Opinion
A146308
10-24-2018
THE PEOPLE, Plaintiff and Respondent, v. ALBERTUS RAPHAEL NWOZUZU, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Contra Costa County Super. Ct. No. 5-142502-4)
A jury acquitted Albertus Raphael Nwozuzu of several charges but found him guilty of resisting arrest (Pen. Code, § 148, subd. (a)(1)). The trial court placed Nwozuzu on three years of probation. Nwozuzu appeals. He contends the court should have granted his request to represent himself, the court failed to properly instruct the jury, and the prosecutor engaged in misconduct during closing arguments. We disagree and affirm.
All undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
We summarize the facts relevant to the issues on appeal. We provide additional factual and procedural details in the discussion of Nwozuzu's specific claims.
By amended information, filed July 20, 2015, Nwozuzu was charged with first degree residential burglary (§§ 459, 460, subd. (a); count 1), assault by force likely to produce great bodily injury (§ 245, subd. (a)(4); count 2), battery (§§ 242, 243, subd. (a); count 3), and resisting arrest by means of force (§ 69; count 4). Nwozuzu's jury trial commenced on July 23, 2015.
A. The April 1, 2013 Incident
Nwozuzu's girlfriend lived with her parents in El Sobrante, California. Nwozuzu did not reside with them. On April 1, 2013, Nwozuzu arrived at the house late at night, and his girlfriend's mother was upset. While Nwozuzu was in his car, she yelled at him and told him to leave. She returned to the house, and Nwozuzu followed her. She tried to shut the front door, but Nwozuzu kept it open. She lost her balance and fell to the ground. Nwozuzu left. She called the police and told them Nwozuzu hit her. Based on this incident, an arrest warrant was issued for Nwozuzu.
B. The April 15, 2014 Arrest
After the altercation, Nwozuzu continued to visit the house. On April 15, 2014, his girlfriend obtained permission from her mother for Nwozuzu to enter the house. Nevertheless, her mother called the police to tell them Nwozuzu was there. Five officers from the sheriff's department responded to the call.
1. The Officers' Testimony
While walking up the driveway to the house, Deputy Anthony Coniglio observed Nwozuzu, who ran back towards the house when he saw the officers. Deputy Coniglio, who was accompanied by his dog, Argo, yelled, "Sheriff's canine, stop running." Deputy Coniglio commanded Argo to search the house. Argo located Nwozuzu hiding in a bedroom closet. After Deputy Coniglio pulled Nwozuzu out of the closet, Nwozuzu stood up, grabbed Deputy Coniglio, and both men struggled. Deputy Coniglio took out his taser and threatened to use it on Nwozuzu if he did not get on the ground. Nwozuzu kicked the deputy in the lower legs, causing Deputy Coniglio to fall backwards.
Deputy Coniglio gave Argo the command to bite, and the dog bit Nwozuzu's left calf. Nwozuzu fell to the ground on his stomach. More deputies entered the bedroom and attempted to place Nwozuzu in handcuffs. It took about 60 seconds to handcuff Nwozuzu. When Nwozuzu was in handcuffs, Deputy Coniglio commanded Argo to release his bite.
When Sergeant Shawn Welch entered the bedroom, he observed Deputy Coniglio and Nwozuzu on the ground, and Nwozuzu was preparing to strike the deputy. To prevent Nwozuzu from doing so, Sergeant Welch kicked Nwozuzu in the chest. Sergeant Welch put his right knee on Nwozuzu's back and told Nwozuzu to place his hands behind his back. Sergeant Welch relieved his pressure on Nwozuzu, but instead of giving him his hands, Nwozuzu reached for the dog. Sergeant Welch jabbed Nwozuzu with his stick four times in the lower back, telling Nwozuzu each time to stop grabbing for the dog and to give him his hands. Nwozuzu failed to comply, so Sergeant Welch hit Nwozuzu in the upper arm with his stick. Eventually, Sergeant Welch was able to place Nwozuzu in handcuffs. According to Sergeant Welch, he made every effort to use the least amount of force necessary to handcuff Nwozuzu.
