Opinion
G061788
03-12-2024
THE PEOPLE, Plaintiff and Respondent, v. LUKE WILLIAM FERGUSON, Defendant and Appellant.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Christopher P. Beesley and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 17HF1368, Sheila F. Hanson, Judge. Affirmed.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Christopher P. Beesley and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOTOIKE, J.
A jury convicted defendant Luke William Ferguson of two counts of first degree murder (Pen. Code, § 187, subd. (a); counts 1 &2) and two counts of attempted murder (§§ 187, subd. (a), 664, subd. (a); counts 3 &4). The jury found Ferguson personally discharged a firearm causing death in the commission of the murders in counts 1 and 2 and great bodily injury in the attempted murder in count 4. (§ 12022.53, subd. (d).) The jury also found true the multiple-murder special circumstances alleged as to the murder counts. (§ 190.2, subd. (a)(3).)
All further statutory references are to the Penal Code unless otherwise stated.
The court sentenced Ferguson to life without the possibility of parole on each murder conviction plus consecutive terms of 25 years to life on the firearm enhancements connected to these convictions. On the attempted murder conviction in count 4, the court imposed seven years and imposed a consecutive term of 25 years to life on the attendant firearm enhancement. The court imposed a consecutive term of two years, four months on the attempted murder conviction in count 3. In total, the court sentenced Ferguson to two terms of life without the possibility of parole, plus an indeterminate term of 75 years to life, and a consecutive determinate term of nine years, four months.
On appeal, Ferguson raises the following issues: (1) the trial court erred and violated his constitutional rights by overruling the defense objection to the prosecution's peremptory challenge to a Caucasian female prospective juror; (2) the prosecutor committed error by making disparaging remarks about him in her closing and rebuttal arguments; (3) his trial counsel rendered ineffective assistance by failing to object to the instances of prosecutorial error; (4) the court abused its discretion by admitting into evidence an autopsy photograph; (5) the multiple-murder special circumstance is unconstitutional; (6) the second multiple-murder special-circumstance finding is superfluous and must be vacated; (7) the court was required to strike two of the three firearm enhancements under section 1385, subdivision (c); and (8) if court was not required to strike two of the firearm enhancements, the court abused its discretion by failing to strike them. We vacate the duplicative multiple-murder special-circumstance finding but otherwise affirm the judgment.
In his opening brief, Ferguson also raised a claim concerning the imposition of a $300 parole revocation fine but withdrew this claim in his reply brief.
FACTS
Ferguson lived in a house with his father Douglas Ferguson and Douglas's girlfriend Lisa Cosenza. T.K., who worked with and was friends with Douglas, rented a room in the house. B.D. also rented a room in the house. In early October 2017, a neighbor heard Douglas yell at Ferguson, "'You need to get a fucking job if you live here.'"
To avoid confusion, we will refer to Douglas Ferguson by his first name (Douglas or Doug). No disrespect is intended.
On October 12, 2017, while Douglas, Cosenza, and T.K. were sitting on the living room couch, Ferguson walked into the living room with a gun in his hand. He fired the gun at Douglas but missed. Douglas jumped up and moved toward Ferguson. Ferguson fired two more shots, this time shooting Douglas in the chest. T.K. realized he had been shot as well. He got off the couch and headed for the door. As T.K. was fleeing the house, Ferguson shot him again, hitting T.K. in the back. Ferguson shot Cosenza in the head twice as she was sitting on the couch. He then went upstairs to the bathroom where B.D. was showering and kicked in the locked bathroom door before shooting B.D. through the glass shower door. Ferguson fled the scene in B.D.'s car, taking a gun with him, but leaving in his closet the nine-millimeter firearm he used in the shooting. He was arrested the next day.
Douglas and Cosenza died from their injuries. T.K. had bullet wounds to his head, knee, and shoulder. B.D. was treated at the hospital and underwent surgeries to remove glass from his eyes and a bullet from the back of his throat. Since the shooting, he has had 10 to 12 surgeries. He is legally blind and unable to drive a car.
DISCUSSION
I. PROSECUTOR'S PEREMPTORY CHALLENGE
Ferguson contends the court erred by overruling the defense objection to the prosecutor's use of a peremptory challenge to Prospective Juror No. 105, a Caucasian female, because the prosecutor's reasons were presumptively invalid under Code of Civil Procedure section 231.7. He asserts the court should have sustained his objection because there is a substantial likelihood an objectively reasonable person would have viewed race and gender as factors in the exercise of the peremptory challenge. We conclude the court properly overruled the defense objection.
A. Background
The court conducted the initial voir dire questioning of Prospective Juror No. 105. Prospective Juror No. 105 addressed how she felt when she heard the charges in the case, stating: "I'm a person who's dealt with a lot of things in my 70 years and had to make a lot of decisions, sometimes under difficult circumstances. And my reaction to learning what this case is about was not a real emotional one, but it was a somber one because I feel that the case is of such import that we as jurors have a very important responsibility and even a privilege to be here and really make sure that things are thought through carefully. ... [Y]ou know, people said, 'Oh, jury duty, do whatever you can [t]o get out of it,' but I think that the whole process is so important and indeed really fascinating that I just take it real seriously."
The court and Prospective Juror No. 105 engaged in an exchange concerning the importance of jury service. When the court asked Prospective Juror No. 105 if she would follow the law, she responded: "Yes, I certainly can. I've traveled and lived in a lot of places, and it's not like this country in many, many places in the world. And this is an anchor part of our system that makes this a society that functions as well as it does, imperfectly, if you've looked at the events over the last couple of years, but we have the opportunity to make things function for everybody, and that's -- it's really extraordinary. [¶] I mean, if you have a perspective of having been out of the country and lived in other places, we have an obligation to really respect the privileges of what we've got here. That's what I think."
