Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 08CF1465 Richard Francis Toohey, Judge.
Mark S. Devore for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Scott C. Taylor and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O’LEARY, J.
Jesus Guillermo Rosales appeals from a judgment after a jury convicted him of murder and found true he personally used a firearm. Rosales argues: (1) insufficient evidence supports his murder conviction; (2) the trial court erroneously admitted other bad acts evidence; (3) the court deprived him of his federal constitutional right to present a defense; (4) the prosecutor committed misconduct; and (5) there was cumulative error. Although we conclude the trial court erroneously excluded evidence that in 1991 Rosales’s then defense counsel informed him the prosecutor would not charge him with murder, Rosales was not prejudiced by the error. None of his other contentions have merit, and we affirm the judgment.
FACTS
One evening in May 1991, Gonzalo Mendoza and Gustavo Hernandez drank beer and listened to music in front of Mendoza’s house. Later that night, Rosales and Ernie Martinez (Ernie) arrived in Rosales’s blue van. The festivities continued.
After a couple hours, Mendoza and Rosales got into an argument. Rosales insulted Mendoza by saying that when they were young, Rosales was Mendoza’s father’s hero. Rosales tried to punch Mendoza and Mendoza blocked the punch. Mendoza hit Rosales and Rosales fell down. Rosales told Mendoza two or three times he was going to kill him. Rosales went to his van and returned with a nine millimeter chrome handgun. Rosales walked towards Mendoza pointing the gun at him; Mendoza ran down the street. Rosales got into his van and chased Mendoza, who ran around the block and ended up where he started. Rosales returned to the house, got out of the van, again pulled out the gun, and said, “I told you so.” Mendoza told Rosales to shoot him, but Rosales put away the gun. They calmed down and started talking, while Hernandez and Ernie stepped aside.
Hernandez testified Martinez got the gun away from Rosales and Hernandez took out the magazine clip and threw it. It will soon become apparent Rosales either had a second magazine clip or he retrieved the one Hernandez threw.
Approximately 20 minutes later, Mendoza and Rosales got into another argument. Rosales offered the gun to Mendoza and told Mendoza to shoot him. Mendoza refused his invitation, and Rosales told Mendoza “he was good for nothing.” When Hernandez looked at the men, Mendoza was standing over Rosales, who was crouched down on the ground with the gun pointed up at Mendoza. Hernandez heard a gunshot and saw Mendoza fall to the ground—Hernandez did not see Rosales shoot Mendoza. Rosales fled in his van with the gun. Ernie also left. Mendoza died at the scene; a six-inch knife was removed from his waistband as emergency personnel attended to him. Officers recovered a nine millimeter bullet casing at the scene and a shotgun shell from Mendoza’s bedroom.
The following month, United States Customs Officials stopped a blue van entering California from Calexico. Rosales’s brother and nephew were in the van. During a search of his nephew, an officer found 14 nine millimeter bullets.
Over 15 years later, Officer Louie Martinez reviewed cold case files and became the lead investigator in this case in 2008. Forensic firearm and tool mark examiner Rocky Edwards determined two of the bullets recovered from the van in 1991 had the same extractor marks as the bullet casing found at the crime scene. In May 2008, Martinez obtained an arrest warrant for Rosales, who was arrested and transported to the police station. After Martinez advised Rosales of his Miranda rights, Martinez interviewed him; the interview was both audiotaped and videotaped. Rosales told Martinez he was not involved in the shooting of Mendoza and he did not own a blue van. But he later admitted he owned a blue van and he was at Mendoza’s house the night Mendoza was killed. Rosales admitted they got into an argument but repeatedly denied fighting him; he claimed he left. Rosales said he did not have a gun in the van and insisted to the end of the interview he did not shoot Mendoza. Rosales denied fleeing to Mexico after the shooting but admitted abandoning his job and going to his brother’s house and then his uncle’s house.
Miranda v. Arizona (1966) 384 U.S. 436.
An information charged Rosales with murder (Pen. Code, § 187, subd. (a)) and alleged he personally used a firearm (§ 12022.5, subd. (a)).
