Opinion
D070638
07-19-2017
THE PEOPLE, Plaintiff and Respondent, v. HENRY JOSEPH VASQUEZ, Defendant and Appellant.
Doris M. LeRoy, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCS281288) APPEAL from a judgment of the Superior Court of San Diego County, Francis M. Devaney, Judge. Affirmed. Doris M. LeRoy, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Henry Vasquez of first degree burglary (Pen. Code, §§ 459, 460, subd. (a); count 1) and found true the special allegation that another person was present in the residence during the burglary. (Pen. Code, § 667.5, subd. (c)(21).) The jury also convicted him of felony vandalism. (Pen. Code, § 594, subds. (a) & (b)(1); count 3.) In a bifurcated proceeding, Vasquez admitted he had two strike prior convictions (Pen. Code, § 667, subds. (b)-(i)), two serious felony prior convictions (Pen. Code, § 667, subd. (a)(1)), and two prison prior convictions (Pen. Code, § 667.5, subd. (b)). The trial court sentenced Vasquez to a total prison term of 41 years to life.
On appeal Vasquez contends (1) the trial court abused its discretion by allowing the prosecutor to cross-examine him regarding his two prior offenses; (2) the trial court abused its discretion by allowing the prosecutor to question the defense psychiatric expert regarding the opinions expressed by the expert in other cases; (3) the court's instructions regarding the specific intent required for burglary were ambiguous or conflicting; and (4) the prosecutor committed misconduct during closing argument and his trial counsel rendered ineffective assistance by failing to object to the prosecutor's misconduct. We conclude otherwise and affirm the judgment.
FACTS
1. Prosecution Case
In August 2015, Kim Schildmeyer and members of her family were staying in a room at the Holiday Lodge Motel. Late at night, Schildmeyer had just turned out the lights when she heard loud banging on her motel room door, like someone was hitting it with a boot. She jumped up and looked out the peephole but did not see anyone. Schildmeyer cracked open the door and looked outside but still did not see anyone, although she did hear male voices above her. She closed the door and went back to bed, thinking someone had just come to the wrong door.
About 10 or 15 minutes later, Schildmeyer again heard loud banging on her door and used the peephole to look outside. She saw Vasquez, whom she had never seen before. He was shirtless, shaking and looked very upset. She opened the door about three or four inches and Vasquez said, "Give me the cell phone. I need a cell phone. Give me a cell phone." Schildmeyer replied she did not have a working cell phone and told Vasquez to go to the office to use their phone. He again demanded she give him her phone, saying he needed to call 911, but Schildmeyer again told him to go to the office. She then tried to close the door, but Vasquez resisted her efforts by sticking his foot in the opening and slapping against the door with two hands.
Despite his efforts, Schildmeyer and her daughter (who had by then joined Schildmeyer at the door) were able to push the door closed. It locked automatically. Vasquez kicked the door and threatened that someone would get hurt or killed if they did not open the door. He seemed very angry, and Schildmeyer feared their lives were in danger. She called the night clerk and told him someone was trying to break into their room. She also called 911.
Schildmeyer peeked outside to check on Vasquez's location and watch for the police to show up. She saw the night clerk (Miguel Torres) coming toward her room with a baseball bat. Schildmeyer came out of her room and spoke with Torres before she spotted Vasquez nearby. She identified Vasquez to Torres as the person who tried to enter her room. Vasquez angrily denied it was him and yelled at Schildmeyer, so she retreated back into her room. Torres told Vasquez the police were coming. Vasquez turned and began heading away, with Torres following behind.
Schildmeyer was worried about Torres's safety, so she looked out her motel room window and then stepped outside to see what was happening. She then spotted Vasquez coming back alone, heading directly toward her room. When Vasquez broke into a run, Schildmeyer ran back into her room. Believing that Vasquez might hurt them, she yelled to her family to get into the bathroom.
Looking out the peephole, Schildmeyer's daughter saw Vasquez break off part of a wooden fence outside and hold it like a baseball bat. She yelled for her mother to run and ran into the bathroom after her. As they shut the door to the bathroom, they heard the glass of the window shattering. When they heard Vasquez walking on the broken glass approaching the bathroom door, Schildmeyer again called 911.
Vasquez pounded on the bathroom door, demanding they open it and threatening that someone was going to die. Schildmeyer and her daughter used all their strength to push back against the door, but Vasquez soon kicked a hole in it. He reached his hand through the hole holding one of the nonworking cell phones they had in the room. Schildmeyer knocked the phone out of his hand but he picked it up and pulled it out of the bathroom.
Vasquez reached back through the hole and grabbed at the leg of Schildmeyer's daughter, so she stepped back. Vasquez then reached up through the hole and unlocked the door. He was able to open the door a couple inches but Schildmeyer and her daughter "pushed with all [their] might" against the door, trapping Vasquez's hand. Schildmeyer's son-in-law began hitting Vasquez's hand with a metal shower rod. Vasquez pulled his hand back, let out a moan, and the room went quiet. Schildmeyer stayed on the phone with 911 until police arrived. 2. Defense Case
Vasquez testified he was a former gang member and has struggled with methamphetamine dependence since he was 12 years old. He committed a residential burglary in 2000 for money and suffered a 2000 conviction for that residential burglary. In 2001 he went "into a house to rob some drug dealers," and pleaded guilty in 2002 to a robbery count.
Two days before the incident Vasquez had an argument with his girlfriend and she threatened he would "be sorry." He took the threat seriously because his girlfriend knew members of his former gang. He also relapsed that day by using methamphetamine, which caused him to experience paranoia and delusions.
Vasquez's girlfriend confirmed that, during their argument, she did threaten to send someone after him, but she denied knowing any gang members. She did not see him use or possess any drugs the day leading up to his arrest in this case.
Around 7:00 p.m. on the evening of the incident, Vasquez avoided an attempted kidnapping by gang members but lost his shirt in the process. After escaping, he made his way to a 7-Eleven store near the Holiday Lodge. He asked the employees there to call police, but they told him to leave. As he left, he was followed by two men, causing him to seek help at the Holiday Lodge Motel. When he found the office empty, he knocked on doors trying to find someone to call 911 for him. Schildmeyer was the only one to answer the door, but she told him to go to the office. He tried to stop Schildmeyer from closing her door because he panicked and feared being killed. He then saw the manager and asked him to call 911, but was told the manager was then on the phone to police and there was nothing they could do.
