Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. 147394
Kline, P.J.
Appellant Joseph R. Teitgen was convicted, following two jury trials, of one count of first degree murder of a police officer engaged in the performance of his duties and two counts of attempted murder of a police officer. On appeal, he contends (1) the trial court erred when it refused to instruct the jury in the second trial on involuntary manslaughter; (2) the court erred when it refused to instruct the jury about the effects of prior threats by people associated with the victims; (3) the evidence in the second trial was insufficient to support his conviction for attempted murder; (4) the court erred, in the second trial, when it refused to admit a taped interview of an eyewitness who had died prior to trial; (5) the court erred when it allowed the prosecution to impeach appellant’s wife’s credibility with evidence of matters occurring almost two years after the incident; (6) the court erred when it granted the prosecution’s motion to exclude all evidence regarding an internal affairs investigation of a police officer witness; (7) the court erred when it excluded evidence related to appellant’s conduct when he learned of his wife’s past affair with a police officer; (8) prosecutorial misconduct requires reversal; (9) judicial misconduct requires reversal; and (10) the cumulative effect of the errors requires reversal. We shall affirm the judgment.
Except as otherwise noted, all of appellant’s contentions concern alleged errors occurring during both trials.
PROCEDURAL BACKGROUND
Appellant was charged by information with the murder of Jeffrey Azuar (Pen. Code, § 187 — count one), with the special circumstances that (1) the murder was committed to avoid or prevent a lawful arrest (§ 190.2, subd. (a)(5) & (7)) and (2) the victim was a police officer who was intentionally killed while engaged in the performance of his duties. Count one further alleged that appellant personally used a firearm causing great bodily injury and death (§ 12022.53, subd. (d)). The information also charged appellant with the attempted murder of police officer Douglas Wilcox (§§ 664, subd. (e), 187, subd. (a) — count two), and alleged that appellant intentionally discharged a firearm (§ 12022.53, subd. (c)). The information further charged appellant with the attempted murder of police officer Larry Rogers (§§ 664, subd. (e), 187, subd. (a) — count three), and alleged that appellant personally used a firearm (§ 12022.53, subd. (b)).
All further statutory references are to the Penal Code unless otherwise indicated.
On September 10, 2003, the jury in the first trial found appellant guilty of the attempted murder of Officer Wilcox (count two) and found the enhancement allegation true, but was unable to reach verdicts on counts one and three.
The information was subsequently amended to charge appellant with the same offenses and enhancements, with respect to counts one and three, as in the original information.
On March 9, 2004, the jury in the second trial found appellant guilty on both counts, and found all special circumstance and enhancement allegations true.
On May 7, 2004, the trial court sentenced appellant to life imprisonment without the possibility of parole for the murder of Officer Azuar and two life terms with the possibility of parole for the attempted murders of Officers Wilcox and Rogers, with an additional 55 years for the three enhancements.
On June 30, 2004, appellant filed a notice of appeal.
FACTUAL BACKGROUND
Prosecution Case
Vallejo Police Officer Douglas Wilcox testified that, on the afternoon of April 12, 2000, he was told to execute an outstanding arrest warrant for appellant. The warrant was out of Napa County for stolen property. Wilcox requested a cover unit to assist in effecting the arrest warrant. After meeting up with Officer Azuar and Sergeant Rogers, the three officers drove to appellant’s house in Vallejo, parked the patrol car on the street, and approached the house in full uniform. Rogers went around to the rear of the house to cover the back in case appellant fled, and Azuar accompanied Wilcox to the front door.
Wilcox knocked a couple of times on the door, and then a woman asked who it was. He responded, “Vallejo police officers,” and the woman opened the door. Wilcox knew her to be Jackie Teitgen. He told her that the officers were there to effect an arrest warrant for appellant and they had reasonable information that appellant was inside the house. Jackie allowed the officers in after Wilcox told her that they were only going to look for appellant, and were not going to search the house for anything else.
Jackie Teitgen will be referred to as “Jackie” to distinguish her from appellant.
Jackie said that her daughter was in the bedroom and went to get her while the officers began searching. After searching the rest of the house, Wilcox and Azuar checked the kitchen and then started to go down a steep, narrow wooden stairway to the garage/laundry room. At the top of the stairs, Wilcox announced in a loud voice, “Vallejo Police Department,” and did so again when they were about two-thirds of the way down the stairs.
After the officers got to the bottom of the stairs, Wilcox saw appellant jump up from a corner of the room and run, while slightly bent over, directly at them. He was wearing blue jeans and no shirt, and attempted to run up the stairway. After appellant passed between the two officers and got almost to the top of the stairs, Wilcox was able to get his arms around appellant and struggled to restrain him. Wilcox managed to pull appellant down, and they bounced a few steps down the stairway. Azuar was behind them during the struggle.
Just as Wilcox was about to put a carotid restraint on appellant, he heard a gunshot. Wilcox saw a gun in appellant’s right hand, pointed up toward the top of the stairway. Appellant then brought the gun down toward Wilcox’s face. Wilcox abandoned the carotid restraint, grabbed appellant’s wrist and pushed it to the left. At that point, another shot was fired and appellant ran up the stairs.
Wilcox felt Azuar pushing up behind his back as Wilcox tried to reach up and grab appellant’s leg. When appellant got to the top of the stairs, he turned around and fired a third shot down the stairway. Wilcox was about one to three feet away at the time he fired the shot, and Wilcox immediately felt Azuar become very heavy on his back. Wilcox stood up, looked over his shoulder, and saw Azuar fall down the stairs.
Wilcox drew his weapon, ran to the top of the stairs, and saw Jackie in the living room. He asked her where appellant had gone and she said he had left. Wilcox used his radio to request an ambulance, and then returned to the bottom of the stairs to try to render aid to Azuar. Azuar had a gunshot wound to the face and his gun was lying on the floor. Wilcox stayed with Azuar for the few minutes it took for help to arrive.
On cross-examination, Wilcox testified that he initially believed the second shot was the one that struck Azuar. But, upon reflection and after learning that the bullet from the third shot traveled at a slightly downward angle, in light of Azuar’s injuries and the amount of Azuar’s weight that he felt on his back after the third shot, he believed the third shot was the one that struck Azuar.
Vallejo Police Officer Larry Rogers testified that, at about 2:30 p.m. on April 12, 2000, he responded to Wilcox’s request for assistance in serving an arrest warrant. He met with Wilcox and Azuar and they went to the house in Vallejo where they planned to serve the warrant. Rogers went to cover the rear of the house while Wilcox and Azuar went to the front door. The other officers radioed Rogers that they had information that appellant was not at the house, but they were going to look around anyway. About a minute later, he heard a panicked, frantic radio transmission that he believed came from inside the house. He was trying to kick in the back door of the house when he heard two shots from inside the house; a few seconds later, he heard a third shot.
Rogers went around to the southwest corner of the house, where he saw appellant attempting to climb out of an upstairs window with a gun in his hand. Rogers fired one shot at appellant, who fell out of the window onto the driveway at the side of the house. Appellant’s gun flew out of his hand and landed about 10 feet to his left. Appellant started getting up on his hands and knees, and Rogers pointed his gun at appellant and yelled several times for him to stay down. Appellant nevertheless started advancing toward the officer on his hands and knees. Rogers grabbed appellant and then threw his own gun into a neighbor’s yard both to keep appellant from having access to it and so he could use both hands to physically subdue appellant.
Rogers attempted to pin appellant to the ground, but appellant lifted him up and pushed him backwards. Appellant, who was covered with blood and sweat, slipped out of the officer’s grasp and reached out and grabbed his gun off the ground. Rogers rolled over on top of appellant and grabbed the gun, attempting to pin appellant to the ground. Appellant started raising up his gun and pushed the barrel up toward Rogers’ face before Rogers was able to shove it down and pin the hand with the gun to the ground. Appellant stopped struggling at that point, and Rogers was able to hold appellant down for about a minute, until other officers arrived. With the other officers’ assistance, appellant was eventually subdued and handcuffed.
Vallejo Police Officer Brian Alexander was one of the officers who arrived during Rogers’s struggle with appellant. He saw Rogers on top of appellant, with another officer on top of Rogers. Appellant was struggling as the officers tried to secure his hands. Appellant was extremely combative. Even after he was handcuffed, he tried to bite and head-butt the officers. It ultimately took five or six officers to subdue him.
On the afternoon of the shooting, Larry Lum was in his backyard, which adjoined appellant’s yard from the rear, when he saw a police officer in appellant’s backyard, on the back porch. Lum then heard some screams and three gunshots from inside the house. The officer backed off the porch and moved to the southwest corner of the house. Lum saw the officer point his gun toward the upper part of the house, say “Stop,” “Vallejo Police,” and then fire his gun. He then saw a body fall to the ground.
The officer pointed his gun at the person on the ground and told him three times to stay down. The man kept moving, and a struggle took place. Lum did not see if the officer tossed away his gun during the struggle. At times, both men were on the ground, out of his sight.
A blood sample taken from appellant at approximately 7:00 p.m. on April 12, 2000, revealed that methamphetamine was present in appellant’s blood at .21 micrograms per milliliter.
The forensic pathologist who performed the autopsy on Azuar determined that Azuar had been killed by a gunshot wound to the head. The trajectory was from front to back, left to right, and slightly downward, which meant the muzzle was slightly above the entry wound when fired. He estimated that Azuar had been shot from a distance of 12 to 18 inches.
Investigators found evidence at the scene that strongly suggested Azuar had been standing on the fifth or sixth stair from the bottom when he was shot. A bullet that had lodged in his head had been fired from a distance of about 18 inches.
Defense Case
Harold Mitchell testified that appellant and Jackie rented a house from him on Tennessee Street in Vallejo. They fell behind on the rent and, in April 2000, Mitchell’s attorney served them with eviction papers. After the eviction, Mitchell allowed appellant and Jackie to return to the house to finish packing and moving their belongings. After the shooting, Mitchell went into the house and saw that all of the windows had been nailed shut and additional locks had been added to the doors.
Richard Gates, a lawyer with the Napa County Public Defender’s Office, represented appellant in 1998 or 1999 on a $9,000.00 bad check case. Appellant pleaded guilty to grand theft, and received probation and a 90-day jail term. A few weeks or months before the shooting, appellant left a telephone message for Gates, saying he needed Gates’s help getting his case back on calendar. He sounded frightened and stressed, and said he was afraid people were watching him. Gates returned the call and left a message for appellant on his answering machine, but never heard back from him.
Jackie Teitgen testified that she and appellant married in 1989 and had three children together. In early 2000, they were having problems with their relationship and had not been staying together in the few weeks before April 12.
In January 2000, two uniformed female sheriff’s deputies came to their house in Vallejo and said they had a warrant from Napa for appellant’s arrest. Appellant was hiding in the house, but Jackie told them he was not there. After the deputies left, appellant said he did not want to do the jail time pending in the Napa case.