All further statutory references are to the Penal Code, unless otherwise indicated.
Before trial, the prosecutor indicated defense counsel informed him counsel may offer evidence that in 1991 Rosales retained Bob Chatterton to represent him and Chatterton told Rosales that he spoke with someone from the police department concerning the investigation. Defense counsel stated Chatterton told Rosales “the case basically was dismissed; they weren’t going to file it.” Defense counsel asserted the evidence was relevant to demonstrate Rosales could “keep on living his life.” The prosecutor objected to admission of communications between Rosales and Chatterton but not to the fact Rosales hired Chatterton. The court ruled the communications between Rosales and Chatterton months after the homicide were not relevant to the charged offense.
Prior to trial, the prosecutor filed a motion stating he intended to offer the following other acts evidence pursuant to Evidence Code section 1101, subdivision (b), to show intent and motive: (1) an April 1991 incident where Rosales brandished a knife and handgun in Hernandez’s presence and boasted he could kill anyone he chose; (2) an October 1998 incident where Rosales brandished a handgun in the presence of Guadalupe Saenz and his girlfriend and threatened to shoot Saenz; and (3) a July 1998 incident where Rosales threatened Saenz with a gun. Defense counsel objected to admission of the other acts evidence because the evidence concerned general intent crimes and Rosales was charged with a specific intent crime. Additionally, defense counsel argued the other acts evidence was not relevant and was unduly prejudicial.
After hearing counsels’ arguments, the trial court explained that based on defense counsel’s proffer of self-defense, the court would likely admit evidence of the April 1991 incident involving Hernandez because the probative value of the evidence outweighed any prejudicial effect. With regard to the evidence concerning Saenz, the court reserved ruling but again indicated if Rosales argued he acted in self-defense, it would likely admit that evidence as well. During opening arguments, defense counsel argued Rosales acted in self-defense.
At trial, Hernandez testified to the circumstances of the offense as detailed above. The prosecutor did not ask him about the April 1991 incident on direct examination. On redirect examination, the prosecutor asked preliminary questions concerning the incident when defense counsel objected. At sidebar, counsel essentially repeated their written arguments. The trial court stated: “The court having heard now the opening statements, the evidence thus far, including the direct and cross-examination of this witness, finds the mid-April 1991 incident, finds that evidence is more probative than prejudicial and will permit inquiry into it.”
Hernandez testified that about three weeks before the shooting, he went to Mendoza’s house but Mendoza was not home. Rosales, who appeared to have been drinking, arrived with Mendoza’s uncle, Jesus Mendoza (Jesus). Rosales and Hernandez argued and Rosales took out a knife. Rosales swung the knife at Hernandez, and said, “I’m bad, ” and “I can kill anyone I want[.]” Hernandez wrestled the knife away from him and threw it. Rosales went to his van and got a gun that matched the gun Hernandez said Rosales used to shoot Mendoza. Rosales pointed the gun in the air and fired it twice. Jesus stepped between the two men and took the gun away from Rosales.
Rosales, who was 70 years old at the time of trial, testified on his own behalf. Rosales stated he was Mendoza’s father’s godfather and Mendoza’s sister’s godfather. Rosales claimed he had not drank any alcohol the evening of the shooting. He explained that about 3:30 or 4:00 in the morning, the sound of gunshots woke him up and he went to his son’s room. He said that when he discovered his son was not home, he went to look for him. He stated he got into his blue van and drove to Mendoza’s house. He said that when he arrived at Mendoza’s house, Hernandez was there with Mendoza, who had a shotgun in his hand. Rosales said he asked them if they had seen his son, and Mendoza responded, “‘I’m not a baby-sitter of any son of your fucking mothers.’” Mendoza hit Rosales in the face with the shotgun butt, and Rosales fell to the ground. Rosales said that as Mendoza pointed the shotgun at him, he pulled a gun from his pocket and shot Mendoza in self-defense. Rosales said he threw the gun in a nearby grass area, got into his van, and drove home, where he told his wife and daughter what happened. He stated he went to his brother’s house, his uncle’s house, and returned home. He claimed he then left for approximately one month. Rosales said he did not tell the police anything because they insulted him and he was scared officers were going to beat him. On cross-examination, the prosecutor asked Rosales whether when he returned home shortly after shooting Mendoza he learned the police had been to his house to speak with him, and he replied, “Yes. Yes.” The prosecutor asked whether he turned himself in to the police. Rosales answered he did not turn himself in but he wanted to surrender. The prosecutor asked whether he did. Rosales said he went to speak with an attorney. The prosecutor objected and moved to strike the answer. The court admonished Rosales to answer the question, but the court did not strike the answer.
