Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 03CF2415, Frank F. Fasel, Judge.
David M. McKinney, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey Koch and Gary W. Brozio, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, J.
One night, Jonathan Paul Michael Barber (defendant) was driving away from a party in a heavily intoxicated condition. He hit motorcycle rider Carla Olson, resulting in her death.
Defendant was convicted of second degree murder, in violation of Penal Code section 187, subdivision (a), gross vehicular manslaughter while intoxicated, in violation of Penal Code section 191.5, subdivision (a), driving under the influence of alcohol/drugs proximately causing bodily injury, in violation of Vehicle Code section 23153, subdivision (a), and hit and run with injury/death, in violation of Vehicle Code section 20001, subdivision (a). In addition, the jury found it to be true that defendant fled the scene of the crime, within the meaning of Vehicle Code section 20001, subdivision (c). Defendant was sentenced to a total prison term of 15 years to life.
Defendant raises various issues on appeal. He contends: (1) there was insufficient evidence to support the implied malice finding; (2) the court provided erroneous jury instructions on manslaughter and on unconsciousness; (3) the prosecutor engaged in misconduct; and (4) he received ineffective assistance of counsel. We reject his arguments and affirm.
I
FACTS
On the night of August 22, 2003, Carla Olson and her husband Wayne were riding their motorcycles, one ahead of the other, some 30 or 40 yards apart. Around 10:00 p.m., Wayne Olson was hit and thrown to the side. Defendant’s car hit Carla Olson’s motorcycle from behind. Her motorcycle was dragged beneath the car. Wayne Olson found his wife lying in the road, dead.
Two persons, each driving a separate car and approaching from the opposite direction as the Olsons, witnessed the accident. Both of the witnesses testified that the car that caused the accident was going very fast. One of them thought it must have been going more than 65 miles per hour.
Accident reconstructionist Officer Paul Wester reported to the scene. Carla Olson’s motorcycle was wedged underneath defendant’s car. It appeared that the car had dragged the motorcycle 850 feet from the point of initial impact. There were no skid marks made by the car either before or after impact. Consequently, it appeared that defendant never hit his brakes. The vehicles came to rest in a ditch at the side of the road. Due to the lack of skid marks, Wester could not determine how fast defendant’s car had been travelling.
A little after 11:00 p.m., one of the two witnesses saw a man down the road, stumbling, staggering and attempting to hitchhike away from the scene. She contacted the police when she saw him.
Officers located defendant about three miles away from his car. He smelled strongly of alcohol, his speech was slurred, his eyes were watery and red, and he was unsteady on his feet. He admitted to being the driver of a car of the type that had been involved in the accident, but he declined to submit to a field sobriety test. Defendant was arrested and taken to the police station, where his blood was drawn. At that time, he had a blood-alcohol level of.206 percent. It was estimated that his blood-alcohol level would have been.23 percent at the time of the accident. Defendant also tested positive for marijuana.
Defendant was taken to a hospital for examination. About 15 to 20 feet away from his hospital bed, a couple of police officers were speculating that defendant must have been driving at least 120 miles per hour. Defendant blurted out: “There is no way I was going 120 miles per hour. Maybe 90 or a hundred, but not 120. Look, dog, it was an accident, man. I didn’t mean to kill the bitch. So why don’t you have some sympathy for me?”
II
DISCUSSION
A. Substantial Evidence of Implied Malice:
(1) Introduction
“Murder is the unlawful killing of a human being... with malice aforethought.” (Pen. Code, § 187, subd. (a).) “Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart....” (Pen. Code, § 188.) Penal Code “[s]ection 189 defines first degree murder as all murder committed by specified lethal means ‘or by any other kind of willful, deliberate, and premeditated killing,’ or a killing which is committed in the perpetration of enumerated felonies; all other kinds of murder are of the second degree.” (People v. Watson (1981) 30 Cal.3d 290, 295.)
Malice, in support of a charge of second degree murder, “may be implied when a person, knowing that his conduct endangers the life of another, nonetheless acts deliberately with conscious disregard for life. [Citations].” (People v. Watson, supra, 30 Cal.3d at p. 296.) “‘One who wilfully consumes alcoholic beverages to the point of intoxication, knowing that he thereafter must operate a motor vehicle, thereby combining sharply impaired physical and mental faculties with a vehicle capable of great force and speed, reasonably may be held to exhibit a conscious disregard of the safety of others.’” (Id. at pp. 300-301.)
Defendant contends that there was insufficient evidence of implied malice to support the second degree murder conviction. We disagree.
“‘The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]’” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We turn now to the evidence.
(2) Evidence
Defendant had been instructed on the dangers of drunk driving by the time he was 19 years old. Then, in January 1999, California Highway Patrol Officer Donald Clotworthy asked defendant to come to the station to talk to him. Officer Clotworthy noticed that defendant, who had driven to the station, smelled of alcohol. Defendant had a blood-alcohol level of.038 percent. Because of a zero tolerance policy in effect for underage drinking, Officer Clotworthy took defendant’s car keys from him and a friend had to pick him up and take him home. Before defendant left the station, Officer Clotworthy admonished him on the dangers of driving while intoxicated. At trial in the matter before us, defendant disclaimed any recollection that Officer Clotworthy had instructed him that drinking and driving was dangerous.