About a week later, appellant told Jackie that a man named Darroll Widmann would be coming to their house and he would be taking care of appellant’s “Napa problem.” Widmann came to the house that evening, while appellant was out, and told Jackie that he would make the Napa problem “go away” because “he was the middleman for, uh, the Hells Angels and the police department was his story, and that with a little money, he could take away anybody’s record and make it go away.” Widmann said he had a good friend, Kevin Hamrick, who was a police officer and who would help. She also learned that Widmann and Hamrick, in addition to money, wanted appellant to turn over a drug dealer in exchange for their help. Over the next couple of weeks, Widmann called their house many times.
One or two months before the shooting, Jackie followed appellant to Widmann’s house, where she saw Hamrick for the first time. She also saw appellant give a large amount of money to Widmann, who then gave some of it to Hamrick. Several weeks later, Widmann and Hamrick came to Jackie and appellant’s house at about 10:00 p.m. She heard the front door “just come bashing in.” She ran downstairs and saw Hamrick roughing appellant up and throwing him down. At the end of the visit, both Widmann and Hamrick pushed appellant.
An audiotape of the incident—recorded on a voice-activated tape recorder appellant had hidden in the house—was played for the jury.
Another time, Jackie saw appellant take Corvette rims from their house and later saw them on Widmann’s car. Appellant also took a pickup truck from in front of their house, which she later saw parked on the side of Widmann’s house.
Appellant told Jackie he was afraid of the Hells Angels and the Vallejo Police Department generally, and Hamrick and Widmann in particular. Appellant told her that if he did not give Widmann what he wanted, he was afraid Widmann would have the Hells Angels or a police officer kill him. Once when Widmann came to the house, Jackie heard Widmann tell appellant he was going to kill him. Appellant was scared after that and spent much less time at the house. Appellant installed surveillance cameras and voice-activated recorders in the house. After listening to recordings containing normal household sounds, appellant thought he heard other things, including Jackie having sex with Widmann.
During the several months before April 12, 2000, Jackie and appellant had been using methamphetamine daily, all day. Most of their money was going to their drug habit and to Widmann.
Jackie and appellant were evicted from their home in April 2000. After the eviction, the landlord allowed them to come to the house during the day to pack up their belongings. On April 12, 2000, Jackie and her three-year-old daughter arrived at the house at about 2:30 p.m., after spending the night at a hotel. Jackie had been there about 20 minutes, and was preparing to take a shower, when there was a knock at the front door. She opened the door and saw two uniformed police officers. They asked if appellant was there, and she said “no.” She had not seen appellant at the house that day.
The officers searched the upstairs of the house, and then went back toward the kitchen. Jackie was closing the front door, which had been left open, when she heard a commotion and yelling. She ran to the door off the kitchen that went into the basement, where she saw the two officers and appellant “interlocked” in a struggle on the stairs. She saw appellant pull a gun out of his pants; she screamed, “Don’t, stop,” and ran to get her daughter. She heard three gunshots as she ran to the master bedroom, grabbed her daughter, and got down on the floor. She then thought she heard two more gunshots. She peeked out the bedroom door and saw Wilcox, who asked her where appellant was and told her to stay down.
On cross-examination, Jackie testified that she saw Wilcox draw his gun as he went down the basement stairs. She also said there was much she did not remember because she was high on drugs that day.
Vallejo Police Officer Jason Wentz testified that he was on plainclothes duty when he responded to reports of the shooting. When he arrived at the house, a man was standing in front of the house to the right of appellant’s and pointing toward appellant’s house. Wentz forced open a gate at the side of appellant’s house and came upon Sergeant Rogers lying on top of appellant and commanding him to stop moving. There was a gun lying near appellant’s hands, which Rogers swept away and tossed to the side. Appellant continued to struggle and Wentz tried to help restrain him by grabbing his feet and legs. A minute or two later, other officers arrived to assist.
Later, while paramedics treated appellant at the scene, Wentz got a tape recorder from his car and recorded some of appellant’s comments to a police officer who was questioning him. In the recording, which was introduced into evidence and played for the jury, the officer told appellant he was probably going to die and to tell him what happened. Appellant repeatedly said he wanted to die. He also admitted shooting the officer, saying he did it because of SOL-NET (Solano County Drug Task Force), Hamrick, and Widmann, because “[t]hey rat fucked me.”
Vallejo Police Officer Kelly Schroeder arrived at the scene shortly after Wentz, and observed Rogers and Wentz struggling with appellant. He saw a gun in the grassy area adjacent to where the men were struggling.
Vallejo Police Officer William (Kevin) Hamrick testified that he first met appellant in December 1999 or January 2000. They met through Darroll Widmann, with whom Hamrick was friends. Appellant had an outstanding warrant for his arrest for writing a bad check and wanted to avoid going to jail. He also owed at least $10,000.00 to his methamphetamine dealer. After Hamrick met with appellant, his sergeant told him to turn appellant over to Napa Special Investigations Bureau (NSIB), to be used as an informant with appellant’s Napa drug dealer.
In late March or early April 2000, Hamrick contacted NSIB and asked about appellant; he was told that the arrest warrant was going to be reinstituted because appellant had failed to meet his requirements.
Hamrick went to appellant’s house on two occasions. The first time, he and Widmann were driving to a Jack in the Box restaurant near appellant’s house when they saw him driving dangerously with a child in his car. Hamrick followed appellant back to his house and yelled at him about his driving. Appellant appeared to be agitated and under the influence of methamphetamine. After calming appellant down on the porch, they went inside the house. Hamrick talked to appellant about the drug dealer to whom he owed money, the agreement between him and NSIB as an informant, and problems he was having with his wife, in particular that he believed she was having affairs with “just about everybody,” including Widmann. Hamrick also went into a bedroom with Jackie to talk to her privately about whether appellant was abusing her and whether she was having an affair with Widmann.
Hamrick went to appellant’s house a second time, in early April 2000, after Jackie called Widmann while Hamrick was at Widmann’s home and complained about how appellant was treating her. Hamrick talked to her on the phone and then went over to the house, at her request. He stayed about five minutes. He asked questions about appellant and Jackie said she had not seen him in a long time. Hamrick believed this was a lie.
Darroll Widmann testified that he met appellant in the mid-1990s. They met when appellant worked for a tow company and towed cars to Widmann’s body and fender shop. In late 1999, Widmann began seeing changes in appellant’s behavior. He went from being “a fairly normal guy” to being “nuts” when he “got into the meth scene.”
Widmann met Kevin Hamrick in about 1996 or 1997, when Hamrick began sharing the rent on a building Widmann and his friend, police officer Dan Reid, rented to work on their cars. Widmann first talked to Hamrick about appellant and his deterioration at least three months before April 12, 2000. He also talked to Jackie about the same issue.
Widmann also testified about driving home from Jack in the Box with Hamrick and seeing appellant driving dangerously with a child in the back seat. They followed appellant to his house, and Hamrick ran to the house after appellant, yelling at him. Widmann saw the two men “scuffling” on the porch before they went inside the house. When Widmann went inside a few minutes later, appellant and Hamrick seemed to be having a fairly calm, rational conversation. At one point, Hamrick and Jackie went upstairs into the bedroom for about 10 or 15 minutes. When they came down, Jackie was carrying a little girl, and Jackie and the girl looked like they had been slapped, so Widmann yelled at appellant. Appellant yelled back and Hamrick stepped between them.
After that, appellant spiraled downward. He told Widmann that he felt he was “getting shafted” by law enforcement. Widmann conveyed concerns he had about appellant to several police officers, including Hamrick. On the day before Officer Azuar’s death, Will Hill, a friend of Widmann’s, said appellant was “running around again with a firearm and threatening to shoot” Widmann. Widmann called Hamrick and told him appellant was threatening his life, but Hamrick said he was on his way to Texas, and he would do something about it when he got back. The next day, Widmann called police officer Dan Reid about appellant.
Widmann never received any money from appellant, though appellant once “dumped” a pickup truck at Widmann’s house.
Widmann had discussed his trial testimony with Hamrick about two months previously, when Hamrick said he wanted them to be on the same page and told Widmann to say that Hamrick had “never used [Widmann’s] cell phone at all,” when in fact Hamrick had used his cell phone. Hamrick also said Widmann should not mention the more than 100 telephone calls Jackie Teitgen had made to Widmann’s house, asking for Hamrick.
Vallejo Police Officer Dan Reid testified that, on April 12, 2000, Darroll Widmann called him and said that appellant was making threats against Widmann because he apparently thought Widmann was responsible for an outstanding warrant against him. Widmann was concerned there would be a problem that day and asked Reid if he could arrest appellant on the outstanding warrant. Reid, who did not know appellant, told Widmann he was not working that day, but he would call an officer who was working to ask him to go by and serve the warrant. Reid called Officer Wilcox and asked him to go to appellant’s house and serve the warrant.
Former Napa Police Officer Gregory Reese testified that he was working for the NSIB drug task force when, in January or February 2000, he and Hamrick met with appellant, who was interested in being a confidential informant. Appellant ultimately introduced Reese to a Napa drug dealer, in exchange for which appellant was going to get home detention instead of jail time in his Napa case. Appellant’s outstanding arrest warrant was recalled, he was given a citation to appear in court, but he did not appear in court to receive his home detention. Therefore, another arrest warrant was issued; that warrant was outstanding in April 2000.
A Vallejo car dealer, Martin Kobert, testified that he sold many cars to appellant over the years. In early 2000, appellant told Kobert that he owed Kevin Hamrick $6,000.00 and was going to assist police in lieu of payment on the money he owed. Appellant also told Kobert that he was involved with Widmann and Kobert advised appellant to stay away from Widmann because he was “just not a good person to know.” Just before the shooting, appellant seemed to be suicidal and said “he was at the end of his rope.” Appellant said he had a warrant and was on the run. He was disguising himself and driving different cars so the police would not get him.
Matthew King, who owned a car dealership and tire shop in Vallejo, testified that he met appellant in 1994 and they became close friends. In February 2000, appellant told King that he was to give Darroll Widmann, who had ties with the Vallejo Police Department as well as the Hells Angels motorcycle gang, a large sum of cash, serve 90 days in jail, and give evidence against a drug dealer, and Widmann said his record would be erased. King told appellant that Widmann should not be trusted and that he was “dirty.”
Appellant told King that he gave Widmann money and it was never enough. He also said that he did not want to go to jail and that someone in the Vallejo Police Department was after him. King suggested appellant talk to a senior officer King knew in the police department to find out if correct police procedure was being followed. He also suggested appellant talk to a leader of the Hells Angels, who King thought did not know what was going on.
King last saw appellant on the night of April 11, 2000. Appellant rode up on a child’s bicycle to the house of a neighbor King was visiting. Appellant looked horrible; he looked like he had lost about 80 pounds, his head was shaved, and he was very pale. He was obviously under the influence of methamphetamine.