Rosales’s daughter, Lisa Nicole Brown, testified for her father. She stated that when Rosales returned home the night of the shooting, he had a bruise on his face and he was visibly upset. She confirmed Rosales’s version of the events. She stated that after her father told her what had happened, he went to look for her brother because he was very worried. When defense counsel asked her when she next saw her father, she said a week or two later, after he hired an attorney. The trial court struck the last part of her answer and admonished the jury to disregard it. When defense counsel asked her why she had not shared this information with anyone, she replied because the police and Rosales’s attorney were involved. The prosecutor objected and after a sidebar, direct examination resumed. The prosecutor did not request and the court did not strike the answer or admonish the jury to disregard it.
Finally, Rosales recalled Detective Irma Vasquez to testify on his behalf; she had previously testified concerning her investigation. Vasquez explained she interviewed an eyewitness to the shooting who said the victim was unarmed. She stated she found a shotgun shell in Mendoza’s bedroom nightstand. She had been informed Rosales and Mendoza fought, and Rosales shot Mendoza and fled. She also stated she had never spoken with Rosales about the shooting. On cross-examination, the prosecutor asked Vasquez whether she received a telephone call from Rosales at any point from two days after the shooting to the day of trial. Vasquez answered, “No, sir.”
After the defense rested, the prosecutor informed the trial court he intended to call Saenz to testify pursuant to Evidence Code section 1101, subdivision (b), to prove intent. Defense counsel repeated his objections. The trial court stated it performed the required balancing and concluded “it’s more probative than prejudicial... based upon the presentation of the defense case and [Rosales’s] testimony.”
In rebuttal, Saenz testified he was Rosales’s neighbor in 1998. Saenz stated he was sitting on his front porch with a young woman when Rosales told Saenz to meet him in the street. Saenz said that when he refused, Rosales pulled out a gun, pointed it at him, and said he wanted to kill him. Saenz said he stepped away and called the police. Saenz said this was the second time Rosales pointed a gun at him and said he was going to shoot Saenz; it had happened three months earlier as well.
The prosecutor also offered Vasquez’s testimony in rebuttal. Vasquez testified she went to Rosales’s home just hours after the shooting and spoke with his daughter. She stated his daughter never told her that Rosales had a bruise on his face or that he acted in self-defense. There was evidence Rosales’s daughter called the police station the next day and reported there was a rumor Mendoza’s family was looking for Rosales to kill him. She also stated Mendoza’s father was going to Mexico to see if Rosales went there so he could kill him.
The jury convicted Rosales of first degree murder and found true he personally used a firearm. The trial court denied Rosales’s request to reduce his conviction to second degree murder or voluntary manslaughter. The trial court sentenced him to prison for 29 years to life.
DISCUSSION
I. Sufficiency of the Evidence-First Degree Murder/Premeditation and Deliberation
Rosales argues insufficient evidence supports his first degree murder conviction because there was no evidence he acted with premeditation and deliberation. We disagree.
“In reviewing a sufficiency of evidence claim, the reviewing court’s role is a limited one. ‘“The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]”’ [Citations.] [¶] “‘Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.]” [Citation.]’ [Citation.]” (People v. Smith (2005) 37 Cal.4th 733, 738-739.) “The standard of review is the same when the prosecution relies mainly on circumstantial evidence. [Citation.]” (People v. Valdez (2004) 32 Cal.4th 73, 104.)
