Opinion
A100929.
11-7-2003
THE PEOPLE, Plaintiff and Respondent, v. KRISTEN MICHAEL ALLEN TICE, Defendant and Appellant.
Kristen Michael Allen Tice appeals from a judgment of conviction upon a jury verdict finding him guilty of two counts of assault with a deadly weapon by means of force likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(1).) He contends that: (1) The trial court erred in denying his request for reinstatement of appointed counsel; (2) the court denied his right to be present at trial by continuing proceedings in his absence; (3) insufficient evidence supports the jurys finding on one of the assault counts; (4) the court erred in permitting certain expert testimony; and (5) the prosecutor committed misconduct. We affirm.
Unless otherwise indicated, all subsequent statutory references are to the Penal Code.
I. FACTS
At approximately 5:30 p.m. on August 16, 2001, defendant and his father arrived at Albert Cookes home in Clearlake. Defendant argued with Adam, Cookes son, and claimed that Adam owed him $250. Defendant then pulled a short metal bar from his back pocket and took a swing at Adam. Cooke ordered defendant off the property but he refused to leave. Cooke pushed defendant who fell over a plant and landed on his back. Defendant continued to argue so Cooke said that he would pay the money with interest but that he needed more time. Defendant said, "Ill give you two days or Ill come back with my boys."
An hour later, defendant returned to Cookes home and was accompanied by several men. They came charging up Cookes front porch. In a panic, Cooke grabbed his rifle. Defendant said, "well, what, are you going to shoot me?" Cooke hesitated and defendant charged forward and wrestled the rifle away from him. Defendant approached Adam who was behind Cooke while one of defendants accomplices struggled with Cooke. Cooke got up off the floor after the struggle and was hit by defendant with the wooden part of the rifle in the ribs and in the face. The rifle was broken but Cooke did not see how that occurred. Cooke suffered a nosebleed and aggravation of existing injuries to his ribs. He testified that his physical condition was aggravated by the assault and that he now needed a cane to assist him with walking.
Sergeant John Larsen responded to the scene and saw Cooke bleeding from the nose and face. Officer James Bell, who also responded to the scene, observed that Cooke had a lot of blood around his nose and that his face was swollen on the right side. Bell also noticed that Adam had blood on the right side of his head and a cut on his ear and another cut on his head. Paramedics transported Cooke to the hospital. Larsen obtained a description of defendant and detained him shortly thereafter. Defendant admitted that he was involved in a fight at the Cooke residence. Defendant told Larsen that Cooke pointed a gun at him, that he disarmed Cooke of the gun, broke it in half and struck both Cooke and Adam with the barrel and handle of the gun. Larsen opined that based on his experience and his observation of Cookes injuries, the force used upon him during the incident was likely to cause great bodily injury.
At the police station, defendant waived his Miranda rights and signed a statement admitting that he grabbed the shotgun from Cooke, broke it over his knee and began hitting Cooke and Adam with the two pieces.
Miranda v. Arizona (1966) 384 U.S. 436.
In defense, defendant testified that the incident with Cooke and Adam was "a simple case of self-defense" and that he was "in fear for my life." On cross-examination, he admitted that he hit Cooke and Adam with the broken pieces of the gun. He also admitted that he could have seriously hurt someone with the broken pieces of the rifle.
II. DISCUSSION
Faretta v. California (1975) 422 U.S. 806.
1. Factual Background
On September 24, 2001, the court arraigned defendant on the two assault charges and appointed public defender Erik Bruce to represent defendant. The court set the trial date for October 30, 2001. On October 30, 2001, defendant was late for the proceedings. He explained to the court that he was late due to car trouble. The court warned defendant "[c]ar trouble is not an excuse. That never flies." When the court announced that it would conduct the trial, defendant exercised his right under Code of Civil Procedure section 170.6 to disqualify the court. The court honored the challenge under section 170.6 and set the matter for November 6, 2001, for jury trial.
Defendant failed to appear for trial on November 6, 2001. The court issued a bench warrant and set bail at $25,000. Defendant was arraigned on the bench warrant on December 31, 2001. Defendants failure to appear on November 6 became the basis of a separate case.
