Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. INF055092, Stephen J. Gallon, Judge.
Diane E. Berley, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lynne G. McGinnis, and Daniel Rogers, Deputy Attorneys General, for Plaintiff and Appellant.
OPINION
CODRINGTON J.
I
INTRODUCTION
Defendant Jose Guadalupe Vasquez (defendant) stabbed Benjamin Antonio Rodriguez (Rodriguez) to death while visiting him at Rodriguez’s home. Defendant appeals from judgment entered following a jury conviction for second degree murder, a lesser included offense of first degree murder (Pen. Code, § 187, subd. (a); count 1). The jury also found true the weapon use allegation (§ 12022, subd. (b)(1)). The trial court sentenced defendant to 16 years to life in prison.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant contends the prosecutor committed numerous acts of misconduct during the trial, including vouching for the credibility of a key prosecution witness, inviting the jury to place itself in the shoes of the deceased victim, and making remarks that appealed to emotion and unnecessarily inflamed the jury. Defendant also asserts that the trial court abused its discretion when it declined to order defendant to reimburse the California Victim Compensation and Government Claims Board (Claims Board) for the entire amount paid from the board’s restitution fund. We conclude there was no prejudicial prosecutorial misconduct.
The People cross-appeal, challenging the restitution order as being unsupported by the evidence. We agree and therefore remand the matter to the trial court solely as to the issue of restitution, with instructions that the trial court conduct a hearing to reconsider the amount of restitution. In all other regards the judgment is affirmed.
II
FACTS
On July 8, 2006, defendant visited his friend, Edgar P., at Edgar P.’s home. Defendant was 19 years old and Edgar P. was 14. Edgar P. lived with his mother, Maria M., and his brothers, Victor and Daniel. Alex Solis and his wife also lived with Edgar P.’s family.
During the evening of July 8, 2006, as Solis was taking a shower, Edgar P. asked Solis for his pocketknife. Solis said he had sold it. Solis finished his shower and got dressed. Defendant was there, waiting for Solis. Edgar P. was not present. Defendant had blood on his clothing and hands. Solis remarked to defendant that it looked like defendant and Edgar P. “probably got in a fight.” Defendant denied being in a fight. Solis asked defendant what happened. Defendant said he and Edgar P. had killed someone. Defendant asked Solis for gasoline “to get rid of the body” and “[t]o torch the place. [¶]... where he had just killed the fool.”
Solis told defendant to leave and went to look for Edgar P. with Victor. Solis contacted Maria M. and told her to come home immediately. He told her what had happened. When Solis returned with Edgar P., defendant was still at Maria M.’s apartment but had cleaned up the blood. Maria M. spoke to Edgar P. about the incident and called the police a few days later.
On July 9, 2006, Police Officer Studdard responded to a dispatch call, reporting that Amelia Cantu had found her friend dead at an apartment unit. Studdard found Rodriguez, deceased, lying on his back on the floor, near the back door.
Police Detective Marshall arrived on the scene and searched the apartment. Marshall was assigned to investigate the crime. Marshall assigned Sergeant Lavalle to assist in the investigation. Lavalle arrived on the scene shortly after Marshall. The apartment unit was in disarray. Rodriguez’s body was still on the floor. It had multiple wounds to the upper torso. There was blood spatter on the walls, floor, and furniture. Rosary beads lay on the floor near the body. During a search of the apartment, the police recovered a kitchen knife with the handle bent 90 degrees.
The police also found a screwdriver on the grass outside, near the apartment front door. There was no blood on the screwdriver. No metal bar, pipe, or pole was found at the crime scene. The police only searched one of the four apartment trash cans and the trash had already been picked up by the time of the search.
On July 12, 2006, Solis spoke to Detective Marshall at the police station. Solis said that he had used methamphetamine the day he spoke to Marshall and the day of the murder. Solis had been convicted in 1995 for transporting drugs. Marshall showed Solis the knife found at the crime scene. Solis recognized it as being from a matching knife set in the kitchen. He had burned the tip of the blade to make a “bong” a few days before. When he had last seen the knife, its blade had otherwise been in good condition, with a straight blade.