“Murder is the unlawful killing of a human being, ... with malice aforethought.” (§ 187, subd. (a).) Murder in the first degree is murder that is willful, deliberate, and premeditated. (§ 189.) Deliberation refers to the actor carefully weighing considerations in forming a course of action; premeditation means the actor thought over those considerations in advance. (People v. Halvorsen (2007) 42 Cal.4th 379, 419.) “‘The process of premeditation and deliberation does not require any extended period of time. “The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly....” [Citations.]’” (People v. Koontz (2002) 27 Cal.4th 1041, 1080 (Koontz).)
In People v. Anderson (1968) 70 Cal.2d 15 (Anderson), the California Supreme Court set forth three categories of evidence to aid in analyzing the sufficiency of evidence demonstrating premeditation and deliberation: planning activity, motive, and manner of killing. In People v. Pride (1992) 3 Cal.4th 195, 247, the California Supreme Court later explained: “Anderson does not require that these factors be present in some special combination or that they be accorded a particular weight, nor is the list exhaustive. Anderson was simply intended to guide an appellate court’s assessment whether the evidence supports an inference that the killing occurred as the result of preexisting reflection rather than unconsidered or rash impulse. [Citation.]”
Here, there was sufficient evidence of planning activity, motive, and manner of killing for the jury to conclude Rosales acted with premeditation and deliberation when he shot Mendoza. The evidence at trial demonstrated Rosales planned to kill Mendoza. After Mendoza insulted Rosales and Mendoza knocked Rosales to the ground, Rosales repeatedly threatened to kill Mendoza. Rosales got up, walked to his van, retrieved a handgun, and walked towards Mendoza pointing the gun at him. That Rosales walked to his van to get his gun was circumstantial evidence he planned to carry out his threat to kill Mendoza. After a brief chase, they both returned to the house, and Rosales again pointed the gun at Mendoza and said, “I told you so.” Mendoza challenged Rosales to shoot him, but Rosales put away the gun. That Rosales kept the gun on his person, and did not leave it in the van tends to prove he was prepared to shoot Mendoza. After a brief respite and another fight, Rosales shot Mendoza in the head. Based on the entire record, it was reasonable for the jury to conclude Rosales planned to kill Mendoza when he armed himself with a gun, chased him, and eventually shot him in the head.
The record also includes evidence Rosales had a motive to kill Mendoza. Rosales insulted Mendoza by saying that when they were young he, Rosales, was Mendoza’s father’s hero. The two men fought, and Mendoza clearly got the better of Rosales, knocking him to the ground. From this evidence the jury could reasonably infer Rosales and Mendoza had a history of animosity because of Rosales’s personal, family insult. The jury could also reasonably infer Rosales had a motive to shoot Mendoza after Mendoza embarrassed Rosales by knocking him to the ground in front of Hernandez and Ernie.
Finally, the manner of killing evidences that Rosales acted with premeditation and deliberation. The evidence at trial demonstrated Rosales was crouched down on the ground with the gun pointed up at Mendoza, who stood over him. Rosales shot Mendoza at close range through the chin; the exit wound was the back of the head. A head shot demonstrates a deliberate intent to kill. (Koontz, supra, 27 Cal.4th at p. 1082 [firing a shot at a vital area of the body at close range indicates a deliberate intent to kill].)
People v. Manriquez (2005) 37 Cal.4th 547 (Manriquez), is instructive. The California Supreme Court addressed the issue of whether defendant acted with premeditation and deliberation when he shot four separate victims. (Id. at pp. 576-579.) With regard to the killing one of the victims at a restaurant, the court stated defendant and the victim argued, several minutes passed, defendant approached the victim, and defendant “pulled a firearm from his waistband, cocked the weapon, and fired several shots to the victim’s head, neck, and chest areas....” Relying on Koontz, supra, 27 Cal.4th 1041, the court held defendant’s entire course of conduct supported the jury’s conclusion defendant acted with premeditation and deliberation. (Manriquez, supra, 37 Cal.4th at p. 577.)