2. Nwozuzu's Testimony
Nwozuzu testified he was already in the bedroom when he first saw the officers. Nwozuzu was nervous because he was not sure if there was still a warrant for his arrest. He claimed the police dog stormed into the bedroom followed by four officers. The dog immediately began biting Nwozuzu, and an officer kicked Nwozuzu in the chest, causing him to fall to the ground. One of the officers pulled out his taser and threatened to tase Nwozuzu. The officers continued kicking and "booting" Nwozuzu, while the dog continued to bite him.
After two or three minutes, Nwozuzu heard his girlfriend saying, "What is going on? You're going to kill him. Y'all killing him." An officer pulled her away from the bedroom by the hair. The officers brought Nwozuzu up from the floor, and commanded the dog to stop biting, and the dog "let go right away."
The officers took Nwozuzu outside. Nwozuzu testified he was confused during the beating and he did not know "which way to grab" because he was being beaten by four officers and bitten by the dog. Nwozuzu heard the commands to give the officers his hands, and he was trying to comply, but he was "moving too slow," and he was unable to do so as quickly as the officers wanted because they were simultaneously beating him.
C. Verdict and Sentence
The jury found Nwozuzu not guilty of burglary (count 1), assault (count 2), battery (count 3), and resisting arrest by force (count 4). The jury found Nwozuzu not guilty of lesser included offenses under counts 2 and 3. However, the jury found Nwozuzu guilty under count 4 of the lesser included offense of resisting arrest without force. At sentencing, the court placed Nwozuzu on three years of probation.
DISCUSSION
I.
The Court Had Discretion to Deny Nwozuzu's Request to Represent Himself
On appeal, Nwozuzu's first argument is that the court should have granted his request to represent himself. We begin with a review of the relevant proceedings.
A. Nwozuzu's Request to Represent Himself
After the court finished ruling on motions in limine, and while prospective jurors were waiting outside the courtroom, defense counsel told the court that Nwozuzu wanted "to represent himself pursuant to Faretta. . . . In the alternative, he would request to continue the case for one week to hire private counsel." The court asked Nwozuzu why he wished to represent himself. Nwozuzu stated, "I actually asked to either represent myself or give just a little bit of time to hire a new attorney, because me and my attorney here is having quite a bit of conflict of interest. It's just causing me hardship."
Based on Nwozuzu's response, the court conducted a confidential hearing outside the presence of the prosecutor, telling Nwozuzu he should "feel free to speak." Nwozuzu stated he believed his appointed counsel disregarded what he wanted her to say, she talked too fast, and he could not understand her. He stated, "it's my life on the line here. I need someone who I feel is on my side . . . [to make] the right arguments. [¶] . . . [¶] And especially on something I know I didn't do at all. And she seems to understand it but with her arguments and the way she ignores me, I don't think she understands me at all."
When asked why he did not make the request earlier, Nwozuzu stated he had done so "about a month or two ago." Addressing appointed counsel, the court stated the hearing was "essentially a Marsden, but I do want to hear a little bit about whether or not you had a request earlier for a Marsden." Appointed counsel explained that, at the time of his section 995 hearing, Nwozuzu indicated he wished to consult with private counsel, and, based on Nwozuzu's request, she filed a motion to continue, but the motion was denied. The record contains a copy of the motion to continue, which stated Nwozuzu wished "to consult with alternate counsel." Appointed counsel indicated Nwozuzu never previously expressed a wish for a different appointed attorney.
People v. Marsden (1970) 2 Cal.3d 118, requires the court to permit a criminal defendant to state the reasons for a request for change of attorneys. (Id. at pp. 123-124.) In his opening brief, Nwozuzu contends the court "erred in analyzing his request under Marsden" because he sought to replace his appointed counsel with retained counsel, but he "does not challenge the trial court's ruling that replacement of appointed counsel with retained counsel would have caused an unjustifiable one-week delay." Accordingly, we do not address this claim of error. --------
Responding to Nwozuzu's concerns, appointed counsel stated, "I can only listen to one person speaking at one time. And when the Court is speaking, it's very important for me to listen to what the Judge and counsel are saying, and I've said as much to Mr. Nwozuzu. I've got a pen and paper for him to write things down. I've also said he can whisper in my ear, but I can't maintain two conversations at once." Contrary to Nwozuzu's assertion that appointed counsel was not on his side, she stated, "I am invested in this case. I do think that Mr. Nwozuzu absolutely has a defense in this case. I am prepared to litigate this case at trial. I'm invested in it. It is the main focus of what I am doing professionally in my life right now, and it is not just a paycheck."
