Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. F14007
Bamattre-Manoukian, ACTING P.J.
I. INTRODUCTION
Defendant Luis Antonio Aguilar was convicted after jury trial of second degree murder (Pen. Code, § 187) and sentenced to 15 years to life in prison. At the time of the killing, both defendant and the victim, Norman Eldridge, were homeless. Defendant testified at trial that he killed Eldridge but he did not “mean to.” He had been drinking all day and was “feeling the effect of the alcohol.” He admitted hitting Eldridge with a chair multiple times, kicking him, and stepping on his head. He testified that he felt “[f]ear, anger, worry about what might happen if [he] didn’t defend [himself]” against Eldridge. Defendant killed Eldridge near Eldridge’s campsite.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends that the trial court erred by admitting the prior testimony of a witness. Defendant also argues that the court erroneously excluded expert testimony on homeless culture, which defendant believes would have shown that he was reasonably and/or actually in fear of the victim. Lastly, defendant contends that the prosecutor committed misconduct during argument to the jury.
For reasons that we will explain, we determine that defendant’s contentions are without merit. Therefore, after correcting a clerical error, we will affirm the judgment as modified.
Although the jury found defendant guilty of second degree murder, the abstract of judgment indicates that he was convicted of first degree murder. We will order the abstract amended to reflect the jury’s verdict of second degree murder.
II. FACTUAL AND PROCEDURAL BACKGROUND
On December 26, 2006, defendant was charged by information with the murder of Norman Lee Eldridge (§ 187, subd. (a)).
Pretrial Motions Regarding Preliminary Hearing Testimony and Proposed Defense Expert on Homeless Culture
Prior to trial, the prosecution filed a motion seeking to introduce the preliminary hearing testimony of Martin Villegas Sanchez (Villegas) because his whereabouts were unknown. On the same day, defendant filed a motion seeking to exclude the prior testimony of any prosecution witness. At a hearing on the motions, the prosecution asserted that another witness, Fernando Ortiz Santiago (Ortiz), was also unavailable. The trial court granted the prosecution’s motion to present preliminary hearing testimony, subject to a “prove-up as to the unavailability” of the witnesses, and denied defendant’s motion. Later, after hearing testimony about the prosecution’s efforts to secure testimony by the witnesses, the trial court ruled that both Villegas and Ortiz were “unavailable” as witnesses and granted the prosecution’s motion to present their preliminary hearing testimony at trial.
On appeal, defendant does not challenge the trial court’s ruling regarding Ortiz’s unavailability for trial and the admission of his preliminary hearing testimony.
Prior to trial, the prosecution also sought to exclude testimony by a defense expert concerning homeless culture. The trial court heard argument from counsel on the issue but did not make a ruling before trial commenced.
The Prosecution’s Case
The jury heard testimony beginning on November 2, 2007. Watsonville Police Officer Brian Mills Ridgway testified that he received a call around 7:00 a.m. on September 13, 2006, about a man bleeding from the head. Officer Ridgway found a dead body near the railroad tracks. There was a pool of blood around the victim’s head and puddles of blood scattered around the area. A shopping cart was near the body.
Watsonville Police Detective Angel Calderon assisted in the investigation. He testified that the victim was Norman Eldridge. Detective Calderon observed that Eldridge’s pants pockets were turned out. A metal chair at the scene had blood splattered on it and one leg bent. There was also a large piece of cardboard with a small blood splatter on it. The cardboard was the type “used for bedding for homeless transients in that area or for covering.” Eldridge’s backpack and wallet were also found at the scene. The backpack contained clothing and paperwork and did not appear to have been disturbed in any way. The wallet and Eldridge’s identification card in the wallet were bloody. There was no blood on Eldridge’s hands. Pieces of candy were located near Eldridge’s body. There was also an empty bag of tobacco and some cigarettes that “looked like they were hand rolled.” Detective Calderon testified that homeless people often “roll their own cigarettes because it’s cheaper[.]” A knife and golf club were found several feet away from Eldridge.
Ortiz was interviewed by police on September 13, 2006. Portions of Ortiz’s testimony from defendant’s preliminary hearing were read to the jury after the trial court determined that Ortiz was unavailable to testify at trial. Ortiz stated that he knew Eldridge and defendant, who he called “ ‘El Grande.’ ” One night, Ortiz was drinking beer with his friends, Martin, Moreno, and Luis, when defendant showed up and said, “ ‘I killed El Gabacho.’ ” Ortiz testified that “ ‘[g]abacho means . . . white guy.’ ” Later that night, Ortiz saw Eldridge lying by the railroad tracks.
Jose Luis Hernandez testified that he remembered talking to the police, but he did not remember talking about “Grande” or “ ‘Gabacho.’ ” He testified that he was not a “snitch” and that when he talked to the police about the events of a certain night, he was drunk that night.
Watsonville Police Detective Monica Herrera Gonzalez (Herrera) testified that when she interviewed Hernandez, he did not present any obvious signs of intoxication. She testified that Hernandez reported he had been drinking in the evening with Martin, Moreno, and Fernando in a remote area “referred to as the tree.” According to Detective Herrera, Hernandez stated that “El Grande showed up and said, mate al Gabacho,” which means “ ‘I killed the white guy.’ ” Hernandez also stated that defendant had said he hit the victim with a chair. Detective Herrera acknowledged writing in her report that Hernandez told her that he could not remember defendant’s exact words because he had been drinking.
Watsonville Police Officer Juan Trujillo and a detective interviewed Villegas. Portions of Villegas’s preliminary hearing testimony were read to the jury after the trial court determined that Villegas was unavailable to testify at trial.
Villegas stated that one night, he was drinking with friends in a gathering spot near a tree by the railroad tracks. He heard shouts and, as he moved towards the shouts, he encountered defendant who he knew as “ ‘Grande.’ ” Defendant said that he had killed Eldridge. Defendant made himself a cigarette and offered one to Villegas, which Villegas declined. When Villegas saw Eldridge’s body approximately one or two hours later, it was “[c]lose” to where Eldridge usually slept. Villegas testified that he and others did not call for help because “nobody wanted to get involved.” Villegas talked to the police approximately 24 hours after he saw Eldridge’s body. Villegas testified that defendant had indicated he killed Eldridge “because he didn’t like him” and used words to the effect that “he got him with the chair” or killed him with the chair.
After the jury heard portions of Villegas’s preliminary hearing testimony, Officer Trujillo testified about the police interview of Villegas. Officer Trujillo testified that in the interview, Villegas stated that “somebody killed the wino.” Approximately ten minutes into the interview, and after Villegas had disclosed that defendant admitted killing Eldridge, Villegas became emotional and began to cry. Villegas told the police that when he first saw defendant, defendant was shirtless and carrying a plastic bag with his shirt inside of it. Defendant offered Villegas a hand-rolled cigarette, but Villegas declined. Defendant then lit one of the cigarettes. Villegas told the police that defendant “was shouting and bragging,” and he heard defendant say, “I killed 40 Winer.” Villegas also reported that defendant kept saying over and over, “I killed him, I got him with the chair.” Villegas thought defendant was joking and did not believe him. Villegas told the police that defendant said he killed Eldridge because he “didn’t like him” or “hated the guy.” Villegas also told the police that defendant never said anything about being scared, self-defense, or that Eldridge had brought it upon himself.