Upon further questioning by the court, Prospective Juror No. 105 signaled she understood all criminal defendants are presumed innocent and the prosecution bears the burden of proving the charges beyond a reasonable doubt. She indicated she could return a guilty verdict if the prosecution proved all of the elements beyond a reasonable doubt and vote not guilty if they did not. She stated she could follow the law even if she disagreed with it and could be fair and impartial.
When the court asked if there was anything else Prospective Juror No. 105 could think of that they might want to know about her, she responded, "Well, I'm really interesting, but you don't need to know all the background, but to this case, no." Intrigued by her response, the court asked her for a brief "interesting tidbit." Prospective Juror No. 105 supplied the following: "Well, let's put it this way, I was a high school teacher for 38 years on three continents, and I'm still here." The court inquired which continents, and Prospective Juror No. 105 answered, "In West Africa I was in Cote D'Ivoire, and I taught in France, and I've taught most of my time in the United States." In response to further questioning by the court, she stated she taught "French and Spanish, and English to English language learners," and she ran a dance program in Santa Clarita for nine years.
In discussions outside the presence of the jury, the prosecutor and defense counsel explained to the court they had discussed their intended peremptory challenges and exercising them "out[ ] of order." Defense counsel indicated he wanted to hear the prosecutor's explanation for why she intended to exercise a peremptory challenge as to Prospective Juror No. 105. The prosecutor explained her concerns: "The way that 105 would speak to the court, the way she used the French language in here and talked about how interesting she was, I'm concerned about her interaction with the other jurors in deliberations. [¶] I'm concerned about her view of herself and her position of authority and having been an educator for so long in so many countries. And after the court was done speaking with her, she put her hand up to her face and became very emotional, and that was right when your honor had kind of made a light-hearted joke to the next juror, 'Are you very interesting?' and I don't know if she was offended by that or she became emotional, but her face kind of turned red. [¶] Then she shook her head very strangely when the court was talking about having 12 people to agree on a verdict. [¶] She spoke in French when she could have easily said Ivory Coast. [¶] And I just am concerned about her ability to work with others in this deliberative process. And that's the People's concern."
Defense counsel objected and argued the prosecutor's explanations were not valid grounds for exercising a peremptory challenge. The court indicated the jury selection process would continue since there was not an agreement as to the prosecutor's use of a peremptory challenge on Prospective Juror No. 105. The court noted for the record Prospective Juror No. 105 was a Caucasian female and Ferguson was a Caucasian male.
Jury voir dire continued with both defense counsel and the prosecutor questioning Prospective Juror No. 105. Responding to defense counsel's question about her reaction when she received her juror summons, Prospective Juror No. 105 indicated she believed jury duty was an important job. She continued: "And as I mentioned before, I've been in a lot of other countries, I've lived in other countries, and I have a lot of friends from other places, and I really strongly feel we need to support and appreciate this amazing system that we have in place." In response to additional questioning by defense counsel, Prospective Juror No. 105 indicated she would listen to the other jurors' viewpoints if she disagreed with them but would not change her mind "just to go along with the crowd."
The prosecutor questioned Prospective Juror No. 105 about her answers on the questionnaire, in which the prospective juror indicated her son was in his 40's and was an athlete. Asked what he did, Prospective Juror No. 105 responded her son was "a professional aerialist." When the prosecutor inquired what that was, the following exchange occurred between Prospective Juror No. 105 and the prosecutor:
"Prospective Juror No. 105: Are you familiar with Cirque Du Soleil? "[Prosecutor]: Yes.
"Prospective Juror No. 105: Okay. Are you familiar with the aerialists that work with the silks that hang from 30, 40 feet?
"[Prosecutor]: I'm familiar with that activity.
"Prospective Juror No. 105: Yes. Or a big stainless steel hoop that they do contortion and performance?
"[Prosecutor]: Does he do that performance? "Prospective Juror No. 105: That's his profession."
The prosecutor shifted to a different topic. The prosecutor remarked she saw Prospective Juror No. 105 lean over and cover her face in what seemed to be an emotional state after questioning by the court. The prosecutor asked Prospective Juror No. 105, "Is there part of this that is emotional for you?" Prospective Juror No. 105 answered, "Well, yes, there is because I take it real seriously." The prosecutor commented, "Well, serious is different from emotional. It almost seemed like you looked a little flushed and emotional." When the prosecutor asked Prospective Juror No. 105 to describe how she was feeling, the juror stated, "I was just thinking about the implications of everything of why we're here, and what's on the line here, and the amount of loss that we're talking about in this case."
In proceedings outside the presence of the jury, the court and counsel discussed challenges for cause and peremptory challenges. The prosecutor exercised a peremptory challenge as to Prospective Juror No. 105, and defense counsel objected. Providing her reasons for the challenge, the prosecutor stated: "The People's issue is the dynamic that she would cause on this jury with the deliberations. Just in the way she spoke to the People with regard to her son, and she's been a professor for 38 years in several countries, and the way that she's going to domineer and not work cohesively with this jury. Her attitude toward these things. Constantly saying the amount of loss. The implication of why we're here. She was emotional. She admitted to -- after the court was done questioning her putting her hand over her face and becoming emotional. [¶] She talked about a lot at stake before the lunch. Again, she said it with the implication she has an emotional affect to this. [¶] And she just -- we have a group of people who are just in their individual jobs and look like they can collectively work together, and this juror is someone who thinks she is the smartest person in the room, and, in fact, told the court 'I'm very interesting.' [¶] It's just for all of these reasons that I don't think that she would be a good juror on this case."