While Nwozuzu felt counsel was not making the arguments he wanted, she responded, "there is a time and a place to make specific arguments and I'm not going to make every argument he wishes me to make because they're not appropriate given specific times. [¶] Also that if we make frivolous arguments, it will perhaps lower our ability to communicate important arguments to the Court and I want to make persuasive and legitimate arguments to the Court at the appropriate times."
Based on this testimony, the court concluded defense counsel was "providing adequate representation," and that Nwozuzu and his attorney were "not so embroiled in irreconcilable conflict that ineffective representation is likely to result." After unsealing the courtroom, the court stated Nwozuzu's request to represent himself was untimely and granting it would "clearly disrupt the orderly proceedings of the Court. It is a tactic, in my mind, to secure a delay. You've attempted it before, and you did not hire counsel. If you had wished to hire counsel, you could have hired counsel at that time."
The court stated Nwozuzu should have made the decision to represent himself "long ago. At this point, the horses are out of the gate. We are in a trial. We made a number of decisions. And as I said, the jury panel is literally waiting outside. We've called in the jurors. A lot of the issues have been litigated because of the motions in limine. And I find that your request is merely a tactic to secure delay. And therefore I am denying your request to represent yourself, to postpone the case in order to hire counsel, and we will proceed."
B. Governing Law
A criminal defendant has a right under the Sixth Amendment to represent himself at trial. (Faretta v. California (1975) 422 U.S. 806, 821 (Faretta).) "[I]n order to invoke the constitutionally mandated unconditional right of self-representation a defendant in a criminal trial should make an unequivocal assertion of that right within a reasonable time prior to the commencement of trial. Accordingly, when a motion to proceed pro se is timely interposed, a trial court must permit a defendant to represent himself upon ascertaining that he has voluntarily and intelligently elected to do so, irrespective of how unwise such a choice might appear to be." (People v. Windham (1977) 19 Cal.3d 121, 127-128, fn. omitted (Windham).) However, when the Faretta request is not timely, then "demands by such defendant that he be permitted to discharge his attorney and assume the defense himself shall be addressed to the sound discretion of the court." (Id. at p.128.)
C. Nwozuzu's Request Was Untimely
Nwozuzu argues his request to represent himself was timely because he sought a continuance in connection with his request to hire private counsel, but not in connection with his Faretta motion. We disagree.
Our Supreme Court has "held on numerous occasions that Faretta motions made on the eve of trial are untimely." (People v. Lynch (2010) 50 Cal.4th 693, 722, abrogated on other grounds by People v. McKinnon (2011) 52 Cal.4th 610, 637-638.) For example, in People v. Valdez (2004) 32 Cal.4th 73, the Supreme Court concluded a Faretta motion made "moments before jury selection was set to begin" was untimely. (Id. at p. 102.) Similarly here, Nwozuzu made his Faretta request after motions in limine were decided and while a jury panel was waiting outside the courtroom. Indeed, according to Nwozuzu, there was only a "45-minute gap" between his Faretta request and the start of jury selection.
Relying on People v. Tyner (1977) 76 Cal.App.3d 352, Nwozuzu contends his request was timely because it was not accompanied by a request for a continuance. Tyner is distinguishable. In Tyner, the defendant indicated he was ready to go to trial on the same day as his Faretta request, and he had prepared 50 questions with which to cross-examine witnesses. (Id. at p. 354.) Unlike the defendant in Tyner, Nwozuzu did not indicate he was immediately ready to try his case. Nwozuzu wanted "someone who I feel is on my side . . . [to make] the right arguments." Nwozuzu requested permission to either represent himself or obtain more time to hire a new attorney. By framing his request in this manner, it is reasonable to infer he was not ready to immediately go to trial. With a jury panel waiting outside the courtroom, the request was untimely.
D. No Abuse of Discretion in Denying Nwozuzu's Untimely Request
Courts give "[c]onsiderable weight . . . to the trial court's exercise of its discretion in denying an untimely [Faretta] motion . . . ." (People v. Ruiz (1983) 142 Cal.App.3d 780, 792.) "Among other factors to be considered by the court . . . are the quality of counsel's representation of the defendant, the defendant's prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion." (Windham, supra, 19 Cal.3d at p. 128.)
