Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04F09443
BUTZ, J.Defendant Shanon Bell was convicted after a jury trial of first degree murder (Pen. Code, § 187, subd. (a)) and two counts of possession of a firearm after conviction of a felony (§ 12021, subd. (a)(1)). The jury also found true an enhancement allegation that defendant intentionally discharged a firearm causing death in committing the murder (§ 12022.53, subd. (d)). He appeals from the judgment sentencing him to 50 years to life in state prison. He contends that the trial court erred in admitting evidence over his objections under Evidence Code sections 352 and 1101; that the prosecutor committed prejudicial misconduct in argument; and that his trial counsel was prejudicially ineffective in failing to object to some of the prosecutor’s arguments. We shall affirm the judgment.
Undesignated statutory references are to the Penal Code.
FACTUAL BACKGROUND
Shortly after midnight on the morning of September 4, 2004, police officers arrived at the parking lot outside American Spirit, a bar on Northgate Boulevard in Sacramento. The lot was full of people; cars were driving out of the lot. They found Jemauz Jones lying dead on the asphalt. He had suffered five gunshot wounds: one to the head, one in the arm, and three to the chest. There was no soot or stippling around the wound entries. Nearby on the ground was an unloaded replica pistol, a nine-millimeter Beretta mimic, designed only to fire blanks. Also scattered on the ground on and about Jones’s body were several buttons, not from his clothing, with the word “Moeshe” on them.
Luther Redd was among the 50 or more people standing in the parking lot at the time of the shooting. He heard the first shot and turned to look. There were four or five more shots. Jones fell backward. Redd could see the upper torso of the shooter, defendant. He was standing over Jones making a pumping motion in rhythm with the gunshots. A few days after the shooting Redd voluntarily telephoned the police to give his account. He did so because it seemed to him that Jones was killed in cold blood. He identified defendant as the shooter in a photo array before trial.
Maurice Marshall, a self-described Strawberry Manor Blood gang banger, was also present at the time of the shooting. Before it occurred he saw defendant angrily moving around the parking lot. When defendant lifted up his shirt Marshall saw a gun. Just before he heard the shots, Marshall saw Jones standing facing defendant. He did not see the shooting, he heard two shots and then three more. Defendant was in the first car Marshall saw leave the parking lot.
Thereafter, Marshall went to Manor Park. Defendant was there. Defendant said he had shot and killed Jones.
On September 21, 2004, Stephen Carroll, another admitted Strawberry Manor Blood, a professional car thief on felony auto theft parole, and a frequent methamphetamine user, was arrested on a warrant. He offered to help apprehend defendant in return for “help” with the warrant arrest.
Under a use immunity agreement, Carroll testified that he supplied defendant with the stolen car that defendant was driving on the day of the killing. Carroll saw the car at the American Spirit on the day of the killing. He saw defendant screaming at Jones in the parking lot, calling him a “rat.” Jones tried to walk away and defendant pulled the trigger. Defendant pulled the pistol from his waistband, pointed it at Jones and fired one shot. Carroll took off running. Carroll had told Detective Scott MacLafferty of the Sacramento Police Department in a recorded pretrial interview that defendant had called Jones a “snitch-ass bitch” immediately before shooting him.
On September 22, 2004, Carroll enticed defendant to pick up a bait car. Police officers were waiting and attempted a traffic stop. Defendant fled. The police pursued. The bait car stopped and defendant fled on foot. He was knocked to the ground by a police dog. He fought with the dog and with police officers. The police found a revolver and some bullets at the point where defendant had been knocked down. Testing was not conclusive, but afforded the overall conclusion that the bullets that killed Jones were most likely fired from the revolver.
The night of his arrest defendant discussed the killing with Detective MacLafferty. He denied being the killer or having been present at the time of the shooting. He repeatedly and vigorously refused to say who did the killing, because “[i]t’s snitching, and I ain’t a snitch.” “I’m not going to tell you that because that’s snitching, and either ratting--either ratting me or snitching. . . . I’m not going to do that, man.” He suggested that he was being blamed because people were frightened of him, having seen him fighting. He boasted, “[M]y nickname is ‘[B]eating.’”
During a jail visit in February 2005, defendant admitted that the buttons found by the body had come from his shirt. At trial, the defense conceded that defendant was the killer.
