Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCR252723
Sepulveda, J.
Defendant was convicted following a jury trial of two counts of second degree murder for shooting his pregnant girlfriend, killing her and her fetus. He claims that the judgment should be reversed because (1) the trial court erred by refusing to exclude for all purposes his custodial statement to police detectives, (2) defendant was excused from the courtroom during closing argument without adequate assurances that his absence was voluntary, (3) the prosecutor committed prejudicial misconduct during closing argument, and (4) the jury was provided with an inadequate response to a question during deliberations. We affirm.
I. Factual and Procedural Background
In February 2008, 19-year-old Shearell Dillon lived in an apartment in Fairfield with her mother, her sister, and other family members. Defendant was Shearell’s boyfriend, and Shearell was four months pregnant with their child.
On the afternoon of February 20, 2008, Shearell and her sister spent about two hours at a mall near their apartment. When they returned to the apartment, defendant was there. He was mad at Shearell for leaving, and the two of them argued. Defendant told Shearell that if she ever left him, he would shoot her. He also laughed and joked that if it were not for Shearell’s sister and her family, he would kill Shearell. According to Shearell’s sister, defendant previously had told Shearell that “he would shoot her, but he w[ouldn’t] kill her.”
Shearell, her sister, and defendant watched television in the bedroom Shearell shared with her sister. Shearell and defendant later left to go to his grandmother’s house (even though Shearell first said that she did not want to leave); they came back about an hour and a half later and returned to the bedroom with Shearell’s sister to again watch television. Shearell was sitting cross-legged on her bed, with her back against the wall, and defendant was lying across her, with his face toward the television. At one point defendant asked Shearell questions about whether she was still in touch with former boyfriends, and he appeared to be jealous and mad about the issue. Defendant told Shearell that he hoped she never left him, because he did not know what he would do without her.
About 30 minutes after defendant and Shearell returned from the home of defendant’s grandmother, Shearell’s sister left the bedroom and went to her mother’s room, where her mother was on the telephone and her two nephews were doing their homework. About 25 minutes later (between 7:30 and 8:00 p.m.), family members in the apartment heard a gunshot, and the people in Shearell’s mother’s room went to the bedroom where Shearell and defendant had been watching television, and saw that Shearell had been shot. Shearell was screaming and holding her chest, and a.38 caliber revolver was lying on the bedroom floor. Shearell told her mother, “He didn’t mean to do it. It was an accident, Mama. He didn’t mean to do it.”
Police investigators later found an expended bullet from the gun in the mattress. Investigators determined that the bullet appeared to have been shot from the foot of the bed where the gun had been found. A defense expert in firearms testified that he was unable to simulate an accidental discharge of the gun. A fingerprint analyst compared a latent fingerprint found on the front cylinder of the revolver to the fingerprints of defendant and Shearell. The analyst concluded that the fingerprint did not belong to Shearell. Although the analyst could not rule out defendant as a source of the print because some details corresponded with defendant’s left index finger, the analyst could not make a conclusive identification because the print lacked sufficient detail. A criminalist analyzed DNA collected from the grip of the gun and concluded that there were three contributors to the DNA sample, that Shearell was a major contributor, and that defendant could not be ruled out as a minor contributor.
Shortly after the shooting, defendant ran downstairs and out of the apartment, wearing no shoes or shirt. As he passed Shearell’s brother, who was downstairs, defendant said, “ ‘She just shot herself. It was an accident.’ ” Defendant ran past a neighbor after he left the apartment and again said that Shearell shot herself.
Shearell was taken to the hospital, where she died later that day from the gunshot wound to her chest. Her fetus also died from loss of blood. Before Shearell died, a police officer asked her if she knew who shot her; she responded that she did not know, and she also stated that she was not able to pick defendant out of a photographic lineup.
Defendant’s mother and her boyfriend met up with defendant later on the evening of the shooting near the home of defendant’s grandmother and drove defendant to his mother’s boyfriend’s house. Defendant told his mother that he always slept with a gun under his pillow, that the gun had gone off when Shearell had rolled over onto it while defendant had his hand on it while he slept, and that the shooting was an accident. The next morning, defendant’s mother and her boyfriend drove defendant to the police department after they convinced him to “do the right thing” and turn himself in, and defendant was taken into custody. As set forth in further detail below, defendant spoke with two police detectives after he arrived at the police station. (Post, § II.A.)
Defendant was charged with two counts of murder (Pen. Code, § 187, subd. (a) -counts 1, 2) for the death of Shearell and her fetus, and one count of possession of a firearm by a felon (§ 12021, subd. (a)(1)-count 3). The information further alleged firearm enhancements in connection with counts 1 and 2 (§ 12022.53, subds. (b)-(d)).
All statutory references are to the Penal Code.
