Opinion
A127271
09-09-2011
THE PEOPLE, Plaintiff and Respondent, v. REGINALD WEAVER, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Contra Costa County Super. Ct. No. 090782-4)
This is an appeal from final judgment following the conviction by a jury of defendant Reginald Weaver for the felony offense of inflicting corporal injury on a cohabitant and the misdemeanor offenses of trespass and child endangerment. In challenging the judgment, defendant contends the trial court improperly failed to instruct the jury that his out-of-court oral admissions should be viewed with caution and improperly permitted the prosecutor to call him as a rebuttal witness. He further contends the prosecutor engaged in misconduct by repeatedly misinforming the jury regarding the reasonable doubt standard and by eliciting inadmissible testimony regarding the victim's involvement with a battered women's organization. For reasons set forth below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On October 6, 2009, an amended information was filed alleging that defendant had committed the offenses of inflicting corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)) (count one); first-degree residential burglary (Pen. Code, § 459/460, subd. (a)) (count two); making criminal threats (Pen. Code, § 422) (count three); and misdemeanor child endangerment (Pen. Code, § 273a, subd. (b)) (count four). The information further alleged defendant had served two prior prison terms within the meaning of section 667.5, subdivision (b). A jury trial began October 6, 2009, at which the following evidence was presented.
Unless otherwise stated, all statutory citations herein are to the Penal Code.
I. The Prosecution's Case.
L.D., the alleged victim, had a turbulent 26-year relationship with defendant. Although they never married and mostly lived apart, L.D. and defendant had four children together: (1) A.W. (21 years old), (2) T.W. (20 years old), (3) D.W. (16 years old), and (4) S.W. (six years old).
A. The Charged Offenses.
Late in the evening on June 18, 2009, defendant visited L.D. at her residence, intending to spend the night. L.D. and defendant had recently renewed their relationship after a six-year separation. Both L.D. and defendant had consumed alcohol that evening, and an argument began after defendant examined L.D.'s call log on her cellular telephone and accused her of drinking or having sex with a male friend of D.W.'s. This prompted L.D. to check defendant's cellular phone and notice that another of defendant's girlfriends, Cheryl, had called.
About this time, D.W., who had a "terrible" relationship with defendant, came home and asked him: "What the fuck are you doing here?" According to L.D., this led to "crazy" arguing between D.W. and defendant until L.D. told them both to stop. However, father and daughter continued to argue, even while D.W. was talking to her friend, H., on the telephone. D.W. heard defendant say he was going to "slap the fuck" out of L.D., so she hung up the phone and followed him into L.D.'s bedroom. Finally, L.D. told defendant to leave. Defendant refused, at which point he punched L.D. several times in the head and called her a "fucking bitch."
D.W., who had seen defendant punching L.D., tried to intervene while L.D. ran to the bathroom, attempting to call 911. Defendant followed her to the bathroom, breaking open the door and continuing to hit her even as she moved to another bathroom. D.W. again tried to help her mother and some of defendant's punches struck her. Eventually, defendant left the residence. Before doing so, D.W. heard him say: "I don't need this shit."
Police officers later came to the residence and photographed L.D.'s injuries. L.D. declined the officers' offer to call an ambulance for her. The officers stayed a few hours, interviewing L.D. and D.W. and inspecting the residence.
H., D.W.'s friend, came to the residence to stay with the women while they were interviewed by police. Then, shortly after the police officers left, L.D. heard a loud noise in the kitchen and, after running upstairs to get S.W., returned to the kitchen to find H. with his foot on defendant's neck. L.D. also found the kitchen's outer sliding glass door shattered and the entire kitchen in disarray.
According to D.W., she saw defendant slam into the sliding glass door, shattering it. Defendant then said to her: "Bitch, you're dead," and chased her, which prompted H. to wrestle him to the floor. D.W. ran to a neighbor's house to call 911, the tape of which was played for the jury. She later returned to find the kitchen in complete disarray.
B. Prior Offenses.
On June 15, 2001, L.D. took D.W., then seven or eight years old, to her place of employment. During a break, L.D. stepped outside and talked to the husband of one of her co-workers. Defendant, who had been driving by, got out of his car and accused L.D. of cheating on him, demanding to know "Is this who you are . . . screwing?" Defendant then punched L.D. in the head several times, requiring her to seek treatment at the hospital. L.D. later reported the incident to police. Evidence relating to this incident was admitted pursuant to Evidence Code section 1109 as relevant to prove defendant's propensity to engage in domestic violence.