Mark Flynn testified that he had known Widmann for a long time, and met Hamrick through Widmann. Flynn was self-employed as a motorcycle builder. About a week before the shooting, Widmann told Flynn that he wanted to show him a specially built motorcycle Widmann had for sale at a motorcycle shop. They went to the shop, but the motorcycle was not there. Widmann then took Flynn to a house on Tennessee Street in Vallejo. A truck was parked outside, and Widmann asked Flynn if he wanted it, and said, “Give me a price.” Flynn and Widmann went inside the house and Widmann talked to a woman named Jackie for a few minutes. There was a knock at the door and Hamrick came in and went down the hall out of sight with Jackie. Flynn did not like what was going on, so he told Widmann he was not interested in the motorcycle or truck, and left.
Willy Hill testified that he met appellant in about 1995. He saw appellant more than once in the days before the shooting. He seemed to have deteriorated more, in that he was very paranoid, on the run, and had lost more weight. He appeared to be “in the upper stages of prolonged [methamphetamine] use.” About 10 days before the shooting, appellant told Hill he “was going to get Darroll Widmann.”
On April 11, 2000, Hill saw Widmann driving by and flagged him down. He told Widmann that someone said he was a snitch and was out to get him. Widmann guessed he was talking about appellant. Widmann then made a cell phone call and Hill heard him say, “He’s at it again,” and “We have to hook him up.” On the day after the shooting, Hill talked to Widmann again, and Widmann said that appellant was expected to snitch on some people and give up a Harley or some Harley parts to Hamrick to clear his legal problems. Widmann also told Hill about going to appellant’s house with Hamrick, where Hamrick slapped appellant around because appellant was wired and out of it. Widmann also said he and Hamrick had had a few drinks beforehand.
Steven Richards, who owned a motorcycle painting shop and knew appellant, testified that appellant brought some motorcycle parts to his shop to be painted in the summer of 1999. Between late 1999 and early 2000, Widmann came to his shop and tried to collect appellant’s parts. Richards refused to turn over the parts to Widmann. Appellant eventually came to pick up the parts about a month before the shooting. He looked worn out, and seemed intoxicated on methamphetamine. He told Richards that “he was afraid the Hells Angels were looking for him and, um, the police and everybody it seemed like, you know.”
Ryan Fraley testified that appellant had worked at Fraley’s equipment sales business for a few years in the mid to late 1990s, and they remained friends. In early 2000, appellant started to seem stressed and worried. About two weeks before April 12, 2000, Fraley saw appellant, who said that someone (Fraley could not recall his name) was trying to take things that belonged to Teitgen, including his motorcycle and truck, in payment for cleaning up a warrant he had. The man appellant mentioned had come to Fraley’s shop a few times looking for appellant, and Fraley once saw the man with appellant’s wife.
John Podboy, a clinical and forensic psychologist, testified that he first met with appellant two months after the shooting and interviewed him on numerous other occasions thereafter. He also interviewed appellant’s family and reviewed various records. Dr. Podboy believed that, at the time of the shooting, appellant was suffering from a major depressive disorder and polysubstance abuse (marijuana and methamphetamine), and was actively suicidal. He acknowledged that this was a retrospective diagnosis, made after the fact. Dr. Podboy also learned that appellant was very anxious about his wife’s fidelity and about people wanting to do him harm, including certain law enforcement officers.
Dr. Podboy did not believe appellant was capable of executive functioning, i.e., high-order cognitive functioning on April 12, 2000, although “he was capable of everything short of that.” People observing him probably would have “thought that he was a little bit strange, but still roughly within normal parameters.” Dr. Podboy also discussed the “fight-or-flight” syndrome, in which, when under attack, a person’s rational mind is bypassed and a decision whether to fight or flee is reached. He believed this syndrome came into play with appellant, since there was evidence that he initially tried to flee from Wilcox and Azuar.
Gregory Hayner, chief pharmacist for the Haight Ashbury Free Clinic, testified as an expert regarding signs and symptoms of drug intoxication and overdose. Hayner explained that methamphetamine acts as a stimulant on the central nervous system, releasing adrenaline into the system and keeping people awake, suppressing appetite, and “basically pumping the whole body up.” Heavy methamphetamine users can become scared and paranoid, sometimes believing that the authorities are following them and have them under surveillance. They might also hear voices.
On cross-examination, Hayner testified that .21 micrograms per milliliter—the amount of methamphetamine in appellant’s blood shortly after his arrest—is a moderate dose. A person with that level of methamphetamine in his or her blood could recognize police officers in uniform, could decide whether to submit to an arrest, could decide to kill, would know that a gun is a lethal weapon, and could operate a gun. Hayner had no evidence that appellant was experiencing hallucinations or delusions on April 12, 2000.
Vallejo Police Officer Barbara Greene testified that, in January 2000, she and two other officers went to appellant’s house to serve an arrest warrant out of Napa County. Jackie responded to their knock on the front door. When told that the officers had an arrest warrant for appellant, Jackie stated that he was not home. She also refused them access to the house and slammed the door in their faces.
Prosecution Rebuttal
Gregory Luna, a detective with the Riverside County Sheriff’s Department, testified that he met Jackie through an internet police and fire chat room in June 2002. In late July 2002, they made arrangements to meet, and Luna paid for Jackie to fly to Ontario, California. Jackie told Luna that she had been a police officer for four years with the Vallejo Police Department, on the narcotics task force. She also told him that her husband had shot and killed Officer Jeff Azuar. Specifically, she said that she went to her residence to collect some of her personal belongings and brought two off-duty police officers to “keep the peace.” She was collecting her things when she heard a scuffle or fight downstairs. She went downstairs to discover the two officers fighting with her husband. She said her husband pointed a gun at her and then shot her partner from about one foot away from her face. She said she then shot her husband.
Officer Kevin Hamrick testified that he only went to appellant’s house twice and never went there when Mark Flynn was there.
Attorney Larry Olsen testified that, in 2000, he represented appellant’s landlord, Harold Mitchell, in eviction proceedings against appellant and Jackie. After the eviction, Olsen agreed to unlock the house in the mornings so that they could retrieve their possessions. Olsen, a former police officer, saw appellant on the mornings of April 10, 11, and 12, 2000; appellant did not appear to be under the influence of methamphetamine at those times. Olsen let appellant into the house on the morning of April 12 at about 7:40 a.m. Appellant looked like he had just gotten out of the shower and was wearing clean clothes.
Police Officer Kevin Coelho conducted a videotaped interview of Jackie shortly after the shooting. In the interview, Jackie said that Kevin Hamrick and Darroll Widmann came to her house one time after appellant had kicked her in the stomach and pulled her hair. She said that Widmann was a friend of hers and that Widmann and Hamrick were attempting to help appellant with his problems. She also said that appellant was adamant that he would not go to jail because he was afraid Jackie would leave him.
Vallejo Police Officer James O’Connell interviewed Jackie on April 13 and April 14, 2000. She said appellant knew he had an outstanding warrant and did not want to be arrested. She also said that once, just before Hamrick and Widmann came to the house, appellant had pulled her hair and kicked her in the stomach.
Vallejo Police Officer Donald Hendershot conducted a tape-recorded telephone interview of Jackie on April 17, 2000. Jackie acknowledged that she had lied to the officer who had come to her house to arrest appellant in January when she said he was not at home. In fact, appellant was at home, hiding under a water heater in the basement.
Lieutenant Robert Lewis was Kevin Hamrick’s supervising officer between December 1999 and April 2000, while both men were on the Xiana Fairchild task force. Hamrick was not allowed to work on any other cases or with any informant during this period. Lewis was aware that Hamrick knew appellant and had turned him over to NSIB while working on the task force.
DISCUSSION
I. Trial Court’s Refusal to Instruct on Involuntary Manslaughter
Appellant contends the trial court erred when it refused to instruct the jury in the second trial on involuntary manslaughter.
A. Trial Court Background
In the first trial, the court instructed the jury on two theories, outlined in CALJIC No. 8.45, whereby involuntary manslaughter occurs: (1) during the commission of an unlawful act (resisting arrest or brandishing a firearm) which is dangerous to human life under the circumstances of its commission, or (2) in the commission of an act, ordinarily lawful (suicide), which involves a high degree of risk of death or great bodily harm, without due caution and circumspection. The court also instructed with a modified version of CALJIC No. 8.51, which distinguishes between murder and manslaughter.
During the second trial, the court apparently refused to instruct the jury on involuntary manslaughter because it did not believe the defense had presented sufficient evidence to support it. The court did, however, instruct fully on first and second degree murder and voluntary manslaughter (including the theory of imperfect self-defense). (See CALJIC Nos. 5.17, 8.10, 8.11, 8.20, 8.30, 8.40, 8.50.)
The record does not reflect when the court made its ruling. However, in his opening statement, defense counsel stated that the evidence supported only a verdict of involuntary manslaughter. In his motion for a new trial, appellant stated that the court’s refusal was based on lack of evidence to support involuntary manslaughter.
B. Legal Analysis
Appellant argues that the court improperly refused to instruct on involuntary manslaughter based on the theories of (1) intoxication/psychosis, (2) “misdemeanor manslaughter” (resisting arrest or brandishing a firearm), (3) doing a lawful act (attempted suicide) without due caution, and (4) unintentional killing in unreasonable self-defense. He also claims he was denied a fair trial because defense counsel told the jury in his opening statement that the evidence would support only a finding of involuntary manslaughter, which was not permitted by the instructions ultimately given.
At the time appellant shot Officer Azuar, a person who unintentionally killed in unreasonable self-defense was guilty of involuntary manslaughter. (See People v. Blakeley (2000) 23 Cal.4th 82, 91-92.) A few weeks later, in People v. Blakeley, our Supreme Court held that a defendant who unlawfully kills in unreasonable self-defense, whether intentionally or with conscious disregard for life, is guilty of voluntary manslaughter. (Ibid.) The holding did not apply retroactively. (Ibid.)
Involuntary manslaughter is a lesser included offense of murder. (People v. Saille (1991)54 Cal.3d 1103, 1121.) A trial court is required to instruct fully on all lesser included offenses suggested by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 149.)
We conclude that, even assuming there was sufficient evidence presented at trial to warrant the giving of instructions regarding involuntary manslaughter, any such error was necessarily harmless. As the California Supreme Court explained in a similar context in People v. Barnett (1998) 17 Cal.4th 1044, 1155-1156: “ ‘Because a trial court’s failure to instruct on a lesser included offense is not prejudicial if, as here, the jury necessarily resolved the factual question adversely to the defendant under other instructions [citations], we need not decide whether in this case the evidence required the giving of instructions on [involuntary] manslaughter.’ [Citations.] By finding defendant guilty of first degree murder in the face of exhaustive instructions pertaining to the lesser included offenses of second degree murder and voluntary manslaughter, the jury reached the factual conclusion that defendant acted with malice aforethought, deliberation, and premeditation, and necessarily rejected the argument that defendant’s claimed . . . taking of methamphetamine interfered with his ability to form these requisite mental states. Thus, to the extent the failure to give the involuntary manslaughter instruction was error, it was harmless.” (Accord People v. Seaton (2001) 26 Cal.4th 598, 665; People v. DeJesus (1995) 38 Cal.App.4th 1, 18, 21-22.)