The information also charged defendant with first degree residential burglary (§ 459-count 4) and receiving stolen property (§ 496, subd. (a)-count 5) in connection with a burglary on November 29, 2007. The trial court later granted defendant’s motion to sever counts 4 and 5. Following the jury trial on counts 1 through 3, the trial court dismissed counts 4 and 5 on the prosecution’s motion.
At trial, defendant’s counsel argued that Shearell’s death was a “tragic accident, ” and that Shearell’s actions possibly led to the accidental discharge of the gun. Counsel also stressed that defendant had no motive to kill Shearell, and that defendant did not have the mental state required for murder.
A jury found defendant guilty of second degree murder. The trial court sentenced him to concurrent sentences of 15 years to life on counts 1 and 2, with a consecutive term of 25 years to life (for a firearm enhancement pursuant to § 12022.53, subd. (d)), for a total of 40 years to life. This timely appeal followed.
The trial court stayed defendant’s sentence on count 3 pursuant to section 654, and the court also stayed the other firearm enhancements.
II. Discussion
A. Defendant’s Statement to Police Detectives.
1. Background
Two police detectives interviewed defendant the morning following the shooting. After the detectives introduced themselves and asked defendant identifying information (such as his name, age, height, and weight), they asked defendant where he lived. Defendant said he was “homeless really.” When a detective asked defendant where defendant had been staying for the past couple of months, defendant answered, “I really don’t wanna say none of that.” After a detective asked, “Why? I’m just-okay, why, what’s going on?” defendant answered, “Nothing, I just don’t-that’s just nothing I wanna say. I wanna speak to a lawyer.” After a detective reassured defendant that “[t]hese aren’t questions that get you in any kind of trouble, ” defendant said he had been staying mostly at his girlfriend’s house.
Detectives continued to ask defendant general questions about his level of education, marital status, life’s ambitions, criminal history, medical history, and current physical condition. Defendant revealed that he had been arrested the previous November for receiving stolen property, that he had been released a week earlier after receiving probation, that he was supposed to be seeing a counselor for “mental health, ” and that he had been given “Respidone” while in jail, likely because he had been having trouble sleeping. Detectives then informed defendant of his rights to remain silent and to have a lawyer present during any questioning. (Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).) Although defendant stated that he understood those rights, the detectives did not ask whether defendant waived those rights before they continued to question him, and defendant never affirmatively waived his Miranda rights.
In response to detectives’ questions about the shooting, defendant said six times that he did not want to talk about it. Detectives asked why defendant had come to the police station. Defendant said he came “for witnessing a shooting, ” but said “I don’t wanna tell you nothing about that.” Detectives told defendant that they had already talked to other people about the shooting and that they wanted to hear defendant’s side of the story. Again, defendant said, “I don’t got nothing to say man.” After further efforts to get defendant to talk, including telling defendant that “[w]e’re here to try and sort through this man, ” defendant said he did not remember what he had told his mother about the shooting. After a detective told defendant that “what we need to do, is just talk about how it happened, ” and that “we need to push through that [the pain of discussing the issue] and just talk about how this occurred, ” defendant responded, “I ain’t got nothing to say man, for real.”
Defendant did answer some of the detectives’ questions. He told them that he ran to his grandmother’s house after the shooting, that the trip took about 30 minutes, that he did not have a shirt or shoes on while he was running to his grandmother’s house, that he had been wearing baggy blue jeans, and that he did not remember being afraid while he was running to his grandmother’s house. Defendant also told detectives that he and Shearell were in bed when the shooting happened, and he answered questions about who else was in the house when the shooting occurred. He further provided a description of Shearell’s bedroom. Defendant eventually told detectives, “I just remember laying down and her rolling over and just hearing the gunshot.” When asked to elaborate, defendant responded, “I really don’t want to say man.” He answered questions about the gun involved in the shooting, stating that it was not his, and that it was silver. However, when detectives pressed for more information about the shooting, (stating, “you gotta talk to us about this, all right?”), defendant told detectives that “ya’ll are too close, ” said “I can’t do this man, ” and said he wanted to talk to a lawyer. Detectives then stopped questioning defendant and placed him under arrest.
Defendant filed a motion in limine to exclude his custodial statement, arguing that it was involuntary and obtained in violation of Miranda, supra, 384 U.S. 436. The prosecution opposed the motion, arguing that detectives did not violate Miranda, and that even if they did, defendant’s statement was admissible on cross-examination if defendant testified, because the statement was voluntary. (People v. Jablonski (2006) 37 Cal.4th 774, 814 (Jablonski).) The trial court granted defendant’s motion to suppress his statement on the basis that it had been obtained in violation of Miranda; however, the court also ruled that the statement could be used for impeachment purposes should defendant testify at trial. Defendant did not testify, and his custodial statement was not admitted for any purpose.