Because of his panic over the men who followed him to the parking lot, and because no one else was helping him, Vasquez returned to Schildmeyer's room. He broke her motel room window and entered room seeking help. Vasquez spotted a cell phone on the bed, but it was "locked" so he could not call 911 using that phone. He pounded on the bathroom door, asking the occupants to call 911. Getting no response, he then kicked a hole through the door and reached his hand through the hole to give them the cell phone. Vasquez said "Here, call 911," but someone in the bathroom knocked the phone out of his hand. He did not intend to hurt anyone, scare anyone, or steal anything. He gave up and left when he realized no one would help him.
When police arrived, Vasquez was outside holding a large fence post, breaking windows with it. He was uncooperative and had to be tased before being arrested. He did not tell police that he had been trying to summon them, nor did he tell police someone had been after him. Although an officer at the scene observed that Vasquez was agitated and sweating—symptoms consistent with being under the influence of a controlled substance—the officer agreed those same symptoms could also be attributable to running and being tased. The officer was unable to conduct a full evaluation or obtain a chemical sample because Vasquez was uncooperative.
Dr. Clark Smith, a forensic psychiatrist, reviewed the police reports in Vasquez's case and viewed the police officers' body camera recordings. He did not evaluate, or even speak with, Vasquez. He described the symptoms that attend a methamphetamine induced psychosis and opined Vasquez's behavior on the night of the incident reflected the severe agitation and paranoid delusions that would be consistent with such a psychosis. Dr. Smith did not see evidence that Vasquez had the intent to commit a crime that night; rather, it appeared to him that Vasquez was afraid and was asking for help.
DISCUSSION
1. Admission of Prior Offenses
Vasquez contends the trial court abused its discretion by allowing the prosecutor to cross-examine Vasquez regarding two prior offenses because they were too dissimilar to the charged burglary to have any relevance.
a. Pretrial Ruling
Before trial, the prosecutor moved to admit evidence that Vasquez committed two prior offenses, both for impeachment purposes and to prove Vasquez's intent in the charged case under Evidence Code section 1101, subdivision (b). At the in limine hearing on this motion, the prosecution explained the proffered evidence was the change of plea form in which Vasquez pleaded guilty to entering the home of Lucy Aloyiam in 2000 with the intent to commit larceny or a felony. In the second (2002) case, the proffered evidence was the transcript of a hearing at which Vasquez pleaded guilty to entering the home of Tina Black with a firearm and taking property from her immediate presence.
All further statutory references are to the Evidence Code unless otherwise noted.
Defense counsel opposed the motion, contending that no mention of those convictions should be permitted. She first argued those priors were inadmissible under section 1101, subdivision (a), and were too dissimilar to be admitted under section 1101, subdivision (b), or should be excluded under section 352. She alternatively asserted that, even if those convictions were to be admitted to impeach his veracity if he testified, the convictions should be "sanitized" by limiting the prosecution to showing Vasquez had been convicted of a crime of moral turpitude.
The court first ruled the prior convictions qualified as crimes of moral turpitude, and could be used to impeach Vasquez if he testified. Although the convictions would not be "sanitized," the court determined that the facts of the underlying offenses would not be germane for this purpose. Vasquez does not challenge this aspect of the court's ruling.
The court then analyzed the second purpose for which the prosecution sought to admit the prior offenses—as relevant evidence of intent under section 1101, subdivision (b). The prosecutor argued the prior offenses were admissible on the issue of Vasquez's intent when he broke into the hotel room here because Vasquez did not steal anything from the victims. He asserted that, because Vasquez entered with the intent to steal in the prior offenses, those crimes tended to show he entered with the intent to steal in the charged case.
After noting the prior offenses sounded like standard residential burglaries while the charged case was like "a horror movie," the trial court ruled the prior offenses were not similar enough to be admitted in the People's case-in-chief on the issue of Vasquez's intent under section 1101, subdivision (b). Although ruling the prosecution could not use the prior crimes in its case-in-chief, the court also cautioned that the defense might "open the door" to utilizing the evidence if, for example, the defense psychiatric expert opined that Vasquez "couldn't" form the requisite intent. The court also observed that, "[d]epending on how he words things" in his answers on direct examination, Vasquez might open the door to additional cross-examination (beyond the fact and nature of his prior convictions) regarding additional details of his prior crimes, but "it depends on how he says what he says . . . [a]nd you come sidebar to me, Mr. Ou [the prosecuting attorney], before . . . ."
b. Trial Evidence, Instructions, and Argument
Consistent with the court's pretrial ruling, the prosecution did not introduce any evidence of Vasquez's prior convictions in its case-in-chief. Vasquez elected to testify in his own defense and emphasized that his course of conduct over the entire episode was an effort to obtain the help, beginning at a 7-Eleven store and continuing thereafter at the motel.
Anticipating that his prior convictions would be admissible for impeachment purposes, Vasquez's testimony on direct examination included descriptions of the two incidents. He described the first offense as a residential burglary in 2000 "just for the profit of money," which he asserted was a "petty theft" that "[t]urned into burglary." Regarding the later offense, he testified he "[w]ent into a house to rob some drug dealers and got in trouble." Defense counsel later asked him, "Knowing that your past convictions involved people being inside their homes and you going in and trying to take things from them[,] [¶] . . . [¶] . . . why should the jury believe that that is not what you were trying to do this time?" Vasquez answered, "That is a . . . complete[ly] whole different situation. [¶] . . . [¶] . . . I was trying to save my own life [this] time," while the prior events were 15 years ago and he "was young, dumb, thought differently, acted differently, and just completely opposite."
Before commencing cross-examination, the prosecutor held an unreported sidebar conference with the court. The prosecutor then sought to discredit Vasquez's claim that he was "asking everybody for help" by playing a video showing Vasquez in the parking lot where there were passersby from whom he did not request help. Instead, the video apparently showed Vasquez chasing the people with a stick. The prosecutor then questioned Vasquez's claim that he went into the victim's hotel room seeking help by soliciting confirmation that, when he entered the homes of the prior victims, he was not seeking help but instead did so with the intent to steal or to commit a felony. He also clarified that the drug dealer Vasquez referred to was a woman named Tina Black, and not her 10-year-old daughter, and that Vasquez had entered Black's house with a gun.