In January 2002, defendant attended eight hours of traffic school, which included about an hour and a half to two hours of instruction on the dangers of drunk driving, including a 25-minute film. At trial, defendant said he had not paid attention during traffic school. However, he admitted that the instructor had told the class that driving under the influence was dangerous.
In May 2003, a few months before the fatal collision at issue, California Highway Patrol Officer Chris Reeves stopped defendant on suspicion of drunk driving. Defendant had been in a hit-and-run accident that shattered his windshield, and he had driven past Officer Reeves on the wrong side of the road. Officer Reeves described defendant as having been “hammered” and said that defendant had urinated on himself. Defendant’s blood-alcohol level was.17 percent, and Officer Reeves arrested him. Officer Reeves warned defendant about the dangers of drunk driving. At trial in the matter before us, defendant said he did not remember having driven the car in the 2003 incident, having been arrested at that time, or Officer Reeves having warned him about the dangers of drunk driving.
On the night of August 22, 2003, defendant was planning on attending a housewarming party for his friend, Kaylin. He stopped and purchased large bottles of rum and gin to take to the party. When defendant arrived at the party, he began drinking and smoking marijuana. At trial, he admitted that he had gone to the party intending to get drunk. However, he also testified that he had intended to stay the night at his friend’s house and drive from there to work the next day. Defendant testified as to the general vicinity in which his friend lived, but he did not have a telephone number for him.
The party giver is variously referred to by the parties as Kyle, Callan, Kalyn, and Kaylin. For the purposes of this opinion, we will use the name “Kaylin” throughout.
Defendant testified that he did not recall driving away from the party and that he did not remember the crash. He also testified that he had had blackouts or memory losses in the past after having consumed alcohol and smoked marijuana. Also, he admitted at trial that he knew that drinking and driving endangered human lives.
Defendant presented two expert witnesses to testify as to the impact of alcohol consumption. Dr. Jerry Brown testified that during a blackout, a person can have a loss of awareness, while continuing to perform higher motor functioning skills such as by driving a car, and not remember afterwards. Similarly, Dr. Darrell Clardy testified that during a blackout a person may be unaware of what he or she is doing and not be able to recall it later on.
The foregoing evidence shows that defendant was no stranger to drunk driving. It also shows that he had been repeatedly warned of the dangers of drunk driving. At trial, he claimed not to remember certain of the warnings, but he nonetheless admitted to being aware that drunk driving endangered human lives. Having previously been in a collision while driving drunk, he should have been particularly well aware of the risks of being in an accident while intoxicated. Nonetheless, on the night in question, he drove after having consumed a considerable amount of alcohol, the effects of which were compounded by having smoked marijuana. He did this knowing, based on past experience, that he could pass out.
Furthermore, defendant purchased liquor on the way to a party with the intention of getting drunk once there. Thus, he deliberately and knowingly put himself in an intoxicated condition which made it dangerous for him to drive. While he claims that, although he intended to get drunk he did not intend to drive home that night, it was up to the trier of fact to weigh his credibility and determine whether this story was true. (People v. Ochoa, supra, 6 Cal.4th at p. 1206.) Because defendant’s story about the party was deficient in some respects, and was not supported by corroborating evidence, the jury had reason to reject his version of events.
In addition to having become intoxicated, it is clear that defendant was speeding — an act that increased the likelihood of an accident. Both witnesses testified that he was driving very fast and one of them was certain he was exceeding the 65 mile per hour speed limit. After the accident, defendant said he had only been going maybe 90 or 100 miles per hour, not 120. Although the jury could have accepted Dr. Clardy’s suggestion that when defendant made this remark he was not actually remembering what had happened, the jury was also free to reject this theory. Defendant walked away from the accident and was attempting to hitch a ride, indicators that he knew what he was doing.
“‘Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the... jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.]’ [Citation.]” (People v. Ochoa, supra, 6 Cal.4th at p. 1206.) Here, reviewing the evidence in the light most favorable to the judgment, a rational trier of fact could find that defendant acted with implied malice, and was guilty of second degree murder, beyond a reasonable doubt.
B. Jury Instructions:
(1) Involuntary manslaughter instruction
The court instructed the jury that, under prescribed circumstances, when a defendant’s voluntary intoxication results in unconsciousness which in turn causes the death of another person, the defendant may be guilty of involuntary manslaughter. Defendant says the court erred in failing to instruct that intoxication that does not cause unconsciousness may also justify a verdict of involuntary manslaughter, citing People v. Ray (1975) 14 Cal.3d 20, disapproved on a different point in People v. Lasko (2000) 23 Cal.4th 101, 110.
The court in People v. Ray, supra, 14 Cal.3d 20 stated that “if an accused is unable to harbor malice and an intent to kill because of voluntary intoxication which does not render him unconscious he cannot be guilty of an unlawful homicide greater than involuntary manslaughter and the jury must be so instructed.” (Id. at p. 30, fn. omitted.) However, “[t]he Ray court’s holding was premised on then existing law regarding malice aforethought and the doctrine of diminished capacity.” (People v. Turk (2008) 164 Cal.App.4th 1361, 1373.) In 1995, the Legislature amended Penal Code section 22, governing the admissibility of evidence of the voluntary intoxication of an accused. (People v. Turk, supra, 164, Cal.App.4th at pp. 1370, 1374-1375.) “The legislative history of the amendment unequivocally indicates that the Legislature intended to legislatively... make voluntary intoxication inadmissible to negate implied malice in cases in which a defendant is charged with murder....” (Id. at p. 1375.)
