Opinion
A120812
7-14-2009
THE PEOPLE, Plaintiff and Respondent, v. GINO BUGGS, Defendant and Appellant.
Not to be Published in Official Reports
A jury convicted defendant Gino Buggs of assault by means of force likely to produce great bodily injury. Defendant contends his conviction must be reversed due to the following asserted trial court errors and prosecutorial misconduct: (1) allowing the victims in-court identification into evidence; (2) refusing to instruct the jury on the destruction of potentially exculpatory evidence; (3) failing to instruct sua sponte on the significance of drugs, alcohol, or mental impairment in assessing the credibility of witnesses; and (4) improper prosecutorial argument regarding factors affecting witness credibility. We find no merit in defendants contentions, and affirm the judgment.
I. BACKGROUND
Defendant was charged by information with assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1); counts one and three) and second degree robbery (§§ 211, 212.5, subd. (c); count two). The information alleged personal infliction of great bodily injury (§12022.7, subd. (a)) in conjunction with all counts and that defendant personally used a knife (§ 12022, subd. (b)(1)) in conjunction with the robbery charge. The information alleged two prior strikes (§§ 667, subds. (b)-(i), 1170.12) and two prior serious felony convictions (§ 667, subd. (a)(1)). Defendant pleaded not guilty.
All further statutory references are to the Penal Code unless otherwise specified.
Count one charged defendant with throwing the victim off of a balcony before stabbing and robbing her. Count three charged him with the stabbing.
Trial by jury commenced on September 19, 2007.
A. Prosecution Case
On January 4, 2004, Karen Woodard walked from her mothers home in Richmond toward her sister Marilyns home. Karen noticed defendant following her as she cut through an alley. She heard him walking behind her and turned around. He was about 10 feet away. Defendant identified himself as "Al Pachino" and asked Karen if she was Lindas sister. She said she was. Defendant told Karen he was looking for sex. Karen said nothing and continued walking. She was scared of defendant. Defendant continued to follow her. He told her she owed him $12. Karen began walking fast and went up the steps to an apartment building because she thought that might make him stop following her.
Defendant followed Karen up the stairs, talking to her. He repeated that he was Al Pachino, said his fathers name was Amos, and told Karen she owed him $12. When Karen got to the balcony she looked over the balcony and saw her first cousin, Randolph White, aka "Bony," across the street. She called out to White for help. White moved toward the balcony and recognized Karens voice calling him Bony. He saw her and defendant on the balcony. Defendant said to White, "[Y]ou know who I am, Gino." Defendant was complaining that someone took his money. He grabbed Karen and hit her in the face. Defendant threw her off the balcony. White caught her and broke her fall so that she ended up on her feet. Karen realized that she had been stabbed in the back of the legs. She tried to run but fell to her knees at first.
Karen ran around the building and across the street but defendant ran after her and caught her outside of a senior center. Defendant stabbed her repeatedly, kicked her in the head, and ordered her to give him money. She passed out a couple of times during the attack. Karen gave defendant her fanny pack containing $ 90 and three $100 money orders. She never saw the pack again.
Karen went into the senior center and the police and an ambulance were called. When Karen first spoke with police, she thought she was going to die. She told the police to catch her attacker who she thought may have run to his fathers house, which she knew was on First Street. Amos was well known in the neighborhood. Contra Costa Sheriffs Deputy Nicole Bolden testified that Karen told her she had been stabbed by a Black male named Tino, who sometimes stayed at his fathers house. Bolden went to Arthur Amoss house based on the information provided by Karen. Amos stated that he had a son named Tino whose last name was Martin. Defendants middle name is Martin.
A few months after the incident, Karen was unable to identify defendant from a photographic lineup. She denied speaking with White or her sister Cherie about the incident. She denied knowing defendant or having any disagreement with him before the incident occurred. She admitted she was using crack cocaine on a regular basis at the time of the attack, but denied having taken any on the day or evening it occurred. She also admitted that she had been diagnosed with major depressive schizophrenia.
After seeing defendant pursue Karen, White went to Amoss house to tell him that defendant was chasing her down over some money that Karen had taken from him. At the house, he saw Amos, Karens sister, Cherie, and Cheries boyfriend, Whitney Dase, who was defendants cousin. He told them that defendant had thrown Karen off the balcony and was chasing her. White and Dase walked toward the apartment complex and encountered defendant. Dase and defendant argued, and defendant told Dase not to come back to Amoss house. Defendant accused Dase of having something to do with his missing money.
