# People v. Dykes

> California Supreme Court · June 15, 2009 · 46 Cal. 4th 731

URL: https://www.frixlaw.com/law-library/cases/2625630

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. ERNEST EDWARD DYKES, JR., Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** June 15, 2009
- **Citations:** 46 Cal. 4th 731; 95 Cal. Rptr. 3d 78; 209 P.3d 1; 2009 Cal. LEXIS 5195
- **Precedential status:** Published
- **Opinion:** Opinion by George
- **Judges:** George
- **Cited by:** 504 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2625630

## How later opinions describe it (automated extraction)

- holding that “if an insurance company has offered its customers the option to purchase UM/UIM coverage on all their vehicles with sufficient accurate information, it has satisfied its obligation under” section 10-4-609(2), but concluding that an insurer’s continued use of a UM…
- concluding that a statute prohibiting possession *495 of a loaded and concealed firearm without a permit did not violate the Second Amendment, because Heller recognized a limited right to keep and bear arms for personal protection in the home
- concluding that a statute prohibiting possession of a loaded and concealed firearm without a permit did not violate the Second Amendment, because Heller recognized a limited right to keep and bear arms for personal protection in the home
- holding that “if an insurance company has offered its customers the option to purchase UM/UIM c overage on all their vehicles wit h sufficient accurate information , it has satisfied its obligation under” section 10-4-609(2
- finding eight-minute video depicting victim shortly before his death admissible because it did not constitute “memorial” or “tribute”

## Opinion text

*742
Opinion
GEORGE, C. J.
Defendant Ernest Edward Dykes, Jr., appeals from a judgment of the Alameda County Superior Court imposing a sentence of death following his conviction of the first degree murder of Lance Clark (Pen. Code, § 187, subd. (a)),
1
one count of attempted murder (§§ 664, 189), and one count of robbery (§ 211), both involving Bernice Clark. In connection with each count, the jury found true an allegation that defendant personally used a firearm. (§ 12022.5.) With respect to the charge of attempted murder, the jury found not true an allegation that the attempted murder had been willful, deliberate, and premeditated. (§§ 189, 664, subd. (a).) In connection with the attempted murder and robbery counts, the jury found true the allegations that the victim suffered great bodily injury and that she was a victim age 70 years or older. (§ 12022.7, subd. (c).) The jury found true a robbery-murder special-circumstance allegation. (§ 190.2, subd. (a)(17)(A).) At the penalty phase of the trial the jury determined that the punishment should be death. The trial court imposed a sentence of death and imposed sentence on the noncapital offenses. Defendant’s appeal is automatic. (§ 1239, subd. (b).)
We affirm the judgment in its entirety.
I. FACTS
A.
Guilt Phase Evidence
Bernice Clark owned an apartment building in Oakland. During a period of unemployment, defendant, who was 20 years of age, resided for several months with his mother in one of the apartments in Bernice’s building. The apartment defendant shared with his mother overlooked the rear parking lot of the building.
Tenants, including defendant, were aware that Bernice carried ample cash with her on her frequent visits to the apartment building. On her visits, Bernice cashed checks for tenants and lent them money; she had cashed a check for defendant. Indeed, another tenant, LaCondra Douglas, had warned Bernice not to carry cash with her. Douglas testified that defendant had expressed an intent to rob Bernice prior to the commission of the charged crimes. Tenants testified that they had observed Lance Clark, the murder victim, who was Bernice’s young grandson, accompanying Bernice on her rounds on multiple occasions.
In November 1992, defendant acquired a .45-caliber revolver. Bianca Rodriguez, then his girlfriend, testified that at his request she gave him the
*743
money with which to purchase the weapon. Douglas testified that about two months prior to the commission of the charged crimes, she sold defendant approximately 20 bullets for his handgun.
On the afternoon, of July 26, 1993, Bernice, who was then 70 years of age, and her grandson Lance, then nine years of age, drove to the rear parking lot of the apartment building, where she consulted with her handyman. Bernice testified that she was approached by one of her tenants, Edward Tyson, who asked to borrow $20. She agreed, and while he was signing a receipt, a man approached wearing a stocking mask. The man placed a dark object against her head. She recognized the man as defendant and told him that he looked like one of her tenants. She heard a shot, then defendant said something about money or a holdup, and she recalled a struggle over her wallet. She heard only one shot, but her recollection of the crime was confused, and she was unable to hear well after the weapon discharged.
Tyson testified that on the afternoon of July 26, 1993, Bernice agreed to lend him $20. He heard her drive to the rear parking lot and approached her as she sat in the driver’s seat with the door open. Tyson observed Lance seated in the passenger seat of the vehicle. As Tyson signed a receipt, a man approached wearing a light-colored hooded sweatshirt. He had a woman’s nylon stocking over his head. The man demanded money of Tyson, but Tyson backed away and denied he had any. Tyson witnessed the man point his weapon at Bernice and demand money. Tyson heard Bernice inform the man that he resembled one of her tenants named Ernest. Tyson fled, and as he passed a gap in the fence he heard a firearm “dry fire.” He subsequently heard two shots in quick succession, the first followed by a sound of breaking glass. After an interval he heard a third shot. He heard the robber continue to demand money after the first shot.
Alphonso Odom, who had been staying for several months with a resident of the apartment building located next to the one owned by Bernice, testified that he was acquainted with defendant and with Bernice. Odom observed defendant in front of the apartment building a few minutes prior to the shooting. Defendant was wearing a gray hooded sweatshirt and green or blue acid-washed jeans. Odom observed Bernice drive with her grandson to the rear of the apartment building. Shortly thereafter, Odom heard two shots and witnessed the second shot being fired as he stood on his apartment balcony. He observed defendant standing by Bernice’s vehicle holding a firearm and wearing a gray sweatshirt and green or blue acid-washed jeans. He heard the sound of breaking glass after the second shot, and observed defendant flee over the back fence.
Odom ran from his apartment to the scene of the shooting, joining Tyson, who had returned after initially fleeing. They observed Lance slumped over in
*744
the automobile. Bernice’s neck was bleeding. Lance had been shot and soon stopped breathing. Emergency medical personnel were unable to revive him.
Tyson remained at the scene, while Odom returned to his apartment. Tyson gave a statement to the police, picked defendant’s photograph from a photo lineup, and reported that the robber’s voice sounded like defendant’s. Odom, on the other hand, did not contact the police concerning his knowledge of the crime until after he was arrested on unrelated charges a few days subsequent to the commission of the charged offenses. He hoped for leniency in return for information he was able to provide. His testimony was impeached with prior felony convictions.
Defendant changed his attire and returned to the scene of the shooting. There he spoke with a police officer, stating that he had observed Tyson speaking with Bernice as she sat in her vehicle and that as he crossed the parking lot he heard shots. An unidentified, armed Black male wearing jeans and a white hooded sweatshirt ran past him and fled over the back fence. The officer testified that defendant appeared composed and was not intoxicated. Odom overheard some of this discussion, reporting that defendant told the officer, “that’s messed up. The dude ran right by me.”
In the afternoon or evening of July 26, 1993, Odom lent his bicycle to defendant. When defendant returned with some beer, defendant said to Odom, “that was f’d up, you know, what happened.” Odom agreed and said he knew defendant was responsible for the shooting. Odom testified that defendant admitted he was the culprit and said, “man, I didn’t mean it to go down like that.”
Lance was killed by a single gunshot that passed through his body from his left chest, exiting on the lower right side of his back. There was a large entry wound, indicating the same bullet had passed through Bernice’s neck before it struck Lance. The forensic pathologist, Dr. Paul Hermann, was unable to determine with certainty Lance’s position when he was shot, but the pathologist believed Lance had been leaning to the left. Bernice received an injury to her neck but survived.
An examination of Bernice’s automobile produced a bullet lodged inside the rear door on the passenger side. The impact of the bullet had shattered the door’s window. Another bullet later was discovered in the front passenger floor area.
Dr. Lansing Lee, a firearms expert, testified that the bullets discovered in Bernice’s vehicle were for a .45-caliber semiautomatic pistol. Although the ammunition was manufactured for a semiautomatic weapon, it also could be
*745
fired by a certain vintage Colt .45-caliber revolver. Such a weapon could be fired by single action if the shooter pulled back the hammer using two pounds of pressure. The weapon also could be fired without pulling back the hammer, but would require at least eight pounds of pressure to fire.
Sergeant Madarang of the Oakland Police Department was interviewing Tyson at the police station on the day of the crime when he received a telephone call from someone who would identify herself only as Connie, stating that she had sold defendant some bullets a few days preceding the crime, and that defendant had told her he planned to rob Bernice. In her own testimony, LaCondra Douglas would admit only that she had placed an anonymous call to the police on that date, denying she had reported that defendant had purchased ammunition from her.
On August 7, 1993, defendant telephoned the Oakland Police Department, stating he “want[ed] to know if I shot somebody.” He mentioned Bernice and provided his location, but denied responsibility for the crime. He was arrested and transported to the police department for interrogation. Arresting officers directed him not to speak while he was being transported, but he did so in a rambling manner, wondering how he could be identified and stating he would not commit anything like the charged crimes. Once defendant arrived at the police station, he was advised of his constitutional rights and interrogated by Officers Chenault and Madarang. During two hours of questioning, he denied responsibility for the crime. He reported that he had heard the shots because he had been walking through the parking lot on his way to purchase beer, and repeated his story of having witnessed an unidentified Black male flee from the scene. Ultimately the officers confronted him with evidence in their possession, including statements of eyewitnesses. Defendant became distressed and admitted involvement in the shooting. The unrecorded statement reflected the circumstance that he was aware prior to the shooting that Lance was in the vehicle.
Defendant subsequently made two tape-recorded statements. These were played for the jury. In the first statement, he explained that his family expected more of him than he was able to deliver and that he needed money to attend Laney Community College. He observed Bernice from the rear of his apartment and decided to rob her. He approached the vehicle and demanded money. She did not respond quickly, so he unsuccessfully attempted to fire a warning shot, and on the second attempt fired a shot to the rear of the vehicle, intending to destroy the rear window. Bernice said “don’t be silly, child” and told him to take the money from her wallet but leave the cards. He had one hand on the wallet and the other hand, which was holding his firearm, on the headrest of the driver’s seat. During the struggle over the wallet, the weapon fired accidentally. He claimed he had not observed Lance
*746
in the vehicle. He departed from the scene, changed his clothes, and returned to the apartment building to see what was happening. He subsequently threw the murder weapon, a .45-caliber Colt service revolver manufactured in 1917, into the Oakland Estuary. He stated he had drunk four cans of Olde English 800 malt liquor prior to committing the crime and one afterwards, but in his statement he informed the police he was not under the influence of alcohol when he committed the crime. Defendant sobbed during the recorded statements and reiterated “I didn’t mean for it to go down like that. I’m no killer.” He informed the officers he had spent two weeks following his commission of the crime drinking alcohol and using marijuana, feeling that his world was coming to an end. After his father notified him he had been mentioned in the newspaper as a suspect in the crime, he telephoned the police department.
Defendant testified in his own behalf at trial, giving substantially the same narrative he had given in his taped statements. He testified he had spent the afternoon preceding the crime applying for employment, and then returned home and performed household chores. When he observed Bernice drive into the rear parking lot of the building, he formed the intent to rob her. He retrieved his loaded firearm, and then took some stockings from his mother’s room to wear as a mask. Donning jeans over his shorts and pulling the hood of his sweatshirt over his head to disguise himself from Bernice, he proceeded to the parking lot and confronted Bernice without ever observing Lance in her vehicle. He demanded her money. She said, “Don’t be stupid, child.” When she hesitated, he attempted to fire his weapon, but failed. A second attempt resulted in a warning shot aimed at the rear of the vehicle. Bernice tried to remove the cash from her wallet, but defendant grabbed the wallet.
In his trial testimony, defendant claimed for the first time that after he fired the warning shot, LaCondra Douglas’s boyfriend drove into the parking lot and defendant became flustered and rushed, leading to the accidental firing of the weapon during his struggle with Bernice over her wallet. He denied intending to shoot Bernice or injure her. He seized the cash from the wallet and fled through a gap in the rear fence, wondering whether he really had shot Bernice. He changed his clothing, found a hiding place for his firearm, purchased some beer, and shortly thereafter returned to the parking lot to find out what had transpired. He lied to the police, trying to offer a description of the shooter that “somewhat” matched his own appearance, in case he had been observed during the shooting. He subsequently disposed of his weapon and spent the ensuing days in a state of intoxication, “trying to forget.” He testified that he “was just doing stuff like [he] felt this was [his] last days on earth or something.” After discussion with his father, he telephoned the police department to determine whether there was a warrant for his arrest. During the initial stage of his interrogation, he had denied responsibility for the crimes because he was frightened.