Appellant mistakenly states that the appellate court in People v. DeJesus reversed the defendant’s conviction. On the contrary, the court found that the jury’s verdict of first degree murder with special circumstances demonstrated that the omitted involuntary manslaughter instruction was necessarily resolved adversely to the defendant under other, properly given instructions, and that, therefore, any error in failing to give the instruction was harmless. (Supra, 38 Cal.App.4th at pp. 21-22.) The court did distinguish other cases, including People v. Webber (1991) 228 Cal.App.3d 1146, which appellant cites as showing the error here cannot be found harmless on the ground that the jury necessarily resolved the issue against him. The court in People v. DeJesus found that People v. Webber and other like cases were distinguishable because the jury had found the defendants guilty of second degree—rather than first degree—murder, which did not definitively reflect a determination of the defendants’ intent. (People v. DeJesus, at pp. 21-22.)
Likewise, in the present case, in determining that appellant acted willfully, deliberately, and with premeditation, the jury necessarily rejected any lesser offense, including second degree murder and voluntary manslaughter, regarding which the jury was fully instructed. In light of the jury’s findings, it is not reasonably probable that a result more favorable to appellant would have been reached had the court instructed on involuntary manslaughter. (See People v. Breverman, supra, 19 Cal.4th 142, 149, citing People v. Watson (1956) 46 Cal.2d 818, 835-836.)
Even assuming, as appellant asserts, the Chapman standard of error applies in these circumstances, for the reasons stated, we would find any alleged error harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 24.)
Appellant also argues, however, that this alleged error was prejudicial because defense counsel averred during his opening statement that appellant was guilty only of involuntary manslaughter, but, during closing argument had to argue that he was guilty of voluntary manslaughter.
Defense counsel concluded his opening statement with the following: “We believe that at the conclusion of this trial, that the evidence before you will convince you that Mr. Teitgen is not guilty of first degree murder. Not guilty of second degree murder. I believe you’ll find him not guilty of voluntary manslaughter. And I believe you’ll find that he is culpable for involuntary manslaughter.”
We do not find any prejudice. Counsel’s remarks in his opening statement and closing argument both centered on appellant’s drug use and his fear of Hamrick and Widmann, and the likelihood that the shootings resulted from appellant’s intoxication or fear, and/or by accident. The jury nonetheless found him guilty of first degree murder. In light of its negligible impact and the jury’s verdict, appellant was not prejudiced by counsel’s mention of involuntary manslaughter in his opening statement.
II. Trial Court’s Refusal To Instruct on Prior Third-Party Threats
Appellant contends the trial court erred when it refused to instruct the jury on the effects of prior threats by people associated with the victim, in accordance with the principles contained in People v. Minifie (1996) 13 Cal.4th 1055 (Minifie). Appellant states that the defense theory at trial was that appellant acted in imperfect self-defense during the shootings because of the many previous threats and actions taken against him by Hamrick and Widmann, and that there was substantial evidence presented at trial to support this theory.
In both trials, the trial court agreed to instruct the jury with CALJIC No. 5.17, on imperfect self-defense, but, according to appellant, it refused to instruct the jury about the effects of prior third-party threats, patterned on the principles of Minifie.
In Minifie, our Supreme Court held that evidence of third party threats is admissible to support a claim of self-defense “if there [is] also evidence from which the jury could infer that the defendant reasonably associated the victim with those threats.” (13 Cal.4th at pp. 1060, 1069.) The court also noted that, in a homicide case involving a claim of imperfect self-defense, “evidence of third party threats may also be admissible if there is evidence the defendant actually, even if unreasonably, associated the victim with those threats.” (Id. at p. 1069, citing People v. Humphrey (1996) 13 Cal.4th 1073, 1082.)
Minifie concerned the admission of evidence regarding third party threats, not the giving of instructions on that point. Appellant observes, however, that, a party is entitled, upon request, to an instruction on a theory of the case that is supported by substantial evidence. (See People v. Montoya (1994) 7 Cal.4th 1027, 1047; People v. Flannel (1979) 25 Cal.3d 668, 684-685, fn. 12.) In addition, a defendant is entitled, upon request, to an instruction that pinpoints the theory of the defense. (See People v. Hughes (2002) 27 Cal.4th 287, 361, quoting People v. Saille, supra, 54 Cal.3d 1103, 1119.) According to appellant, “[w]ithout an instruction explaining the relevance of the evidence of prior threats by Widman [sic] and Hamrick and the actual and reasonable belief that appellant could have that other police officers might carry out the threats made by the two men, his jury cannot be held to have considered this important defense evidence.” We disagree.
Here, there is no question the court admitted evidence regarding prior threats on the part of Hamrick and Widmann. The court also instructed the jury in both trials on imperfect self-defense. (See CALJIC No. 5.17.) Although there was no instruction specifically pinpointing the applicability of third party threats to imperfect self-defense, the imperfect self-defense instruction given adequately informed the jury of the law to be applied to the evidence, and did not limit its use of the evidence only to prior threats by the victims themselves.
This case is thus distinguishable from People v. Humphrey, upon which appellant relies, in which the Supreme Court found that the trial court had erred when it told the jury not to consider evidence of battered women’s syndrome in determining the reasonableness of the defendant’s actions in shooting the man with whom she had been living. (Supra, 13 Cal.4th at pp. 1088-1089.) Here, the trial court did not limit the jury’s consideration of evidence of third party threats in determining whether appellant acted in imperfect self-defense.
Moreover, even if the court erred in refusing to give appellant’s pinpoint instruction, any such error was harmless. (See People v. Watson, supra, 46 Cal.2d at pp. 835-836.) The evidence, instructions given, and defense counsel’s argument all made plain to the jury appellant’s theory of the case.
For example, during closing argument in the second trial, defense counsel stated that when Officers Wilcox and Azuar “went to that house, they had no idea what they were walking into. They had no idea that the last time a police officer had been to that house, he had brutalized and assaulted and made threats towards the occupant.”
III. Sufficiency of the Evidence of Attempted Murder of Sergeant Rogers
Appellant contends the evidence in the second trial was insufficient to support his conviction for the attempted murder of Sergeant Rogers.
“When considering a challenge to the sufficiency of the evidence to support a criminal conviction, we review the whole record in the light most favorable to the verdict, drawing all inferences that reasonably support it, and determine whether it contains substantial evidence—that is, evidence which is reasonable, credible, and of solid value—from which a trier of fact could rationally find the defendant guilty beyond a reasonable doubt.” (People v. Little (2004) 115 Cal.App.4th 766, 771, citing People v. Johnson (1980) 26 Cal.3d 557, 578.)
“An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.” (§ 21a.) “Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.” (§ 187.)
Here, appellant argues that the evidence supports neither a finding of specific intent to kill Rogers nor a direct but ineffectual act toward killing him. We disagree.
Rogers testified at trial that, after he fired a single shot at appellant and appellant fell out of the window, he pointed his gun at appellant and yelled several times for him to stay down, but appellant started advancing toward the officer on his hands and knees. Rogers threw his (own) gun into the neighbor’s yard, grabbed appellant, and attempted to pin him to the ground. Appellant lifted Rogers up, pushed him backwards, and slipped out of his grasp. Appellant then reached out and grabbed his own gun off the ground. Rogers rolled over on top of appellant “and grabbed the gun and attempted to pin him to the ground.” Appellant then “started raising [the gun] up, and he’s raising it up with his—I believe his right hand. I’m pushing down with all my strength with both hands, and he pushes it up toward my face basically, and then finally I was able to shove it down and basically was able to pin it to the ground.” In response to a question from the prosecutor regarding what part of the gun was coming up toward his face, Rogers testified, “Well, the barrel was coming up.”
With respect to related evidence, appellant notes that other officers who came to assist Rogers arrived after the struggle with the gun occurred. Also, appellant’s neighbor Larry Lum testified that he did not see appellant with a weapon after he fell from the window, though Lum acknowledged that his view was somewhat obstructed. This evidence in no way contradicted the testimony of Rogers.
We conclude that Rogers’ testimony provides substantial evidence of attempted murder on appellant’s part. The jury reasonably found that appellant’s desperate efforts to escape Rogers’ grasp and retrieve his weapon, which he then attempted to point in the officer’s face, demonstrated appellant’s specific intent to kill Rogers, with a direct but ineffectual act towards that killing.
Appellant cites People v. Miller (1935) 2 Cal.2d 527, 529, in which the defendant, who had previously threatened to kill the alleged victim, entered a hop field carrying a rifle and walked toward the field’s owner, who was also a constable. The alleged victim was standing 30 yards behind the owner. The defendant stopped to load his rifle, and then resumed walking forward. The alleged victim fled as the defendant continued walking up to the field’s owner. The defendant gave up his gun without a struggle and, “[a]t no time did he lift his rifle as though to take aim.” (Ibid.) The California Supreme Court reversed the defendant’s attempted murder conviction, explaining: “In the present case up to the moment the gun was taken from the defendant no one could say with certainty whether the defendant had come into the field to carry out his threat to kill [the alleged victim] or merely to demand his arrest by the constable. Under the authorities, therefore, the acts of the defendant do not constitute an attempt to commit murder.” (Id. at p. 532.) The facts of this case, in which appellant had just shot at two other officers and was struggling with a third officer while trying to point the barrel of his gun into that officer’s face, plainly are not analogous to a man walking up to a constable in a field while holding a gun, which he had loaded but never pointed at anyone.
IV. Trial Court’s Refusal to Admit a Taped Interview of a Deceased Eyewitness
Appellant contends the court erred, in the second trial, when it refused to admit a taped interview of an eyewitness who had died prior to trial, which, according to appellant, would contradict the testimony of Sergeant Rogers that appellant had pointed his gun at Rogers while they struggled on the ground.
A. Background
On the day of the shooting, two Vallejo police officers conducted a videotaped interview of appellant’s next-door neighbor, Kirby McClellan, at the Vallejo Police Department. McClellan was in his backyard when he saw a police officer in appellant’s backyard. McClellan heard a woman yell, “Oh no. No,” and then heard gunshots coming from inside appellant’s house. The officer tried to break down the back door. McClellan then saw appellant lean out an upstairs window on the side of the house, with a gun in his hand. He did not see appellant point his gun at the officer. The officer told him to drop the gun, but appellant did not drop it and the officer shot him. Appellant fell out of the window, and the officer issued a call for help.
Appellant and the officer struggled together, with appellant putting up quite a fight, and then several police officers showed up. McClellan directed them to the side yard, where appellant and the officer were struggling. McClellan then saw one of the officers throw appellant’s gun over the fence into McClellan’s yard.