The court noted the prosecutor had raised additional issues earlier when contemplating exercising a peremptory challenge as to this prospective juror, specifically her speaking different languages, and the court inquired whether the prosecutor was incorporating those earlier reasons as well. The prosecutor stated: "It wasn't because she speaks another language. I think that's fantastic. It's again, going to her demeanor in saying -- instead of just saying the Ivory Coast, when she's heard for two days that everything is being taken down, that she said it in French, and then madam court reporter asked her to spell it, she not only spelled it, but then started instructing her about where it is. [¶] It's just this type of demeanor of hers of -- I don't know. It's hard to describe. When she says, 'I'm really interesting' to the court, 'but we don't have to talk about that,' it's just a demeanor that I don't think is a good comparative analysis to our jurors of who we have in there and who would work well together. [¶] Everyone else has had a different response. Even just when you look at the 19-year-old sitting next to her and how he was asked 'if you're the hold out, if you're the only one that has this opinion, would you change your mind?' his response, like a reasonable person, was 'well, if I were shown that it was wrong.' [¶] And she replied to defense [counsel] when asked the same question, 'you mean would I just change my mind to go along with the group, the majority?' and she got kind of flippant about it. And I just think her demeanor would not be beneficial for this group to work together."
The court stated it observed Prospective Juror No. 105 move her hand to her face. The court also explained when it recessed in the morning, it observed the prospective juror lean forward, provide the spelling for Cote D'Ivoire to the court reporter, tell the reporter it is French for Ivory Coast, and continue to talk as people were exiting. Defense counsel argued demeanor was an invalid ground under Code of Civil Procedure section 231.7 for exercising a peremptory challenge and voiced his disagreement with the prosecutor's belief the prospective juror would not work with the other jurors.
The court acknowledged speaking French is a presumptively invalid reason. The court continued: "However, the reasons put forth here by the People -- really, in the court's mind, what I'm hearing the People say is that they worry about her in terms of her ability to work with the other jurors. [¶] And in looking at the proffered reasons, the observations the court made that are very similar to [the prosecutor's], the court is going to overrule the objection. I do not believe that there is a substantial likelihood that an objectively reasonable person would view [Prospective] Juror No. 105 being a female Caucasian as why she was challenged." The court added it did not believe the prosecutor said she was removing the prospective juror because she was French speaking but instead because the prospective juror "presented herself in a very presumptuous manner" during questioning.
B. Code of Civil Procedure Section 231.7
Code of Civil Procedure section 231.7, subdivision (a) prohibits the use of "a peremptory challenge to remove a prospective juror on the basis of the prospective juror's race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or the perceived membership of the prospective juror in any of those groups." Pursuant to its provisions, a motion made under Code of Civil Procedure section 231.7, "shall also be deemed a sufficient presentation of claims asserting the discriminatory exclusion of jurors in violation of the United States and California Constitutions." (Id., subd. (d)(1).)
Either a party or the trial court "may object to the improper use of a peremptory challenge." (Code Civ. Proc., § 231.7, subd. (b).) Under the procedures in Code of Civil Procedure section 231.7, the objecting party does not have to make a threshold showing. (Id., subds. (b), (c).)
Once an objection is made, "the party exercising the peremptory challenge shall state the reasons the peremptory challenge has been exercised." (Code Civ. Proc., § 231.7, subd. (c).) The court must then "evaluate the reasons given to justify the peremptory challenge in light of the totality of the circumstances." (Id., subd. (d)(1).) The court cannot speculate or assume the existence of other possible justifications for the peremptory challenge. The court must consider only the reasons given by the party exercising the challenge. (Ibid.) "If the court determines there is a substantial likelihood that an objectively reasonable person would view race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, as a factor in the use of the peremptory challenge, then the objection shall be sustained. The court need not find purposeful discrimination to sustain the objection." (Ibid.) The statute goes on to explain "an objectively reasonable person is aware that unconscious bias, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors in the State of California." (Id., subd. (d)(2)(A).) The statute provides a nonexhaustive list of circumstances a trial court may consider in making its determination. (Id., subd. (d)(3)(A)-(G).) Once the trial court makes its determination, it must "explain the reasons for its ruling on the record." (Id., subd. (d)(1).)
Code of Civil Procedure section 231.7 contains two separate provisions (subds. (e) and (g)), which describe presumptively invalid reasons for the exercise of a peremptory challenge. It also sets out two processes by which a court determines whether a presumptively invalid reason can be absolved of that presumption. (Id., subds. (e), (f), (g)(2).)
Subdivision (e) contains 13 reasons that are presumed invalid. (Code Civ. Proc., § 231.7, subd. (e).) Ferguson asserts two are relevant here: "[t]he ability to speak another language" (id., subd. (e)(8)) and "[e]mployment in a field that is disproportionately occupied by members listed in subdivision (a)" (id., subd. (e)(10)). The presumption of invalidity as to these reasons may be rebutted if "the party exercising the peremptory challenge can show by clear and convincing evidence" that (1) an objectively reasonable person would view the rationale as unrelated to a prospective juror's membership or perceived membership in a cognizable group identified in subdivision (a) of the statute; and (2) "the reasons articulated bear on the prospective juror's ability to be fair and impartial in the case." (Id., subd. (e).)