2. Analysis
Defendant argues that the trial court infringed on his right to testify and his right to a fair trial when it ruled that his statement was admissible for impeachment purposes, because the statement was not voluntary. We assume that defendant preserved this issue for appeal even though he did not testify at trial and his statement was not admitted for any purpose (People v. DePriest (2007) 42 Cal.4th 1, 29 (DePriest); Jablonski, supra, 37 Cal.4th at p. 813), but conclude that no error occurred. Even assuming that the trial court erred, any error was harmless beyond a reasonable doubt.
a. Voluntariness
A statement obtained in violation of Miranda safeguards that is otherwise voluntary is admissible for impeachment purposes. (Harris v. New York (1971) 401 U.S. 222, 224, 226; DePriest, supra, 42 Cal.4th at p. 32.) “The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.” (Harris at p. 226.)
The due process clause of the Fourteenth Amendment precludes the admission for any purpose (including impeachment) an involuntary statement obtained from a criminal suspect through state compulsion. (DePriest, supra, 42 Cal.4th at p. 34.) “A statement is involuntary when ‘among other circumstances, it “was ‘ “extracted by any sort of threats..., [or] obtained by any direct or implied promises, however slight....” ’ ” [Citations.] ’ ” (Jablonski, supra, 37 Cal.4th at pp. 813-814; see also People v. Coffman and Marlow (2004) 34 Cal.4th 1, 55.) “Involuntariness means the defendant’s free will was overborne. [Citations.] Whether the defendant lost his free will and made involuntary statements does not rest on any one fact, however significant it may seem. Instead, courts examine the totality of the circumstances. [Citations.] While the reviewing court independently decides whether the statements were involuntary, it accepts the trial court’s factual findings if supported by substantial evidence.” (DePriest at pp. 34-35.)
By ruling that defendant’s statement was admissible for impeachment purposes, the trial court impliedly found that the statement was voluntary. Based on the totality of the circumstances, we agree with that conclusion. Defendant summarizes at length the detectives’ interrogation techniques and argues that their improper questioning supports an involuntariness finding. However, Miranda violations themselves, even if repeated and persistent, are insufficient to establish involuntariness. (Jablonski, supra, 37 Cal.4th at p. 814.) Coercive police activity is a necessary predicate to a finding of involuntariness, but it does not itself compel such a finding. (Ibid.) “[N]either the failure to read defendant his Miranda rights, nor the continued interrogation after he asserted such rights, compels a finding of official coercion.” (DePriest, supra, 42 Cal.4th at p. 35.)
Relying on McNeil v. Wisconsin (1991) 501 U.S. 171 and Edwards v. Arizona (1981) 451 U.S. 477, defendant argues that his statements made after he first requested a lawyer were “presumptively involuntary.” (Original underlining.) Edwards holds that where an accused expresses the desire to speak with police only through counsel, the accused is not subject to further interrogation until counsel has been made available or unless the accused initiates further communication with police. (Edwards, supra, at pp. 484-485.) McNeil further explains that if police initiate an encounter in the absence of counsel after defendant has requested an attorney, “the suspect’s statements are presumed involuntary and therefore inadmissible as substantive evidence at trial, even where the suspect executes a waiver and his statements would be considered voluntary under traditional standards.” (McNeil at p. 177, italics added.) Neither Edwards nor McNeil addresses the admissibility of custodial statements as impeachment evidence, the issue raised here. “Despite the fact that patently voluntary statements taken in violation of Miranda must be excluded from the prosecution’s case, the presumption of coercion does not bar their use for impeachment purposes on cross-examination.” (Oregon v. Elstad (1985) 470 U.S. 298, 307, citing Harris v. New York, supra, 401 U.S. 222, second italics added.)
A review of the transcript of police questioning reveals that the physical circumstances of defendant’s interrogation do not appear to have been coercive (Jablonski, supra, 37 Cal.4th at p. 816), as defendant’s handcuffs were removed at the beginning of the interview, and defendant told detectives that he was “feeling normal, ” that he had slept for about eight hours the previous evening, and that he had not taken anything that would affect his ability to have a conversation with detectives. Although it is unclear from the record exactly how long the interview lasted, a review of the transcript (which is 65 double-spaced pages long, with the text of the interview covering only about half of each page) does not suggest that the length of the interview was coercive. (Ibid.) The interrogation certainly “was not accompanied by a denial of all creature comforts or accomplished by means of physical or psychological mistreatment, threats of harsh consequences or official inducement amounting to coercion.” (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 58.) Nor was the tone of the questioning “particularly harsh or accusatory.” (Jablonski at p. 816.) Detectives did not threaten defendant, promise leniency if he made a statement, or threaten any physical force or punishment. The fact that defendant answered some questions but resisted answering others, “far from reflecting a will overborne by official coercion, suggests instead a still operative ability to calculate his self-interest in choosing whether to disclose or withhold information.” (People v. Coffman and Marlow at p. 58; see also DePriest, supra, 42 Cal.4th at p. 36.)