*747
In the course of his testimony, defendant denied that his girlfriend had given him the money to buy the firearm and claimed that LaCondra Douglas had provided him with the ammunition free of charge, months prior to the crime. He testified he had test-fired the weapon and found its firing unpredictable. Defendant testified he had observed Lance accompanying Bernice on only one occasion. Defendant denied he had stated prior to committing the crime that he intended to rob Bernice, claiming he merely had been present when other tenants discussed robbing her. He acknowledged he was on probation for illegal possession of a firearm at the time he committed the crime and knew he should not be armed, but he claimed he needed a weapon to protect himself from the drug dealers who trafficked in his neighborhood.
B.
Penalty Phase Evidence
Penalty phase evidence introduced by the prosecution included testimony from Bernice, Lance’s sister Kristie, and Lance’s elementary school teacher. They described how they had learned of Lance’s death and described the impact of his death upon them. Bernice recounted the difficult course of her recovery from her physical injuries.
Oakland Police Officer Rand Monda described the circumstances of defendant’s prior illegal possession of a loaded, concealed firearm.
Defendant’s mother, father, sister, brother, and aunt testified on his behalf, describing their love for him and their hope that he would be granted a sentence of life imprisonment.
II. DISCUSSION
A.
Asserted Errors Affecting the Guilt Phase of Trial
1.
Denial of motion to exclude statements
Defendant claims statements he made to the police and the deputy district attorney at the police station following his arrest were obtained in violation of
Miranda v. Arizona
(1966) 384 U.S. 436 [ 16 L.Ed.2d 694 , 86 S.Ct. 1602 ]
(Miranda),
because the police failed to honor his asserted unequivocal request for counsel. He also contends he made these statements involuntarily. Finally, he challenges as involuntary the statements he made in the police vehicle as he was being transported to the police station after his arrest. Defendant argues that the trial court’s failure to suppress the statements constituted a violation of rights secured by the Fifth Amendment to the United States Constitution and requires reversal of his conviction and sentence of death.
*748
a.
Factual background
At the in limine hearing on defendant’s motion to exclude his statements from evidence, the parties presented starkly contrasting accounts of defendant’s interactions with arresting officers Grier and Fritz, and his interviews with Sergeants Madarang and Chenault.
On August 7, 1993, defendant telephoned a police dispatcher to inquire about his potential responsibility for the charged crimes. Officer Fritz arrived to arrest him. Fritz placed defendant in his patrol car, advised him that he was under arrest on suspicion of murder, and directed him not to ask questions concerning the case. Fritz did not advise defendant of his
Miranda
rights or pose any questions. Defendant began to talk, inquiring how he had been identified and remarking that he had not been in trouble recently. Fritz then asked Officer Keller to join him in the police vehicle. Fritz again informed defendant that he should not inquire about the charges or make any statements. Defendant nonetheless continued to speak, again questioning who had identified him and inquiring, “are you sure it’s me?” After approximately 10 minutes, Officer Keller exited from the vehicle and Fritz drove defendant to the police station, arriving at approximately 10:00 a.m.
Defendant was placed in an interview room and was offered food, drink, and cigarettes. Sergeant Madarang, the primary investigating officer, was at that time in Sacramento. He returned to Oakland, entering the interrogation room with his partner, Sergeant Chenault, at approximately 12:20 p.m. He asked defendant some preliminary questions. Sergeant Madarang then read defendant the full
Miranda
advisements directly from a printed form, which defendant initialed. Defendant agreed to speak with the officers. Over the next hour and a half, he denied any responsibility for the shooting and claimed to have been merely a witness. At approximately 2:00 p.m., the officers took a break, offering defendant refreshment and a bathroom break. They returned for further interrogation at approximately 3:30 p.m. Defendant continued for approximately an hour to deny guilt. The detectives informed defendant that witnesses had identified him as the shooter, and challenged him with the evidence they had gathered against him. Defendant became emotional and stated he wished to explain what really happened. At approximately 4:45 p.m., defendant confessed to the crime, explaining he decided to rob the victim because he was under financial pressure from his family.
Sergeant Madarang subsequently initiated a tape-recorded interview in which defendant again confessed. Defendant acknowledged he had been advised of his rights when the officers first arrived to question him. Sergeant Madarang again read the
Miranda
advisements to defendant. After confirming that his initials were on the
Miranda
form, defendant stated he understood his
*749
rights and wished to speak with the detectives. At the end of the tape-recorded interview, defendant confirmed he was not promised anything or threatened in any way.
After the tape-recorded interview with Sergeant Madarang, defendant participated in another tape-recorded interview with Deputy District Attorney O’Connor, again confessing to the murder. At the beginning of this second interview, defendant confirmed that he already had spoken to the officers, that he had done so freely and voluntarily, and that the officers had read the
Miranda
advisements to him. After the deputy district attorney again read defendant the
Miranda
advisements, defendant initialed a second
Miranda
form and stated he understood his rights and, having those rights in mind, wanted to speak.
Defendant testified at the hearing that he had telephoned the police because he had read a newspaper article about the shooting. According to defendant, he made no requests for action on the part of the police department, but was informed an investigator would arrive to speak with him. He was placed in the patrol car. He inquired whether the officers had a warrant, but said nothing else. After his arrest he waited two to three hours in a small room at the police station before being interviewed by the officers.
Defendant claimed that when the officers began to interrogate him, they failed to advise him of his rights. He claimed he requested counsel, but was informed “there isn’t one right now, but we’ll get one for you,” and the interrogation continued. According to defendant, the officers accused him of committing the murder, stated he could not make a statement later if he waited for a lawyer, threatened him with not seeing his girlfriend unless he told the truth, and informed him the matter was not sufficiently serious to warrant a judgment of death. Defendant testified the police informed him that a truthful confession would be beneficial to him and result in imprisonment only for a few years, and advised him that if he did not tell the truth then, his statement would constitute damaging evidence when he was brought before a court and at trial. According to defendant, he again requested counsel and to telephone his parents. Defendant testified he confessed only after the officers ignored his requests for counsel, asserted that they had witnesses against him, stated that he would have no opportunity to make a statement later, and patted him on the shoulder urging him to confess. On cross-examination, defendant acknowledged that he had been offered food and drink throughout the interviews, that he had been advised of his constitutional rights in past unrelated matters, that he knew he could speak with a lawyer, and that on prior occasions he had been arrested and had refused to talk to the police.
Sergeants Madarang and Chenault testified that defendant did not request to speak with an attorney during their interrogations. They denied defendant’s
*750
other assertions. The officers denied threatening or making promises to defendant to persuade him to confess. They denied having discussed the death penalty or offered benefits in exchange for the confession. The officers did not say it would “make a difference” to the court or the prosecution if defendant told the truth. They did not threaten defendant that he would not see his parents or girlfriend unless he confessed, nor did they inform him that if he confessed he would be subject to imprisonment for only a few years. Sergeant Madarang denied patting defendant on the shoulder. Madarang testified that throughout the interviews, the officers provided defendant with soft drinks and with cigarettes at his request, allowed him to use the restroom, and offered him food.
In argument on the motion, the prosecutor stressed defendant’s written and recorded acknowledgements that he had been advised of his rights in a timely manner. Defense counsel did not seriously contest the
Miranda
issue, stating in response to the prosecutor’s argument: “I think the issue is not whether or not he was properly admonished. I believe that the timing—you know, I see no reason to disbelieve, frankly, the time of that.” Instead, defense counsel argued: “The issue is whether or not he was told it was a capital offense, whether he was told things would be better for him.”
The trial court denied the motion to suppress and admitted defendant’s statements, accepting the officers’ version of the events as true and concluding that defendant properly was advised of and waived his
Miranda
rights. The court made a finding that Sergeants Madarang and Chenault were credible witnesses, based on “the content of their testimony” and the court’s “personal observations of their demeanor as they testified.” The court concluded it was established beyond a reasonable doubt that defendant had received timely admonitions and knowingly and intelligently had waived his rights. The court further found, beyond a reasonable doubt, that defendant’s statements “were freely and voluntarily given.” Specifically, the trial court concluded “that there [were] no circumstances of coercion or force, and that the totality of the circumstances indicate[d] that these statements were voluntarily given.” With respect to the statements made to the deputy district attorney, the trial court reached the same conclusions, finding beyond a reasonable doubt that defendant was “appropriately and in a timely fashion advised ... of his constitutional rights, and . . . freely and voluntarily waived those rights.”
b.
Defendant’s challenge to the admissibility of his confessions
Defendant asserts his initial confession to Sergeants Madarang and Chenault was obtained in violation of
Miranda
because it was elicited from
*751
him after his unequivocal request for counsel. Defendant also asserts his second confession to Deputy District Attorney O’Connor was the tainted product of his initial confession. We conclude the trial court properly denied defendant’s motion to suppress these two confessions.
Pursuant to
Miranda, supra,
384 U.S. 436 , “a suspect [may] not be subjected to custodial interrogation unless he or she knowingly and intelligently has waived the right to remain silent, to the presence of an attorney, and, if indigent, to appointed counsel.”
(People v. Cunningham
(2001) 25 Cal.4th 926, 992 [ 108 Cal.Rptr.2d 291 , 25 P.3d 519 ]; see also
People
v.
Rundle
(2008) 43 Cal.4th 76, 114 [ 74 Cal.Rptr.3d 454 , 180 P.3d 224 ], disapproved on another ground in
People v. Doolin
(2009) 45 Cal.4th 390, 421, fn. 22 [ 87 Cal.Rptr.3d 209 , 198 P.3d 11 ].) After a knowing and voluntary waiver, interrogation may proceed “ ‘until and unless the suspect clearly requests an attorney.’ ”
(People v. Gonzalez
(2005) 34 Cal.4th 1111, 1124 [ 23 Cal.Rptr.3d 295 , 104 P.3d 98 ].) The prosecution bears the burden of demonstrating the validity of the defendant’s waiver by a preponderance of the evidence.
(People
v.
Bradford
(1997) 14 Cal.4th 1005, 1034 [ 60 Cal.Rptr.2d 225 , 929 P.2d 544 ], citing
Colorado v. Connelly
(1986) 479 U.S. 157, 168 [ 93 L.Ed.2d 473 , 107 S.Ct. 515 ].)
In considering a claim on appeal that a statement or confession is inadmissible because it was obtained in violation of a defendant’s
Miranda
rights, we “review independently the trial court’s legal determinations . . . . We evaluate the trial court’s factual findings regarding the circumstances surrounding the defendant’s statements and waivers, and ‘ “accept the trial court’s resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence.” ’ ”
(People v. Rundle, supra,
43 Cal.4th at p. 115 .)
The trial court in the present case was aware that the prosecution’s burden was to establish the validity of defendant’s waiver by a preponderance of the evidence but, apparently to demonstrate its confidence in its conclusion, applied the stricter beyond a reasonable doubt standard. The court stressed that it credited the officers who testified that defendant was advised of his
Miranda
rights in a timely manner and that he never requested counsel. The two tape-recorded interviews, the first with the officers and the second with the deputy district attorney, further corroborate the officers’ version of the events. In the tape-recorded interviews, defendant acknowledged that he had been advised of his rights at the commencement of the prior interrogation, that he initialed the waiver form, and that he wished to speak to the authorities. We accept the trial court’s resolution of the factual dispute that existed between the defense and the prosecution witnesses, along with its credibility determination, because both findings were amply supported by the evidence.
*752
Defendant’s attack on the credibility of all of the police officers, unsupported by the record of the suppression hearing, is insufficient to provide a basis for rejecting the trial court’s findings. Defendant urges that the very comprehensiveness of the officers’ denials that they urged defendant to confess undermines the officers’ credibility. We are persuaded, however, that the trial court’s determination that the officers were credible witnesses is supported by substantial evidence. In sum, defendant’s
Miranda
claim lacks merit. Having concluded that defendant’s initial confession to the officers was not obtained in violation of
Miranda ,
we reject defendant’s related claim that his second confession to the deputy district attorney was the tainted product of his initial confession.
Defendant also challenges the admission of the statements on the ground they were involuntary. Any involuntary statement obtained by a law enforcement officer from a criminal suspect by coercion is inadmissible pursuant to the Fourteenth Amendment to the federal Constitution and article I, section 7 of the California Constitution.
(People v. Sapp
(2003) 31 Cal.4th 240, 267 [ 2 Cal.Rptr.3d 554 , 73 P.3d 433 ];
People v. Neal
(2003) 31 Cal.4th 63, 67 [ 1 Cal.Rptr.3d 650 , 72 P.3d 280 ].) To determine the voluntariness of a confession, courts examine “ ‘whether a defendant’s will was overborne’ by the circumstances surrounding the giving of a confession.”
(Dickerson v. United States
(2000) 530 U.S. 428, 434 [ 147 L.Ed.2d 405 , 120 S.Ct. 2326 ].) In making this determination, courts apply a “totality of the circumstances” test, looking at the nature of the interrogation and the circumstances relating to the particular defendant.
