiautomatic firearm arising out of a gang-related shooting. The trial court sentenced Fryklind to prison for an indeterminate term of 54 years eight months to life.
Fryklind appeals, raising claims of insufficiency of the evidence, erroneous admission of character evidence, instructional errors and prosecutorial misconduct. We reject these claims of error and affirm the judgment.
I.
FACTUAL BACKGROUND
A. The Altercation at the Trailer Park
Ramon Beltran was a member of the Varrio Encanto Locos criminal street gang. In February 2008, Beltran and his girlfriend, Christina Rodriguez, moved into a trailer park located in territory claimed by the Southeast Locos criminal street gang. Beltran got into fights with Southeast Locos gang members who also lived in the trailer park.
In mid-March 2008, Domingo Valente, a Southeast Locos gang associate; Edwin Rendon, a Southeast Locos gang member; and a third person confronted Beltran outside his trailer. Valente asked Beltran, "Where are you from?" Beltran responded, "Encanto." Valente then said, "Well, this is Southeast Locos"; began to fight with Beltran; and then pulled out a knife. Beltran was able to fend off the attack, and Valente and his companions ran away. B. The Shooting at the Liquor Store
On March 31, 2008, at around noon, Beltran and Rodriguez went to a nearby taco shop. On their way home, they encountered Beltran's friends, Esgar Manjarrez and the Hernandez sisters, Daisy and Yeimi. Manjarrez invited Beltran and Rodriguez to join him and the Hernandez sisters to drink beer in a nearby park. Beltran and Rodriguez met Manjarrez and the Hernandez sisters in the park at approximately 3:00 p.m. and spent several hours together drinking beer.
In the early evening, when they ran out of beer, the group walked to a nearby liquor store to buy more. As they walked toward the liquor store, a car passed by and a passenger with a gloved hand flashed a gang sign. Soon thereafter, three men (later identified as Valente, Rendon and Fryklind) approached the liquor store on foot from the direction opposite that from which Beltran and his friends were approaching. Beltran or Yeimi Hernandez shouted at the approaching men, "Where you fools from? This is Encanto." The men did not respond, and as Beltran and his friends got closer to the liquor store, they lost sight of the three men.
Manjarrez "kind of felt that something was going to happen," so he tried to get his friends inside the liquor store. Only Daisy Hernandez and he went inside, however.
Footage from a surveillance camera showed what transpired next outside the liquor store. As Beltran walked toward one end of the building, Valente, Fryklind and Rendon emerged from the other end. Valente wore gloves and a sweatshirt but no hood; Fryklind and Rendon wore sweatshirts with hoods covering their heads. Valente moved away from Fryklind and Rendon and rapidly approached Beltran as a sedan pulled up near Valente and slowed. Beltran reversed direction and headed back toward the door of the liquor store. Valente quickly removed a gun from under his sweatshirt and fired at Beltran.
Immediately after the shooting, Valente, Fryklind and Rendon fled, and the sedan sped away. Beltran collapsed in front of the liquor store, and several minutes later died from gunshot wounds to the head, chest, and abdomen. Rodriguez was hospitalized and treated for a gunshot wound to the arm, and Yeimi Hernandez for a gunshot wound to the back. C. Fryklind's Confession to Oscar Navarro and Attempt to Hide the Gun
After the shooting, Fryklind, Rendon and others went to see Oscar Navarro, another member of the Southeast Locos. Fryklind told Navarro: "You know, we rolled up to a liquor store, and these dudes in the liquor store started mouthing off. . . . There were some girls with them. They started mouthing off." Fryklind continued:
"We were walking away. We're going to go fight, you know, around the corner in the back of the liquor store. We're going to get down, and then [Valente] was standing there, and when we walked by, [he] was in the shadows. These other dudes started walking up, and [Valente] just started shooting out of nowhere and killed a kid, I guess."Fryklind then told Navarro that they "all took off," but he worried that "they got the car" because they "were on camera."
Navarro told Fryklind he "need[ed] to get rid of [the] gun" that was used in the shooting at the liquor store. Fryklind protested: "Man, I paid $700 for that thing. That's my baby, you know." When Navarro explained to Fryklind that "rolling around . . . with a hot gun was going to get him busted," Fryklind "said he was going to take care of it."
Fryklind took the gun to his girlfriend's house and told his fellow gang members they could use the gun, but when not using it they had to store it at his girlfriend's house. Roberto Benitez, a member of the Southeast Locos gang, disregarded Fryklind's instructions and took the gun home with him one night, hid it under his mattress, and fell asleep. Police found the nine-millimeter Luger handgun the next morning during a search of Benitez's residence. D. The Police Investigation of the Shooting
After the seizure of the gun from Benitez, police investigators performed ballistics tests on the gun and on nine-millimeter Luger bullets and casings that had been found at the scene of the liquor store shooting. The tests showed the bullets and casings were fired from the handgun seized from Benitez.
Detective Jana Beard, a homicide investigator with the San Diego Police Department, was assigned to the shooting at the liquor store. As part of the investigation, Beard interviewed Fryklind in July and August of 2008. During both interviews, Fryklind said he had no involvement in or knowledge of the shooting.
In November 2008, Beard interviewed Navarro, whom she had learned through members of the Southeast Locos gang was the "head" or "shot-caller" of the gang. At the time, Navarro was on parole, and several firearms had been found in a storage unit he rented. Because Navarro wished "to avoid the gun charges" and future imprisonment, he agreed to act as a police informant in the investigation of the liquor store shooting. In particular, Navarro agreed to participate in an undercover investigation by "wearing a wire," i.e., by attaching a concealed audio and video recording device to his body.
In a recorded conversation between Navarro and Fryklind on February 2, 2009, Fryklind told Navarro that homicide detectives had visited him twice to ask about the shooting at the liquor store. When Navarro expressed concern that the gun used to kill Beltran could lead the police to Fryklind, he (Fryklind) laughed and said Benitez "got caught with it." Fryklind also said that when police asked him whether he touched the gun, he "thought they were gonna bust [him] because [he] blew in the barrel" and the police "were gonna get [his] DNA out of it, but they didn't." Navarro then asked Fryklind why he gave Benitez the gun. Fryklind insisted that he did not give Benitez the gun, and that he and Benitez were "gonna get down" because Benitez owed him $300 for taking the gun from Fryklind's girlfriend's house (where Fryklind had told fellow gang members to keep the gun when they were not using it). Navarro then said the police asked him whether he knew Valente, Rendon and Fryklind, and suggested their involvement in a murder. Fryklind responded: "That's why I'm trippin', man. How the f**k they knew about that? . . . That we were the three? I mean, [Valente] didn't have no hoodie, no hat or nothin['], but they couldn't see my face . . . on the tape."