McClellan acknowledged that he could have been mistaken regarding which gun was thrown over the fence.
McClellan died before trial and, before both trials, defense counsel moved to introduce the videotaped interview into evidence. The court ultimately found that the interview was inadmissible hearsay, with no applicable exception. The court also expressed concern about the reliability of McClellan’s statement because it was just an interview and the prosecutor would not be able to cross-examine the witness. During the second trial, after both parties had rested, defense counsel moved to reopen the defense case to play the McClellan interview tape for the jury, in light of the newly filed Ninth Circuit opinion in Chia v. Cambra (9th Cir. 2004) 360 F.3d 997 (Chia). The court denied the motion.
B. Legal Analysis
Appellant does not argue that the McClellan interview was admissible pursuant to any exception to the hearsay rule. Rather, he claims that the court erred in denying him the opportunity to present crucial defense evidence that would have refuted Sergeant Rogers’ version of events.
Appellant notes that Larry Lum also watched the struggle between appellant and Rogers, but asserts that Lum’s testimony was less exculpatory because Lum was standing farther away and his view was somewhat obstructed.
In support of this claim, appellant cites several federal appellate court cases that applied the United States Supreme Court’s holding in Chambers v. Mississippi (1973) 410 U.S. 284, 302 (Chambers), “that, when a hearsay statement bears persuasive assurances of trustworthiness and is critical to the defense, the exclusion of that statement may rise to the level of a due process violation. [Citation.]” (Chia, supra, 360 F.3d 997, 1003 [citing Chambers]; see also Rivera v. Director, Dept. of Corrections (1990) 915 F.2d 280, 281 (Rivera).) In Chambers, Chia, and Rivera, the reviewing courts found error in application of state hearsay rules because the evidence in question was both reliable and crucial to the defendants’ defense. (Chambers, at pp. 302-303; Chia, at p. 1008; Rivera, at pp. 281-282.)
In the present case, on the other hand, we find the McClellan interview neither reliable nor particularly exculpatory on the ground argued by appellant. First, contrary to appellant’s assertion, it is not clear from the interview that McClellan watched Rogers and appellant the entire time they were wrestling on the ground in appellant’s side yard. Rather, his statements strongly imply that he was not present during the crucial period when Rogers testified that appellant regained control of his gun and pointed it at Rogers’ face. Specifically, Rogers testified that his struggle with appellant over the gun occurred just before Officer Jason Wentz arrived at the scene. Wentz testified that, when he pulled up in his car, a man was standing in front of the house to the right of appellant’s and pointing toward appellant’s house. Wentz went around to the side of the house, where he found Rogers lying on top of appellant; he then saw Rogers sweep away and toss to the side a gun lying near him and appellant.
Both officers’ testimony is consistent with McClellan’s comments during the interview. McClellan stated that, during the struggle, he was concerned that appellant would get hold of the gun lying nearby and shoot Rogers. He further stated, “So I saw a plainclothes officer coming up and I said, ‘Officer needs help in the side yard.’ [¶] And so he went back there. And watching out my window it looked like it took about five officers to subdue this guy.” He also said that after he heard Rogers radio for help, other police cars began showing up “and a plainclothes policeman just drove up in front of my place. . . . . [¶] “I said, ‘The officer in the side yard needs help,’ because I’m wanting somebody else to get back there to help this officer.”
These excerpts from the interview demonstrate that it is far from clear that McClellan observed the entire struggle between appellant and Rogers. This point was never spelled out, and it appears more likely from McClellan’s description that he did not in fact watch the entire struggle. The interview thus does not support appellant’s claim that McClellan observed the entire struggle and saw that appellant never picked up the gun. Consequently, McClellan’s hearsay statement was neither so reliable nor so critical to appellant’s defense that the trial court’s refusal to admit it into evidence constituted a violation of due process. (See Chambers; supra, 410 U.S. at p. 302 Chia, supra, 360 F.3d at p. 1003; Rivera, supra, 915 F2d at p. 281.)
Appellant cites to a defense investigator’s interview report, in which the investigator wrote that McClellan told him that, during the struggle, Rogers and appellant were never out of his sight. Appellant does not argue that this report should have been admitted into evidence, and we find it provides no assistance in deciding whether the taped police interview was both reliable and crucial defense evidence.
V. Prosecutor’s Impeachment of Appellant’s Wife’s Credibility
Appellant contends the court abused its discretion when it allowed the prosecution to impeach appellant’s wife’s credibility with evidence of matters occurring almost two years after the shooting.
A. Trial Court Background
On cross-examination, the prosecutor asked Jackie numerous questions about her relationship with Detective Luna and what she told him about the April 12, 2000 incident. She admitted meeting Luna through an internet police chat room, but denied telling him she was a police officer or anything about the shooting.
On rebuttal, Luna testified that Jackie had told him she was a police officer. She said that she and two fellow-officers went to her house to collect her personal belongings and, while she was upstairs, the two officers got into a scuffle with her husband. When she came downstairs, her husband pointed a gun at her and then shot one of the officers. She said she then shot her husband.
B. Legal Analysis
Appellant argues that the trial court abused its discretion, pursuant to Evidence Code section 352, when it allowed the prosecutor to cross-examine and present impeachment evidence on this collateral issue.
Under Evidence Code section 352, the trial court has broad discretion to admit or exclude impeachment evidence, as well as other relevant evidence, and the court’s exercise of discretion will not be disturbed on appeal unless it is exercised in an arbitrary, capricious, or patently absurd manner resulting in a manifest miscarriage of justice. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) As relevant here, Evidence Code section 780 provides in part: “Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following: [¶] . . . . [¶] (h) A statement made by him that is inconsistent with any part of his testimony at the hearing.”
“While collateral matters are admissible for impeachment purposes, the collateral character of the evidence reduces its probative value and increases the possibility that it may prejudice or confuse the jury.” (People v. Lavergne (1971) 4 Cal.3d 735, 742 (Lavergne).) Moreover, a party may not cross-examine a witness on a collateral matter solely for the purpose of eliciting testimony to be contradicted. (People v. Price (1991) 1 Cal.4th 324, 436; Lavergne, at p. 744.) “This is especially so where the matter the party seeks to elicit would be inadmissible were it not for the fortuitous circumstance that the witness lied in response to the party’s questions.” (People v. St. Andrew (1980) 101 Cal.App.3d 450, 461; accord Lavergne, at p. 744.)
Appellant asserts that this case is similar to Lavergne, in which the admitted accomplice to a robbery testified, in response to defense counsel’s questioning on cross-examination, that he had bought the car used in the robbery and that it was not stolen. Defense counsel then sought to impeach the accomplice’s credibility by presenting evidence that the car was stolen. (Supra, 4 Cal.3d at p. 741.) The trial court’s ruling that the evidence was inadmissible was affirmed on appeal because the “fact that the car was stolen had nothing to do with the facts at issue in the trial.” (Id. at p. 742.) He also cites People v. St. Andrew, supra, 101 Cal.App.3d at p. 460, in which the trial court permitted the prosecutor to ask a defendant on trial for a forced sexual assault at a psychiatric hospital where he worked whether he had ever kissed a female patient, to which the defendant responded in the negative. On rebuttal, a former patient testified that the defendant had kissed her and attempted to kiss her during her hospitalization. (Id. at pp. 460-461.) The appellate court found that the trial court erred in admitting the rebuttal testimony, the purpose of which was to improperly show that the defendant had a propensity to use female patients for his sexual gratification. (Id. at pp. 461-463.)
Contrary to appellant’s assertion, these cases are not helpful here because Jackie was not impeached on a collateral matter. The prosecutor’s questions on cross-examination and Officer Luna’s rebuttal testimony related to relevant matters raised on direct examination. (See People v. Price, supra, 1 Cal.4th at p. 436.) On direct examination, Jackie testified that she was unaware appellant was in the house when the officers knocked on the door and that Wilcox had his gun out when he went down the stairs into the garage. This testimony supported the defense theory of the case that appellant responded violently in a panic when the two officers surprised him by storming into the garage with guns drawn. On cross-examination, Jackie denied telling Luna anything about the shooting. Then, on rebuttal, Luna testified that Jackie had told him a very different version of events than she had testified to on direct examination. She not only told him she was a police officer, but also implied that appellant was the aggressor in the incident with the two officers. Regardless of the fact that she offered this description of what occurred to Luna some time after the shooting, and the fact that her story was at least part fiction and likely intended to impress Luna, evidence that Jackie described the events leading up to the shooting in a very different way before trial was directly relevant to the believability of her testimony at trial regarding the same matter. (See ibid.)
There was no abuse of discretion. (See People v. Rodriguez, supra, 20 Cal.4th at pp. 9-10.)
VI. Trial Court’s Exclusion of All Evidence Regarding an Internal Affairs Investigation of a Police Officer Witness
Appellant contends the court erred when it granted the prosecution’s motion to exclude all evidence regarding an internal affairs investigation of a police officer witness, Kevin Hamrick. According to appellant, this evidence would have corroborated the defense theory that appellant was frightened of the Vallejo Police Department and the Hells Angels in part due to Hamrick’s documented misconduct.
A. Background
After the shooting, the Vallejo Police Department conducted an internal investigation of, inter alia, Hamrick’s conduct as it related to appellant. The investigation concluded that “[t]he actions of the officers involved in this investigation represent behavior that is, for the most part, within department policy. However, public perceptions and the continuing representations by the defense attorneys for Joe Teitgen may subject the Vallejo Police Department to future compromises that could have been minimized if proper judgment and stronger personal ethics were applied.” Specifically, with respect to Hamrick, the investigators found that Hamrick had violated various internal policies, which included his continued association with and loyalty to Widmann—a police informant—despite a directive to have no contact with him; his off-duty social contact with appellant and Jackie at their residence; and his failure to properly book a firearm he received from Widmann.
During the first trial, defense counsel argued to the trial court that the results of the internal investigation were admissible to impeach Hamrick. The trial court ruled that any improper acts committed by Hamrick, relative to appellant, were admissible, but that police department findings of internal violations were not relevant and, hence, inadmissible. The court also ruled that if Hamrick testified falsely about his actions or specific departmental policies, he could be impeached with testimony of a representative of the police department who had been involved in the investigation. The court adopted this ruling for the second trial as well.
During the second trial, the court also found irrelevant, and hence inadmissible, the fact that Hamrick was promoted to corporal some time after the shooting.
B. Legal Analysis
Appellant argues that this evidence was admissible pursuant to Evidence Code section 780, subdivision (i), which provides in relevant part: “[T]he court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including [¶] . . . [¶] (i) The existence or nonexistence of any fact testified to by him.” We disagree.
