Opinion
C075230
03-13-2018
THE PEOPLE, Plaintiff and Respondent, v. JUSTIN BRYAN BERGO, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 11CR18010)
A jury convicted defendant Justin Bryan Bergo of the first degree murder of his mother with the special circumstance of lying in wait. The trial court sentenced defendant to life in prison without the possibility of parole plus a one-year enhancement for personal use of a deadly weapon in the commission of the crime.
The mother's neck had been slashed and she sustained more than 20 other stabbing and cutting wounds. Investigators learned that defendant had previously purchased a ScubaPro K-6 diving knife but investigators could not find it among his possessions after the murder. The investigators purchased a knife just like it and used it for testing. The investigators discovered that when they thrust the diving knife to its hilt in a watermelon, the knife made the same unique imprint on the watermelon that police found on the mother's body and on the bedding where the mother died: a point on one side and a Y-shape on the other.
Defendant now contends (1) evidence of the watermelon testing should not have been admitted; (2) the prosecutor's closing argument improperly invited the jury to compare the serrations on the diving knife with blood spatter marks on a pillowcase; (3) defendant was denied his rights to a speedy trial, to be present for read-back of testimony during jury deliberations, to a fair and impartial jury when the trial court denied his motion to change venue, and to self-representation; and (4) the cumulative effect of the foregoing errors rendered the trial unfair. Moreover, in a supplemental brief, defendant argues (5) he was denied effective assistance of counsel because, without defendant's consent, his attorney's closing argument effectively admitted his guilt.
We will affirm the judgment.
BACKGROUND
After defendant's father died, defendant inherited a house and other property. But defendant was unemployed, had gone through most of the inherited money, and had maxed out his credit cards. A former coworker said defendant talked about a dispute with his mother over the distribution of his father's estate; defendant said he did not want his mother to have the money. Defendant's former roommate testified about a heated telephone exchange he overheard when the mother asked defendant for money.
Defendant said he drove his mother from San Jose (where she was homeless) to the town of Sutter Creek (where she had grown up and had been married) to help her obtain birth and marriage certificates so she could apply for Social Security survivor benefits. They checked into a hotel.
Although the hotel room displayed a do not disturb sign, when nobody checked out or responded to calls or knocks on the door, the hotel owner, along with the manager, entered the room and discovered the mother's body slumped over the side of a bed. A police officer dispatched to the scene found a large amount of dried blood. The mother had been dead for 24 to 36 hours. A pathologist testified that she was likely in bed and may have been asleep when she was attacked. She had defensive wounds on one hand. None of the 27 cuts, stabs and slashes on her upper body was immediately lethal, so it probably took about 15 minutes for her to die.
Defendant denied killing his mother. He said that on the night of the murder he ate dinner and drank a margarita in the hotel room, then left his mother alone there at about 9:30 p.m. so he could enjoy some peace and quiet in the parking lot; he said he chewed tobacco and smoked a couple of cigarettes. When he returned to the room at about 11:30 p.m., he was shocked to find his mother dead. Fearing he would be blamed, he did not call police, but instead went to Cuba where he knew he would not be extradited. He stayed in Cuba only a few days before deciding to return. Authorities detained him in Tijuana and returned him to this country.
An investigator testified that some of the mother's wounds had an imprint he did not recall ever seeing before: there was a point on one side and a Y-shape on the other. The jury saw autopsy photographs showing that imprint. The same mark appeared on a blanket and sheet in evidence.
Knives found in defendant's vehicle were ruled out as possible murder weapons, but an investigator discovered a receipt showing that defendant had purchased a knife in Florida that matched the rough dimensions the pathologist said were likely to have made the mother's wounds: a thick, heavy blade, one-inch wide, six to seven inches long, sharp on one side with serrations on the other. Defendant admitted buying and owning such a knife, but when it was not found among his possessions, investigators bought a new one just like it to determine whether it could make marks like those found on the mother's body and bedding. The knife purchased by the investigators, a ScubaPro K-6, was admitted into evidence. An investigator testified that he plunged the knife into a watermelon at different depths to compare the marks on the watermelon with those on the mother's body and bedding. A photograph of the watermelon after testing was admitted into evidence. The pathologist testified the mother had no wounds that could not have been made by a ScubaPro K-6.