In a recorded conversation on February 11, 2009, Navarro and Fryklind were traveling together in a car. When they had just driven past some "jura," i.e., police, Navarro said: "Not even know huh? They just passed some f***in' up niggas." Fryklind responded: "F***in' killas. Bunch of Locos." The conversation then continued:
"[Fryklind]: That was, that day it was me, [Valente] and [Rendon] did that shit.E. The Gang Expert's Testimony
"[Navarro]: What happened?
"[Fryklind]: When we did that shit on 69th . . . . We had just passed two juras dog. One jura and then right there we parked at the liquor store and the other jura just passed us when we smoked that fool right there. They didn't even f**k with us."
Detective Damon Sherman of the San Diego Police Department testified as an expert on criminal street gangs. At the time of trial, Sherman had been investigating gang-related crimes for approximately five years.
Sherman testified the Southeast Locos and Varrio Encanto Locos are East San Diego gangs whose territories border each other. The trailer park at which Beltran and Valente fought is located in territory claimed by the Southeast Locos, and the liquor store at which Valente shot and killed Beltran is located in territory claimed by the Varrio Encanto Locos.
Sherman explained that if a Southeast Locos member lost a fight to a rival gang member, he would expect the Southeast Locos member to retaliate quickly against the rival gang member. According to Sherman, if the Southeast Locos member did not do so, he and his gang would appear weak and lose "respect," "the worst thing" in the world of criminal street gangs. Sherman further explained that if the Southeast Locos member lost the fight in his own gang's territory, it would cause "greater disrespect" than if he lost the fight elsewhere.
The prosecutor then asked Sherman to consider hypothetical situations based on the facts of the case and asked for his opinions on whether and how the conduct described benefited a criminal street gang. Sherman explained that a gang member who loses a confrontation with a rival gang member and then retaliates by killing the rival gang member would regain the "respect" he lost in the fight, not only for himself within his own gang but also for his gang within the community. Sherman also explained that the conduct described in the hypothetical situation assisted criminal activity by gang members because the news that a gang member killed a rival gang member would spread fear throughout the community and discourage potential witnesses from cooperating with law enforcement investigations. Instillation of such fear in the community would allow gang members "to go unchecked . . . in their future activities within that area."
II.
PROCEDURAL BACKGROUND
The People charged Fryklind with the murder of Beltran (Pen. Code, § 187, subd. (a); undesignated section references are to this code); the willful, deliberate and premeditated attempted murder of "another person in the doorway [of the liquor store]" (§§ 187, subd. (a), 664); assault with a semiautomatic firearm on Rodriguez (§ 245, subd. (b)); and assault with a semiautomatic firearm on Yeimi Hernandez (§ 245, subd. (b)).
The People alleged each offense was committed for the benefit of, at the direction of and in association with a criminal street gang, with the specific intent to promote, further and assist in criminal conduct by gang members. (§ 186.22, subd. (b).) The People also alleged that in the commission of the murder and the attempted murder, a principal personally and intentionally discharged a firearm and caused death or great bodily injury. (§ 12022.53, subds. (d), (e)(1).)
The jury found Fryklind guilty of the second degree murder of Beltran and found true the attached gang and firearm allegations. The jury found Fryklind not guilty of attempted murder. On the two charges of assault with a semiautomatic firearm, the jury found Fryklind guilty and also found true the attached gang allegations.
The court sentenced Fryklind to an aggregate indeterminate prison term of 54 years eight months to life.
III.
DISCUSSION
A. Sufficient Evidence Supports the Judgment
Fryklind argues the judgment abridges his federal constitutional right to due process of law (U.S. Const., 14th Amend.) and must be reversed because the evidence was insufficient to support the convictions. Specifically, he contends the prosecutor's theory that Fryklind aided and abetted the shooting by supplying Valente with the gun was not supported by substantial evidence, "because there was no proof at all that it was [Fryklind] who gave the gun to Valente, no proof that he gave it to Valente after his group became aware of Beltran outside the liquor store, and no evidence that [Fryklind] intended that Valente use the handgun to commit any crime involving Beltran." We disagree. As we shall explain, under the applicable standard of review and established principles of liability for aiding and abetting, there was sufficient evidence from which the jury could find Fryklind guilty of the murder of Beltran and the firearm assaults on Rodriguez and Yeimi Hernandez.
1. Standard of Review
On a due process challenge to the sufficiency of the evidence, the "critical inquiry" is "to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 318.) In the performance of that inquiry, the reviewing court does not " 'ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt' " (id. at pp. 318-319); it asks only "whether, 'after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt' " (id. at p. 319). "Evidence meeting this standard satisfies constitutional due process and reliability concerns." (People v. Boyer (2006) 38 Cal.4th 412, 480.)
2. General Principles of Aiding and Abetting Liability
One who aids and abets another in the commission of a crime is guilty of the crime, even if the other commits some or all of the acts constituting the crime. (§ 31; People v. McCoy (2001) 25 Cal.4th 1111, 1117 (McCoy).) "[A] person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the [crime], (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime." (People v. Beeman (1984) 35 Cal.3d 547, 561 (Beeman); accord, People v. Gonzales (2011) 52 Cal.4th 254, 295-296 (Gonzales).)Whether a defendant aided and abetted a crime is a question of fact, and on appeal we resolve all conflicts in the evidence and draw all reasonable inferences from the evidence in favor of the judgment. (People v. Campbell (1994) 25 Cal.App.4th 402, 409 (Campbell).)"Evidentiary considerations which are probative of whether one is an aider and abettor include presence at the scene of the crime, failure to take steps to attempt to prevent the commission of the crime, companionship, flight, and conduct before and after the crime." (People v. Jones (1980) 108 Cal.App.3d 9, 15 (Jones).)