Similarly, here, Rosales got into an argument with Mendoza, he armed himself, and after the passage of time, Rosales shot Mendoza in the head. Rosales’s entire course of conduct established he acted with premeditation and deliberation. Thus, based on the entire record before us, we conclude it was reasonable for the jury to conclude Rosales acted with premeditation and deliberation when he shot Mendoza.
II. Evidence Code section 1101, subdivision (b)
Rosales argues the trial court erroneously admitted other acts evidence. Not so.
Evidence of uncharged acts is generally inadmissible to prove criminal disposition. (Evid. Code, § 1101, subd. (a); People v. Kipp (1998) 18 Cal.4th 349, 369.) However, Evidence Code section 1101, subdivision (b), allows the trial court to admit “evidence that a person committed a crime... or other act when relevant to prove some fact (such as motive, ... intent, ...) other than his or her disposition to commit such an act.”
“‘The admissibility of other crimes evidence depends on (1) the materiality of the facts sought to be proved, (2) the tendency of the uncharged crimes to prove those facts, and (3) the existence of any rule or policy requiring exclusion of the evidence.’ [Citation.]” (People v. Lindberg (2008) 45 Cal.4th 1, 22.) Other acts evidence is relevant where the other acts evidence and the charged offense are sufficiently similar. (People v. Ewoldt (1994) 7 Cal.4th 380, 401-402 (Ewoldt).) The least degree of similarity is required to prove intent. (Id. at p. 402.)
Although other acts evidence might be relevant to prove a material fact other than a defendant’s criminal disposition, this evidence is subject to exclusion pursuant to Evidence Code section 352. (Ewoldt, supra, 7 Cal.4th at p. 404.)
Evidence Code section 352 authorizes the trial court to “exclude evidence if its probative value is substantially outweighed by the probability” its admission will create a substantial danger of undue prejudice. For purposes of Evidence Code section 352, “prejudice” means “‘evidence that uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues. [Citation.]’” (People v. Heard (2003) 31 Cal.4th 946, 976.) We review a trial court’s rulings on relevance and prejudice for an abuse of discretion.
Before we address Rosales’s contentions concerning each of these items of evidence, we will address a theme common to each piece of evidence. He claims that because he was charged with a specific intent crime, murder, evidence he committed other general intent offenses is not relevant and thus not admissible pursuant to Evidence Code section 1101, subdivision (b). People v. Lang (1989) 49 Cal.3d 991 (Lang), is instructive.
In Lang, supra, 49 Cal.3d at pages 1013-1016, the California Supreme Court upheld admission of testimony defendant had carried a gun on five or six occasions during the months preceding the homicide at issue. There was evidence that when asked why he was armed, defendant answered “‘I’ll waste any mother fucker that screws with me.’” (Id. at p. 1013.) The court concluded this testimony was relevant to prove intent because the jury could reasonably interpret defendant’s answer “to mean he had a preexisting intent to kill anyone who interfered with him or thwarted his desires or plans or, in other words, to kill on slight provocation under circumstances where he had no right of self-defense.” (Id. at p. 1015.) We read Lang to stand for the proposition evidence of other general intent crimes is admissible pursuant to Evidence Code section 1101, subdivision (b), to prove something other than criminal disposition, i.e., intent. We turn now to the other acts evidence before us.
Evidence that on three separate occasions Rosales brandished a weapon and boasted he could kill anyone he wanted was relevant to prove the charged offense. This evidence was relevant to Rosales’s intent to commit murder because the evidence tended to prove Rosales had a preexisting intent to kill anyone who confronted or upset him. One each of the occasions, Rosales pulled out a gun and boasted he would kill either Hernandez or Saenz. This evidence tended to refute Rosales’s claim he acted in self-defense because if he had previously brandished a weapon on three separate occasions against two different men, it cast serious doubt on his claim he was defending himself against Mendoza.