During closing argument, defendant's trial counsel noted defendant's DNA was not found in the blood at the murder scene and there was no blood among defendant's possessions, adding: "there was no indication that he was wearing his watch at the time that he killed his mother." In rebuttal, the prosecutor invited the jury to compare blood splatter on a pillowcase in evidence with the serrations on one side of the ScubaPro knife.
The jury found defendant guilty of first degree murder (Pen. Code, § 187, subd. (a)), found that he intentionally killed the victim by means of lying in wait (§ 190.2, subd. (a)(15)), and found that he personally used a deadly and dangerous weapon in the commission of the crime (§ 12022, subd. (b)(1)). The trial court sentenced defendant to life in prison without the possibility of parole plus one year for the weapon enhancement.
Undesignated statutory references are to the Penal Code.
Additional facts are included in the discussion.
DISCUSSION
I
Defendant contends evidence of the watermelon testing should not have been admitted. He claims the evidence was so prejudicial that a new trial is warranted.
The investigator who conducted the watermelon test said he noticed from the autopsy that many of the mother's wounds had a very particular imprint: a point on one end and a Y-shape on the other. The investigator made a similar mark on a watermelon by plunging the knife almost to its hilt. A hook near the knife's handle made the distinctive "Y" pattern when the knife was withdrawn. The investigator admitted he did not use any other knife on a watermelon, did not determine whether any other knife could cause the imprint, and did not determine whether watermelons are comparable to human bodies.
Before trial, the prosecutor said he intended to offer a photograph of the marks left on the watermelon by the knife. Defendant argued the photograph should be excluded because the marks were created by an "experiment" that did not meet the requirements set forth in People v. Bonin (1989) 47 Cal.3d 808, 847 (Bonin).
In Bonin, a criminalist wrapped a T-shirt around his upper arm and testified that it made marks like the striations on a murder victim's neck, thereby corroborating another witness's testimony that the victim had been strangled with a T-shirt. (Bonin, supra, 47 Cal.3d at pp. 846-847) The California Supreme Court held the evidence was inadmissible because the prosecutor did not establish that the criminalist's upper arm was similar to the victim's neck or that the pressure applied to the arm was similar to pressure applied to the neck; in addition, the criminalist conceded he was not qualified to conduct the experiment. (Id. at p. 847.) Nevertheless, the Supreme Court concluded the error was not prejudicial and did not require reversal under the Watson standard (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson) [error is harmless unless it is reasonably probable the defendant would have achieved a more favorable result]). (Bonin, at p. 848.)
Here, defendant argues the substantial differences between watermelons and humans should have kept the evidence out. The forensic pathologist said human skin is far more elastic than a watermelon rind and plunging the knife into an uncooked pig carcass would have provided a better comparison.
But even if there was evidentiary error, it was harmless. If the watermelon evidence had been excluded, the jury still would have heard the pathologist's testimony describing the murder weapon's distinctive features and his conclusion that the diving knife could have made every one of the wounds on the mother's body. Combined with evidence of defendant's rift with his mother, his flight after the crime, and his acknowledged ownership of a knife matching the pathologist's description of the murder weapon, it is not reasonably probable that the jury would have reached a different result absent the watermelon evidence. Accordingly, there was no prejudice. (Watson, supra, 46 Cal.2d at p. 836.)
II
Defendant next claims the prosecutor's closing argument improperly invited the jury to compare the serrations on the diving knife with blood spatter marks on a pillowcase. He argues it would be misconduct for the jury to make that comparison, describing it as an experiment outside the scope of the admitted evidence.
