Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 1200839, Frank J. Ochoa, Judge
Diane E. Berley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephanie C. Brenan, Jason Tran, Deputy Attorneys General, for Plaintiff and Respondent.
COFFEE, J.
Malinda Jean Jones appeals the judgment after conviction by jury of willful, deliberate, premeditated murder and conspiracy to commit murder. (Pen.Code, §§ 187, subd. (a); 182, subd. (a)(1).) The jury found allegations that appellant committed the murder by lying in wait and that she knew that a principal was armed with a firearm to be true. (§§ 190, subd. (a)(5); 190.2, subd. (c); 12022, subd. (d).) The court sentenced her to prison for life without the possibility of parole, plus a two-year firearm enhancement, for murder, and 25 years to life for conspiracy. Appellant contends that the court denied her a fair trial and violated her constitutional rights by admitting evidence obtained during an illegal detention, by failing to declare a doubt as to her competency, and by excluding evidence relevant to her theory that she killed the victim to prevent him from continuing to molest her granddaughter, and that prosecutorial misconduct violated her constitutional rights and deprived her of a fair trial. We affirm.
All statutory references are to the Penal Code unless otherwise stated.
FACTUAL BACKGROUND
Appellant and her late husband, Philip Jones, had two daughters, Kelee and Kalee. Kelee married Jarrod Davidson in January 2000, and gave birth to M. in July. Jarrod and Kelee separated in March 2001.
Philip and Kelee pleaded guilty before appellant's trial. Philip died of lung cancer in April 2007.
In 2004, Kelee and M. lived in Oceano, and appellant and Philip lived in Grover Beach. Jarrod lived about 90 miles away, in Santa Barbara, and worked there as a teaching assistant at the University of California.
Jarrod and his father, Richard, took M. to appellant's house on July 5, 2004, after M. had stayed with Jarrod. Philip answered the door. Addressing M., Philip used a curt tone and said, "Say goodbye to your father." Philip's comment was unusual because the Jones family usually took M. inside without speaking to Jarrod when he took her to their home. Later that week, on July 8, appellant and Philip drove to Jarrod's apartment on Old Mill Road in Santa Barbara to note its location.
On July 9, Philip decided to kill Jarrod. For several years, Philip had owned a.30 caliber rifle that he stored in a closet. On July 9, he put the rifle into his truck, along with bullets. Philip wore a tan jumpsuit and appellant wore a blue hat and a blue sweatshirt. They took the truck to Santa Barbara.
On July 9, at approximately 7:00 p.m., Jarrod went to the San Luis Obispo Sheriff Department's substation in Oceano to complain that he could not contact Kelee or see M. A deputy sheriff called Kelee at around 9:00 p.m. regarding Jarrod's complaint. Kelee, who was then in Oceano with M., quickly called and spoke with appellant, who was then traveling southbound on the 101 freeway with Philip. On the way to Santa Barbara, Philip saw Jarrod pass them in his car, traveling southbound on the 101 freeway.
Shortly after 10:30 p.m., appellant and Phillip stopped at a supermarket in Santa Barbara where she purchased a plant. She put on gloves and intentionally used "shaky" writing and misspelled Jarrod's name ("Jared") on a card that said, "To my Teacher." She and Philip planned to use the plant to induce Jarrod to leave his apartment.
After they arrived at Jarrod's apartment, Philip loaded the rifle, in appellant's presence. Appellant knocked on Jarrod's door, put the plant down, and walked away from the door. Jarrod came out and picked up the plant. Philip shot Jarrod in the chest. Appellant and Philip left immediately. Jarrod bled to death.
One of Jarrod's neighbors heard a gunshot and a man yelling, "Help, help, they've killed me." Other neighbors also heard loud noises. One neighbor saw a woman wearing a blue baseball cap and baggy sweat shirt near the mailboxes. That woman left soon after the shooting, with a man who wore a jumpsuit and walked with an "odd" gait. (Philip walked with a limp.) Another neighbor saw a woman with a man who wore a jumpsuit and walked with a limp.