3. Analysis of Evidence Supporting Aiding and Abetting Liability
The record contains abundant evidence that Fryklind aided and abetted Valente in the shooting at the liquor store. Providing a gun to another who uses it to commit a crime may itself support the conclusion that the provider aided and abetted the other in committing the crime. (People v. Thompson (2010) 49 Cal.4th 79, 118; People v. Lucas (1997) 55 Cal.App.4th 721, 737.) Here, ballistics testing showed the gun seized from Benitez was the same gun Valente used in the shooting. Fryklind told Navarro he purchased that gun and considered it his "baby"; and he was annoyed that, after the shooting, Benitez disregarded the instructions to keep the gun at Fryklind's girlfriend's house, took it home and got caught with it. Other evidence, including footage from the surveillance camera at the liquor store and recorded conversations between Fryklind and Navarro, showed that Fryklind and Valente arrived together at the liquor store, Valente pulled out the gun and shot Beltran as Fryklind stood several feet behind and the two fled immediately afterwards. From this evidence, the jury reasonably could infer that Fryklind owned and controlled access to the gun, gave it to Valente to use in the shooting and then took it back after the shooting.
Fryklind insists, however, that he could not be convicted of aiding and abetting because "the evidence [was] uncontradicted . . . that [he] did not maintain continuous possession of [the gun], or even control it." He further claims "[t]here [was] no evidence that [he] either gave the handgun to Valente with knowledge of its intended use, or that he encouraged or assisted Valente to draw the gun, or to shoot it." In making this argument, Fryklind assumes conviction required direct evidence that he gave Valente the gun for the purpose of shooting Beltran, and he ignores the abundant circumstantial evidence from which the jury reasonably could infer that he did so. But, "[c]ircumstantial evidence is as sufficient to convict as direct evidence." (People v. Reed (1952) 38 Cal.2d 423, 431; see also Campbell, supra, 25 Cal.App.4th at p. 409 [all reasonable inferences must be drawn in support of judgment].) As discussed above, sufficient evidence supports the conclusion that Fryklind gave Valente the gun to use in the shooting.
In any event, evidence independent of Fryklind's provision of the gun to Valente sufficed to support the convictions. The parties stipulated that Fryklind and Valente were members of the Southeast Locos criminal street gang. Rodriguez testified that several days before the shooting, she saw Valente lose a fight to Beltran, a member of the Varrio Encanto Locos criminal street gang. Sherman, the People's gang expert, testified a gang member beaten in a fight with a member of another gang would feel a need to retaliate against the member of the other gang in order to regain the "respect" lost in the fight. The liquor store's surveillance camera footage and the recorded conversations between Fryklind and Navarro established that Fryklind traveled in a car with Valente to the liquor store; went behind the liquor store with him; stood near him while he shot Beltran; and fled with him after the shooting. Beard, the homicide detective, testified that Fryklind twice denied any involvement in or knowledge of the shooting. From all of this evidence, the jury could conclude beyond a reasonable doubt that Fryklind knew Valente intended to use the gun to retaliate against Beltran, and that Fryklind accompanied him to the liquor store to assist the retaliatory shooting. In other words, on the evidence introduced at trial, the jury properly could find Fryklind aided and abetted the shooting. (See, e.g., Gonzales, supra, 52 Cal.4th at pp. 295-296 [upholding murder conviction based on aiding and abetting when evidence showed defendant stood backup while fellow gang member fatally shot rival gang member in retaliation for prior murder of member of defendant' gang]; People v. Garcia (2008) 168 Cal.App.4th 261, 273-274 [upholding murder conviction based on aiding and abetting when evidence showed that after victim beat defendant's fellow gang member, defendant and fellow gang member confronted victim, chased victim as fellow gang member shot victim, and fled murder scene together in car]; People v. McDaniels (1980) 107 Cal.App.3d 898, 904 [defendant met with fellow gang members before murder, stood with others over victim before victim was shot, departed murder scene with others after shooting, and later falsely denied presence at murder].)
Several other cases have held evidence similar to that introduced at Fryklind's trial sufficient to support aiding and abetting liability. (See, e.g., People v. Miranda (2011) 192 Cal.App.4th 398, 409 [defendant was with robber and shooter before, during and after crimes were committed; knew robber was affiliated with a gang; and got out of car to join robber in trying to obtain marijuana from victim]; In re Juan G. (2003) 112 Cal.App.4th 1, 5 [defendant approached victim with robber, stood beside robber during robbery, fled with robber after robbery, and was later found and arrested together with robber]; People v. Mitchell (1986) 183 Cal.App.3d 325, 330 [defendant stood with and talked to robbers immediately before robbery, remained with them during commission of robbery, and fled crime scene with them in his car immediately after robbery]; People v. Chagolla (1983) 144 Cal.App.3d 422, 429 [defendant and his brother traveled in vehicle together before and after brother shot victim, and defendant knew brother had rifle because he pointed it at another person before shooting victim].)
In sum, this was not a close case. Based on overwhelming evidence, including eyewitness testimony and highly incriminating video and audio recordings, the jury reasonably could find beyond a reasonable doubt, as it did, that Fryklind aided and abetted Valente in murdering Beltran and assaulting Rodriguez and Yeimi Hernandez with a firearm. We therefore reject Fryklind's claim the evidence was insufficient to sustain the judgment of conviction. B. The Trial Court Did Not Commit Reversible Error in Admitting Evidence of Fryklind's Character
Fryklind complains the trial court abused its discretion and denied him due process of law (U.S. Const., 14th Amend.) by admitting evidence that Navarro had taken a gun away from Fryklind on a prior occasion and that he had talked to Navarro about shooting police officers. According to Fryklind, "the evidence of uncharged gun possession and purported taste for obtaining thrills from violence was not relevant to any contested issue, and was highly prejudicial and should have been excluded from trial of the charged offenses." After describing the challenged evidence and Fryklind's objections at trial, we shall explain why Fryklind's complaint lacks merit.
1. Additional Facts
During the direct examination of Navarro, the prosecutor asked whether he had ever taken a gun away from or provided a gun to Fryklind. Fryklind's trial counsel objected on the basis of Evidence Code section 1101 that the question concerned "prior bad acts" that "would imply a negative character in possession of the weapons when he was never charged with that." The prosecutor argued the evidence was admissible because it "demonstrates an aspect of [Fryklind's] relationship with this witness and his access to firearms and his familiarity with them." The trial court agreed with the prosecutor and overruled the objection.