Here, Nwozuzu "takes no issue" with the quality of his appointed counsel's representation. Instead, he argues "the record does not indicate any prior proclivity to replace appointed counsel." But, based on Nwozuzu's failure to act on his previous request for more time to consult with private counsel, it was reasonable for the court to conclude that Nwozuzu's current request to either represent himself or hire a private attorney was a tactic to secure delay. By so concluding, the court properly considered the disruption or delay that might reasonably be expected to follow its granting of a Faretta motion. With regard to "the reasons for the request" (Windham, supra, 19 Cal.3d at p. 128), the court permitted Nwozuzu to articulate his reasons, and it was reasonable for the court to conclude his appointed counsel's responses adequately addressed Nwozuzu's concerns. Accordingly, the court considered the relevant factors, and the court did not abuse its discretion in denying Nwozuzu's Faretta request.
In arguing otherwise, Nwozuzu relies on People v. Nicholson (1994) 24 Cal.App.4th 584 (Nicholson), and People v. Rogers (1995) 37 Cal.App.4th 1053 (Rogers). These cases are inapposite. In Nicholson, the defendants' attorneys "didn't think there was any chance of winning." (Nicholson, at p. 592.) In Rogers, the defendant "had a 'profound' difference of opinion with defense counsel regarding the manner in which the case should proceed." (Rogers, at p. 1057.) But here, appointed counsel stated she was "invested in this case," and she thought Nwozuzu "absolutely has a defense." After considering Nwozuzu's reasons for his request, and his appointed counsel's responses, it was reasonable for the court to decide their differences were not irreconcilable.
Moreover, in Nicholson, the court noted there was no "concurrent alternative request for new counsel," and "no hint that one would be forthcoming if propria persona status was granted." (Nicholson, supra, 24 Cal.App.4th at p. 592.) Similarly, in Rogers, "appellant did not request a continuance and was prepared to proceed with the trial." (Rogers, supra, 37 Cal.App.4th at p. 1057.) But here, by also requesting more time to hire private counsel, it is likely Nwozuzu would have sought a continuance if his Faretta request was granted.
Even if we had found the court erred in denying Nwozuzu's request, we could not find it was prejudicial. "The erroneous denial of an untimely Faretta motion is reviewed under the harmless error test of People v. Watson (1956) 46 Cal.2d 818, 836." (Rogers, supra, 37 Cal.App.4th at p. 1058.) Here, assisted by appointed counsel, Nwozuzu was acquitted of all charges, except for the lesser included offense of resisting arrest without force. Based on the evidence of a struggle between Nwozuzu and the officers, it is not reasonably probable Nwozuzu would have obtained a more favorable outcome without the assistance of counsel.
II.
The Jury Instructions Were Proper
Nwozuzu contends the court erred in failing to instruct the jury regarding his "right to defend himself without using force" and in failing to instruct on the defense of necessity. We find no error in the court's instructions.
A. The Jury Instructions on Resisting Arrest
Here, the court relied on CALCRIM No. 2652 to instruct the jury on the count 4 charge of resisting an executive officer. The instruction stated, in pertinent part, as follows:
"To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant unlawfully used force or violence to resist an executive officer; [¶] 2. When the defendant acted, the officer was performing his lawful duty; [¶] AND [¶] 3. When the defendant acted, he knew the executive officer was performing his duty. [¶] . . . [¶] A peace officer is not lawfully performing his or her duties if he or she is using unreasonable or excessive force in his or her duties. Instruction 2670 explains when force is unreasonable or excessive."
Next, based on CALCRIM No. 2656, the court instructed the jury on the lesser included offense of resisting a police officer in the performance or attempted performance of his or her duties. The instruction stated, in pertinent part, that "the People must prove . . . [¶] . . . [t]he defendant willfully resisted, obstructed, or delayed Anthony Coniglio or Shawn Welch in the performance or attempted performance of [their] duties . . . . [¶] . . . [¶] Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage. [¶] . . . [¶] A peace officer is not lawfully performing his or her duties if he or she is using unreasonable or excessive force in his or her duties. Instruction 2670 explains when force is unreasonable or excessive. [¶] The People allege that the defendant resisted, obstructed, or delayed Anthony Coniglio or Shawn Welch by doing the following: [¶] 1. Refusing to obey commands of [a] police officer. [¶] You may not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of the alleged acts of resisting, obstructing, or delaying a peace officer who was lawfully performing his or her duties, and you all agree on which act he committed."