The court subsequently scheduled the jury trial for March 5, 2002. On February 25, 2002, the court heard and denied defendants Marsden motion. Defendant then requested a two-week continuance so that he could retain private counsel. The court granted the request and placed both the assault case and the failure to appear case on calendar for March 11, 2002, for the appearance of new counsel.
People v. Marsden (1970) 2 Cal.3d 118.
On March 11, 2002, defendant represented that he had made arrangements to retain Mr. Swanson and requested a continuance so that he would arrange the retainer. The court granted the request and ordered defendant to appear with counsel on April 2, 2002.
On April 2, 2002, defendant informed the court that Mr. Swanson agreed to represent him but that he was busy with a murder trial and needed a continuance. Although the prosecutor noted that "this case has been going on forever" and that it would be helpful to hear from Mr. Swanson, the court acquiesced in defendants request.
On April 29, 2002, defendant was late for the trial readiness conference. The court continued the matter to the following week. On May 6, 2002, defendant informed the court that he had decided to retain Mr. Tulanian rather than Mr. Swanson and that he would be meeting with Tulanian the following day. The following colloquy occurred: "The Court: Well, Mr. Tice has been going to get a lawyer for — [¶] Mr. Bruce [public defender]: Months. [¶] The Court: — months. [& para;] The Defendant: Well — [¶] The Court: And Ive told him as many times as I can, we just cant wait forever for that to happen. [¶] Mr. Bruce: And I told him the same thing. [¶] Absent cooperation on his part, I am ready to go to trial on [May] 14th. With an uncooperative client, now he says he would rather go pro per than go with me as his attorney. [¶] The Court: Well, either way, we can go on the 14th if Mr. Tulanian is not available. [¶] The Defendant: I guess so." Later during this same hearing, the court continued the trial to July 9. The court found good cause for the continuance in that the prosecutor had four police officer witnesses who would not be available until that date.
The prosecutor had noted earlier that it was difficult to have all of the officers available at one time.
On May 13, 2002, defendant told the court that he was in the process of retaining Tulanian but that he had not yet arranged the retainer. Mr. Bruce, who appeared with defendant, informed the court that he had spoken with Tulanian and confirmed that defendant and Tulanian were in negotiations on a retainer. Based on these representations, the court again continued the matter.
By May 28, 2002, defendant still had not made arrangements for retained counsel. The court confirmed the trial readiness conference date of July 1 and the trial date of July 9 and told defendant that when he retained private counsel, his attorney should place the matter on the calendar for an appearance. Defendant thereafter did not appear for the trial readiness conference or the date set for trial. The court found defendants nonappearance to be without justification and issued a bench warrant. Defendant was remanded on the warrant on July 15, 2002, and the matter was continued for a trial readiness conference to August 12, 2002.
On August 12, 2002, defendant again requested a continuance to retain counsel. He informed the court that he had the money to hire Mr. Petersen and explained that he and Tulanian had "not come to an understanding." The prosecutor objected, arguing, "[t]here comes a point in time where the Court has to realize that its being manipulated by the defendant." The court nonetheless continued the matter for two weeks, noting that court cases place much emphasis on a defendants right to counsel of his choice. Mr. Bruce, the public defender again informed the court that defendant did not wish him to proceed as his trial counsel. The court remarked that it had continued the case "a bunch of times. And every time I hear the same thing. Now Im hearing youre actually doing something about it. Im not really satisfied you have up until about two weeks ago. [& para;] Thats my opinion. Okay. And so, I expect that if you dont have a lawyer, honestly and truly have a lawyer representing you, a retained lawyer, one week from today, that youre going to go to trial by yourself the following week." The court ordered defendant to appear in court the following week with a lawyer or someone from the lawyers office and warned that otherwise, the courts plan was to go to trial on August 27, 2002. The hearings set for August 19 and August 26 for the appearance of retained counsel were continued, presumably because defendant had not yet retained counsel.