About nine months later, on March 3, 2002, L.D. and defendant had an argument at her residence, during which he picked up a large crystal vase and threw it at her. The vase shattered after hitting the wall, and glass shards covered the floor. As the argument continued, T.W., the couple's daughter, tried to intervene, angering defendant, who then began to beat his daughter with his belt. T.W. fell to the ground, cutting her legs on the glass shards as defendant continued to strike her. Eventually, defendant left and L.D. and T.W. called the police from a neighbor's house.
When the March 3, 2002 incident occurred, D.W. was home with L.D. and T.W., and was very scared. D.W. testified at trial that she believed defendant was going to kill everyone in the house. The jury was instructed to consider evidence of the March 3, 2002 incident for the limited purpose of proving D.W.'s state of mind at the time the charged offenses were committed.
In October 2002, three days after S.W.'s birth, defendant visited L.D.'s residence. L.D. and D.W. talked to defendant through the locked screen door and an argument ensued. Defendant then turned to D.W., stating: "Do you love your daddy? Please forgive me for what I'm about to do." T.W. ran to grab S.W. while A.W. picked up a poker from the fireplace. Defendant, who did not enter the residence, was arrested later that night. As with the March 3, 2002 incident, evidence of this incident was admitted for the limited purpose of proving D.W.'s state of mind at the time the charged offenses were committed.
Defendant had no contact with L.D. for the six year period following the October 2002 incident until December 2008.
II. The Defense Case.
A. The Charged Offenses.
In late 2008, defendant and L.D. resumed their relationship after a six-year interruption. At this time, defendant was living in Point Richmond. He often spent time at L.D.'s residence, and the couple occasionally argued. When this occurred, defendant would immediately leave the house so the argument would not escalate.
On June 18, 2009, defendant spoke with L.D. by telephone and believed she sounded intoxicated. S.W. told him she had not eaten that day, so defendant went to L.D.'s residence to feed his daughter about 9:30 p.m. He fed S.W. and talked to L.D., at which point D.W. arrived and she and defendant began to argue. Defendant acknowledged having consumed a few drinks that night, but denied being intoxicated.
A short time later, L.D. came out of her bedroom smelling of alcohol and asked defendant to call T.W. When defendant took L.D.'s telephone, he noticed she had earlier called a number of men, prompting him to call a female friend rather than T.W. This angered L.D., who tried to grab the phone. Defendant responded by pushing L.D., who fell to the floor. The couple continued to argue, pushing one another as they walked through the hall to the bathrooms.
Defendant initially claimed to have been "upset and agitated" but not angry at L.D., but later acknowledged becoming angry when L.D. yelled at him for talking to his female friend on the phone. Defendant also denied hitting L.D. at any point, but acknowledged she may have hurt herself when she fell against the bathtub, presumably because she was drunk, as he stood over her in the bathroom.
D.W. then threatened to call a friend to "whoop [his] ass," so defendant left, driving his car a block away. After parking for about 20 to 30 minutes, defendant drove around the corner to talk on the phone.
Police Officer Christopher Lewellyn, who was dispatched to L.D.'s residence at about 12:30 a.m. on June 19, 2009, described L.D. as upset, distracted, and smelling of alcohol, with red blotchy marks on her chest and neck and cuts on her cheek. L.D. told Officer Lewellyn she had been drinking Smirnoff and showed him the empty bottle. Officer Lewellyn inspected the residence and noticed bloodstains on the bathroom floor but no other damage to the residence. He later, however, acknowledged that photographs showed a damaged frame of the bathroom door, as well as blood on L.D.'s clothing.
Defendant returned to L.D.'s residence sometime after the police had left, about two and a half hours after he had left, because he planned to meet a friend there in the morning. He was not angry at the time.
When defendant arrived back at L.D.'s residence, he noticed a young man standing nearby who said something to him. Defendant did not respond and continued to enter the house, at which point the man grabbed him from behind. Defendant resisted and the men wrestled to the ground, breaking the sliding glass door. He denied threatening to kill D.W., saying "bitch, you are dead," or chasing her. A short time later, however, the police arrived and arrested him.
B. Prior Offenses.
Defendant acknowledged having been convicted of felony domestic violence in 2002 and assault with force likely to inflict great bodily injury in 2006. He also acknowledged his felony domestic violence conviction related to his beating of T.W. with a belt at L.D.'s residence on Meadowbrook Lane on March 3, 2002. Defendant denied, however, being mad at T.W. when he went to L.D.'s residence on March 3, 2002. The trial court subsequently sustained an objection by defense counsel to further questioning regarding whether defendant was mad at T.W. on that day on the ground that it went beyond the scope of direct examination. The trial court also instructed the jury that defendant's felony convictions could be considered when determining his credibility because they were crimes of moral turpitude.