Margaret Aceves, a criminalist supervisor at the state DNA laboratory, testified that based on an analysis of portions of defendant’s jeans, swabs from defendant’s boot, and “reference samples” from defendant and Eldridge, there was “strong evidence” that the blood on defendant’s jeans and boot was from Eldridge.
Richard Thomas Mason, M.D., a forensic pathologist, performed an autopsy on Eldridge. Dr. Mason concluded that Eldridge died from brain contusions due to multiple fractures to his face and skull, including to the base of the skull. The fractures were the result of someone hitting Eldridge in the head with a blunt instrument. Dr. Mason testified that the chair found at the scene was probably the weapon. He observed that the chair was made out of tubular steel, one leg was bent and had blood stains on it, and a fleck of paint was embedded in a wound over the bridge of Eldridge’s nose.
Dr. Mason testified about the extent of Eldridge’s injuries. Eldridge’s right eyeball was ruptured. There was also bruising of Eldridge’s eyelids “and sort of an imprint of a narrow bar-like instrument that struck across the eye sockets . . . .” His nose, cheekbones, and upper jaw were fractured “so the whole middle of the face was mobile.” He described Eldridge’s face at autopsy as having “collapsed” or being “[p]ushed in,” similar to individuals who have been in a car accident and suffer a collision to the front of the face. He opined that for both cheekbones to have been broken, it was “more consistent” with someone’s foot stomping on Eldridge’s face. He also found fractures on either side of Eldridge’s skull, above the ear canal. He explained that those fractures were more likely to have been caused by “[a] foot that slammed down into the side of the head, the head lying sideways on a firm surface,” such as the ground. Bone intruded into Eldridge’s cranial cavity, and he suffered hemorrhages of the midbrain that expanded down into the brainstem. As to the latter diagnosis, Dr. Mason explained that it was indicative of a large amount of force with a lethal consequence. Eldridge also had an injury over his left upper chest, which was consistent with a downward blow, a side kick, or “something in that nature.” There was some bruising to his left upper arm and a small bruise on the left hip.
Regarding the outside of the head alone, there were seven wound sites. When asked which blow was the fatal one, Dr. Mason testified that the “smash across the forehead involving the eye sockets, actually rupturing an eye hole and penetrating the skull and possibly bending that chair leg, . . . has the potential to be a lethal wound.” He also stated that any of the other blows to the head, alone or in combination, was potentially forceful enough to be fatal. In addition, Dr. Mason stated that the aspiration of blood was “another factor,” and the blow to the head with the chair or the stomping of the head from the side could cause blood to flow into air passages.
Dr. Mason did not find anything on Eldridge’s hands that indicated he had thrown a punch at someone or had put up a struggle. He did find two abrasions on the dorsum of one hand. Given the injuries that he saw on Eldridge, and assuming the injuries were inflicted quickly, he estimated Eldridge survived “[m]aybe 5 minutes” longer.
Eldridge was also diagnosed with fatty metamorphosis of the liver. One of the major causes of this condition is chronic alcohol ingestion. The toxicology scan of Eldridge showed a .201 level of alcohol intoxication.
The Defense Case
Following the prosecution’s case and outside the presence of the jury, the trial court held an Evidence Code section 402 hearing regarding defendant’s proposed expert on homeless culture. The trial court ruled that the testimony would be excluded because it was not admissible and would not assist the jury.
Defendant testified that he killed Eldridge, but he did not “mean to.”
The night before the killing, he slept on the side of the river in Watsonville. In the morning, he drank beer with friends and continued drinking beer and liquor all day along the river. When it started getting dark, he left the river and went to the railroad tracks to look for friends and “[t]o keep on drinking.” By this time he was “feeling the effects of the alcohol.”
Defendant saw Eldridge along the railroad tracks. He had seen Eldridge along the tracks several times before, but he had never previously had a conversation with him. Prior to seeing Eldridge on this occasion, he had not thought about Eldridge that day, was not looking for him, and was not carrying any weapons.
Defendant saw Eldridge twice that evening. During the first occasion, they did not say anything to each other. Defendant walked “a little bit further,” then turned around to head back towards the river because his friends were not in the place where he had expected them.
The second time that defendant saw Eldridge, Eldridge said in a “strong” and “loud” voice: “ ‘Get out of here, motherfucker. I don’t like you walking over here.’ ” Defendant replied in a loud voice, “ ‘Why? I don’t want to have any trouble.’ ” Defendant was approximately 25 to 30 feet from Eldridge. Eldridge started walking towards defendant, repeating “the same thing,” two or three times. Defendant remained standing in place. Eldridge’s hands were “[h]anging down” when he first started walking towards defendant. As he “came closer,” Eldridge “lifted up his hands like putting himself on alert,” so that his hands were in front of his chest and under his chin. It was nighttime and dark in the area where they were located. Defendant “wasn’t able to see” whether Eldridge’s hands were open or closed, or whether he had anything in his hands.
When Eldridge was about three feet away, defendant picked up a chair that was within arm’s reach and hit Eldridge in the head. When asked why he hit Eldridge, defendant testified: “Because, if he was coming towards me and he’s the person who never talks to me, surely he wanted to fight with me because of what he said to me.” Defendant stated that after he hit Eldridge the first time, Eldridge “attempted to come closer” to him. Defendant hit him again and Eldridge fell to his knees. Eldridge “was going to stand up again” so defendant hit him again and Eldridge fell to the ground. Defendant admitted hitting Eldridge a total of six times with the chair. When asked what he was feeling when he was hitting Eldridge, defendant testified: “Fear, anger, worry about what might happen if I didn’t defend myself.” As to what Eldridge had done to make him angry, defendant stated that Eldridge had “yelled” at him.
Defendant testified that he then kicked Eldridge one or two times. He also stepped hard onto Eldridge’s head. He testified that he did not know why he stepped on Eldridge’s head, and he did not remember how many times he did it.
Eldridge never hit defendant during the incident. Defendant testified that he did not plan on or think about killing Eldridge. He also testified that he did not know what he was feeling at the time. When asked whether he was afraid of Eldridge, defendant stated that he “was that day.” Upon being asked whether he was afraid of Eldridge when Eldridge was on the ground, defendant testified: “I don’t know whether I was feeling fear or if I felt something else.” When asked what was going through his head when he was hitting Eldridge, defendant answered: “I don’t think anything.” Defendant denied “ever decid[ing] that [he] wanted to kill” Eldridge, and he denied “ever hop[ing] that he would die from the injuries . . . .”
After stepping on Eldridge, defendant looked at him “for a moment” and then grabbed cigarettes that were in Eldridge’s pocket. He also took some candy. Defendant testified that he did not know why he grabbed the cigarettes, and he denied killing Eldridge for cigarettes. He did not remember taking a wallet out of Eldridge’s pocket. He testified that he did not try to hide Eldridge’s body, and he did not try to get blood off his own pants or shoes.