The fact that Hamrick was found to have violated departmental policy in several other, less dramatic, ways was not particularly relevant to appellant’s claim that he was afraid Hamrick and Widmann were going to harm him because he was not giving them the money and property they demanded. The internal investigation evidence would merely have shown that Hamrick had used questionable judgment in certain areas, which the trial court was reasonable in finding would be more prejudicial than probative as to the issues in the case. Appellant was allowed to, and did, call numerous witnesses who testified that appellant was afraid of Hamrick and Widmann, that these two men had threatened appellant, and that they were demanding money and other items from him. This evidence was directly relevant to appellant’s claims of fear of Hamrick and, by extension, the entire Vallejo Police Department.
During closing argument in the first trial, the prosecutor argued, “Do you really think that this officer, who has not only been promoted, gonna put his career on the line over something like for a motorcycle part coming from this defendant . . . . and would you ruin your career, to try to extort something out of this defendant? That’s just goofy.” Appellant complains that the prosecutor took advantage of the court’s ruling when it made these comments. However, the internal investigation did not result in a finding that Hamrick extorted anything from appellant; thus, the prosecutor’s comments did not unfairly take advantage of the trial court’s ruling.
Appellant also argues that Hamrick made several statements during the second trial that were inconsistent with the departmental findings and, therefore, appellant should have been permitted to impeach him with those findings. However, the court had ruled that, if Hamrick testified falsely about his actions or specific departmental policies, he could be impeached with testimony of a representative of the police department. Even assuming that some of Hamrick’s testimony was in fact inconsistent with the investigation’s findings, appellant could have called a police department representative for impeachment purposes, but did not do so.
We conclude the trial court did not abuse its discretion when it found that the internal investigation results were irrelevant to appellant’s state of mind, were more prejudicial than probative, and would cause undue delay (see Evid. Code, § 352), especially since the court permitted the defense to present direct evidence of Hamrick’s wrongful acts and would have permitted impeachment of Hamrick with the testimony of a police department representative if he testified falsely about his actions or departmental policies. Similarly, the exclusion of this evidence did not violate appellant’s right to present a defense.
VII. Trial Court’s Exclusion of Evidence of Appellant’s Conduct After He Learned of His Wife’s Affair with a Police Officer
Appellant contends the court erred when it excluded evidence of his conduct when he learned of his wife’s past affair with a police officer.
A. Trial Court Background
Before the first trial, the prosecution filed a motion to exclude evidence, including evidence of Jackie’s previous infidelity with Fairfield Police Officer Tabor during 1995 to 1996, pursuant to Evidence Code sections 350 and 352. In a responsive brief, defense counsel asserted that evidence of the affair, which lasted six to 12 months, was relevant because appellant was never hostile, aggressive, or threatening to Tabor, but did file a complaint with the Fairfield Police Department and talk to Tabor’s wife. Counsel also asserted that Will Hill would testify at trial that, on April 11, 2000, appellant told Hill that he was going over Hamrick’s head in the Vallejo Police Department and over Widmann’s head with the Hells Angels to complain about their misconduct toward him. Hill would also testify that he relayed this information to Widmann on April 11, 2000.
We find no such testimony by Hill in the reporter’s transcripts for either the first or second trial. Instead, Hill testified that appellant told him he was “going to get” Widmann, and that he reported this threat to Widmann on April 11, 2000.
The court ultimately found that the evidence was irrelevant and of no probative value because it occurred at a completely different time under very different circumstances, with no evidence of drug use by appellant. The court therefore excluded the proposed evidence of Jackie’s affair and appellant’s reaction to it.
Defense counsel renewed its motion to admit this evidence before the second trial, arguing that the evidence was (1) relevant to refute the prosecution theory that appellant killed the officers to avoid going to jail because he did not trust his wife, and (2) admissible to prove intent, under Evidence Code section 1101, subdivision (b). The court denied the motion, finding that the circumstances at the time of the affair were totally different, and further finding that “that particular situation would have little probative value, of which I think there’s a lot of prejudicial effect otherwise, since you are tainting, if it’s allowed in, the image of the peace officer, which, of course, in this case has no relevance to the issues at hand.”
B. Legal Analysis
According to appellant, evidence of his reasonable response to Jackie’s previous affair with Officer Tabor should have been admitted to indicate both that he was not likely to intend harm to the officers on April 12, 2000, and to support defense witness Will Hill’s testimony that appellant had not threatened Widmann’s life, but had only mentioned going to superiors in the police department and the Hells Angels to complain about Hamrick and Widmann’s behavior. Appellant argues that the court erred in finding this evidence (1) was not sufficiently probative, under Evidence Code section 352, to be admissible and (2) was not admissible to show intent, under Evidence Code section 1101, subdivision (b). (See People v. Kipp (1998) 18 Cal.4th 349, 371 [as evidence of intent, other acts need only be sufficiently similar to charged offense to support inference that defendant probably harbored same intent in each instance].)
Evidence Code section 1101, subdivision (b) provides, in relevant part: “Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as . . . intent . . .) other than his or her disposition to commit such an act.”
We conclude the trial court did not abuse its discretion in refusing to admit evidence regarding appellant’s nonviolent response to Jackie’s affair with a police officer, pursuant to both Evidence Code sections 352 and 1101. Such evidence was of little probative value in terms of demonstrating appellant’s state of mind or intent at the time of the shooting.
First, as the trial court found, the affair in question took place some time before the shooting in this matter and before appellant began using methamphetamine. Second, it is difficult to fathom how appellant’s prior nonviolent reaction to an affair might somehow disprove murderous intent in this case. Many witnesses testified both that appellant was afraid of Hamrick and Widmann and that he was determined not to go to jail, whether due to fears about Jackie’s fidelity or for other reasons. Contrary to appellant’s claim, the affair evidence simply was not relevant to appellant’s reaction to the police officers or his intent during the very different incident that occurred on April 12, 2000. Finally, assuming the trial court should not have taken into account the effect of admission of this evidence on Tabor and his family, in light of the lack of probative value of the evidence, any such error was harmless. (See People v. Watson, supra, 46 Cal.2d 818, 835-836.)
VIII. Prosecutorial Misconduct
Appellant contends the prosecutor committed misconduct during both trials by making (1) numerous improper objections during defense counsel’s examination of witnesses, and (2) various inappropriate comments during closing arguments.
The California Supreme Court has explained that “[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. 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 jury.” (People v. Hill (1998) 17 Cal.4th 800, 819 (Hill), internal quotation marks and citations omitted.) The defendant need not show that the prosecutor acted in bad faith. (Id. at p. 822.)
However, as the court also explained in Hill: “ ‘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 made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]’ [Citation.] [¶] The foregoing, however, is only the general rule. A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile. [Citations.] In addition, failure to request the jury be admonished does not forfeit the issue for appeal if ‘ “an admonition would not have cured the harm caused by the misconduct.” ’ [Citations.] Finally, the absence of a request for a curative admonition does not forfeit the issue for appeal if ‘the court immediately overrules an objection to alleged prosecutorial misconduct [and as a consequence] the defendant has no opportunity to make such a request.’ ” (Supra, 17 Cal.4th at pp. 820-821.)
A. Improper Objections
Appellant contends the prosecutor committed misconduct during both trials by making numerous unmeritorious objections during defense counsel’s questioning of important witnesses, which led to a disjointed and lengthy defense case, and by making speaking objections in which he denigrated defense counsel or provided his own interpretation of the evidence.
In the second trial (on which appellant focuses his argument), during defense counsel’s direct examination of Jackie, which took up some 95 pages of reporter’s transcript, the prosecutor objected or interrupted approximately 70 times. During his examination of Widmann, which took up 68 pages of reporter’s transcript, the prosecutor objected or interrupted approximately 80 times. The trial court sustained most, though not all, of these objections.
Timely objection is required to preserve a claim of prosecutorial misconduct (Hill, supra, 17 Cal.4th at pp. 820-821), and, here, defense counsel objected to most of the many alleged instances of improper objections, either at the time they occurred or shortly thereafter. He also filed a motion before the first trial in an effort to prevent the prosecutor’s anticipated disruptive conduct.
Appellant particularly complains about the prosecutor’s repeated objections that defense counsel was asking leading questions of his own witnesses on direct examination. Appellant claims that many of these questions were not leading, were related to foundational or non-controversial matters, or involved hostile witnesses. “A ‘leading question’ is a question that suggests to the witness the answer that the examining party desires.” (Evid. Code, § 764.) Evidence Code section 767, subdivision (a)(1) prohibits an attorney from asking leading questions on direct or redirect examination “[e]xcept under special circumstances where the interests of justice otherwise require.” The trial court has broad discretion in determining whether such special circumstances are present. (People v. Williams (1997) 16 Cal.4th 635, 672.)
Here, the trial court sustained most of the prosecutor’s objections on the ground that defense counsel was leading the witness. At one point, out of the presence of the jury, the court even described counsel as “an excellent practitioner of leading a witness.” The court was not unreasonable in sustaining these objections; hence, the prosecutor necessarily did not act improperly in objecting.
The prosecutor also made numerous objections on hearsay and relevance grounds. Again, the trial court sustained most of those objections, and was reasonable in doing so. As to relevance, many of defense counsel’s questions went to minutiae or facts that plainly were not germane to the matter at hand. For example, after Widmann testified that an alleged “higher-up” of the Hells Angels brought a Corvette to Widmann’s auto shop for service, counsel asked, “what year Corvette?” The court sustained the prosecutor’s relevance objection. At another point, during defense counsel’s examination of Dr. John Podboy, counsel repeatedly and irrelevantly asked about appellant’s suicidal tendencies in the summer of 2000, months after the shooting. The prosecutor objected to these questions, and the court sustained each objection. The court did permit witnesses to answer some questions to which the prosecutor objected on hearsay grounds, although the court admonished the jury that the testimony was being admitted only to reflect the declarant’s state of mind, not for the truth of the matter asserted. The prosecutor’s objections to these questions cannot be characterized as misconduct.
Appellant also claims the prosecutor made numerous speaking objections, which he argues constituted misconduct because they were personal attacks on the integrity of defense counsel, and amounted to “deceptive or reprehensible methods [used] to attempt to persuade either the court or the jury.” (People v. Haskett (1982) 30 Cal.3d 841, 866.)
In particular, appellant asserts that the prosecutor made several comments “which insinuated to the jury that defense counsel was either incompetent or not to be trusted to follow the rules of evidence or the court’s prior rulings.”
Appellant’s examples of these comments include the prosecutor’s objection to and motion to strike Jackie’s testimony regarding her observation of guns in Widmann’s house, after which the prosecutor said, “This is the subject of an in limine motion.” Other examples include the prosecutor’s response to a court ruling to a defense objection, in which he stated, “The question would not be in good faith unless it met that criteria”; the statements, “Objection. Who cares?”; “I just don’t see how this is relevant to what happened in that stairwell, quite frankly”; “I’m going to object. This has got nothing to do with anything:’ and “I think we have to be a little careful here. Can we have a sidebar real quick?” While some of these comments could have been phrased better or perhaps would have been better left unsaid, we do not believe that they rose to the level of “deceptive or reprehensible methods” intended to prejudice the jury against appellant. (See People v. Haskett, supra, 30 Cal.3d at p. 866; compare Hill, supra, 17 Cal.4th at pp. 833-834 [prosecutor’s derisive acts towards defense counsel included accusing him (in front of jury) of having “unabashedly . . . defamed” a prosecution witness; laughing in the middle of counsel’s examination of two witnesses; getting out of her chair during counsel’s examination of witnesses and standing in his line of sight; and staring and making faces at counsel].)