“It is no longer proper to instruct a jury... that ‘when a defendant, as a result of voluntary intoxication, kills another human being without premeditation and deliberation and/or without intent to kill (i.e., without express malice), the resultant crime is involuntary manslaughter.’ This instruction is incorrect because a defendant who unlawfully kills without express malice due to voluntary intoxication can still act with implied malice, which voluntary intoxication cannot negate, in the wake of the 1995 amendment to [Penal Code] section 22, subdivision (b). To the extent that a defendant who is voluntarily intoxicated unlawfully kills with implied malice, the defendant would be guilty of second degree murder.” (People v. Turk, supra, 164 Cal.App.4th at pp. 1376-1377, fn. omitted.)
Defendant asserts that People v. Turk, supra, 164 Cal.App.4th 1361 is not determinative. He correctly observes that portions of People v. Ray, supra, 14 Cal.3d 20 were cited with approval by the Supreme Court after 1995, in People v. Rogers (2006) 39 Cal.4th 826. In Rogers, the defendant contended the trial court should have instructed on involuntary manslaughter as a lesser included offense of murder. Defendant claimed that, due to mental illness, “‘he did not in fact form the intent unlawfully to kill....’ [Citation.]” (Id. at p. 884.) The court, citing People v. Ray, supra, 14 Cal.3d at pages 28-29, stated that “[a]n instruction on involuntary manslaughter is required whenever there is substantial evidence indicating the defendant did not actually form the intent to kill. [Citations.]” (People v. Rogers, supra, 39 Cal.4th at p. 884.) However, the court held that any error in failing to instruct on involuntary manslaughter was harmless in the case before it. (Ibid.)
As the court in People v. Turk, supra, 164 Cal.App.4th 1361 duly noted, “Rogers is not authority for the proposition that the holding[] in Ray ... necessitate[s] giving an involuntary manslaughter instruction in a case that involves voluntary intoxication, because Rogers did not involve voluntary intoxication. Thus, the Rogers court did not consider the potential effect of the 1995 amendment to section 22, subdivision (b) on the holding[] in Ray....” (People v. Turk, supra, 164 Cal.App.4th
at p. 1377, fn. omitted.) Defendant in the case before us asserts that this portion of the Turk analysis is “questionable.” He says that, whether one is mentally ill or intoxicated, the question is still the existence of malice. We must reject defendant’s argument and agree with the reasoning of Turk. While the court in Rogers approved certain language of the Ray opinion even after 1995, it was in a context that did not raise issues of voluntary intoxication and the significance of the 1995 amendment to Penal Code section 22. In short, the trial court in the matter before us did not err in failing to give an involuntary manslaughter instruction of the type defendant now says should have been given.
(2) Unconsciousness instructions
The instruction discussed above was a modified version of “CALCRIM 626 [—] VOLUNTARY INTOXICATION CAUSING UNCONSCIOUSNESS: EFFECTS ON HOMICIDE CRIMES[.]” It provided in part that “[i]f someone dies as a result of the actions of a person who was unconscious due to voluntary intoxication, then the killing is involuntary manslaughter....” It also provided: “However, voluntary intoxication causing unconsciousness does not negate implied malice, which is an element of second degree murder and reduce that crime to the lesser charge of involuntary manslaughter if: [¶] 1. The person is aware of the dangerous nature of driving while intoxicated, and; [¶] 2. The person anticipates operating a motor vehicle while intoxicated at the time he commences to become voluntarily intoxicated.” (Capitalization omitted.)
In addition to this instruction, the court gave certain other instructions on unconsciousness. One was “CALCRIM 625 [—] VOLUNTARY INTOXICATION: EFFECTS ON HOMICIDE CRIMES[,]” stating in part that the jury could consider evidence of defendant’s voluntary intoxication “only in deciding whether as to count 1, murder in the second degree, the defendant was unconscious when (he) acted, or whether the defendant acted with the knowledge of the danger to and in conscious disregard of human life....” (Capitalization omitted.) The court also provided CALCRIM No. “3425 [—] Unconsciousness[,]” stating in part: “The defendant is not guilty of counts 1-2-3-4 if (he) acted while legally unconscious....”
Defendant maintains that the latter instruction, CALCRIM No. 3425, conflicted with the other instructions. That is to say, under CALCRIM No. 3425, if the jury found that defendant was unconscious, then he would be acquitted of all crimes. (See Penal Code, § 26.) However, defendant asserts that under the other instructions, CALCRIM Nos. 625 and 626, if he were found to have been unconscious, then he would be guilty of involuntary manslaughter. (See Penal Code, § 22.)
In addition to the issue of conflicting instructions, defendant says that there was no evidence to even warrant the giving of the CALCRIM No. 3425 instruction, which has to do with legal unconsciousness, not unconsciousness arising out of voluntary intoxication. He notes that “[i]t is error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case. [Citation.]” (People v. Guiton (1993) 4 Cal.4th 1116, 1129.)
The Attorney General characterizes CALCRIM No. 3425 as pertaining to “crimes committed by a person who is involuntarily unconscious.” He concedes that the trial court erred in giving that instruction, inasmuch as it was unsupported by any evidence of involuntary intoxication.