Defendant stated that as he walked towards the freeway, he encountered a friend known as “El Moreno.” Defendant told him, “ ‘I killed the Gabacho.’ ” Defendant was not happy or proud. Defendant was told by his friend that he “had to leave” because he would be “put in jail.” Defendant testified that he did not try to leave and stayed by the river. Defendant did not remember having talked to Ortiz or Villegas that night. He also did not know “when it was that [he] lost his shirt.”
Defendant admitted that after he was arrested, he did not immediately tell the police what he had done to Eldridge. He initially told the police “ ‘[n]othing happened.’ ” He also acknowledged telling the police: “ ‘I would have had options to pull back when [Eldridge] was coming towards me.’ ” He testified that he did not know why he “didn’t do it.” He admitted telling the police: “ ‘I don’t know. The anger or the fear, whatever you call it, got the better of me[.]’ ”
After defendant testified, defense counsel renewed his request to introduce expert testimony regarding homeless culture. After hearing argument from counsel, the trial court denied the request.
Watsonville Police Officer Jorge Zamora and Detective Herrera interviewed defendant after he was arrested. Officer Zamora testified that defendant stated he was angry because Eldridge was coming towards him and Eldridge was going to “ ‘pick a fight.’ ” According to Officer Zamora, defendant consistently stated during the interview that he was angry, scared, and drunk. Defendant also indicated that he did not want to kill Eldridge. Defendant reported to Officer Zamora that when Eldridge was walking towards him, he told Eldridge in Spanish to stop. Eldridge stopped, defendant grabbed the metal chair, and, when he saw that Eldridge was continuing towards him, he hit Eldridge with the chair.
At the close of evidence, defense counsel made a motion for acquittal as to first degree murder. The trial court denied the motion.
Jury Instructions and Argument to the Jury
The jury was instructed regarding first degree murder, second degree murder, voluntary manslaughter, and self-defense. Regarding voluntary manslaughter, the jury was instructed as to a defendant who acts “because of a sudden quarrel or in the heat of passion” or “in imperfect self-defense.”
The prosecutor argued to the jury that defendant had committed first degree murder but that the “floor in this case” was second degree murder, not manslaughter or self-defense. Defense counsel argued to the jury: “A sudden quarrel, heat of passion. Remember those words. That’s what this case is about.” Defense counsel argued that there was no evidence of premeditation, deliberation, or malice aforethought. Defense counsel also made references to self-defense and imperfect self-defense.
Jury Verdict and Sentencing
The jury deliberated on November 8, 9, and 13, 2007. During the first day of deliberations, the jury requested read back of testimony by defendant and by Officer Zamora regarding defendant telling the police that “ ‘he knew he could walk away, but fear or anger got the better of him.’ ”
On the final day of its deliberations, the jury sent two notes to the trial court, one in the morning and one in the afternoon. The first note indicated that all jurors agreed that defendant was guilty of murder, but they could not all agree as to which degree of murder. The jury requested “clarification” regarding the following: “ ‘beyond a reasonable doubt’ ” and “ ‘[t]he defendant acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill.’ ”
In the second note, the jury again reported that it had agreed as to murder, but it could not agree as to which degree. Following a discussion with counsel and queries to the foreperson, the trial court instructed the jury that if it “ha[s] unanimously agreed that the defendant is guilty of murder, but cannot unanimously agree that it is a first-degree murder,” then it “may return a verdict of second-degree murder.” The court further stated to the jury that this was “not to foreclose” it “from also continuing to consider voluntary manslaughter or not guilty verdicts.” Shortly thereafter, the jury returned with a verdict of guilt as to second degree murder.
On January 9, 2008, the trial court sentenced defendant to 15 years to life. Defendant was awarded 483 days of custody credit and ordered to pay a restitution fine of $3,000 (§ 1202.4, subd. (b)) and a suspended parole revocation restitution fine of $3,000 (§ 1202.45).
Defendant filed a timely notice of appeal.
III. DISCUSSION
Admission of Preliminary Hearing Testimony
The prosecution was allowed to introduce at trial Villegas’s preliminary hearing testimony after the court ruled that Villegas was “unavailable” as a witness. Through Villegas’s preliminary hearing testimony, the jury learned, among other things, that defendant had indicated he killed Eldridge because he did not like him. The jury also heard the statements Villegas made to the police regarding his encounter with defendant through the testimony of Officer Trujillo.
Defendant contends the trial court erred by finding Villegas unavailable because the prosecution did not engage in “due diligence” in trying to locate Villegas. He argues that the introduction of the testimony violated his constitutional right of confrontation and the error was harmful.
Background
On October 25, 2007, the prosecution filed a pretrial motion seeking to introduce the preliminary hearing testimony of Villegas because his “current whereabouts [were] unknown.” On the same day, defendant filed a motion seeking to exclude prior testimony by any prosecution witness unless the prosecution established that a good faith effort had been made to compel the witness’s attendance. On October 30, 2007, the trial court granted the prosecution’s motion, subject to a “prove-up as to the unavailability” of the witness, and denied defendant’s motion.
The motion was dated July 27, 2007.
On November 1, 2007, outside the jury’s presence and before opening statements, the trial court held a hearing regarding the prosecution’s efforts to secure Villegas’s testimony. At the hearing, Henry Montes, a lead investigator for the prosecutor’s office, first testified about his efforts to locate Villegas for the preliminary hearing on December 19, 2006. Villegas was in the country illegally and had a criminal record. Montes learned from the Watsonville Police Department that Villegas had a campsite near a freeway in Watsonville. Before sunrise, and a day or two before the preliminary hearing, Montes and several Watsonville police officers went to the campsite and told Villegas about “the upcoming court date.” Villegas was informed that Montes would return to pick him up at 4:30 a.m. on the day of preliminary hearing and bring him to court. During this contact, Montes learned of the identity of Villegas’s employer, and thus Villegas “knew that [Montes] knew where he worked.”
Montes subsequently transported Villegas to and from the preliminary hearing. During their return to Watsonville after the preliminary hearing, Villegas indicated to Montes that he “didn’t want to get involved and he really didn’t want to have to testify. He didn’t like the whole procedure.” Montes gave his number to Villegas and told Villegas that the “jury trial would be coming up months down the road” and to “keep in contact” if he moved. Villegas never contacted Montes, and Montes “knew relatively quickly that [Villegas] wouldn’t follow [his] instructions to keep in touch.”
After the preliminary hearing, the case had “come up for trial” on more than one occasion, and Montes testified that he had been asked by the prosecutor to “be prepared to find” Villegas and another witness.
Approximately two weeks before trial actually commenced, Montes attempted to locate Villegas. He contacted police officers to find out whether they had seen Villegas “around and so forth.” Montes testified that he “use[d his] contacts in Watsonville,” but “[n]o one [he] . . . talked to had seen” Villegas.