On September 9, 2002, Mr. Bruce informed the court that defendant had not retained Mr. Petersen and that he wished to make a Faretta motion. The court heard the Faretta motion on September 13, 2002. The court granted the motion following defendants execution of an "advisement and waiver of right to counsel" form and the courts advisements and defendants acknowledgements that he understood the ramifications of his waiver. Defendant then requested a continuance of the trial date set for September 24, 2002. The prosecutor opposed the motion, noting the numerous continuances and defendants failures to appear. The court advised defendant that he would have to make his request in writing. The court explained that defendant had not proffered any valid reasons why he had not prepared for trial "because its been very clear to me for many, many months that you intended to represent yourself."
On September 24, 2002, defendant appeared before Judge Richard L. Freeborn for jury trial. Defendant again asked for a continuance to prepare his case, stating that he needed to subpoena witnesses. The court addressed the parties as follows: "The Court: This is the date for trial on two different cases. [¶] Do the People have their witnesses lined up or not? [¶] Ms. Campbell [deputy district attorney]: We do, Your Honor. [¶] The Court: How many witnesses in all? [¶] Ms. Campbell: We have three to four officers and the victim. [¶] The Court: Three total in the two cases? [& para;] Ms. Campbell: Probably four total. [¶] The Court: Are they under subpoena? [¶] Ms. Campbell: They are. [¶] The Court: Mr. Tice, this isnt the time to come in and say, well, gee, I need to get some subpoenas out. This is the day of trial. Youre supposed to have your witnesses already arranged for. [¶] The Defendant: Well, I just became pro per like — [¶] The Court: Well, thats not an excuse. Youre digging yourself a hole. [¶] The Defendant: Two weeks ago. Ive been working on preparing the case. [¶] The Court: Youre not getting there. Youre just not connecting. [¶] This is the day for trial. We go ahead and you dont have your witnesses, were in a world of hurt. I dont think from what youve said youve made any great effort to get your witnesses. You havent gone to the clerk to get subpoenas or anything, have you? [¶] The Defendant: No, I just — [& para;] The Court: Thats got to happen, you know. Youre supposed to have your subpoenas in and served upon your witnesses before the trial, not on the day of trial. [¶] Im not inclined to grant a continuance, frankly. [¶] The Defendant: Im just learning about the whole — [¶] The Court: Well, you know, every attorney in here went to three years of law school and four years for a Bachelor degree before that. It doesnt just happen. Youre not going to learn that in a few weeks. [¶] I really would strongly recommend that you reconsider counsel. Maybe if theres a problem with that particular one, we should take a look at something else; but that counsel has to have the ability to run the trial, you dont run the trial. That attorney is trained and knows what the laws of the evidence and procedure are and substantive law. [¶] And here we are [the] day of trial and you dont have any evidence. Youre going to — youre going down a hole. [¶] Ms. Campbell: Your Honor, I might add too that this is the one year anniversary that the date was first — that this case was first scheduled for trial. [¶] There have been numerous delays in this case. [¶] The Court: Well, theres not going to be any more that I can see unless we have counsel involved in this case, and Mr. Tice has done nothing to prepare himself that I can see. [¶] Do you really want to go ahead by yourself with no witnesses? [¶] The Defendant: Ive made up my list of other people to subpoena. I havent — [& para;] The Court: That doesnt make it. [¶] . . . [¶] That doesnt get anywhere. This is the day of trial. People are supposed to be presenting their evidence to the jury. We have a panel of 120 people out there ready to hear your case. [¶] Are you working now? [¶] The Defendant: Yes, I am. [¶] The Court: Full time or part-time? [¶] The Defendant: Part-time. [& para;] The Court: Yeah. [¶] Ms. Campbell: A number of continuances have already been granted because of issues with counsel and Mr. Tice attempting to hire at least two different attorneys in between his public defender representation. [¶] The Court: Just scanning the minute order in the case, that appears to be the case. This has been continued repeatedly due to some suggestion that counsel would be retained. We have a gentleman who is working part-time, and its gone on and on and on. [¶] Im going to trail this for a little bit, Mr. Tice; but you start thinking about where youre going with the case."
Superior Court Judge David W. Herrick handled most of the pretrial proceedings.