Prior to closing argument, the prosecutor informed defense counsel that he had just compared the diving knife to slits in the pillowcase. Defense counsel asked the judge outside the jury's presence for a ruling prohibiting the prosecutor from bringing that comparison up in closing argument because there had been no testimony about it and there would be no way to rebut it. The prosecutor pointed out that the defense had known about the knife for a year and had possessed the pillow long enough to conduct testing on it. There was colloquy about jury experiments followed by the court reading aloud and analyzing relevant case law before overruling defendant's objection.
The prosecutor gave his initial closing argument and did not mention a comparison of the knife and the pillowcase. Defense counsel then argued the DNA evidence was inconclusive, defendant should have been bloodier if he had been the killer, he had no motive to kill his mother, and a weapon other than a diving knife could well have been the murder weapon. Describing specific details of the mother's wounds, defense counsel said the bottom line was that the murder weapon was not defendant's diving knife. On rebuttal, the prosecutor recounted the trial evidence, suggesting the holes in the bedding and in the mother's body pointed to a stabbing attack by a right-handed assailant while the mother was in bed. He then reminded jurors they would have access to the knife and the bloody pillow during deliberations and they could hold the knife up against the pillow to compare the dots of blood on the pillow with the serrations on the knife's edge and see that the "little dots are going to line up exactly with the serrations." He called the pillowcase blood spatter "one more piece of evidence of what exactly killed" the victim. Defense counsel did not object.
We disagree with defendant's characterization of the prosecutor's argument as inviting an "experiment" or inviting the jury to consider evidence that had not been admitted. The prosecutor did not present new evidence during closing argument and did not violate a trial court order. And the prosecutor did not invite the jury to conduct an improper experiment; rather, he asked the jury to make a more critical examination of the admitted evidence. Defendant claims it was a "cheap shot" and a violation of the prosecutor's duty to do justice, but there was no objection.
Defendant cites People v. Engstrom (2011) 201 Cal.App.4th 174 (Engstrom) and People v. Collins (2010) 49 Cal.4th 175 (Collins) in support of his contention, but those cases do not assist him. Engstrom involved a juror with an engineering background who suggested during deliberations that an expert's calculation of marijuana yield was incorrect and that the jurors should recalculate the yield. (Engstrom, at p. 181.) This court held the jurors engaged in a "reasonable, commonsense interpretation and application of the evidence admitted at trial" to recalculate defendant's marijuana yield, and the jury did not commit misconduct. (Id. at p. 188.) And Collins involved a juror who worked out height patterns on his computer and then used string and a protractor during deliberations to demonstrate the different possible angles in which a bullet could have traveled through the murder victim's skull. (Collins, at pp. 237-238, 250-251.) The California Supreme Court held the juror did not acquire new evidence, did not conduct an improper experiment, and did not commit misconduct. (Id. at pp. 243, 251-253, 255-256.)
Here, defendant does not claim, nor does he cite evidence of, juror misconduct. Although there is no indication the jurors asked to see the pillowcase or actually compared it to the knife, it would not have been misconduct for the jurors to have done so because the knife and the pillowcase were both admitted into evidence. The cases cited by defendant establish that a jury may conduct a " 'more critical examination' " of the admitted evidence. (Collins, supra, 49 Cal.4th at p. 256; see Engstrom, supra, 201 Cal.App.4th at p. 188.) Moreover, the trial court instructed the jury that arguments of counsel are not evidence.
Defendant also claims his trial counsel's failure to object constituted ineffective assistance of counsel. To prevail on such a claim, a defendant must prove counsel's performance fell below the standard of reasonable competence and resulted in prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687, 695 [80 L.Ed.2d 674, 693, 698] (Strickland); People v. Anderson (2001) 25 Cal.4th 543, 569.) When the challenged conduct of counsel may have been the result of an informed tactical decision, we must uphold the conviction. (Anderson, at pp. 569-570.) The same is true if there is no reasonable probability that the result of the proceeding would have been different but for counsel's error. (Id. at p. 569.) Here, trial counsel's lack of objection may well have been a tactical decision. Counsel may have desired to minimize the jury's exposure to the topic of comparing the knife and the pillowcase. And, given the nature and quantity of evidence of defendant's guilt, we cannot say there is a reasonable possibility of a different trial result if defense counsel had objected to the brief comment by the prosecutor.