A few days before opening statements in the trial, and “very early in the morning,” Montes and a police officer who “was very familiar” with Villegas went to the campsite where Villegas was last known to be, but the campsite no longer existed. In addition, the brush had been “cleared out” for approximately “a quarter mile long.” Montes testified that Villegas’s prior campsite had been “cleaned up” and it appeared Villegas had been “driven out of there.”
During the next two days, Montes went to a Home Depot parking lot because he had been told that Villegas “frequents . . . sometimes” that parking lot “where laborers hang out.” Montes went to the parking lot “a couple of times in the morning and during lunch hour” as recently as the day before trial, but he did not find Villegas. Although there were day laborers present, Montes did not speak to them or show them a picture of Villegas. Montes explained that in that area, “people don’t really like to talk to cops or law enforcement” and “it’s not typical for someone to say, oh, I know that guy. You can find him over there.” He testified that based on his experience, if Villegas’s friends and associates at the Home Depot parking lot knew he was looking for Villegas, they were “more likely” to tell Villegas that someone was looking for him, rather than tell Montes where to find him.
Montes checked “rap sheets” for “the county jail in Santa Cruz.” He did not “check neighboring jurisdictions to see if [Villegas] was in custody there or arrested there.” Prior to two weeks before trial, he did not determine whether Villegas was in custody with an immigration hold.
In acknowledging that he waited until two weeks before trial to find Villegas, Montes explained that he knew Villegas “was problematic at the time [he] secured [Villegas’s] attendance for the preliminary examination” and he did not want Villegas to “find a way to avoid . . . the jury trial.” He was “afraid” that if he found Villegas “too early,” he would “lose him again.” Montes indicated that it had been his experience that if subpoenas are served too soon, “these guys are going to rabbit if they know we’re looking for them.” In addition, based on his experience in Santa Cruz County, there was no other place he “could look that [he] didn’t look where [he] had a realistic chance of finding” Villegas.
Defense counsel asked Montes whether he was saying that Watsonville police had “no idea where the homeless encampments are in Watsonville now.” Montes replied: “Certain people have certain campsites that they like and that they will frequent. Mr. Villegas is known for being at a particular campsite. Since that campsite, they haven’t learned of another one where he would be hanging out.”
After Montes testified, defense counsel argued that the prosecution had failed to make a good faith effort to find Villegas. Defense counsel contended that the prosecution knew even prior to the preliminary hearing that it would be “difficult” to get Villegas to testify, yet the investigator delayed in starting his search for Villegas. Defense counsel argued that “finding him too soon is better than never finding him at all.” He also contended that looking for Villegas at “a campsite that’s been long since abandoned” and driving by Home Depot twice were insufficient efforts to obtain the attendance of Villegas.
The prosecutor argued that the case had been scheduled for trial in May, but it was continued several times, and “the idea that [the prosecution] can keep track of [Villegas and other witnesses] on a day-by-day, minute-by-minute basis . . . strain[ed] credulity.” The prosecutor contended that he “got lucky” with some of the witnesses for the preliminary hearing and for trial, because the witnesses were found in jail. As for Villegas, the prosecutor asserted that Montes had been in touch with his Watsonville contacts but had been unable to find Villegas. Montes also personally went to Villegas’s campsite, but he was no longer there and the prosecution had “no idea where he hangs out.” The prosecutor argued that he did not think they were “supposed to knock on every door and look under every bush in Watsonville.” Because they heard a “rumor” that Villegas might be at the Home Depot parking lot, the prosecutor explained that the investigator went there twice. As to whether showing Villegas’s picture to individuals at the parking lot would have made a difference, the prosecutor stated that no one really knows but the “trained” and “experienced inspector’s judgment is worthwhile and instructive.” The prosecutor stated that they had “looked every place [they knew] to look for” Villegas. As for starting the search earlier, the prosecutor indicated that he had “been perhaps naïve in asking” Montes to start looking early. The response by Montes, as paraphrased by the prosecutor, was, “no, don’t look early. . . . I’ll get them the subpoena, I’ll be right on top of them. Don’t give them a chance to think about it.” The prosecutor argued that this method “worked the last time around.” They found Villegas and got him out of bed at 4:00 in the morning. They showed him that they knew where he lived and where he worked, and he had to cooperate. The prosecutor asserted that they had “done everything” that they could “be expected to do” and that he “would like nothing better than to put” Villegas on at trial.
Defense counsel responded that “it’s hard to imagine that if we go too early, it will reduce the likelihood of getting him here.” He stated: “It might be the hide-and-seek game where . . . if you don’t look, you’re not going to find him.”
After hearing argument from counsel, the trial court ruled that Villegas was “unavailable” as a witness and granted the prosecution’s motion to present his preliminary hearing testimony at trial.
Analysis
“ ‘A defendant has a constitutional right to confront witnesses, but this right is not absolute. If a witness is unavailable at trial and has testified at a previous judicial proceeding against the same defendant and was subject to cross-examination by that defendant, the previous testimony may be admitted at trial. [Citations.] The constitutional right to confront witnesses mandates that, before a witness can be found unavailable, the prosecution must “have made a good-faith effort to obtain his presence at trial.” ’ [Citation.] California law and federal constitutional requirements are the same in this regard. [Citation.] Moreover, for the prior testimony to be admissible, the defendant must have had the opportunity to cross-examine the witness at that hearing with an interest and motive similar to that of the hearing at which the testimony is admitted. [Citations.]” (People v. Valencia (2008) 43 Cal.4th 268, 291-292 (Valencia); see also Evid. Code, § 240, subd. (a)(5) [witness is unavailable if the witness is absent from the hearing and the proponent of the witness’s statement “has exercised reasonable diligence but has been unable to procure his or her attendance by the court’s process”].)
“ ‘The proponent of the evidence has the burden of showing by competent evidence that the witness is unavailable.’ [Citation.]” (Valencia, supra, 43 Cal.4th at p. 292.) This requires a showing of “due diligence” in trying to find the witness. (Ibid.) “The term ‘due diligence’ ‘ “connotes persevering application, untiring efforts in good earnest, efforts of a substantial character.” ’ [Citation.] ‘Relevant considerations include “ ‘whether the search was timely begun’ ” [citation], the importance of the witness’s testimony [citation], and whether leads were competently explored [citation].’ [Citation.]” (Ibid.) “When, as here, the relevant facts are undisputed, we review this determination independently. [Citation.]” (Ibid.)
On appeal, defendant argues that despite being aware that Villegas “would be uncooperative and would seek to avoid testifying,” the prosecution did not begin efforts to locate Villegas until two weeks before trial. Further, those efforts were limited to Montes checking with his Watsonville contacts, visiting the campsite that Villegas, “a transient, had occupied over ten months before,” and making two brief visits to the Home Depot parking lot without investigating whether anyone at the lot had information about Villegas’s whereabouts.