DNA evidence collected from the knife matched DNA swabs taken from defendant and Rodriguez, with defendant being the major contributor of the DNA found on the knife. Rodriguez was a minor contributor. Edgar P.’s DNA was not found on the knife.
On July 12, 2006, Maria M. contacted the police. As a result, defendant was interviewed at the police station, after waiving his Miranda rights. The interview was recorded. The police did not notice that defendant had any significant injuries indicating he had been in a struggle. Defendant admitted he knew Rodriguez and had smoked marijuana with him. Rodriguez was defendant’s mother’s best friend. Defendant initially denied any involvement in Rodriguez’s stabbing. Defendant claimed he was in Mexicali at the time. Ultimately, defendant admitted he went with Edgar P. to Rodriguez’s apartment to smoke drugs. Rodriguez was already on drugs when they arrived. Rodriguez became angry when he saw Edgar P. There were rumors Rodriguez may have made a pass at Edgar P.’s girlfriend, Rosie.
Defendant further stated during his recorded statement that Rodriguez yelled profanities at Edgar P. and swung a metal bar at defendant and Edgar P. Rodriguez struck defendant in the neck with the bar, which left a mark on his neck. While defendant was on the ground, Edgar P. threw defendant a knife. Rodriguez walked into the knife with his back, according to defendant. Defendant initially said that Rodriguez was stabbed only once and was not dead, when defendant left. Defendant also claimed Edgar P. was still there after defendant left. Later, defendant admitted he stabbed Rodriguez multiple times during a struggle. He claimed that Rodriguez kept coming toward him with the bar and tried to grab the knife. Defendant stabbed Rodriguez again and Rodriguez’s other stab wounds may have happened during the struggle.
At one point, Rodriguez was on top of defendant with the pole and grabbed the knife. Defendant stabbed Rodriguez, causing Rodriguez to bleed profusely. Defendant pushed Rodriguez off of him, pulled out the knife, and walked out the front door, thinking to himself, “what... did I just do.” Defendant took the “bud pipe” they had been using. Defendant returned to Edgar P.’s apartment and told Solis what had happened. Edgar P. remained at Rodriguez’s apartment. Solis told defendant to take a shower and discard his bloody clothes. Defendant and Solis talked about burning the evidence.
Defendant testified at trial essentially consistent with the latter portion of his recorded statement given to the police, with a few exceptions and additions. At trial, defendant claimed he acted in self-defense when Rodriguez was killed. Defendant testified that he did not know Edgar P. had a knife until after the fight with Rodriguez began. Also, he told the police he had a screwdriver but discarded it before entering Rodriguez’s house. In addition, he told the police he took a bud pipe, but this was untrue. Defendant admitted the rosary beads found in Rodriguez’s apartment belonged to defendant. Defendant initially lied that they did not belong to defendant. Defendant denied referring to Rodriguez as a “fool.” Defendant also claimed he wanted to call the police but Solis told him not to. Defendant conceded he had initially lied to the police that he had gone to Mexicali but later in the interview became emotional and told the police what actually occurred.
The coroner testified Rodriguez sustained 15 stab wounds and multiple abrasions and bruises. The autopsy revealed that Rodriguez died of blood loss from a stab wound to his chest that pierced his heart. The fatal stab wound was consistent with having been stabbed with the knife recovered by the police. Rodriguez was 5 feet 10 inches tall and weighed 200 pounds. Defendant was about 5 feet 9 inches tall, and around160 pounds. At trial, defendant testified he only weighed 135 pounds. Rodriguez’s wounds indicated there had been a great struggle during the stabbing incident. Rodriguez tested positive for methamphetamine (.173 milligrams per liter), amphetamine (.013 milligrams per liter), and alcohol (.03). He also had a burn mark on his arm, consistent with use of a heated pipe.
A defense expert testified that the level of methamphetamine in Rodriguez’s system could have led to a violent response. A defense expert testified that the level of methamphetamine present in Rodriguez’s blood was sufficient to cause a person to behave in an aggressive, violent manner.
III
PROSECUTORIAL MISCONDUCT
Defendant contends the prosecutor committed numerous acts of prejudicial misconduct during the trial. We disagree.
