People v. Seumanu

Filed 8/24/15

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S093803

v. )

)

ROPATI SEUMANU, )

) Alameda County

Defendant and Appellant. ) Super. Ct. No. H24057

____________________________________)

A jury in Alameda County Superior Court convicted Ropati Seumanu in

2000 of the first degree murder of Nolan Pamintuan (Pen. Code, § 187; all further

statutory references are to this code unless otherwise indicated), kidnapping to

commit robbery (§ 209, subd. (a)), and first degree robbery (§ 211). The jury also

sustained special circumstance allegations that Seumanu committed a murder

while engaged in the commission of a robbery and a kidnapping. (§ 190.2, subd.

(a)(17)(A) & (B).) In addition, the jury found that for all three felonies, defendant

used a firearm; to wit, a shotgun. (§ 12022.5.) On November 1, 2000, after

weighing the aggravating and mitigating evidence, the jury set the penalty at death

under the 1978 death penalty law. (§ 190.1 et seq.) This appeal is automatic.

(§ 1239, subd. (b).)

Following the decision in Jones v. Chappell (C.D.Cal. 2014) 31 F.Supp.3d

1050, holding that delays in implementing the California death penalty law

rendered it unconstitutional under the Eighth Amendment to the United States

1

Constitution, the parties filed supplemental briefs addressed to that issue. As

explained below, we reject the Eighth Amendment claim and otherwise affirm the

judgment in its entirety.

I. GUILT PHASE

A. Facts

Nolan Pamintuan was engaged to marry Rowena Panelo on May 18, 1996.

He spent the evening before, May 17, with friends and family at the rehearsal

dinner at a restaurant in Daly City. Panelo gave him a wedding present that night:

a black Movado watch engraved with their intended wedding date. After dinner,

Pamintuan drove Panelo to her apartment and continued on to Hayward, where he

intended to spend the night at his father‘s apartment. Pamintuan was wearing a

brown Gucci watch, a gold engagement ring, a black leather sport coat, an Old

Navy-brand pea coat, and boots.

Shortly before midnight, residents on East 13th Street in Hayward heard a

gunshot and saw a dark van speeding away with its lights off. One of the

neighbors, Luis Hurtado, investigated and found a man bleeding to death in the

street. Police were called but the man died of what the coroner‘s office later

determined was a shotgun wound to the chest. Police found no identification of

the victim at the scene.

Pamintuan‘s father woke at 5:30 the next morning and discovered his son

had not come home. He located his son‘s car, an Acura, parked nearby with a

security device locked on the steering wheel but the driver‘s side door was

unlocked. Pamintuan‘s father called police and reported his son missing. At

12:15 p.m., police showed photographs to Pamintuan‘s brother, Paul, who

identified the shotgun victim as his brother, Nolan. Panelo, the victim‘s intended

2

bride, was told of his murder around 1:30 p.m.; they had planned to marry at 2:00

p.m. that day.

Defendant Ropati Seumanu was also known as Paki, Robert, Afatia Ropati

Seumanu, and Ropati Afatia Seumanu. Defendant was a member of the Sons of

Samoa street gang, which is affiliated with the Crips, and his gang moniker was

alternately ―Smurf‖ or ―Mr. Smurf 1.‖ Defendant lived with his large extended

family, including his father, in Hayward. Vui Seumanu, defendant‘s father, was

the equivalent of a tribal chief in Samoa and defendant was a direct heir to that

title. Approximately 24 people lived in a three-bedroom house with a small 500-

square-foot outbuilding in the back, including defendant, his wife, Lefea ―Lucy‖

Masefau, and her daughter, Peggy; defendant‘s younger brother, Tautai Seumanu;

Galuvae ―Jay‖ Palega, his wife and family; 16-year-old Tony Iuli and his wife,

Seu Seumanu; and others. Defendant slept in the outbuilding, along with Iuli and

others; although the sleeping arrangements were somewhat fluid among the family

members, Jay Palega asserted the outbuilding ―was really [defendant‘s] room,‖

and defendant kept his belongings in a cabinet there.