Following a pause in the proceedings, the court ruled that it would proceed with the jury trial. The court remarked, "Ive had no filed motions here. [¶] I see previously a judge had notified you if you wanted to get relief in the nature of continuances and the like, you had to file a written motion on that; and were here now, and youre telling me for the first time that you havent subpoenaed your witnesses and that you didnt even know about the process and youve made no efforts to do that. [¶] Thats the sort of risk that you took when you undertook to represent yourself, and it appears to the Court in examining the Faretta motions and the records of the case that you were abundantly advised of the risk that you were taking by representing yourself. [¶] So we will proceed today selecting a jury in these two cases that have been consolidated for trial. Were in a moment going to have a group of jurors brought in here. [¶] Lets see, how much seating do we have available, maybe 50, 60? [¶] . . . [¶] The Defendant: Your Honor. [¶] . . . [& para;] [The Court]: This is the date of trial, Mr. Tice. [¶] The Defendant: May I apply for counsel, I guess? Im not prepared myself in this matter. [¶] The Court: Why not? This is the day set. You were abundantly advised of it on at least a dozen occasions that you had to be prepared to proceed. [& para;] The Defendant: I was under the impression that I could get a continuance on this date. [¶] The Court: No, thats not going to happen. Were going to proceed to trial, unless theres a disposition of this case. [¶] If you want to discuss that with the DA, well and good. If not, you need to be prepared to go to trial here in about 15 minutes. [¶] Ive heard no showing to the contrary except you just havent done anything to get your witnesses in here. Thats not a good showing. No showing of impossibility or anything else that precluded you from doing that, and you were put on notice. [& para;] I see going through the record that there had been enough continuances granted for counsel. That happened on at least eight or ten occasions, I think closer to a dozen. Thats manipulative of the Court, and its not going to be tolerated. [¶] So Im going to recess until 10:15, and at that point well have some preliminary discussions and then Ill have the jury brought in probably after 11 oclock. [& para;] All right. Thank you. [¶] . . . [¶] The Defendant: May I be assigned legal counsel. [¶] The Court: No, its way too late. Way too late. [¶] . . . You had appointed counsel and then said you didnt want appointed counsel and wanted to represent yourself, and changing right now on the eve of trial is manipulative — [¶] The Defendant: I havent — [¶] The Court: — and think this is a shame and a fraud to go ahead with the proceedings today, you would be simply jerking the Court around. [¶] The Defendant: Im not trying to do that, Your Honor. I dont — [¶] The Court: The whole records suggest that, unhappily. I have no personal animus towards you. Ive met you before on other minor matters you had. Youve always been a gentleman to the Court, and I have no reason to believe youll be otherwise. [& para;] The Defendant: I believe this is a little bit over my head now that — [¶] The Court: This is the day."
The court subsequently granted the prosecutors motion to dismiss the failure to appear case.
2. Discussion
A defendants request for reinstatement of counsel after a waiver of that right is addressed to the sound discretion of the trial court. (People v. Gallego (1990) 52 Cal.3d 115, 163-164; People v. Cruz (1978) 83 Cal.App.3d 308, 319.) In People v. Elliott (1977) 70 Cal.App.3d 984, 993-994, the court set forth the criteria to be used in reviewing the propriety of a trial courts denial of a defendants request to withdraw his waiver of counsel. Relevant factors include: "(1) defendants prior history in the substitution of counsel and in the desire to change from self-representation to counsel-representation, (2) the reasons set forth for the request, (3) the length and stage of the trial proceedings, (4) disruption or delay which reasonably might be expected to ensue from the granting of such motion, and (5) the likelihood of defendants effectiveness in defending against the charges if required to continue to act as his own attorney." (Ibid.) These factors, however, are not absolute; the trial court must consider the totality of the facts and circumstances in exercising its discretion as to whether or not to permit a defendant to change his mind regarding representation in midtrial. (People v. Gallego, supra, 52 Cal.3d at p. 164; People v. Smith (1980) 109 Cal.App.3d 476, 484.)