Navarro then described an occasion on which he heard Fryklind and another Southeast Locos member "just talking nonsense" about "shooting up the town" or "maybe even shooting at police officers." Because Fryklind and the other gang member were not "in the right frame of mind," Navarro "took away their firearm." When Fryklind later asked Navarro to return the firearm, he did so.
During a recess, Fryklind's trial counsel renewed his Evidence Code section 1101 objection to the above testimony and moved for a mistrial or, alternatively, for an order striking the testimony and precluding later admission of a portion of a recorded conversation between Navarro and Fryklind in which Fryklind said he would shoot police officers. Counsel argued the evidence about Fryklind's possession of a gun on a prior occasion and threats to shoot police officers was "prejudicial . . . propensity evidence with no relationship to this offense." The prosecutor responded that she was not offering the evidence to establish Fryklind's propensity to commit crimes but as proof that Fryklind had "knowledge, familiarity and access to firearms" and aided and abetted the shooting at the liquor store by "providing his gun to another gangster." The trial court denied Fryklind's motion.
During the conversation between Fryklind and Navarro recorded on February 11, 2009, Fryklind stated he got angry when other gang members talked to him about the police. At one point, Fryklind exclaimed: "F**k the jura! Homie, I'll dump on them mother f***ers, homie. I'll dump on [unintelligible], fool. . . . We should roll with the M-1 [rifle] up here." When Fryklind and Navarro passed a police car, Navarro commented that the police did not know they had "just passed some f***in-f***in' up niggas." Fryklind responded that they were "[f]***in' killas. Bunch of Locos." Fryklind then stated that he, Valente and Rendon passed police officers when they "smoked that fool" at the liquor store, but the police "didn't even f**k with [them]."
2. Legal Analysis
Preliminarily, we note that no evidence was introduced as to whether or not the gun Navarro temporarily took away from Fryklind was the nine-millimeter Luger handgun Valente used in the shooting at the liquor store. For purposes of our discussion, we shall assume, without deciding, that the guns were different.
Evidence that a defendant possessed a weapon on a prior occasion is inadmissible to prove he committed a crime in which a different weapon was used. (Evid. Code, § 1101, subd. (a); People v. Abel (2012) 53 Cal.4th 891, 928; People v. Barnwell (2007) 41 Cal.4th 1038, 1056.) Evidence of prior weapon possession may be admissible, however, when relevant to prove some fact (e.g., motive, opportunity, preparation, knowledge, or identity) other than the defendant's disposition to possess weapons or to commit a crime. (Evid. Code, § 1101, subd. (b); People v. Cox (2003) 30 Cal.4th 916, 956, disapproved on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Because evidence of a defendant's prior weapon possession may be inflammatory, such evidence should not be admitted if its probative value is substantially outweighed by the probability of undue prejudice, confusion of issues, or misleading the jury. (Evid. Code, § 352; People v. Davis (2009) 46 Cal.4th 539, 602; People v. Henderson (1976) 58 Cal.App.3d 349, 360.) " 'We review for abuse of discretion a trial court's rulings on relevance and admission or exclusion of evidence under Evidence Code sections 1101 and 352.' " (People v. Davis, supra, 46 Cal.4th at p. 602.)
The evidence that on a prior occasion Navarro had taken a gun away from Fryklind and later returned it on demand had some probative value. Evidence is relevant (or probative) if it has "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action" (Evid. Code, § 210, italics added), "no matter how weak it is." (In re Romeo C. (1995) 33 Cal.App.4th 1838, 1843.) One issue hotly disputed at trial was Fryklind's access to and control over the nine-millimeter Luger handgun Valente used to kill Beltran and injure Rodriguez and Yeimi Hernandez. The prosecutor argued Fryklind was guilty as an aider and abettor because he owned the gun and gave it to Valente to use to shoot Beltran. Fryklind's trial counsel argued Fryklind was not guilty because there was no evidence he owned the gun or gave it to Valente. The evidence that on a prior occasion Navarro had taken a different gun from Fryklind and later returned it to him showed that Fryklind possessed a gun which he shared with other members of the Southeast Locos and which he could retrieve upon demand. This evidence, though perhaps weak, was relevant because it had some tendency to prove that before the liquor store shooting Fryklind had access to and control over a gun shared within the gang, and thus could have supplied the gun that was used in the shooting. (Cf. People v. Alcala (1992) 4 Cal.4th 742, 797 (Alcala) ["despite the relatively weak probative value of the knife sets" seized from defendant's residence, they were admissible because "they might have some tendency to prove that defendant had access to, or familiarity with, the particular brand of carving knife found near the crime scene"]; People v. Gunder (2007) 151 Cal.App.4th 412, 416 (Gunder)[evidence of defendant's possession of a firearm on two instances before shootings was relevant to refute his claim that police planted the firearm later found in his possession].)
The probative value of the prior gun possession evidence was not substantially outweighed by the probability of undue prejudice, confusion of issues, or misleading the jury. (Evid. Code, § 352.) "On the prejudice side of the scale, we are concerned only with the possibility of an emotional response to the proposed evidence that would evoke the jury's bias against [Fryklind] as an individual unrelated to his guilt or innocence." (Gunder, supra, 151 Cal.App.4th at p. 417.) Such an emotional response by jurors to the prior gun possession evidence, or their confusion or being misled by that evidence, was unlikely here because the crimes with which Fryklind was charged all involved firearm use; the video from the surveillance camera at the liquor store clearly showed Valente firing a gun at Beltran; and the jury heard the February 2, 2009 recorded conversation between Fryklind and Navarro in which Fryklind essentially admitted he owned the gun used by Valente, which was introduced as evidence at trial. (See People v. Riser (1956) 47 Cal.2d 566, 577-578 [no prejudice in admitting evidence of other firearm and ammunition possessed by defendant when jury would have concluded from other, properly admitted firearm evidence that defendant possessed firearms], disapproved on other grounds by People v. Morse (1964) 60 Cal.2d 631, 648-649; Gunder, at p. 417 [no undue prejudice in admission of evidence of defendant's prior firearm possession when firearm possession was "inherent in the offenses at issue"].) The trial court therefore did not abuse its discretion in admitting that testimony. (Alcala, supra, 4 Cal.4th at p. 797; Gunder, at p. 417.)