However, the Attorney General argues that the error was harmless for several reasons. First, he notes that giving the instruction only benefitted the defense, inasmuch as it gave the jury an opportunity to acquit defendant altogether if it found that he had blacked out and become unconscious. Second, he contends that, at closing argument, the prosecutor told the jury the question was whether defendant had committed second degree murder or, because of unconsciousness, had only committed involuntary manslaughter. Defendant’s attorney, on the other hand, argued that defendant had committed involuntary manslaughter. Consequently, CALCRIM No. 3425, which would have permitted acquittal, was inapplicable and the jury was permitted to disregard it, pursuant to the CALCRIM No. 200 instruction which the court also gave. Third, the Attorney General argues that in order to find defendant guilty of second degree murder, the jury must have found that he was not unconscious.
CALCRIM No. 200 provides in part: “Some of these instructions may not apply, depending on your findings about the facts of the case. Do not assume just because I give a particular instruction that I am suggesting anything about the facts. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them.”
Defendant disagrees with the assertion that it was harmless error to give CALCRIM No. 3425 because the instruction gave the jury an opportunity to acquit him. He also eschews the assertion that the jury must have found that he was conscious, and therefore the CALCRIM No. 3425 instruction was irrelevant and the giving of that instruction was harmless error. Defendant explains he “made no claims of innocence nor did he strive to obtain a conviction of a lesser offense. [His] guilt having been conceded, the sole issue in this case was whether [he] was guilty of involuntary manslaughter or of second degree murder.” This being the case, the jury would not likely have acquitted him. However, if the jury found that he had been unconscious, then it might have felt constrained to acquit him of any crime at all under CALCRIM No. 3425. Rather than doing that, the jury was constrained to find him conscious, with the result that it was further constrained to find him guilty of second degree murder.
This line of thought would require us to presume that the jury may have engaged in “jury nullification” rather than follow the law. In other words, defendant’s argument requires us to presume that the jury may have genuinely believed that defendant was unconscious, but deliberately made a different finding in order to disregard the law and the jury instructions and control the outcome of the case. We will not make this presumption. There is no evidence that the jury failed to follow the law in order to manipulate the outcome of this case.
Furthermore, the jury’s decision is easily explained without gyrations. One possibility is that the jury simply believed defendant was conscious, and thus so found. Another is that the jury believed that defendant was unconscious, due to voluntary intoxication, and still properly found him guilty of second degree murder.
A portion of modified CALCRIM No. 626, as quoted above, instructed the jury that second degree murder is not reduced to involuntary manslaughter on account of voluntary intoxication resulting in unconsciousness when the defendant was aware of the dangers of drunk driving and, at the time he commenced to become intoxicated, he anticipated operating a motor vehicle. So, if the jury found defendant to have been unconscious due to voluntary intoxication, it still could have found him guilty of second degree murder, if it also made the required findings regarding an awareness of the risks involved and an anticipation of driving after alcohol consumption. It simply is not the case that if the jury truly believed defendant was unconscious, it nonetheless would have been constrained to find him to have been conscious in order to have avoided acquitting him. At the same time, if the jury found defendant to have been unconscious due to voluntary intoxication, but did not make the additional findings regarding awareness and anticipation, it would have been required to find him guilty only of involuntary manslaughter, just as he had urged.
Inasmuch as there is no evidence that the jury declined to follow the law in order to control the result in this case, “it appears ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ [Citations.]” (People v. Harris (1994) 9 Cal.4th 407, 424-425.)
C. Prosecutorial Misconduct:
(1) Introduction
“‘The applicable federal and state standards regarding prosecutorial misconduct are well established. “‘A prosecutor’s... intemperate behavior violates the federal Constitution when it comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.”’” [Citations.] 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.]’ [Citations.]” (People v. Hill (1998) 17 Cal.4th 800, 819.)
Defendant claims the prosecutor engaged in misconduct in numerous ways: (1) declaring, without evidentiary support, that defendant’s defense was fabricated; (2) appealing to the emotions and sympathies of the jurors; (3) making derisive remarks about the defense experts; (4) declaring, without evidentiary support, that there were 1,000 pages of discovery; (5) making disparaging remarks about defense counsel; and (6) misstating the law. He also says the cumulative errors warrant reversal even if the individual errors do not. We address these contentions in turn.
(2) Analysis
(a) phony defense
In defense of the second degree murder charge, defendant claimed he never intended to drive home drunk; rather, he intended to stay overnight at the home of the party giver, and to drive from that residence to work in the morning. In his closing argument before the jury, the prosecutor suggested that defendant’s uncorroborated testimony was phony. On appeal, defendant contends the prosecutor overstepped his bounds by referring to facts outside of the record. Not so. The prosecutor did not refer to facts outside of the record simply because he surmised that the referenced Kaylin, whose last name was not even given, may not have existed. What the prosecutor did was cast doubt on defendant’s credibility. This he is entitled to do. “The prosecutor is permitted to urge, in colorful terms, that defense witnesses are not entitled to credence, to comment on failure to produce logical evidence, [and] to argue on the basis of inference from the evidence that a defense is fabricated.... [Citations.]” (People v. Pinholster (1992) 1 Cal.4th 865, 948.)