Philip and appellant went to an industrial area at Los Carneros, where Philip threw his jumpsuit, shoes, and the rifle in a dumpster. They decided to tell the police that they were at the beach and had been at Dinosaur Park on the evening of July 9. Appellant later bleached and discarded the clothing she wore on July 9.
Some time before July 2004, Philip had asked Richard Jordan if he could obtain a hand gun that was unregistered and untraceable for him. Jordan declined to do so. After the shooting, Philip told Jordan to "forget about" their conversation because "it might be suspicious."
DISCUSSION
Detention
Appellant contends that the trial court denied her state and federal constitutional rights when it denied her motion to suppress the fruits of an illegal detention. We disagree.
Background
On July 9, 2004, before 4:00 a.m., Santa Barbara Sheriff Detectives Shawn O'Grady and Craig Bonner heard a briefing regarding Jarrod's homicide. They learned that he had been shot at his apartment, hours earlier, at approximately 11:00 p.m. on July 8, and that the murder weapon had not been recovered. They later learned that Jarrod's attorney had reported that Jarrod had been in a custody battle, and that Kelee, appellant and Philip may have been involved in the homicide.
Because appellant and Philip could have had the murder weapon, O'Grady and Bonner began to monitor them at about 4:00 a.m. The detectives used an unmarked vehicle, parked across the street from appellant's residence. Beginning around 8:00 a.m., appellant and Philip each looked toward the detectives on occasion from various vantage points (e.g., the balcony, mailbox, etc.). The detectives remained at the residence while appellant briefly left in the truck and returned in about 13 minutes. Appellant used her cell phone frequently during the surveillance, often while looking toward the detectives.
At about 1:27 p. m., the detectives learned that Kelee was detained as she left her home. Eighteen minutes later, appellant and Philip left their residence in their car. To prevent their fleeing or disposing of the murder weapon or other evidence, the detectives followed and stopped them. Holding their guns, they ordered appellant and Philip to leave the vehicle. They handcuffed them and asked if the car could be searched. Appellant consented to a search. Bonner then saw and recovered a cell phone from the car's center console. The detectives found no weapons.
When the detectives asked them to come to the sheriff's station, appellant and Philip agreed to do so. O'Grady believed that appellant and Philip were not free to leave until the interview at the station was complete. Bonner would have obtained permission from his supervisor if appellant and Philip had wanted to leave. Before driving to the station, the detectives, appellant and Philip agreed that one of the detectives would drive appellant's car to the station rather than leave it parked in the red zone.
Sheriff Detective Michael Kuhbander interviewed appellant at the station. She told Kuhbander that she was home when she spoke with Kelee at around 9:00 p.m. on the prior evening (July 9); she and Philip had gone to Shell Beach near Dinosaur Park that night, listened to music and looked at the water until approximately 11:00 or 11:30 p.m.; and they arrived home around midnight. After the interview, appellant and Philip left the station.
Appellant presented testimony from Steven Balash, the criminal attorney who had represented Jarrod with respect to the molestation case. According to Balash, when a detective contacted him about Jarrod's homicide, he asked if they were looking at "the wife" (Kelee) or "the family." Balash did not know appellant or Philip and did not believe he mentioned anything about them.
Appellant argues that the detectives improperly detained Philip and appellant and that the fruits of the illegal detentions, including her statements to Detective Kuhbander, should be suppressed. Upon review of the trial court's ruling on a motion to suppress evidence, we apply the substantial evidence test to the court's factual determinations, with all presumptions in favor of the court's findings. (People v. Saunders (2006) 38 Cal.4th 1129, 1133-1134; People v. Camacho (2000) 23 Cal.4th 824, 830.)
"A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity." (People v. Souza (1994) 9 Cal.4th 224, 231.) In reviewing the trial court's finding that the detention was reasonable, we consider "the whole picture" to evaluate whether the detaining officer had "a particularized and objective basis" that appellant was or had engaged in criminal activity. (United States v. Cortez (1981) 449 U.S. 411, 417-418.) In making this determination, we exercise our independent judgment. (People v. Glaser (1995) 11 Cal.4th 354, 362.)