We agree with the trial court’s implicit conclusion that the prosecution exercised due diligence in attempting to locate Villegas for trial. Villegas was known to be homeless. Montes utilized his contacts in Watsonville in attempting to locate him. Those contacts had helped him successfully find Villegas for the preliminary hearing. After learning that those contacts had not seen Villegas, Montes then went to Villegas’s last known campsite. Unable to locate Villegas at that Watsonville site, Montes attempted to find him amongst the day laborers at a Home Depot parking lot where Villegas had reportedly visited. Montes went to the parking lot on different days and at different times, but he did not see Villegas. Based on his experience, letting the other day laborers know that he was looking for Villegas would have hurt rather than helped his search for Villegas. Montes also ran “rap sheets” for “the county jail in Santa Cruz.” It appears from Montes’s testimony that he used reasonable efforts to find Villegas, as he utilized the most reasonable sources for information and searched the most likely locations for Villegas. To the extent defendant suggests that other steps should have been taken by the prosecution, the suggestions “do ‘not change our conclusion that the prosecution exercised reasonable diligence. “That additional efforts might have been made or other lines of inquiry pursued does not affect this conclusion. [Citation.] It is enough that the People used reasonable efforts to locate the witness.” [Citation.]’ ” (Valencia, supra, 43 Cal.4th at p. 293.)
As for the argument that the prosecution should have begun search efforts earlier, it is unknown whether those efforts would have led to the discovery of Villegas or otherwise ensured his presence at trial. Although Villegas expressed a reluctance to testify after the preliminary hearing, the location of his campsite was known by local authorities and the prosecution knew that Villegas had an employer. The trial was continued several times and did not actually commence until more than ten months after the preliminary hearing. The California Supreme Court has observed: “[W]e could not properly impose upon the People an obligation to keep ‘periodic tabs’ on every material witness in a criminal case, for the administrative burdens of doing so would be prohibitive. Moreover, it is unclear what effective and reasonable controls the People could impose upon a witness who plans to leave the state, or simply ‘disappear,’ long before a trial date is set.” (People v. Hovey (1988) 44 Cal.3d 543, 564; but see Hovey v. Ayers (9th Cir. 2006) 458 F.3d 892 .) In addition, in this case, Montes indicated that his experience had led him to believe that serving Villegas with a subpoena too soon would only increase the likelihood that Villegas would not appear for trial. (See People v. Avila (2005) 131 Cal.App.4th 163, 170 [if the prosecution “feared she might be uncooperative and refuse to appear, then waiting” to contact the witness “until the morning the trial began arguably had merit”].)
Further, although Villegas’s testimony provided the only evidence that defendant disliked Eldridge, there was other compelling evidence supporting the prosecution’s theory of first or second degree murder. Regarding motive, the prosecutor posited several theories as to why defendant might have killed Eldridge besides hate. For example, defendant might have been trying to rob Eldridge, given that he took several items from Eldridge’s pockets after killing him and there was blood on Eldridge’s identification card in his wallet. The prosecutor also suggested that defendant might have been afraid he “went too far and he couldn’t leave” Eldridge alive to testify against him. As for other evidence compelling a finding of murder, rather than voluntary manslaughter or self-defense, there was evidence that Eldridge had directed defendant to leave but did not make any express threat of harm to defendant. Further, although defendant claimed to be in fear of Eldridge, he never articulated a belief that Eldridge was going to kill him or cause great bodily injury. Defendant also killed Eldridge in an extremely violent manner, with multiple deadly blows by chair and foot to Eldridge’s face and head. At the same time, there was no persuasive evidence suggesting that Eldridge had fought back, and defendant himself admitted that Eldridge never hit him during the incident.
In sum, based on the circumstances of this case, we believe that “ ‘leads were competently’ ” explored by Montes, “ ‘ “ ‘the search was timely begun,’ ” ’ ” there was other compelling evidence supporting the prosecution’s murder theory besides Villegas’s testimony, and the prosecution exercised sufficient due diligence to permit the admission of Villegas’s preliminary hearing testimony at trial. (Valencia, supra, 43 Cal.4th at p. 292.)
Admissibility of Expert Testimony Regarding Homeless Culture
Defendant contends the trial court erred in precluding expert testimony regarding homeless culture.
Background
Prior to trial, the prosecution filed a motion seeking to preclude defendant from claiming provocation, self-defense, or imperfect self-defense unless an offer of proof was made. The prosecution did not believe there was substantial evidence to support these theories. In the motion, the prosecution stated that defendant had given “notice of an intent to call an expert on ‘street life’ or ‘homeless culture’ ” and defendant was improperly attempting to lower the standard of provocation for a homeless person.
At a hearing on the motion, the prosecutor clarified that he was seeking, among other things, to exclude testimony from defendant’s expert. In response, defense counsel explained that he had a sociologist who was prepared to testify “about some realities of the homeless society” or culture. In particular, the expert would testify “that a homeless person is going to be more aggressive defending his campsite than he or she might be in other walks of life. That for a homeless person, they have no authorities to go to to protect themselves. They have to stand up for themselves and their campsite. Otherwise, they’re going to be victimized constantly, and then they’ll lose it.” Defense counsel indicated that the evidence would show that defendant “stumble[d] across” the victim’s homeless encampment and the victim then approached defendant in an aggressive manner. Defense counsel stated that the expert would testify that “if you find yourself in someone’s camp unannounced, uninvited, you invite and/or expect a confrontation.” The prosecutor argued, that defense counsel was attempting to introduce a standard for “an objectively reasonable homeless person” that was different than the “objective and reasonable person” standard “in the manslaughter instruction . . . .” Defense counsel responded that a different standard was not being raised, rather the expert would explain to the jury “the realities of the life of a homeless person so they can view it from the reasonable person’s standards.” The court did not make a ruling on the issue before trial commenced.
Following the prosecution’s case and before the defense presented any evidence, the trial court held an Evidence Code section 402 hearing regarding defendant’s proposed expert witness on homeless culture. William Darcy McCarthy testified that he has a Ph.D. in sociology from the University of Toronto, and he teaches at the University of California, Davis. Regarding his experience and training concerning homelessness, Dr. McCarthy did a doctoral dissertation on crime amongst homeless adolescents in Toronto. He and another individual later received funding to conduct a second study in 1992 on homeless youth, young adults, and crime in Toronto and Vancouver, and they wrote a book regarding the study. He has written approximately 20 papers on adolescents and crime, and he has written two “encyclopedia pieces” on homeless adults and crime. He also keeps apprised of other research in the field of homelessness. Aside from research on homelessness, he has published papers about homicide, and he is involved in a study of homicides in four cities in Canada and the United States from 1900 to 1999.
Dr. McCarthy testified that there is a “good body of knowledge now of the homeless population in the United States in the post-1980 period.” He explained that there are “some broad similarities” in the homeless populations. For example, the homeless populations tend to be disproportionately male and have a higher rate of substance abuse, mental illness, criminal history, and victimization for all types of crimes as compared to the “nonhomeless” population. Dr. McCarthy testified that two studies of Santa Cruz County similarly show that its homeless population has disproportionately higher levels of substance abuse problems, mental illness, and physical disabilities.