DISCUSSION
I. Evidence of Dundell Wright Prosecution
Defendant contends that the trial court erred in ruling admissible, over his objection under Evidence Code section 352, evidence about the earlier prosecution of Dundell Wright, the cousin of victim Jemauz Jones, for the murder of a police officer. The contention is not meritorious.
At the outset of trial the prosecutor filed motions in limine asking the court to determine admissible certain evidence, including evidence of the Wright prosecution. Defendant opposed admission of the Wright prosecution under Evidence Code section 352, on the ground that the probative value of the evidence was substantially outweighed by the probability that its admission would create substantial danger of undue prejudice.
The prosecution’s theory of this case was that the motive for the killing of Jones was retaliation for his “snitching” in giving the police information incriminating his cousin Dundell Wright in the murder of the police officer, in exchange for leniency on Jones’s current arrest on a parole violation. The prosecutor noted evidence of defendant’s remarks at the time of the killing. He proffered that evidence would show that Jones’s role in the Dundell Wright investigation had been provided to the defense in that case, that defendant and Wright had been incarcerated in the same facilities at the same time, and that Jones, Wright and defendant had been affiliated with the same criminal street gang, the Strawberry Manor Bloods, in which defendant was a member.
The defense noted that the Wright case, the murder of a police officer, had been extensively publicized in the community and submitted that any mention thereof would be likely to elicit an emotional response from jurors. Defense counsel noted there was no evidence of actual communication between defendant and Wright during their incarcerations.
The trial court said that it found the probative value of the evidence would outweigh the possible undue prejudice. It cautioned there was no need to go into the Wright case in great detail, directed the prosecutor not to disclose the name of the slain officer, said the jury should be informed that defendant had not been involved in that murder, and that issues about the joint incarceration of defendant and Wright would be resolved when more information was provided.
On appeal defendant argues that the trial court erred when it admitted this evidence. He asserts that admission was an abuse of discretion because the evidence adduced at trial did not show that he ever actually spoke to Wright, showed that in his pretrial interrogation he denied discussing the earlier murder case with Wright, showed that Jones never testified in the Wright case, did not show that Jones was previously threatened for snitching, and that only one witness testified he mentioned snitching at the time of Jones’s shooting.
The evidence subsequently adduced at trial has no bearing on whether the trial court erred in an earlier ruling on a motion in limine. In effect, defendant seeks to expand his argument in the trial court against admission of this evidence by pointing to information that occurred subsequently. Expanding an argument in this fashion is impermissible. (See, e.g., People v. Valdez (2004) 32 Cal.4th 73, 108-109.) The question is whether the trial court abused its discretion at the time of its ruling. We imply no view on the hypothetical question, “Would it have made a difference if all that defendant now points to were argued to the court at the time it ruled?” We will simply disregard the portion of the argument pertaining to matters not presented in the in limine proceedings.
We will follow the same rule, without further note or comment with respect to defendant’s similar arguments on the remaining contentions.
“‘Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.] Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion “must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.”’” (People v. Woodward (2004) 116 Cal.App.4th 821, 832.) No such showing is presented.
The central issue in this case was why defendant shot Jones. In the circumstances, the evidence of Jones’s role in the Wright prosecution, inferably notorious in the gang milieu, was highly probative on the theory that defendant shot Jones in retaliation for the role Jones played in that prosecution. The probative value of the evidence remains high whether or not there was direct evidence of communication between defendant and Wright. A jurist could reasonably conclude that the potential of undue prejudice, i.e., ire toward a supporter of a killer of a police officer, did not substantially outweigh this probative value. Defendant fails to show an abuse of discretion in the ruling admitting evidence of the Wright prosecution.
II. Gang Evidence
Defendant contends that the trial court erred in denying his objection to gang evidence under Evidence Code section 352. The contention of error lacks merit.
The prosecutor, also by a motion in limine, asked the court to determine admissible at trial evidence about gang membership and gang mores. The prosecutor noted that his theory of the case was that Jones was killed for snitching in the Wright prosecution. He argued that evidence about the gang anti-snitching stricture was relevant to this theory and to explain anticipated reluctance and backsliding by witnesses. He noted, inter alia, evidence that defendant had distributed the police report in this case in the community to intimidate witnesses. He argued that evidence of the anti-snitching precept and the affiliation of defendant, Jones and Wright with the Strawberry Manor Blood’s street gang was relevant and important evidence.