Because both sides had now discussed the significance of Vasquez's prior convictions as bearing on his mental state when he entered the motel room, the trial court instructed the jury on the limited purpose for which the prior offenses evidence could be employed in assessing intent. In closing argument, the defense asserted that Vasquez was just trying to get help, particularly in light of his intoxicated state, and that because the evidence permitted the reasonable inference that such was his intent when he broke in, the law requires (among two reasonable conclusions) that the jury accept the one pointing to innocence rather than the one pointing to guilt. Defense counsel argued that all of Vasquez's actions, from approaching the victims the first time and trying to push his way in, to breaking windows and approaching others with the stick, to entering the motel room and kicking through the door, were attributable to his goal of drawing attention and getting police to respond to the scene, and his conduct was understandable when viewed through the prism of his methamphetamine ingestion and resulting paranoid delusions.
The court employed the standard instruction to explain that, as to the prior two offenses, "you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not the defendant acted in this case with the intent to commit theft or assault with force likely to produce great bodily injury or to make criminal threats during the burglary charged in count 1. [¶] In evaluating this evidence, consider the similarity or lack of similarity between the uncharged acts and this charged offense. [¶] Do not consider this evidence for any other purpose. [¶] Do not conclude from this evidence that the defendant has a bad character or is disposed to commit such crimes. [¶] If you conclude the defendant committed the uncharged acts, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of burglary. The People must still prove each charge and allegation beyond a reasonable doubt."
In rebuttal argument, the prosecutor noted the defense appeared to be relying on voluntary intoxication to rationalize Vasquez's conduct, but asserted that "[s]ometimes . . . the answer is simple. Some people are just flat mean," such as a person who would "go into a woman's home with her 10-year-old daughter and hold a gun to them and then blame them for being drug dealers." The prosecutor also told the jurors that, when evaluating Vasquez's claim of voluntary intoxication and its impact on his intent, they could also consider his prior convictions because "history tells us that when he enters somebody else's home he intends to steal or commit a felony."
c. Law and Analysis
In California, "[e]xcept as otherwise provided by statute, all relevant evidence is admissible." (§ 351.) One statutory limitation on admissibility is section 1101, subdivision (a), which "generally prohibits the admission of a criminal act against a criminal defendant 'when offered to prove his or her conduct on a specified occasion.' " (People v. Harrison (2005) 35 Cal.4th 208, 229.) However, section 1101, subdivision (b) permits evidence that a person committed another crime to be admitted when it is relevant to prove a material fact other than the person's character or disposition, such as motive, intent, plan, knowledge, identity, or absence of mistake or accident. (People v. Ewoldt (1994) 7 Cal.4th 380, 393, 402-403 (Ewoldt).) "The admissibility of such evidence turns largely on the question whether the uncharged acts are sufficiently similar to the charged offenses to support a reasonable inference of the material fact they are offered to prove." (People v. Erving (1998) 63 Cal.App.4th 652, 659-660, citing Ewoldt, at p. 393.)
Evidence of other crimes can provide circumstantial evidence from which intent may be inferred and, "[a]s with other types of circumstantial evidence, its admissibility depends upon three principal factors: (1) the materiality of the fact sought to be proved or disproved; (2) the tendency of the uncharged crime to prove or disprove the material fact; and (3) the existence of any rule or policy requiring the exclusion of relevant evidence." (People v. Thompson (1980) 27 Cal.3d 303, 315.) Vasquez concedes his intent was a material fact to be proved, and therefore we must examine whether the evidence of his prior offenses had a tendency to prove or disprove his intent, and whether there exists any rule or policy requiring the exclusion of that evidence.
In Ewoldt, our Supreme Court explained that prior misconduct can be relevant to proving a disputed material fact depending on the similarity between the circumstances of the prior acts and the charged offenses, and the degree of required similarity varies depending on the fact to be proved. (Ewoldt, supra, 7 Cal.4th at pp. 401-402.) "The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] '[T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act . . . .' [(Quoting 2 Wigmore, Evidence (Chadbourn rev. ed. 1979) § 302, p. 241.)] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ' "probably harbor[ed] the same intent in each instance." [Citations.]' [(Quoting People v. Robbins (1988) 45 Cal.3d 867, 879.)]" (Ewoldt, at p. 402.)
Even if the evidence would otherwise be admissible to prove intent, a trial court has discretion to exclude evidence "if its probative value is substantially outweighed by the probability that its admission will . . . create a substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (§ 352.) The undue prejudice section 352 " 'is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. . . . "[It] applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, 'prejudicial' is not synonymous with 'damaging.' " [Citation.]' " (People v. Lopez (2013) 56 Cal.4th 1028, 1059, disapproved on other grounds by People v. Rangel (2016) 62 Cal.4th 1192, 1216.)
A trial court's ruling on the admissibility of other crimes evidence is reviewed under the deferential abuse of discretion standard. (People v. Jones (2013) 57 Cal.4th 899, 930.) The trial court's decision "will be upheld unless it exercised its discretion in an arbitrary, capricious, or patently absurd manner." (People v. Thomas (2012) 53 Cal.4th 771, 809.)
Here, the trial court initially ruled that evidence of Vasquez's two prior offenses would not be admissible on the issue of his intent. He would have been entitled to, and the jury presumably would have received, a limiting instruction indicating that the prior crimes evidence could only be considered for purposes of impeachment. But the situation changed when defense counsel elicited Vasquez's testimony that the present case was a "complete whole different situation" from his two prior offenses because, unlike those cases, here he had an innocent intent when he broke into the motel room. In other words, it was Vasquez who invited the jury to consider the extent to which the two prior offenses cast light on his intent in entering the motel room. Having done so, he can hardly complain that the prosecutor was permitted to briefly cross-examine him regarding his two prior offenses, or that the court then instructed the jury on how to evaluate the evidence as it related to the issue of intent.
Even if consideration of the prior crimes evidence on the question of intent was not invited by Vasquez, we could not conclude that the trial court abused its discretion in allowing it to be considered for purposes of Evidence Code section 1101, subdivision (b). In this case, as on two prior occasions, Vasquez entered a dwelling. On each of the two prior occasions, he admitted he entered with the intent to steal or to commit a felony. Moreover, it appears that on each prior occasion, as here, he entered the dwelling undeterred by the fact that people were present inside the dwelling. Because Ewoldt has held the least degree of similarity between charged and uncharged acts is needed to receive prior crimes evidence on the issue of intent (Ewoldt, supra, 7 Cal.4th at p. 402), the trial court's decision to admit the evidence under section 1101, subdivision (b) was not arbitrary, capricious, or patently absurd.