As used in subdivision (e) of Code of Civil Procedure section 231.7, "the term 'clear and convincing' refers to the degree of certainty the factfinder must have in determining whether the reasons given for the exercise of a peremptory challenge are unrelated to the prospective juror's cognizable group membership, bearing in mind conscious and unconscious bias. To determine that a presumption of invalidity has been overcome, the factfinder shall determine that it is highly probable that the reasons given for the exercise of a peremptory challenge are unrelated to conscious or unconscious bias and are instead specific to the juror and bear on that juror's ability to be fair and impartial in the case." (Id., subd. (f).)
Subdivision (g) contains a different list of three presumptively invalid reasons that "have historically been associated with improper discrimination in jury selection." (Code Civ. Proc., § 231.7, subd. (g).) At issue here is second on the list: "The prospective juror exhibited either a lack of rapport or problematic attitude, body language, or demeanor." (Id., subd. (g)(1)(B).) The reasons listed in subdivision (g)(1) "are presumptively invalid unless the trial court is able to confirm that the asserted behavior occurred, based on the court's own observations ...." (Id., subd. (g)(2).)
"Even with that confirmation, the counsel offering the reason shall explain why the asserted demeanor, behavior, or manner in which the prospective juror answered questions matters to the case to be tried." (Ibid.)
Code of Civil Procedure section 231.7 also sets out the standards of appellate review to be applied to the trial court's ruling. It requires an appellate court to conduct a de novo review of a trial court's overruling of an objection to a peremptory challenge, "with the trial court's express factual findings reviewed for substantial evidence." (Id., subd. (j).) "The appellate court shall not impute to the trial court any findings, including findings of a prospective juror's demeanor, that the trial court did not expressly state on the record." (Ibid.) Similar to the limitation placed upon the trial court's consideration, the appellate court can "consider only reasons actually given" by the party exercising the peremptory challenge and must "not speculate as to or consider reasons that were not given to explain either the party's use of the peremptory challenge or the party's failure to challenge similarly situated jurors who are not members of the same cognizable group as the challenged juror, regardless of whether the moving party made a comparative analysis argument in the trial court." (Ibid.)
C. Analysis
Ferguson contends the court erred by overruling the defense objection because the reasons the prosecutor gave to justify the peremptory challenge to Prospective Juror No. 105 were presumptively invalid under subdivisions (e) and (g) of Code of Civil Procedure section 231.7 and the presumption of invalidity was not rebutted. We disagree.
When explaining her reasons for exercising a peremptory challenge as to Prospective Juror No. 105, the prosecutor referenced the juror's use of French and her lengthy career as a teacher. Ferguson asserts these were presumptively invalid reasons under subdivision (e) of Code of Civil Procedure section 231.7 - the ability to speak a foreign language and employment in a field that is disproportionately occupied by a cognizable group. (Id., subd. (e)(8), (10).) We conclude the presumption of invalidity as to these two reasons was rebutted because there was clear and convincing evidence an objectively reasonable person would view the prosecutor's rationale as unrelated to Prospective Juror No. 105's membership in a cognizable group and the reasons articulated by the prosecutor concerned the juror's ability to be fair and impartial in this case. (Id., subd. (e).)
The prosecutor explained her concern with Prospective Juror No. 105 was not that the juror spoke French, but the prosecutor perceived the prospective juror's use of French to be unnecessary during voir dire. The prosecutor discussed Prospective Juror No. 105's use of French to say Ivory Coast, when the use of French was unnecessary, and the prosecutor noted when the court reporter asked the prospective juror to spell it, she not only provided the spelling but also instructed the reporter on the country's location. The prosecutor also expressed her concern about the way Prospective Juror No. 105 spoke to the prosecutor and the prospective juror's attitude, not the fact the prospective juror had been a teacher for 38 years. The prosecutor stated Prospective Juror No. 105 presented as domineering and would not work well with the other jurors. In overruling the defense objection, the court confirmed the prosecutor's perception of the prospective juror, stating she "presented herself in a very presumptuous manner." An objectively reasonable person would view the prosecutor's rationale as unrelated to Prospective Juror No. 105's race or gender.
At the core of the prosecutor's explanation as to why she was exercising a peremptory challenge as to Prospective Juror No. 105 was the prosecutor's concerns about the juror's demeanor and her perceived inability to work with others. Under Code of Civil Procedure section 231.7, subdivision (g)(1)(B), a prospective juror's demeanor is a presumptively invalid reason for exercising a peremptory challenge. The prosecutor expressed her concern about the way Prospective Juror No. 105 responded to questions during voir dire and how she became emotional. Ferguson acknowledges the court confirmed the prosecutor's observations of Prospective Juror No. 105's demeanor, thus satisfying the first requirement for rebutting the presumption of invalidity. (Id., subd. (g)(2).) But he asserts the second requirement was not satisfied because the prosecutor failed to explain how the prospective juror's demeanor related to the case, as opposed to how the prospective juror might relate to the other jurors in this case.
The prosecutor contrasted Prospective Juror No. 105's answers to some of the questions and her general demeanor with the responses of other jurors and the prosecutor expressed her concern Prospective Juror No. 105 would not work well with the other jurors in the case. Explaining her use of the peremptory challenge, the prosecutor also cited Prospective Juror No. 105's emotional response and the prospective juror's comment she was thinking about the "amount of loss" in this case. Thus, the prosecutor did provide an explanation as to why the prospective juror's demeanor mattered to this case.