Looking at the totality of these objections and comments by the prosecutor in the context of these two lengthy criminal trials, we do not believe the prosecutor’s actions rise to the level of misconduct. The prosecutor did object repeatedly to defense counsel’s questions and did not give defense counsel the benefit of the doubt as to any less than perfectly phrased questions. Moreover, a few of the objections and related comments were not appropriate. However, given that most of the prosecutor’s objections were in fact justified and were sustained by the trial court, and most related comments were fairly benign, we do not find that his objections constituted prosecutorial misconduct.
B. Comments During Closing Arguments
Appellant also contends the prosecutor committed misconduct during closing argument by (1) vouching for the credibility of a prosecution witness, (2) misstating evidence, and (3) denigrating defense counsel’s integrity.
The California Supreme Court has noted that “a prosecutor is given wide latitude during argument. 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. [Citations.] It is also clear that counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature. [Citation.] A prosecutor may vigorously argue his case and is not limited to ‘Chesterfieldian politeness” [citation], and he may use appropriate epithets . . . . [Citations.] [¶] Prosecutors, however, are held to an elevated standard of conduct . . . because of the unique function he or she performs in representing the interests, and in exercising the sovereign power, of the state.” (Hill, supra, 17 Cal.4th at pp. 819-820, internal quotation marks omitted.)
“In evaluating a claim of prejudicial misconduct based upon a prosecutor’s comments to the jury, we decide whether there is a reasonable possibility that the jury construed or applied the prosecutor’s comments in an objectionable manner.” (People v. Valdez (2004) 32 Cal.4th 73, 132-133; People v. Berryman (1993) 6 Cal.4th 1048, 1072.)
1.
Appellant first argues that the prosecutor committed misconduct during closing argument by vouching for the credibility of Officer Wilcox. In describing Wilcox’s testimony that Azuar was hit by the third bullet, he argued that Wilcox had told the jury “exactly the way he perceived it, what happened and how and where people were, and I think he certainly did the best he could.”
Defense counsel did not object to the prosecutor’s allegedly inappropriate comments regarding Wilcox’s testimony, and appellant has made no showing that an appropriate objection and request for admonition would have been futile in this instance. Therefore, this claim of misconduct is waived. (See Hill, supra, 17 Cal.4th at p. 820.)
In any event, we do not find that this comment constituted improper vouching, given that “[p]rosecutorial assurances, based on the record, regarding the apparent honesty or reliability of prosecution witnesses, cannot be characterized as improper ‘vouching,’ which usually involves an attempt to bolster a witness by reference to facts outside the record.” (People v. Medina (1995) 11 Cal.4th 694, 757; see also People v. Stansbury (1993) 4 Cal.4th 1017, 1059 [“The argument that Allen was a believable witness who had done a great deal of soul searching was a proper comment on the evidence, not an attempt on the part of the prosecutor to personally vouch for the witness’s credibility.”].)
2.
Appellant also argues that the prosecutor committed misconduct during his rebuttal argument by misstating the evidence when he said that Dr. Hayner never said appellant was intoxicated on April 12, 2000. We do not believe that the prosecutor’s comments constituted misconduct. Instead, the remarks were fair comment on the evidence, which neither distorted Dr. Hayner’s testimony nor impugned the integrity of defense counsel. (See People v. Medina, supra, 12 Cal.4th at pp. 758-759.)
3.
Finally, appellant argues that the prosecutor impugned defense counsel’s integrity by arguing several times that counsel had misstated the evidence in his closing argument.
During his rebuttal argument, the prosecutor stated, “Mr. Krimel [defense counsel] made a point many, many times talking about the defendant’s so-called irrationality out there on April 12th. . . . [U]nfortunately for Mr. Krimel there was no evidence presented in this case—zero, zip, none—to the extent that could ever stand for the proposition that he was anything other than rational. Think about this for a second. He put on two shrinks or one shrink and a pharmacist. Podboy didn’t tell you that he was irrational, the psychologist, he didn’t say that. . . . He simply didn’t say anything about whether or not a person was rational or irrational. Zero, zip, none. [¶] Don’t you think if there was any evidence to support the notion that this defendant was irrational out there on the afternoon of the 12th when he decided he was gonna pull the trigger, he would have put it on for you . . . .”
At that point, defense counsel objected, but the prosecutor kept talking and the court did not acknowledge the objection. The prosecutor continued, and later argued that, as a lawyer, if you have truthful evidence and the law on your side, “you are going to achieve justice. And that’s precisely what he doesn’t have . . . so we get into escalations like this, saying he was irrational. . . . [¶] If I tried my case that way, . . . you’d laugh me out of this courtroom. And I certainly am not going to get up in front of 12 people when I failed to put on evidence to prove what I want to prove and fib to you about it.”
Defense counsel again objected, stating that the prosecutor was “burden-shifting,” and the trial court responded, “I think he was personalizing a little bit, which is improper.” The court also told the jury to keep in mind that these were closing arguments and that it was “ultimately for you to determine what the facts are.” The prosecutor thereafter made additional comments, such as, “You know in lawsuits like this, it’s not my job to get up here and criticize defense counsel. You know, Mr. Krimel is in a difficult situation. The case against his client is overwhelming. He doesn’t really have the facts or the law to get out from under that. So what you do is you say things that aren’t necessarily correct on the record.” Similarly, the prosecutor later stated, “[Y]ou sit there and you say, well, gee, Mr. Krimel, why do you say things like he was irrational or he was psychotic or he was intoxicated, when there is no evidence to support it[?] . . . He’s just saying it. Okay. Unfortunately, what lawyers say is not evidence and that’s not what wins lawsuits.” Defense counsel did not specifically object to these additional comments.
Assuming appellant’s challenge to the prosecutor’s later comments are not waived due to defense counsel’s failure to specifically object to and request an admonition regarding each alleged instance of misconduct (see Hill, supra, 17 Cal.4th at p. 820), none of the prosecutor’s comments amount to prejudicial misconduct. For example, in People v. Kennedy (2005) 36 Cal.4th 595, 626, our Supreme Court held that the prosecutor did not commit misconduct by telling the jury that “defense counsel’s ‘idea of blowin’ smoke and roiling up the waters to try to confuse you is you put everybody else on trial.” The court explained: “It is not misconduct for a prosecutor to argue that the defense is attempting to confuse the jury.” (Ibid.) Moreover, to the extent the prosecutor’s comments in this case went further than those sanctioned in People v. Kennedy, the comments nonetheless did not prejudice appellant. (See, e.g., People v. Haskett (1990) 52 Cal.3d 210, 246-247 [22 allegedly derogatory comments by prosecutor during argument, including, e.g., that defense counsel did not want jurors to follow law and was “dishonest,” “tricky,” and blasphemous were not, either singly or in combination, of such significance as to constitute prejudicial error].)
Accordingly, even assuming some of the prosecutor’s comments rose to the level of misconduct, they certainly were not so egregious as to have prejudiced appellant. (See Hill, supra, 17 Cal.4th at p. 819.) The comments did not render the trial fundamentally unfair (ibid.); nor is there a “reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.” (People v. Berryman, supra, 6 Cal.4th 1048, 1072.)
IX. Judicial Misconduct
Appellant contends judicial misconduct that occurred during both trials requires reversal.
Appellant’s argument focuses on alleged judicial misconduct during the second trial. However, he avers that this misconduct also occurred during the first trial and provides numerous record citations from the first trial in support.
“A court may control the mode of questioning of a witness and comment on the evidence and credibility of witnesses as necessary for the proper determination of the case. [Citations.] Within reasonable limits the court has a duty to see that justice is done and to bring out facts relevant to the jury’s determination. [Citation.] A court commits misconduct if it persistently makes discourteous and disparaging remarks so as to discredit the defense or create the impression it is allying itself with the prosecution. [Citations.]” (People v. Santana (2000) 80 Cal.App.4th 1194, 1206-1207; accord People v. Sturm (2006) 37 Cal.4th 1218, 1233.)
“ ‘[I]t appears from the decisions . . . that appellate courts are unlikely to view one or two disparaging remarks as grounds for reversal. A pattern of judicial hostility seems to be required.’ [Citations.]” (People v. Fatone (1985) 165 Cal.App.3d 1164, 1175.)
On review, we determine “the propriety of judicial comment on a case-by-case basis in light of its content and the circumstances in which it occurs.” (People v. Cash (2002) 28 Cal.4th 703, 730.)
A. Admonitions to the Jury That Testimony Was Not for the Truth of the Matter Asserted
First, appellant argues that the trial court committed misconduct when it repeatedly interrupted defense counsel’s examination of witnesses to admonish the jury that testimony regarding what a third party said was not admitted for the truth of the matter asserted, but only to show the declarant’s state of mind or the effect on the person who heard the statement.
During the defense case, in response to some of the prosecutor’s hearsay objections, the trial court told the jury that the testimony was being admitted only to show the effect of a statement on a person’s state of mind. For example, at one point, the prosecutor responded to counsel’s question to Jackie regarding why Widmann came to her house the first time she met him by saying, “not for the truth.” The court then said, “Keep in mind when you say ‘This is not for the truth,’ this is actually hearsay, and there are rules, quite complex by the way, that I won’t go into with you, but it can only be used for a limited purpose, of which I’m not clear, other than it may explain somebody’s conduct, at least from their version. But the assertions that were made by the declarant out of court—to wit, in this case, it would be Mr. Widmann—can’t be used by you for the truth of what he asserted, only to perhaps explain his conduct in being there otherwise.”
Shortly thereafter, in response to another hearsay objection by the prosecutor, defense counsel said it was for appellant’s state of mind, and the court stated, “If that be the case, we talked—and we’ll do this more during the course of the balance of this trial—but certain statements can be attributed to explain the state of mind that—the then existing state of mind of the defendant, if believed by you, but not for the truth of what was asserted itself, necessarily. When I say ‘necessarily’ if he does explain certain things directly, there may be another exception. My point is that the defense in this case is raising issues with respect to Mr. Teitgen’s state of mind, and the law does allow you to consider things that he stated, if you believe it, from the standpoint of reflecting on that state of mind. You can use that in consideration of that, but not necessarily for the truth of what was asserted itself. Kind of complex. Do you all understand?”