In accordance with CALCRIM No. 2670, the jury was instructed that "[t]he People have the burden of proving beyond a reasonable doubt that Anthony Coniglio and Shawn Welch were lawfully performing their duties as peace officers. If the People have not met this burden, you must find the defendant not guilty of resisting [an] executive officer as charged in count 4 and resisting arrest—charged as a lesser included crime to count 4. [¶] A peace officer is not lawfully performing his or her duties if he or she is using unreasonable or excessive force in his or her duties. [¶] . . . [¶] If a peace officer uses unreasonable force or excessive force while detaining or attempting to detain a person, that person may lawfully use reasonable force to defend himself or herself."
B. No Error in the Jury Instructions on Resisting Arrest
Nwozuzu argues the court failed to properly instruct the jury regarding his "right to engage in nonviolent self-defense." He contends that "[i]n connection with the lesser included offense, the jury was never told that appellant had an equal right to engage in lawful self-defense without the use of force, such as by blocking blows from a baton or grabbing his own leg as an attack dog chewed on it." Nwozuzu contends the instruction on self-defense was improper because it "limited appellant's right to engage in self-defense only to the use of force." He complains that the instructions did not allow the jury to determine whether his "act[s] of protecting himself from the beating and the biting were done in lawful self-defense."
We are not persuaded. First, Nwozuzu cites no authority addressing "nonviolent self-defense," and we have found no case discussing it. Second, in the instructions for both the count 4 charge and the lesser included offense, the jury was told to also consider CALCRIM No. 2670, which provided that "[i]f a peace officer uses unreasonable or excessive force while detaining or attempting to detain a person, that person may lawfully use reasonable force to defend himself or herself." Thus, under both instructions, the jury could consider whether Nwozuzu acted reasonably by "blocking blows from a baton or grabbing his own leg as an attack dog chewed on it."
In arguing otherwise, Nwozuzu relies on section 692, which provides in part that "[l]awful resistance to the commission of a public offense may be made: [¶] 1. By the party about to be injured . . . ." But "resistance" commonly implies the use of force. (American Heritage College Dict. (3d ed. 2000) p. 1161 [defining "resistance" as "[a] force tending to oppose or retard motion"].) Nwozuzu also cites People v. Olguin (1981) 119 Cal.App.3d 39. But in Olguin, the court did not mention "nonviolent self-defense." Instead, the court determined the defendant was entitled to acquittal of the lesser included offense of resisting arrest if the jury found the officers used excessive force and the defendant used " 'reasonable force to defend himself.' " (Id. at pp. 48-49.)
Here, the jury was properly instructed in accordance with Olguin's holding because in the instructions for both the count 4 charge and the lesser included offense, the jury was told to also consider CALCRIM No. 2670. Nwozuzu fails to establish the court was required to instruct the jury on his "right to defend himself without the use of force."
C. The Court Was Not Required to Instruct on the Defense of Necessity
Nwozuzu argues it was error for the court to refuse his instruction on the defense of necessity. We disagree.
"To justify an instruction on the defense of necessity, a defendant must present evidence sufficient to establish that she violated the law (1) to prevent a significant and imminent evil, (2) with no reasonable legal alternative, (3) without creating a greater danger than the one avoided, (4) with a good faith belief that the criminal act was necessary to prevent the greater harm, (5) with such belief being objectively reasonable, and (6) under circumstances in which she did not substantially contribute to the emergency." (People v. Kearns (1997) 55 Cal.App.4th 1128, 1135.) "Necessity does not negate any element of the crime, but represents a public policy decision not to punish such an individual despite proof of the crime." (People v. Heath (1989) 207 Cal.App.3d 892, 901.)