A. Waiver
We begin by addressing the People’s assertion that defendant waived or forfeited his prosecutorial misconduct objections on appellate review. To avoid waiver, a defendant alleging prosecutorial misconduct is required to make a timely objection, state his reason for the objection, and request the jury be admonished. (People v. Brown (2003)31 Cal.4th 518, 553.) The admonishment requirement is subject to an exception for futility. (People v. Cole (2004) 33 Cal.4th 1158, 1201.) “[F]ailure 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.]” (People v. Hill (1998) 17 Cal.4th 800, 820 (Hill).) Also, failure to object does not preclude arguing on appeal deprivation of constitutional rights. (People v. Vera (1997) 15 Cal.4th 269, 277; People v. Saunders (1993) 5 Cal.4th 580, 592.)
Defendant acknowledges his trial attorney did not object and request an admonition as to every instance of prosecutorial misconduct raised on appeal. Nevertheless, defendant argues that his objections should be deemed preserved and addressed on the merits because objecting would have been futile and an admonition would not have cured the harm caused by the misconduct. (Hill, supra, 17 Cal.4th at pp. 820-821; People v. Arias (1996) 13 Cal.4th 92, 159 (Arias).) Defendant also argues the acts of misconduct individually and collectively violated his fundamental federal constitutional rights to due process, a fair trial, and confrontation. (People v. Vera, supra, 15 Cal.4th at p. 277; People v. Saunders, supra, 5 Cal.4th at p. 592.) Defendant also asserts that the trial court should have objected sua sponte to the misconduct. Defendant alternatively argues his trial attorney’s failure to object to prosecutorial misconduct constituted ineffective assistance of counsel.
Defendant asserts the prosecutor committed the following instances of misconduct during closing argument: (1) improper “Golden Rule” argument; (2) vouching for a key witness; (3) misleading the jury as to the burden of proof; (4) arguing facts not in the record; and (5) badgering defendant during cross-examination.
As to the first three categories of prosecutorial misconduct listed above, defense counsel failed to object on grounds of prosecutorial misconduct and/or seek a curative admonition, and therefore forfeited the objections on appeal. (People v. Stanley (2006) 39 Cal.4th 913, 952.) As to the fourth and fifth categories of misconduct, defendant objected in the trial court and the court sustained defendant’s objections. In any event, all of defendant’s prosecutorial misconduct claims fail on the merits and therefore we need not address defendant’s ineffective assistance of counsel contention. In every instance cited, misconduct either did not occur or was harmless, even absent an admonition.
B. Applicable Law on Prosecutorial Misconduct
A prosecutor’s conduct violates California law if it involves the use of deceptive or reprehensible methods to attempt to persuade the jury. (People v. Benavides (2005) 35 Cal.4th 69, 108.) It violates the United States Constitution “when it infects the trial with such unfairness as to make the conviction a denial of due process.” (People v. Morales (2001) 25 Cal.4th 34, 44.) “In either case, only misconduct that prejudices a defendant requires reversal [citation], and a timely admonition from the court generally cures any harm. [Citation.]” (People v. Pigage (2003) 112 Cal.App.4th 1359, 1375.)
C. Improper “Golden Rule” Argument
Defendant contends the prosecutor made an improper “Golden Rule” argument by urging the jury to view the crime through the eyes of the deceased. “It is true that ordinarily ‘a prosecutor may not invite the jury to view the case through the victim’s eyes, because to do so appeals to the jury’s sympathy for the victim.’ [Citations.]” (People v. Lopez (2008) 42 Cal.4th 960, 969-970; see also People v. Vance (2010) 188 Cal.App.4th 1182, 1192, 1198-1199 (Vance) [discussing the “Golden Rule” in depth]; Arias, supra, 13 Cal.4th at p. 160.)
Defendant contends the prosecutor committed misconduct when she made the following comment during closing argument: “[T]his man is fighting for his life. He had the abrasions to his knees. Showing that at some point he’s down on his knees. [¶]... Was Tony begging for his life? We’ll never know.” Defendant also objects to the prosecutor’s statement that “Tony was nothing more than a disabled gazelle. He was nothing more than the prey of the defendant who is the attacking lion in this case.”