(People v. Haley
(2004) 34 Cal.4th 283, 298 [ 17 Cal.Rptr.3d 877 , 96 P.3d 170 ];
People v. Massie
(1998) 19 Cal.4th 550, 576 [ 79 Cal.Rptr.2d 816 , 967 P.2d 29 ].) With respect to the interrogation, among the factors to be considered are “ ‘ “the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity” ....’”
(People
v.
Massie, supra,
19 Cal.4th at p. 576 .) With respect to the defendant, the relevant factors are “ ‘ “the defendant’s maturity [citation]; education [citation]; physical condition [citation]; and mental health.” ’ ”
(Ibid.)
“A statement is involuntary [citation] when, among other circumstances, it ‘was “ ‘extracted by any sort of threats . . . , [or] obtained by any direct or implied promises
(People v. Neal, supra,
31 Cal.4th at p. 79.)
As with
Miranda
claims, the trial court’s legal conclusion as to the voluntariness of a confession is subject to independent review on appeal.
(People
v.
Haley, supra,
34 Cal.4th at p. 298;
People v. Massie, supra,
19 Cal.4th at p. 576 .) The trial court’s resolution of disputed facts and inferences, its evaluation of credibility, and its findings as to the circumstances surrounding the confession are upheld if supported by substantial evidence.
(People v. Haley, supra,
34 Cal.4th at p. 298;
People v. Massie, supra,
19
*753
Cal.4th at p. 576.) The state bears the burden of proving the voluntariness of a confession by a preponderance of the evidence.
(People v. Haley, supra,
34 Cal.4th at p. 298.)
In the present case, again applying the beyond a reasonable doubt standard, the trial court concluded that “there [were] no circumstances of coercion or force, and that the totality of the circumstances indicates that these statements were voluntarily given.” The interrogating officers specifically denied defendant’s claims, including that they offered him benefits for confessing, issued threats, or misled him concerning the potential punishment he faced. The trial court credited the officers’ testimony, and its credibility determination is supported by substantial evidence.
Under all the circumstances, we agree with the trial court that defendant’s statements were made voluntarily. Although defendant was required to wait approximately two hours before the interrogation began, the delay was not the result of improper police conduct. Rather, it arose because the police had not planned to arrest or interview defendant prior to his own telephone call to the police; Sergeant Madarang, the lead investigator, was in Sacramento and was required to travel to Oakland to interview defendant. During defendant’s interrogation, the officers provided defendant with soft drinks and cigarettes, allowed him to use the restroom, and offered him food. Most important, as the trial court found, the officers did not engage in any impermissibly coercive tactics in procuring defendant’s confession.
Defendant contends his own unbalanced mental state rendered him susceptible to coercion. His claim that he was mentally disturbed is based primarily upon the circumstance that he telephoned the police dispatcher and that he spoke in a rambling manner in the police vehicle while being transported to the police station. This conduct, however, may be explained by the stress and emotion felt by defendant after recognizing that he would face responsibility for the crime. In any event, his own vulnerability does not demonstrate official coercion. “Insofar as a defendant’s claims of involuntariness emphasize that defendant’s particular psychological state rendered him open to coercion, this court has noted that ‘[t]he Fifth Amendment is not “concerned with moral and psychological pressures to confess emanating from sources
other than official
coercion.” ’ ”
(People v. Smith
(2007) 40 Cal.4th 483, 502 [ 54 Cal.Rptr.3d 245 , 150 P.3d 1224 ], italics added.) Although defendant may have felt vulnerable, there is no indication of police coercion during his initial contacts with the police or during the subsequent interrogations. Similarly, although defendant claims his decision to confess was based upon his youth and his absence of experience with the criminal justice system, there was no indication of police exploitation of these circumstances. On the contrary, during his tape-recorded interviews, defendant expressly stated that he was speaking freely and voluntarily.
*754
Consequently, the trial court properly concluded that defendant’s confession was made voluntarily.
c.
Defendant’s challenge to statements he made in the patrol car
Defendant contends his spontaneous statements made en route to the police station on August 7, 1993, were similarly involuntary because he was mentally disturbed at the time he made the statements.
In response to an ambiguous challenge to the voluntariness of statements defendant made in Officer Fritz’s patrol vehicle, the trial court found that these statements “were freely and voluntarily given.” In addition, according to the trial court, although defendant was not given
Miranda
advisements, his statements were made spontaneously and “were not the product of custodial interrogation.” Accordingly, the trial court concluded that these spontaneous statements were admissible. The trial court also stated that based upon its personal observation of Officer Fritz as he testified, it found that the officer was “a believable and credible witness.”
Defendant again contends his unbalanced mental state is evidenced by his conduct in contacting the police and in his repetitive and rambling statements made while he was seated in Officer Fritz’s patrol car. Fritz did not describe defendant’s statements as rambling or incoherent. Defendant himself testified that he said nothing at all in the patrol car, whether rambling or otherwise, other than to inquire whether the officers had a warrant. Fritz credibly testified that he did nothing more than sit and listen to defendant. There is no evidence of any official coercion or of exploitation of defendant’s youth or asserted inexperience. Defendant’s claimed psychological vulnerabilities do not suggest his statements were involuntary. (See
People v. Leonard
(2007) 40 Cal.4th 1370, 1403 [ 58 Cal.Rptr.3d 368 , 157 P.3d 973 ];
People
v.
Smith, supra,
40 Cal.4th at p. 502.) Accordingly, we conclude that the trial court properly denied defendant’s motion to suppress the statements defendant made in the police car.
2.
Prior consistent statements
Defendant contends that the trial court erred by permitting the prosecutor to enhance the credibility of prosecution witness Alphonso Odom through the admission of Odom’s prior consistent statements. Defendant claims in essence that these prior out-of-court statements constituted hearsay and were not made admissible by Evidence Code section 791, subdivision (b). In pertinent part, that provision limits the admission of a prior out-of-court statement to circumstances in which there has been an express or implied
*755
charge that the witness is fabricating or is influenced by bias or other improper motive, and the statement was made before any potential bias or motive to lie arose. Defendant points out that the defense had not yet impeached Odom when the statements were admitted, and he claims that, in any event, Odom already had a motive to fabricate when he made the prior statements.
This claim arises in the following factual setting. At trial, Odom recounted his observations on the day the crimes were committed. He testified he was present at his home that afternoon. He resided in the apartment building next to the building in which defendant resided. He observed defendant, wearing distinctive clothing, standing near the mailbox area of his own apartment building. From the vantage point of his apartment balcony, Odom observed defendant proceed down the driveway toward the back of the building and the parking lot where the murder occurred. Returning to the interior of the apartment, Odom heard a shot. He ran to the balcony and witnessed the shooting that resulted in Lance’s death. Odom hurried to the scene and attempted to provide assistance to Lance until he realized that the boy was dead. Odom returned to his home as the police approached. Odom observed defendant return to the scene and “act surprised” during defendant’s discussion with the responding officers. Later that day, Odom made it known to defendant that he, Odom, realized defendant was the perpetrator of the crime. Defendant responded “it wasn’t supposed to go down that way.”
During his trial testimony, Odom experienced some difficulty recalling the precise course of events, explaining that the years intervening between the crimes and the trial rendered precise recollection difficult. He was uncertain whether he had seen defendant at the mailboxes on one or two occasions, that is, whether he had returned to his apartment during defendant’s visit to the mailboxes. During his testimony, initially he recalled having heard only one shot, but later, with the assistance of his prior statements to refresh his recollection, reported having heard two shots. Odom was uncertain of the precise words employed by defendant in making the foregoing admission.
Defendant complains of three occasions on which the prosecutor displayed to Odom his prior statement to the police, his preliminary hearing testimony, or notes from a photographic lineup, thereafter requesting that Odom ratify the prior statements.
In the first example, Odom testified that the person he observed at the door of Bernice’s automobile with a gun in hand was wearing the same clothing he had observed defendant wearing just before the gunshots sounded. During further direct examination on the following day of trial, in the context of identifying the shooter, Odom testified, “I didn’t see a face, I just seen the
*756
same clothing.” The prosecutor then read Odom’s preliminary hearing testimony, as follows: “Q: Was there any question in your mind that was [defendant] you saw? [ft] A: No, there was no question in my mind, because I had just seen him in that clothing.” Odom confirmed he had given that answer at the prior hearing, adding “Like I said I seen him in that clothing.” The prosecutor essentially repeated the question and received the same answer. Ultimately the prosecutor inquired: “Is it your testimony now that you have no question as you sit there now that it was the defendant . . . that you saw at the door of the car? [ft] A: Yes. [ft] [Q:] You do or do not have? [ft] A: I mean, yes, it was Ernest Dykes.”
In the second example, Odom testified concerning his encounter with defendant on the day of the crime when defendant admitted his culpability. Odom recalled at trial that defendant said something to the effect “it wasn’t supposed to go down like that,” but Odom apologized, expressing some uncertainty regarding the exact wording of this admission. The prosecutor responded: “Well, no need to apologize. And you testified yesterday that [defendant] told you that he did this, is that correct?” The examination continued: “[ft] A: Yes. [ft] Q: When you picked the photograph out, photograph number two, on August 10th, you picked that photograph as being the person who told you they did it, is that correct? [ft] A: Come again? I didn’t .... [ft] Q: When you picked [defendant’s] photograph out of the group of photographs, you picked his photograph as being the person who told you he did it, is that correct? [ft] A: Yes. Yes. [ft] Q: So in other words you were saying the same thing at that time as you said here in court yesterday? [ft] A: Yes.”
The final example occurred when Odom testified that defendant told him he took the money he stole from Bernice Clark and his weapon to a girlfriend’s residence after the crime. According to Odom’s testimony, defendant commented that he had stolen “about a hundred bucks.” Odom was uncertain of defendant’s exact words. In response to a question posed by the prosecutor, Odom verified that in his statement to the police and when he testified under oath at the preliminary hearing, he stated that Dykes told him he “got about a hundred bucks.”
Defendant concedes that his attorney did not interpose timely objections to the questions on the ground asserted on appeal. As defendant also acknowledges, numerous decisions by this court have established the general rule that trial counsel’s failure to object to claimed evidentiary error on the same ground asserted on appeal results in a forfeiture of the issue on appeal.
(People v. Partida
(2005) 37 Cal.4th 428, 433-435 [ 35 Cal.Rptr.3d 644 , 122 P.3d 765 ];
People v. Lewis
(2001) 26 Cal.4th 334, 357 [ 110 Cal.Rptr.2d 272 , 28 P.3d 34 ].) Defendant asserts that the forfeiture rule should not apply,
*757
because there is a “heightened need for reliability and fairness in a capital case.” This court, however, has rejected the claim that the forfeiture rule does not apply in capital cases.
(People
v.
Benavides
(2005) 35 Cal.4th 69, 115 [ 24 Cal.Rptr.3d 507 , 105 P.3d 1099 ] [rejecting a claim that we should conduct “ ‘plain error review’ ” notwithstanding forfeiture in capital cases];
People v. Cain
(1995) 10 Cal.4th 1, 28 [ 40 Cal.Rptr.2d 481 , 892 P.2d 1224 ].) Defendant fails to establish the existence of any “structural defect” such as was identified by the high court in
Arizona v. Fulminante
(1991) 499 U.S. 279, 309-310 [ 113 L.Ed.2d 302 , 111 S.Ct. 1246 ], that would lead us to overlook our forfeiture doctrine.
Defendant adds that, even if the evidentiary claim was forfeited, the underlying claim should be reached on the theory that the prosecutor committed misconduct in conducting the examination of Odom, rendering the trial fundamentally unfair. But trial counsel’s failure to object in a timely manner to asserted prosecutorial misconduct also results in the forfeiture of the claim on appeal.
(People
v.
Stanley
(2006) 39 Cal.4th 913, 952 [ 47 Cal.Rptr.3d 420 , 140 P.3d 736 ].) Contrary to defendant’s assertion, even if we assume there was merit to the claim, a timely objection and a request for admonition would not have been futile.
In any event, defendant’s claims are not meritorious. Defendant assumes that the sole possible basis for the admission of Odom’s prior statements was Evidence Code section 791, subdivision (b), but that the evidence did not meet the requirements of that provision. This statute permits the admission of a prior consistent out-of-court statement when there has been a charge that the testimony at the hearing has been fabricated or “influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen.” (Evid. Code, § 791, subd. (b).) Defendant claims that the prior consistent statements were elicited before there had been any attempt to impeach Odom, and
after
Odom already had developed a motive to fabricate. He asserts that Odom’s motive to fabricate—the desire to be released from jail—arose before he contacted the police to offer assistance in their investigation.