Defendant‘s activities on the night of the murder were described by Tony

Iuli and Jay Palega, both of whom pleaded guilty to reduced charges and testified

for the prosecution. That night defendant declared his intention to steal a car in

order to commit some robberies, so defendant, Iuli, Palega, and Tautai Seumanu

set off to look for a suitable vehicle to steal. They eventually located a van to their

liking and Tautai and defendant used a screwdriver to steal it. Back at their family

compound in Hayward with the stolen van, the group changed out of their Samoan

clothes and donned dark clothes; defendant brought out firearms from the

outbuilding. Iuli knew ―something big‖ was going to happen when he saw the

guns. Defendant spoke of committing robberies and everyone was ―in on the

deal.‖ The foursome left the house in the stolen van and began looking for a

3

robbery victim. Palega was driving, Iuli was in the front passenger seat, and the

Seumanu brothers, defendant and Tautai, were in the backseat. After considering

and rejecting a few possibilities, the group spotted a potential victim and

attempted an armed robbery but the intended victim escaped. When the group

reentered the stolen van and drove off, defendant chastised Tautai for the botched

robbery. They then observed Nolan Pamintuan parking his car and defendant said:

―Let‘s go back and get that guy who just got out of the car.‖ Palega turned the van

around.

Defendant, holding a sawed-off shotgun, jumped out of the van with Iuli

and confronted the victim. Pamintuan looked shocked and scared and offered

defendant the inscribed black Movado watch his fiancée had just given him hours

earlier, saying: ―Just take this, that is all I have.‖ Defendant took it and then

forced the victim into the van. As they drove off, defendant and Tautai stripped

the victim of everything he had, including his boots, sport coat, pea coat, ring,

wallet, and watch. Defendant became angry when he discovered Pamintuan was

carrying only $3 in cash. The victim offered to withdraw money from the bank

and was by this time begging for his life.

They drove to a bank with an automated teller machine and defendant

warned Pamintuan that if he tried to escape, defendant would kill him. Tautai and

Iuli accompanied Pamintuan to the ATM, where he withdrew $300 and gave it to

defendant upon returning to the van. Iuli was worried that the ATM camera had

photographed him, Tautai, and the van. The foursome wanted the victim to

withdraw more money, and when Pamintuan told them of the daily $300 limit they

became angry. Defendant ordered Palega to drive away from the bank and find a

dark spot. Defendant and Tautai argued over who would kill the victim, while

Palega advised against killing him. Iuli exited the van in an attempt to stop the

shooting, seeing no point, as Pamintuan had already given them all of his money.

4

Pamintuan continued to beg for his life. Defendant then shot him in the chest with

a single shot from the shotgun. The four then abandoned the stolen van in the

neighborhood and went home.

A neighbor noticed the van around 12:30 a.m., parked, but with its motor

running. When it was there the next morning, with the motor still running, the

neighbor called police, who determined that it had been stolen from elsewhere in

the city. It also bore bloodstains, later identified as belonging to Pamintuan. A

few days later police determined the van bore Tautai Seumanu‘s fingerprints.

Further investigation at the bank revealed video footage from the ATM camera

showing Pamintuan, flanked by two larger men, withdrawing $300 from the ATM

at 11:45 p.m. The stolen van was also visible in the video. A bank patron who

used the ATM around the same time told police he saw two men go up to use the

ATM, while at least one person stayed in the van with the motor running. When

shown a picture of the victim, the witness thought the smaller of the men was

Pamintuan but was not sure. Shown a photo lineup, the witness chose a picture of

Tautai Seumanu as one of the men he saw at the ATM.

Police obtained a search warrant for the Hayward home where Tautai lived

with defendant and his extended family. Defendant and Tautai were at a church

function in San Francisco with their families but Iuli and Palega were present at

the house and were detained by police. In a search of both the main house and the

outbuilding, police found Pamintuan‘s brown Gucci watch as well as a variety of

ammunition, including shotgun shells. Police also found several items from

Pamintuan‘s wallet, including the receipt for the late-night ATM transaction.

Police seized defendant‘s leather sport coat and found an Acura car key in the

pocket; later investigation revealed it was the key to Pamintuan‘s car. Subsequent

DNA analysis revealed the sport coat was splattered with the victim‘s blood.

Police also found Pamintuan‘s boots and pea coat. On a coffee table in the

5

outbuilding, police found the box for the black Movado watch Panelo had given

the victim the night he was killed, but it was empty. A criminalist later identified

defendant‘s thumbprint on a box of Remington shotgun shells. At this point,

Pamintuan‘s black Movado watch and engagement ring were still missing.