Indeed, the evidence permits the conclusion that on each prior occasion he entered the dwelling believing only females were present inside, and the evidence here suggests that Vasquez may have been unaware that there were occupants of the motel room other than females.
Vasquez contends that his prior offenses were too dissimilar to be relevant to his intent in the charged case. Certainly, there may have been differences, but the ability of a defendant to identify alleged differences does not render the trial court's ruling an abuse of discretion. (People v. Jones, supra, 57 Cal.4th at p. 931.) "[S]uch distinctions [go] to the weight of the evidence and [do] not preclude the prosecution from introducing the evidence." (People v. Carter (2005) 36 Cal.4th 1114, 1148.) On this record, we cannot conclude the trial court abused its discretion in permitting limited cross-examination of Vasquez's claim that the prior convictions were a "complete whole different situation" from the present case. (Cf. People v. Coffman and Marlow (2004) 34 Cal.4th 1, 72 [prosecution may cross-examine to explain or rebut adverse testimony or inferences developed by defense examination and " ' "[i]t matters not that the defendant's answer on cross-examination might tend to establish his guilt of a collateral offense" ' "].)
Vasquez identifies three principal differences: he did not claim justification in the prior offenses, he was allegedly acting here while intoxicated on methamphetamine, and he was here engaged in irrationally destructive behavior. However, the first "distinction" merely reiterates the issue to be decided by the jury: should his disclaimer of culpable intent here be credited in light of his admission of culpable intent in the prior offenses? The second "distinction"—that here he was intoxicated on methamphetamine—ignores his admission that he used methamphetamine since he was 12 years old!.(6 RT 561, 563)! Whether he was actually under the influence of methamphetamine at the time of the two prior offenses is unclear. Thus, the only marked distinction is that he was more destructive and irrational here than in the prior offenses.
Vasquez argues that even if the court did not abuse its discretion by finding the evidence admissible under section 1101, subdivision (b), it was an abuse of discretion to admit the evidence under section 352 because its probative value was outweighed by its potential to prejudice the fact finder, to confuse the issues, or to consume undue time. We conclude the risk of undue prejudice was minimal because the prior offenses were not "particularly inflammatory compared to" the charged conduct. (People v. Lindberg (2008) 45 Cal.4th 1, 25.) The 2000 conviction involved a single victim, and the 2002 conviction, although involving an incident in which a 10-year-old girl may have been present, is no more inflammatory than the circumstances of the present case, in which a five-year-old child was present. Moreover, because Vasquez had been convicted of the prior offenses, the risk of undue prejudice was further diminished because the jury would not feel any need to punish Vasquez for his prior conduct. (Ewoldt, supra, 7 Cal.4th at p. 405.) Additionally, because the trial court properly ruled the prior convictions were admissible for impeachment purposes, the additional testimony about those crimes was only of minimal incremental impact. Finally, the court's instructions on the limited purpose of the evidence "eliminated any danger of 'confusing the issues or misleading the jury.' " (Lindberg, at pp. 25-26 [jury presumed to have followed court's limiting instruction].) We conclude the trial court did not abuse its discretion by allowing limited cross-examination on the prior offenses. 2. Cross-examination of Defense Expert
Vasquez next asserts the trial court abused its discretion by allowing the prosecutor to cross-examine defense expert Dr. Clark Smith about his opinions expressed in seven other cases, arguing the other cases were irrelevant to the validity of Dr. Smith's opinions in Vasquez's case. Even assuming Vasquez preserved this claim, we conclude the prosecutor's questions regarding Smith's prior cases were proper in suggesting why the doctor's opinion in this case should be disregarded because it was rendered without the type of data and preparation that ordinarily accompanied his opinions.
a. Background Facts
On cross-examination Dr. Smith testified that in 95 percent of the criminal cases in which he testified as an expert, he was a defense expert and was paid at the rate of $400 per hour for his services. The prosecutor also elicited Smith's admission that, although he had relied on Officer Drouhin's report in forming his opinion, Drouhin had been unable to conduct an evaluation of Vasquez or perform a variety of tests. Smith, who testified on direct that his opinion was based solely on the police reports and the body camera films of Vasquez's behavior at the hotel, also conceded he did not review the results of the blood tests taken at the hospital to which Vasquez was transported to determine if Vasquez had any traces of methamphetamine in his blood.
The prosecutor then sought to examine Dr. Smith about opinions he formed in seven other cases. The first case from 2003 involved "somebody entering somebody's house and attacking them with a knife," where the defendant was found to have a blood alcohol content of .04 plus methamphetamine in his blood. Smith did not remember the case, but did affirm he is often asked to opine on the possible impact on decisionmaking when there is methamphetamine in a defendant's blood system. In a second case from 2003, which Smith also could not recall, he testified in support of a claim of self-defense in which the medical examiner apparently found alcohol, cocaine, and Valium in the victim's system. The prosecutor quoted Smith as testifying that "people under the influence can exhibit a range of behaviors from mild intoxication to marked psychosis, agitation, and [violent] behavior."
The prosecutor next examined Dr. Smith about a 2008 case involving Estracio Navilla in which Smith, after examining Navilla and his medical records, opined that he suffered from a long-standing severe psychiatric disorder and chronic paranoid schizophrenia. The prosecutor asked Smith if he would be able to reach such an opinion "from personally interviewing that person and looking at his medical records," and Smith answered "[y]es." The prosecutor next examined Smith about a 2010 carjacking case in which the defendant apparently had a blood alcohol content of .24 and a 10-year history of mental issues, which led the doctor to opine that the defendant suffered from posttraumatic stress disorder and was likely to experience blackouts that would cause him not to remember his actions. Smith affirmed he has evaluated people with those symptoms and is able to opine as to whether someone is more likely than another to experience blackouts.
In a fifth case, which was tried in 2015 but Dr. Smith could not recall, the defendant had a large amount of methamphetamine in his blood. According to the prosecutor, Smith opined that "methamphetamine causes overstimulation, overloads the brain's capacity to handle information, causes the brain to shut down the production of adrenaline, that it can cause severe psychosis, confusion, distortion, reality distortion, and suggestibility." Smith agreed that sounded like an opinion "within the spectrum of something that [he] would opine." A sixth case involved a Ms. Duran, who claimed self-defense after she killed a man. The decedent had high levels of methamphetamine and amphetamine in his blood. Smith had apparently opined that (1) people under the influence of methamphetamine will act emotionally, rapidly, and unpredictably, (2) extended use can lead to paranoia and violent behavior, and (3) methamphetamine users can be sexually aggressive and actually believe that sex is consensual even when it is not. The final case was one in which he gave an opinion in a sexually violent predator proceeding, and in which Smith apparently opined that the prisoner was not likely to re-offend if released.