White identified defendant as the perpetrator in a photographic lineup on March 22, 2004. He had known defendant for years.
On January 4, 2004, Cherie was living at Arthur Amoss home with Dase, who was Amoss nephew. Cherie is a crack cocaine user and had smoked crack cocaine with Dase on January 3, 2004. Defendant came to Amoss house in the early evening on January 4, 2004, and Dase introduced him to Cherie as his cousin Gino. Later that evening, Cheries cousin, Randolph White, came to Amoss home. He told them somebody was beating Karen up. Dase put on his shoes and ran out the door. Defendant arrived at Amoss home after that. He was holding a knife and telling Cherie to get out of his "daddy house." He was asking, "Where my money, where my money[?]" Cherie ran to her mothers house around the corner. Dase came to her mothers house later and told her that Gino had stabbed Karen and swung a knife at him. According to Cherie, Dase told her that he had stolen $200 out of defendants wallet, split it with a friend named Deon, and used it to purchase drugs.
Dase testified that he followed White out of Amoss house on January 4, but returned to Amoss house when he saw the police, and did not run into defendant. When Dase got back to Amoss house, he saw defendant leaving the house on a bicycle. Defendant appeared to be angry and said that someone had taken money from him. Dase denied taking defendants money and denied telling Cherie that he had done so. He never saw defendant with a knife.
Detective Kay Belk spoke with Cherie on January 20, 2004. Cherie told her that Dase had admitted taking defendants money. On March 1, 2004, Belk showed Cherie a photographic lineup that included Arthur Amos, Jr. She did not identify anyone. On March 22, 2004, Belk showed Cherie another photographic lineup. She identified defendant as the man who had been introduced to her as Gino and had threatened her with a knife. During her investigation, Belk did not discover any motive for Cherie or White to lie about defendants involvement in the attack.
B. Defense Case
Maggie Wilson testified that she was living at Arthur Amoss house on January 4, 2004. On that date, she saw Gino come into the house and sit on the couch with his father, but she did not see him with a knife. She could not estimate what time during the evening she saw him. She remembered Randolph White arriving at the house sometime after seeing defendant. He did not say Karen was being attacked or needed help. He told Amos words to the effect that Amoss son was in trouble.
Blanis Conley testified that she had used drugs and alcohol with Karen Woodard in the past. They would find a victim, and one of the women would "turn tricks" with the victim and the other would rob the victim when it was over. They did this maybe 100 times in the course of about eight years during the 1990s. Conley testified that Karen was not trustworthy and that Cherie and White were also not truthful.
Recalled by the defense, Dase testified that White did not identify defendant as the person who was beating Karen up when he arrived at Amoss house on January 4, 2004. Dase testified that White was a crack cocaine user at the time. In Dases opinion, Cherie was not an honest person. She lied to the police in May 2002, falsely claiming Dase had broken her arm when she had actually been hitting him. She also told the police he had drugs and a gun in the house even though these items did not belong to him.
Defendants sister, Sonya Cooper, testified that defendant lived with her in Sacramento on January 4, 2004. Prior to his arrest in August 2004, he worked full-time for Apple Computer Company in Elk Grove. Cooper knew Randolph White and testified that he is a liar and that Cherie Woodard is also untrustworthy. Cooper testified that Amos was her and defendants stepfather. She referred to Amos as her dad when she was growing up, but defendant did not.
A urine sample taken from Karen at the emergency room on January 4, 2004 tested positive for cocaine and opiates.
C. Verdicts, Sentencing, and Appeal
The jury could not reach a verdict as to counts one (throwing victim from balcony) and two (robbery), and the trial court declared a mistrial as to these counts. The jury found defendant guilty of count three (stabbing) and found the personal infliction of great bodily injury allegation true. Following a waiver of his right to a jury, the court found true that defendant had suffered two strike priors within the meaning of section 667, subdivision (a). The prosecution dismissed counts one and two. At his sentencing hearing the court struck one of defendants priors pursuant to section 1385, and sentenced defendant to an aggregate term of 19 years in state prison.