III. The Prosecution's Rebuttal.
The prosecutor, over defense counsel's objection, was permitted to call defendant as a rebuttal witness. During the renewed questioning, defendant again acknowledged his felony domestic violence conviction following his beating of T.W. with a belt on March 3, 2002. In particular, he acknowledged he may have been angry with L.D. at the time, but did not recall breaking any glass near where T.W. was laying.
Defendant also acknowledged attacking L.D. at her workplace in 2001. He did not recall, however, whether the police later called him and asked him to return to the crime scene, denying to the police that the attack occurred, or hanging up on the officer who called him.
With respect to the October 2002 incident, defendant acknowledged staying with L.D. for a few days after the birth of S.W. despite a restraining order against him, but denied threatening or confronting D.W. through the locked screen door. Defendant acknowledged he may have said something like "I hate you" or "I dislike you," but did not recall threatening to kill everyone in the house. Nor did he recall lying to police about violating the restraining order by visiting L.D.'s residence, although it is "possible" he did.
IV. The Verdicts, Sentencing and Appeal.
On October 22, 2009, the jury found defendant guilty of the offenses of child endangerment and inflicting corporal injury on a cohabitant, and not guilty of the offense of making criminal threats. The jury also found defendant not guilty of burglary, but guilty of the lesser offense of trespass. In a separate trial, the trial court found true the two enhancements for serving prior prison terms.
On December 11, 2009, the trial court sentenced defendant to prison for three years for inflicting corporal injury on a cohabitant, adding one year for one prior prison term enhancement, for a total of four years in prison. The trial court dismissed the second prior prison term enhancement pursuant to section 1385. This appeal followed.
DISCUSSION
On appeal, defendant raises four primary issues for review. First, defendant contends the trial court erred by permitting the prosecutor to call him as a rebuttal witness. Next, defendant contends the prosecutor engaged in prejudicial misconduct, first, by repeatedly misinforming the jury regarding the reasonable doubt standard and, second, by eliciting inadmissible testimony regarding L.D.'s involvement with a battered women's organization. Finally, defendant contends the trial court failed to discharge its sua sponte duty to instruct the jury that his out-of-court oral admissions should be viewed with caution. We address each contention in turn.
I. Calling defendant as a rebuttal witness.
At trial, defendant voluntarily testified in his own defense, during which he was subject to lengthy direct, cross and redirect examinations. After leaving the stand, the prosecution sought to recall defendant as a rebuttal witness over defense counsel's objection. The trial court overruled the objection, and allowed defendant to be recalled by the prosecution. Defendant thereafter testified that, among other things, he may have lied to police by denying that he had visited L.D.'s residence in October 2002 in violation of a restraining order.
According to defendant, the trial court erred by permitting him to be called as a rebuttal witness for the prosecution. Moreover, defendant claims, the error was highly prejudicial given the damaging effect his rebuttal testimony had on his credibility, a key issue in the case. In so arguing, defendant points out that, under Evidence Code section 772, subdivision (d), "[i]f the witness is the defendant in a criminal action, the witness may not, without his consent, be examined under direct examination by another party." Defendant adds that, while he may have waived his Fifth Amendment right against self-incrimination by testifying in his own defense, his waiver did not extend to having to testify as a prosecution witness on rebuttal.
We agree with defendant that, as with all defendants, "whether he takes the stand or, having completed his testimony, resumes the stand to do so, must be solely at his election." (People v. Mack (1977) 66 Cal.App.3d 839, 861 (People v. Mack).)However, as defendant acknowledges, even if the trial court erred by permitting the prosecution to call him as a rebuttal witness, reversal on this ground is not required so long as the error was harmless beyond a reasonable doubt. (Ibid.) In this case, we agree with the prosecution the error was in fact harmless.
People v. Mack, while not directly on point, is helpful. There, unlike here, the defendant did not object when taking the stand as a rebuttal witness for the prosecution. However, as in this case, the reviewing court found the trial court erred in permitting the defendant to be called by the prosecution, but that the error was harmless. (People v. Mack, supra, 66 Cal.App.3d at p. 861.) In doing so, the court relied on the defendant's failure to object to being recalled by the prosecution after voluntarily taking the stand, as well as the fact that "[the defendant] had already waived his privilege against self-incrimination and could have been examined on cross-examination concerning the same subject matter. [As such, the court reasoned,] [i]n practical effect, the erroneous procedure accomplished nothing more than could have been done had the trial court granted a request to recall the defendant for further cross-examination. (See Evid. Code, § 778; People v. Rosoto (1962) 58 Cal.2d 304, 350-352 [23 Cal.Rptr. 779, 373 P.2d 867].) The error was [therefore] harmless beyond a reasonable doubt." ( People v. Mack, supra, 66 Cal.App.3d at p. 861.)