With the exception of the query as to whether Rodriguez was “begging for his life, ” these comments do not constitute prosecutorial misconduct. They are within the realm of reasonable argument, based on the evidence presented at trial, and do not unduly appeal to the jury’s sympathy for the victim. “Prosecuting attorneys are allowed ‘a wide range of descriptive comment’ and their ‘“‘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.]” (People v. Martinez (2010) 47 Cal.4th 911, 957 (Martinez).) The downed gazelle metaphor merely alluded to evidence that Rodriguez was an unarmed, defenseless victim of defendant’s brutal attack.
Assuming the remark regarding Rodriguez begging for his life was an unsubstantiated appeal to sympathy for the victim, it was so brief in the entire context of the prosecutor’s argument that it does not amount to prejudicial misconduct. (Martinez, supra, 47 Cal.4th at p. 957; compare, Vance, supra, 188 Cal.App.4th at pp. 1193-1195, 1202-1203, 1206-1207 [prejudicial error occurred when prosecutor repeatedly told the jury that, when deciding the case, it should try to feel what the victim experienced when murdered, including his pain and suffering].) Further, the jurors were instructed not to let bias, sympathy or prejudice influence their decision, and we presume absent some indication otherwise they followed that instruction. (Martinez, at p. 957.) It is not reasonably probable that the prosecutor’s fleeting appeal to sympathy affected the outcome of the case. (Ibid.; People v. Watson (1956) 46 Cal.2d 818, 836.)
D. Vouching for a key witness
Defendant argues the prosecutor committed misconduct by improperly vouching for a key prosecution witness, Detective Marshall, and the Indio Police Department. Defendant also argues the prosecutor improperly interjected herself into the case.
(1) Vouching for Ability to Search Crime Scene
During closing argument, defense counsel argued Marshall and the police department were inept because Marshall failed to photograph defendant’s neck and the metal bar was not found at the scene. Also, the police failed to obtain DNA evidence from the screwdriver found in front of Rodriguez’s apartment. Marshall testified that it “slipped my mind” to take a photograph of the back of defendant’s neck, which defendant claimed was injured when Rodriguez hit him there with a metal pipe.
Defendant argues that during rebuttal, the prosecutor improperly vouched for Marshall and the police department by stating the following:
“[D]o you really want to believe that the entire Indio Police Department and Department of Justice are that retarded that they couldn’t find this [metal bar]? Are you kidding me? How many people were over there searching that scene? You saw how much blood there was. You don’t even have to be trained in crime scene analysis to go, ‘I see a lot of blood. I’m going to look for something that would have caused it.’ They are trained, and none of them found anything consistent with this.”
It is well established that a prosecutor commits misconduct by vouching or suggesting to the jury that he or she possesses factual information or knowledge about the case beyond the evidence adduced at trial. The impropriety consists in leading the jury to judge the case not on the basis of the evidence actually presented, but instead on the basis of some other information to which the prosecutor alone is privy and about which the jury remains uninformed. (People v. Earp (1999) 20 Cal.4th 826, 864; see also People v. Frye (1998) 18 Cal.4th 894, 971.) “When arguing to the jury, it is misconduct for a prosecutor to express a personal belief in the defendant’s guilt if there is a substantial danger that the jurors will construe the statement as meaning that the belief is based on information or evidence outside the trial record [citation], but expressions of belief in the defendant’s guilt are not improper if the prosecutor makes clear that the belief is based on the evidence before the jury [citation]. Similarly, ‘[r]eferring to the testimony and out-of-court statements of a defendant as “lies” is an acceptable practice so long as the prosecutor argues inferences based on evidence rather than the prosecutor’s personal belief resulting from personal experience or from evidence outside the record.’ [Citation.]” (People v. Mayfield (1997) 14 Cal.4th 668, 781-782 (Mayfield).)
Applying these principles, we conclude the above quoted statements do not constitute improper vouching. The prosecutor’s remarks merely suggest it was unlikely, based on the evidence, that Marshall and the police department did not search for the metal bar, and that, had there been a metal bar in the area of the crime scene, the police would have found it. The prosecutor never suggested that she knew her witnesses were telling the truth based on some undisclosed information she personally possessed but which was not presented at trial.