The defense objected that the probative value of such evidence, if any, was outweighed by the undue prejudicial effect. Defense counsel argued that the theory of motive was unsupported conjecture, that antipathy toward snitching was not limited to gang subculture, and that none of the witnesses had asserted their reluctance to testify because of the “gang aspect” of the case. In the course of the in limine hearing the defense also objected to admission of the evidence that defendant had a “BGF” tattoo, or evidence about the Black Guerilla Family prison gang.
The trial court reasoned as follows in its ruling on this evidence:
“THE COURT: All right. As to the gang affiliation, Bloods, I will grant because that is weighed and considered under [Evidence Code section] 352, it’s appropriate. I don’t think we need to go into the criminal nature and the predicate offenses to establish the Bloods. [Defendant] himself in numerous phone calls says he is a Blood. He talks about Blood. Refers to gang-style language and uses the terms, you know, MOB, et cetera. So the evidence would come in through his own statements.
“The People can call their gang witness to establish that he is a member of the Bloods and then talk about snitching and how that is relevant, the gang culture, and why witnesses are reluctant to testify in gang cases, and the effects of distributing the police reports and those kinds of things.
“As to the BGF I do want to limit going into the nature of that whole gang because you don’t have anything indicating directly that he is a member of that. I would note, on the other hand, if CDC probably looked at his tattoo, they would probably validate him because that is one of the ways you get validated is if a person claimed to be a member of a gang and certainly a tattoo would certainly seem to be a clue, but apparently they may not have done their paperwork.
“Nonetheless, I want to be very brief in that area because I don’t think we need to go into it other than indicate that that is, you know, a prison gang, and he has got this tattoo and Maurice [Marshall] says he is one, but I don’t think we should spend a lot of time on it. I mean, you have the Blood evidence, Blood gang evidence, and that is significant.”
On appeal defendant argues that the gang evidence was not relevant because there was insufficient evidence that the charged offense was gang related, i.e., committed for the benefit of, at the direction of, or in association with a criminal street gang. He relies principally upon cases arising under the California Street Terrorism Enforcement and Prevention Act (§ 186.20) addressing enhancements for gang-related activities. (E.g., People v. Martinez (2004) 116 Cal.App.4th 753.) The cases are inapposite.
The matter addressed therein is the criteria for a gang-related enhancement. However, notwithstanding the lack of a gang-related enhancement a trial court may admit gang evidence. (See, e.g., People v. Hernandez (2004) 33 Cal.4th 1040, 1049; People v. Williams (1997) 16 Cal.4th 153, 193.) In such a case the issue is whether the gang evidence was sufficiently probative for some proper purpose (i.e., other than to show illicit bad character) such that the prospect of undue prejudice does not substantially outweigh its probative value. (Ibid.; see, e.g., People v. Dominguez (1981) 121 Cal.App.3d 481, 498-499.)
As noted, a central issue in this case was why defendant shot Jones. The evidence of both the gang membership of the dramatis personae and of the strength of the no-snitching tenet in gangster subculture was highly probative on the theory that defendant shot Jones in retaliation for the role he played in the Wright prosecution. A jurist could reasonably conclude that the potential of undue prejudice, i.e., ire against defendant because he was a gang member, did not substantially outweigh this probative value. Defendant fails to show an abuse of discretion in the ruling admitting gang evidence.
III. Evidence of Jail Assaults
Defendant contends that the trial court erred prejudicially in ruling admissible, over his objections under Evidence Code sections 352 and 1101, evidence about two assaults he committed while incarcerated awaiting trial. The contention is not meritorious.
The prosecutor also by a motion in limine asked the court to determine admissible evidence of the two assault incidents. He described the matter as follows:
“Both uncharged acts occurred while [defendant] was incarcerated at the Sacramento County Main Jail. First, on December 23, 2004, [defendant] pressed the emergency button in his cell and stated that he was having an emergency asthma attack, could not breathe, and needed his inhaler immediately. As Deputy O’Brien and Deputy Fermer opened [defendant’s] cell to escort him to the medical department, [defendant] sprinted out of the cell and charged at another inmate, Carlos Calhoun, who was in the pod dayroom. Deputy O’Brien instructed [defendant] to return; [defendant] ignored the officer’s directives. The officers observed [defendant] throw two punches at Calhoun. At no point during the incident did Calhoun assume an aggressive posture or attempt to retaliate against [defendant]. After Deputy O’Brien restrained [defendant], [defendant] spontaneously stated, ‘you know he’s a snitch and nobody likes that guy. I had to try to get him.’ During his disciplinary hearing, [defendant] stated ‘I am guilty. I had to fight Calhoun because we have been having problems.’