An officer may stop and detain a motorist on reasonable suspicion that the driver has violated the law. (People v. Wells (2006) 38 Cal.4th 1078, 1082.) "[W]here a reasonable suspicion of criminal activity exists, 'the public rightfully expects a police officer to inquire into such circumstances "in the proper exercise of the officer's duties." [Citation.]'" (Id. at 1083.)
Based on the totality of the circumstances, the detectives involved in appellant's detention had an objectively reasonable basis for believing that she was involved in Jarrod's murder and that upon learning of Kelee's detention, she and Philip were taking the murder weapon and other evidence to conceal or dispose of it. Jarrod's attorney had advised authorities about the "really nasty child custody battle" between Jarrod and Kelee and asked whether they were considering Kelee, or her family, in the investigation. The reports that a man and woman left the crime scene together after the murder corroborated the reports that Kelee's family (which would include appellant and Philip) may have been involved in the murder. The vehicle stop, the detention and handcuffing of appellant and Philip were legal.
Appellant further argues that the fruits of the search and interview should have been suppressed because her consent was obtained by coercion. In so arguing, she stresses that the detectives led her and Philip "out of the car at gunpoint, handcuffed them, and then claimed they agreed to be searched and to go to the substation," and that one detective "testified that appellant and Philip were not free to leave after the car was searched," but only after the interview at the station. The other detective, however, testified that had appellant or Philip requested to leave, he would have released them. There was conflicting evidence as to whether appellant remained in handcuffs when she agreed to go to the station. The trial court reasonably rejected appellant's allegations of coercion.
Moreover, even if the court had erred by denying the motion to suppress appellant's interview statements (including her false alibi), the alleged error is harmless beyond a reasonable doubt. Although her false alibi statement did not help appellant, there is overwhelming and far more incriminating evidence linking her to the crime that authorities gathered without using her statements. That evidence includes a video surveillance tape of appellant buying a plant at a supermarket; Philip's testimony that appellant put that plant on Jarrod's doorstep to lure him outside so that Philip could shoot him; witnesses' testimony identifying the same plant as the one that was at the scene near Jarrod's body; and Philip's testimony describing how he and appellant disguised themselves, planned and performed the killing, disposed of the gun and their clothing, and agreed upon an alibi. The admission of the challenged statements was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
Competency
Appellant contends that the trial court's failure to conduct a competency hearing violated her right to due process under section 1368 and the state and federal constitutions because she offered substantial evidence that she was incompetent to stand trial. We disagree.
"'Both the due process clause of the Fourteenth Amendment to the United States Constitution and state law prohibit the state from trying or convicting a criminal defendant while he or she is mentally incompetent. [Citations.] A defendant is incompetent to stand trial if he or she lacks a "'sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding--and... a rational as well as factual understanding of the proceedings against him.'" [Citations.]'" (People v. Lewis (2008) 43 Cal.4th 415, 524.)
"A defendant is presumed competent unless it is proved otherwise by a preponderance of the evidence." (People v. Ramos (2004) 34 Cal.4th 494, 507.) However, "'[b]oth federal due process and state law require a trial judge to suspend trial proceedings and conduct a competency hearing whenever the court is presented with substantial evidence of incompetence, that is, evidence that raises a reasonable or bona fide doubt concerning the defendant's competence to stand trial. [Citations.]... Evidence of incompetence may emanate from several sources, including the defendant's demeanor, irrational behavior, and prior mental evaluations. [Citations.] [Citation.]" (People v. Lewis, supra, 43 Cal.4th at pp. 424-425.) Section 1367, subdivision (a) provides that a defendant is mentally incompetent to stand trial if, "as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner." Section 1368, subdivision (b) provides, "If counsel informs the court that he or she believes the defendant is or may be mentally incompetent, the court shall order that the question of the defendant's mental competence is to be determined in a hearing which is held pursuant to Sections 1368.1 and 1369."
Evidence that "merely raises a suspicion that the defendant lacks present sanity or competence but does not disclose a present inability because of mental illness to participate rationally in the trial is not deemed 'substantial' evidence requiring a competence hearing." (People v. Deere (1985) 41 Cal.3d 353, 358, disapproved on other grounds in People v. Bloom (1989) 48 Cal.3d 1194, 1228, fn. 9.) "[T]o be entitled to a competency hearing, 'a defendant must exhibit more than bizarre... behavior, strange words, or a pre-existing psychiatric condition that has little bearing on the question of whether the defendant can assist his defense counsel. [Citations.]'" (People v. Lewis, supra, 43 Cal.4th at p. 524, quoting People v. Ramos, supra, 34 Cal.4th at p. 508.)