We find the latter observation by the People v. Mack court relevant to our resolution of the issue at hand. In particular, as the People note, when defendant took the stand as a rebuttal witness for the prosecution, he was questioned regarding the following subject matters: (1) his prior conviction for domestic violence in March 2002, including his mental state at the time, (2) whether he lied to police in June 2001 about beating L.D., and (3) whether he lied to police in October 2002 about being at L.D.'s house in violation of a restraining order when their daughter S.W. was born. In seeking to establish prejudice from the trial court's error in requiring him to take the stand as a rebuttal witness, defendant identifies his response to questions posed by the prosecutor about just one of these subject matters - whether he lied to police about being at L.D.'s house in violation of the restraining order. As the record on this subject reflects, defendant initially responded that he did not recall denying to police that he was at L.D.'s house, but later acknowledged it was "possible" he had. According to defendant, this admission elicited by the prosecution that he may have lied to police greatly undermined his credibility. His credibility, in turn, was vital in establishing his strongest defense - to wit, that L.D.'s injuries resulted from a fall she sustained as a result of her drinking rather than his abuse. Further, defendant notes, in light of L.D.'s admitted drinking and D.W.'s open hostility towards him, their own testimony that he was guilty lacked credibility.
The challenged testimony was as follows:
"Q: S.W.'s birthday is October 16th, right?
"A: Okay.
"Q: Is that right?
"A: Yes.
"Q: Okay. So she came home from the hospital on October 17th, right?
"A: Around that time, yeah.
"Q: And you took her home, right?
"A: Right. I signed the birth certificate and everything, yes, I did.
"Q: All right. The next day did you go to the house?
"A: I was at the house. I never left [L.D.'s] side. That's what I'm trying to tell you.
"Q: Okay.
"A: You keep saying did I go to the house.
"Q: Okay. No, that's what I was trying to understand. I'm sorry if I was misstating my questions.
"A: Okay. All right.
"Q: So you never left the house; is that right?
"A: Yeah.
"Q: Were you there from when you brought her home from the hospital until sometime later?
"A: An incident. Yeah, until some incident happened.
"Q: Okay. Do you remember telling the police that you were never at the house on October 19th, 2002?
"A: Do I remember telling the police that? No, I don't remember telling the police that actually.
"Q: When the police confronted you away from the house and asked you whether or not you had violated the restraining order, and were at the house, you told them that you were never at the house, that you just passed by?
"A: You know what, it's probably possible that it could - it could - I probably could have said that, but you asked me do I remember saying that. No, I do not remember saying it, but it is possible that I have maybe lied to the officer before. It is possible. Somewhere in 2002 it may be possible."
We agree with defendant credibility was a key issue in this case. However, defendant's argument ignores that when he voluntarily took the stand in his own defense, he waived his right against self-incrimination and impliedly consented to any challenges to his credibility by the prosecution on cross examination, as well as to his testimony on direct denying the existence of any evidence relevant on the issue of his guilt. ( People v. James (1976) 56 Cal.App.3d 876, 887-888 [by voluntarily taking the stand to testify in his own defense, a defendant waives his privilege against self-incrimination to the extent that he may be cross-examined regarding any matter (1) to which he has testified expressly on direct examination, (2) to which he has testified impliedly on direct examination, including any implied denial of guilt, and (3) that is relevant to impeach his credibility as a witness].) In this case, the subject matters addressed by the prosecution on rebuttal, including his denials with regard to certain details of his June 2001 and March 2002 acts of violence against L.D. and T.W., respectively, and with regard to his alleged October 2002 threatening statement to D.W. to "[p]lease forgive me for what I'm about to do" (and his arrest later that night) were relevant, at a minimum, to his credibility as a witness. Undoubtedly, the prosecution should have asked these rebuttal questions at a more appropriate time - to wit, during cross-examination or recross-examination. Nonetheless, we are at a loss as to how, as a practical matter, defendant was prejudiced by having to respond, albeit belatedly, to questions that would otherwise have been relevant and admissible as tending to undermine his direct examination testimony denying his abusive behavior and disputing the credibility of the victims' testimony. (See People v. Barnum (2003) 29 Cal.4th 1210, 1227, fn. 3.) Thus, because "[i]n practical effect, the erroneous procedure [of calling defendant as a rebuttal witness] accomplished nothing more than could have been done had the trial court granted a request to recall the defendant for further cross-examination," we find the error harmless beyond a reasonable doubt. ( People v. Mack, supra, 66 Cal.App.3d at p. 861. See also People v. Barnum, supra, 29 Cal.4th at p. 1227, fn. 3; People v. James, supra, 56 Cal.App.3d at pp. 887-888.)