(b) appealing to jurors’ emotions and sympathies
Defendant also claims the prosecutor engaged in misconduct by appealing to the emotions and sympathies of the jurors during closing argument. The prosecutor told the jurors: “You are not powerful enough to breathe life back into this dead lady and walk her back out to her husband and her three kids and say, ‘Here is your wife. Here is your Mom. You get her back. Tell her you love her one last time.’” He also stated several times that Carla Olson was not a “bitch.” He told them that she was instead a good wife and a mother of three children.
“It is improper for the prosecutor to appeal to the passion and prejudice of the jury in closing argument during the guilt phase of trial. [Citation.]” (People v. Simington (1993) 19 Cal.App.4th 1374, 1378.) However, “[t]here was no objection to any of these statements, so the argument cannot be raised for the first time on appeal unless a timely admonition could not have cured the harm. [Citation.] Defendant does not argue that an admonition could not have cured the harm.... [Citation.]” (People v. Pensinger (1991) 52 Cal.3d 1210, 1251.)
He does, however, argue that it would have been futile to raise an objection, since the court had overruled defense counsel’s objection to the suggestion that the story about Kaylin was fabricated and his objection to the reference to 1,000 pages of discovery. (See People v. Hill, supra, 17 Cal.4th at p. 820 [no waiver if objection would have been futile].) As we have already discussed, the prosecutor did not act improperly in suggesting that the uncorroborated story about Kaylin was phony. As for the objection to the closing argument statement about Dr. Brown’s speculation and failure to read more than 28 pages of discovery out of 1,000 pages, the court overruled the objection to the statement as a whole, but gave a curative admonition that the attorney’s comments were not evidence. Furthermore, in neither case did defense counsel object on the ground of prosecutorial misconduct. There is no reason to believe that an objection on this ground would have been futile.
Finally, the evidence supporting the verdict was strong. Even had defendant properly preserved the issue for appeal, we would conclude that “[i]t is not reasonably probable that a result more favorable to the defendant would have been reached absent the misconduct or with a curative admonition. [Citation.]” (People v. Arias (1996) 13 Cal.4th 92, 161.)
(c) derogating the defense experts
Defendant claims the prosecutor committed misconduct in deriding both Dr. Clardy and Dr. Brown.
(i) Dr. Clardy
The prosecutor asked Dr. Clardy how it was that if one was truly unconscious at the time he did something, he could later make comments indicating that he nonetheless remembered the event, such as stating that it was an accident and he did not mean to kill another person. Dr. Clardy explained that if the person truly had been unconscious at the time of the event, then the comments would indicate not that he remembered what had happened, but that he was filling in the gaps with confused memories of other events or creating something. When pressed as to how someone who had never killed anyone before could fill in the gaps with confused memories of prior acts, Dr. Clardy stated: “Unconsciously or psychoanalytically, we all have [the desire to kill] people we don’t like. That’s part of our psychological make-up. We all have that potential. We don’t act on it.” The prosecutor then asked, “Most of us in this room have the desire somewhere deep down inside to kill somebody?” Dr. Clardy replied, “We all have that or we are not human.”
The prosecutor mentioned this several times in his closing argument. His point was to get the jury, as the ultimate fact finder, to question the suggestion that defendant was unconscious at the time he drove into Carla Olson, and that when he later said he was only going 90 to 100 miles per hour at the time and did not mean to kill the woman, he was not in fact remembering something that had occurred, but was piecing together memories of other events or indicating that he had killed someone only because deep down inside he had had a desire to kill someone at some point in his life.
As stated previously, “[t]he prosecutor is permitted to urge, in colorful terms, that defense witnesses are not entitled to credence.... [Citations.]” (People v. Pinholster, supra, 1 Cal.4th at p. 948.) That is what he did here — urge that the jury not give credence to Dr. Clardy’s theory as to why defendant could have made the postaccident comments he did if he had been unconscious at the time of the accident. It was not prosecutorial misconduct for him to so urge.
(ii) Dr. Brown
The prosecutor asked Dr. Brown if he was there to testify as to whether defendant was in a state of blackout or not on the date in question. Dr. Brown replied, “I am here to speculate about whether he was at a blackout at the time, at the time of the accident, yes.” The prosecutor then asked, “You are not here to say one way or another definitively whether he was or was not?” Dr. Brown answered, “I don’t know that I can say that.” The prosecutor then clarified, “You can just look at the facts and speculate?” To that, Dr. Brown responded, “Yes.”
During the course of his closing argument, the prosecutor mentioned at least five times that Dr. Brown had come to court to speculate. The implication was that he was an unprepared witness, who was merely speculating on the basis of a review of a meager 28 pages of discovery, but who could not actually state whether defendant had been blacked out or not at the time of the accident. The further implication was that his testimony was entitled to little credence because it was mere speculation and not solid evidence.
As we have previously made clear, it is not misconduct per se for the prosecutor to suggest to a jury that a defense witnesses is not entitled to credence. (People v. Pinholster, supra, 1 Cal.4th at p. 948.) As the same time, while the prosecutor has considerable latitude in commenting on the evidence during argument, his comments on the evidence must be fair. (People v. Hill, supra, 17 Cal.4th at p. 819.)