"'A trial court's decision whether or not to hold a competency hearing is entitled to deference, because the court has the opportunity to observe the defendant during trial. [Citation.] The failure to declare a doubt and conduct a hearing when there is substantial evidence of incompetence, however, requires reversal of the judgment of conviction. [Citations.]'" (Lewis, supra, 43 Cal.4th at p. 525, quoting People v. Rogers (2006) 39 Cal.4th 826, 847.)
Here, appellant attempted to commit suicide in late July 2005, more than a year after the dates of the charged crimes. Susan L. Ferrant, Ph.D., examined appellant and issued a September 7, 2005, report stating that she suffered from retrograde amnesia and lacked any memory of personal events "including and prior to the suicide" attempt. Ferrant's report stated that appellant did "not appear to have difficulty communicating with and cooperating with her attorney in her own defense," but that her "loss of memory [left] her without essential information to provide her attorney in her own defense, and therefore her ability to cooperate... with her attorney is seriously impaired." Dr. Ferrant concluded that "due to retrograde amnesia [appellant was] not competent to stand trial."
Appellant submitted Dr. Ferrant's report to support her motion for competency hearing pursuant to section 1368. On September 15, 2005, the court ruled that appellant had made an insufficient showing and denied the motion.
Appellant later renewed her request for a competency hearing and submitted a September 29, 2005, declaration from Dr. Ferrant with more information regarding the nature of appellant's dissociative amnesia, which involves reversible memory impairment and is caused by psychological trauma. That declaration also explained that some people with dissociative amnesia "may ultimately be diagnosed with... [d]issociative [i]dentity [d]isorder." Dr. Ferrant's declaration further indicated that appellant suffered from a severe "major depressive disorder,... without psychotic features" and that her "worsening mental conditions [might] not be obvious to those around her because of her coping style and her high level of fear regarding self-disclosure." Dr. Ferrant addressed the likelihood that appellant's continued presence in the courtroom could deepen her "already serious depression, or precipitate a more serious dissociative episode or suicidal gesture." Dr. Ferrant opined that being in court would increase appellant's stress when she would "hear herself and her family accused of heinous crimes about which she [knew and could] remember nothing." On October 14, 2005, the court considered and denied appellant's further request that it conduct section 1368 competency proceedings.
In claiming her entitlement to a competency hearing, appellant stresses that in McMurtrey v. Ryan (9th Cir. 2008) 539 F.3d 1112, the Ninth Circuit held that a trial court's failure to conduct a competency hearing at the time of trial violated due process and stated that "'a trial court must always be alert to circumstances suggesting a change that would render the accused unable to meet the standards of competence to stand trial.'" (Id. at p. 1126.) Appellant emphasizes some common factors between McMurtrey and her case, including the defendant's diagnosis with a depressive disorder, and his hospitalization for a suicide attempt. However, the key factors that influenced the Ninth Circuit are absent here: "The [trial] court also observed McMurtrey become repeatedly physically ill during trial and, prior to sentencing, received documentation of McMurtrey's increasingly volatile and aggressive behavior in jail. The court was aware of counsel's concern that McMurtrey was... operating in a 'chemical straight jacket,' as well as medical records documenting Valium injections during trial to treat 'extreme agitation.' Finally, the court observed McMurtrey at sentencing as he knelt to address the 'Creator of this court' and requested a 'correct decision' without providing any coherent statement concerning himself, the crime or sentence." (Ibid.)
McMurtrey presented evidence that before and/or during trial, jail personnel had treated him with multiple medications, including many in excess of recommended dosages. (E.g., Avatin; Elavil; Dilantin; Librium (five times the recommended dosage); and Thorazine (double the recommended dosage).) (McMurtrey v. Ryan, supra, 539 F.3d at pp. 1122-1123, fn. 11.)