A short time later, after Jackie testified that appellant told her that Widmann was going to help him take care of his Napa problem, the court, on its own motion, stated, “[T]here are certain things that were stated as a matter of fact allegedly by the declarant, to wit, Mr. Teitgen. You can’t simply assume those facts to be true, but they can perhaps, if believed by you, reflect for the limited purpose on his state of mind, what he was feeling at that time. Do you understand?”
The court frequently made similar comments to the jury during defense counsel’s examination of witnesses, although it also admonished the jury at one point, “And of course I’m not suggesting that you believe or disbelieve anything here. You are the ultimate determiner of what the facts are from the evidence. You can accept all of the testimony completely and give it total weight that you may find it to be entitled, or you can reject it. [¶] I want to remind you by making this cautionary instruction, I’m not giving you direction one way or another. Do you understand? That’s your job, not mine.” Defense counsel eventually moved for a mistrial based on the court’s repeated admonitions to the jury about the limited use of state of mind evidence, which the court denied.
Appellant argues that these repeated reminders to the jury in both trials to be cautious about defense evidence, particularly evidence going to appellant’s state of mind, “left an impression that this evidence was highly suspect and that the jury had to be cautioned again and again not to be fooled by it or to take it too seriously.” He also asserts that the court’s comments incorrectly labeled state of mind evidence as “hearsay.”
While the court’s attempts to explain to the jury the limitation on its use of this state of mind evidence were often muddled and perhaps unnecessarily repetitious, we do not believe the admonitions were intended to or had the effect of unfairly diminishing the value of this evidence. Article VI, section 10 of the California Constitution provides that a court “ ‘may make such comment on the evidence and the testimony and credibility of any witness as in its opinion is necessary for the proper determination of the cause.’ ” (See People v. Linwood (2003) 105 Cal.App.4th 59, 73.) The evidence here was admitted for a limited purpose and the court was not improper in trying to explain this complex concept to the jury. (See ibid. [a trial court “ ‘has broad latitude in fair commentary, so long as it does not effectively control the verdict.’ ”].) Moreover, the court explicitly stated that it was not trying to suggest whether the jury should believe the testimony, which further limited the likelihood of any misconceptions on the jury’s part.
Appellant is correct that at least some of this testimony was technically not hearsay, since it was not offered to prove the truth of the matter stated. (See People v. Turner (1994) 8 Cal.4th 137, 189; People v. Bolden (1996) 44 Cal.App.4th 707, 714-715; Evid. Code, § 1250.) Nonetheless, the court’s explanations of how to view this evidence were essentially correct.
B. Statements Allegedly Impugning the Competence of Defense Counsel
Appellant also contends the court made many comments when ruling on prosecution objections that implied that defense counsel was behaving inappropriately or with less than professional competence.
Respondent does not argue that appellant waived this claim of judicial misconduct due to the failure to object and request an admonition. (See People v. Sturm, supra, 37 Cal.4th at p. 1237.) In light of the circumstances of this case, including the trial court’s unresponsiveness to counsel’s complaints about the prosecutor’s tactics, the court’s denial of counsel’s request for a mistrial based on the court’s repeated comments regarding state of mind evidence, and the sheer number of questionable comments, it was reasonable for defense counsel to refrain from objecting to the court’s remarks. (See ibid.)
The court sustained several of the prosecutor’s relevance objections—as well as objections on its own motion—with comments such as, “I don’t know why we have to have all this detail”; “Sustained. It’s redundant. We’ve heard that three or four times”; “I’m going to make an objection. It’s not relevant. The ‘when’ would be relevant; the ‘why’ is not relevant”; “Does it matter?”; “My objection is sustained. His concerns are not relevant to this trial, believe it or not”; and “Doesn’t matter. . . . Let’s move on. We are getting way afield from what is relevant.” Other examples include the court’s response to the prosecutor’s relevance objection after defense counsel asked Widmann whether he did anything in response to Hamrick’s statement that he wanted them to be on the same page at trial. After stating that this was not relevant, the court stated, “Mr. Krimel—and I apologize to you, because I know you’re an advocate for your client, and that’s good and well. The only thing that I’m interested in is, are you telling the truth in your testimony today? That’s all that is relevant.”
The court also corrected defense counsel several times during his examination of witnesses. For example, the court told counsel that “[t]his is a leading question . . . You remember, you and I had a conversation. . . . I just want to remind both of you that we had a conversation before on more than one occasion. If you preface a question by ‘did,’ invariably, it’s going to be a leading question.” Later, during the direct examination of Widmann, the court said, “Mr. Krimel, and I hate to do this, but when you rehash what a witness testified, it breaks up what happened next, and this is going to take forever if you keep doing that.” On another occasion, following a prosecution objection, the court said, “You are leading your witness. Sustained. . . . . You can ask what were those concerns that you stated to law enforcement, but you can’t lead him down the primrose path.”
During the prosecutor’s cross-examination of a defense witness, the prosecutor referred to a prior statement by that witness. Defense counsel asked for the “page and cite on this interview date or something,” and the prosecutor responded that the date was April 17, and he had given the defense the materials in discovery. When counsel asked again for the page and cite, the court added, “We can’t just stop the flow of questioning for us to look up—he has to—keep in mind, by the way, that remember that it’s been indicated in instructions . . . that questions by lawyers are not evidence . . . . Well, you have to—you really have to make sure that you are alert at all times when you listen to testimony, because it’s gonna be incumbent upon the person that’s examining this witness to prove up those inconsistencies. . . . But from the standpoint of the defense, we don’t have to stop the proceedings for him to look up something that he represents at this point. We’d be here forever.”
The court did occasionally sustain a defense objection to the prosecutor’s questioning of witnesses, and also at times overruled the prosecutor’s objections to defense questions. Nonetheless, the vast majority of the court’s rulings favored the prosecution.
The court did say on several occasions that it did not mean, by its comments, to imply that it had a view of the attorneys or their cases. For example, after sustaining an objection, the court stated, “And, again, I want to emphasize here, yes I’m showing a little impatience. Don’t worry about it.” The court then said that its impatience did not reflect its view of either side or their case, “but I have to move this case along.”
A trial court has the “the duty . . . to control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved.” (§ 1044.) Moreover, a trial court “shall exercise reasonable control over the mode of interrogation of a witness so as to make interrogation as rapid, as distinct, and as effective for the ascertainment of the truth, as may be . . . .” (Evid. Code, § 765.)
However, a court may not use its position of authority to create an atmosphere of unfairness where, by its conduct, it leads the jury to believe it favors one party over the other. (See People v. Sturm, supra, 37 Cal.4th at p. 1243.) In People v. Sturm, for example, the trial court belittled defense witnesses and defense counsel, implied that defense counsel was dishonest and sneaky, and repeatedly interrupted the defense examination of witnesses. (37 Cal.4th at pp. 1233-1235.) Moreover, even in an admonition to the jury, after it stated that it was not “picking on” the lawyers, the court went on to further disparage defense counsel’s questioning of witnesses. (Id. at p. 1236.) Our Supreme Court found that the cumulative effect of these errors, which spanned the entire penalty phase trial, required reversal of the defendant’s death sentence. (Id. at p. 1244; see also People v. Santana, supra, 80 Cal.App.4th 1194, 1207-1208 [trial court’s repeated admonitions not to take any cue from its manner of questioning witnesses could not counter fact that court intervened as an adversary and allied itself with prosecution when it cross-examined defense witnesses for page after page of reporter’s transcript]; People v. Fatone, supra, 165 Cal.App.3d at p. 1167 [ trial court’s “consistent and unjustified abuse” of defense counsel, coupled with its erroneous evidentiary rulings, required reversal].)
Here, we find that a number of the trial court’s comments, while not outrageous, came across as unnecessarily harsh and impatient. For example, comments such as, “Doesn’t matter. . . . Let’s move on,” “My objection is sustained. His concerns are not relevant to this trial, believe it or not,” “[T]his is going to take forever if you keep doing that [rehashing what a witness testified],” and, regarding leading questions, “[Y]ou can’t lead him down the primrose path” were inappropriate. Furthermore, a few of the court’s evidentiary rulings and comments on the rules of evidence were legally incorrect or confusing. Examples include the court’s inartful explanation of testimony admitted to show the declarant’s state of mind and when the court told counsel that a question starting with “did” is always leading.
However, many of the comments complained of by appellant were actually proper rulings or appropriate efforts to control the pace and effectiveness of the examination of witnesses. (See Evid. Code, § 765.) The court also informed the jury several times that its impatience should not be construed as an opinion on the ability of the two lawyers or the evidence. In addition, it was the court’s duty to exercise reasonable control over the proceedings, which were already extremely lengthy. (See People v. Fudge (1994) 7 Cal.4th 1075, 1108; § 1044; Evid. Code, § 765.) Finally, the court’s various comments did not in any way imply that it disbelieved defense witnesses or thought that appellant was guilty. (See People v. Linwood, supra, 105 Cal.App.4th at p. 74.)
Indeed, the court instructed the jury, pursuant to CALJIC No. 17.30: “I have not intended by anything I have said or done, or by any questions that I may have asked, or by any ruling I may have made, to intimate or suggest what you should find to be the facts, or that I believe or disbelieve any witness. [¶] If anything I have done or said has seemed to so indicate, you will disregard it and form your own conclusion.”
In conclusion, we do not condone the conduct of the trial court, some of whose comments demonstrated an impatience and annoyance with defense counsel that came dangerously close to the line, as measured by cases such as People v. Sturm, supra, 37 Cal.4th 1218. However, in the context of each of the two trials, we do not believe the court’s questionable comments constituted “ ‘a pattern of judicial hostility’ ” (see People v. Fatone, supra, 165 Cal.App.3d at p. 1175), or “ ‘transcended so far beyond the pale of judicial fairness as to render a new trial necessary.’ ” (Sturm, at p. 1233.)
Thus, reversal is not warranted under either the Chapman or Watson standard of review. (See Chapman v. California, supra, 386 U.S. 18, 24; People v. Watson, supra, 46 Cal.2d 818, 835-836, cited in People v. Sturm, supra, 37 Cal.4th at p. 1244.)
X. Cumulative Error
Appellant contends the cumulative effect of the errors in this case requires reversal. We have found that none of the errors in this case were prejudicial. Nor do we find that the cumulative effect of any errors calls into doubt the juries’ verdicts or undermines the fairness of the trials in this case. (See People v. Cuccia (2002) 97 Cal.App.4th 785, 795.) As our Supreme Court has stated: “Lengthy criminal trials are rarely perfect, and this court will not reverse a judgment absent a clear showing of a miscarriage of justice.” (People v. Hill, supra, 17 Cal.4th at p. 844.) In this case, while the trials were not perfect, we find that “ ‘the whole’ of the trial errors ‘did not outweigh the sum of their parts.’ ” (Id. at p. 845, quoting People v. Roberts (1992) 2 Cal.4th 271, 326.)
DISPOSITION
The judgment is affirmed.
We concur: Haerle, J., Lambden, J.