Although we reject Fryklind's claim the trial court improperly admitted evidence of his prior possession of a gun, we agree the evidence of his statements about shooting police officers was irrelevant and should not have been admitted. (See Evid. Code, § 350 [only relevant evidence is admissible].) Nevertheless, for several reasons we conclude the error does not require reversal of the judgment: (1) Fryklind's statements about shooting police officers were very brief and were included in and provided context to other incriminating statements that were admissible. (2) The prosecutor never mentioned the statements about shooting police officers in her closing argument. (3) This case did not involve the shooting or killing of a police officer. (4) It is common knowledge that criminal street gangs hold law enforcement officers in contempt. (5) As discussed in part III.A.3., ante, the evidence against Fryklind was overwhelming. Under these circumstances, it is not reasonably likely that Fryklind's statements about shooting police officers inflamed the jury's passions against him apart from the evidence of his guilt or otherwise contributed to the guilty verdicts, and any error in the admission of those statements was harmless. (Cal. Const., art. VI, § 13; Evid. Code, § 353, subd. (b); People v. Cole (2004) 33 Cal.4th 1158, 1195; People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
Finally, we reject Fryklind's argument that, regardless of any state law error, the admission of the evidence concerning his prior possession of a gun and his statements about shooting police officers violated his federal constitutional right to due process of law. (U.S. Const., 14th Amend.) Fryklind forfeited this argument because he did not raise it in the trial court. (People v. Esayian (2003) 112 Cal.App.4th 1031, 1042.) In any event, the argument has no merit. Our Supreme Court has held that "the admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair." (People v. Partida (2005) 37 Cal.4th 428, 439.) Here, Navarro's testimony about temporarily taking a gun away from Fryklind was properly admitted under state law. Fryklind's statements about shooting police officers, though erroneously admitted, were mentioned only very briefly during the evidentiary phase of trial and not at all during closing arguments; and, in the context of this gang case, they were not highly inflammatory. On this record, we cannot say admission of this evidence rendered Fryklind's trial fundamentally unfair. (See People v. Cowan (2010) 50 Cal.4th 401, 464 [no due process violation when testimony was admissible under state law, was only small part of prosecution's case and prosecutor did not mention testimony in guilt phase summation]; People v. Covarrubias (2011) 202 Cal.App.4th 1, 21 [no due process violation when erroneously admitted testimony "was not so 'uniquely inflammatory' as to render the trial fundamentally unfair"].) C. The Trial Court Did Not Err by Refusing to Instruct the Jury on Voluntary Manslaughter
Fryklind next argues the trial court prejudicially erred and deprived him of due process of law (U.S. Const., 14th Amend.) by refusing his trial counsel's request to instruct the jury on voluntary manslaughter as a lesser included offense of murder. He claims such an instruction was required because "there manifestly was a substantial evidentiary basis upon which the jury could have concluded that the homicide arose out of Valente's belief that the use of lethal force was necessary to defend himself" after "Beltran and Yeimi Hernandez acted aggressively by loudly issuing a gang challenge in the parking lot of the liquor store, shouting 'Where you fools from? This is Encanto.' " We disagree.
Fryklind was not entitled to voluntary manslaughter instructions based upon Valente's state of mind. Valente, as the direct perpetrator, would be guilty of voluntary manslaughter, rather than murder, if he killed Beltran in an unreasonable but good faith belief that he needed to do so to defend himself. (See, e.g., People v. Blakeley (2000) 23 Cal.4th 82, 88.) Fryklind, however, was prosecuted as an aider and abettor, so his guilt "is premised on the combined acts of all the principals, but on [his] own mens rea." (McCoy, supra, 25 Cal.4th at p. 1120.) Further, "[i]f the mens rea of the aider and abettor is more culpable than the actual perpetrator's, the aider and abettor may be guilty of a more serious crime than the actual perpetrator." (Id. at p. 1120.) Thus, even if the jury found Valente unreasonably but in good faith believed he needed to defend himself by killing Beltran, the jury could not use that finding to convict Fryklind of voluntary manslaughter rather than murder, because Fryklind's culpability is based on his own mental state, not Valente's. The trial court therefore properly refused to give the jury voluntary manslaughter instructions based on Valente's mental state.
In any event, even if voluntary manslaughter instructions based on Valente's mental state were proper in the abstract, there was no evidentiary basis to give them in this case. Voluntary manslaughter is considered a lesser included offense of murder, and a trial court must instruct on voluntary manslaughter if substantial evidence indicates the defendant is guilty only of that offense. (People v. Manriquez (2005) 37 Cal.4th 547, 583, 584 (Manriquez).)In this context, "substantial evidence" is evidence from which a reasonable jury could conclude the defendant committed voluntary manslaughter but not murder. (Id. at p. 584.) There was no such evidence here.
To support giving the instructions Fryklind contends the trial court erroneously refused to give, there would have to have been substantial evidence that Valente actually but unreasonably believed Beltran posed an imminent danger of death or great bodily injury. (Manriquez, supra, 37 Cal.4th at p. 581.) Valente, however, "did not testify and made no out-of-court comments indicating that when he fired, he believed it necessary to defend his life or to avoid great bodily injury." (People v. Oropeza (2007) 151 Cal.App.4th 73, 82 (Oropeza).)Nor did Fryklind, Rendon or any other person present at the shooting testify that Valente fired out of fear or appeared fearful. (See ibid.) There was therefore no direct evidence that Valente actually believed he needed to kill Beltran in self-defense.
Fryklind nevertheless argues the jury could infer Valente believed he was in imminent danger of death or great bodily injury. Fryklind correctly points out that Valente had recently lost a fight to Beltran in the trailer park; and on the night of the shooting, Beltran asked Valente and his companions, "Where you fools from?" Fryklind also points out that the People's gang expert testified that this question, when asked by a gang member, was a warning that the questioner was about to attack the person being questioned. Based on this evidence, Fryklind contends the jury reasonably could have concluded that "Valente would have subjectively 'unreasonably foreseen' that Beltran would follow up his gang challenge with the use of lethal force against him." We are not persuaded.