Defendant here claims that the comments were unfair, even “intellectually dishonest.” Defendant cites Penal Code section 29, which provides: “In the guilt phase of a criminal action, any expert testifying about a defendant’s mental illness, mental disorder, or mental defect shall not testify as to whether the defendant had or did not have the required mental states, which include, but are not limited to, purpose, intent, knowledge, or malice aforethought, for the crimes charged. The question as to whether the defendant had or did not have the required mental states shall be decided by the trier of fact.”
Obviously, Dr. Brown, not having been present at the time of the accident, could not in fact testify definitively as to whether defendant had then been unconscious or not. Furthermore, he was barred, by Penal Code section 29, from testifying on whether defendant had the required mental state to be convicted of second degree murder. Taking these points into consideration, it was arguably unfair for the prosecutor to impugn Dr. Brown’s testimony because he could only speculate, and not testify definitively, as to whether defendant was unconscious when he hit Carla Olson.
To the extent that the prosecutor’s advocacy was unfair, however, it nonetheless “is not reasonably probable that a result more favorable to the defendant would have been reached absent the misconduct or with a curative admonition. [Citation.]” (People v. Arias, supra, 13 Cal.4th at p. 161.) This is so for two reasons. First, it had to have been clear to the jury that Dr. Brown, or any other expert, not having been present at the time of the accident, could not possibly do anything other than speculate, or opine, as to whether defendant had been unconscious at the time. This would not mean that the jury would therefore reject out of hand the educated opinion of Dr. Brown or any other expert. Educated opinion is the very nature of the expert testimony sought, and this could not have been lost on the jury. Second, even if the jury, adopting Dr. Brown’s opinion, had found defendant to have been unconscious due to voluntary intoxication, this does not mean that it would have found him to have been guilty only of involuntary manslaughter and not second degree murder. There was strong evidence of defendant’s implied malice, based on an awareness of the dangers of drunk driving and an anticipation of drinking at the party and thereafter driving home drunk. Consequently, a finding of unconsciousness would not have negated a finding of conscious disregard for human life necessary to support a second degree murder conviction based on implied malice.
(d) suggestion of facts not in evidence
When cross-examining Dr. Brown, the prosecutor asked, “There is about a thousand pages of discovery in this case; how much have you read?” The witness replied, “About 28 pages. About the arrest.” In closing argument, the prosecutor referenced Dr. Brown’s statements that he was there to speculate about whether defendant had blacked out, and said, “That’s nice. Come in a couple weeks before the trial, read 28 pages out of a thousand, speculate — [.]” The defense counsel objected on the basis of facts not in evidence. The court then admonished the jury that the lawyers’ arguments were not evidence, but it otherwise overruled the objection.
Defendant claims the prosecutor committed misconduct when he stated that there were 1,000 pages of discovery — a fact not in evidence, and then used Dr. Brown’s acknowledgment that he had only read 28 of those pages to impeach his credibility. He also contends that his counsel’s failure to object to the question posed to Dr. Brown constituted ineffective assistance of counsel.
Defendant is correct that “[i]t is misconduct for the prosecutor to refer in his argument to facts not in evidence. [Citations.] It is also misconduct for him to suggest the existence of such facts through the questions he asks. [Citation.]” (People v. Ledesma (1987) 43 Cal.3d 171, 238.) Here, the prosecutor suggested that there were 1000 pages of discovery. The first time, defense counsel made no objection at all. The second time, he made an objection on the basis of facts not in evidence, but he did not also object on the basis of prosecutorial misconduct. As a technical point, we could consider the present claim of error to have been waived. “‘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 made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]’ [Citation.]” (People v. Hill, supra, 17 Cal.4th at p. 820.)
However, the point of the matter is that the underlying basis for the claim of prosecutorial misconduct was the suggestion of facts not in evidence. And, the court did give a curative admonition that the lawyers’ arguments were not evidence. Furthermore, it is unlikely that the jury construed the prosecutor’s reference to 1,000 pages as an exact number, rather than as an indication that there were volumes of pages of discovery, most of which the defense expert had not read. As the Attorney General points out, had defense counsel objected to the suggestion that there were 1,000 pages of discovery the expert witness had not read, the prosecutor could then have started asking specifically whether the witness had read one item after another.
“When, as here, the point focuses on 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.] On this record, the answer is no.... [W]hen we consider each of the challenged comments in its context, we simply cannot conclude that the prosecutor used a method to persuade the jury that was ‘deceptive’ or ‘reprehensible.’” (People v. Berryman (1993) 6 Cal.4th 1048, 1072, overruled on another ground in People v. Hill, supra, 17 Cal.4th at pp. 822-823, & fn. 1.)
(e) disparagement of defense counsel
(i) re expert witnesses
In summing up his argument about the defense experts, the prosecutor said: “Okay. Now, let’s move on to the experts. Yes, I have teased about the experts. But, you know what, he put them on.” He made reference to Dr. Brown’s admission that he was speculating and to Dr. Clardy’s suggestion that “every single person in this room deep down inside wants to be a murderer....” The prosecutor said he did not want to make fun of Dr. Brown and Dr. Clardy, but questioned their credibility. He remarked, “[d]efense chose them[,]” and asked, “Do you believe them?” The prosecutor also stated that defense counsel “couldn’t even look you in the eye — he made fun of me for making fun of them, but he couldn’t even look you in the eye and say, ‘Believe them, they are credible’ after he put them on.”