Defendant's assertions lack merit.
III
Defendant further argues he was denied his rights (A) to a speedy trial, (B) to be present for read-back of testimony during jury deliberations, (C) to a fair and impartial jury when the trial court denied his motion to change venue, and (D) to self-representation. We address each argument in turn.
Defendant claims he was denied a speedy trial. The right to a speedy trial is guaranteed by the federal and state constitutions. (Barker v. Wingo (1972) 407 U.S. 514, 515 [33 L.Ed.2d 101, 108]; Cal. Const., art. I, § 15; see also § 1382; Sykes v. Superior Court (1973) 9 Cal.3d 83, 88.) Section 1382 provides for a mistrial unless a felony trial is conducted within 60 days of arraignment or indictment, a defendant requests or consents to a waiver, or good cause is shown. Delays caused by the defendant's conduct or for his benefit or by unforeseen circumstances create good cause for delay. (People v. Hajjaj (2010) 50 Cal.4th 1184, 1198.)
Defendant was arrested on March 19, 2011. The People originally sought the death penalty. When defendant first appeared on March 23, 2011, he entered a four-week time waiver so he could retain his own lawyer; he asked for another four-week waiver on April 21, 2011. On May 19, 2011, defendant asked the trial court to appoint counsel for him, but since the local public defender's office did not handle death penalty cases the court needed time to appoint counsel; defendant agreed to another four-week time waiver. On June 16, 2011, counsel was appointed for defendant, but the court-appointed lawyer was in trial on another matter until July 2011. Defendant personally waived time.
On January 10, 2012, the People elected not to seek the death penalty. In April 2012, defendant waived time again.
The record shows a period of time in which the prosecutor was ready for trial and defendant did not want to waive his right to a speedy trial, but his defense counsel repeatedly cited Townsend v. Superior Court (1975) 15 Cal.3d 774, saying he needed more time to provide defendant with effective representation. Trial commenced on September 10, 2013.
Defendant claims to have made an oral motion to dismiss under section 1382 in August 2013, but the record shows only that he wanted to make a motion and that the trial court told him he was represented by a lawyer who would have to make the motion on his behalf; there is no record that a motion was made. An appointed criminal attorney has the exclusive right to appear for an accused and to control the proceedings (People v. Merkouris (1956) 46 Cal.2d 540, 554-555), and consent to a postponement is presumed absent a timely motion for dismissal. (People v. Wilson (1963) 60 Cal.2d 139, 146.)
Acknowledging that reviewing courts have found delays substantially longer than the delay in this case did not violate the speedy trial guarantee, particularly where the delay was not caused by the prosecution, defendant notes he was not personally responsible for the delay. But the record shows his attorney desired the additional time to adequately represent him.
Defendant claims his trial counsel was too busy and cites People v. Johnson (1980) 26 Cal.3d 557 for the proposition that dismissal may be appropriate when the only cause of delay is appointed counsel's extensive commitments to other clients. (Id. at pp. 572-573.) However, that was not the only reason for the delay in this case; here, trial counsel wanted more time to prepare the case and evaluate DNA evidence.
In any event, defendant has not established prejudice. (See People v. Lomax (2010) 49 Cal.4th 530, 557.) If defendant had brought a successful motion to dismiss, the prosecution could have simply refiled charges. (§ 1387; Crockett v. Superior Court (1975) 14 Cal.3d 433, 438-439.) And there is no indication the delay hampered, rather than benefited, his defense. (See People v. Martinez (2000) 22 Cal.4th 750, 767-768 [constitution protects against a trial so delayed that the defense is weakened through dimming of memories, death or disappearance of witnesses and loss or destruction of material physical evidence].) Prejudice is not presumed. (Id. at p. 767.)