After surveying these cases, the prosecutor immediately noted that "in most of these cases that we talked about, there is some evidence of drugs, meth, or whatever, cocaine in the person's blood. And in some of these instances, you actually talked to the person, looked at his medical history and determined what it is about him, whether there is a mental deficiency or whether there is dependence on controlled substance. Those are the things you look for, right?" Dr. Smith agreed. The prosecutor then asked, "In this case you know nothing about what was in his blood at the time of his arrest?" and Smith conceded he had not seen any test results quantifying or even mentioning the amount of methamphetamine in Vasquez's blood in the medical records from the hospital. The prosecutor then asked, "[T]o determine whether somebody was indeed suffering from psychosis in the past, you actually interviewed people, right? In some of those cases I just asked you about?" Smith conceded he had interviewed some of them and that such an interview could be important to "get a sense of how often this person uses" or to learn "whether there [are] any mental problems that may exacerbate or attribute [sic] to the drug issue." The prosecutor then elicited Smith's admissions that he (1) had not interviewed Vasquez, (2) did not know Vasquez's mental history, (3) had "no idea" about Vasquez's tolerance levels for methamphetamine or his usage patterns (apart from Vasquez's own claims about how much he used), and (4) was unaware that a witness testified she was with Vasquez in the hours before the incident and had never seen him using methamphetamine
b. Analysis
" '[T]he scope of cross-examination of an expert witness is especially broad . . . .' [Citations.] 'A party "may cross-examine an expert witness more extensively and searchingly than a lay witness, and the prosecution [is] entitled to attempt to discredit the expert's opinion." ' " (People v. DeHoyos (2013) 57 Cal.4th 79, 123.) "An expert witness may be cross-examined as to 'the matter upon which his or her opinion is based and the reasons for his or her opinion.' [(Quoting § 721, subd. (a).)] The scope of cross-examination permitted under section 721 is broad, and includes examination aimed at determining whether the expert sufficiently took into account matters arguably inconsistent with the expert's conclusion." (People v. Ledesma (2006) 39 Cal.4th 641, 695.) When an expert's diagnosis relies heavily on "information provided by defendant . . . the prosecution [is] entitled to ask questions challenging the accuracy of that information." (People v. Seaton (2001) 26 Cal.4th 598, 681.)
A fair reading of the cross-examination does not, as Vasquez contends, show the prosecutor was improperly attempting to undermine Dr. Smith's credibility by calling into question the accuracy of his diagnosis in other cases, as was criticized by the court in People v. Buffington (2007) 152 Cal.App.4th 446. Instead, the prosecutor's questions were designed to compare and contrast the methodology used to reach (and factual underpinnings for) his opinions in other cases with what he relied on and how he reached his conclusions in this case: Smith admitted that (unlike other cases) he did not interview Vasquez; he admitted that, unlike other cases, he had no information suggesting Vasquez had a preexisting schizophrenic condition; he admitted that, unlike other cases, he had no blood tests verifying Vasquez was in fact under the influence of methamphetamine and indeed had not considered the evidence from a percipient witness that she had not seen Vasquez consuming methamphetamine. We conclude the questions involving the other cases were relevant for the jury to assess the reliability of Smith's opinions regarding Vasquez's mental state. 3. The Burglary and Assault Instructions
In Buffington, the court "beg[an] with the evidence that was admissible to show [the expert's] bias and then contrast that evidence with the evidence at issue here and explain why it was not relevant." (People v. Buffington, supra, 152 Cal.App.4th at p. 454.) The court acknowledged the fact the expert routinely reached conclusions favorable to the defense, and was well paid, was relevant and admissible because "[a]s a matter of common sense, the fact that a well-paid expert witness routinely offers opinions in favor of SVP defendants in a great number of cases has some tendency in reason to prove he is not being entirely objective in formulating his opinion." (Id. at p. 445.) However, the court found the cross-examination about his opinion in three particular cases favorable to the defense was not relevant to the credibility of his opinion in the present case unless the prosecution introduced contrary expert testimony suggesting he should have reached a different conclusion, because "[w]ithout such contrary expert testimony . . . the only thing the jury had to rely on in questioning Dr. Donaldson's opinion . . . was its own lay instinct." (Id. at p. 455.) Here, in contrast, the prosecution's cross-examination focused on how Dr. Smith reached his opinions in the prior cases.
Vasquez contends the trial court's instructions regarding the specific intent required to commit burglary, which were correct on their face, may have confused the jury insofar as the entry was based on his intent to commit the target crime of assault, which the court correctly instructed was a general intent crime. Vasquez acknowledges each instruction correctly stated the law as to the intent required for the different offenses, but asserts "ambiguity was introduced" because burglary was a specific intent crime while assault by means of force likely to produce great bodily injury was a general intent crime.
a. Background Facts
The trial court instructed the jury that the crime of burglary required specific intent, explaining that burglary "as charged in count[] 1 . . . require[s] what is called a specific intent or mental state. For you to find a person guilty of [burglary], that person must not only intentionally commit the prohibited act, but he must do so with a specific intent. And the act and specific intent required will be explained in the instructions for those crimes." The court, instructing specifically on the elements of burglary, explained that the prosecution had to prove beyond a reasonable doubt that Vasquez entered a building and, "when he entered . . . he intended to commit theft or assault with force likely to produce great bodily injury or to make criminal threats. [¶] To decide whether the defendant intended to commit theft or assault with force likely to produce great bodily injury or to make criminal threats, please refer to the separate instructions I'm going to give you that will define the elements of those crimes. [¶] . . . [¶] A burglary was committed if the defendant entered with the intent to commit theft or assault with force likely to produce great bodily injury or to make criminal threats as long as he entered with intent to do so. The People do not have to prove that defendant actually committed theft or assault with force likely to produce great bodily injury or made criminal threats." The instruction cautioned that the jury could not find Vasquez guilty of burglary "unless you all agree that he intended to commit one of those crimes at the time of entry to the building [but] [y]ou do not all have to agree on which one of those crimes he intended."