Defendant maintains that the prosecutor crossed over the line with these statements and essentially argued that defense counsel did not believe his own expert witnesses. As defendant notes, it is “improper for the prosecutor to argue to the jury that defense counsel does not believe in his client’s defense. [Citations.]” (People v. Thompson (1988) 45 Cal.3d 86, 112.) This is not what the prosecutor argued, however. He argued that the evidence on a particular point was weak, so weak that defense counsel had a hard time presenting it to the jury with conviction. This was not misconduct, as People v. Thompson, supra, 45 Cal.3d 86 shows.
In People v. Thompson, supra, 45 Cal.3d 86, the defendant was charged with the rape and murder of the victim, who was stabbed five times. (Id. at pp. 96, 99.) The defendant contended that he and the victim had had consensual sex and that, afterward, he had passed out due to the effects of hashish and alcohol. He said that he remembered nothing that happened between the time he passed out and the time he awakened the next morning. (Id. at p. 100.) Defendant presented evidence to show that he was a very heavy sleeper who “could have slept through [the victim’s] being bound, gagged, and stabbed to death in the same studio apartment.” (Id. at p. 101, fn. omitted.)
During opening argument at the end of the guilt phase, the prosecutor in People v. Thompson, supra, 45 Cal.3d 86 stated: “‘[Defense counsel] will probably not spend a lot of time asking you to believe the defendant’s version, that he slept through [the victim’s] murder.’” (Id. at p. 112.) He also said, with reference to certain inconsistent statements the defendant had made, “‘We have all these lies.... Why won’t you even hear his testimony commented on by his attorney?’” (Ibid.) The court concluded that the prosecutor’s comments did not constitute irreversible error, inasmuch as his “focus was... on the evidence and his contention that the defense case was simply unbelievable.” (Id. at p. 113.)
Similarly, in the case before us, defendant asked the jury to believe that he was unconscious through the accident, and the prosecutor’s comments indicate that the expert witness testimony presented on the issue of unconsciousness was simply unbelievable. This was not impermissible argument by the prosecutor, although this “is not to say that the prosecutor did not venture onto dangerous ground in phrasing his remarks as he did.” (Id. at p. 113, fn. 20.)
(ii) re confusion of jury
In his closing argument, the prosecutor commented on the evidence pertaining to the issue of whether defendant had a conscious disregard for human life. He noted that defense counsel “didn’t even barely touch on this. And that is, with all respect, he kept trying to confuse the issue of being really drunk with being unconscious. Even his own chart says a person may be capable of physical movement.”
Defendant says that when the prosecutor made those comments with respect to confusion of the issue, he was “imput[ing] a deceitful intent to defense counsel....” “A prosecutor commits misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel. [Citations.] ‘An attack on the defendant’s attorney can be seriously prejudicial as an attack on the defendant himself, and, in view of the accepted doctrines of legal ethics and decorum [citation], it is never excusable.’ [Citation.]” (People v. Hill, supra, 17 Cal.4th at p. 832.)
Read in context, however, the prosecutor was not attacking the integrity of defense counsel, but rather asserting that the evidence he had presented on unconsciousness, as edified on the chart, was confusing. Indeed, it was defendant’s defense at trial that he was drunk to the point of unconsciousness yet still capable of driving. The concept is inherently confusing to a layperson.
Defendant points to no portion of the record to show that the attorneys engaged in rancorous or disrespectful behavior as was the case in People v. Hill, supra, 17 Cal.4th at pages 833-834. To the contrary, the record reflects that the attorneys got along well together. At the beginning of his closing argument, the prosecutor stated: “I said early on, and as you can see, [defense counsel] and I, we have a friendly cordial working relationship. I respect him and he respects me. So any arguments I make about his arguments are not about him. They are just about his arguments. And I know — I know it is true vice versa....” In other words, the prosecutor asserted that defense counsel’s unconsciousness arguments were confusing, but he did not mean to say that defense counsel engaged in deceitful conduct in making those arguments.
(f) misstatement of the law
In making his argument before the jury, the prosecutor told the jurors that after the case was resolved and they were discharged, they would finally be able to go home and talk about the case. They could talk about the fact that a man with a blood-alcohol content two and a half times the legal limit, going 100 miles per hour, hit a motorcycle rider, fled the scene and tried to hitchhike away, thereafter remarking that he “‘didn’t mean to kill the bitch.’” And the jurors could also say, “‘You know what we did, we walked him out the door. We just found him not guilty and we let him go.’” The prosecutor further stated: “On behalf of my client, the People of the State of California and the County of Orange, I ask you to find the defendant guilty of second degree murder. The other charges, all these other charges, these are nothing. You are here about a murder case. He is guilty of murder.” He also said: “If you don’t want to find him guilty of second degree murder, on behalf of my client, let him go. These are nothing charges. This is a murder case. He is guilty of second degree murder.”
Defendant contends the prosecutor misstated the law, in effect telling the jury there were only two options — either to convict defendant of second degree murder or to acquit him, there being no other choices. We reject this characterization of the prosecutor’s argument. The jury instructions made clear that the jury had the power to convict defendant of lesser charges than second degree murder. The prosecutor simply urged the jury to consider that, given the magnitude of the crime, handing down a conviction on the lesser charges alone would practically be the same as letting defendant get away with it.