Defendant argues that detectives knew that he was 19 years old, and also knew that defendant had “mental problems for which he had been given a psychotropic medication during his recent incarceration in county jail; and that he had stopped taking the medication upon his release approximately a week earlier.” Defendant overstates the record on these points. Defendant told detectives that he had an 11th grade education. He also told detectives that he had been given “Respidone” while in jail, and that he did not know what the medication was for but that it was “[p]robably for me to sleep or something.” Although he had not taken the medication since being released from jail, defendant said that he did not feel any different without the medication. He also told detectives that he was “feeling normal, ” and that although he had smoked a “little skinny” marijuana joint that morning, he was able to understand everything detectives were saying with no problem. The fact that defendant previously had been arrested and therefore had experience in the criminal justice system further supports a finding of voluntariness. (DePriest, supra, 42 Cal.4th at p. 35.)
b. Harmless error
Even if the trial court erred by allowing the admission of defendant’s statement if he testified, we find that such error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18; Jablonski, supra, 37 Cal.4th at p. 816.) Defendant argues that, had he taken the stand, his “affirmatively inculpatory statements” could have been used to impeach him if his trial testimony varied from them. Defendant revealed his involvement in the shooting when he told police that he and Shearell were in bed at the time of the shooting, that he ran to his grandmother’s house after the shooting, and that the gun accidentally discharged when Shearell rolled over onto it. All of this information was presented at trial through other witnesses, who described defendant’s presence in Shearell’s bedroom before the shooting, his flight to his grandmother’s house following the shooting, and his statement to his mother that Shearell had rolled over onto the gun. The possible admission of defendant’s statement for impeachment purposes would have been consistent with, and cumulative to, evidence that was properly admitted at trial.
Defendant also argues that, had he testified about what he told people after the shooting, the prosecution likely would have attacked defendant’s credibility with his statements to detectives that he did not remember what he said to his mother, his mother’s boyfriend, or Shearell’s brother. Again, there was evidence presented that defendant made inconsistent statements after the shooting, because he told Shearell’s brother and a neighbor that Shearell shot herself, whereas he told his mother that Shearell rolled over on the gun. Had defendant testified inconsistently with what he told police, this simply would have been further evidence that he gave differing accounts of events on the night of the shooting. All of the statements he made to others (including police detectives) following the shooting were exculpatory, because he claimed that the shooting was accidental, so it is speculation that defendant would have been prejudiced by impeachment with his statement to detectives that he could not remember what he told people following the shooting. We find no reversible error on the record before us.
B. Defendant’s Absence after Prosecutor’s Rebuttal Argument.
1. Background
Toward the end of the prosecutor’s rebuttal closing argument, counsel focused on the fact that defendant fled the scene after Shearell was shot and also blamed her for what happened. As the prosecutor began arguing that those actions showed that the shooting was intentional, the following exchange took place:
“[Prosecutor]: He pointed that loaded gun at Shearell Dillon, pulled the trigger, and it killed her
“THE COURT: [Prosecutor], I am sorry to interrupt you. I think we have to take a break for a moment.
“[Defense counsel]: Yes, please.
“THE DEFENDANT: Told you, man. I told you, man. You’re a real murderer; you’re a killer.
“[Defense counsel]: I would ask that we proceed in [defendant’s] absence. That is his request.
“THE COURT: I gather it’s his choice to remove himself from the courtroom?
“[Defense counsel]: Yes. He’s upset.
“THE COURT: Please continue, [prosecutor].”
The prosecutor finished his rebuttal argument shortly thereafter, and the trial court immediately began instructing the jury. After the jury left the courtroom, the trial court and counsel discussed various matters, including defendant’s reaction to the prosecutor’s argument:
“[Defense counsel]: The only other thing[] that we should perhaps put on the record, that Mr. Williams did indicate to me and the Court upon [the prosecutor’s] final presentation, that he did not wish to remain in the courtroom. [¶] And he understands that he has a right to be present, and he wished to absent himself from the courtroom. [¶] So he left the courtroom, and he was out of the courtroom for the last part of [the prosecutor’s] presentation and the reading of the instructions. And I believe that is his wish.
“THE COURT: And I would add that his motions-gestures made it quite clear to me that he wanted to get out. [¶] And he was reaching the point of being-interfering with the presentation of [the prosecutor].”
Defendant was present during the reading of the verdict later that day.
2. Analysis
Defendant argues that he was deprived of due process, a fair trial, and his right to be present at his trial in violation of section 1043 and the federal Constitution. We review de novo the trial court’s exclusion of a criminal defendant from trial, insofar as the trial court’s decision involves a measurement of the facts against the law. (People v. Gutierrez (2003) 29 Cal.4th 1196, 1201.)
Because defendant mentions his federal constitutional right to presence in his opening brief only in passing, and focuses almost exclusively on an alleged violation of section 1043, we limit our analysis to that claim of error. (People v. Jones (1998) 17 Cal.4th 279, 304 [claims presented perfunctorily and without supporting argument rejected in similar fashion]; see also People v. Harris (2008) 43 Cal.4th 1269, 1306 [state constitutional right of presence generally coextensive with federal due process right].)