The California Supreme Court has repeatedly held "that evidence of more serious mental disturbances than [appellant] displayed did not amount to substantial evidence of incompetence requiring a competency hearing." (People v. Blair (2005) 36 Cal.4th 686, 714; People v. Ramos, supra, 34 Cal.4th at pp. 508-511 [defendant's death wish, history of psychiatric treatment, planned suicide attempt, propensity for violence, and psychiatric testimony that he was physically abused as a child and suffered from a paranoid personality disorder did not constitute substantial evidence of incompetence]; see also People v. Young (2005) 34 Cal.4th 1149, 1231 [expert's testimony that the defendant had an IQ of 75 and suffered from a "'probable organic mental disorder not otherwise specified'" did not constitute substantial evidence of incompetence]; People v. Koontz (2002) 27 Cal.4th 1041, 1064 ["even supposing defendant is correct that the various examples of his rambling, marginally relevant speeches cited in his briefing may constitute evidence of some form of mental illness, the record simply does not show that he lacked an understanding of the nature of the proceedings or the ability to assist in his defense"]; People v. Rodrigues (1994) 8 Cal.4th 1060, 1110-1111 [statements of two defense doctors and defense counsel did not furnish substantial evidence of mental incompetence; one doctor opined that "he suspected that [the] defendant suffered from 'drug dementia' and that [the] defendant's record of 'a considerable amount of poly substance abuse' suggested a very high risk of neurological impairment that would make it very difficult for him to cooperate with his defense"].)
In appellant's case, the court confirmed that appellant possessed her memory of the charged crimes for several months while represented by her counsel. It then reasonably rejected Dr. Ferrant's conclusions that appellant's "loss of memory [left] her without essential information to provide her attorney in her own defense, and therefore her ability to cooperate and communicate with her attorney is seriously impaired," and that "due to retrograde amnesia [she was] not competent to stand trial."
In addition, the court considered Dr. Ferrant's September 29 declaration stating that appellant also suffered from a severe major depressive disorder, in addition to her dissociative amnesia, and that persons afflicted by such amnesia are sometimes later diagnosed with dissociative identity disorder, a more complex condition. Dr. Ferrant's declaration did not undermine her earlier report that appellant did "not appear to have difficulty communicating with and cooperating with her attorney in her own defense." Although Dr. Ferrant expressed concern in her declaration that attending court proceedings would increase appellant's stress, she did not declare that appellant lacked the capacity to understand the nature of the proceedings.
The court observed appellant's behavior and demeanor and concluded she was not incompetent. On the record before us, we cannot conclude that the court's rulings denying competence hearing requests were erroneous.
Exclusion of Evidence Relevant to Show Imperfect Self-Defense and Provocation
Appellant next contends that the court violated her right to present evidence to support a partial defense and establish that her criminal liability was limited to voluntary manslaughter. She proffered evidence that Jarrod had molested M. and authorities had not prevented him from continuing to do so. She sought to prove that she killed Jarrod to protect M. from further harm, in the imperfect defense of another, and that she did so in the heat of passion as a result of adequate provocation (Jarrod's molestation of M.). She further contends that such evidence was admissible under Evidence Code sections 1101, subdivision (b) and 1103. We disagree.
Appellant offered to prove the following facts: She and Philip were each molested as children. M. told Philip and appellant that Jarrod had been molesting her for some time. M. told a San Luis Obispo social worker that the molestation occurred on five separate occasions. Jarrod made inconsistent statements to sheriff personnel regarding his conduct with M. The results of Jarrod's first polygraph examination indicated that he was deceptive. When the sheriff accused him of deception, Jarrod immediately stated that he needed an attorney. Jarrod took another polygraph examination that his attorney arranged; the results of the second examination were favorable to Jarrod. Jarrod's attorney contacted the prosecutor who decided not to prosecute Jarrod. Jarrod withdrew his consent for a therapist to treat M. A family law court denied Kelee's request to prohibit Jarrod from having unsupervised visits with M.