Defendant timely appealed.
II. DISCUSSION
Defendant contends the judgment must be reversed due to the following asserted trial court errors: (1) allowing the victims in-court identification into evidence; (2) refusing to instruct the jury on the destruction of potentially exculpatory evidence; and (3) failing to instruct sua sponte on the significance of drugs, alcohol, or mental impairment in assessing the credibility of witnesses. Defendant additionally claims a violation of due process based on improper prosecutorial argument regarding the factors affecting witness credibility.
A. In-court Identification
1. Facts
The victim was unable to make an identification from a photographic lineup shown to her in 2004. At the preliminary hearing in September 2005, the defense requested to be allowed to question witnesses as to the identification issues before defendant was brought into the courtroom for the rest of the preliminary examination. The court denied the motion, pointing out that the defense had never requested a pretrial line-up. The victim identified defendant as the perpetrator at the preliminary hearing. When she identified him, defendant was the only African-American present at the defense counsel table, and the only person wearing yellow prison garb in the courtroom. At trial, defendant moved in limine to exclude the victims identification of him at the preliminary hearing as being unduly suggestive. The trial court denied the motion.
2. Analysis
Defendant contends the preliminary hearing identification procedure was so unduly suggestive and conducive to a mistaken identification that admission of evidence of identifications based thereon resulted in the denial of due process. (See People v. Caruso (1968) 68 Cal.2d 183, 187-189 [reversing conviction because defendant was the only lineup participant with the size, complexion, or hair characteristics the witness had described].)
Suggestive identification procedures are invalid because they deny a defendant the due process right not to be subjected to likely misidentification. (People v. Floyd (1970) 1 Cal.3d 694, 712.) In Evans v. Superior Court (1974) 11 Cal.3d 617 (Evans), the Supreme Court recognized that affording defendants a pretrial lineup upon timely request would reduce the risk of mistaken identification in certain circumstances: "[D]ue process requires in an appropriate case that an accused, upon timely request therefor, be afforded a pretrial lineup in which witnesses to the alleged criminal conduct can participate. The right to a lineup arises, however, only when eyewitness identification is shown to be a material issue and there exists a reasonable likelihood of a mistaken identification which a lineup would tend to resolve." (Id. at p. 625, fn omitted.) The court specified that a motion for a pretrial lineup "should normally be made as soon after arrest or arraignment as practicable," but could even be made in close proximity to the trial if good cause were shown for the delay. (Id. at p. 626.)
Defendant had not requested an Evans line-up by the time of the preliminary hearing. When the magistrate pointed that out, defendant offered no explanation for the omission. Defendant makes no claim that he was not aware from an early stage of the proceedings that the victim had not identified him in a photo line-up. Under those circumstances, we find no error in the trial courts denial of his motion to suppress the victims identification of him at the preliminary hearing.
The Court of Appeal in People v. Green (1979) 95 Cal.App.3d 991 (Green) held that when a defendant deliberately refuses to request a pretrial lineup, his objection to allowing the victim to identify him in court at the preliminary hearing will be deemed waived: "If a criminal defendant anticipates that an in-court identification may be suggestive, he has a readily available remedy to avert any prejudice expected to result from the courtroom showup procedure: he may demand that a lineup be conducted preliminary to any in-court identification. [Citations.] However, where, as here, a defendant knowingly and deliberately rejects the preliminary availability of a lineup as a tactic merely to forestall a legitimate identification by a victim in court, objections should be deemed as waived." (Id. at p. 1004, italics omitted.) Our holding is consistent with Green.
Defendant seeks to distinguish Green on the grounds that the codefendants counsel in that case (1) were allowed to cross-examine the victim at the preliminary hearing outside of the defendants presence, and (2) expressly refrained from requesting an in-court lineup before the victim made her identification. We are not persuaded. As for defendants first distinction, we do not read the holding in Green as resting in any way on the fact that the magistrate had allowed some cross-examination of the victim outside the defendants presence before she made her identification. Defendants second point of distinction is no distinction at all. As in Green, defendant here at no point requested a pretrial line-up even though he was entitled to do so and even though he was evidently concerned that an in-court identification would be unduly suggestive. Exactly like the defendants in Green, he "expressly refrained" from requesting a pretrial lineup either before or at the preliminary hearing. (Green, supra, 95 Cal.App.3d at p. 1002.) Having made that choice, defendant is in no position to object to the identification procedure used at the preliminary hearing.