(2) Vouching for Marshall’s Veracity When Writing His Report
Defendant argues the prosecutor improperly vouched for Marshall’s credibility by indicating she believed Marshall wrote in his report that there was no mark on defendant’s neck. The prosecutor argued to the jury that she anticipated defendant would criticize Marshall for not photographing his injured neck. Defendant objects to the following statements the prosecutor made in addressing this concern:
“Alex Solis never saw a big old mark [on defendant’s neck] consistent with a stick or a pole or a bat or whatever he used. [¶] His mother never said she saw anything. Eddy Mendez never said he saw anything. [¶] Detective Marshall, who, in fact, viewed it, wrote in his report that there wasn’t a mark. And he – as you saw, there was video. If that mark was visible when he turned around on the video, don’t you think defense would have shown you that?”
Defense counsel objected on the ground “That’s not into evidence.”
The prosecutor’s comment about Marshall stating in his report there was no mark on defendant’s neck from being hit by a bar, does not constitute improper vouching. The statement is based on Marshall’s testimony that he wrote in his report that there was no mark on defendant’s neck. Furthermore, the court sustained defendant’s objection and admonished the jury not to consider it. Therefore the prosecutor’s comments do not constitute prejudicial error since it is presumed the jury followed the court’s directions and disregarded the argument. (People v. Osband (1996) 13 Cal.4th 622, 717 (Osband).) It is thus not likely the outcome would have been any different had the statements not been made. (People v. Davis (2009) 46 Cal.4th 539, 612 (Davis).)
(3) Vouching by Mentioning Prosecutor’s Friend’s Disbelief
During closing argument, the prosecutor stated that, when defendant initially described the weapon Rodriguez allegedly used to strike defendant, the weapon was a “stick.” Later, defendant described it as a “big metal stick, ” then as a “big metal bar, ” and finally as a “pole.” The prosecutor then argued: “And as I was telling a girlfriend of mine about this case over the weekend, she said to me as I’m telling her the story, she said, ‘I’m surprised it didn’t become a gun by the end of the interview.’ And we’ve discussed about the fact that that weapon was never found.”
Defendant argues the prosecutor’s remark regarding her friend’s comment constitutes improper vouching because it indicated that the prosecutor did not believe defendant’s contention that he was hit with a metal pipe and the prosecutor’s friend, who was not involved in the case, believed defendant was lying. But there is no mention as to whether the prosecutor believed defendant’s contention about the metal pipe. The prosecutor merely describes her friend’s reaction to being told the facts of the case. (Mayfield, supra, 14 Cal.4th at pp. 781-782.) The prosecutor is not implying knowledge of facts outside the record. Rather, she is simply stating her friend’s reaction based on the evidence before the jury, with the purpose of emphasizing that defendant changed his description of the weapon. (Ibid.)
Even assuming the prosecutor’s comments regarding her friend’s reaction constituted misconduct, it is harmless error. “Under the federal Constitution, a prosecutor commits reversible misconduct only if the conduct infects the trial with such ‘“unfairness as to make the resulting conviction a denial of due process.”’ [Citation.] By contrast, our state law requires reversal when a prosecutor uses ‘deceptive or reprehensible methods to persuade either the court or the jury’ [citation] and ‘“it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct”’ [citation].” (Davis, supra, 46 Cal.4th at p. 612.) Here, the prosecutor’s comments regarding her friend’s reaction did not so infect the trial as to require reversal.
(4) Vouching During a Hypothetical
Defendant contends the prosecutor committed misconduct by presenting the following hypothetical substituting herself for defendant, Marshall for Edgar P., and Dallas Erwood, the court reporter, for Rodriguez:
“[DiMARIA (prosecutor)]:... Now, if I’m the one on the ground... and Dallas is on top of me, and she’s got me down, and I’ve got Marshall behind me, I don’t want him throwing me a knife where maybe Dallas can get it.”