Although the right to speedy trial is analyzed somewhat differently under federal law (Barker v. Wingo, supra, 407 U.S. at pp. 530-532), here the result is the same. Defendant has not presented evidence that the delay was attributable to the prosecution except for an unsupported assertion that the investigation process should have been quicker. Because an attorney is the defendant's agent for acting or failing to act in furtherance of litigation, delay by defense counsel is charged to the defendant, not the State. (Coleman v. Thompson (1991) 501 U.S. 722, 753 [115 L.Ed.2d 640, 671]; Vermont v. Brillon (2009) 556 U.S. 81, 92 [173 L.Ed.2d 231, 241].) It was not unreasonable for defense counsel to believe it would have been against defendant's interests to begin trial while DNA evidence was still being analyzed, and we have reviewed the record and find no evidence of dilatory tactics. Moreover, no witness became unavailable because of the delay and no evidence was destroyed or lost. There was no denial of defendant's federal constitutional right to a speedy trial.
B
Defendant claims his rights were violated because he was not allowed to hear some testimony as it was read back to the jury during deliberations. Not so.
The jury wanted to review the hotel manager's testimony about what he saw when he entered the hotel room. The parties stipulated the court reporter could read back the testimony. The record does not indicate that defendant was present or that he raised an objection. The testimony at issue encompassed less than two pages of the reporter's transcript. The manager, accompanied by the hotel owner, said he opened the door and saw somebody slumped over the side of a twin bed but the hotel owner, three steps behind him, immediately said, "Stop. Come back out of the room."
The read-back of testimony during jury deliberations is not a part of trial and defendant is not constitutionally entitled to observe it. (People v. McCoy (2005) 133 Cal.App.4th 974, 981-983 [citing state and federal authority construing the right to be present at each "critical stage" of a criminal proceeding].) Defendant's claim lacks merit.
C
Defendant also contends his oral motion to change venue was unfairly denied.
On the second day of jury selection, a local newspaper published an article entitled, "Days Inn Murder Trial Underway This Week." Later that morning, the trial court cautioned the potential jurors that the published article was full of unreliable or irrelevant information and warned them that receiving impressions about the case from a newspaper would be a contempt of court. The court reread the cautionary admonition about receiving information from sources outside the courtroom, saying "I can't emphasize the importance of following these rules too much." Every potential juror agreed to strictly follow the instruction before jury selection resumed.
On the third day of jury selection, defense counsel informed the trial court that defendant was very concerned about the article and thought the admonitions were inadequate; defense counsel orally requested a change of venue. The trial court denied the request, agreeing with the prosecutor's observation that no juror or prospective juror had been affected by the article.
The trial court then addressed another panel of potential jurors, asking if anyone had read the article. The trial court excused those jurors who admitted they had read the article and could not be sure about its influence on them. The trial court again ordered the panel not to read, listen to, or watch any news reports about the case and they agreed. A fourth panel was called and questioned about the news article. Four potential jurors who had some knowledge of the case were questioned but promised not to be influenced by what they had heard or read. Defendant had 20 peremptory challenges. He had challenges remaining when twelve jurors had been seated and even when he accepted the last alternate juror.
A trial court must grant a change of venue if there is a reasonable likelihood the defendant will otherwise be denied a fair trial due to the dissemination of potentially prejudicial material. (Maine v. Superior Court (1968) 68 Cal.2d 375, 383, adopting the standard in Sheppard v. Maxwell (1966) 384 U.S. 333, 363 [16 L.Ed.2d 600, 620].) A reasonable likelihood means something less than " ' " 'more probable than not' " ' " and something more than merely " ' " 'possible.' " ' " (People v. McCurdy (2014) 59 Cal.4th 1063, 1075.) To weigh likelihood, the trial court considers the nature and gravity of the offense, the size of the community, the status of the defendant and victim, and the nature and extent of publicity. (Ibid.) On appeal, the defendant must show both that denial of the motion was an error and that the error was prejudicial. (Ibid.) We sustain the trial court's assessment of facts if it is supported by substantial evidence and we independently review the ultimate determination of the reasonable likelihood of an unfair trial. (Ibid.)