Independently viewing the prosecutor's reasons for the peremptory challenge under the totality of the circumstances, we conclude it is not substantially likely an objectively reasonable person would view Prospective Juror No. 105's race or gender as factors in the prosecutor's use of a peremptory challenge against her. (Code Civ. Proc., § 231.7, subds. (d), (j).) Accordingly, we uphold the trial court's decision overruling the defense objection.
II. PROSECUTORIAL ERROR
Ferguson contends the prosecutor committed prejudicial error by repeatedly making disparaging remarks about him during her closing and rebuttal arguments to the jury. The remarks he asserts were improper disparagement of his character concerned him not working and not paying for food or rent. In response, the Attorney General argues Ferguson forfeited his claim of prosecutorial error by failing to object in the trial court. The Attorney General alternatively argues the claim should be rejected on its merits because the prosecutor's remarks were a proper comment on the evidence and related to the prosecution's theory of Ferguson's motive for the shooting. We agree Ferguson forfeited his claim by failing to object in the trial court. Reaching the merits of his claim nonetheless, we conclude the prosecutor's remarks did not constitute error.
A. Proceedings in the Trial Court
Early in the prosecutor's closing argument, she stated: "[T]his is what we have. Lisa Cosenza owning the home at 6 Ashbury Court. Living with her boyfriend, Douglas Ferguson. Renting rooms to T[.K.] and B[.D.]. And letting the defendant stay there even though he wasn't working. Even though he wasn't contributing. Even though he was drinking people's drinks, eating their food, staying at home while everyone is going to work. And on October 12th, he tried to kill them all. Was unsuccessful, luckily.
We have an eyewitness. Stole B[.D.]'s car with an additional gun and was arrested the next day." Defense counsel did not object to this portion of the prosecutor's argument or request an admonition.
Shortly thereafter, the prosecutor told the jury she was going to discuss the evidence presented at trial and the reasonable inferences to be drawn from it. She argued: "The defendant moved in to Ms. Cosenza's home after a small job with Doug Ferguson and T[.K.] He lived there for four to six weeks. He did not have a job and stayed home smoking pot and drinking beer while others were at work. [¶] He had multiple opportunities to know where guns were in that home. The reason I asked a couple of the different witnesses, what was he doing while others were at work? He was at home alone. You saw the condition of that home. Another person can't come in and find anything in that home. But he was living there. And we can tell that there were lots of guns in that home, and he had every opportunity every single day while he was alone and everyone else is at work to go through that home and know where things are....
"Additionally, probably one of the most important aspects because motive is not required, and I don't have to prove that to you at all. Everyday we hear of things where people say, 'I never imagined that person would do that.' People don't always have a reason right in front of your face as to why they do something. That's why the law doesn't require that. I have to prove that he did it. Not why he did it.
"But when you look at this, there are lots of little reasons why that he may have chosen.... He's the odd man out. Look at his situation. His dad has Lisa Cosenza. They're in a dating relationship. [T.K.] is friends with [Douglas], and they have a close relationship. [B.D.] is so close to him, to [Douglas], he calls him uncle. His dad and [Douglas] were best friends since high school. All of that relationship living together, he's not part of it. No one hangs out with him. He doesn't have a job. He's not part of that community. And then you add to the fact that he's being told get a job or you can't live here.
"Everyone in the house knew that there was tension about his not working. It wasn't a secret. A few days before the murders, Doug Ferguson yelled at defendant 'you need to get a fucking job if you live here.' Heard by the neighbor, Mr. J[.J.] He came in and told us that. He has no reason to make that up. And it's just a few days before."
Later in her closing argument, the prosecutor discussed the premeditation and deliberation allegations and argued Ferguson had started thinking about the murders after his father insulted him for not working and not contributing.
As part of the defense closing argument, defense counsel asserted Ferguson did not have a motive, and defense counsel attacked the prosecution's motive theory. At the beginning of the defense's closing argument, responding to the prosecution's motive theory, defense counsel stated: "Five years have gone by since the events in this case, and the prosecution's best explanation to this is that the defendant is the odd guy out. That he has no relationship. What they're failing is that although they don't have to show a motive, there is no motive and there is no explanation why. [¶] Their explanation to you is he's going to get kicked out because he doesn't have a job, and his father was complaining. That's their case. That's their reason as to why they believe my client did these things."
Later in the defense's closing, defense counsel argued: "Their motive to tell you [sic] is that he's going to get kicked out because he doesn't have a job and he's the odd man out because he doesn't have a relationship? He does have a relationship. His father lives there. He has a relationship. He's not the odd man out. That they dislike him after all this. They didn't say they had dislikes of him before. They disliked the fact that he ate their food or drank their beer. That's their motive?" Defense counsel argued Ferguson's lack of motive was a factor tending to show he was not guilty.
Defense counsel returned to the issue of motive at the conclusion of his closing argument, stating: "And at the end, there's still no motive. This motive that he's going to get kicked out for not having a job and that he's the odd man out, he's been the odd man out for six weeks. His dad didn't complain about him not getting a job. He didn't ever once argue with him about this. Never once got physical with his dad over this."
In her rebuttal argument, the prosecutor again discussed her motive theory: "So now we look at the defendant. 26-year-old. No car. No job. Living with 23-year-old B[.D.] with a college degree, a supervisor job, a girlfriend, a car, a close relationship with his own father. This guy doesn't hang with him even though they've known each other since childhood. So this defendant snapped. Is it for that reason? I don't know. I can't prove that reason to you beyond a reasonable doubt. But there are several reasons why this defendant could be upset. He knows from being home every day when the neighbors are usually home, and no other person would commit this crime at this time of day." Again, defense counsel did not object to the prosecutor's argument.