For example, defendant acknowledged abusing L.D. in June 2001 and T.W. in March 2002, but denied beating T.W. while she was laying in broken glass or threatening D.W. or other family members in October 2002.
We acknowledge that, unlike here, the self-represented defendant in People v. Barnum failed to object when called as a rebuttal witness for the prosecution. However, this distinction takes nothing from the high court's otherwise relevant observations with respect to the lack of harm suffered when "the prosecutor, in effect, merely subjected defendant to reopened cross-examination [citations] or recross-examination [citations], doing little more than what he properly did on the initial cross-examination of defendant in the court of the defense, which was to impeach defendant's credibility by probing into prior incidents . . . ." (People v. Barnum, supra, 29 Cal.4th at p. 1227, fn. 3.)
This reasoning likewise applies to the prosecutor's rebuttal questioning regarding whether defendant lied to police about violating the restraining order. As defendant points out, this precise issue does not appear to have been probed by the prosecution prior to rebuttal. However, this does not change the fact that the prosecutor's questioning on this issue remained relevant to the more general issue of defendant's veracity when testifying on direct regarding the alleged prior incidents of his abuse, as well as the current alleged incident of abuse. As such, we stand by our previous conclusion that, by testifying in his own defense, defendant "relinquished his privilege against compelled self-incrimination with respect to cross-examination on matters within the scope of the narrative testimony he provided on direct examination, as well as on matters that impeached his credibility as a witness. [Citations.]" (People v. Barnum, supra, 29 Cal.4th at p. 1227, fn. 3; see also People v. James, supra, 56 Cal.App.3d at pp. 887-888.) Based on the record as a whole, we do not believe the permissibly wide scope of examination was exceeded by the prosecution's rebuttal questions.
We also acknowledge, as defendant points out, that the trial court sustained an objection by defense counsel during defendant's cross-examination that the prosecutor's questioning regarding whether at the time of the March 2002 incident he was mad at T.W. went beyond the scope of direct examination. However, because, as we have just explained, the prosecutor's rebuttal questions were nonetheless admissible and relevant to impeach defendant's credibility, the trial court's earlier ruling ultimately does not affect our harmless error analysis.
Thus, for the reasons set forth above, we conclude the trial court's error in permitting defendant to be called as a rebuttal witness for the prosecution to respond to further questioning about his prior domestic abuse, including his credibility regarding the details of his abuse, was harmless beyond a reasonable doubt. (See People v. Mack, supra, 66 Cal.App.3d at p. 861.)
II. Prosecutorial Misconduct.
A. Misstating the reasonable doubt standard.
Defendant contends his right to a fair trial was violated by the prosecutor's erroneous assertions during closing arguments that "reasonable doubt required a foundation in the evidence."
Relevant to this contention, the prosecutor made the following argument to the jury after the close of evidence with respect to the reasonable doubt burden of proof standard: "See if you can find evidence to base your doubt on it because your doubts must be based in evidence. They cannot be [based on] speculation. They have to be based in the evidence, a reasonable doubt based on the evidence.
"And ladies and gentlemen, you will most likely have questions, speculation questions, what ifs, but don't confuse that with reasonable doubt. Make sure that your reasonable doubt is based in evidence."
Defendant immediately objected that the prosecutor was misstating the law, but was overruled by the trial court. Defendant contends the trial court's ruling was erroneous because, contrary to what the prosecutor argued to the jury, "reasonable doubt may arise from a lack of evidence. (See People v. Hill [(1998)] 17 Cal.4th [800,] 831832 [People v. Hill]."
In People v. Hill, the trial court overruled defense counsel's objection to the following argument regarding the reasonable doubt standard: "[I]t must be reasonable. It's not all possible doubt. Actually, very simply, it means, you know, you have to have a reason for this doubt. There has to be some evidence on which to base a doubt. " ( People v. Hill, supra, 17 Cal.4th at p. 831.) The California Supreme Court considered counsel's statements and found them improper "insofar as her statements could reasonably be interpreted as suggesting to the jury she did not have the burden of proving every element of the crimes charged beyond a reasonable doubt. [Citations.] Further, to the extent [counsel] was claiming there must be some affirmative evidence demonstrating a reasonable doubt, she was mistaken as to the law, for the jury may simply not be persuaded by the prosecution's evidence. [Citations.] On the other hand, [counsel] may simply have been exhorting the jury to consider the evidence presented, and not attorney argument, before making up its mind. [¶] Although the question arguably is close, we conclude it is reasonably likely [counsel's] comments, taken in context, were understood by the jury to mean defendant had the burden of producing evidence to demonstrate a reasonable doubt of his guilt. Accordingly, we conclude [counsel] committed misconduct by misstating the law." (Id. at pp. 831-832.)