Defense counsel objected on the grounds of improper closing. The court overruled the objection and the prosecutor continued:
“I don’t want her to throw me a knife. If I don’t catch it, now Dallas has two weapons against me. I want to say, ‘Yo, Marshall, get this guy – get Dallas off of me.’”
Defendant argues that these statements constitute improper vouching because the prosecutor asked the jury to place itself in the shoes of the parties and imagine that the prosecutor, detective, and court reporter were playing the parts of the parties, with the court reporter in the position of the deceased. Defendant complains that the prosecutor further improperly vouched or suggested that she and Marshall were reasonable people.
There was no improper vouching. The prosecutor did not suggest that she possessed any factual information or knowledge about the case beyond the evidence adduced at trial. The hypothetical was based on evidence presented to the jury. It was not based on information to which the prosecutor alone was privy and about which the jury remained uninformed. (People v. Earp, supra, 20 Cal.4th at p. 864.) Furthermore, it was not reasonably likely the jury applied the prosecutor’s comments in an improper or erroneous manner. (People v. Frye, supra, 18 Cal.4th at p. 970.)
Defendant also seems to be arguing that, by using the names of the prosecutor, investigator, and court reporter, the hypothetical resulted in appealing to the jury’s sympathy for the victim. This is unlikely and does not constitute vouching. Even if use of names of the prosecutor, investigator, and court reporter in the hypothetical was improper, we cannot say it constituted prejudicial error. It is not reasonably probable that a result more favorable to defendant would have been reached without the use of such names in the hypothetical. (Davis, supra, 46 Cal.4th at p. 612.)
Defendant further complains in the following argument that the prosecutor again improperly interjected herself into the crime scene and offered her opinion as to what a reasonable person in defendant’s position would do:
“[DiMARIA:] See, in my hypothetical, I only shoot him once. And when he’s down and disabled, I call 911. First of all, I’m freaked out that I just almost got killed and robbed, and I do the reasonable thing.”
Defense counsel objected on the grounds of “inappropriate closing” and the “prosecutor imposing her own views.” The court sustained the objection. The prosecutor then discussed imperfect self-defense and gave hypotheticals on reasonableness, self-defense, and imperfect self-defense. The prosecutor stated in a hypothetical on imperfect self-defense that she is approached on Halloween by her neighbor’s teenage son, who is dressed like a gangster. The teenager has a water pistol. The prosecutor is scared and believes the teenager is going to rob her. Instead of pulling out her money, she pulls out a gun and shoots and kills the boy.
After giving this hypothetical, the prosecutor made the following comments:
“My actual belief was that I thought I was going to die. Now, reasonable belief. This is where the difference comes in. Another reasonable person, maybe Corporal Marshall, would have looked at that and said, it was pink, Lisa; it was a water--”
Defendant objected on the grounds of “inappropriate closing, ” and the court sustained the objection.
Defendant argues the prosecution committed misconduct by placing herself at the crime scene and offering her opinion as to what a reasonable person might do. We disagree. There was no prejudicial misconduct. The prosecutor’s hypotheticals, in which she portrayed herself as the hypothetical defendant, does not constitute improper argument since she is describing a hypothetical in which she is attempting to demonstrate reasonable versus unreasonable self-defense. The prosecutor was not actually placing herself at the scene of the crime and she was not stating her belief based on evidence outside the record. Even if the prosecutor’s hypothetical statements were improper, they were not unduly prejudicial. It is not likely the outcome would have been any different had she not referred to herself as the perpetrator in the hypothetical. (Davis, supra, 46 Cal.4th at p. 612.)
E. Misleading Regarding the Burden of Proof
Defendant also argues the above hypothetical statement, referring to Marshall as a reasonable person, misled the jury as to the reasonable doubt standard because the prosecutor personified herself and Marshall as reasonable people. But the statement was made in the context of a hypothetical and it was not likely the jury would have misunderstood it as anything other than that. There is no mention of the reasonable doubt standard or any indication that the prosecution was absolved from its burden of proof. Even if the prosecutor’s reference to Marshall as reasonable was improper, the remark was fleeting. It is not reasonably probable that the outcome of the case would have been any different had the statement not been made. (Davis, supra, 46 Cal.4th at p. 612.)