Even if Odom’s out-of-court statements were not admissible because they were not made “before the bias, motive for fabrication, or other improper motive is alleged to have arisen” (Evid. Code, § 791, subd. (b)), if defendant had interposed hearsay objections to the introduction of the prior statements, the prosecutor might have been able to demonstrate that at least the first two statements were admissible as examples of prior identification
*758
pursuant to Evidence Code section 1238.
2
As the Law Revision Commission comment to that provision explains: “Under Section 1238, evidence of a prior identification is admissible if the witness admits the prior identification and vouches for its accuracy.” (Cal. Law Revision Com. com., 29B pt. 4 West’s Ann. Evid. Code (1995 ed.) foll. § 1238, p. 249; see
People
v.
Gould
(1960) 54 Cal.2d 621, 626 [ 7 Cal.Rptr. 273 , 354 P.2d 865 ] [“Unlike other testimony that cannot be corroborated by proof of prior consistent statements unless it is first impeached [citations], evidence of an extrajudicial identification is admitted regardless of whether the testimonial identification is impeached, because the earlier identification has greater probative value . . . .”], overruled on other grounds in
People
v.
Cuevas
(1995) 12 Cal.4th 252, 263 [ 48 Cal.Rptr.2d 135 , 906 P.2d 1290 ]; see also
People v. Boyer
(2006) 38 Cal.4th 412, 480 [ 42 Cal.Rptr.3d 677 , 133 P.3d 581 ]; 1 Witkin, Cal. Evidence (4th ed. 2000) Hearsay, § 163, pp. 876-877.)
3
The prosecutor also might have been able to secure the admission of all three of the statements on the ground that the witness had been forgetful and evasive during his testimony, rendering prior statements admissible for their truth as prior recorded recollections pursuant to Evidence Code sections 1235 and 770. Discussing the two provisions, we explained that “[t]hose statutes . . . provide for the admission against a hearsay challenge of a prior statement by a witness ‘if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770.’ [Citation.] Under Evidence Code section 770, prior inconsistent statements are admissible only if: ‘(a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or [f] (b) The witness has not been excused from giving further testimony in the action.’ ”
(People v. Sapp, supra,
31 Cal.4th at p. 296.) Under certain circumstances, testimony may be considered inconsistent with prior statements when it reflects absence of recollection or evasiveness. (See
People v. Green
(1971) 3 Cal.3d 981, 987-988 [ 92 Cal.Rptr. 494 , 479 P.2d 998 ]; see also
People v. Sapp, supra,
31 Cal.4th at p. 297.)
*759
We need not speculate whether, in response to defense objections, the prosecutor could have established the proper foundation for admissibility of each of Odom’s prior out-of-court statements under these provisions, because it is clear that admission of the statements was harmless. Defendant admitted in his recorded confessions and in his trial testimony that he robbed Bernice and was responsible for the shot that injured her and killed Lance. Prosecution witness Edward Tyson, along with the surviving victim, Bernice, also provided detailed eyewitness testimony. Defendant himself testified that he demanded money from Bernice, and his claim that he did not recall the exact amount was impeached by his prior inconsistent statement to the police at the time of his arrest that he had garnered exactly $142.
Defendant counters that prejudice occurred because Odom’s credibility was essential to the prosecution’s case. According to defendant, Odom’s credibility was important not only because Odom testified that defendant admitted committing the crimes and assertedly provided details that were not available from other witnesses, but also because Odom’s testimony provided a significant basis for the charge of premeditated murder and premeditated attempted murder. Defendant claims this was because Odom testified he observed defendant standing near the apartment building mailbox shortly before the first shot rang out—testimony assertedly giving rise to an inference that defendant planned the crime in advance “and that he was waiting for Mrs. Clark to arrive in order to commit the crime.” But defendant himself testified that he decided up to one-half hour in advance of the crime to rob Bernice and also decided on that occasion to arm himself with a loaded firearm, even though his purpose was to confront an elderly woman who was known to lend money freely. It added little to the proof of premeditation for Odom to suggest that defendant had been standing outside the apartment building shortly before committing the crime.
Moreover, to the extent defendant’s claim is based upon the argument that the jury would infer that critical portions of Odom’s trial testimony were true because Odom had made prior statements that were consistent with his trial testimony on other points, the contention lacks merit. The same inference could be gleaned through many
other
instances in which the prosecutor referred to Odom’s prior consistent statements. The prosecutor repeatedly referred to Odom’s prior statements and testimony during his direct examination of Odom, and no objection was forthcoming at trial (or, for that matter, on appeal)
4
*760
3.
Prosecutorial misconduct
Defendant contends the prosecutor committed prejudicial misconduct on a number of occasions during the guilt phase of the trial. He claims a violation of his right to a fair trial under the Fifth and Fourteenth Amendments to the federal Constitution and parallel provisions of the state Constitution.
We review claims of prosecutorial misconduct pursuant to a settled standard. “Under California law, a prosecutor commits reversible misconduct if he or she makes use of ‘deceptive or reprehensible methods’ when attempting to persuade either the trial court or the jury, and it is reasonably probable that without such misconduct, an outcome more favorable to the defendant would have resulted. [Citation.] Under the federal Constitution, conduct by a prosecutor that does not result in the denial of the defendant’s specific constitutional rights-—such as a comment upon the defendant’s invocation of the right to remain silent—but is otherwise worthy of condemnation, is not a constitutional violation unless the challenged action ‘ “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” ’ ”
(People
v.
Riggs
(2008) 44 Cal.4th 248, 298 [ 79 Cal.Rptr.3d 648 , 187 P.3d 363 ]; see
People v. Crew
(2003) 31 Cal.4th 822, 839 [ 3 Cal.Rptr.3d 733 , 74 P.3d 820 ].) In addition, “ ‘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. [Citation.]’ ”
(People v. Stanley, supra,
39 Cal.4th at p. 952 .) Objection may be excused if it would have been futile or an admonition would not have cured the harm. (See
People v. Hill
(1998) 17 Cal.4th 800, 820 [ 72 Cal.Rptr.2d 656 , 952 P.2d 673 ].)
In considering defendant’s claims, we recall the limited issues that were in dispute in the present case. In view of defendant’s testimony and his confessions, defense counsel admitted in his argument to the jury that defendant had fired the shot that injured Bernice Clark, and that he had committed a robbery and a robbery murder. Defense counsel disputed that defendant intended to kill Bernice. Counsel also urged the jury to conclude that because Lance’s killing assertedly was accidental and occurred while defendant was attempting to disengage from Bernice in their struggle over her wallet, the killing was not committed to “advance” the felony within the meaning of the robbery-murder special-circumstance allegation. Although the point is not critical to the discussion of the present issue, to avoid confusion we note that there is no requirement that the prosecution prove an additional
*761
or different element that the killing be committed to “advance” the felony.
(People v. Horning
(2004) 34 Cal.4th 871, 907-908 [ 22 Cal.Rptr.3d 305 , 102 P.3d 228 ].)
5
a.
Opening statement
Defendant contends the prosecutor’s opening statement was argumentative, unsupported by the record, and constituted an appeal to passion and prejudice. He refers to the following comments: “You know, there’s three ways to get money. You can earn it, you can borrow it, or you can steal it, and [defendant] chose to steal it at gunpoint from a senior citizen in the company of a nine-year-old child and a dog. [][] After you hear all the evidence from the technician and two criminalists you will be convinced that the same bullet that passed through Mrs. Clark’s neck then passed through her grandson’s body and killed him. And he died looking at her, and she had to sit there next to him in the car. I think it probably goes without saying that that sort of experience almost defies description.”
There was no objection and the claim is forfeited.
(People v. Prince
(2007) 40 Cal.4th 1179, 1275 [ 57 Cal.Rptr.3d 543 , 156 P.3d 1015 ].)
In any event, the claim lacks merit. With one possible exception, the statement was closely tied to the evidence presented by the prosecutor. Respondent acknowledges that the evidence may not have established that the victim died looking at his grandmother, but there was evidence that could support the view that the child was leaning toward his grandmother when he
*762
was shot. As we have commented, “remarks made in an opening statement cannot be charged as misconduct unless the evidence referred to by the prosecutor ‘was “so patently inadmissible as to charge the prosecutor with knowledge that it could never be admitted.” ’ ”
(People v. Wrest
(1992) 3 Cal.4th 1088, 1108 [ 13 Cal.Rptr.2d 511 , 839 P.2d 1020 ].) In the present case, the jury was instructed that the prosecutor’s opening statement did not constitute evidence. As we have declared in a comparable case, “[a]ny inconsistency between the opening statement and the evidence was inconsequential. [Defendant] was permitted to confront all witnesses and to challenge and rebut all evidence offered against him. Under these circumstances, [defendant] suffered no conceivable prejudice.”
(Id.
at pp. 1109-1110.)
Defendant contends that the quoted language describing him in an unflattering and critical light was argumentative and constituted an appeal to passion. The comments, along with the prosecutor’s description of Bernice Clark’s tragic experience, were based upon evidence to be presented at the trial, however, and were within the “broad scope of permissible argument.”
(People
v.
Chatman
(2006) 38 Cal.4th 344, 387 [ 42 Cal.Rptr.3d 621 , 133 P.3d 534 ] [the prosecutor properly could claim the defendant lied, lacked humanity, was frightening, and was barely human].)
b.
Examination of witnesses
Defendant contends the prosecutor committed misconduct “during the examination of witnesses by improperly injecting emotion into the guilt phase of the trial, seeking to elicit inadmissible evidence, and implying that the defense was obstructionist.”
Defendant refers to the examination of Bernice Clark, alleging in his opening brief that the prosecutor asked her whether her grandson was “dead and buried by the time she was released from the hospital.” The prosecutor did not make the comment that appears in defendant’s opening brief. Rather, in the context of exploring the witness’s memory of events from the time of the crime to the point when she gave a statement to the police during her hospital stay, the prosecutor inquired whether she recalled making the statement, whether she recalled when during the stay she had made the statement, whether she slept a great deal in the hospital, whether she remembered visitors, or whether the hospital stay “sort of [ran] together when you think back on it?” Bernice responded that she was not told about her grandson’s death while she was in the hospital. When she added that she recalled hospital visits from her granddaughter and son, this colloquy ensued: “Q: And they had not told you yet that—[][] A: No. [f] Q: That Lance was dead? [f] A. No. [][] [Q:] Did you go to his funeral? A: No. [f] [Q:] You weren’t even aware that it happened?
I mean, was he buried by the time you
*763
found out that he was dead?
[f] A: No, I found—I got to see him. I got to go to the mortuary. I just wasn’t up to going to the funeral.” (Italics added.)
There was no objection to the italicized question (or any portion of the surrounding examination), and the claim is forfeited.
(People v. Prince, supra,
40 Cal.4th at p. 1275.) In any event, as in comparable cases the question “was not so likely to evoke sympathy in the jurors that we could conclude the question was misconduct, or even if it was, that any misconduct was prejudicial.”
(People v. Riggs, supra,
44 Cal.4th at p. 302 [the prosecutor asked the victim’s father whether he had participated in making funeral arrangements for the victim].)
Defendant claims the prosecutor sought to portray prosecution witness Alphonso Odom in a sympathetic light by asking him irrelevant questions that served to inform the jury that the witness had a young son who had accompanied him to court and that Odom also had brought the child with him to an interview with the prosecutor. The court sustained defendant’s relevancy objection. The defense did not object on the basis of prosecutorial misconduct, and the claim is forfeited. (See
People v. Prince, supra,
40 Cal.4th at p. 1275.) In any event, any misconduct was harmless. When the court sustained the relevancy objection—if not before—the jury likely understood that Odom’s status as a parent was irrelevant.
Defendant claims the prosecutor committed misconduct by proffering evidence of Odom’s prior consistent statements. The question whether the prior statements were admissible and whether their admission was prejudicial already has been resolved against defendant. In any event, defendant did not object to the admission of the statements on the basis of prosecutorial misconduct, and the claim is forfeited.
(People v. Prince, supra,
40 Cal.4th at p. 1275.)
Defendant contends the prosecutor committed misconduct during cross-examination of defendant. He refers to a question asking whether defendant had discussed his testimony with his attorney prior to testifying. An objection to the question was sustained, and defendant did not answer it. No conceivable prejudice ensued. (See
People v. Coffman and Marlow, supra,
34 Cal.4th at p. 94 [the prosecutor noted the defendant had not mentioned the battered woman syndrome defense until her attorneys were appointed].) Defendant claims the comment added to the prejudice he suffered when the prosecutor during his closing argument to the jury assertedly accused the defense of fabrication, but, as we shall explain, we have concluded that the prosecutor’s argument does not bear that interpretation.
Defendant contends the prosecutor committed misconduct while cross-examining defendant by commenting upon defendant’s answers. He refers to
*764
the following line of questioning concerning defendant’s statements to the police and his failure to inform the police that, as he testified at trial, LaCondra Douglas’s boyfriend arrived at the scene during the robbery:
“Q: Well, you were trying to tell them the whole truth about what happened, weren’t you?