Based on his own research and research by others, Dr. McCarthy testified that “[s]everal things . . . stand out in terms of interactions amongst the homeless.” He explained that most interactions by the homeless occur in the public sphere and “[b]ecause of that, there’s a greater emphasis on sociability. [¶] However, because of the risks of vulnerability and victimization, there’s also a heightened concern with being a victim of another homeless person or a nonhomeless person who preys on the homeless. So you find very intense interactions, very frequent interactions relative to the . . . nonhomeless[] population, but, yet, much greater sense of vulnerability and a heightened sense of awareness of that potential. So there’s a greater suspicion, perhaps, amongst the homeless in terms of their interactions with others, although they are often interacting.”
Dr. McCarthy further testified that the homeless “will make claims about property that to the nonhomeless may seem odd . . . .” For example, they will “make claims around materials that are found,” and many “have shopping carts filled with a huge array of objects as indicators of their . . . status within the community, that they are not without possession.” He explained that researchers of the homeless in Austin, Texas found that “many homeless individuals experience . . . what they call trying to salvage the self, in which, because an individual is homeless and has few of those indicators of status left, . . . they try to salvage the self through these markers of claims about property and claims about territory, claims about status within the homeless community as sort of a known person or as a person not to be messed with. The issues about vulnerability increase the relevance of a reputation of someone who is not to be messed with within that community.” Dr. McCarthy testified that the research suggests that the homeless “attach levels of importance to things we might consider minor, either . . . things or places in their homeless milieu . . . .”
Regarding his own research on violent victimization amongst the homeless, Dr. McCarthy testified that when individuals are asked how the violence “came about,” they often “talk about conflicts arising out of issues about space, which . . . we would see as public spaces, but in their definitions are private spaces. They claim that they have tenure there because they have been there for four nights, for example. [¶] We find in our research that individuals are able to form . . . what are often called street families are able to reduce their victimization because they can make claims to territory and property that . . . are more respected within the community because they have more people to protect that space and that property.”
Dr. McCarthy stated that in an Austin, Texas study conducted in the 1980’s, researchers found “that many of the homeless people they interviewed repeatedly made a reference to the importance of demonstrating to people that they don’t mess with you and you don’t mess with them, but if you mess with them, they’re going to mess you up, and so you need to establish that reputation to discourage individuals from creating conflict. [¶] . . . The homeless are like the unhomeless, in that conflict is something you prefer to avoid rather than to get involved in, and reputation is one of the key sources of discouraging that conflict.”
Dr. McCarthy testified that “the consequences of backing down from a confrontation might be different” for a homeless person than for a “nonhomeless person,” because of the “fewer sources of status” and “the importance of not seeming vulnerable.” He explained that “a nonhomeless person” has access to resources to protect themselves, such as going to the police, going home, or getting into a car and driving away. A homeless person does not have access to those resources and would be “much more vulnerable.”
Dr. McCarthy had not read any documents about defendant’s case, such as incident reports or summarized testimony. He also did not know any details about the confrontation between defendant and the victim, other than that they both had been drinking, a fight occurred, and one person was killed.
Following Dr. McCarthy’s testimony, the prosecutor argued that there was no factual foundation for it unless defendant testified, and the “goal” of the testimony was apparently “to set up a different standard for the reasonable homeless person.” Defense counsel responded the testimony was relevant because there was evidence that the case involved the “campsite” of Eldridge, the victim. Further, the information provided by Dr. McCarthy was “logical information” but it was “not intuitive” information “about the reaction of a homeless person . . . .” Defense counsel stated: “One, even though it’s not his land, he feels compelled to defend it; and, two, within the homeless community, more so than the rest of us, the consequences of failing to defend your piece of turf, defend your property can be catastrophic. You lose what little that you have.” Defense counsel contended that the jury must be told about “all the pressures” and “motivations that are acting on these persons” and the expert’s testimony would assist the jury in evaluating the “reasonable person.” The prosecutor disagreed, stating that there was no evidence that defendant killed Eldridge after a confrontation, as opposed to while Eldridge was asleep.
The trial court granted the prosecution’s “implicit” motion to exclude the testimony. The court explained that “as qualified as” Dr. McCarthy “may be,” he had not been given “a lot of data to deal with here,” and his testimony was “so broad, as it relates to behavioral issues between the generic homeless . . . that it’s not even expert testimony in this context.” The court stated that “it sounds like common sense as it relates to the breadth of his opinions here today.” The court indicated that the parties could argue “these types of things to the jury,” and they “wouldn’t need evidence to argue that somebody might be likely to defend their space or somebody who’s . . . been on the street is apprehensive of other people; that they employ a different set of social skills to try to get by.” The court did not believe that it “necessarily delves into the area of expert testimony.”
Second, the trial court expressed concern about Dr. McCarthy having “no information of any substance” about defendant or Eldridge, such as background social information about either of them, other than that they had been drinking, and “no information of any substance” about what took place, other than that the incident occurred near Eldridge’s “space” and a homicide ensued. The court concluded that the testimony would not be “of any assistance to the jury” and was inadmissible.
Defense counsel continued to argue to the trial court and asserted that “it is completely consistent with the research that Mr. Eldridge would violently resent somebody walking through his campsite.”
The trial court stated that there was no information as to whether defendant and the victim were strangers, or whether there had been prior animosity. The court explained: “The expert simply needs to have more information about this particular incident in order to employ the general body of knowledge that he has attained through his own research and the research of others. [¶] At this point, this is just common sense stuff. If . . . some drunk staggers into your homeless encampment, you’re alone, is there likely to be some type of a confrontation? Sure, you can argue that, but we don’t have any evidence of it, and . . . [it] doesn’t generate the need for expert testimony to speculate about what might have happened here . . . .” The court indicated that defense counsel could raise the issue again if other evidence was presented.
After defendant testified, defense counsel renewed his request to allow Dr. McCarthy to testify. Defense counsel argued that the testimony was relevant, and he could present Dr. McCarthy with a hypothetical regarding someone walking through a homeless person’s campsite. In response, the prosecutor contended that the proposed testimony was “well within common knowledge” and “diffuse and not helpful for this jury.” Defense counsel replied that he had a “valid hypothetical to give by [the prosecutor’s] questioning where he suggests that this was a fight over cigarettes.” Defense counsel believed the expert would say, “ ‘No. It’s believable that a homeless guy would defend his campsite.’ ”
The trial court ruled that Dr. McCarthy would not be allowed to testify and referred to its earlier comments about the proposed testimony. The court explained: “I do not think it’s a proper subject of expert testimony. It’s very broad and, to use [the prosecutor’s] word, diffuse, regardless of his expertise as a sociologist or researcher on the homeless. He’s just reciting, in my mind, common sense and I do not think it’s the proper subject for his expert testimony.”
Analysis
Defendant contends the trial court erred by excluding expert testimony about homeless society and culture. He argues that the “needs, dilemmas and concerns of the homeless, and the risks to which they are exposed, are unique to them and not part of the normal experience of the general population.” He asserts that jurors would have “no idea of the extremity of the violence to which a homeless person would be exposed if he or she were to venture near the campsite of another.” In order for the jury to evaluate his theories of self-defense or imperfect self-defense, defendant contends that expert testimony should have been permitted under Evidence Code section 801, and that the exclusion of the evidence deprived him of a meaningful opportunity to present a defense, thereby constituting violations of the right to due process and the right to compel witnesses.