The circumstances of the shooting do not support the conclusion drawn by Fryklind. The evidence at trial showed that Valente traveled by car with Fryklind and Rendon into Varrio Encanto Locos gang territory with a loaded gun. After Beltran issued the gang challenge, Valente and his companions disappeared behind the liquor store. The footage from the liquor store surveillance camera showed that moments later, Valente, Fryklind and Rendon emerged from behind the liquor store; Valente rapidly and purposefully approached Beltran; and Fryklind and Rendon stood and watched Valente from several feet away. As Beltran turned away from Valente and headed back toward the liquor store entrance, Valente quickly removed a gun from under his sweatshirt and fired at Beltran. The evidence thus showed that Valente sought out Beltran, who was unarmed, and, without provocation, shot him as he tried to walk away. On this record, the circumstantial evidence of Valente's state of mind "suggests only that he fired the shot[s] as an act of aggression." (Oropeza, supra, 151 Cal.App.4th at p. 82.)
In sum, because there was no direct or circumstantial evidence that Valente actually believed he was in imminent danger of death or great bodily injury, the trial court did not err in refusing to give the voluntary manslaughter instructions requested by Fryklind. (See Manriquez, supra, 37 Cal.4th at pp. 578, 582 [voluntary manslaughter instructions properly refused when no testimony defendant feared victim, and defendant angrily confronted and fired several shots at unarmed victim]; People v. De Leon (1992) 10 Cal.App.4th 815, 825 [voluntary manslaughter instructions properly refused when no testimony defendant believed he was imperiled, and defendant "pull[ed] out his weapon and fir[ed] at men who had turned and started to walk away"].) D. The Trial Court Did Not Err by Refusing to Instruct the Jury That Navarro May Be an Accomplice Whose Testimony Required Corroboration and Should Be Viewed with Caution
Fryklind contends the trial court violated his federal constitutional rights to a jury trial and due process of law (U.S. Const., 6th & 14th Amends.) by not "instruct[ing] the jury on principles of accomplice testimony under which it could find that Oscar Navarro was an accomplice who[se] testimony required corroboration and should be viewed with care and caution." According to Fryklind, such instruction was required because Navarro's leadership role in the Southeast Locos gang and access to and control over the gun used in the shooting support the conclusion that Navarro was an accomplice. We reject this argument.
A defendant may not be convicted of an offense based on the testimony of an accomplice unless other evidence "connect[s] the defendant with the commission of the offense." (§ 1111.) An accomplice for purposes of this rule is "one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given." (Ibid.) To be so chargeable, the witness must have directly committed the offense or have aided and abetted the direct perpetrator in its commission. (§ 31; People v. Richardson (2008) 43 Cal.4th 959, 1023.) The defendant bears the burden to prove the witness was an accomplice by a preponderance of the evidence, and may rely on evidence introduced by the prosecution to do so. (People v. Belton (1979) 23 Cal.3d 516, 523.) If the evidence introduced at trial is sufficient to support the conclusion that a witness incriminating the defendant was an accomplice, the trial court has a sua sponte duty to instruct the jury that the witness's testimony should be viewed with caution (People v. Guiuan (1998) 18 Cal.4th 558, 569) and that there is a need for corroboration (People v. Tobias (2001) 25 Cal.4th 327, 331).
Here, the jury could not reasonably have found Navarro was an accomplice. There was no evidence Navarro was the direct perpetrator of the murder or firearm assaults. To the contrary, the evidence, including a video recording, clearly showed that Valente was the shooter. Nor was there any evidence Navarro aided and abetted Valente in the shooting. Navarro testified he first learned of the shooting after it occurred. But, to aid and abet in the commission of an offense, an accomplice must know the direct perpetrator's criminal purpose before the commission of the offense. (Gonzales, supra, 52 Cal.4th at p. 302; People v. Snyder (2003) 112 Cal.App.4th 1200, 1220-1221.) Further, there was no evidence that Navarro was present at or fled from the scene of the shooting; that he was with Valente, Fryklind or Rendon before the shooting; or that he said or did anything else before or after the shooting from which it could be inferred that he had prior knowledge of and intended to "aid[], promote[], encourage[] or instigate[], the commission of the crime." (Beeman, supra, 35 Cal.3d at p. 561; see also Jones, supra, 108 Cal.App.3d at p. 15 [listing circumstances probative of aiding and abetting].)
The evidence on which Fryklind relies to establish that Navarro was an accomplice to the shooting is plainly insufficient. Navarro's leadership position in the Southeast Locos does not support liability as an aider and abettor, because membership in a gang does not by itself support an inference that a member intended to and actually did promote or assist another member in committing a particular crime. (In re Frank S. (2006) 141 Cal.App.4th 1192, 1199; People v. Perez (1981) 114 Cal.App.3d 470, 477.) Nor does Fryklind's assertion that "it was Navarro who, after the Beltran shooting, directed that the gun be disposed of, again establishing his right to dominion and control of it," support imposition of aiding and abetting liability. "Although evidence of [Navarro's] conduct after the commission of the crime might have implicated him as an accessory, his status as such would not subject him to accomplice liability." (Gonzales, supra, 52 Cal.4th at p. 302.)
In sum, there was no evidence Navarro "aided or abetted, or otherwise facilitated, with the requisite intent, any of [Valente's] criminal actions." (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 105.) Accordingly, the trial court had no obligation to instruct the jury that Navarro's testimony should be viewed with caution or that corroborating evidence was required to find Fryklind guilty.(Ibid.)
In any event, even if the trial court had erred in refusing to instruct the jury on the principles governing accomplice testimony, the error would not require reversal. Such instructional error is reversible only if it is reasonably probable the defendant would have obtained a more favorable result had the error not occurred. (People v. Whisenhunt (2008) 44 Cal.4th 174, 214; Watson, supra, 46 Cal.2d at p. 836.) "A trial court's failure to instruct on accomplice liability under section 1111 is harmless if there is 'sufficient corroborating evidence in the record.' [Citation.] To corroborate the testimony of an accomplice, the prosecution must present 'independent evidence,' that is, evidence that 'tends to connect the defendant with the crime charged' without aid or assistance from the accomplice's testimony. [Citation.] Corroborating evidence is sufficient if it tends to implicate the defendant and thus relates to some act or fact that is an element of the crime. [Citations.] ' "[T]he corroborative evidence may be slight and entitled to little consideration standing alone." ' " (People v. Avila (2006) 38 Cal.4th 491, 562-563 (Avila).)