“A: Yes, I just didn’t tell—didn’t put him in it.
“Q: Well, you could have said somebody pulled in, you didn’t know who they were, right?
“A: I knew who the car . . . belonged to.
“Q: Right. But you hadn’t had any compunction about lying to the police up to that point, right?
“A: I wasn’t lying, I just didn’t put him in there, sir. [][]... [f]
“Q: You’re not scared?
“A: I’m just telling you the whole truth.
“Q: The jury will be the judge of that, Mr. Dykes.”
Defense counsel objected on the ground the statement was argumentative, and the court sustained the objection.
As the examination progressed, the prosecutor asked defendant: “In other words, you’re pretty good at lying with a straight face, are you, Mr. Dykes [?]” The court sustained a defense objection.
The prosecutor is entitled to attempt to impeach the credibility of a defendant’s testimony (see
People v. Chatman, supra,
38 Cal.4th at p. 382) and point out inconsistencies between his or her testimony and prior inconsistent statements. When a defendant chooses to testify concerning the charged crimes, the prosecutor can probe the testimony in detail and the scope of cross-examination is very broad.
(Id.
at pp. 382-383;
People
v.
Mayfield
(1997) 14 Cal.4th 668, 754 [ 60 Cal.Rptr.2d 1 , 928 P.2d 485 ].) Moreover, because the trial court sustained objections to the argumentative element of the prosecutor’s questioning, we assume any prejudice was abated. (See
People v. Pinholster
(1992) 1 Cal.4th 865, 943 [ 4 Cal.Rptr.2d 765 , 824 P.2d 571 ]; see also
People
v.
Riggs, supra,
44 Cal.4th at p. 299 .)
*765
Defendant challenges other aspects of the prosecutor’s cross-examination. On direct examination, defendant testified he owned a firearm purely for self-protection because “at the time there [were] a lot of dope dealers on the street, they [were] having altercations ... up the street . . . [and] I just felt I didn’t want to be caught in it and be made a statistic.” On cross-examination, the prosecutor also elicited testimony that defendant had purchased the firearm because there were drug dealers in the neighborhood. The prosecutor then asked defendant whether he had been a drug dealer himself, an accusation defendant denied. Then the prosecutor inquired: “Do
you recall telling the police when you gave the statement that you gave up selling dope when you met your girlfriend?”
(Italics added.) It is worth observing that according to Sergeant Chenault’s interview notes from defendant’s first unrecorded confession (marked for identification but not introduced into evidence), defendant informed the officers that when he met his girlfriend he “got out of dope.”
Defendant did not respond to the question. Rather, he volunteered: “Sir, I had a conviction on—well, I don’t think they convicted me of that, but I got caught in the car with my cousin who was a dope dealer, that’s how it came about.” The prosecutor elicited the admission that “this isn’t the first gun that [defendant] ever owned,” and that defendant had been on probation for illegal possession of a firearm when the murder occurred. The prosecutor inquired whether the other firearm owned by defendant had served merely for protection, too, and defendant answered in the affirmative. The prosecutor pursued the information volunteered by defendant in his previous answer:
“Q:
Do you recall when you were arrested with [the
firearm]
you were caught with drugs possessed in a package for sale?
“A: They didn’t catch me with . . . drugs, sir.
“Q:
Were you selling drugs with your gun back then?
“A: No I wasn’t, sir.
“Q:
And it’s your testimony that you have never indicated to anyone that you were a drug dealer at that time?
“A: No I didn’t, sir.
“Q: I’m sorry?
“A: I didn’t indicate nothing.
*766
“Q:
And just for clarity when you were interviewed with the police you denied selling narcotics when you met your girlfriend, Bianca?
“Mr. Strellis [defense]: Objection. Irrelevant.
“The Court: Sustained.” (Italics added.)
The prosecutor maintained the question was relevant to defendant’s statement regarding his reason for possessing the firearm, but the trial court again sustained the defense objection.
Defendant did not interpose a timely objection to this line of questioning. Counsel’s ultimate objection was on the ground of relevancy, not prosecutorial misconduct, and he did not request an admonition. This claim is forfeited.
(People v. Prince, supra,
40 Cal.4th at p. 1275.)
Defendant’s claim also lacks merit. It constitutes misconduct to examine a witness solely for the purpose of implying the truth of facts stated in the question rather than in the answer to be given, and a prosecutor should not pursue a line of questioning that is damaging but irrelevant.
(People
v.
Mayfield, supra,
14 Cal.4th at p. 753; see also
People
v.
Visciotti
(1992) 2 Cal.4th 1, 52 [ 5 Cal.Rptr.2d 495 , 825 P.2d 388 ];
People v. Hamilton
(1963) 60 Cal.2d 105, 116 [ 32 Cal.Rptr. 4 , 383 P.2d 412 ], disapproved on other grounds by
People v. Morse
(1964) 60 Cal.2d 631, 637, fn. 2 [ 36 Cal.Rptr. 201 , 388 P.2d 33 ] and
People v. Daniels
(1991) 52 Cal.3d 815, 866 [ 277 Cal.Rptr. 122 , 802 P.2d 906 ].) On the other hand, in the present case, defense counsel asked defendant why he purchased the firearm, opening the door to examination on the same point by the prosecution. The prosecutor was entitled to explore the credibility of defendant’s claim that he had purchased a firearm solely for self-protection. The prosecution could have impeached defendant’s denial that he had ceased his involvement with drugs (when he met his girlfriend) with the inconsistent statement defendant made to Sergeants Madarang and Chenault. In addition, during cross-examination, defendant volunteered information concerning his arrest, and the prosecution was entitled to explore defendant’s assertions. We note that eventually a relevancy objection was sustained by the court and that the prosecutor did not refer to drug dealing in his closing argument, thereby diminishing the impact of this evidence.
Defendant also contends the prosecutor committed misconduct by objecting to the defense cross-examination of witness Dr. Lansing Lee, the ballistics expert. The murder weapon was not discovered; defendant testified that he had disposed of it in the Oakland Estuary. During the defense examination of Lee, defense counsel inquired whether the murder weapon’s functioning, including its trigger pull, would be “partly personal to the history of the
*767
particular firearm?” The expert answered in the affirmative. The defense then inquired: “And we have no idea since we don’t have the firearm that fired the projectiles in this case?” The prosecutor objected: “Well, objection, your honor. That assumes facts not in evidence that the defense doesn’t know where the gun is. There’s no evidence.” The court responded by requesting that defense counsel rephrase the question. Defendant now contends the prosecutor’s objection “furthered the prosecutor’s goal of arguing that the defense was obstructing the case, even to the point of creating a defense out of whole cloth.”
The defense did not object on the ground of misconduct and the claim is forfeited.
(People
v.
Prince, supra,
40 Cal.4th at p. 1275.) In any event, defendant admitted he had disposed of the murder weapon, providing damaging evidence that the weapon was not available for testing by the ballistics expert because of defendant’s effort to escape responsibility for the crimes. There was no conceivable prejudice arising from the prosecutor’s speaking objection.
Defendant claims the prosecutor committed misconduct by eliciting inadmissible evidence of absence of remorse. He refers to the prosecutor’s examination of Sergeant Madarang.
The prosecution questioned Sergeant Madarang concerning the course of events leading to defendant’s tape-recorded statements to the police. Madarang described defendant’s initial denial of responsibility, commenting that defendant’s manner was composed, he did not appear intoxicated, and the denial was quite convincing—except that, as Madarang testified, the officer was aware of facts contradicting some of defendant’s assertions. When Madarang confronted defendant with eyewitness accounts, defendant became emotional, eventually admitting most of his role in the crimes during two statements interrupted by audible sobbing. Defense counsel agreed that the tape-recorded statements should be played to the jury “because I feel the inflection with which the words are said is part of the impact of the words.” After the jury listened to the tape-recorded statements, the prosecutor asked Madarang whether defendant had wept during the period of questioning in which he denied responsibility. Madarang replied in the negative. In cross-examining Madarang, defense counsel established that defendant’s voice had not been recorded during the period he denied responsibility but during the taped confessions “we can hear for ourselves what his voice sounded like.”
Defendant did not object to the question posed to Sergeant Madarang, and the claim is forfeited.
(People v. Prince, supra,
40 Cal.4th at p. 1275.) Defendant now contends that an admonition would not have cured the harm. He asserts that “[t]he evidence of lack of remorse was designed to prejudice
*768
the jury against [defendant] by depicting him as a cold, remorseless killer who only displayed emotion when he was faced with having his confession audio taped.” He claims the inadmissible testimony made him appear to be a “hardened killer” and constituted “inadmissible negative character evidence.”
“[Ujnless a defendant opens the door to the matter in his or her case-in-chief [citation], his or her remorse is irrelevant at the guilt phase.”
(People v. Jones
(1998) 17 Cal.4th 279, 307 [ 70 Cal.Rptr.2d 793 , 949 P.2d 890 ].) Defendant’s sobbing during his tape-recorded statements to the police and to the deputy district attorney, however, supported the inference that he experienced remorse. Indeed, during the prosecution’s case-in-chief, when the prosecutor sought to introduce transcripts of defendant’s tape-recorded confessions, the defense urged the jurors to listen to the recordings themselves in order to permit them to hear evidence of defendant’s emotional state. Defendant testified that after committing the crime, he was unable to sleep, lost weight, and sought relief in drugs and alcohol, thereby suggesting emotional turmoil. In addition, the issue of defendant’s demeanor and state of mind during his various statements to the police was relevant to the credibility of those statements. Under these circumstances, we conclude misconduct did not occur.
c.
Closing argument
Defendant contends the prosecutor committed misconduct in several respects. We observe, however, that “[a] prosecutor is given wide latitude to vigorously argue his or her case and to make fair comment upon the evidence, including reasonable inferences or deductions that may be drawn from the evidence.”
(People v. Ledesma
(2006) 39 Cal.4th 641, 726 [ 47 Cal.Rptr.3d 326 , 140 P.3d 657 ].)
Defendant claims the prosecutor committed misconduct during closing argument by accusing him of fabricating a defense. Defendant cites the following portion of the prosecutor’s argument in support; “And you might wonder as an aside, yesterday, when defendant was on the stand, how we get this new version, and I’ll come back to this, that he was attempting to pull his hand out and get away [when the gun fired], at least that’s the way I got it on his direct examination.
He knows the legal niceties here, ladies and gentlemen, he’s had two years to study these instructions. He’s got two lawyers.
So ask yourself, why now, in the 11th hour, we get the version he’s attempting to pull his hand free of the car, he’s just attempting to get away. He never actually said it. And he changed his story on cross-examination. But the gist of it, as I got it, is he was no longer committing robbery. And so I guess his act of trying to pull the hand from the car, trying to abandon the robbery, would not be an act in the furtherance of the robbery, I’m not trying to get the money, and therefore the special circumstance is untrue.” (Italics added.)
*769
Defense counsel objected to the argument, denying that defendant had suggested he was no longer engaged in the robbery when the fatal shot was fired. Defense counsel stated that “[t]he instruction, part of which counsel has read to the jury, points out that escape is part and parcel of a robbery. Had he studied the instruction it would have been clear that he would have read all of it and not part of it.” In other words, defense counsel objected to the implication that defendant’s testimony was tailored to fit a defense, because counsel conceded that a homicide committed during flight from a robbery constitutes felony murder.
In response, the court informed the jury that in closing argument, counsel may state the facts and the law according to their understanding of each. The court admonished, however, “I have stated the rules here, that if there is any variance as to what the facts are, as stated by either counsel, and what you believe them to be, accept your recollection of the facts [and] you are to follow the law as I state it.”
Defendant’s claim lacks merit. Defendant testified at the guilt phase of the trial, and the prosecutor was entitled to challenge his credibility and point to inconsistencies between his testimony and his earlier statements. It was within the broad bounds of permissible argument to suggest that defendant’s trial testimony concerning the sequence of events leading to the murder, far from representing the truth, differed from his prior statements and was framed to coincide with an imagined defense based upon the asserted accidental nature of the killing. The commentary was appropriate in spite of defense counsel’s concession that the accidental nature of the killing did not prevent conviction for felony murder. Defense counsel relied upon the claim of accident to urge that defendant lacked the intent to kill Bernice Clark, and defense counsel made the (unfounded) claim that the felony-murder special-circumstance allegation was not true because of the prosecutor’s failure to prove an additional element of proof that the killing was intended to advance the robbery. The prosecutor’s comment did not suggest that defense counsel had participated in fabricating a defense for defendant, nor did it constitute a personal attack upon counsel or counsel’s credibility. (See
People v. Zambrano
(2007) 41 Cal.4th 1082, 1154 [ 63 Cal.Rptr.3d 297 , 163 P.3d 4 ], disapproved on another ground in
People
v.