Here, the record demonstrates that the trial court did not abuse its discretion in denying defendants request to reappoint counsel. First, defendant, over the course of a year, represented to the court numerous times that he needed a continuance of the trial because he was on the verge of retaining private counsel, only to show up at the continued trial readiness date without new counsel. Second, as early as May 6, 2002, defendant indicated that he preferred to represent himself rather than proceed to trial with the public defender. Third, defendant failed to proffer good cause for a continuance. The court warned defendant on August 12, 2002, and September 13, 2002, that it was not inclined to grant further continuances. On September 13, the court advised defendant that he would have to make any further request for a continuance in writing and noted that defendant had not proffered any valid reasons for a continuance to prepare for trial "because its been very clear . . . for many, many months that you intended to represent yourself." Despite the courts warnings, defendant failed to move for a continuance in writing and made no preparations for trial prior to the date set for trial. On the day of trial, the prosecutor had subpoenaed four witnesses including three police officers and the court had assembled a jury panel of 120 prospective jurors. Hence, a further continuance of the trial would have caused a "substantial disruption and delay in the proceedings." (People v. Perez (1992) 4 Cal.App.4th 893, 904.) Moreover, the prosecutor objected to further continuances, noting the numerous delays in the case and defendants history in attempting to substitute counsel. Finally, the record shows that defendant voluntarily and knowingly waived his right to counsel and was repeatedly warned of the potential pitfalls of self-representation. The court, cognizant of the history of the case including defendants manipulation in delaying the trial for a year, acted well within its discretion in denying defendants request. (See People v. Trujillo (1984) 154 Cal.App.3d 1077, 1086-1087 [no abuse of discretion in refusing defendants request for a new attorney on the morning of date set for trial in view of defendants deliberate attempt to manipulate the court system for approximately six months].)
B. Voluntary Absence
A criminal defendant has a federal and state constitutional right to be present at trial. (People v. Gutierrez (2003) 29 Cal.4th 1196, 1202.) "`The constitutional right to presence is rooted to a large extent in the Confrontation Clause of the Sixth Amendment, [citation], but we have recognized that this right is protected by the Due Process Clause in some situations where the defendant is not actually confronting witnesses or evidence against him." (Ibid., quoting United States v. Gagnon (1985) 470 U.S. 522, 526.) Sections 977 and 1043 implement a defendants state constitutional rights to presence at trial. (People v. Gutierrez, supra, 29 Cal.4th at p. 1202.) A defendants right to be present at trial, however, is not absolute. (Ibid.) "[A] defendants `privilege may be lost by consent or at times even by misconduct. [Citation.]" (Ibid.) Section 1043, subdivision (b)(2) further provides that "[t]he absence of the defendant in a felony case after the trial has commenced in his presence shall not prevent continuing the trial to, and including, the return of the verdict in . . . [¶] . . . [¶] [a]ny prosecution for an offense which is not punishable by death in which the defendant is voluntarily absent." "On appeal the reviewing court must determine, on the whole record, whether defendants absence was knowing and voluntary." (People v. Connolly (1973) 36 Cal.App.3d 379, 385.)
Here, the record shows that after jury selection was almost completed, the court recessed early for lunch to afford defendant the opportunity to visit the courts clerks office and arrange for subpoenaing of his witnesses. The court instructed defendant to return to court at 1:30 p.m. Defendant failed to appear at 1:30 p.m. and had not communicated with the court. At approximately 1:43 p.m. the court declared defendant voluntarily absent pursuant to section 1043. The court proceeded with jury selection. Following the courts questioning of a prospective juror, the prosecutor accepted the panel without exercising any peremptory challenges and the jury was sworn. The court questioned another prospective juror who was selected as an alternate. The court then gave the jury some preliminary instructions. Defendant arrived in court at 2:07 p.m. as the prosecutor was beginning to make her opening statement. Defendant explained that he had car trouble. The court apprised defendant of the proceedings he had missed after which the prosecutor proceeded with her opening statement. At the afternoon recess, out of the presence of the jury, defendant explained that he went to Kelseyville to make contact with a witness and on his return, his vehicle had a blowout. The court found defendants explanation "wanting in light of the history of this case," noting that previous judges had to issue warrants for his arrest and that defendant had a history of being late for appearances and in failing to appear.
Defendant argues that the trial court violated his right to due process by proceeding with jury selection and instructions in his absence. Citing People v. Howze (2001) 85 Cal.App.4th 1380, 1388, the Attorney General asserts that defendant waived this issue because he failed to make an objection to the courts finding that he was voluntarily absent. We need not decide whether defendants failure to object constituted a waiver of his claim on appeal because the record before the court fully supports the courts decision to proceed with trial in defendants absence.