B. The Prosecutor Did Not Commit Error
Initially, we address the Attorney General's argument Ferguson forfeited his claim of prosecutorial error. "'It is well settled that making a timely and specific objection at trial, and requesting the jury be admonished . . . is a necessary prerequisite to preserve a claim of prosecutorial misconduct for appeal.'" (People v. Johnsen (2021) 10 Cal.5th 1116, 1164 (Johnsen).) But the failure to make a timely objection and request an admonition will be excused if the objection would have been futile or an admonition would not have cured the harm. (Ibid.)
Ferguson contends the prosecutor repeatedly committed prosecutorial error by making disparaging remarks about him during her closing and rebuttal arguments to the jury. He acknowledges, however, his counsel did not object to these statements or request an admonition. Contrary to Ferguson's claim, the record does not show a timely objection would have been futile or an admonition insufficient. Accordingly, Ferguson forfeited appellate review of his claim of prosecutorial error. (See Johnsen, supra, 10 Cal.5th at pp. 1164-1165 [finding claim of prosecutorial error forfeited on appeal due to lack of objection].)
Anticipating this possibility, Ferguson asserts his counsel rendered ineffective assistance by failing to object. "'A defendant whose counsel did not object at trial to alleged prosecutorial misconduct can argue on appeal that counsel's inaction violated the defendant's constitutional right to the effective assistance of counsel.'" (People v. Centeno (2014) 60 Cal.4th 659, 674.) "To demonstrate ineffective assistance of counsel, [Ferguson] 'must show that counsel's performance was deficient, and that the deficiency prejudiced the defense.'" (Johnsen, supra, 10 Cal.5th at p. 1165.) "'Unless a defendant establishes the contrary, we shall presume that "counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy."' [Citations.] When the record on direct appeal sheds no light on why counsel failed to act in the manner challenged, defendant must show that there was '"'no conceivable tactical purpose'" for counsel's act or omission. [Citations.]' [Citation.] '[T]he decision facing counsel in the midst of trial over whether to object to comments made by the prosecutor in closing argument is a highly tactical one ....' [citation], and 'a mere failure to object to evidence or argument seldom establishes counsel's incompetence.'" (People v. Centeno, supra, 60 Cal.4th at pp. 674-675.)
Ferguson's claim fails, whether viewed through the lens of improper argument or ineffective assistance of counsel. "Under state law, '"[a] prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct ...."' [Citation.] Prosecutorial misconduct violates the federal Constitution when it results in a fundamentally unfair trial. [Citation.] When a claim of misconduct is based on remarks to the jury, we consider whether there is a reasonable likelihood the jury construed the remarks in an improper fashion." (People v. Steskal (2021) 11 Cal.5th 332, 350 (Steskal).) "If the challenged comments, viewed in context, 'would have been taken by a juror to state or imply nothing harmful, [then] they obviously cannot be deemed objectionable.'" (People v. Cortez (2016) 63 Cal.4th 101, 130.) "'[W]e "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.'" (People v. Covarrubias (2016) 1 Cal.5th 838, 894.)
During argument, a prosecutor is given wide latitude. "'"'"The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom."'"'" (People v. Gamache (2010) 48 Cal.4th 347, 371.) Yet, a prosecutor is not allowed to make arguments that are "'inflammatory and principally aimed at arousing the passion or prejudice of the jury.'" (People v. Sanders (1995) 11 Cal.4th 475, 527.) Ferguson asserts "the prosecutor's numerous characterizations of him as unemployed, eating other people's food, drinking their beverages, being carless, living off others, less educated than the younger Mr. D[.] and by implication also lacking a girlfriend constituted an improper attempt to inflame the jury against him and deprived him of the due process of law guaranteed by the Fifth and Fourteenth Amendments." We disagree.
"'[T]he use of derogatory epithets to describe a defendant is not necessarily misconduct' where, as here, '[t]he prosecutor's remarks . . . were founded on evidence in the record and fell within the permissible bounds of argument.'" (Steskal, supra, 11 Cal.5th at p. 354.) Here, the prosecutor's remarks, when viewed in context, were fair comments on the evidence produced at trial and fell within the bounds of permissible argument. The prosecutor used the evidence of Ferguson's unemployment and lack of contributions to the household expenses as support for the prosecution's theory the murders were premeditated and deliberate because Ferguson started planning them after his father yelled at him and told him he would have to move out if he did not get a job and start contributing. The prosecutor also relied on the evidence of Ferguson being unemployed and home all day to argue he knew where to find the guns in the house and relied on this evidence to counter the defense argument the crimes were perpetrated by unknown individuals.
For these reasons, Ferguson's reliance on People v. Herring (1993) 20 Cal.App.4th 1066 is misplaced. There, the prosecutor said the defendant was "'like a parasite'" and in argument to the jury stated: "'He never works. He stays at people's homes. Drives people's cars. He steals from his own parents to get anything. He won't work for it.'" (Id. at p. 1074.) The Court of Appeal concluded these comments had nothing to do with the alleged crimes and was an impermissible attack on the defendant's character. (Id. at pp. 1074-1075.) The appellate court noted the crimes alleged against the defendant were serious but did not reveal undue violence or the infliction of injury. (Id. at p. 1074.)