The California Supreme Court's reasoning appears to apply to the statement by the prosecutor challenged herein by defendant. We thus tend to agree with defendant that the prosecutor's statement, while ambiguous, may have just overstepped the line of propriety. However, our inquiry does not stop here. To establish a basis for reversal, a defendant must show more than a prosecutor's misstatement of law. Rather, under the governing standards, a prosecutor's misstatement of the law or other misconduct violates the United States Constitution " ' "when it comprises a pattern of conduct 'so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.' " ' [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ' " 'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury." ' " [Citation.]' [Citation.]" ( People v. Hill, supra, 17 Cal.4th at p. 819. See also People v. Salcido (2008) 44 Cal.4th 93, 152.)
In this case, we first note that, immediately before making the above-identified improper argument, the prosecutor correctly acknowledged that the People, not defendant, have the burden to prove guilt beyond a reasonable doubt: "The People have proved this case beyond a reasonable doubt, and reasonable doubt requires me to prove that there is - that you have an abiding conviction that the charges are true. I don't have to prove this case beyond all possible or imaginary doubt, just beyond a reasonable doubt. [¶] . . . [¶] I urge you to look at each count separately and take them separately, as you have taken an oath that you will do, and deliberate independently about each charge and separate each charge from each other and look at those charges and determine whether there's a reasonable doubt. And I submit to you you'll find that there's not. "
Then, in rebuttal argument, the prosecutor again addressed reasonable doubt, this time accurately summarizing the law as follows: "Ladies and gentlemen, the law is what you look at. The law requires me to prove beyond a reasonable doubt, which is an abiding conviction that the charge is true. That's what I'm required to prove. "None of the things [defense counsel] pointed out on her board or she had on her board are even in the law. They're not going to be seen in any of those instructions. Those are just her words written on a board. "The law says and actually specifically talks about things that are higher than my burden, which are beyond all possible doubt and beyond all imaginary doubt and that's what the law talks about, that I don't have a - I don't have to prove all possible doubt. "I have to prove that the defendant committed these crimes beyond a reasonable doubt, that there's an abiding conviction that the charge is true. And again, I submit that when all 12 jurors sit and work together independently on each crime, that the defendant - that the jury finds beyond a reasonable doubt and that he's guilty."
Having considered these arguments by counsel collectively, we conclude the prosecutor in all but the identified instance appropriately described the reasonable doubt standard. As such, we conclude the record belies an inference that she was acting deceptively or reprehensibly, a prerequisite for establishing prosecutorial misconduct. (People v. Solomon (2010) 49 Cal.4th 792, 829; People v. Hill, supra, 17 Cal.4th at p. 819.)
Furthermore, even assuming the prosecutor may have confused the jury with respect to the People's evidentiary burden, the jury was subsequently given all standard CALCRIM instructions relating to the reasonable doubt standard and the presumption of innocence. These instructions included the trial court's admonitions that, if the jury believes "the attorneys' comments on the law conflict with [the court's] instructions, you must follow [the court's] instructions," and that "[n]othing that the attorneys say is evidence." Thus, while defendant insists that, due to the prosecutor's misstatement of the reasonable doubt standard, the jury may have convicted him simply by rejecting the veracity of his testimony, we are required on appeal to presume the jury faithfully discharged its duties by following the trial court's instructions when convicting him. (People v. Davenport (1995) 11 Cal.4th 1171, 1210.) And, having done so, we conclude there is no reasonable likelihood the jury could have shifted to defendant the burden of proving his innocence or otherwise based its verdicts on an erroneous application of the law. (People v. Solomon, supra, 49 Cal.4th at p. 829.)
Accordingly, defendant's argument affords no basis for reversal.
B. Eliciting testimony regarding a battered women's organization.
Defendant next contends the prosecution engaged in prejudicial misconduct by repeatedly questioning L.D. regarding her involvement with a battered women's organization (STAND) following the October 2002 incident during which defendant allegedly said to D.W., "Do you love your dad? Please forgive me for what I'm about to do." In total, the prosecutor asked three questions referencing assistance L.D. sought or received from STAND to relocate to a new residence following this incident, despite the fact that twice the trial court sustained defendant's relevancy objection and made clear that "[h]ow she got [to the new residence] or why isn't relevant." Finally, after the third such reference, the trial court warned the prosecutor: "Counsel, one more error, I'll cite you for misconduct." The prosecutor finally moved on to a new topic and the trial court instructed the jury to disregard all discussion relating to the battered women's organization.
As mentioned above, evidence of the October 2002 incident was admitted for the sole purpose of showing D.W.'s state of mind when defendant allegedly threatened her on the night the crimes at issue in this case were committed.