Here, the court denied Nwozuzu's request for an instruction on the defense of necessity, finding there was no "substantial evidence of necessity at all." On appeal, Nwozuzu contends that he could not comply with the officers' commands to place his hands behind his back because he was "being punched, clubbed, kicked, and mauled by officers and their dog." Nwozuzu argues "the beating was clearly 'a significant and imminent evil' that was to be avoided at all reasonable costs."
We are not persuaded by this argument. Nwozuzu testified he heard an officer asking for his hands, but "I was moving too slow for him. So every time I reacted slow to moving my hand, like I'm in pain so I'm reacting very slow to the command, he beat me up more because I'm more confused about giving him my hand. So as I'm reaching to give him my hand, it is not . . . satisfactory to . . . how fast he want[s] me to move while I'm in pain and getting bit. He kept beating me with a baton which made me move . . . slower to give him my hand because every time I didn't move fast enough, he hit me with the baton . . . and beat me up more." When asked whether he was trying to give his hands each time an officer asked him to do so, Nwozuzu reiterated, "Yeah, just maybe in a slower manner than he appreciated and he would like."
Based on this testimony, there was no substantial evidence to instruct the jury on the defense of necessity. On the lesser included offense, the jury was instructed the People had to prove Nwozuzu "willfully resisted, obstructed, or delayed" police officers, and the jury was told "[s]omeone commits an act willfully when he or she does it willingly or on purpose." Here, Nwozuzu did not testify he purposefully refused to comply with officers' commands in an effort to prevent them from beating him or to prevent any other "significant and imminent evil." Instead, he testified he was trying to comply with the commands, but he was unable to do so as quickly as the officers wanted. Stated differently, Nwozuzu did not admit to the crime, and he did not seek to justify it as necessary to prevent a greater evil. (People v. Heath, supra, 207 Cal.App.3d at p. 901.) Therefore the court correctly refused to instruct the jury on the defense of necessity.
III.
Nwozuzu's Claim of Prosecutorial Misconduct Fails
Nwozuzu contends the prosecutor committed misconduct by arguing that if the jurors believed Nwozuzu's version of events, then they had to find the police officers were lying. According to Nwozuzu, the argument impermissibly shifted the burden of proof because it implied Nwozuzu had the burden of proving the officers perjured themselves. We discern no misconduct.
A. The Prosecutor's Remarks
Here, during closing arguments, the prosecutor argued "we have the testimony about the resisting, where we have the officers who came in and testified for you in complete contradiction to what the defendant stated. If the defendant's version is to be believed . . . [then] each of those other officers came in and lied, because his version of events is that they stormed in and immediately the dog bit him and officers began attacking him. Completely contradictory to what actually happened and what the evidence shows."
In rebuttal, the prosecutor reiterated this argument. She stated, "the defendant . . . said, 'All four officers beat me by kicking me while the dog was attacking me. All four officers did that.' [¶] So either the defendant is lying or the officers are lying." "Officer Coniglio would have had to lie when he described how the defendant attacked him in the room, and that the parents were afraid and grateful. [¶] Officer Welch [would] . . . have had to lie when he described . . . the defendant attacking or attempting to attack Deputy Coniglio and the dog not biting him; would have to lie when he said the defendant was resisting him . . . . [A]ll of these people lying and the defendant is the one telling you the truth when he has the biggest bias, he has the biggest motive to lie to you."
B. The Failure to Object
Nwozuzu argues these remarks constitute prosecutorial misconduct. The Attorney General responds the claim is forfeited because defense counsel did not object. As a general rule, " ' "[a] defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion, and on the same ground, the defendant objected to the action and also requested that the jury be admonished to disregard the perceived impropriety." ' [Citations.] The defendant's failure to object will be excused if an objection would have been futile or if an admonition would not have cured the harm caused by the misconduct." (People v. Centeno (2014) 60 Cal.4th 659, 674.)
Here, assuming error, we cannot say an objection to the prosecutor's argument would have been futile or that any prejudice could not have been cured by admonition. The failure to object, therefore, resulted in forfeiture. However, Nwozuzu also argues the failure to object resulted in ineffective assistance of counsel. To forestall this argument, we address the merits of Nwozuzu's claim.