“ ‘ “[A] trial court has wide discretion to admit or exclude expert testimony. . . . An appellate court may not interfere with the exercise of that discretion unless it is clearly abused.” ’ [Citation.]” (People v. Manriquez (1999) 72 Cal.App.4th 1486, 1492.) The trial court’s exercise of its discretion is governed by Evidence Code section 801, which limits expert testimony to that “[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” (Evid. Code, § 801, subd. (a).) Thus, “[e]xpert opinion is not admissible if it consists of inferences and conclusions which can be drawn as easily and intelligently by the trier of fact as by the witness. [Citation.]” (People v. Torres (1995) 33 Cal.App.4th 37, 45 (Torres).)
In this case, the trial court ruled that Dr. McCarthy’s proposed testimony was “common sense” and not the proper subject for expert testimony. In so ruling, the court did not abuse its discretion. A lay person could understand that a homeless person might be apprehensive of someone walking through the homeless person’s campsite and might engage in a confrontation, or even violence, towards the perceived trespasser. A lay person also could understand that if the person walking through the campsite is homeless too, that person might react quickly or violently if confronted by the campsite owner. Indeed, as defense counsel stated in argument to the jury: “Look at it from Mr. Eldridge’s perspective. [Defendant] was in his living room. This was his home. Would any of us stand up for ourselves if someone came walking into our living room? Darn right we would. But we have an option that Mr. Eldridge doesn’t have. I can dial 911. . . . These guys don’t have that. Their protection is themselves.”
We next consider whether defendant was deprived of a meaningful opportunity to present a defense. In making this determination, we first consider the pertinent legal principles that govern self-defense and imperfect self-defense.
“For killing to be in self-defense, the defendant must actually and reasonably believe in the need to defend. [Citation.] If the belief subjectively exists but is objectively unreasonable, there is ‘imperfect self-defense,’ i.e., ‘the defendant is deemed to have acted without malice and cannot be convicted of murder,’ but can be convicted of manslaughter. [Citation.]” (People v. Humphrey (1996) 13 Cal.4th 1073, 1082, fn. omitted (Humphrey).) For self-defense, “[a]lthough the belief in the need to defend must be objectively reasonable, a jury must consider what ‘would appear to be necessary to a reasonable person in a similar situation and with similar knowledge . . . .’ [Citation.] It judges reasonableness ‘from the point of view of a reasonable person in the position of defendant . . . .’ [Citation.] To do this, it must consider all the ‘ “ ‘facts and circumstances . . . in determining whether the defendant acted in a manner in which a reasonable man would act in protecting his own life or bodily safety.’ ” ’ [Citation.]” (Id. at pp. 1082-1083.) In other words, “ ‘a defendant is entitled to have a jury take into consideration all the elements in the case which might be expected to operate on his mind . . . .’ [Citation.]” (Id. at p. 1083.) With these legal principles in mind, we turn to the evidence and argument presented in this case.
The jury heard evidence indicating that both defendant and Eldridge were homeless and that Eldridge was killed near the location where he usually slept. Through various witnesses, including defendant, the jury also heard testimony regarding the events leading up to the killing, defendant’s state of mind before and during the killing, and his conduct after the killing. The jury thus had all of the relevant facts and circumstances that appeared to defendant in order to evaluate whether he actually or reasonably believed in the need to defend himself. Defense counsel also referred to homeless culture when speaking to the jury. In his opening statement, defense counsel told the jury that when defendant “stumbled across Mr. Eldridge’s campsite,” he had “[i]n a very real sense . . . walked into Mr. Eldridge’s home.” Later, in argument to the jury after the close of evidence, defense counsel stated that a homeless man cannot “back down” or “show weakness,” because otherwise he would be “the whipping boy” and none of his property would be safe. He further argued that homeless people cannot call the police when someone walks into their “home” and their “protection is themselves.” In view of these circumstances, we conclude that defendant was not deprived of a meaningful opportunity to present a defense.
We also do not find compelling defendant’s attempt to analogize the proposed expert testimony in this case to expert testimony regarding criminal street gangs. The subject matter of the culture and habits of criminal street gangs is sufficiently beyond the common experience of a lay person that expert opinion on this subject matter would assist the trier of fact. (See, e.g., People v. Gardeley (1996) 14 Cal.4th 605, 617.) In this case, as we have explained, Dr. McCarthy’s proposed, general testimony regarding a homeless person’s reaction to a perceived intruder, and the possible reasons for that reaction, consisted of “inferences and conclusions which can be drawn as easily and intelligently by the trier of fact as by the witness” (Torres, supra, 33 Cal.App.4th at p. 45.)
Lastly, defendant’s citation to United States v. Hearst (9th Cir. 1977) 563 F.2d 1331 (Hearst) is not helpful. Defendant states that in Hearst, “expert testimony was permitted in support of the defendant’s duress defense to robbery charges.” Defendant observes that the defendant in Hearst “called ‘three expert witnesses and . . . [built] her defense on their testimony regarding the effects of the captors’ coercion on her behavior and mental state.’ ” In Hearst, however, the admission of testimony by the defendant’s experts was not an issue before the Ninth Circuit Court of Appeals. Rather, the defendant was challenging the district court’s admission of expert testimony by the government. The Ninth Circuit Court of Appeals concluded that the expert testimony from the government’s witnesses was properly admitted because, among other things, the defendant had conceded that the expert testimony would be helpful to the jury. (Id. at p. 1351.) In contrast to Hearst, the prosecution in this case argued, and the trial court agreed, that the proposed expert testimony on homeless culture would not assist the trier of fact.
On the facts of this case, we conclude that the trial court did not abuse its discretion in excluding the proposed testimony of Dr. McCarthy and defendant was not denied the right to present a defense.
Prosecutor’s Statements During Argument to the Jury
Defendant contends that the prosecutor committed misconduct by arguing to the jury: “Most killings are second-degree murder. And then a smaller, even smaller than first degree, I submit, is when it’s manslaughter.” Defendant asserts that these remarks referred to evidence outside the record, thereby constituting prosecutorial misconduct under state law and violating his Sixth Amendment right to confront the witnesses against him. Defendant further argues that “it cannot be said beyond a reasonable doubt that the prosecutor’s improper argument did not contribute to the jury’s decision that the crime was murder, not manslaughter . . . .”
The Attorney General contends that “[t]he prosecutor’s argument was based on his interpretation of the law of homicide, not on statistics or facts outside the record.” The Attorney General also argues that “the instructions given to the jury made clear that it could not consider matters outside the record.” The Attorney General further contends that “it is not reasonably probable the jury would have believed [defendant’s] version of events if the prosecutor had not given his interpretation of the law of murder.”
Background
During argument to the jury, the prosecutor stated the following: “. . . What I want to talk to you now mostly is -- about is not the evidence but the law. And what I have put up and what you can see there is a medium- to small-sized block about first-degree murder, big block in the middle about second-degree murder, and a small block about manslaughter.