We reject Fryklind's assertion that error in refusing to instruct on principles governing accomplice testimony is subject to harmless error review under the standard that "before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." (Chapman v. California (1967) 386 U.S. 18, 24.) "[T]he requirement under [section] 1111 that 'a conviction cannot be had upon the testimony of an accomplice unless it be corroborated' is a matter of state law, which does not implicate a federal constitutional right." (Barco v. Tilton (C.D.Cal. 2010) 694 F.Supp.2d 1122, 1136; accord, In re Mitchell R. (1978) 22 Cal.3d 946, 949 ["The accomplice testimony rule is not constitutionally based."]; People v. Felton (2004) 122 Cal.App.4th 260, 273 ["the corroboration requirement itself is a matter of state law, not due process"].)
There was sufficient independent evidence introduced at trial to corroborate Navarro's testimony. The evidence included video and audio recordings in which Fryklind's face and voice are identifiable, and in those recordings Fryklind admitted he participated in the shooting and owned the gun used by the shooter. In addition, the homicide detective (Beard) identified Fryklind's image and voice in the recordings based on her previous contacts with him. A tape recording incriminating a defendant is sufficient independent evidence to corroborate an accomplice's testimony where, as here, the defendant's voice is identifiable apart from the accomplice's testimony. (People v. Davis (2005) 36 Cal.4th 510, 546-547.) Further, the jury heard testimony from Beard that Fryklind denied any involvement in or knowledge of the shooting when he was interviewed during police investigation of the shooting. Fryklind's "attempt to conceal from the police his involvement in the activities culminating in the murder[] implied consciousness of guilt constituting corroborating evidence." (Avila, supra, 38 Cal.4th at p. 563.) Accordingly, because independent evidence corroborated Navarro's testimony, any error in refusing to instruct the jury regarding accomplice testimony was harmless. (People v. Williams (2010) 49 Cal.4th 405, 456; Avila, at pp. 562-563.) E. The Prosecutor Did Not Commit Misconduct During Closing Argument
Fryklind's final claim of error is based on alleged prosecutorial misconduct during closing argument. He contends: "The trial prosecutor systematically committed misconduct in her closing arguments by suggesting to the jurors that there was a large body of evidence which they had not heard but which established [Fryklind's] guilt, and by arguing facts that were not in evidence. As a result, Mr. Fryklind was deprived of his Sixth Amendment right to jury trial and his Fourteenth Amendment right to due process of law." We shall summarize the portions of the prosecutor's closing argument Fryklind challenges, and then explain why none amounted to misconduct.
1. Additional Facts
During the opening phase of her closing argument, the prosecutor made the following statements that Fryklind contends misrepresented the record or asserted the existence of facts not in evidence: (1) As Beltran and his friends were walking to the liquor store, Fryklind, Valente and Rendon passed by in a car, and Valente "thr[ew] down a gang sign." (2) Fryklind, Valente and Rendon planned and premeditated Beltran's murder behind the liquor store. (3) They escaped in a "getaway car" after the murder. (4) Fryklind supplied Valente with the murder weapon and took it back after the murder. (5) Fryklind lied to Beard during the 2008 interviews when he told her the Southeast Locos were not feuding with any other gangs. Fryklind did not object to any of these statements at trial, however.
Fryklind also complains of three references by the prosecutor to "hundreds of hours of undercover recorded conversations" during the rebuttal phase of her closing argument. The first time the prosecutor referred to these conversations was in response to Fryklind's argument that Valente acted in self-defense in shooting Beltran. The prosecutor described that defense as "laughable" and asserted: "There's no self-defense in this case whatsoever." She then went on to explain that Valente shot Beltran not in self-defense but in retaliation for their prior fight in the trailer park:
"They got hit up. They didn't like it. They're in enemy territory. They're looking for the people that the week before, two weeks before, three weeks before they were after. [¶] And if you think that the — I mean, we heard some sarcasm about Twitter. 'Oh, you know, [Valente] just got in a fight. Tell your friend and get on the telephone.' We didn't hear evidence about that. What we heard and what the testimony was that even the hundreds of hours of undercover recorded conversations, that's what these guys talk about. That's what they talk about. [¶] Who got it then. Who they need to get back; who their enemies are; how they're going to get them — you hear [Fryklind] talking about it in this case." (Italics added.)Fryklind's trial counsel did not object to this portion of the prosecutor's argument.
The prosecutor referred to the undercover recordings a second time in response to Fryklind's argument that Navarro, not Fryklind, provided the gun Valente used in the liquor store shooting. She contended:
"But not one shred of evidence came out of anyone's mouth, People's witnesses or defense witnesses, to support that idea. [¶] In hundreds of hours of undercover recorded conversations with dozens and dozens of gangsters from this gang set and other gang sets, if there was any suggestion, if anyone said anything — they didn't know they were being recorded — if anyone said anything to implicate Oscar Navarro or to suggest this was his gun or he put it out on the street or he called this hit — if there was any of that, you would have heard it. You would have heard it." (Italics added.)Fryklind's trial counsel did not object to this portion of the prosecutor's argument.
The third and final time the prosecutor mentioned the undercover recordings was in response to Fryklind's argument that his statements that "we" killed Beltran did not necessarily mean he was personally involved in the shooting because gang members often brag about or take credit for crimes other gang members committed:
"And if it's so common and so typical, as [a defense witness] would have you believe or as defense counsel would ask you to believe, that gangsters go around bragging about everybody else's work even if they're not there and even if they didn't have any part of it, why, in hundreds of hours of undercover recorded conversations, when the goal is to gather evidence about homicides — this is the stuff we're wanting to talk about — we don't hear one other gangster bragging about that murder?" (Italics added.)Fryklind's counsel objected to this portion of the prosecutor's argument on the ground that it relied on facts not in evidence, but the trial court overruled the objection.
2. Legal Analysis
As a threshold matter, Fryklind has not preserved for appellate review most of his claims of prosecutorial misconduct. Although on appeal he complains of several passages of the prosecutor's closing argument, he objected at trial to only one. By not objecting or seeking curative admonitions from the trial court as to the other passages, Fryklind forfeited any claim of prosecutorial misconduct based on those passages. (See, e.g., People v. Fuiava (2012) 53 Cal.4th 622, 691; People v. Thompson (2010) 49 Cal.4th 79, 121 (Thompson).) "We nevertheless consider [Fryklind's] claim on the merits to forestall [his] ineffectiveness of counsel contention based on the failure to object at trial." (People v. Lewis (1990) 50 Cal.3d 262, 282.)