C. No Prosecutorial Misconduct
We are not persuaded the prosecutor engaged in misconduct. In People v. Dykes (2009) 46 Cal.4th 731, our Supreme Court considered a prosecutor's argument that " '[i]f you believe [defendant], Sergeant Chenault is lying, risking his career and everything it stands for, to somehow frame this man.' " (Id. at p. 774.) Our Supreme Court determined the remark constituted "fair comment on the evidence." (Ibid.)
Similarly here, there were significant discrepancies in the evidence such that the prosecutor's remarks constituted fair comment on the evidence. For example, Nwozuzu testified he was in the bedroom when he first saw the officers, but Deputy Coniglio said Nwozuzu was outside. Deputy Coniglio testified his dog located Nwozuzu hiding in a bedroom closet, but Nwozuzu denied hiding there. Nwozuzu testified the officers' use of force against him was unprovoked, but Deputy Coniglio testified Nwozuzu kicked him, causing Deputy Coniglio to fall to the ground, and Sergeant Welch testified Nwozuzu was preparing to strike Deputy Congilio when the sergeant kicked him. Based on this conflicting testimony, it was fair comment on the evidence for the prosecutor to argue that either Nwozuzu was lying or the officers were. (People v. Dykes, supra, 46 Cal.4th at p. 774.)
In arguing otherwise, Nwozuzu relies on federal authority holding it is misconduct for a prosecutor to make "statements to the effect that, if the defendant is innocent, government agents must be lying." (U.S. v. Richter (2d Cir. 1987) 826 F.2d 206, 209; U.S. v. Sanchez (9th Cir. 1999) 176 F.3d 1214, 1224.) But "[d]ecisions of the lower federal courts interpreting federal law, although persuasive, are not binding on state courts." (People v. Zapien (1993) 4 Cal.4th 929, 989.)
Moreover, the focus in both federal cases was on a different issue—whether it is misconduct to ask a defendant if prosecution witnesses offering testimony in conflict with that of the defendant are "lying." Prosecutorial cross-examination which compels a defendant to state that law enforcement officers lied in their testimony is improper because "[d]eterminations of credibility are for the jury, . . . not for witnesses." (U.S. v. Richter, supra, 826 F.2d at p. 208; U.S. v. Sanchez, supra, 176 F.3d at pp. 1219-1220.) However, unlike the federal courts, California recognizes no categorical rule that such questions are improper per se, instead requiring scrutiny of the questioning in context. (People v. Chatman (2006) 38 Cal.4th 344, 381-382.)
Here, during closing arguments, the jurors were admonished a number of times, and they were told that "argument is not evidence." In the jury instructions, the jurors were instructed that they alone must judge the credibility of the witnesses. They were told that "[p]eople sometimes honestly forget things or make mistakes about what they remember," and that "two people may witness the same event yet see or hear it differently." The jurors were instructed on the presumption of innocence and the People's burden of proof beyond a reasonable doubt. We cannot conclude " 'there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.' " (People v. Cole (2004) 33 Cal.4th 1158, 1202-1203.)
IV.
No Failure to Disclose Evidence of Police Misconduct
Before trial, Nwozuzu moved to compel discovery of personnel records pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). The court held an in camera hearing and determined there was nothing to disclose. Nwozuzu requests we review the proceedings to determine whether the court "abused its discretion in failing to disclose material responsive to defense counsel's request." The Attorney General does not object.
We review the court's ruling on a Pitchess motion for abuse of discretion. (People v. Hughes (2002) 27 Cal.4th 287, 330.) Here, the court conducted an in camera hearing at which a custodian of records was placed under oath and presented Deputy Coniglio's files. The court reviewed the documents and described them. Having reviewed the transcript of the hearing, we conclude the court acted appropriately in determining there was nothing to disclose. (People v. Mooc (2001) 26 Cal.4th 1216, 1228-1229.)
V.
No Cumulative Error
Nwozuzu's final argument is that even if there was insufficient prejudice from the individual errors he identifies, when considered cumulatively, they deprived him of his right to a fair trial. We disagree. "We have identified no errors. In the absence of error, there is nothing to cumulate." (People v. Duff (2014) 58 Cal.4th 527, 562.)
DISPOSITION
The judgment is affirmed.
/s/_________
Jones, P. J. We concur: /s/_________
Needham, J. /s/_________
Bruiniers, J.