The court then explained that it had "identified what we call the target offenses that the defendant had to intend to commit when he entered. Let me define those offenses." It went on to instruct on the various target offenses, including the assault offense: "The following are the definitions of the elements of assault with force likely to produce great bodily injury. [¶] 1A, a defendant does an act that by its nature would directly and probably result in the application of force to a person; [¶] 1B, the force used was likely to produce great bodily injury; [¶] 2, the defendant does the act willfully; [¶] 3, when a defendant acted, he was aware of facts that would lead a reasonable person to believe that his act by its nature would directly and probably result in the application of force to someone; [¶] and, 4, when defendant acts, he has the present ability to apply force likely to produce great bodily injury to a person. [¶] Someone commits an act willfully when he or she does it willingly or on purpose. It's not required that he or she intend to break the law, hurt someone else, or gain any advantage." Finally, the court instructed that a "burglary in this case was committed if the defendant entered with intent to commit theft or assault with force likely to produce great bodily injury or to make criminal threats. The defendant does not need to have actually committed theft or assault with force likely to produce great bodily injury or made criminal threats as long as he entered with intent to do so. The People do not have to prove the defendant actually committed theft or assault with force likely to produce great bodily injury or made criminal threats."
Vasquez did not object to the court's instructions or request clarifying language.
b. Analysis
A trial court has a sua sponte duty to instruct the jury on the general principles of law relevant to the issues raised by the evidence. (People v. Rogers (2006) 39 Cal.4th 826, 866.) When a defendant is charged with burglary, a court should instruct on the elements of the offenses underlying a burglary charge because the failure to instruct on the underlying offenses might "allow[] the triers of fact to indulge in unguided speculation as to what kinds of criminal conduct are serious enough to warrant punishment as felonies and incorporation into the burglary statute." (People v. Failla (1966) 64 Cal.2d 560, 564; People v. Rathert (2000) 24 Cal.4th 200, 204 ["In a burglary prosecution, complete and accurate jury instructions include the definition of each felony the defendant is alleged to have intended to commit upon entry into the burglarized structure."].)
An appellate court independently reviews the correctness and adequacy of a trial court's instructions, examining "whether the trial court 'fully and fairly instructed on the applicable law.' " (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) We consider the instructions as a whole and presume the jurors are intelligent persons, capable of understanding and correlating the instructions given. (Ibid.) The instructions " 'should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.' " (Ibid.) "Once the trial court adequately instructs the jury on the law, it has no duty to give clarifying or amplifying instructions absent a request." (People v. Hernandez (2010) 183 Cal.App.4th 1327, 1331.)
Vasquez contends the instructions "muddied the waters," and suggests that the specific intent required for burglary was somehow excused by the general intent language contained in the assault instruction. We disagree. The burglary instruction specified that the crimes charged required the "union . . . of act and wrongful intent," that burglary "require[s] what is called a specific intent," and that the jury could only find Vasquez guilty if he intentionally committed the prohibited act and did so with a specific intent. Instructing specifically on the elements of burglary, the court explained that the prosecution had to prove beyond a reasonable doubt Vasquez committed the actus reas accompanied by the attendant mens rea (i.e., a specific intent to commit one of three underlying offenses), but that there was no requirement he actually committed any of three underlying offenses. There was nothing in the standard instructions given by the court from which jurors, as intelligent persons capable of understanding and correlating the instructions given (People v. Ramos, supra, 163 Cal.App.4th at p. 1088), would understand they could convict Vasquez of burglary without finding he specifically intended to commit a further qualifying offense when he entered the room.
Moreover, any theoretical possibility of ambiguity was mitigated by the prosecutor's argument. In his closing, the prosecutor emphasized that the critical inquiry facing the jury was whether Vasquez had the requisite specific intent (to commit an underlying offense) when he entered, and that whether he ultimately committed additional acts constituting the underlying offense (for which instructions as to Vasquez's general intent might become relevant) was not germane to their assessment of his guilt of burglary. (See, e.g., People v. Garceau (1993) 6 Cal.4th 140, 189 ["Viewed singularly or collectively, the standard instructions given by the trial court were not confusing. Moreover, any theoretical possibility of confusion was diminished by the parties' closing arguments."], disapproved on other grounds by People v. Yeoman (2003) 31 Cal.4th 93, 117-118.)
The prosecutor argued: "The important thing to remember when you look at this instruction, just to avoid any confusion, is that the charge in this case is burglary. The charge in this case is in the title. It's burglary. We're talking about burglary, whether he had the intent to commit those crimes. The trio: theft, assault, threats. [¶] Okay. So it's important to note that when you are looking at those instructions, you might say, well, he didn't cause any assaults with any great bodily injury at all. Remember, the charge—he's not charged with assault. He's charged with burglary. The defendant does not need to have actually committed the trio [of] theft, assault or threats, as long as he entered the building with the intent to commit one of those offenses. So . . . you're not looking for the completion of one of those offenses at this point. You're just looking at what was his intent when he entered that building that night."
We are unpersuaded by Vasquez's attempt to analogize the instructions given here to the instructional defect addressed by the courts in People v. Beck (2005) 126 Cal.App.4th 518 and People v. Jeter (2005) 125 Cal.App.4th 1212 (Jeter). In Beck, the defendant was charged with attempted murder and the court instructed that attempted murder required the defendant to have committed the actus reus while " 'harbor[ing] express malice aforethought, namely, a specific intent to kill unlawfully another human being,' " which the Beck court concluded expressed with "sufficient clarity the requirement that attempted murder requires the specific intent to kill." (Beck, at p. 522.) However, immediately after giving the correct attempted murder instruction, the Beck court noted the trial court's instructions had then "reintroduc[ed] the concept of implied malice and inform[ed] the jury that either express or implied malice would 'establish the mental state of malice aforethought.' " (Id. at pp. 522-523.) The prosecutor exacerbated the problem by arguing implied malice was sufficient to find attempted murder. (Id. at pp. 523, 525.) The Beck court concluded the instructional error required reversal because the jury, once it concluded the defendant committed the requisite act, could have concluded he was guilty even if the requisite act was unaccompanied by the specific intent required for attempted murder. (Id. at p. 525.)