In any event, defendant had a full and fair opportunity to cross-examine Karen about her identification of him, including her opportunity to see her attacker at the time of the crime, the fact she was unable to pick his photograph from a photo lineup, and the amount of time that passed between the crime and her identification of him at the preliminary hearing. Further, Karens identification of him was corroborated by the fact that defendant identified himself by name to her and to White, and identified his father Amos by name. White was familiar with defendant and also identified him as Karens assailant. We cannot say under these circumstances that Karens in-court identification was so unreliable and prejudicial that allowing it violated defendants right to due process.
B. Destruction of Evidence Instruction
Defendant maintains that his due process rights were abridged when the trial court declined to instruct the jury that the investigative agencies had destroyed a tape-recorded interview of the victim and that among the reasonable inferences to be drawn from this evidence those most favorable to the defense were to be considered the more probable.
1. Facts
Detective Kay Belk interviewed Karen on January 21, 2004 regarding the subject incident. She recorded the interview using a cassette tape recorder, and used the tape to write a report at a later date. After writing a statement summarizing the interview, Belk erased the tape. She erroneously wrote in the report that the tape was logged into evidence. Belk testified that when she erased the tape she was not intentionally destroying evidence or attempting to hide exculpatory facts. It was her practice at the time to use audio recordings of witness interviews to prepare written reports and then to erase the interview tape. She testified that to the best of her ability she accurately documented Karens statement in the written report and that the summary was a true and accurate summary of what Karen had told her.
The trial court denied defendants requests that the case be dismissed and that Belks testimony be excluded. It found that Belk documented the substance of Karens statement in considerable detail in her written report, including portions that were favorable to the defense: Karens ability to observe her assailant, inconsistencies with the initial report, the fact that Karen was taking medications for depression, and her inability to identify Amos or defendant in the two photo lineups she was shown. The court accordingly found that Belk was not trying to hide exculpatory evidence. The court later refused defendants proposed instruction on the grounds that no exculpatory evidence was left out of the written statement. The court noted that the defense "is free to argue the jury should draw whatever inferences it wants from the destruction of the tape."
2. Analysis
To establish a due process violation, the defendant has the burden of showing that (1) the lost evidence had exculpatory value that was apparent to the police before its loss and (2) the police acted in bad faith. (People v. Medina (1990) 51 Cal.3d 870, 893-894 (Medina).) We apply the substantial evidence rule in determining the correctness of trial court findings concerning whether the evidence was destroyed in good faith or bad faith. (People v. Memro (1995) 11 Cal.4th 786, 831.) Once a defendant has proved a loss of material evidence, the trial court has discretion to impose appropriate sanctions, including a suitable cautionary instruction, even if no bad faith is shown. (Medina, at p. 894.)
Substantial evidence supported the trial courts findings in this case that the written report accurately summarized the taped interview, including any exculpatory evidence contained therein, and that Detective Belk did not act in bad faith. The defendant offered no evidence to support his motion other than speculation that the tape might have contained evidence an experienced defense attorney would have considered exculpatory later on in light of subsequently acquired evidence. But here the trial court found that no exculpatory evidence had been left out of the written report. That was a reasonable conclusion in light of the contents of the report and the testimony of Detective Belk, which the court evidently found credible. On this state of the record, we cannot say that the trial court abused its discretion in declining to give the instruction proposed by defendant.
C. Witness Impairment Instruction
Defendant contends the court had a sua sponte duty to augment the pattern instruction on eyewitness testimony with instructions that would have informed the jury specifically of the significance of drug addiction, intoxication, and mental impairment. In the alternative, defendant maintains that the failure of his trial counsel to request such an instruction constituted ineffective assistance of counsel.