Here, however, Ferguson was charged with murdering his father, his father's girlfriend, and attempting to murder his two roommates. The prosecutor's comments regarding Ferguson's unemployment and failure to make contributions to the living expenses were not attacks on his character but arguments concerning his motive to commit the crimes and his opportunity to do so. Given the charges against Ferguson and the evidence at trial, the prosecutor's comments were not likely to inflame the passions of the jury. Accordingly, there was no prosecutorial error and defense counsel did not render ineffective assistance by failing to object to the prosecutor's remarks.
III. ADMISSION OF AUTOPSY PHOTOGRAPH
Ferguson contends the admission of an autopsy photograph showing the exit wounds on Cosenza's head was an abuse of the court's discretion under Evidence Code section 352 and violated his federal constitutional rights to an impartial jury and due process of law. We conclude there was no error.
A. Background
Prior to trial, defense counsel objected to the admission of an autopsy photograph showing two bullet exit wounds on Cosenza's head (People's exhibit No. 86), arguing the photograph was irrelevant and more prejudicial than probative under Evidence Code section 352. Defense counsel noted he was not objecting to the admission of another photograph (People's exhibit No. 85), which showed the entry wounds on Cosenza's head. The prosecutor asserted the photograph was relevant to show the nature of the injury and relevant to the coroner's testimony concerning the gun's position when Cosenza was shot. The court overruled the objection, finding relevant the nature of the exit wounds and the probative value of the photograph was not substantially outweighed by any unfair prejudicial impact. The court noted the photograph did not show Cosenza's face, "just the injury itself," and was not "particularly inflammatory." At trial, the coroner identified the entry and exit wounds on Cosenza's head in the photographs and opined Cosenza died from multiple gunshot wounds.
B. The Court Properly Exercised its Discretion
"'"'A trial court's decision to admit photographs under Evidence Code section 352 will be upheld on appeal unless the prejudicial effect of such photographs clearly outweighs their probative value.'"'" (Steskal, supra, 11 Cal.5th at p. 367.) A court's decision to admit autopsy photos is routinely upheld "'to establish the placement of a victim's wounds and clarify the testimony of prosecution witnesses. [Citation.] The prosecution is not limited to proving its case "solely from live witnesses; the jury is entitled to see details of the victims' bodies to determine if the evidence supports the prosecution's theory of the case."'" (People v. Parker (2022) 13 Cal.5th 1, 42.)
We have reviewed the photograph at issue here and conclude the court did not abuse its discretion in admitting it. As the trial court noted, the photograph did not show Cosenza's face. The photograph was cropped to show the exits wounds and her nearby hair but was not an appalling closeup of the injuries. "The evidence was '"neither unduly gruesome nor inflammatory"' [citation], would not have interfered with the jury's rational decisionmaking, and did not represent an abuse of discretion or a violation of [Ferguson's] constitutional rights." (Steskal, supra, 11 Cal.5th at p. 367.)
Ferguson contends the court abused its discretion by admitting the autopsy photograph because "there was no factual dispute as to the nature and extent of the fatal injuries to Cosenza." He asserts the photograph therefore had no probative value concerning the cause of death but was instead highly prejudicial. We disagree. The California Supreme Court has "explained, '[p]hotographs and other graphic evidence are not rendered "irrelevant or inadmissible simply because they duplicate testimony [or] depict uncontested facts ...."'" (Steskal, supra, 11 Cal.5th at p. 367.) Even when the cause of death is not disputed at trial, photographs of murder victims are relevant to help prove how the charged crime occurred. (People v. Caro (2019) 7 Cal.5th 463, 502.) Thus, the court properly exercised its broad discretion in admitting the photograph.
IV. MULTIPLE-MURDER SPECIAL CIRCUMSTANCE
Ferguson raises two contentions concerning the multiple-murder special circumstance in his case. First, he contends the multiple-murder special circumstance (§ 190.2, subd. (a)(3)) is unconstitutional. Second, he contends the second multiplemurder special-circumstance finding must be stricken as superfluous. We reject his first contention but agree with his second.
A. Constitutionality of the Multiple-Murder Special Circumstance
Section 190 permits a sentence of death or life without the possibility of parole if the defendant is convicted of first degree murder and convicted of more than one murder in the current proceedings (§ 190.2, subd. (a)(3)). This is referred to as the multiple-murder special circumstance.
Ferguson contends the multiple-murder special circumstance is unconstitutional because "it is overly broad in violation of the due process clause of the Fourteenth Amendment and the cruel and unusual punishment clause of the Eight[h] Amendment to the United States Constitution." He asserts the multiple-murder special circumstance is overbroad because it focuses on the results of the defendant's actions, multiple murders, rather than the defendant's mental state, and thereby applies to a broad class of persons with different levels of culpability and creates the potential for an irrational sentencing scheme because it does not provide a rational basis for distinguishing between them.
The California Supreme Court has repeatedly rejected challenges to the constitutionality of the multiple-murder special circumstance, including the arguments Ferguson raises here. (People v. Mora and Rangel (2018) 5 Cal.5th 442, 515; People v. Thomas (2012) 53 Cal.4th 771, 818; People v. Solomon (2010) 49 Cal.4th 792, 843; People v. Sapp (2003) 31 Cal.4th 240, 286-287; People v. Boyette (2002) 29 Cal.4th 381, 440; People v. Lucero (2000) 23 Cal.4th 692, 740.) We are bound by our Supreme Court's precedent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, we reject Ferguson's constitutional challenge to the multiple-murder special circumstance.