“A criminal defendant’s right to be present at trial is protected under both the federal and state Constitutions.” (People v. Gutierrez, supra, 29 Cal.4th at p. 1202; U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 15.) Section 1043 implements the state constitutional protection and applies to situations, such as the one presented here, where a defendant in a noncapital case was present when trial began. (Gutierrez at pp. 1202, 1204.) A defendant’s right to be present at trial is not absolute. (Id. at p. 1202.) Section 1043 provides that the absence of a defendant in a noncapital felony case after trial has started shall not prevent the continuation of the trial if “the defendant is voluntarily absent.” (§ 1043, subd. (b)(2); People v. Gutierrez at pp. 1203-1204.)
To determine whether a defendant is “voluntarily absent” under section 1043, “a trial judge may rely on reliable information, such as statements from jail or court personnel, to determine whether a defendant has waived the right to presence.” (People v. Gutierrez, supra, 29 Cal.4th at p. 1205 [no error to proceed with trial in defendant’s absence where he refused to leave court lockup, and refusal was confirmed at lockup in presence of defense counsel, bailiff, interpreter, and court reporter].) “[U]nder section 1043, subdivision (b)(2), a trial court may continue a trial in a custodial defendant’s absence after the trial has commenced in the defendant’s presence-without first obtaining the defendant’s written or oral waiver of the right to presence-if other evidence indicates the defendant has chosen to be absent voluntarily. While a defendant’s express waiver in front of the judge might be the surest way of ascertaining the defendant’s choice, it is not the only way. A defendant’s ‘consent need not be explicit. It may be implicit and turn, at least in part, on the actions of the defendant.’ [Citations.]” (Id. at p. 1206.)
Here, the trial court had abundant reliable information indicating that defendant implicitly waived his right to be present. After defendant had an emotional reaction to the prosecutor’s argument, his attorney stated that defendant wanted to leave the courtroom, and the trial court confirmed with counsel that defendant wished to do so. Later, outside the presence of the jury, defense counsel stated that defendant had understood his right to be present, but that he wanted to leave the courtroom. The trial court added that defendant’s gestures indicated that he wanted to leave, and that defendant had reached the point of interfering with the prosecutor’s presentation. This was sufficiently “reliable information” upon which the trial court could reasonably conclude that defendant had waived his right to be present. (People v. Gutierrez, supra, 29 Cal.4th at p. 1205.)
Even assuming arguendo that the trial court erred because it did not take sufficient steps to determine whether defendant wished to return to court for the reading of jury instructions, we will not reverse unless it is reasonably probable that a result more favorable to defendant would have been reached in the absence of error. (People v. Davis (2005) 36 Cal.4th 510, 532-533 [error under § 1043 is only state law error, subject to Watson standard of review]; People v. Watson (1956) 46 Cal.2d 818, 836.) Defendant has failed to meet his burden to show that his absence during the end of rebuttal argument or during the reading of jury instructions prejudiced his case or denied him a fair trial. (People v. Howze (2001) 85 Cal.App.4th 1380, 1395.) No evidence was taken during his brief absence, and it is speculative whether it would have been helpful to have the jury observe him during jury instructions, especially considering the fact that he may still have been upset. (People v. Weaver (2001) 26 Cal.4th 876, 968 [absence of defendant who feared becoming “overly emotional” before jury may have benefited defense].) We reach our conclusion that any error here was harmless notwithstanding the prosecutor’s argument to the jury following defendant’s departure from the courtroom. As we explain below (post, § II.C.2.), it is not clear that the prosecutor actually referred to defendant’s absence, as defendant claims.
C. Alleged Prosecutorial Misconduct.
Defendant argues that he was deprived of due process and a fair trial when the prosecutor committed several acts of prosecutorial misconduct during closing argument.
1. 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.” ’ ” [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 (1998) 17 Cal.4th 800, 819 [(Hill)].) “ ‘ “ ‘[A] prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] It is also clear that counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history, or literature.’ [Citation.]” ’ ” (Ibid.)
A claim of prosecutorial misconduct may be forfeited by failure to object below. (Hill, supra, 17 Cal.4th at p. 820.) “ ‘As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion-and on the same ground-the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.’ [Citations.]” (Ibid.) A defendant will be excused from the failure to timely object and/or request an admonition only if the objection would have been futile, if the admonition would not have cured the harm caused by the misconduct, or if the court immediately overrules an objection to the alleged misconduct and the defendant thus has no opportunity to request an admonition. (Ibid.)
2. Argument re defendant’s failure to take responsibility
After defendant left the courtroom following his reaction to the prosecutor’s rebuttal argument that defendant’s flight on the night of Shearell’s death and his efforts to blame Shearell for what happened were evidence of defendant’s guilt (ante, § II.B.), the prosecutor continued to emphasize that defendant’s flight from the scene showed that he had committed murder, arguing:
“So Mr. Williams ran away, letting the-blaming the only other possible person he can blame for this.