Defendant further argues that the prosecutor misled the jury as to the defense burden of proof by referring to a video not in evidence. Defendant objects to the prosecutor’s following argument:
“Detective Marshall, who, in fact, viewed it [the video], wrote in his report that there wasn’t a mark. And he – as you saw, there was video. If that mark was visible when he turned around on the video, don’t you think defense would have shown you that?”
The court sustained defendant’s objection to this statement on the ground the video was not in the evidence, and the court instructed the jury not to consider the statement. Defendant argues that, even though the court sustained the objection and ordered the statement stricken, the damage had been done. Defendant asserts that the prosecutor improperly shifted the burden of proof onto the defendant by suggesting that, had there been a mark on defendant’s neck, the defense would have shown evidence of the mark to the jury. But arguing the absence of material evidence does not constitute prosecutorial misconduct. (People v. Medina (1995) 11 Cal.4th 694, 755.)
F. Arguing Facts Not in the Record
Defendant argues that in the following argument the prosecutor improperly referred to facts not in evidence:
“Alex Solis never saw a big old mark consistent with a stick or a pole or a bat or whatever he used. [¶] [Defendant’s] mother never said she saw anything. Eddy Mendez never said he saw anything. [¶] Detective Marshall, who, in fact, viewed it, wrote in his report that there wasn’t a mark. And he – as you saw, there was video. If that mark was visible when he turned around on the video, don’t you think defense would have shown you that?” Defendant argues this constituted prosecutorial misconduct because the prosecutor argued facts not in evidence. Defendant claims there was no evidence defendant’s mother or stepfather (Eddy Mendez) saw a mark on defendant’s neck, and the video was not in evidence.
Since the trial court sustained defendant’s objection to this argument as referring to facts not in evidence and admonished the jury not to consider it, it is presumed the jury followed the court’s directions and disregarded the argument. (Osband, supra, 13 Cal.4th at p. 717.) Furthermore, the prosecutor’s comments do not constitute prejudicial error since it is not likely the outcome would have been any different had the statements not been made. (Davis, supra, 46 Cal.4th at p. 612.)
G. Badgering Defendant During Cross-Examination
Defendant contends that during defendant’s cross-examination, the prosecutor improperly badgered defendant, conveying to the jury that defendant was lying. Defendant objects to the following dialogue:
“A. [Defendant] Can you repeat your question?
“Q. [by DiMARIA] You really forget my question from just a second ago?
“MR. ROJO [defense counsel]: Objection. Argumentative.
“THE COURT: Sustained.
“Q. BY MS. DiMARIA: Is this a game to you?
“A. No. I’m trying.
“MR. ROJO: Objection. Argumentative, Your Honor.
“THE COURT: Sustained.”
“Q. Well, let me ask you a question. Don’t you think it would be reasonable for me to expect you to remember very important details of a murder that you’re charged with?
“MR. ROJO: Objection. Argumentative.
“THE COURT: Sustained.
“Q. BY MS. DiMARIA: Don’t you think it would be important
“MR. ROJO: Object. Same objection, Your Honor.
“Q. BY MS. DiMARIA: -- to remember?
“THE COURT: Sustained.”
Since the trial court sustained defendant’s objections to the prosecutor’s statements as argumentative, the jury likely understood the prosecutor’s questions were improper and should be disregarded. In addition, the court instructed the jury generally not to consider as evidence the attorneys’ statements and to ignore questions to which the trial court sustained an objection. It is presumed the jury followed the court’s directions and disregarded the argument. (Osband, supra, 13 Cal.4th at p. 717.) Furthermore, the prosecutor’s comments do not constitute prejudicial error since it is not likely the outcome would have been any different had she not made the statements. (Davis, supra, 46 Cal.4th at p. 612.)
Defendant further argues that, even if individual misconduct was not prejudicial, the prosecutor’s misconduct cumulatively constituted prejudicial error. We disagree. If there was misconduct, it was minor, fleeting, and infrequent. Cumulatively, such misconduct did not amount to prejudicial error.