Defendant did not renew the motion to change venue after jury selection. But renewal is required to preserve the issue for appeal. (People v. Hart (1999) 20 Cal.4th 546, 598.) And when there is no renewed motion and no explanation in the record for defendant not using all available peremptory challenges, we accept counsel's inaction as recognition that the impaneled jury was fair and impartial. (People v. Daniels (1991) 52 Cal.3d 815, 854.)
Even if defendant had not forfeited his venue challenge, we would find it meritless. Defendant cites People v. Williams (1989) 48 Cal.3d 1112 as authority for his contention that judgment must be reversed. However, that rape, robbery, kidnapping, and murder case merited a change of venue for many reasons, including the sensational nature of the crime, its racial and sexual overtones, extensive pretrial publicity of the case generally, and the earlier publicized trial of a codefendant in which defendant was identified as the actual "triggerman." (Id. at pp. 1124-1125) The "local community was too familiar with the crimes, the victim and her family, the district attorney and the prosecution witnesses, to permit the trial to proceed there." (Ibid.) The jury selection process revealed that 35 of 250 potential jurors knew the victim, her family or her boyfriends but only six were excused for cause and not a single potential juror knew the defendant; moreover, of the 12 jurors seated, two-thirds had read or heard of the case, three had family members working for the local law enforcement agencies, and two knew the district attorney. (Id. at pp. 1129-1130.) The defendant "easily exhausted" his 26 peremptory challenges. (Id. at p. 1130.) Here there is no evidence in the record that potential jurors knew the victim or her family or the witnesses and no evidence that the crime was sensational enough to trigger a sense of community outrage or revenge of the sort described in Williams. Defendant has not demonstrated the reasonable likelihood of an unfair trial.
D
Defendant claims the trial court improperly denied his motion to represent himself.
At a scheduled hearing, defense counsel said, "[M]y client indicated to me that he wants to address you about his rights." The court said, "[Defendant], you have a lawyer. You have a lawyer for a reason." The defendant said, "I choose to represent myself, and I would like to be able to preserve my right to have the assistance of counsel if -- well, in the future. And also I'd like to ask the court to appoint me a [¶] . . . [¶] standby and advisory counsel." Defendant then began to argue that the seizure of his truck was illegal and unreasonable and that he was entitled to dismissal because he was not immediately given a copy of the complaint after his arrest. The court told defendant he could not argue on his own behalf without first making a request in writing to represent himself; at the court's suggestion, there was a break so that defense counsel could explain the procedure to defendant. The court said it intended to hear the matter the parties had scheduled for argument (return of the truck), but it could not entertain an unscheduled Faretta motion.
Faretta v. California (1975) 422 U.S. 806 .)
Because an accused has the personal right to present a defense, he also possesses the right to represent himself. (Faretta v. California, supra, 422 U.S. at p. 819.) Faced with a defendant's demand to represent himself based on that authority, the court must "evaluate all of a defendant's words and conduct to decide whether he or she truly wishes to give up the right to counsel and represent himself or herself and unequivocally has made that clear." (People v. Marshall (1997) 15 Cal.4th 1, 25-26.) Here, even if defendant's brief comment could be construed as an unequivocal demand to represent himself, he forfeited the issue by abandoning it.