Howze is distinguishable from the present case. There, the defendant orally waived his right to be present at trial after being advised of his right to be present at trial. Since the preliminary hearing, the defendant had established a pattern of failing to appear by refusing to leave the jail and being disruptive in proceedings where he did make an appearance. After the trial commenced, the defendant made an appearance for the purpose of moving to substitute counsel. The court denied the motion and the defendant asked to be excused from the courtroom because he did not want to be present during the trial. The jury convicted the defendant in his absence. (People v. Howze, supra, 85 Cal.App.4th at pp. 1388-1393.) The court held that the defendants oral waiver was sufficient to comply with section 977, which requires a written waiver of personal appearance, in light of the courts repeated admonitions informing the defendant of his right to be present and the defendants clear intention to waive his personal appearance and remain in his cell. (Howze, at p. 1395.) The court further held that the defendant was estopped to assert that the trial court improperly commenced the trial in his absence because his defense counsel failed to object on jurisdictional or constitutional grounds at the time trial commenced in the defendants absence. (Id. at p. 1396.)
The record demonstrates that defendant failed to appear or arrived late for court proceedings several times over the course of the year his trial was pending, necessitating that the court issue bench warrants for his arrest. Indeed, he arrived late for the first day of trial but the court trailed the matter to await his appearance. Defendant also faced a charge of failure to appear based on an early nonappearance for a scheduled jury trial date. Further, the record shows that on one occasion early on in the proceedings, the court warned defendant when he appeared late for the proceedings that car trouble was not an excuse. Notwithstanding this record, defendant failed to inform the court that he would be late for the resumption of trial. Defendants car trouble excuse did not dispel the courts ruling that defendant was voluntarily absent. As the court found, defendants history "of being dilatory in showing up to court, failing to appear or showing up late" demonstrated that defendant was voluntarily absent from the proceedings and that his explanation for being late was "wanting." "While the breakdown of a vehicle while driving to court may provide an excuse for tardiness, it is not a blanket protection for a failure to appear." (People v. Connolly, supra, 36 Cal.App.3d at p. 387.) Defendant was well aware of the necessity for timely appearances; the evidence supports the courts finding that his absence was voluntary.
C. Sufficiency of the Evidence
Defendant contends that the evidence is insufficient to support the jurys finding that he assaulted Adam with force likely to produce great bodily injury or with the use of a deadly weapon. We disagree.
In determining whether the evidence is sufficient to support the verdict, we must review "`the whole record in the light most favorable to the judgment and decide `whether it discloses substantial evidence . . . such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Hatch (2000) 22 Cal.4th 260, 272, quoting People v. Johnson (1980) 26 Cal.3d 557, 578.)
Section 245, subdivision (a)(1) penalizes assaults committed "with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury." A deadly weapon is "`any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury. [Citation.]" (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029.) "In determining whether an object not inherently deadly or dangerous was used in the requisite manner, the trier of fact may look to the nature of the weapon, the manner of its use, and any other relevant fact. [Citation.] Although neither physical contact nor injury is required for a conviction, if injuries result, the extent of [the] injuries and their location are relevant facts for consideration." (People v. Beasley (2003) 105 Cal.App.4th 1078, 1086-1087.)
Here, the evidence showed that defendant took a rifle, broke it into two pieces, and used those pieces to assault both Cooke and Adam. Defendant admitted that he struck Adam with the barrel and handle of the rifle and that he could have inflicted serious injury. The evidence further showed that Adam suffered injuries as a result of the assault, with a cut on his right ear and one on his head. The rifle and photographs depicting the head injuries were admitted into evidence. (Cf. People v. Beasley, supra, 105 Cal.App.4th at p. 1088 [evidence insufficient to show that a broomstick was used as deadly weapon where there was no evidence that the broomstick was used to strike the victims head or face, and neither the broomstick nor photographs of it were admitted into evidence].) Thus the jury "had before it . . . facts from which it could assess the severity of the impact between the [rifle pieces] and [the victims] body." (Ibid.) Further, evidence of Cookes injuries and their severity caused by the same weapon used on Adam supported the finding that defendant, in using the weapon, was using force likely to produce great bodily injury and that the weapon constituted a deadly weapon. In short, while the issue was close, it was one for the jury; and viewing the evidence in the light most favorable to the judgment, it was sufficient to support the verdict.