IV
RESTITUTION
The People cross-appeal, challenging the restitution order. The People contend the trial court abused its discretion in ordering defendant to pay $6,200 in restitution, rather than $7,200, the amount the Claims Board paid from the restitution fund for Rodriguez’s funeral expenses.
During the sentencing hearing, the prosecutor told the trial court she had evidence substantiating the amount of $7,200 paid from the restitution fund. Defendant does not dispute that $7,200 was paid from the restitution fund. Defendant argues, however, that defendant’s family paid $1,000 of the funeral expenses. During the sentencing hearing, defense counsel told the trial court that he had “information” that defendant’s family paid for Rodriguez’s funeral. The prosecutor responded that she had never heard this, and she had a memo from the Claims Board claiming it paid $7,200 for Rodriguez’s funeral. Defense counsel stated that he believed the $7,200 was paid to Rodriguez’s former wife but Rodriguez’s family paid the funeral expenses. Defense counsel conceded that defendant’s family only paid $1,000 toward the cost of the funeral, not the entire amount.
Over the prosecution’s objection, the trial court ordered defendant to pay $6,200 to the Claims Board’s restitution fund under section 1202.4, subdivision (f)(1). The prosecution requested an evidentiary hearing on the restitution matter, which the trial court denied. The People contend the trial court should have ordered defendant to pay the entire amount of $7,200, paid by the Claims Board for funeral expenses, since there was no evidence presented justifying a lesser amount.
Section 1202.4, subdivision (f) provides: “[I]n every case in which a victim has suffered economic loss as a result of the defendant’s conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court.” (§ 1202.4, subd. (f).) Section 1202.4, subdivision (f)(4) further provides: “(A) If, as a result of the defendant’s conduct, the Restitution Fund has provided assistance to... a... derivative victim... the amount of assistance provided shall be presumed to be a direct result of the defendant’s criminal conduct and shall be included in the amount of the restitution ordered. [¶] (B) The amount of assistance provided by the Restitution Fund shall be established by copies of bills submitted to the California Victim Compensation and Government Claims Board reflecting the amount paid by the board and whether the services for which payment was made were for medical or dental expenses, funeral or burial expenses, mental health counseling, wage or support losses, or rehabilitation. Certified copies of these bills... together with a statement made under penalty of perjury by the custodian of records that those bills were submitted to and were paid by the board, shall be sufficient to meet this requirement.” (§ 1202.4, subd. (f)(4)(A)-(B).) It is settled law that, in the absence of any indication to the contrary, a trial court will be presumed to have known and followed applicable law. (Evid. Code, § 664; In re Julian R. (2009) 47 Cal.4th 487, 499-500; Ross v. Superior Court (1977) 19 Cal.3d. 899, 913-914.) We review restitution orders for abuse of discretion. (People v. Giordano (2007) 42 Cal.4th 644, 663.)
A victim restitution order, unlike a restitution fine, is not a form of punishment; rather, it is a civil remedy for crime victims. (§ 1202.4; People v. Harvest (2000) 84 Cal.App.4th 641, 647.) Accordingly, a victim restitution order may be predetermined, or determined for the first time, on remand. (Id. at p. 650.) A defendant has a right to a hearing to dispute the amount of a restitution order (§ 1202.4, subd. (f)(1)), and a restitution order must be based on substantial evidence. (People v. Thygesen (1999) 69 Cal.App.4th 988, 992-993.) A trial court abuses its discretion in fixing a restitution order where the order is not supported by substantial evidence. (Ibid.)
Based on the foregoing, we conclude that the restitution order is not supported by substantial evidence. Defendant did not provide any evidence justifying ordering less than the $7,200 amount paid from the restitution fund for Rodriguez’s funeral expenses. Although defense counsel indicated that his family paid $1,000 for funeral expenses, there was no evidence of this. The order therefore must be reversed, and the matter remanded to the trial court for an evidentiary hearing to redetermine the amount of the restitution award, under section 1202.4.
V
DISPOSITION
The $6,200 restitution order is reversed and the case is remanded to the trial court with instructions that the trial court conduct an evidentiary hearing to redetermine the amount of the victim restitution award under section 1202.4. In all other respects, the judgment is affirmed.
WE CONCUR: RICHLI ACTING P.J., KING J.