The relevant portion of the record is as follows:
"Q. And after [the October 2002 incident], the next day or the couple following days what was your reaction? What was your next step?
"A. Actually, they arrested [defendant] that night.
"Q. And then what did you do the next couple of days?
"A. Then I think we were just - at that time we were just home, and I think actually, you know, like STAND was involved and CPS was actually involved at that particular time.
"Q. What's STAND?
"A. Battered women's.
"Q. Is that the battered women's organization?
"A. Yes.
"Q. Did you call them?
"A. Yes.
"[DEFENSE COUNSEL:] Judge, I'm going to object as irrelevant.
"[COURT:] I don't see where this is getting us to anything relevant so objection's sustained. Disregard the discussion of battered women organizations.
"Q. At some point did you get relocated?
"[DEFENSE COUNSEL:] Objection; irrelevant.
"[COURT:] Overruled.
"A. Yes, we did, but that was actually at a different time that we had to leave our home, and I took my kids and we went into a shelter.
"Q. So in 2002 - In October of 2002 you did not get STAND to relocate you?
"A. No. Oh, yes, STAND relocated us at that time, but it was a different time that we—different incident that we left and went to a shelter in West Pittsburg. They put us in a shelter in West Pittsburg. Battered Women's actually picked me and my kids up . . .
"[DEFENSE COUNSEL:] Objection.
"[COURT:] Let me stop you. I'm going to strike all that testimony because we're not going to have a trial about the Battered Women's shelters and so forth. She can be asked limited to did she leave the Meadowbrook home and go to a place that was remote. How she got there or why isn't relevant.
"Q. When you left the Meadowbrook home, were you relocated for protection?
"[DEFENSE COUNSEL:] Objection; asked and answered.
"[COURT:] Sustained. Same objection. We're not here about protection. If she wasn't available to the defendant, that's the only relevant matter.
"Q. Did you relocate from the location of Meadowbrook?
"A. Yes.
"Q. And did you do that by yourself?
"A. No.
"Q. Did someone help you?
"A. STAND.
"[DEFENSE COUNSEL:] Objection.
"[COURT:] Sustained.
"[DEFENSE COUNSEL:] And that's the third time.
"[COURT:] Counsel, one more error, I'll cite you for misconduct."
We begin by expressing our profound discontent with the prosecutor's clear violations of the trial court's rulings with respect to the STAND testimony. It should not have happened once, much less twice. That said, however, we nonetheless conclude no basis for reversal exists on this record. Without rehashing all the evidence supportive of defendant's guilt, we simply add that defendant admitted his prior act of domestic violence against L.D. at her workplace in June 2001 and his felony domestic violence conviction for beating T.W. in March 2002. In light of this unchallenged evidence, the improper references to L.D.'s involvement with STAND likely had less of an impact on the jury than they otherwise would have. This is particularly true given the trial court's quick and clear response to the prosecutor's misconduct - to wit, the trial court immediately struck all discussion relating to battered women's organizations and twice admonished the jury to disregard the discussion as irrelevant.
In addition, at the end of trial, the trial court gave the jury the following instruction barring its consideration of stricken evidence: "Now, during the trial the attorneys may have objected to questions or moved to strike answers given by a witness. I ruled on the objections according to the law. If I sustained an objection, you must ignore the question. [¶] . . . [I]f I ordered testimony stricken from the record, you must disregard that and must not consider that testimony for any purpose." (Emphasis added.) We presume the jury adhered to the trial court's straightforward commands to disregard stricken evidence. (People v. Davenport, supra, 11 Cal.4th at p. 1210.)
Accordingly, we conclude the prosecutor's misconduct in this instance provides no basis for reversal given the unlikely impact it had on the verdict.
III. Failing to Instruct on Admissions (CALCRIM No. 358).
Defendant also contends the trial court committed prejudicial error by failing to instruct the jury sua sponte that his pre-trial oral admissions tending to show guilt should be viewed with caution. Specifically, defendant claims the jury should have been given CALCRIM 358, which provides: "You have heard evidence that the defendant made [an] oral . . . . statement (before the trial/while the court was not in session). You must decide whether the defendant made any (such/of these) statement[s], in whole or in part. If you decide that the defendant made such [a] statement[s], consider the statement[s], along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to the statement[s]. [¶] [Consider with caution any statement made by (the/a) defendant tending to show (his/her) guilt unless the statement was written or otherwise recorded.] " (CALCRIM No. 358 [emphasis added].)