With respect to the other acts evidence concerning Saenz, Rosales asserts that evidence was not relevant to the issue of his intent because those incidents occurred after the charged offense. In People v. Balcom (1994) 7 Cal.4th 414, 425, the California Supreme Court explained: “‘If evidence of an uncharged offense is relevant, there is no distinction between an offense that is prior to and one that is subsequent to the date of the charged offense.’ [Citation.]” Based on Balcom, Rosales’s claim is unpersuasive. Thus, the April 1991, the October 1998, and the July 1998, incidents were all relevant to the charged offense to prove Rosales’s intent.
Because we have concluded the other acts evidence was relevant to Rosales’s intent, we need not address the Attorney General’s alternate claim the other acts evidence was also relevant to his motive.
Additionally, the trial court properly concluded the other acts evidence was not unduly prejudicial because it would not tend to evoke an emotional bias against Rosales. Evidence Rosales brandished a weapon and bragged he could kill Hernandez and Saenz was no more inflammatory than evidence of the charged offense, which consisted of Rosales shooting Mendoza at close range through the chin. Nor was there a danger the jury would convict Rosales of the charged offense based on the other acts evidence because evidence of the charged offense was particularly strong. Thus, the trial court properly admitted the other acts evidence, and Rosales was not denied his federal constitutional right to a fair trial.
III. Right to Present a Defense
Rosales contends the trial court violated his federal constitutional right to present a defense when it erroneously excluded evidence that in 1991, he spoke with his defense counsel, Chatterton, who told him that he would not be charged with a crime. He complains that had the jury heard this evidence, it would have better understood why he did not contact or speak with law enforcement during the intervening 17 years, and this would have bolstered his claim of self-defense. Although we agree the court should have admitted the evidence, we conclude Rosales was not prejudiced.
“‘Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants “a meaningful opportunity to present a complete defense.”’ [Citation.] This right is abridged by evidence rules that ‘infring[e] upon a weighty interest of the accused’ and are ‘“arbitrary” or “disproportionate to the purposes they are designed to serve.”’ [Citation.]” (Holmes v. South Carolina (2006) 547 U.S. 319, 324-325.)
Here, the trial court erroneously excluded evidence that shortly after the incident, Chatterton, Rosales’s defense counsel, told him the prosecutor was not going to charge him with Mendoza’s murder and he could “keep on living his life.” Although the jury heard evidence Rosales had spoken with his attorney, the jury did not hear evidence of the content of Chatterton’s statement to Rosales. This evidence would have explained why Rosales did not speak with law enforcement officers during the intervening 17 years. Had Rosales been permitted to testify concerning Chatterton’s out-of-court statement, the evidence would have been admissible and relevant to show Rosales’s state of mind. This evidence would have countered the prosecutor’s focus on Rosales’s failure to contact the police after the crime. Thus, the trial court erroneously excluded this relevant evidence. We must now determine whether Rosales was prejudiced by the exclusion of this evidence. We conclude he was not.
“As a general matter, the ‘[a]pplication of the ordinary rules of evidence... does not impermissibly infringe on a defendant’s right to present a defense.’ [Citations.] Although completely excluding evidence of an accused’s defense theoretically could rise to this level, excluding defense evidence on a minor or subsidiary point does not impair an accused’s due process right to present a defense. [Citation.] If the trial court misstepped, ‘[t]he trial court’s ruling was an error of law merely; there was no refusal to allow [defendant] to present a defense, but only a rejection of some evidence concerning the defense.’ [Citation.] Accordingly, the proper standard of review is that announced in People v. Watson (1956) 46 Cal.2d 818, 836... [(Watson)], and not the stricter beyond-a-reasonable-doubt standard reserved for errors of constitutional dimension (Chapman v. California (1967) 386 U.S. 18, 24....” (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.)