Upon M.'s return from a Fourth of July weekend visit with Jarrod and his family, M. acted angry, defiant, argumentative and upset. She touched her vagina and said, "It's mine and I can do it and grown-ups do it, so I can do it." M. told appellant and Philip that she "couldn't talk about her visit" with Jarrod and his parents, that she "did not see anything" or "know anything," and that she could not "talk to doctors or anyone." For weeks before July 9, appellant was tormented by M.'s having been subjected to molestation by Jarrod while the courts and other authorities failed to protect her. Appellant barely ate or slept during that period. On July 9, upon learning of Jarrod's complaint to the sheriff, appellant feared that Jarrod would return very soon to pick up M. and resume molesting her. She thought that killing Jarrod was the only way to protect M.
"An intentional, unlawful homicide is 'upon a sudden quarrel or heat of passion' [citation], and is thus voluntary manslaughter [citation], if the killer's reason was actually obscured as the result of a strong passion aroused by a 'provocation' sufficient to cause an '"ordinary [person] of average disposition... to act rashly or without due deliberation and reflection, and from this passion rather than from judgment."' [Citations.]" (People v. Breverman (1998) 19 Cal.4th 142, 163.) "The test of adequate provocation is an objective one.... (People v. Lee (1999) 20 Cal.4th 47, 60.) "'"[N]o defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man."' [Citation.]" (People v. Cole (2004) 33 Cal.4th 1158, 1215-1216.)
The record lacks substantial evidence that appellant killed Jarrod in the heat of passion as a result of adequate provocation. Although appellant knew of Jarrod's unsuccessful attempt to see M. in July and of his related complaint to the sheriff, she also knew that while she and Philip killed Jarrod, M. was with Kelee, in another county, more than 90 miles away from Jarrod. When appellant left the plant on Jarrod's door step and induced him to open his door, there was no suggestion that he would get M. soon, even under the proffered evidence. Appellant's fear that he would do so does not supply adequate provocation. (People v. Cole, supra, 33 Cal.4th at pp. 1215-1216.)
Nor did the proffered evidence support her imperfect defense of another theory. In order to be admissible, such evidence would have had to establish that appellant acted in an actual but unreasonable belief that it was necessary to defend another from imminent peril to life or great bodily injury. (See People v. Randle (2006) 35 Cal.4th 987, 997 [overruled on a different point in People v. Sarun Chun (2009) 45 Cal.4th 1172, 1201]; In re Christian S. (1994) 7 Cal.4th 768, 773.) Nothing in the proffered evidence suggests Jarrod had tried or threatened to kill or inflict great bodily injury upon M., or that she was at risk of his doing so. Appellant argues that where a "perpetrator exerts psychological influence on a victim in the form of fear and duress and is thereby able to molest her, the resulting crime encompasses great bodily injury." In so arguing, she cites cases in which duress is an element of the crime (e.g., People v. Montero (1986) 18 Cal.App.3d 415, 424 (rape)). However, she cites no cases which hold that psychological trauma constitutes the requisite imminent peril to life or great bodily injury for imperfect defense of another.
We also reject appellant's claim that the proffered evidence was admissible under Evidence Code sections 1101, subdivision (b), and 1103. Those sections do authorize the admission of the victim's character or conduct under specific conditions, if it is relevant. Here, however, the evidence of Jarrod's alleged molestation of M. failed to establish all necessary elements of the partial defenses for which it was offered. Consequently it was not admissible for any relevant purpose. Moreover, any error in excluding the evidence was harmless because it would not have reasonably affected the outcome of the trial. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Prosecutorial Misconduct
Appellant further contends that the prosecutor committed misconduct in violation of her federal and state rights to due process by telling the jury that it had no evidence of motive, and that appellant and Philip were evil people whose motivation was "cold-blooded assassination," despite the prosecutor's knowledge of excluded molestation evidence. Although we conclude that the prosecutor committed misconduct by making a misleading argument, the misconduct did not "'so infect[] the trial with unfairness as to make [appellant's] conviction a denial of due process.' [Citation.]" (People v. Zurinaga (2007) 148 Cal.App.4th 1248, 1251.)
Appellant did not object to the cited instances of misconduct. As a general rule, a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion, and on the same ground, the defendant raised an objection and requested that the jury be admonished to disregard the impropriety. (People v. Ayala (2000) 23 Cal.4th 225, 284.) There are exceptions to such forfeiture: when raising an objection below would have been futile; when the effect of the prosecutor's conduct could not have been cured by admonition; or when the trial court's conduct effectively precluded any objection. (See People v. Cole, supra, 33 Cal.4th 1158, 1201.) Here, given the court's exclusion of any reference to a possible molestation, an objection would have been futile.