Doolin, supra,
45 Cal.4th at p. 421, fn. 22 .) Under the circumstances, the comment did not “focus[] the jury’s attention on irrelevant matters and divert[] the prosecution from its proper role of commenting on the evidence and drawing reasonable inferences therefrom.”
(People
v.
Bemore
(2000) 22 Cal.4th 809, 846 [ 94 Cal.Rptr.2d 840 , 996 P.2d 1152 ].)
Defendant contends the prosecutor committed misconduct during closing argument at the guilt phase of the trial by commenting upon the asserted
*770
absence of remorse displayed by defendant. Defendant refers to the following statement: “When you listen to those tapes, ladies and gentlemen, and you hear him crying,
you don’t see him crying here in court, you didn’t see him crying on the witness stand yesterday. Do you really think those tears—who are they for? You think they’re for Lance Clark or Bernice? Do you really think that? When he’s crying on the tape, he’s crying for himself, because he realizes his plan is not going to work, he’s been identified.”
(Italics added.)
Because there was no objection to the comment, the claim is forfeited.
(People
v.
Stanley, supra,
39 Cal.4th at p. 952.) We discern no reason that defendant could not have objected and sought an admonition. Moreover, as noted, defense counsel urged the court to permit the jury to hear the statements in which defendant’s sobs were recorded. Defendant’s own testimony suggested emotional turmoil. The prosecutor could comment upon an anticipated argument by defense counsel. (See
People
v.
Bemore, supra,
22 Cal.4th at p. 846 .)
Defendant next contends the prosecutor improperly introduced the issue of race into the deliberations during his rebuttal to defense counsel’s closing argument. (It bears noting that defendant is Black; Bernice Clark is White, as was Lance Clark. It appears that the jury did not include any Black members.)
In his closing argument defense counsel informed the jury it would be instructed not to be influenced by “mere sentiment, conjecture, sympathy, passion, prejudice public opinion, or public feeling.” Defense counsel then argued: “Why do you imagine the district attorney showed you the pictures of the dead lad? Why do you think he talked about Lance? Do you think there was any possibility he was appealing to your prejudice? [][] He talked about people who are different from you, different lifestyle, different person.[
6
] Do you think there was a message in there? It gets lost, but it’s there and it has an honest meaning.” Later in his closing argument, defense counsel continued: “Do you understand why it was important that you see the picture of Lance, that you be told that he’s—that [defendant] is different? Because we need some passion here. We need some blood. The cold facts are troublesome.” Defense counsel returned to the theme of the jury’s duty not to be moved by passion or prejudice, but to determine with care whether the prosecution had proved its case: “How can we make it beyond a reasonable doubt? We can if we’re angry enough, if we want to pick the bad thing, if we
*771
want to make the choice? Because, after all, this is—he’s different from us. But absent that kind of thinking, how do we make the choice?” Defense counsel added: “Now, [defendant], according to the district attorney, is not worthy of belief. He’s—you know, he’s different. He doesn’t work. He’s just—you know, he’s a different species.”
The prosecutor began his rebuttal with the following statement: “I guess I’m going to have to take the bait, because the defense—I’m sitting there trying to bite my tongue. The defense plays the race card as only a desperate defense attorney [ric]. I’m shocked, even someone of Mr. Strellis’s reputation would resort to that.” Defense counsel attempted to interject “Is the inference[?],” but the prosecutor continued: “I’m not asking you to convict [defendant] because he’s Black. I’m asking you to convict him because he’s guilty. He didn’t rob Bernice Clark and kill Lance Clark because they’re White. He did it because he thought they had money. This case has nothing to do with race, [f] He is different from some other people. He’s different from Mr. Odom. He’s different than Mr. Chenault. He’s different than LaCondra Douglas. He’s different than his girlfriend. He is a murderer, [f] Mr. Strellis is going to stand up here and tell you he’s not any different than anybody else. If there are any other murderers in the courtroom, please stand up. He is different, [f] But to suggest that it’s because he’s Black or somehow he’s being prosecuted because he’s Black that is the basis, sort of appeal to you, and again, I feel an obligation to respond to it. ['ll] You know, for someone that wants you to really consider the facts and just go onto the facts, Mr. Strellis didn’t mention the facts in his hour that he puffed on to you with his hot air about the law in Scotland or whatever it was.”
The prosecutor’s references to race did not constitute misconduct, but rather represented fair rebuttal to defense counsel’s suggestion that the prosecution had attempted to play on the all-White jury’s emotions and racial prejudice. The argument “did little more than urge the jury not to be influenced by [defense] counsel’s arguments, and to instead focus on the testimony and evidence in the case.”
(People v. Stanley, supra,
39 Cal.4th at p. 952.)
Defendant claims that the prosecutor’s comment, “I’m shocked, even someone of Mr. Strellis’s reputation would resort to that,” implied that Strellis had a poor reputation in the community. Defendant claims the statement relied upon the existence of evidence of poor reputation that was not contained in the record.
It is not clear from the statement that the prosecutor was suggesting that Strellis had a poor reputation. “To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a
*772
reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we ‘do not lightly infer’ that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements.”
(People
v.
Frye
(1998) 18 Cal.4th 894, 970 [ 77 Cal.Rptr.2d 25 , 959 P.2d 183 ], disapproved on another ground in
People
v.
Doolin, supra,
45 Cal.4th at p. 421, fn. 22 .) We are not persuaded that the jury drew the damaging inference suggested by defendant, but even if the comment was inappropriate, it constituted a mere passing reference of no real import to the case.
In any event, the prosecutor certainly did not accuse defense counsel of fabricating evidence or deceiving the jury on the facts. As noted above, the comment did not “focus[] the jury’s attention on irrelevant matters and divert[] the prosecution from its proper role of commenting on the evidence and drawing reasonable inferences therefrom.”
(People v. Bemore, supra,
22 Cal.4th at p. 846 .) As we observed in a similar context, “[i]t was clear the prosecutor’s comment was aimed solely at the persuasive force of defense counsel’s closing argument, and not at counsel personally.”
(People v. Zambrano, supra,
41 Cal.4th at p. 1155 .) We have found misconduct to be absent from similar prosecutorial remarks.
(Ibid.,
citing
People v. Stitely
(2005) 35 Cal.4th 514, 559-560 [ 26 Cal.Rptr.3d 1 , 108 P.3d 182 ] [the prosecutor warned the jury not to “fall for” defense counsel’s “ridiculous” effort to let the defendant “walk free”];
People
v.
Gionis
(1995) 9 Cal.4th 1196, 1215-1216 [ 40 Cal.Rptr.2d 456 , 892 P.2d 1199 ] [the prosecutor argued that defense counsel was a great lawyer because he spoke “out of both sides of his mouth”];
People
v.
Breaux
(1991) 1 Cal.4th 281, 306-307 [ 3 Cal.Rptr.2d 81 , 821 P.2d 585 ] [the prosecutor argued that law students are taught to create confusion to benefit the defense];
People v. Bell
(1989) 49 Cal.3d 502, 538 [ 262 Cal.Rptr. 1 , 778 P.2d 129 ] [the prosecutor claimed that the defense attorney’s job was to confuse the jury and obscure the facts].)
Defendant draws our attention to another occasion on which he claims the prosecutor demeaned defense counsel. The prosecutor stated: “Mr. Strellis wants to try to confuse you about what the meaning of the special circumstance instruction is. Well, he’s a skilled attorney, and he’s doing the best he can.” Because there was no objection at the trial, this claim is forfeited.
(People
v.
Stanley, supra,
39 Cal.4th at p. 952.) In any event, such comments fall within the broad scope of permissible comment, as demonstrated by the cases cited above.
Defendant contends the prosecutor misrepresented the law pertaining to voluntary intoxication when he stated: “No act is less criminal because someone is in a state of voluntary intoxication. But you get to consider it on whether or not they actually formed the required mental state. ... It is only if
*773
you’re intoxicated to the effect that you cannot appreciate what you’re doing, where you don’t actually have the required intent for the crime, that intoxication can be a defense.” This claim is forfeited because defense counsel did not object.
(People v. Prince, supra,
40 Cal.4th at p. 1275.) In any event, the court instructed the jury properly on the issue of intoxication, and it is not reasonably likely the jury would have understood the prosecutor—as defendant asserts—to claim that this defense may be established solely by evidence of “extreme” intoxication.
7
Next, defendant contends the prosecutor committed misconduct by commenting on defendant’s character. Defendant refers to these remarks: “To show the kind of person [defendant] is, he uses people. This is the kind of guy that will spend 90 bucks on a hot gun, and yet will kill somebody and rob a woman in order, to tell you, to get money for college tuition. And it doesn’t stop there. It’s not even his 90 bucks that he spends. He leeches $50 of it off his girlfriend, against her better judgment.” Defendant also refers to another comment: “[Defendant] is the kind of person that, I think the evidence shows, will cause you to reexamine and rethink all your ideas about human decency and what should flow from what, as far as who deserves something, who doesn’t deserve something, whether or not the right thing ever really happens in this world, [f] And you’re never going to meet Lance Clark, because of him, because of his greed, his selfishness, his self-centeredness, his refusal to do honest work.” The prosecutor also claimed defendant lied under oath “at will.”
Because there was no objection to these comments, this claim is forfeited.
(People v. Prince, supra,
40 Cal.4th at p. 1275.) In any event, for the most part these remarks constituted proper comment upon the evidence and upon defendant’s credibility as a witness. “Referring to the testimony and out-of-court statements of a defendant as ‘lies’ is an acceptable practice so long as the prosecutor argues inferences based on evidence rather than the prosecutor’s personal belief resulting from personal experience or from evidence outside the record.”
(People v. Edelbacher
(1989) 47 Cal.3d 983, 1030 [ 254 Cal.Rptr. 586 , 766 P.2d 1 ].) There was evidence to support the inference that defendant lied when, among other occasions, he returned to the scene after the crimes and claimed he had observed an unknown Black man commit the crimes; when he contacted the police department to turn himself in; when he gave his statements to the police; in his testimony when he denied his
*774
girlfriend had given him money to purchase a firearm; and in his testimony when he denied having observed Lance in the car prior to the shooting. Moreover, the prosecutor is entitled to make a vigorous argument, and “opprobrious epithets” may be employed if “reasonably warranted by the evidence.”
(Ibid,
[noting cases permitting argument that described the defendant as an “animal,” “professional robber,” or “vicious gunman”].) To the extent the prosecutor suggested that the jury draw inferences concerning defendant’s guilt from conclusions regarding defendant’s general bad character, any misconduct would not have affected the outcome or fairness of the trial in light of the overwhelming evidence of guilt introduced by the prosecution and defendant’s own testimony.
Defendant contends the prosecutor committed misconduct in referring to the trial of O.J. Simpson. He refers to the following comment: “I just wanted to remind you the reason why we’re here, if this seems like a big imposition on you, because I know that it is, it’s been hard sometimes to break the news to you or I see on the judge’s face, when we’re going to break early or when there’s going to be a delay to start. I assure you, we haven’t been wasting time. It’s just with the O.J. case, I know you’re reliving some of the big imposition those jurors have on their life but I assure you, as the judge has indicated, when we do break early or oftentimes we’re here before and after you come and go, but there are very important legal issues that we’ve been working on.”
Because there was no objection, any claim of misconduct is forfeited.
(People v. Stanley, supra, 39
Cal.4th at p. 952.) In any event, it is not reasonably likely the jury would understand this comment to refer, as defendant claims, “to the common view, at least among non-Black jurors, that Simpson got away with murder,” nor would it, as defendant claims, “prejudice the jury in the prosecution’s favor.”
Defendant contends the prosecutor improperly bolstered the credibility of a prosecution witness with this comment: “If you believe [defendant], Sergeant Chenault is lying, risking his career and everything it stands for, to somehow frame this man.” This claim was forfeited because there was no objection below, and in any event the remark constituted fair comment on the evidence. (See
People
v.
Chatman, supra,
38 Cal.4th at pp. 381-383.)
Defendant contends that his failure to object to various asserted instances of misconduct should not stand as a barrier to appellate review of his claims. He argues that an objection and admonition would have been futile, because the misconduct was pervasive and created a “hostile trial atmosphere.” As our discussion has demonstrated, the prosecutor did not engage in pervasive misconduct. Defendant’s reliance upon
People
v.
Hill, supra,
17 Cal.4th 800 ,
*775
is misplaced. Unlike that case, which we have characterized as representing an “extreme” example of pervasive and corrosive prosecutorial misconduct that persisted throughout the trial (see
People
v.
Riel
(2000) 22 Cal.4th 1153, 1212 [ 96 Cal.Rptr.2d 1 , 998 P.2d 969 ]), the present case did not involve counsel experiencing—as did counsel in Hill—a “constant barrage” of misstatements, demeaning sarcasm, and falsehoods, or ongoing hostility on the part of the trial court, to appropriate, well-founded objections. (See
People
v.