“And you heard and you will have before you the judge’s instruction on homicide. And there are technical, specific and challenging, challenging requirements for the People to prove first-degree murder -- willful, deliberate, premeditated. I am going to go on to discuss those.
“The court says, well, if you kill somebody and the prosecutor proves that you did so willfully, deliberately and premeditatively -- a tough burden to carry -- that’s a first-degree murder, and then it goes on to say, all other murders are second degree. So most murders, the big block, are second degree. An unjustifiable killing, an intentional killing, or you do something so dangerous, and you just don’t care if someone lives or dies, and they die, so much broader.
“Most killings are second-degree murder. And then a smaller, even smaller than first degree, I submit, is when it’s manslaughter. When basically -- I will go into it in more detail -- the jury concludes any reasonable person would have done the same thing. It basically suggests that the evidence tells you, in order for it to be manslaughter, the victim had it coming.
“Think about what the judge told you.
“First-degree murder you have to intend to kill. It is a cold, cold decision. You decide to kill somebody. There is no set amount of time. It can be as quick as it takes to pull a trigger, but it is essentially a cold-hearted decision to kill somebody.
“Second-degree murder you might intend to kill but not -- but without thinking about it to the same degree, or it’s a dangerous act, for instance, hitting someone over and over again in the head with a metal chair. You knew what you were doing, and you did it anyway.
“Before you can have a killing that’s manslaughter, any reasonable person would have acted the same way for it to be imperfect self-defense. I thought he had a knife.
In his reply brief on appeal, defendant observes that this is a misstatement of the law regarding imperfect self-defense. Imperfect self-defense may arise where the defendant has “an actual, though unreasonable, belief in the need for self-defense.” (People v. Rios (2000) 23 Cal.4th 450, 461; see also Humphrey, supra, 13 Cal.4th at p. 1082.) We observe that defendant’s trial counsel pointed out in his argument to the jury that this statement by the prosecutor was wrong. Defendant’s trial counsel told the jury that if any reasonable person would have done the same thing, it would constitute self-defense. He then directed the jury’s attention to the instruction regarding self-defense. In addition, he explained imperfect self-defense to the jury.
“And in this case you didn’t hear any of that.
“It was real clear that even on the stand he admitted, I couldn’t -- I didn’t see anything in his hands. Now, he also wanted to tell you, I couldn’t see his hands, but he wanted to tell you he could see the cigarette pack. Okay.
“Mr. Aguilar knew full well that this 52-year-old guy was not a threat to him.
“He never really says he thought there was a threat. He said, I thought he might want to fight me. Did he sound like he was scared of getting in a fight with Norman Eldridge, Junior? Do you want to fight? Okay. We will fight. I got a chair. I am 25. I am tougher than you are. He is not scared. There is no provocation. There is no self-defense.
“Although the burden for first-degree murder is challenging, I submit to you that due to the evidence from Dr. Mason the People have met that burden in this case. . . .” (Italics added.)
Analysis
As an initial matter, defendant admits that his trial counsel did not object during the prosecutor’s argument to the jury. Defendant contends that he may still raise the issue on appeal or, in the alternative, if it is “deemed forfeited,” his trial counsel rendered ineffective assistance by failing to object.
The failure to object to the prosecutor’s remarks during final argument generally waives the issue for appeal. (People v. Samayoa (1997) 15 Cal.4th 795, 841 (Samayoa); accord People v. Hill (1998) 17 Cal.4th 800, 820.) However, in this case, we will reach the merits of the issue.
“[P]rosecutors should not purport to rely on their outside experience or personal beliefs based on facts not in evidence when they argue to the jury.” (People v. Medina (1995) 11 Cal.4th 694, 758.) “If a prosecutor’s argument refers to extrajudicial statements not admitted at trial, the defendant may be denied his right under the Sixth Amendment to confrontation and cross-examination, thus requiring reversal of the judgment unless the court is satisfied beyond a reasonable doubt that the misconduct did not affect the verdict. [Citations.] Short of misconduct of that nature which infringes on a specific guaranty of the Bill of Rights, however, prosecutorial misconduct implicates the defendant’s federal constitutional rights only if it is so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. [Citation.]” (People v. Harris (1989) 47 Cal.3d 1047, 1083-1084; see also Samayoa, supra, 15 Cal.4th at p. 841.)
“Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ‘ “ ‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’ ” ’ [Citation.] . . . When the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.]” (Samayoa, supra, 15 Cal.4th at p. 841.) “ ‘[W]e “do not lightly infer” that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements. [Citation.]’ [Citation.]” (People v. Wilson (2005) 36 Cal.4th 309, 338.)
In this case, the Attorney General argues that the prosecutor’s comments reflected his interpretation of the law and was not based on statistics or facts outside the record. The Attorney General observes that the comments were made by the prosecutor while discussing the different legal standards for first degree murder, second degree murder, and manslaughter.
In view of the context in which the prosecutor’s statements were made, we believe it is highly unlikely that the jury interpreted the prosecutor’s comments as an invitation to find defendant guilty of one offense over another—for example, second degree murder rather than voluntary manslaughter—based on statistics, rather than based on the facts in evidence. Even if the jury construed the prosecutor’s remarks to mean that statistically a lesser percentage of killings are manslaughter as compared to first or second degree murder, the jury still had to determine whether the facts presented by the evidence in this case met the legal definition of one of those offenses. We observe that the trial court instructed the jury that it “exclusively” decides the facts “based only on the evidence that is presented”; it must follow the law as explained by the court; if it believed the attorneys’ comments regarding the law conflicted with the court’s instructions, it must follow the court’s instructions; it may not conduct any research or do any investigation; defendant is entitled to an acquittal unless the evidence received at trial proved he was guilty beyond a reasonable doubt; “[n]othing that the attorneys say is evidence”; and the attorney’s remarks during “opening statements and closing arguments” are not evidence.
We must presume that the jury followed the court’s instructions (People v. Boyette (2002) 29 Cal.4th 381, 436), and we are confident that it did so in this case. The jury’s requests for testimony to be read back and for clarification regarding the instruction on first degree murder show that the jury was conscious of its obligation to consider the evidence presented at trial, carefully considered that evidence, and relied on the court’s instructions concerning the elements of the offenses at issue.
Under these circumstances, even assuming the complained-of remarks constituted misconduct because they suggested statistical facts outside the record, we are satisfied that under any standard of error (see People v. Watson (1956) 46 Cal.2d 818, 836; Chapman v. California (1967) 386 U.S. 18, 24), the misconduct was harmless. In view of our conclusion that no prejudicial misconduct occurred, defendant accordingly fails to show prejudice from defense counsel’s failure to object. (People v. Price (1991) 1 Cal.4th 324, 440 [to prevail on claim of ineffective assistance of counsel, defendant must show, among other things, “that it is reasonably probable a more favorable determination would have resulted in the absence of counsel’s failings”].)
IV. DISPOSITION
The abstract of judgment is amended to state that defendant Luis Antonio Aguilar was convicted of second degree murder, rather than first degree murder. As so modified, the judgment is affirmed.
WE CONCUR: MIHARA, J. MCADAMS, J.