“Several months later, [defendant] attacked another inmate, Steven Quinlan. During the dayroom period on May 14, 2005, Quinlan and inmate Moses Tolvert, began arguing over the use of a telephone. During the altercation, [defendant], who had been standing nearby, ran back to his cell, then returned to the dayroom. As soon as [defendant] returned, Tolvert punched Quinlan in the face five or six times with a closed fist. [Defendant] produced a jail issued toothbrush which had been sharpened at one end, and, with a quick overhand strike, stabbed Quinlan in the back of the head. Another inmate, Robert Robinson, then punched Quinlan two to three times in the ribcage with a closed fist. Quinlan did not attempt to retaliate against his attackers. Quinlan bled heavily as a result of the attack. A half-inch piece of the sharpened toothbrush broke off in Quinlan’s head and was later recovered by jail staff. [Defendant] was charged with attempted murder.
“Quinlan stated that [defendant] and Tolvert, who are cellmates, had previously told him that he ‘better not snitch on them or they “would take care of [him] permanently.”’ Other inmates also reported that [defendant] regularly intimidates and threatens them. Inmate William Johnson stated that, ‘[defendant] runs most of the people in [the pod] because they all fear him.’”
The prosecutor argued that these two incidents were admissible to show the alleged retaliatory intent in the charged offense because they show a motive, scheme or plan to assault for the purpose of intimidating those who might engage in snitching.
The defense argued that the incidents were barred under Evidence Code section 1101 as evidence of bad character, not relevant to prove some fact (such as motive or intent) other than defendant’s disposition to commit criminal acts, offered to prove conduct on a specified occasion. The defense also argued that the incidents should be barred under Evidence Code section 352 as highly prejudicial and that defendant’s “problem with snitches” could be demonstrated with less prejudicial evidence. As to the Calhoun incident, the defense suggested the probative value was slight because the defense “asserted” defendant had called Calhoun a “bitch” rather than a “snitch.” As to the Quinlan incident, the defense argued the probative value was slight because there was no indication that Quinlan had snitched or threatened to snitch.
After listening to the arguments, the trial court reasoned as follows:
“[THE COURT]: The People are seeking to introduce the fact that [defendant] is allegedly a member of a gang. It’s against the gang culture to snitch, and, therefore, that was the motive for the killing, but also the [Evidence Code section] 1101[, subdivision] (b) conduct [e.g., the jailhouse assaults] would further underscore that motive. [¶] It appears that the [Calhoun] assault, given [defendant’s] words allegedly that, and I’m quoting, ‘you know, he’s a snitch. Nobody likes that guy. I had to get him, ’ and that he was retaliating against him for being a snitch; that that is material to the People’s case as it has a tendency to prove--the uncharged conduct has a tendency to prove the charged conduct. [¶] . . . It does appear to me that the probative value of the evidence outweighs any possible prejudice . . . . [¶] . . . [¶] . . . As to the Quinlan matter, he makes the statement, in your motion you say, that ‘better not snitch on them or he will take care of him permanently.’He makes that statement prior to the assault? [¶] . . . [¶] [I]t seems to me to be material as to the motive and the snitch issue with regard to the alleged gang conduct.”
The court ruled that the prosecution would be limited to simply indicating that defendant assaulted Quinlan and the prior snitching threat.
On appeal defendant argues that the trial court erred in admitting this evidence on the ground that evidence of the assaults was not probative because they were not highly similar to the charged offense. Strong similarity would be required if the sole theory of probative value were modus operandi. However, that is not the only basis to sustain the trial court’s ruling.
Evidence of defendant’s emotion of hostility toward snitchers has probative value on the motive for the killing of Jones. (See 2 Wigmore, Evidence (Chadbourn rev. ed. 1979) § 396, p. 439 [“Where an emotion of hostility at a specific time is to be shown, the existence in the same person of the same emotion at another time is in general admissible”].)
For example, where a tenable claim was that an assault was motivated by animus toward police officers, evidence that the alleged assailant had shown such animus on other occasions is probative. (See People v. Gutierrez (2002) 28 Cal.4th 1083, 1138.) Thus, evidence that defendant expressed animus toward those who snitch and acted violently based on that ground is probative.