D. Expert Opinion Testimony
Defendant argues that the trial court erred in permitting Sergeant Larsen to offer an opinion on whether the force used against Cooke was likely to cause great bodily injury. We conclude that any error in admitting the evidence was harmless.
Larsen testified that he had 26 years of experience as a police officer and that he was the initial investigating officer on hundreds or thousands of assault cases involving weapons. He observed Cookes injuries immediately after the incident and opined that the force used upon Cooke was likely to cause great bodily injury. He also opined that the broken rifle was capable of producing great bodily injury or death: "It could have killed him, Mr. — it could have killed the elderly man; and if it was used in the right way, it easily could have killed the younger man too. [¶] He was — if he was struck in the right part of his head or his temple or — both were struck in the head and if they would have been hit just right, it could have killed them."
Relying on People v. Hogan (1982) 31 Cal.3d 815, disapproved on other grounds in People v. Cooper (1991) 53 Cal.3d 771, 836, defendant argues that Larsens observation of the injuries did not invest him with the expertise to render an expert opinion on whether defendant used force likely to produce great bodily injury. In Hogan, a criminalist offered his opinion that certain bloodstains found on the defendants pants and shoes were splatters caused by blood flying through the air after an impact rather than by contact with a bloody object. (People v. Hogan, supra, 31 Cal.3d at p. 851.) The court held that the criminalist was not qualified to render an opinion because he had never performed any analyses or had any formal education training in making those determinations. (Id. at pp. 852-853.) "[M]ere observation of preexisting stains without inquiry, analysis or experiment, does not invest the criminalist with expertise to determine whether the stains were deposited by `spatters or `wipes." (Id. at p. 853.)
Hogan is distinguishable. Here, Larsens qualifications were based on more than mere observations. His years of experience in the field investigating assault cases provided him with specific expertise in assessing whether a victims injuries were the result of force likely to cause great bodily injury or whether the pieces of the rifle used were capable of producing that injury. The trial court recognized Larsens expertise in ruling that, although not formally qualified, Larsens experience rendered him qualified to opine on Cookes injuries. Even if it was error to admit Larsens opinion, the error was harmless. In light of defendants admission that he assaulted both victims with the pieces of the rifle and his acknowledgement that he could have inflicted serious injury with the weapon, it is not reasonably probable that a more favorable verdict would have been reached. (People v. Watson (1956) 46 Cal.2d 818, 836.)
The court instructed the jury in the language of CALJIC No. 2.80 on the weight to be given an experts opinion as follows: "A witness may be called who has special knowledge, skill, experience, training or education in a particular subject and that person will testify to certain opinions. [¶] Any such witness is referred to as an expert witness; and in determining what weight to give to any opinion expressed by an expert witness, you should consider the qualifications and believability of the witness, the facts or materials upon which the opinion is based and the reasons for each opinion. [¶] An opinion is only as good as the facts and reasons on which it is based. If you find that any fact has not been proven or has been disproved, you must consider that in determining the value of the opinion. [& para;] Likewise, you must consider the strengths and weaknesses or the reasons on which it is based. You are not bound by an opinion, give each opinion the weight you find it deserves and you may disregard any opinion if you find it unreasonable."
E. Prosecutorial Misconduct
Defendant contends that the prosecutor committed misconduct in both her opening and closing arguments. The Attorney General argues that defendant waived the claim because he failed to object to the argument below. Generally a defendant may not complain on appeal of prosecutorial misconduct if he has not made a timely objection and a request for a curative admission. (People v. Cunningham (2001) 25 Cal.4th 926, 1000.) The claim is reviewable, however, if an admonition would not have cured the harm. (Id. at pp. 1000-1001.) Applying this standard, we have reviewed the record and determined that none of the prosecutors comments require reversal.