Similarly, in Jeter, this court first concluded that a charged violation of Penal Code section 4500, assault by a life prisoner, requires the same type of mental state as murder, i.e. malice aforethought. (Jeter, supra, 125 Cal.App.4th at p. 1216.) Although the jury in Jeter was correctly instructed on what constituted malice aforethought, it was also instructed on the elements and concepts relating to assault using CALJIC 9.00 (which specified " 'an assault does not require an intent to cause injury to another person, or an actual awareness of the risk that injury might occur to another person' "), and was also given the simple malice instruction permitting a finding of malice if there is a " 'wish to vex, . . . annoy or injure another person, or an intent to do a wrongful act.' " (Jeter, at pp. 1216-1217.) This court concluded the jury was given irreconcilably conflicting instructions, some of which required the jury to find the actus reus was accompanied only by general intent, but others requiring the jury to find the actus reus was accompanied by the specific intent of malice aforethought, and reversal was required because it was impossible to tell which standard was applied by the jury. (Id. at pp. 1217-1218.)
Unlike Beck and Jeter, the jury here was not instructed Vasquez could be found guilty if, at the time he committed the actus reus for burglary (the entry into the room), he had either the specific intent to commit an underlying offense or merely the general intent to commit the wrongful act of entering. Instead, the jury was instructed, and the prosecutor's argument confirmed, that it could only find Vasquez guilty if at the time he entered he had the specific intent to commit additional distinct criminal offenses. The mere fact the court also explained that Vasquez, after entering, could have committed one of those additional criminal offenses without harboring a specific intent did not "excuse" the jury from determining, as the court instructed, whether he possessed the requisite specific intent to commit those additional criminal offenses when he entered the room, as would be necessary to find him guilty of the burglary count. 4. Prosecutor's Closing Argument
Vasquez finally contends he was deprived of effective assistance of counsel because his attorney did not object when the prosecutor allegedly committed misconduct during closing argument (by referring to facts not in evidence and by mischaracterizing the law), and there is a reasonable probability that but for his counsel's failings the result of the proceeding would have been different.
During rebuttal argument, the prosecutor made three statements that Vasquez claims mischaracterized the law and adverted to facts not in evidence. All of the purported "improper" references concern his 2002 guilty plea to a charge of burglary in which he admitted that he personally used a firearm. As previously noted, Vasquez testified that the 2002 conviction occurred because, while armed with a gun, he "[w]ent into a house to rob some drug dealers and got in trouble." Vasquez complains about the prosecutor's statement:
"Why would somebody do it? Why would somebody go into a woman's home with her 10-year-old daughter and hold a gun to them and then blame them for being drug dealers? Got to be high. Got to be out of your mind to treat somebody like that. Sometimes the answer is people are just flat mean. Sometimes people . . . just straightout, flat-out have evil intentions. Evil intentions. Period."He also complains the prosecutor later mentioned the daughter by name.
On appeal, Vasquez contends this statement by the prosecutor "mischaracterized the law" by implying the jury could consider his character when assessing his guilt in this proceeding. Vasquez also asserts there were no facts supporting the express statement that he "held a gun to them" or the reference to the daughter's name, and no evidence supporting the "implied" statement the mother was not actually a drug dealer.
a. Applicable Law
"The applicable federal and state standards regarding prosecutorial misconduct are well established. ' "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.' " ' [(Quoting People v. Gionis (1995) 9 Cal.4th 1196, 1214.)] 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.' " ' [(Quoting People v. Espinoza (1992) 3 Cal.4th 806, 820.])" (People v. Samayoa (1997) 15 Cal.4th 795, 841.)
"[P]rosecutors have wide latitude to draw inferences from the evidence presented at trial, [but] mischaracterizing the evidence is misconduct. [Citations.] . . . [However,] the line between permissible and impermissible argument may sometimes appear unclear . . . ." (People v. Hill (1998) 17 Cal.4th 800, 823.) A prosecutor can also commit misconduct if he or she misstates the applicable law. (People v. Boyette (2002) 29 Cal.4th 381, 435.)
Vasquez concedes his counsel did not object to any of the claimed factual inaccuracies or the purported mischaracterization of the law, and a defendant ordinarily forfeits appellate review of claims of prosecutorial misconduct absent a timely and specific objection and request for an admonition or curative instruction. (People v. Samayoa, supra, 15 Cal.4th at p. 841.) "Additionally, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." (Ibid.) Vasquez urges, however, that we may reach the claims because the failure to object deprived him of effective assistance of counsel.
We recognize this "is only the general rule" (People v. Hill, supra, 17 Cal.4th at p. 820), and we may excuse the necessity of either a timely objection and/or a request for curative admonition if either would be futile, or if an admonition would not have cured the harm caused by the specified misconduct. (Ibid.) However, Vasquez does not suggest on appeal that either exception applies here.
"To establish a claim of ineffective assistance of trial counsel, a defendant must show by a preponderance of the evidence that the attorney's performance fell below an objective standard of reasonableness under prevailing professional norms, and that there is a reasonable probability that, but for counsel's conduct, the result of the proceeding would have been different." (People v. Mincey (1992) 2 Cal.4th 408, 449.) On the first component of whether counsel's performance was deficient, "we exercise deferential scrutiny. [Citations.] The appellant must affirmatively show counsel's deficiency involved a crucial issue and cannot be explained on the basis of any knowledgeable choice of tactics." (People v. Montoya (2007) 149 Cal.App.4th 1139, 1147.) "Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a 'strong presumption that counsel's conduct falls within the wide range of professional assistance.' " (People v. Lucas (1995) 12 Cal.4th 415, 436-437.) The deference we accord to counsel's tactical decisions means courts "should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight." (People v. Scott (1997) 15 Cal.4th 1188, 1212.) Because Vasquez's claim here is based on the failure to object, we must also be cognizant that "[a]n attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel" (People v. Kelly (1992) 1 Cal.4th 495, 540), including failing to object to a prosecutor's closing argument. (See, e.g., People v. Williams (1997) 16 Cal.4th 153, 221-224.)