“What is he doing? He’s trying to avoid responsibility for what he did; doesn’t want to take responsibility for it.
“The defense wants you to believe that there is some kind of, you know, loving relationship, and that’s what you need to focus on.
“That is not what happened when Shearell Dillon got shot. He snapped; he shot her.
“So why does he run away? He knows he’s done something wrong. He’s trying to escape responsibility.
“He ran all night, as I have said. He tried to blame somebody else, changed his story, tried to say it was an accident.
“Look at all the evidence in this case. Consider all the arguments. Consider anything you’d like to consider, but know this:
“The defendant should not be allowed to get away with this. He tried to run. He tried to blame other people. He shot and killed Shearell Dillon.
“He’s still trying to avoid taking responsibility for what he did, and I am asking all of you to hold him responsible for that.
“This is murder. This is second-degree murder; implied malice murder. That[] is what the evidence tells you.” (Italics added.)
Defendant claims that the italicized portion of the prosecutor’s argument was a reference to defendant’s absence from the courtroom, and argues that the prosecutor was trying to “capitalize” on defendant’s “emotional display and his departure from the courtroom as yet another instance of [him] running away and refusing to accept responsibility for the homicide, ” which amounted to an improper commentary on defendant’s courtroom conduct and demeanor. (People v. Heishman (1988) 45 Cal.3d 147, 197 [generally improper to comment on nontestifying defendant’s demeanor or courtroom behavior because (1) such evidence is relevant only as it bears on witness credibility, (2) comment infringes on right not to testify, and (3) consideration of defendant’s demeanor violates rule that criminal conduct cannot be inferred from bad character].) We agree with respondent that defendant forfeited this claim by failing to object below, because a timely admonition to disregard the comment would have cured any possible harm. (Hill, supra, 17 Cal.4th at p. 820.)
Even if the claim was not forfeited, it lacks merit. The prosecutor’s comment was ambiguous. (People v. Boyette (2002) 29 Cal.4th 381, 434.) He did not specifically refer to defendant’s behavior in the courtroom, and his comment could be interpreted as a continuation of his argument that defendant’s flight from the crime scene (as opposed to the courtroom), and defendant’s continuing efforts at trial to blame Shearell for the shooting, were evidence of his guilt. To the extent that the comment could reasonably be interpreted as an improper reference to defendant’s emotional reaction, it was not so egregious that it infected the trial with such unfairness as to make defendant’s conviction a denial of due process. (Hill, supra, 17 Cal.4th at p. 819.) Moreover, the remark was “brief and fleeting, ” which reduced the possibility of prejudice. (Boyette at pp. 434-435.) Finally, the trial court properly instructed the jury twice (before and after closing arguments) that the attorneys’ statements did not constitute evidence in the case (CALCRIM No. 222), which further reduced any possible risk of prejudice.
3. Argument re implied malice murder
Defendant also argues that the prosecutor committed misconduct by misstating the law regarding implied malice murder. (Hill, supra, 17 Cal.4th at p. 829 [improper for prosecutor to misstate law].) The jury was correctly instructed, pursuant to CALCRIM No. 520 and CALJIC No. 9.43, that to convict defendant of second degree murder, the prosecutor had to prove that defendant committed an act that caused Shearell’s death, and that defendant acted with malice aforethought. The jury was further instructed that proof of either express malice or implied malice was sufficient to establish the requisite state of mind for murder, and that defendant acted with implied malice if (1) he intentionally committed an act, (2) the natural consequences of the act were dangerous to human life, (3) defendant knew his act was dangerous to human life at the time he acted, and (4) defendant deliberately acted with conscious disregard for human or fetal life. (CALCRIM No. 520.) The jury also was instructed that if it found that defendant committed an unlawful killing but did not intend to kill and did not act with conscious disregard for human life, it could convict defendant of involuntary manslaughter. (CALCRIM No. 580.) The jury was told that defendant committed involuntary manslaughter if (1) he committed a crime that posed a high risk of death or bodily injury (possession of a firearm by a felon) and (2) defendant’s acts unlawfully caused the death of another person.
During his closing argument, the prosecutor argued, without objection, that jurors should convict defendant of second degree murder because he acted with implied malice. The prosecutor focused on defendant’s statement to his mother that the gun had discharged when Shearell rolled over on it in bed:
“You know, it’s interesting too-I think-I mean, I don’t believe the sleeping with the gun in the bed can happen, but if you take that scenario, it’s still going to imply malice murder.
“If you’re in bed with a gun-and this gun has a pretty heavy trigger pull in double-action mode-so if you’re in bed with that gun in a condition where it can go off if somebody rolls over, probably single-action, right?
“Your hand’s on the gun, finger’s on the trigger, you’re [lying] there in bed with a loaded gun and the hammer fell, okay?