Both of the assault incidents tend to prove that defendant subscribed to the gang subculture’s precepts generally and to the specific precept that snitching warrants retaliatory assault. In the Calhoun incident the inference is direct, as defendant offered that the victim was a snitch as a justification. The Quinlan incident also affords such an inference, as the assault followed (purportedly by a couple of days) a directly probative threat to Quinlan by defendant of permanent harm for breach of the subculture’s precept against snitching.
Defendant protests that there was no showing the Quinlan assault was in retaliation for snitching. The prosecutor responded below that the assault was nonetheless relevant. He suggested that defendant, in violently and publicly intervening to enforce gang authority against a perceived potential snitcher, was demonstrating a gang allegiance mindset which is relevant to prove his motive in the Jones killing.
In People v. Michaels (2002) 28 Cal.4th 486, 533, the defendant claimed in an extrajudicial statement that he was a contract killer and had committed 10 to 15 contract killings. The trial court admitted this during the penalty phase of the trial. The Supreme Court upheld this ruling on the ground that it tended to show the “defendant’s motive [in the charged murder] to establish a reputation as a contract killer.” (Id. at p. 534.) In this case a matrix of acts demonstrating a willingness to enforce gang authority and precepts has a similar tendency in proof to support the prosecution’s snitch-killing motive. For all the foregoing reasons, defendant fails to show an abuse of discretion in admission of the jail assault incidents.
IV. Taped Telephone Conversation
Defendant contends that the trial court erred in admitting over his objection under Evidence Code section 352 one of the tape recordings of telephone conversations of defendant while in jail awaiting trial. The contention is without merit.
The recording in issue is of a conversation among defendant, his wife and a third person, which occurred on October 8, 2004. By motion in limine, the prosecutor sought a ruling that the tape would be admissible on two grounds: (1) several of defendant’s statements evidenced strong allegiance to the Strawberry Manor Bloods and preoccupation with his self-image and reputation as a violent gangster, supporting the snitch-killing motive; and (2) defendant admitted that he knew what he was doing when he killed Jones. The defense objected that the tape consisted of an angry tirade by defendant replete with prejudicial matter amounting to inadmissible character evidence that substantially outweighed its probative value.
The trial court said that it agreed with defense counsel that much of the tape was “just a rant.” However, it also accepted the prosecution’s thesis about admissible statements and found it hard “to weave and exclude some things and take it out of context.” “The hard part is it’s all one more issue. They are intertwined, and if [you] just play the relevant snippets just out of the blue, it does not give it the context in which it’s said.” When the court asked defense counsel about “just playing the portions that refer to the specific evidentiary areas that the People are referring to, ” counsel replied: “Well, my objection is to the whole tape.” Thereafter, the tape was admitted, with the exception of a minor deletion of a digression concerning sexual assaults in jail.
Defendant argues that the trial court abused its discretion under Evidence Code 352 because the tape contains no relevant evidence other than evidence probative only for the illicit purpose of showing bad character. This conclusory argument does not engage the reasoning of the prosecutor which was accepted by the trial court.
Statements showing defendant was preoccupied with a self-image and reputation as a violent, murderous gangster have a tendency in reason to prove that he killed Jones in retaliation for snitching against a fellow gang member, Wright. A public killing of such a snitch could enhance that self-image and reputation. (Cf., People v. Michaels, supra, 28 Cal.4th at pp. 533-534.) Defendant’s statements that he was going to ruin his whole life “over this one incident” and that he was unconcerned about the consequences “[be]cause I know what I was doing when I did it, ” have a tendency in reason to prove that he killed Jones with premeditation. Defendant’s argument that there was no licit relevancy of the tape recording is unpersuasive. The contention of error in admitting the recording is without merit.
V. Prosecutorial Misconduct in Closing Argument
Defendant contends that the prosecutor committed prejudicial misconduct in the course of closing argument. He points to four claimed instances. None of the claims is meritorious.
A.
The first of defendant’s claims is that the prosecutor committed misconduct in argument because he trivialized the concept of premeditation by comparing premeditated killing to premeditation in everyday decisions, such as whether to use a leaf blower. He suggests that the effect of this juxtaposition was to misstate the law of the burden of proof.