The prosecutor here made vigorous argument, as he is entitled to do. (People v. Hill, supra, 17 Cal.4th at p. 819.) He did not, however, misstate the law. Even if he had, this would not necessarily have constituted misconduct. (People v. Berryman, supra, 6 Cal.4th at p. 1073, overruled on another ground in People v. Hill, supra, 17 Cal.4th at pp. 822-823, & fn. 1.)
(g) cumulative error
Finally, defendant claims that the cumulative effect of the asserted errors warrants reversal, citing People v. Hill, supra, 17 Cal.4th 800. As noted in that case, “defendants are entitled to ‘fair trials’ but not ‘perfect ones.’” (Id. at p. 844.) “Lengthy criminal trials are rarely perfect, and this court will not reverse a judgment absent a clear showing of a miscarriage of justice. [Citations.] Nevertheless, a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error. [Citations.]” (Ibid.) This, however, is not one of those cases. Most of the prosecutor’s challenged comments do not rise to the level of prosecutorial conduct at all. To the extent any of them do, they are not prejudicial, either singly or in combination.
D. Ineffective Assistance of Counsel:
Defendant claims he received ineffective assistance of counsel in many respects. For reasons we shall show, we disagree.
“The legal principles relevant to [a] claim [of ineffective assistance of counsel] are well settled. ‘To establish ineffective assistance of counsel, a petitioner must demonstrate that (1) counsel’s representation was deficient in falling below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient representation subjected the petitioner to prejudice, i.e., there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the petitioner. [Citations.] “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” [Citation.]’ [Citation.]” (In re Jones (1996) 13 Cal.4th 552, 561.)
“Our review of counsel’s performance is a deferential one. [Citation.]” (In re Jones, supra, 13 Cal.4th at p. 561.) “‘A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” [Citation.]’ [Citation.]” (Ibid.)
Defendant complains about his counsel’s decision not to give an opening statement and his decision to have defendant himself testify. As defendant admits, “[t]he decisions whether to waive opening statement and whether to put on witnesses are matters of trial tactics and strategy which a reviewing court generally may not second-guess. [Citation.]” (People v. Mitcham (1992) 1 Cal.4th 1027, 1059.) Defendant has not given us reason to abrogate that general rule and second guess the waiver of an opening statement or the decision to have defendant testify in this case. While counsel may not have employed an opening statement to humanize defendant, he retained the opportunity to use the closing statement for that purpose. And while having defendant testify that he had blacked out and had no memory of the accident gave the prosecutor the opportunity to impeach him with his postaccident statement about not meaning “to kill the bitch,” we cannot second-guess counsel’s apparent determination that in order to present defendant’s strongest showing on his unconsciousness defense it was necessary to have him testify on the point.
Defendant also makes certain arguments concerning the failure to rehabilitate his character by informing the jury that in the cultural language of Ebonics the word “bitch” only means “woman” and does not show disrespect. However, we cannot fault defense counsel for making no effort to rehabilitate by, in essence, telling the jury that defendant always refers to women as bitches, but never intends disrespect. Whether the cultural explanation likely would have been rehabilitative in the eyes of the jury was an assessment best left to the attorney who had an opportunity to size up the jury in person. And, when defense counsel mistakenly said “fucking bitch” rather than “bitch,” he was trying to reorient the jury’s attention to “hard evidence” other than defendant’s statements. The slip-up in wording did not amount to deficient representation.
In addition to the foregoing, defendant claims his counsel erred in failing to make objections with respect to several instances of purported prosecutorial misconduct: (1) the prosecutor’s reference to facts not in evidence by alluding to 1,000 pages of discovery; (2) the prosecutor’s urging the jury to disbelieve defendant’s story about intending to stay at the party giver’s home on the night in question; (3) the prosecutor’s disparagement of defense counsel; and (4) the prosecutor’s appeal to the passions of the jury.
With respect to the failure to object to the suggestion that there were nearly 1,000 pages of discovery Dr. Brown had not read, there may have been strategic reasons for failing to object. Moreover, when defense counsel objected to the reference to 1,000 pages during closing argument, the court gave a curative instruction. Defendant has not demonstrated that defense counsel’s representation was deficient in this matter or that there is a reasonable probability that, but for the failure to object, the result would have been more favorable to him.
As for the prosecutor’s suggestion that defendant’s defense of having planned not to drive home on the night in question was phony, the prosecutor did not refer to facts outside of the record, but rather, questioned defendant’s credibility. Inasmuch as there was no prosecutorial misconduct, there was no need for an objection.
As concerns the prosecutor’s suggestion that the testimony of the expert witnesses was so unbelievable that defense counsel could not even look the jurors in the eye and profess as to the credibility of the witnesses, the prosecutor was commenting on the weakness of the evidence, not the integrity of defense counsel, so his comment did not constitute misconduct. Similarly, when the prosecutor claimed that defense counsel made confusing arguments with respect to drunk driving while unconscious, he did not engage in prosecutorial misconduct and defense counsel’s failure to object did not constitute ineffective assistance of counsel.
Finally, to the extent defense counsel should have objected to the prosecutor’s remarks about the Carla Olson’s family and the jury’s inability to bring Carla Olson back to life, the failure to do so has not prejudiced defendant. Given the strong evidence in support of the verdict, it is not reasonably probable that, but for the failure to object, the result would have been more favorable to defendant.
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: O’LEARY, ACTING P. J., IKOLA, J.