B. Duplicative Multiple-Murder Finding
The jury found Ferguson guilty of murdering his father and Cosenza in counts 1 and 2 and found true the multiple-murder special circumstance alleged as to both counts. Ferguson argues, and the Attorney General agrees, the court erred by allowing the jury to make multiple-murder special-circumstance findings as to both counts of murder. We agree and vacate one multiple-murder special-circumstance finding as duplicative. (People v. Nunez and Satele (2013) 57 Cal.4th 1, 49; People v. Avena (1996) 13 Cal.4th 394, 425; People v. Hardy (1992) 2 Cal.4th 86, 191.)
V. FIREARM ENHANCEMENTS
Ferguson makes two arguments concerning the three firearm enhancements imposed under section 12022.53, subdivision (d) on counts 1, 2, and 4. First, he asserts recently enacted Senate Bill No. 81 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 721, § 1) requires dismissal of two of the firearm enhancements. Second, he asserts even if the trial court retained its sentencing discretion under section 1385 after the enactment of Senate Bill No. 81, the court abused this discretion by failing to dismiss two of the three firearm enhancements. We reject both arguments.
A. Background
At the sentencing hearing, Ferguson's counsel requested the court exercise its discretion and strike the firearm enhancements under section 12022.53, subdivision (h). In discussing its sentencing decisions, the court stated there were no mitigating factors relating to the crime or to Ferguson (Cal. Rules of Court, rule 4.423), but there was one aggravating factor as Ferguson had a prior conviction and had served a prior prison term (id, rule 4.421(b)(3)). Addressing the firearm enhancements, the court indicated it was aware it had the discretion to strike these enhancements under section 1385, subdivision (c) and section 12022.53, subdivision (h), but it did not believe striking these enhancements was in the furtherance of justice. The court stated striking these enhancements would instead be a danger to the public. The court further acknowledged it had the discretion to impose a lesser firearm enhancement, but it did not believe such action was in the interest of justice. The court imposed consecutive terms of 25 years to life on each of the three firearm enhancements.
B. Dismissal of the Firearm Enhancements Is Not Mandatory Under Section 1385, Subdivision (c)
Ferguson contends the court erred by failing to dismiss two of his firearm enhancements under section 1385, subdivision (c)(2)(B) because the statute requires "all enhancements beyond a single enhancement . . . be dismissed." Section 1385, subdivision (c)(2) states the listed mitigating circumstances, which includes multiple enhancements alleged in a single case (id., subd. (c)(2)(B)), weigh "greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety." (Id., subd. (c)(2).) The statute further defines "'[e]ndanger public safety'" to mean "there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others." (Ibid.) Here, the court found dismissal of each firearm enhancement would endanger the public.
We further note the argument the statutory language of section 1385, subdivision (c)(2)(B) mandates dismissal of all but a single enhancement has been rejected by multiple courts, with varying analysis. (People v. Cota (2023) 97 Cal.App.5th 318, 335; People v. Anderson (2023) 88 Cal.App.5th 233, 239-241, review granted Apr. 19, 2023, S278786; People v. Walker (2022) 86 Cal.App.5th 386, 396-397, review granted Mar. 22, 2023, S278309 (Walker); see also People v. Mazur (2023) 97 Cal.App.5th 438, 445-447, review granted Feb. 14, 2024, S283229 [addressing similar language in § 1385, subd. (c)(2)(C)]; People v. Mendoza (2023) 88 Cal.App.5th 287, 297 [same]; People v. Lipscomb (2022) 87 Cal.App.5th 9, 15-21 [same]; People v. Ponder (2023) 96 Cal.App.5th 1042, 1048-1053; People v. Ortiz (2023) 87 Cal.App.5th 1087, 1098, review granted Apr. 12, 2023, S278894.) Ferguson acknowledges these opinions but asserts these judicial interpretations of section 1385, subdivision (c) are incorrect and should be rejected. We are not persuaded by Ferguson's argument to reject the reasoned analysis of our sister courts. Thus, we reject Ferguson's contention dismissal of the firearm enhancements was mandatory.
The California Supreme Court granted review in Walker on the following issue: "Does the amendment to Penal Code section 1385, subdivision (c) that requires trial courts to 'afford great weight' to enumerated mitigating circumstances (Stats. 2021, ch. 721) create a rebuttable presumption in favor of dismissing an enhancement unless the trial court finds dismissal would endanger public safety?" (Walker, S278309, Supreme Ct. Mins., Mar. 22, 2023, p. 338.)
C. The Court Did Not Abuse Its Discretion
Ferguson contends if dismissal of two of the firearm enhancements was not mandatory under section 1385, subdivision (c), the court abused its discretion by failing to dismiss them. He asserts the court's finding that dismissal of the enhancements would endanger the public cannot withstand scrutiny because the court imposed two terms of life without the possibility of parole. We find no abuse of the court's discretion.
The court found Ferguson to be a violent individual who posed a high degree of danger to the public. Based on the nature of Ferguson's crimes and his criminal history, the court concluded dismissal of the firearm enhancements was not in the interests of justice and would endanger the public. We cannot say the court's sentencing decision was arbitrary or irrational. (See People v. Carmony (2004) 33 Cal.4th 367, 376 [to establish abuse of discretion, party attacking sentence must show "the sentencing decision was irrational or arbitrary"].) "[A] '"decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.'"'" (Id. at p. 377.) Accordingly, we reject Ferguson's claim the court abused its sentencing discretion.
DISPOSITION
We vacate one multiple-murder special-circumstance finding and otherwise affirm the judgment.
WE CONCUR: O'LEARY, P. J. BEDSWORTH, J.