Hill, supra,
17 Cal.4th at p. 821 [counsel risked “repeatedly provoking the trial court’s wrath, which took the form of comments before the jury suggesting [counsel] was an obstructionist [who was ] delaying the trial with ‘meritless’ objections”].)
8
4.
Asserted cumulative error
We have not identified any error that was prejudicial, whether considered separately or cumulatively. (See
People v. Salcido
(2008) 44 Cal.4th 93, 156 [ 79 Cal.Rptr.3d 54 , 186 P.3d 437 ].)
B.
Asserted Errors Affecting the Penalty Phase of Trial
1.
Evidence that defendant possessed a loaded and concealed weapon
Defendant raises two challenges to the admission of penalty phase evidence concerning an incident in which he was discovered in illegal possession of a concealed weapon. His first claim is that the evidence was inadmissible because the incident did not involve a threat or implied threat of violence within the meaning of section 190.3, factor (b), and that admission of this evidence constituted a violation of the Eighth Amendment to the United
*776
States Constitution. His second claim is that the trial court abused its discretion in failing to strike certain testimony by Oakland Police Officer Rand Monda concerning the incident in question.
The prosecution presented evidence establishing that on December 16, 1991, defendant was detained on grounds not specified at trial. It was stipulated that defendant’s “detention and arrest . . . were based on legal cause.” Officer Monda testified that at approximately 9:30 p.m., he exited from his vehicle and approached defendant, who was wearing dark clothing, including a cap, “a dark puffy black jacket with a hood over his head, [and] . . . large black ski gloves . . . .” The officer directed defendant to identify himself and noticed that defendant was “fidgeting.” In the absence of any request by the officer, defendant removed his cap and gloves and placed them on the roof of the patrol vehicle. Monda patted defendant down for his own safety and noticed that one of defendant’s gloves contained a firearm. The weapon was a loaded and cocked .25-caliber semiautomatic firearm. One round was in the chamber of the weapon, and three rounds were in the clip. Monda requested that defendant sit in the back of the patrol vehicle while the officer checked for outstanding warrants and called for backup. Defendant was not handcuffed. Monda recalled that defendant had shouted at him from inside the vehicle when Monda retrieved the weapon. The officer testified that the incident was memorable, because he had not observed the weapon at the beginning of the encounter and “could have been shot.” He explained: “Well, he had the . . . large ski glove in his hands. He had his hand in the glove and his gun, the gun was in his hand and he could have shot me and I didn’t even see it. I wouldn’t have even seen it coming.” Monda thereafter transported defendant to jail.
Defendant claims the evidence was inadmissible because the incident did not involve a threat or implied threat of violence.
9
He contends that an interpretation of section 190.3, factor (b) that would permit the admission of such evidence would heighten the risk of arbitrary imposition of the death penalty, in violation of the Eighth and Fourteenth Amendments to the United States Constitution.
Section 190.3, factor (b) permits the introduction of evidence in aggravation consisting of “[t]he presence ... of criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence.”
Evidence establishing that a defendant knowingly possessed a potentially dangerous weapon while
in custody
is admissible under section 190.3, factor
*777
(b), even when the defendant has not used the weapon or displayed it with overt threats.
(People v. Tuilaepa
(1992) 4 Cal.4th 569, 589 [ 15 Cal.Rptr.2d 382 , 842 P.2d 1142 ].) Even in a
noncustodial
setting, illegal possession of potentially dangerous weapons may “show[] an implied intention to put the weapons to unlawful use,” rendering the evidence admissible pursuant to section 190.3, factor (b).
(People v. Michaels
(2002) 28 Cal.4th 486, 536 [ 122 Cal.Rptr.2d 285 , 49 P.3d 1032 ].) For example, in the
Michaels
case, evidence was presented that the defendant had been discovered with a firearm concealed in the glove compartment of his parked vehicle and had been arrested for unlawful possession of knives on prior occasions. We noted the criminal character of the defendant’s possession of these weapons, adding that similar knives had been used in charged offenses and that the concealed firearm had been employed in a robbery committed one day before the discovery of the weapon in the defendant’s vehicle. Citing all of these circumstances, we concluded that the trial court did not err in admitting the prosecution’s evidence for the purpose of demonstrating the defendant’s commission of a prior crime involving the threat of violence. The defendant, we pointed out, was free to present evidence upon which the jury could base a contrary conclusion, such as “evidence ... to show that his possession was for the purpose of self-protection, or the protection of someone else, not for criminal violence.”
(Ibid.)
Similarly, in the present case the jury legitimately could infer an implied threat of violence from all the circumstances, including the “criminal character of defendant’s possession”
(People
v.
Michaels, supra,
28 Cal.4th at p. 536 ; see §§ 12025, subd. (a), 12031, subd. (a)), the concealment of the loaded and cocked weapon in a manner that rendered it available for instant, surprise use, and defendant’s use of a similar firearm in committing the present offense.
Defendant contends that possession of a firearm ordinarily is not illegal, that his possession would have been legal had he obtained a special permit to carry a concealed weapon, and that in some states permits are not required for the possession of concealed and loaded firearms. These circumstances do not detract from the conclusion that a jury could determine that defendant’s possession of a loaded and concealed firearm, without the permit required in California, constituted a crime, and that an inference of an implied threat of violence properly could be drawn from the circumstances of the incident.
Defendant makes a brief reference to the Second Amendment to the United States Constitution, commenting that “[generally, a defendant may lawfully possess a firearm,” and surmising that it is “doubtful that the mere carrying of a firearm constitute[s] an implied threat of force or violence” and that the circumstance “that in California, such carrying is unlawful and constitutes a
*778
misdemeanor, does not transform the conduct from one of innate self-protection into a threat against others.”
In support of his claim, defendant refers to the solicitor general’s briefing in a federal case.
(U.S. v. Haney
(10th Cir. 2001) 264 F.3d 1161 .) More recently, however, the United States Supreme Court decided
District of Columbia v. Heller
(2008) 554 U.S. _ [ 171 L.Ed.2d 637 , 128 S.Ct. 2783 ]
(Heller).
In that case, the high court determined that a District of Columbia law prohibiting the possession of an operable handgun in the home was inconsistent with the Second Amendment to the United States Constitution.
( Heller, supra,
554 U.S. at pp. _, _-_ [171 L.Ed.2d at pp. 679, 683-684].) Defendant does not contend that the California statutes prohibiting possession of a concealed, loaded firearm in a public place are void under the Second Amendment. He merely suggests that, because persons have a right to bear arms, their possession of a firearm does not, in itself, suggest a threat of violence. We have concluded, however, that the evidence in the present case would permit the jury to infer an implied threat of violence.
In any event, the court in
Heller
disapproved a statute that prohibited possession of an ordinary handgun
in the home.
Although the high court determined that the Second Amendment referred to an “individual right to keep and bear arms”
( Heller, supra,
554 U.S. at pp. _, _-_ [171 L.Ed.2d at pp. 659, 675-677]), the court warned that this right was not unlimited. The court did not recognize a “right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose,” observing that historically, most courts have “held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.”
(Id.
at p. _ [ 171 L.Ed.2d at p. 678 ].) The high court’s decision in
Heller
does not require us to conclude that possession in a public place of a loaded, cocked, semiautomatic weapon with a chambered round, concealed in a large glove and ready to fire, cannot be defined as a crime under state law. Moreover, nothing in that decision requires us to conclude that such conduct cannot be considered as carrying an implied threat of violence.
In a related claim, defendant contends the trial court should have stricken Officer Monda’s testimony that he “didn’t even see the gun” and that he “could have been shot.” According to defendant, “[e]ven if evidence regarding this incident was admissible as evidence in aggravation under factor (b), Officer Monda’s testimony that he remembered the incident ‘because [he] could have been shot,’ was irrelevant, unduly prejudicial, and should have been stricken.”
This evidentiary claim is forfeited, as is defendant’s related suggestion that the testimony in question constituted improper victim-impact evidence, because, as defendant concedes, defense counsel did not object to the testimony
*779
at trial on the basis stated in this claim. (See
People
v.
Partida, supra,
37 Cal.4th at pp. 433-434.)
10
In any event, the testimony was relevant to Monda’s credibility and reliability as a witness, specifically to his ability to recall the incident accurately after the lapse of three and one-half years. The evidence also was relevant to the question whether defendant’s possession of the firearm carried an implied threat of violence within the meaning of section 190.3, factor (b). The evidence was not offered or referred to in argument as victim-impact evidence. We are confident the jury understood in what respect the evidence was relevant in light of pattern instructions explaining how the jury was to consider evidence in connection with section 190.3, factors (a) and (b) (see CALJIC Nos. 8.84.1, 8.85, 8.88), and pattern instructions concerning the consideration of and burden of proof applicable to evidence of illegal possession of a firearm (see CALJIC Nos. 3.31, 8.87, 16.460, 16.470; see also CALJIC Nos. 2.01, 2.02, 2.90).
Defendant claims the trial court should have excluded this evidence because it was more prejudicial than probative within the meaning of Evidence Code section 352. To the extent the trial court retains such discretion in this context (see
People v. Box
(2000) 23 Cal.4th 1153, 1200-1201 [ 99 Cal.Rptr.2d 69 , 5 P.3d 130 ]), the failure of the court to exercise that discretion is forfeited on appeal when the claim was not raised below
(People
v.
Davenport
(1995) 11 Cal.4th 1171, 1205 [ 47 Cal.Rptr.2d 800 , 906 P.2d 1068 ], disapproved on another ground in
People v. Griffin
(2004) 33 Cal.4th 536, 555, fn. 5 [ 15 Cal.Rptr.3d 743 , 93 P.3d 344 ]).
2.
Admission of victim-impact evidence
Defendant contends “almost all” of the victim-impact evidence introduced at trial was admitted in error. Defendant claims that this evidence introduced passion and prejudice into the penalty phase proceedings and created an “unreasonable risk of an arbitrary result.” He asserts the evidence was so prejudicial that its admission deprived him of due process of law and resulted in an arbitrary penalty decision in violation of the Eighth and Fourteenth Amendments to the United States Constitution and parallel provisions of the California Constitution.
Over objection, the prosecutor presented victim-impact evidence through the testimony of Lance’s teacher, Judy Schaff, his grandmother, Bernice Clark, and his sister, Kristie Clark. In addition, three still photographs and a videotape were introduced into evidence.
Schaff testified that she was on vacation when she learned Lance had been murdered; that Lance was a quiet student who was well liked by other
*780
students; that he helped others; that she had seen Lance for the last time at a school party attended by Lance’s sister Kristie; and that the school conducted a memorial for Lance.
Bernice Clark testified concerning the plans she and Lance had had for the day he was murdered, her profound sense of loss after his murder, and the sense of loss, fear, and dislocation suffered by Lance’s younger brother as a result of the murder. Some comments were especially poignant. For example, Bernice testified that on the day he was murdered, Lance had planned to buy a toy for his younger brother with money he had saved from his allowance. She also said of Lance that “[h]e was always going to be my protector and he would go, every night and do his exercise” in order to grow big and sufficiently strong to protect her.
Kristie Clark was 21 years of age when the murder occurred. She testified that she learned of the murder on the day it occurred while she was shopping for clothing to wear to her grandfather’s funeral. She described her shock when a physician at the Oakland Children’s Hospital gave her the news that Lance was dead. She was unable to share the news with her grandmother, Bernice Clark, for several days, because of her grandmother’s uncertain medical condition. She described the sorrow experienced by Bernice and by Lance’s younger brother, for whom Lance had served as a protector and comforter. Kristie was the family member who made the funeral arrangements for Lance. She described in moving terms the sorrow and sense of unreality she experienced while making those arrangements: “We . . . special ordered [a casket], a medium-sized one because the large ones made him look too small and the baby one made him look too big.” She said of Lance’s younger brother that after the murder, he “was still kind of waiting for him to come home. I mean he realized he was buried, he did attend his funeral, but that didn’t all click together.”
Kristie also described Lance. She testified that he had been an amusing child who loved animals; that he had celebrated his birthday just four or five days prior to the murder; that he was a Cub Scout; and that she had served almost as a surrogate mother for him because his mother was “unreliable.” She described the impact of Lance’s murder on her. She said she missed having Lance comfort her when she was sad (“he would come up and give you a hug and kiss and say I love you”), and that “you miss more than anything just the little things. I mean eating popcorn, sitting in your chair with you at night or . . . watching videos with you, and just little things you miss.”
The prosecutor played a videotape depicting preparations for and enjoyment of a family trip to Disneyland. Kristie identified persons depicted in the videotape.