Turning to the merits, "[w]e begin by noting that the prosecutor has a wide-ranging right to discuss the case in closing argument. [She] has the right to fully state [her] views as to what the evidence shows and to urge whatever conclusions [she] deems proper. Opposing counsel may not complain on appeal if the reasoning is faulty or the deductions are illogical because these are matters for the jury to determine. [Citation.] The prosecutor may not, however, argue facts or inferences not based on the evidence presented." (Lewis, supra, 50 Cal.3d at p. 283.) For reasons we shall explain, in none of the instances of which Fryklind complains did the prosecutor exceed the scope of permissible argument by misrepresenting the record or asserting facts that were not in evidence.
This conclusion also defeats Fryklind's ineffective assistance of counsel claim. (See Thompson, supra, 49 Cal.4th at p. 121, fn. 14 ["As we discern no misconduct on the merits, defendant's ineffective assistance claim fails."].)
The prosecutor properly stated that Valente made a gang gesture and argued that he, Fryklind and Rendon traveled to and fled the crime scene in a "getaway car" based on various pieces of evidence. Manjarrez testified that as he and his companions walked to the liquor store, he saw a car drive by in which a passenger wearing gloves "flash[ed] a gang sign." The video footage from the liquor store surveillance camera captured the shooter wearing gloves, a car approaching and slowing next to Valente just before the shooting, and the shooter's companions fleeing immediately after the shooting. Rodriguez testified she saw people flee and heard a car speed away immediately after the shooting. And, Navarro testified that after the shooting, Fryklind and Rendon went to Navarro's house, where Fryklind stated that Valente shot Beltran and that he was worried the car was captured on camera. This evidence, considered together, supports the prosecutor's assertions during closing argument.
The prosecutor also permissibly argued, based on a combination of various pieces of evidence introduced at trial, that Valente, Fryklind and Rendon planned Beltran's murder while they were behind the liquor store. Rodriguez testified that before the shooting Valente lost a fight to Beltran in the trailer park; and the People's gang expert testified about the need for the losing gang member to retaliate in such a situation. Manjarrez testified that as he and his companions got close to the liquor store, they lost sight of Valente, Fryklind and Rendon. The video surveillance camera footage showed that, moments later, Valente emerged from one end of the liquor store, rapidly approached Beltran, and then fatally shot him; and that Fryklind and Rendon also emerged from behind the building and then stood behind Valente and watched the shooting from several feet away. This sequence of events supports an inference that Valente, Fryklind and Rendon discussed Beltran's murder while they were behind the liquor store.
Next, the prosecutor's argument that Fryklind gave Valente the gun with which he shot Beltran and then took it back after the shooting has support in the evidence. Navarro testified that after the shooting Fryklind went to Navarro's house with the gun and called it his "baby." In the February 2, 2009 recorded conversation between Fryklind and Navarro, Fryklind worried that the police might recover his DNA from the gun because he had blown in the barrel; and he was annoyed that Benitez got caught with the gun after he had taken it from Fryklind's girlfriend's house without permission. And, importantly, the ballistics tests showed the bullets and casings recovered from the liquor store shooting were fired from the gun seized from Benitez. This evidence, considered together, suggests that the gun belonged to Fryklind; that he gave it to Valente to shoot Beltran; and that Fryklind took the gun back after the shooting, and then tried to conceal it.
The prosecutor's assertion that Fryklind lied when he told Beard the Southeast Locos were not feuding with other gangs is consistent with the record. Beard testified that when she interviewed Fryklind in July 2008, he told her the Southeast Locos "weren't feuding with anybody." When pressed, however, Fryklind conceded he "basically" did not want to identify the gang's rivals. Furthermore, the People's gang expert testified that in 2007 and 2008 the Southeast Locos were rivals of four criminal street gangs in east San Diego. From this testimony, the prosecutor could reasonably conclude, and properly argue to the jury, that Fryklind was lying when he initially told Beard the Southeast Locos were not feuding with any other gangs in July 2008.
Ironically, it is Fryklind who misrepresents the record here. He claims the prosecutor "attempted to discredit [Fryklind] when she asserted that he lied to Detective Beard when he said that the Southeast Locos were not feuding with the Encanto gang in 2008. . . . But it was the prosecutor who was spreading falsehoods again when she insinuated that such a feud existed." (Italics added.) During the challenged portion of closing argument, however, the prosecutor never mentioned the Varrio Encanto Locos. She simply argued that when Beard asked Fryklind with whom the Southeast Locos were feuding, he lied when he responded: "Nobody really. We get along with everybody."
Finally, the prosecutor's three references to "hundreds of hours of undercover recorded conversations" did not constitute misconduct. Although that quantity of conversations was not actually introduced at trial, it could reasonably be inferred that there was a large number of hours of undercover conversations based on the testimony of Beard and another detective that the undercover operation lasted from December 2008 until April 2009; that the operation focused on murders and other crimes by the Southeast Locos; and that Navarro regularly wore concealed audio and video recording equipment during the operation. "Prosecutors are permitted to make vigorous, colorful arguments with obvious hyperbole like that used here . . . ." (People v. Lewis (2004) 117 Cal.App.4th 246, 259-260.) The prosecutor also was allowed to suggest that if the undercover recorded conversations had contained anything supporting the various theories espoused in Fryklind's closing argument, Fryklind would have introduced the relevant portions at trial. In response to an argument made by a defendant, a prosecutor properly may comment on the defendant's failure to present material evidence in support of the argument. (People v. Wilson (2005) 36 Cal.4th 309, 338; People v. Panah (2005) 35 Cal.4th 395, 464.)
In sum, we conclude the prosecutor did not engage in any of the misconduct alleged by Fryklind because all of the challenged statements and arguments were "permissible inference[s] based on the evidence presented. The fact that other inferences could also have been drawn does not invalidate the argument or render it impermissible." (People v. Lewis, supra, 50 Cal.3d at p. 285.) "The prosecutor was entitled to argue [her] interpretation of the evidence, just as defendant was entitled to argue his interpretation of that same evidence." (People v. Valencia (2008) 43 Cal.4th 268, 284.)
DISPOSITION
The judgment is affirmed.
IRION, J. WE CONCUR: McCONNELL, P. J. McDONALD, J.