“That’s so dangerous that you’re disregarding-consciously disregarding-the safety of the other person in that bed with you, and did you this [sic] deliberately, [lying] in that bed and done that, as I told you earlier, if you set up something where some kind of accident occurs resulting in death, well, look at the set up.
“Is that pointing the gun and then mistaking how much trigger you’re going to need? Or is [lying] in bed with the gun in that dangerous condition?
“Either way, it’s implied malice murder, because you’re doing something so dangerous that no one should ever do that.
“So even though I don’t believe that, I think implied malice can still apply to that theory. And that is certainly something that can you [sic] consider if you’d like.” (Italics added.)
Defendant argues for the first time on appeal that the italicized portion of the prosecutor’s argument was misconduct, because the prosecutor did not refer to any finding the jury had to make about defendant’s “actual and individual mental state.” Defendant similarly claims that the prosecutor committed misconduct by arguing that implied malice involved “doing something that’s so dangerous and reckless-and anyone would know how reckless it is-and it results in death, ” instead of focusing on whether defendant actually knew how dangerous his action was. (Italics added.) Defendant similarly claims that it was misconduct for the prosecutor to assert, “You don’t have to have a judge tell you that pointing a loaded gun at somebody is dangerous. This is something you should know, and we should hold him to that standard, that responsibility.” Taken together, defendant argues, these statements “invited the jury to convict [defendant] of second-degree murder based on a mens rea finding that amounted to no more than criminal negligence.”
Defendant further argues that the prosecutor committed misconduct by failing to focus on defendant’s mental state when he argued, without objection, that defendant’s actions showed he was guilty of second degree murder, as opposed to involuntary manslaughter:
“Another way of putting it [the definition of involuntary manslaughter] is, if you did that act, like, a little more safely or under different conditions, it wouldn’t have resulted in death, okay? It wouldn’t have been too reckless.
“So if, you know, if you punch the person and they’re standing a foot from the wall, and they’re just going to fall back against the wall and then die.
“That’s involuntary manslaughter. That’s a way to do that safely, okay?
“The difference here is, you have a gun that you pointed at Shearell Dillon.
“There is no way to more safely point a loaded gun at somebody.
“And that’s why this shouldn’t be an involuntary manslaughter. There’s no better way to do it. And that’s kind of what involuntary manslaughter is.
“It’s an act that you don’t necessarily recognize the danger.
“Another thing can be like speeding in and out of traffic, and you happen to, you know, hit somebody and it causes their death.
“Well, you might not have thought that when you were speeding in and out of traffic, but if you did it a little more safely, maybe no one would have died, but there was a way to do it more safely.
“There’s no way to point a gun at somebody-a gun that’s loaded-more safely.
“So since there isn’t a way to do that more safely and death resulted, that’s implied malice.” (Italics added.)
Defendant argues that the prosecutor offered “an entirely contrived distinction between second-degree murder and involuntary manslaughter, ” because both crimes involve actions that are dangerous to human life. (See CALCRIM Nos. 520 [implied malice where natural consequences of defendant’s act “were dangerous to human life”] & 580 [involuntary manslaughter where defendant “committed a crime that posed a high risk of death or great bodily injury because of the way in which it was committed”].) Defendant claims that this improper argument “bypassed the real issue of mens rea, a more complex question.”
We agree with respondent that any claim of error regarding the prosecutor’s implied malice/involuntary manslaughter argument was forfeited by failure to object below. (Hill, supra, 17 Cal.4th at p. 819; People v. Bell (1989) 49 Cal.3d 502, 538 [prosecutorial misconduct issue waived where attorney arguably misstated law during rebuttal argument].) A timely admonition to disregard the comments would have cured any possible harm caused by the alleged misconduct. (Hill, supra, 17 Cal.4th at p. 820.)
We also agree with respondent that, even if the issue was not forfeited, it lacks merit. Where a prosecutorial misconduct claim focuses on comments made to 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. [Citation.]” (People v. Berryman (1993) 6 Cal.4th 1048, 1072, overruled on another ground in Hill, supra, 17 Cal.4th at p. 823, fn. 1 [no showing of bad faith required to establish prosecutorial error].) At the beginning of his closing argument to the jury, the prosecutor recited the elements of second degree murder set forth in CALCRIM No. 520, including the requirement for implied malice murder that “the defendant knew his action was dangerous to human life.” He first argued that there was evidence of defendant’s express malice, such as the fact that he was upset after Shearell returned from the mall and stated that he would shoot her. The prosecutor next argued that there also was evidence of implied malice, such as the fact that there was no mechanical reason for the gun to discharge accidentally, and that even if defendant mistakenly believed that he was firing an empty chamber just to scare Shearell, the natural consequence of pointing a loaded gun at someone was extremely dangerous to human life (CALCRIM No. 520).