Defendant did not object in the trial court to this claimed misconduct. Accordingly, absent unusual circumstances, the claim of misconduct, if any, is forfeited. (See, e.g., People v. Stanley (2006) 39 Cal.4th 913, 959.) One exception is that the forfeiture rule is inapplicable where the misconduct is egregious and could not have been cured by an admonition. (See, e.g., People v. Green (1980) 27 Cal.3d 1, 34, overruled on a different ground in People v. Martinez (1999) 20 Cal.4th 225, 234-237, 241, disapproved on other grounds in People v. Hall (1986) 41 Cal.3d 826, 834.) Defendant claims this exception is applicable. However, little that counsel says in the heat of argument cannot be cured by an admonition. (See People v. Berryman (1936) 6 Cal.2d 331, 338, overruled on a different ground in People v. Green, supra, 27 Cal.3d at p. 33.) Defendant fails to explain why an admonition would not have sufficed to clarify the burden of proof to his satisfaction. Further, the challenged remarks were a legitimate example of premeditation and did not misstate the law of the burden of proof as to premeditation.
The other exception to the forfeiture rule is when failure to object can only be subscribed to incompetent representation by defense counsel at trial. “However, deciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance.” (People v. Hillhouse (2002) 27 Cal.4th 469, 502.) The claimed misstatement of the law is not starkly incorrect and we cannot say that counsel could not have reasonably decided to forego a chancy objection on tactical grounds. No exception to the forfeiture rule having been made out, it bars this claim.
Defendant also submits that, notwithstanding the settled forfeiture rule and its specific exceptions, there remains an unspecified reservoir of appellate discretion to reach and determine these claims to have been matters of prejudicial error. We reject this view. In this area the rule and its exceptions manifest the scope of reversible error. To be reversible error must be the cause of prejudice to a substantial right. (E.g., §§ 1258, 1404.)
B.
Defendant’s second claim is of Griffin error. (Griffin v. California (1965) 380 U.S. 609 [14 L.Ed.2d 106] (Griffin).) In closing argument the prosecutor said defendant was trying to insinuate that the prosecution witnesses were lying and that he was scoffing at their testimony. The defense objected, citing Griffin, the court overruled the objection and, after a bench conference, the prosecutor continued with the preface that he was referring to evidence of defendant’s extrajudicial remarks. Later, outside the presence of the jury, the defense explained it viewed this as improper comment on the courtroom demeanor of defendant who had not testified. The court explained it had not seen the remarks as Griffin error because it viewed them as comment on extrajudicial statements defendant had made, admitted into evidence, rather than comment on his failure to testify at trial.
In Griffin, supra, 380 U.S. 609, 615 [14 L.Ed.2d 106, 110], the United States Supreme Court declared that the Fifth Amendment prohibits the prosecutor from suggesting that the defendant’s failure to testify in his defense affords an inference of guilt. Defendant offers no persuasive rebuttal of the trial court’s assessment that the prosecutor’s remarks did not reflect on defendant’s courtroom demeanor. Accordingly, the claim of Griffin error has no merit.
C.
Defendant’s third claim of prosecutorial misconduct is that the prosecutor improperly exhorted the jurors to rush to convict. The prosecutor concluded the first segment of closing argument as follows: “This is first degree murder from day one. It’s nothing but first degree murder. [¶] I ask you to return that verdict as soon as you can.” Defendant complains of the last sentence.
No objection was made at trial. This remark does not constitute misconduct. But even if we assume the prosecutor’s remark, tepid and equivocal at worst, was misconduct, under the authorities previously discussed, the contention of prosecutorial misconduct is forfeited for failure to object and seek a curative admonition.
D.
Defendant’s last claim is that the prosecutor committed misconduct by asserting in closing argument that gang members who are armed are never entitled to invoke self-defense, even when they are responding to an attack by rival gang members. The remark to which he objects is: “Gangsters that arm themselves with guns and ammunition and go out to party on a Friday night armed, you know, they don’t get a right to self-defense.”
The challenged remark was made in the course of discussion of the self-defense instruction. The prosecutor was specifically addressing the limitation in the instruction that self-defense is not available to a person who seeks a quarrel to create an opportunity for its exercise. In that context, and with the following reaffirmation that it pertained to somebody who sought out a quarrel, the remark is not a misstatement of the law, hence not misconduct. “Self-defense is not available as a plea to a defendant who has sought a quarrel with the design to force a deadly issue and thus, through his fraud, contrivance, or fault, to create a real or apparent necessity for killing.” (People v. Hecker (1895) 109 Cal. 451, 462.)
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P. J., CANTIL-SAKAUYE, J.