"The applicable federal and state standards regarding prosecutorial misconduct are well established." (People v. Samayoa (1997) 15 Cal.4th 795, 841.) A prosecutor is given wide latitude during argument. (People v. Wharton (1991) 53 Cal.3d 522, 567.) The argument may be vigorous as long as it amounts to fair comment on the evidence. (Ibid.) "A prosecutors . . . 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. [Citations.] But conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves `"the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury." [Citations.]" (People v. Espinoza (1992) 3 Cal.4th 806, 820.) Prosecutorial misconduct requires reversal only when, viewing the record as a whole, it results in a miscarriage of justice. (People v. Green (1980) 27 Cal.3d 1, 34.)
Here, defendant argues that the prosecutor committed misconduct during voir dire when she commented to a prospective juror that, "my job is also to make sure that Mr. Tice receives a fair trial and that justice is done, its not something to convict Mr. Tice." The comment was made after the prosecutor obtained the jurors assurance that the fact that the juror worked at the same company as the prosecutors husband would not cause the juror to give any preference to the prosecutor. Defendant asserts that the prosecutors comment was tantamount to a statement that she would not have prosecuted him unless she was convinced of his guilt. The context in which the statement was made, however, could not have led to the interpretation defendant suggests. The prosecutor, in making her comment, was simply attempting to assure the prospective juror that she wished to avoid any potential bias. We discern no misconduct.
Defendant next contends that the prosecutor committed misconduct when she asked defendant if Sergeant Larsen was a liar. He objects to the following questioning: "[Ms. Campbell:] Okay. Then youre saying now that if he testified that you denied being in the area that he was telling a lie, that Sergeant Larsen lied? [¶] [The Defendant:] No, I aint calling him a liar. Just when we were pulled over, I handed him my ID card; and the next officer I talked to was Fassler after that point because Fassler showed up. [¶] [Ms. Campbell:] So youre not calling Sergeant Larsen a liar, are you? [¶] [The Defendant:] Sergeant — [¶] [Ms. Campbell:] Excuse me, but Sergeant Larsen said that he asked if you had been in the area and that you denied it. And now today your testimony is that that didnt happen. Then arent you calling Sergeant Larsen a liar?"
The purpose of the prosecutors cross-examination was not to elicit defendants lay opinion on Larsens veracity, but rather to point out the inconsistencies in defendants testimony. Even if the questioning was improper, reversal is not warranted. An admonition would have cured any harm from the questioning. And, in any event, in view of the strong evidence of guilt, particularly appellants admissions that he assaulted the victims, it is not reasonably probable that defendant would have achieved a more favorable result absent any misconduct. (People v. Watson, supra, 46 Cal.2d at p. 836.)
Defendant also argues that the prosecutor committed misconduct in her closing argument when she argued that self-defense did not apply if defendant was the aggressor: "[I]f you believe Albert Cooke, Mr. Tice was an aggressor; and so that means that before he can even use self-defense he has to make a good-faith effort to refuse to continue fighting, he has to clearly inform his opponent that he wants to stop fighting and clearly inform his opponent that he has stopped fighting." The prosecutors argument was consistent with the CALJIC No. 5.54 instruction on self-defense by an aggressor, on which the jury was instructed.
Relying on People v. Hernandez (2003) 111 Cal.App.4th 582, defendant argues that an aggressor may communicate by words or conduct and thus the prosecutor incorrectly stated the law. The Hernandez court held that CALJIC No. 5.54 is ambiguous because it could be interpreted to require a verbal communication rather than simply an act of withdrawal. (Hernandez, at pp. 588-589.) Here, however, any error in giving the instruction or in the prosecutors argument, was harmless since there was no evidence in the record that defendant attempted to withdraw before the assault.
Finally, defendant contends that the prosecutor misstated the evidence when she argued that defendant did not disagree with Sergeant Larsens opinion that the rifle pieces were used in a manner that was likely to produce great bodily injury. On cross-examination, defendant acknowledged that he could have seriously hurt someone with the broken pieces of the rifle. In light of defendants admission, the prosecutors remarks were fair comment on the evidence. (People v. Hill (1998) 17 Cal.4th 800, 819.)
III. DISPOSITION
The judgment is affirmed.
We concur: KAY, P.J., and SEPULVEDA, J.