1. Facts
The court instructed the jury as follows using CALCRIM No. 315: "You have heard eyewitness testimony identifying the defendant. As with any other witness, you must decide whether an eyewitness gave truthful and accurate testimony. [¶] In evaluating identification testimony, consider the following questions: [¶] Did the witness know or have contact with the defendant before the event? [¶] How well could the witness see the perpetrator? [¶] What were the circumstances affecting the witness ability to observe, such as lighting, weather conditions, obstructions, distance, and duration of observation? [¶] How closely was the witness paying attention? [¶] Was the witness under stress when he or she made the observation? [¶] Did the witness give a description, and how does that description compare to the defendant? [¶] How much time passed between the event and the time when the witness identified the defendant? [¶] Was the witness asked to pick the perpetrator out of a group? [¶] Did the witness ever fail to identify the defendant? [¶] Did the witness ever change his or her mind about the identification? [¶] How certain was the witness when he or she made the identification? [¶] Are the witnesses and the defendant of different races? [¶] Were there any other circumstances affecting the witness ability to make an accurate identification? [¶] Was the witness able to identify the defendant in a photographic or physical lineup? [¶] The People have the burden of proving beyond a reasonable doubt that it was the defendant who committed the crime. If the People have not met this burden, you must find the defendant not guilty."
On appeal, defendant contends the trial court should have inserted a further instruction along the following lines into the CALCRIM instruction: "`In determining the credibility of a witness you may consider . . . his capacity to hear or see that about which he testified and his ability to recollect or relate to such matters; specifically in this regard, you may consider whether any witness was under the influence of alcohol, drugs or other intoxicants at the time he testified; and if you believe that any witness was under the influence of alcohol, drugs, or other intoxicants at the time of his testimony, you may but are not obliged to disregard or give little weight to his or her testimony insofar as you find that his credibility has been impaired thereby; you may reach that conclusion if you find that as a result of being under the influence of alcohol, drugs, or other intoxicants while testifying, such witness ability to recollect and relate matters about which he or she testified was impaired." (People v. Barnett (1976) 54 Cal.App.3d 1046, 1050-1051, fn. 2, quoting jury instruction proposed by defense.)
2. Analysis
It is hornbook law that "[a] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language." (People v. Lang (1989) 49 Cal.3d 991, 1024; see also People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012; People v. Sully (1991) 53 Cal.3d 1195, 1218.) Here, defendant did not object to the eyewitness testimony instruction given and did not request any clarifying or amplifying instruction. He has therefore waived his present objection.
We reject defendants claim on the merits as well. The court does not have a sua sponte duty to give any instruction on eyewitness testimony. (People v. Richardson (1978) 83 Cal.App.3d 853, 860-863, disapproved on other grounds in People v. Saddler (1979) 24 Cal.3d 671, 682, fn. 8.) Such an instruction is to be given "when requested in a case in which identification is a crucial issue and there is no substantial corroborative evidence." (People v. Wright (1988) 45 Cal.3d 1126, 1144, italics added.) The commentary to CALCRIM No. 315 states: "The court should give the unbracketed factors, if requested, in every case in which identity is disputed." (Italics added.) Thus, defendants claim that the court had a sua sponte duty to go beyond CALCRIM No. 315 is untenable on the merits.
Defendants related ineffective assistance of counsel claim also fails. To demonstrate ineffective assistance of counsel, a defendant must show that (1) counsels performance was deficient under prevailing professional norms; and (2) but for counsels failings, it is reasonably probable that the result of the proceeding would have been more favorable to him. (People v. Seaton (2001) 26 Cal.4th 598, 666.) In reviewing a claim of ineffective assistance, we apply a deferential standard: "Judicial scrutiny of counsels performance must be highly deferential. It is all too tempting for a defendant to second-guess counsels assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsels defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation.] . . . [A] court must indulge [therefore] a strong presumption that counsels 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.]" (Strickland v. Washington (1984) 466 U.S. 668, 689; see People v. McLeod (1989) 210 Cal.App.3d 585, 590.)
We fail to see a material advantage to the defense in the additional instruction he now proposes. The instructions given in this case afforded defense counsel wide latitude to argue that the eyewitnesses ability to perceive and recall the attack were impaired by drugs, alcohol, or mental impairment. CALCRIM No. 315 itself instructs the jury to consider whether there "[w]ere . . . any other circumstances affecting the witnesss ability to make an accurate identification." The jury also received CALCRIM No. 226, which included the following relevant statements: (1) "In deciding whether testimony is true and accurate, use your common sense and experience"; (2) "In evaluating a witness testimony you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony"; and (3) "Among the factors you may consider [in evaluating a witnesss testimony] [¶] . . . [¶] [is whether] the witness has engaged in other conduct that reflects on his or her believability . . . ."