*781
The applicable law is settled. “In a capital trial, evidence showing the direct impact of the defendant’s acts on the victims’ friends and family is not barred by the Eighth or Fourteenth Amendments to the federal Constitution. [Citation.] Under California law, victim impact evidence is admissible at the penalty phase under section 190.3, factor (a), as a circumstance of the crime, provided the evidence is not so inflammatory as to elicit from the jury an irrational or emotional response untethered to the facts of the case.”
(People v. Pollock
(2004) 32 Cal.4th 1153, 1180 [ 13 Cal.Rptr.3d 34 , 89 P.3d 353 ].)
In
Payne v. Tennessee
(1991) 501 U.S. 808 [ 115 L.Ed.2d 720 , 111 S.Ct. 2597 ]
(Payne),
the United States Supreme Court explained that a relevant consideration for sentencing authorities traditionally has been the “specific harm caused by the crime.”
(Id.
at p. 825.) In order to understand the harm caused by the crime, a state may choose to permit the introduction of victim-impact evidence because such evidence is “designed to show . . . each victim’s ‘uniqueness as an individual human being . . . .’ ”
(Id.
at p. 823, italics omitted.) The high court determined that the state should not be prevented from “offering ‘a quick glimpse of the life’ which a defendant ‘chose to extinguish,’ [citation], or demonstrating the loss to the victim’s family and to society which has resulted from the defendant’s homicide.”
(Id.
at p. 822.) In sum, “[a] State may legitimately conclude that evidence about the victim ánd about the impact of the murder on the victim’s family is relevant to the jury’s decision as to whether or not the death penalty should be imposed.”
(Id.
at p. 827.)
On the other hand, as the high court recognized, “[i]n the event that evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief.”
(Payne, supra,
501 U.S. at p. 825 .) State law is consistent with these principles. “Unless it invites a purely irrational response from the jury, the devastating effect of a capital crime on loved ones and the community is relevant and admissible as a circumstance of the crime under section 190.3, factor (a).”
(People
v.
Lewis and Oliver
(2006) 39 Cal.4th 970, 1056-1057 [ 47 Cal.Rptr.3d 467 , 140 P.3d 775 ]; cf.
People v. Edwards
(1991) 54 Cal.3d 787, 835-836 [ 1 Cal.Rptr.2d 696 , 819 P.2d 436 ].)
It is difficult to discern the exact nature of defendant’s claim. He argues that victim-impact evidence necessarily is prejudicial, but the high court has concluded that states are not precluded from permitting such evidence at the penalty phase of a trial. Defendant argues that victim-impact evidence is particularly prejudicial when the victim is a child. As defendant contends, evidence concerning the impact of the death of a child on his or her family and friends is particularly poignant, but within the meaning of
Payne, supra,
*782
501 U.S. 808 , such evidence remains relevant to the jury’s understanding of the harm caused by the crime.
In the present case, the trial court carefully considered whether the proposed testimony fell within appropriate limits, making every effort to ensure that it was not inflammatory. Lance’s parents did not testify, because the prosecutor feared that their testimony would be inflammatory, a concern shared by the trial court. The court emphatically admonished counsel to prepare witnesses well to avoid inflammatory emotional remarks and to ensure they did not blurt out their views concerning the crime itself, defendant, or the appropriate penalty. The child’s grandmother and his sister testified regarding their feelings of loss, but the testimony was not dramatic or inflammatory. (See
People v. Smith
(2005) 35 Cal.4th 334, 365 [ 25 Cal.Rptr.3d 554 , 107 P.3d 229 ] [permissible victim-impact evidence included mother’s testimony concerning the loss of her child: “ T don’t think the pain will ever go away ... I think the worst part of it is . . . what goes on in my mind what happened to him. What he went though is . . . just very difficult.’ ”];
People
v.
Benavides, supra,
35 Cal.4th at p. 105 [permissible victim-impact evidence was admitted through the testimony of the aunt and cousins of an infant victim, concerning the agony caused to the family, including the infant’s sister, by the victim’s death].) And, contrary to defendant’s claim, the evidence received in the present case had no tendency to arouse racial animus.
Defendant contends Bernice Clark should not have been permitted to testify concerning anything but “the immediate effects of the crime.” He complains specifically that she should not have been permitted to describe her and Lance’s plans for the day, including Lance’s intention to buy a toy using money he had saved from his allowance. Such testimony, however, plainly concerns the circumstances of the crime within the meaning of section 190.3, factor (a). We have rejected similar claims.
(People v. Edwards, supra,
54 Cal.3d at p. 833 [victim-impact evidence is not limited to “the immediate temporal and spatial circumstances of the crime” but includes “ ‘[t]hat which surrounds [the crime] materially, morally, or logically’ ”].)
Defendant contends the testimony of the witnesses concerning the impact of the crime on them was too extensive. We disagree. The prosecutor’s questioning was relatively brief—five pages of transcript in the case of Schaff, nine pages of transcript in the case of Bernice Clark, and 18 pages of transcript in the case of Kristie Clark. Defendant counters that victim-impact evidence ordinarily is permitted when it supplies a “quick glimpse” of the victim and the impact of his or her death on others, but that in the present case, “most” of the single day devoted to the evidentiary portion of the penalty phase was devoted to victim-impact evidence. He does not identify
*783
any persuasive basis for a rule that victim-impact evidence may not form a substantial portion of a prosecutor’s case in aggravation. Indeed, we have rejected the claim that the evidence must be confined to a single witness.
(People
v.
Zamudio
(2008) 43 Cal.4th 327, 364 [ 75 Cal.Rptr.3d 289 , 181 P.3d 105 ]; see also
People v. Pollock, supra,
32 Cal.4th at p. 1183 .)
Defendant contends the witnesses should not have been permitted to testify concerning the victim’s character, but such evidence conveys the insight into the victim that the high court has concluded is appropriate.
( Payne, supra,
501 U.S. at pp. 823, 827.) Contrary to defendant’s claim, this evidence was not inflammatory. Rather, it resembled victim-impact testimony we have accepted as appropriate in many cases. (See, e.g.,
People v. Cruz
(2008) 44 Cal.4th 636, 652, 682 [ 80 Cal.Rptr.3d 126 , 187 P.3d 970 ] [the evidence included testimony by the victim’s wife and children concerning the sorrow they felt and the devastating impact of the crime on their lives, as well as evidence concerning the victim’s professional life];
People v. Boyette
(2002) 29 Cal.4th 381, 444 [ 127 Cal.Rptr.2d 544 , 58 P.3d 391 ] [family members expressed love for the victims and explained their sense of loss; photographs depicted the victims in life].)
Defendant contends that section 190.3, factor (a) must be construed to restrict the scope of victim-impact evidence in order to avoid constitutional deficiencies, including concerns that the statute is unconstitutionally vague and permits arbitrariness in the penalty decision. Defendant contends that this court must afford a narrow interpretation to section 190.3, factor (a), limiting victim-impact evidence to evidence (1) given by a family member who was at the scene of the crime or immediately thereafter; (2) describing circumstances known to or reasonably foreseeable to the defendant at the time of the murder; and (3) presented by a single witness. We have rejected similar claims, and defendant has not persuaded us to reconsider those decisions.
(People
v.
Pollock, supra,
32 Cal.4th at p. 1183 ; see also
People v. Zamudio, supra,
43 Cal.4th at pp. 364-365;
People v. Lewis and Oliver, supra,
39 Cal.4th at p. 1057.)
Defendant also challenges the court’s decision to permit the prosecution to present evidence in the form of the eight-minute videotape, that, as noted above, depicted Lance Clark and family members preparing for and enjoying a trip to Disneyland. The videotape began with a clip of Lance having climbed up a tree. It then portrayed Lance spending time with family members. The tape included parts of the drive to Southern California and displayed the family interacting in a hotel room. The videotape occasionally focused on Lance, who often is smiling or making amusing gestures to the camera, but it also included footage of other family members.
*784
Defendant contends that the videotape constituted improper victim-impact evidence because it was inflammatory and went beyond the “quick glimpse” of the victim contemplated by
Payne, supra,
501 U.S. 808 . He stresses that the videotape was highly prejudicial in light of Kristie Clark’s courtroom demeanor and testimony, which “contrasted sharply and painfully” with the happy images of her, Lance Clark, and others on the videotape. He stresses the prejudicial impact of observing a young murder victim happily climbing a tree and seeing him, his younger brother, and other family members happily anticipating and undertaking a journey to Disneyland.
There is no bright-line rule pertaining to the admissibility of videotape recordings of the victim at capital sentencing hearings.
(People v. Prince, supra,
40 Cal.4th at p. 1288.) We consider pertinent cases in light of the general understanding that the prosecution may present evidence for the purpose of reminding the sentencer that “ ‘the victim is an individual whose death represents a unique loss to society and in particular to his family’ ”
(Payne, supra,
501 U.S. at p. 825 ), but that the prosecution may “not introduce irrelevant or inflammatory material” that “ ‘ “diverts the jury’s attention from its proper role or invites an irrational, purely subjective response.” ’ ”
(Prince, supra,
at p. 1288 , quoting
People v. Edwards, supra,
54 Cal.3d at p. 836 .)
“Courts must exercise great caution in permitting the prosecution to present victim-impact evidence in the form of a lengthy videotaped or filmed tribute to the victim. Particularly if the presentation lasts beyond a few moments, or emphasizes the childhood of an adult victim, or is accompanied by stirring music, the medium itself may assist in creating an emotional impact upon the jury that goes beyond what the jury might experience by viewing still photographs of the victim or listening to the victim’s bereaved parents.”
(People
v.
Prince, supra,
40 Cal.4th at p. 1289.)
Videotaped evidence nevertheless may be relevant to the penalty determination, because it “humanize[s] [the victim], as victim impact evidence is designed to do.”
(People
v.
Kelly
(2007) 42 Cal.4th 763, 797 [ 68 Cal.Rptr.3d 531 , 171 P.3d 548 ].) For example, a videotaped photomontage may convey the family and society’s loss; it may “help[] the jury to see that defendant took away the victim’s ability to enjoy her favorite activities,” and may “further illustrate^ the gravity of the loss by showing [the victim’s] fresh-faced appearance before she died.”
(Ibid.)
The trial court exercised appropriate caution to avoid introducing irrelevant drama and undue emotion into the penalty determination. The court carefully reviewed the videotape prior to its admission, ordered the audio portion deleted, and vigorously cautioned the prosecutor to ensure that Kristie Clark’s commentary during the playing of the videotape should be unemotional.
*785
Like the trial court, we have reviewed the tape to determine whether it contains elements that are irrelevant to the penalty determination. We agree with the trial court that the material, which merely depicts ordinary activities and interactions between Lance Clark and his family, was relevant to humanize the victim and provide some sense of the loss suffered by his family and society. The videotape is an awkwardly shot “home movie” depicting moments shared by Lance with his family shortly before he was murdered. The videotape does not constitute a memorial, tribute, or eulogy; it does not contain staged or contrived elements, music, visual techniques designed to generate emotion, or background narration; it does not convey any sense of outrage or call for vengeance or sympathy; it lasts only eight minutes and is entirely devoid of drama; and it is factual and depicts real events. (See, e.g.,
People v. Zamudio, supra,
43 Cal.4th at pp. 366-367;
People
v.
Kelly, supra,
42 Cal.4th at pp. 797-798.) The evidence supplemented but did not duplicate Kristie Clark’s testimony, and her narration was not objectionable. We conclude the trial court did not err.
Defendant claims the prosecutor should have accepted his offer to stipulate that he would not offer evidence in mitigation in the event the prosecution would agree not to introduce victim-impact evidence. He points out that the court in
Payne
expressed the view that it would be unfair to deny the prosecution the opportunity to offer evidence of the harm caused by the defendant’s crime while permitting the defendant to introduce relatively unlimited evidence to paint a full picture of his or her life experience and character for the purpose of eliciting sympathy. Contrary to defendant’s view, however, the high court did not suggest that prosecution victim-impact evidence was admissible solely to rebut the mitigating impact of evidence submitted by the defense. As noted, the court stressed the traditional and permissible place in the sentencing determination of a consideration of the “specific harm caused by the crime in question.”
(Payne, supra,
501 U.S. at p. 825 .) As for defendant’s offer to refrain from producing evidence in mitigation in return for similar silence from the prosecution, it was not within defendant’s power to force the prosecution to refrain from presenting a persuasive case in aggravation through the introduction of relevant, admissible evidence. Ordinarily the prosecution “ ‘cannot be compelled to accept a stipulation if the effect would be to deprive the state’s case of its persuasiveness and forcefulness.’ ”
(People
v.
Garceau
(1993) 6 Cal.4th 140, 182 [ 24 Cal.Rptr.2d 664 , 862 P.2d 664 ], disapproved on another ground in
People v. Yeoman
(2003) 31 Cal.4th 93, 117-118 [ 2 Cal.Rptr.3d 186 , 72 P.3d 1166 ]; see also
People
v.
Salcido, supra,
44

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2625630. Public record. Not legal advice.