On the second prong, a defendant must establish prejudice and, generally, the defendant must affirmatively prove prejudice by showing the reasonable probability that but for counsel's unprofessional error, the result of the proceeding would have differed. A reasonable probability is one sufficient to undermine confidence in the outcome. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) "[T]his second prong . . . is not solely one of outcome determination. Instead, the question is 'whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.' " (In re Harris (1993) 5 Cal.4th 813, 833.)
b. Alleged Misstatements of Law
Against these standards, Vasquez has not shown that his counsel's failure to object to the identified claims of misconduct deprived him of effective assistance of counsel. He claims the statement mischaracterized the law by inviting the jurors to consider his character for having "evil intentions" and being "mean" in deciding whether he committed the instant crimes, which is the precise use for which prior crimes is improper under section 1101, subdivision (a). Viewing the statements in the context of the argument as a whole (see People v. Gonzalez (1990) 51 Cal.3d 1179, 1224, fn. 21 [when assessing claims of prosecutor misconduct during closing argument " 'arguments of counsel . . . must be judged in the context in which they are made' "] ), we do not believe there is a reasonable likelihood the jury understood the prosecutor's argument (cf. People v. Lucas, supra, 12 Cal.4th at p. 475) to suggest that the jury should consider Vasquez's character for having "evil intentions" and being "mean" in deciding whether he committed the charged offense because of his propensity to commit crimes, which is the purpose that section 1101, subdivision (a), proscribes. (See generally People v. Villatoro (2012) 54 Cal.4th 1152, 1170-1171 (conc. & dis. opn. of Corrigan, J.).) To prove an evil intent—the intent to steal—was precisely why the prior offenses were admissible. Moreover, the comments in rebuttal merely noted that the defense appeared to argue Vasquez's conduct was explicable because he was in fact intoxicated, and the prosecutor was urging the jury not to be misled into assuming intoxication was the only factual explanation that made Vasquez's conduct understandable. Accordingly, Vasquez's counsel was not ineffective in failing to object that the prosecutor's argument mischaracterized the law.
The prosecutor's argument, in context, was that: "It's human nature to want answers, to want an explanation when people do awful, terrible, unspeakable things to other people. It's natural that we want some kind of explanation. We want some kind of answer why did he do it. Was he high? Was he crazy? There's got to be some explanation. Why did he do it? You look for those things. And you open up the paper and you read the stories there. There is all kinds of crazy things reported there. You ask yourself how could somebody rob a little old lady at the ATM. Why would somebody do that. Why would somebody do such a mean thing to somebody else. Must have been high. Must have been out of his mind. Must have been crazy to do such a thing. Sometimes you forget there isn't always an answer like that. But sometimes, and most of the time, the answer is simple. Some people are just flat mean. Bottom line. [¶] Why would somebody do it? Why would somebody go into a woman's home with her 10-year-old daughter and hold a gun to them and then blame them for being drug dealers? Got to be high. Got to be out of your mind to treat somebody like that. Sometimes the answer is people are just flat mean. Sometimes people . . . just straight-out, flat-out have evil intentions. Evil intentions. Period." --------
Even assuming the prosecutor's argument could have been construed as mischaracterizing the law, we are unconvinced Vasquez is entitled to reversal for ineffective assistance of counsel because it is not reasonably probable the result of the proceeding would have differed had counsel objected. (Cf. People v. Barnett (1998) 17 Cal.4th 1044, 1177.) Had there been a timely objection, Vasquez does not suggest that the court's remedy—to give a curative admonition reminding the jury of the proper purpose to which the evidence could be considered—would not have sufficed to remedy any perceived harm. (Cf. People v. Tate (2010) 49 Cal.4th 635, 693 [curative admonition was adequate to cure harm from misconduct]; People v. Bell (1989) 49 Cal.3d 502, 538 [alleged misconduct waived because "[h]ad counsel believed the jury might misunderstand the prosecutor's meaning, . . . the misleading aspect of the argument . . . could have been cured by admonition]; People v. Clark (2011) 52 Cal.4th 856, 960 [failure to object and request admonition excused only where admonition would not cure the harm].) Indeed, the substance of the curative admonition the jury would have received had Vasquez's counsel timely objected was given to them by the prosecutor himself when he later argued:
"[The last thing I think you ought to consider when you're determining voluntary intoxication and his intent for these crimes is you ought to consider his priors. You've got to consider his priors. And the judge gave you a very specific instruction on how to use that information. And I want to address that briefly. [¶] . . . [¶] . . . according to this instruction, you can't use this information to say he's a bad guy. You can't do that. You can't use this information to conclude that he has a bad character, is [dis]posed to commit crimes. The instruction is very clear on that. [¶] But what can you do, the instruction goes on to say: you may, but you don't have to, but you may consider that evidence for this limited purpose to determine whether or not the defendant acted in this case with intent to do that trio of crimes for the burglary count. You can use the evidence of his priors for this limited purpose."Because we are unconvinced it is reasonably probable the result of the proceeding would have been more favorable had the court given the same curative admonition given by the prosecutor, we reject Vasquez's ineffective assistance of counsel claim insofar as it is based on the failure to object to the alleged mischaracterization of the law.
c. Alleged Reference to Facts Not in Evidence
Vasquez alternatively claims there was misconduct in the prosecutor's reference to facts not in evidence. However, the first example he cites—the prosecutor's statement Vasquez entered Black's home and "[held] a gun to them"—had evidentiary support in Vasquez's own testimony he entered the home with a gun to "rob some drug dealers." The fact he entered the home with a gun to effectuate the robbery permits the inference he employed the tool he brought with him, and it is not misconduct to argue "an inference fairly supported by [the] testimony." (People v. Padilla (1995) 11 Cal.4th 891, 941, disapproved on other grounds by People v. Hill, supra, 17 Cal.4th at p. 823, fn. 1.) Because the statement was not misconduct, counsel was not ineffective in failing to object.
Vasquez's second assertion—that his counsel should have objected to the prosecutor's implication the mother was not a drug dealer—is even less meritorious, because the statement cannot reasonably be read to convey that implication. We do not read the statement as suggesting the victim was not in fact a drug dealer; rather, the prosecutor sought to characterize Vasquez's testimony that the victim was a drug dealer as (in the prosecutor's view) an effort to minimize Vasquez's culpability by gratuitously besmirching the victim.
Vasquez's final claim—the mention of the daughter's first name—was a reference to a fact not in evidence that transgressed the limitations on proper argument by the prosecutor, but we are unpersuaded the failure to object shows Vasquez was deprived of effective assistance of counsel. This reference was so de minimus that there is no reasonable probability the result of the proceeding would have been different had his counsel objected.
For all the foregoing reasons, we conclude Vasquez's claims of prosecutorial misconduct are without merit, he has not properly preserved those claims, and/or he is not entitled to reversal based on alleged ineffective assistance of his counsel in failing to preserve such claims.
DISPOSITION
The judgment is affirmed.
/s/_________
DATO, J. WE CONCUR: /s/_________
NARES, Acting P. J. /s/_________
O'ROURKE, J.