In his rebuttal closing argument, the prosecutor stated that there was implied malice because there is no safer way to point a loaded gun at someone, which was simply another way of telling jurors to use their common sense to determine whether defendant had the requisite mens rea. Shortly after the prosecutor’s complained-of remarks, the prosecutor again stressed why defendant actually knew that his actions were dangerous: “And, as I said, you can see those rounds from the outside of the gun. [¶] There is no way that the defendant couldn’t have known if that gun was not loaded. [¶] Guns are dangerous. You don’t have to take a class... to know that it’s dangerous to point a loaded gun at somebody.” Taken as a whole, the prosecutor provided a correct summary of implied malice murder, and properly focused on defendant’s actions that supported a finding of implied malice (as opposed to involuntary manslaughter). The jury was correctly instructed on the two possible theories of guilt and, again, it was instructed twice that the attorneys’ statements did not constitute evidence in the case. Jurors also were instructed that if they believed that any of the attorneys’ comments on the law conflicted with the court’s instructions, that they must follow the jury instructions. (CALCRIM No. 200.) In light of all these circumstances, there is no reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.
D. Response to Jury’s Question.
1. Background
On the same day that jurors began deliberations, the jury sent a question to the trial court. Jurors asked for “an explanation for the 3rd element of intent or accident and asked for an example.” This was presumably a reference to CALCRIM No. 510 (Excusable Homicide: Accident), which provides that a killing is excused and defendant is not guilty of murder if (1) defendant was doing a lawful act in a lawful way, (2) he was acting with usual and ordinary caution, and (3) he “was acting without any unlawful intent.” (E.g., People v. Lara (1996) 44 Cal.App.4th 102, 110 [accident defense amounts to claim that defendant acted without forming mental state necessary to make his or her actions a crime].) The trial court and counsel briefly discussed the court’s response to the question. The court wrote a note to the jury stating that it “was to determine facts using the ordinary meaning of the words.” The court did not provide an example, as the jury had requested, stating, “I must refrain from giving an example.”
According to an “in chambers minute order, ” the jury question was inadvertently destroyed; however, the minute order summarizes the question and the steps taken to respond to it.
2. Analysis
Defendant claims that, by simply directing the jury to determine the facts using the ordinary meaning of the words in CALCRIM No. 510, the trial court obviously evaded jurors’ request for an explanation regarding the definition of an excusable homicide.
“The trial court has a duty to help the jury understand the legal principles the jury is asked to apply. (People v. Beardslee (1991) 53 Cal.3d 68, 97.) In particular, under section 1138 the court must attempt ‘to clear up any instructional confusion expressed by the jury.’ [Citation.] But ‘[t]his does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury’s request for information.’ [Citations.] In exercising that discretion, the trial court ‘must at least consider how it can best aid the jury. It should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given.’ [Citations.]” (People v. Giardino (2000) 82 Cal.App.4th 454, 465, original italics; see also People v. Gonzalez (1990) 51 Cal.3d 1179, 1212-1213 [no error for trial court to refer jurors to original jury instructions in response to request for clarification of legal definition of malice].)
There is nothing in the record to suggest that defendant objected to the proposed response to the jury, and the issue is therefore arguably waived. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1193 [claim of error waived where defendant consents to response given to jury]; People v. Kageler (1973) 32 Cal.App.3d 738, 746 [failure to object to response to jury’s question may be construed as tacit approval].)
Even assuming arguendo that defendant’s argument was not waived, it lacks merit. CALCRIM No. 510 mirrors the definition of excusable homicide set forth in section 195, subdivision (1). As for the jury’s question about the third element of an accidental homicide (whether defendant was acting without an unlawful intent), the jury was elsewhere instructed on the mental state required to prove murder (CALCRIM No. 520) and involuntary manslaughter (CALCRIM No. 580). Because the original instructions were themselves full and complete, the court had discretion to determine what additional explanations were sufficient to satisfy the jury’s request for information, and whether it should merely reiterate the instructions already given. (People v. Gonzalez, supra, 51 Cal.3d at p. 1213; People v. Giardino, supra, 82 Cal.App.4th at p. 465.) This case is distinguishable from Giardino, upon which defendant relies, where the original jury instructions (regarding resistance in a rape by intoxication case) were insufficient, because a concept for the jury to decide was not correctly explained in the original instructions. (Giardino at pp. 465-466.)
Section 195, subdivision (1) provides that homicide is excusable “[w]hen committed by accident and misfortune, or in doing any other lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent.”
Here, by contrast, defendant does not identify anything that was insufficiently explained to the jury. Although he claims that the trial court was under an obligation to give “a satisfactory explanation” in response to the jury’s question, he does not specify what more the trial court should have told the jury. Jurors apparently asked for an example of what would constitute an accident; however, “comments diverging [from standard jury instructions] are often risky.” (People v. Beardslee, supra, 53 Cal.3d at p. 97.) The trial court did not err in declining to provide an example to the jury as requested.
III. Disposition
The judgment is affirmed.
We concur: Ruvolo, P. J., Rivera, J.