As we have just discussed, appellant sought to introduce evidence to support her imperfect defense of another and provocation theories, based on her belief that the courts and other authorities had failed to stop Jarrod's molestation of M. and that the only way to protect M. from further molestation was to kill him. The prosecutor vigorously and successfully opposed the admission of any evidence regarding Jarrod's alleged molestation of M. Had that evidence been admitted, appellant could have argued that it explained her motivation. In claiming that the prosecutor committed misconduct by misleading the jury, appellant cites several portions of his closing argument, including the following:
"[It is] somewhat unusual... you have no evidence in this case about motive. You can speculate, you can wonder, but that is not part of your fact-finding process."
"Philip... and [appellant]... were going to assassinate Jarrod...." "They did kill him. They did take the law into their own hands. They decided that they were going to end the life of a father, a graduate student, a person who had his whole life ahead of him, and they did it with an evil purpose."
"So... this is a case where a plan was hatched and carried out to commit an unspeakable... reprehensible, outrageous crime, and... a case about ending someone's life in a way that shocks the conscience."
"One thing about them, talking about evil, someone who is morally wrong or bad, what kind of people [are appellant] and Philip?"
Prosecutorial misconduct "'violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process.' [Citations.] 'Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under [California] law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.' [Citation.]" (People v. Tafoya (2007) 42 Cal.4th 147, 176.)
"It is the duty of every member of the bar to 'maintain the respect due to the courts' and to 'abstain from all offensive personality.' [Citation.] [¶] A prosecutor is held to a standard higher than that imposed on other attorneys because of the unique function he or she performs in representing the interests, and in exercising the sovereign power, of the State. [Citation.] As the United States Supreme Court has explained, the prosecutor represents 'a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.' [Citation.] Prosecutors who engage in... intemperate behavior, greatly demean the office they hold and the People in whose name they serve. [Citations.]" (People v. Espinoza (1992) 3 Cal.4th 806, 819-820; People v. Zurinaga, supra, 148 Cal.App.4th 1251; see also People v. Hill (1998) 17 Cal.4th 800, 819-820.)
A prosecutor may not argue as though excluded evidence does not exist when he knows that argument misleads the jury. By doing so, he is lying by omission. (People v. Varona (1983) 143 Cal.App.3d 566, 570. In Varona, the prosecutor engaged in misconduct by arguing there was no proof that the victim was a prostitute after the prosecutor had successfully moved to exclude evidence that the victim was on probation for prostitution. Here, where the prosecutor fought to exclude evidence that appellant was motivated to kill Jarrod because she believed that he had molested M, and would continue to do so, the prosecutor misled the jury by stressing the absence of evidence of motive for the killing, and arguing that appellant and Philip were evil assassins of a young father. Even accounting for the fact that the prosecution has wide latitude during closing argument and may vigorously argue his case (People v. Welch (1999) 20 Cal.4th 701, 752; People v. Zurinaga, supra, 148 Cal.App.4th at p. 1260), we conclude that the prosecutor's misleading comments were improper.
Although the prosecutor's argument was improper, appellant was not prejudiced by it. The jurors were instructed that counsel's arguments were not evidence. We presume that the jury followed these instructions. (People v. Perry (1972) 7 Cal.3d 756, 791, overruled on other grounds in People v. Green (1980) 27 Cal.3d 1, 28-34.) Moreover, because the evidence of appellant's guilt in this case was overwhelming, it is not reasonably probable that appellant would have achieved a more favorable result absent the misconduct. (People v. Crew (2003) 31 Cal.4th 822, 839.) Accordingly, the error flowing from that misconduct was harmless. (Ibid.; People v. Zurinaga, supra, 148 Cal.App.4th at p. 1260; People v. Watson, supra, 46 Cal.2d at p. 836.)
DISPOSITION
The judgment is affirmed.
We concur: YEGAN, Acting P.J., PERREN, J.