The California Supreme Court has indeed made clear the trial court has a sua sponte duty to instruct the jury that evidence of oral admissions must be viewed with caution. (People v. Beagle (1972) 6 Cal.3d 441, 455-456.) Moreover, this cautionary instruction "applies broadly," given that its purpose is to assist the jury in determining if the statement was in fact made. ( People v. Carpenter (1997) 15 Cal.4th 312, 393 ["[t]his purpose would apply to any oral statement of the defendant, whether made before, during, or after the crime"].) However, the California Supreme Court has likewise made clear that the trial court's failure to discharge this duty to instruct does not require reversal if "upon a reweighing of the evidence it does not appear reasonably probable that a result more favorable to defendant would have been reached in the absence of the error. ( People v. Watson (1956) 46 Cal.2d 818, 836 . . . .)" (People v. Beagle, supra, 6 Cal.3d at pp. 455-456; see also People v. Carpenter, supra, 15 Cal.4th at p. 393 ["Failure to give the cautionary instruction is not one of the ' "very narrow[]" ' categories of error that make the trial fundamentally unfair"].)
Here, defendant contends several of his alleged out-of-court statements introduced at trial constituted oral admissions triggering the trial court's mandatory duty to instruct on CALCRIM 358. Specifically, defendant points to L.D.'s testimony that, just before punching her on the night in question, he accused her of drinking and having sexual intercourse with one of D.W.'s male friends and was "crazy" when arguing with D.W. Defendant also points to D.W.'s testimony that, also on the night in question, he called L.D. a "f'ing bitch" and repeatedly told her he did not need her; that he stated he was going to "slap the fuck" out of her mother; and that, after punching L.D., he stated before leaving the house that "I don't need this shit, I don't need her."
The People only half-heartedly dispute that these alleged statements by defendant constitute oral admissions, ultimately acknowledging the broad application of CALCRIM 358. The People insist, however, that any error in the trial court's failure to give the cautionary instruction on admissions was harmless. We agree.
First, we note that L.D.'s and D.W.'s testimony that defendant repeatedly punched L.D. was collaborated by other evidence, including the contemporaneous 911 call in which a frantic D.W. reported defendant was "beating my momma" and described "blood everywhere," the physical evidence of injury on L.D.'s body and evidence of blood stains in the bathroom observed by Officer Lewellyn shortly after the incident, and photographic evidence showing damage to the frame of L.D.'s bathroom door and blood on her clothes.
Further, defendant himself acknowledged on the stand being "upset and agitated" with L.D. and then becoming "mad" when she yelled at him for calling another woman on the night in question. Defendant also acknowledged arguing with L.D. for a significant period of time, during which time they exchanged heated words and pushed one another as he followed her down the hall and into one bathroom and then another. In addition, the propensity evidence showed defendant punched L.D., requiring medical treatment, following an argument in 2001, and defendant himself acknowledged prior felony convictions for felony domestic violence in 2002 and assault with force likely to inflict great bodily injury in 2006, both of which are crimes of moral turpitude that, as the jury was instructed, could be considered in assessing his credibility.
Finally, in addition to this evidence, we note that, although the court failed to warn the jury to consider with caution defendant's out-of-court oral admissions, it did fully instruct the jury with regard to judging witness credibility. For example, among other instructions, the jury was told:
"In evaluating a witness' testimony you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. Among the factors that you may consider are: [¶] . . . What was the witness' behavior while testifying? [¶] . . . [¶] Was the witness' testimony influenced by a factor such as bias or prejudice, a personal relationship with someone involved in the case or a personal interest in how the case is decided? [¶] What was the witness' attitude about the case or about testifying?"
In addition, as discussed at length above, the jury was clearly instructed that the prosecution was required to prove defendant's guilt beyond a reasonable doubt, and that neither bias, sympathy nor prejudice could influence the verdict.
Thus, as this record reflects, "the court fully instructed the jury on judging the credibility of a witness, thus providing guidance on how to determine whether to credit the testimony . . . ." (People v. Carpenter, supra, 15 Cal.4th at p. 393.) As we have stated several times herein, on appeal, we presume the jury properly applied the court's instructions. (People v. Davenport, supra, 11 Cal.4th at p. 1210.)
Accordingly, we conclude based on the record as a whole that it simply is not reasonably probable the jury would have reached a result more favorable to defendant had the cautionary instruction on admissions been given.
IV. Cumulative Error.
Finally, defendant contends the cumulative effect of multiple errors rendered his trial fundamentally unfair. However, as this opinion reflects, while a few errors were in fact committed, no error affected the verdict against defendant. As such, we find no basis for reversal. (People v. Marshall (1990) 50 Cal.3d 907, 945 ["defendant is entitled to a fair trial but not a perfect one"].)
DISPOSITION
The judgment is affirmed.
Jenkins, J. We concur: Pollak, Acting P. J. Siggins, J.