Here, evidence of Chatterton’s statement to Rosales concerned a subsidiary point—his conduct after the shooting. The trial court’s exclusion of this evidence did not prevent Rosales from presenting a defense. The jury heard testimony Mendoza hit Rosales on the face with the butt of a shotgun, Rosales was crouched down on the ground with the gun pointed up at Mendoza, and Rosales had a bruise on his face. The jury also heard evidence Vasquez recovered a shotgun shell from Mendoza’s bedroom nightstand. The jury had ample evidence from which to conclude Rosales acted in self-defense. Because the court’s exclusion of the Chatterton evidence did not prevent Rosales from presenting his claim of self-defense, we review the error under the Watson standard.
Based on the entire record, we cannot conclude it is reasonably probable Rosales would have obtained a more favorable result had the jury heard this evidence. As we explain above, there was overwhelming evidence Rosales acted with premeditation and deliberation when he shot Mendoza. Additionally, neither witness to the shooting testified Mendoza was armed with a shotgun. Thus, Rosales was not prejudiced by the court’s exclusion of the Chatterton evidence.
IV. Prosecutorial Misconduct
Rosales claims the prosecutor committed misconduct. The Attorney General contends Rosales forfeited appellate review of this claim because he did not object, the prosecutor did not commit misconduct, and any error was harmless. We agree with the Attorney General.
“‘In order to preserve a claim of [prosecutorial] misconduct, a defendant must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the claim of misconduct preserved for review. [Citation.]’ [Citation.]” (People v. Parson (2008) 44 Cal.4th 332, 359.) Here, defense counsel did not object to any of the complained of questions or closing argument, or request admonitions. Rosales claims any objections would have been futile because the misconduct was “well beyond the curative powers of any admonition.” We disagree. The court could have cured any alleged misconduct by admonishing the jury to disregard the prosecutor’s statements. Thus, his claim is forfeited. In any event, Rosales’s claim is meritless.
“‘“‘“A prosecutor’s... intemperate behavior violates the federal Constitution when it comprises a pattern of conduct ‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.’”’ [Citation.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ‘“‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’”’ [Citation.]” (People v. Ayala (2000) 23 Cal.4th 225, 283-284.)
Rosales complains the prosecutor improperly elicited testimony neither he nor his daughter ever contacted law enforcement from two days after the offense to the start of trial when the prosecutor knew that in 1991 Chatterton told Rosales the prosecutor would not charge him with Mendoza’s murder. The evidence neither Rosales nor his daughter contacted law enforcement officers from two days after the offense to the start of trial was true. And it was not misleading, because the jury also heard evidence Rosales was represented by counsel in 1991. The jury could not have been misled into thinking Rosales was guilty because he had been avoiding the police. And as we explain above, the evidence was not directly relevant to his claim of self-defense.
Rosales also complains that during closing argument the prosecutor accused Brown, Rosales’s daughter, of committing perjury and the prosecutor “didn’t fall off the turnip truck yesterday.” A “‘prosecutor is permitted to urge, in colorful terms, that defense witnesses are not entitled to credence [and] to argue on the basis of inference from the evidence that a defense is fabricated....’ (...; accord, People v. Edelbacher (1989) 47 Cal.3d 983, 1030... [no impropriety in arguing that the defendant was a ‘“pathological liar, ” and “one of the greatest liars in the history of Fresno County”’].)” (People v. Earp (1999) 20 Cal.4th 826, 863.) Here, the prosecutor’s argument was based on inferences that could reasonably be drawn from the evidence and therefore was not improper. The prosecutor’s argument Brown committed perjury was based on a comparison of her trial testimony, on the one hand, and other testimony presented at trial, on the other hand. Thus, the prosecutor did not commit misconduct.
Finally, any error was harmless beyond a reasonable doubt. As we explain above, there was overwhelming evidence Rosales shot Mendoza with premeditation and deliberation. And it was not until trial that Rosales claimed he acted in self-defense; that was not the story he told Martinez during his interview in 2008.
V. Cumulative Error
Rosales contends the cumulative effect of the errors requires reversal. Although we conclude there was one error, the trial court erroneously excluded relevant evidence, Rosales was not prejudiced. Therefore, his claim the cumulative effect of the errors was prejudicial has no merit.
DISPOSITION
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., MOORE, J.