Defense counsel made full use of the latitude he was given. He referred throughout his closing argument to eyewitness Randolph Whites drug and alcohol use and to Karen Woodards drug use and mental illness. Had defense counsel wished to buttress these arguments with references to specific instructions, he had plenty of ammunition to work with. The jury did not need any instruction on the significance of these factors beyond what was contained in the instructions they received in order to draw conclusions favorable to the defense.
We note that although defendant now implies that the impairment of the prosecutions main witnesses due to drug use and mental illness was his "entire defense," the record shows that he placed equal if not greater emphasis on the claim that these witnesses were habitual liars and thieves, even calling a series of witnesses to offer character evidence to that effect. The proposed instruction would have been of no assistance in amplifying that theme.
Defendant fails to show either that his trial counsel breached any professional standard by failing to request the instruction in issue or that it is reasonably probable such an instruction would have made a difference in the result.
D. Prosecutorial Misconduct
Defendant asserts that the prosecutor committed misconduct by urging the jury to ignore or discount defense evidence that the victim and other witnesses were crack addicts and criminals, and to focus instead on the events of the night of the attack.
1. Facts
During the prosecutions closing and rebuttal arguments, the trial court overruled defense counsels objections to the following arguments by the prosecution, among other similar assertions:
1. "[The victim] is the kind of person [defense counsel] has [gone] to great pains to demonstrate before you is on the lower end, and one of the lower rungs of society. Money wise, she has a crack cocaine problem, or at least had one at the time. She is somebody that the defendant knew he could attack and nobody would care about, because she is a crack addict. And what do we care about crack addicts? [Defense counsel] spent the majority of the defense case proving that point. She is worthless. She is a whore. She is a robber. She is nobody."
2. "You cant just come in here and buy into the natural opinion or the opinion that is going to try and sell to you all crack heads lie. Crack heads lie all of the time. Whores lie. They lie all of the time. Lie, lie, lie. [¶] You need to take those preconceived notions, those types of reputation inferences, and check them at the door."
3. "Please, during your deliberations, if you take one thing away from my closing argument, please keep your eye on the ball and remember that we are here for the events and whatever the evidence shows about those events on January 4th, 2004. Dont let Karen Woodard be victimized all over again by this whole process and bringing her in here and calling her a prostitute and a robber and a crack head and all of those things."
2. Analysis
Defendant maintains that the foregoing arguments misstate the law regarding the consideration of factors such as drug addiction and involvement in criminality that are relevant to witness credibility and trustworthiness. According to defendant, the suggestion that the prosecution witnesses were unfairly disparaged by the defense was an unjustified attack on the legitimate defense position that the witnesses were mistaken, incapable of identifying the perpetrator, or lying about their ability to identify Karens attacker. Rather than being introduced to muddy the character of the complaining witness or to suggest that she was worthless as a human being, the defense case was intended to show that her ability to accurately perceive and report reality were seriously impaired.
To prevail on a claim of prosecutorial misconduct based on jury argument, the defendant must establish a reasonable likelihood that the jury understood the challenged comments in an improper or erroneous manner. (People v. Frye (1998) 18 Cal.4th 894, 970, overruled on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
We will not lightly infer that the jury drew the most damaging rather than the least damaging meaning from the prosecutors statements. (People v. Frye, at p. 970.)
In our view, the prosecutor was merely telling the jury that it should treat the victim and other witnesses fairly and that the witnesses lifestyles and checkered pasts should not cause jurors to disregard the facts relating to the night of the incident. At the very worst, the prosecutor was accusing the defense of trying to confuse the issues and was urging the jury to focus on what the prosecution viewed as the most relevant evidence. We decline to construe these arguments as an appeal to passion and prejudice when their thrust was to ask jurors to put aside potential bias and prejudice based on lifestyle.
A prosecutor is given wide latitude during argument. (People v. Ochoa (1998) 19 Cal.4th 353, 463.) The remarks defendant challenges did not fall outside the range of permissible argument.
III. DISPOSITION
The judgment is affirmed.
We concur:
Marchiano, P.J.
Graham, J.