Defendant concedes there was no mention of self-representation after the May 9 comment, and he acknowledges the holding in People v. Kenner (1990) 223 Cal.App.3d 56, 62, that failure to reassert the right to a Faretta hearing demonstrates abandonment or withdrawal. In Kenner, a defendant made a "timely and unequivocal" Faretta motion after denial of his motion for new counsel. (Kenner, at p. 58.) Later, after other court appearances and trial, his appeal on the subject was forfeited because he "had ample opportunity to call the court's attention to the neglected Faretta motion, but did not." (Id. at p. 62.)
As we have recounted, defendant's truck had been held for longer than he considered reasonable and he was anxious that it be returned so he could sell it to pay his bills. But once the trial court directly addressed that concern, there was no further mention of self-representation. Defendant's conduct between the time he made the comment and the time of trial demonstrates an abandonment of self-representation.
IV
In addition, defendant contends the cumulative effect of the foregoing asserted errors rendered his trial unfair. Because we have determined there was no error, defendant's claim of cumulative error lacks merit. (See People v. Bradford (1997) 15 Cal.4th 1229, 1382.)
V
Moreover, in a supplemental brief, defendant argues he was denied effective assistance of counsel because, without defendant's consent, his attorney's closing argument effectively admitted his guilt.
The right to effective assistance of counsel extends to closing arguments, but the decision of how to argue to a jury is inherently tactical and judicial review of a summation argument is highly deferential. (Yarborough v. Gentry (2003) 540 U.S. 1, 6 [157 L.Ed.2d 1, 8].) To establish a violation of the constitutional right to effective assistance of counsel, a defendant must demonstrate that defense counsel's performance was so deficient that, but for his errors or omissions, there is a reasonable probability the result would have been different. (Strickland, supra, 466 U.S. at p. 694.) The parallel burden under state law requires a " 'demonstrable reality' " of prejudice, not just speculation about the effect of errors. (People v. Williams (1988) 44 Cal.3d 883, 936.)
Defendant's attorney began his closing argument with a brief summation of the forensic evidence. He described numerous pieces of evidence from which the defendant was excluded as a possible donor of DNA, then mentioned the absence of blood in defendant's truck, concluding, "if he had done this killing himself, you would expect there to be his DNA all over the place. It wasn't. It just wasn't. There's only a couple of examples. And we'll talk about those in a minute. [¶] His watch, now, a watch, if it's worn while you're killing somebody, can pick up a lot of little flakes of blood and everything, and criminalists can detect all that. Well, his watch was carefully examined, and there was no indication that he was wearing his watch at the time that he killed his mother. No blood whatsoever on the watch."
Following the watch comment, counsel argued evidence from the mother's fingernail scrapings was either inconclusive or excluded defendant. Finally, he criticized the prosecution's expert at length for her biased, unscientific "common sense" conjecture about a small spot of blood found on defendant's shoe that the evidence established could have come from either defendant or the mother. The forensics-focused argument was followed by a much lengthier and broader argument.
Counsel began his remarks by reminding the jury of its obligation to interpret evidence with the presumption of innocence. Taken in context, the comment about defendant's watch was a mistake, but it was not a concession of defendant's guilt. The ultimate point of the argument was that there was surprisingly little forensic evidence and the little evidence there was either excluded defendant or was inconclusive. The prosecutor did not mention the watch comment on rebuttal, supporting our conclusion that the comment was not an admission of defendant's guilt. Moreover, the jury was instructed not to consider anything the attorneys said in opening or closing statements as evidence. We must presume the jury followed the trial court's instructions (People v. Holt (1997) 15 Cal.4th 619, 662), and we decline to interpret the isolated comment as defendant suggests.
There is also no prejudice. (See People v. Avena (1996) 13 Cal.4th 394, 422-423.) Defendant failed to report his mother's death and fled the country. The knife evidence was compelling and defendant, financially pressed, had ongoing conflicts with his mother about money. There is no reasonable probability that the watch comment was prejudicial.
DISPOSITION
The judgment is affirmed.
/S/_________
MAURO, J. We concur: /S/_________
BUTZ, Acting P. J. /S/_________
NICHOLSON, J.
Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------