Police detained Iuli and Palega in a patrol car while they searched the

family home. In a conversation surreptitiously recorded, Iuli and Palega expressed

their hope that police would not find the murder weapon and they agreed to tell

police that Palega‘s mother had given him the Gucci watch. Police interrogated

Iuli early that afternoon and he described the crime to police, informing them who

was involved and the role defendant played. Police also questioned Palega, who

initially told police the Gucci watch was a gift from his mother-in-law. Police

then informed him they recorded his conversation with Iuli. They also falsely

informed him the video recording from the ATM showed that Palega was the

driver in the van. Palega then changed his story and admitted he was in the van at

the bank, and that defendant was the one who shot and killed Pamintuan.

Police were waiting for the Seumanu family when they returned to their

Hayward home after church, and on their arrival arrested defendant and Tautai.

Defendant had Pamintuan‘s engagement ring and black Movado watch, inscribed

with the victim‘s intended wedding date, in his shirt pocket. Tautai, interviewed

by police, initially explained the gun he was holding accidentally fired. Then he

claimed he shot the victim because he had seen their faces. He eventually

admitted that defendant shot the victim, and that he (Tautai) had tried to take the

blame out of loyalty to defendant, his older brother.

Police, still looking for the murder weapon, returned to the Seumanu family

home a few days later with a warrant to search defendant‘s brown Dodge. They

asked defendant‘s wife, Lefea ―Lucy‖ Masefau, if she had the keys to the car but

she told them defendant had the only set of keys. Detective Cardes had a ―low

6

key,‖ ―friendly conversation‖ with her which he recorded on a microcassette

recorder. Masefau did not mention defendant‘s alleged alibi or otherwise protest

defendant‘s innocence. Police forced the car‘s trunk and found a sawed-off

shotgun that was later determined to be the murder weapon.

In his defense, defendant presented the testimony of his brother, Tautai

Seumanu, who claimed that he was the one who killed Pamintuan. At the time of

his testimony, Tautai had pleaded guilty to first degree murder concerning

Pamintuan‘s killing, and had been sentenced to prison. Tautai admitted he told the

police many different stories, including that defendant was the actual killer. He

claimed he wore defendant‘s black leather jacket during the crime (thereby

explaining how it came to have the victim‘s blood on it), and that he gave

defendant the victim‘s black Movado watch and engagement ring to sell. Tautai

also claimed he gave defendant the murder weapon, asking that he dispose of it.

Defendant‘s wife, Lucy Masefau, testified that defendant was home with

her the entire night of the murder. She admitted she did not tell anyone about

defendant‘s alibi for several years, explaining that she was scared. She did not

remember speaking to Detective Cardes after the crime and, after listening to the

recording of their conversation, testified she did not think the woman on the

tape—who identified herself as defendant‘s wife—was she. She admitted she was

on felony probation for three counts of grand theft auto, and that she had never

reported her marriage, living arrangements or defendant‘s incarceration, to social

welfare authorities, which would have reduced her welfare payments. She

admitted she had placed some of the money from her welfare payments in

defendant‘s jail account.

7

B. Discussion

1. Evidentiary Issues

a. Tony Iuli’s Conversation with His Wife

Tony Iuli, along with Jay Palega, Tautai Seumanu and defendant,

kidnapped and robbed Nolan Pamintuan, but aside from Tautai‘s testimony, the

evidence showed that defendant alone fired the shotgun that killed the victim. The

prosecutor eventually offered plea deals to Iuli and Palega in exchange for their

testimony against defendant. During Iuli‘s testimony, the prosecutor, Angela

Backers, questioned him about a conversation he had with his wife immediately

following the crimes. When Prosecutor Backers asked Iuli what he told his wife,

defense counsel objected on the ground the evidence was, among other things,

hearsay. The court overruled the objection and Iuli replied that he told his wife

that ―your fucking brother blew some dude away.‖1 Defendant contends the trial

court erred in overruling his objection because the question called for hearsay to

which no exception applied. Further, he argues for the first time on appeal that the

trial court‘s alleged evidentiary error substantially undermined the reliability of his

trial, violating his rights under the Eighth Amendment to the United States

Constitution. (See, e.g., People v. Martinez (2009) 47 Cal.4th 399, 423 [―high

court decisions state as a general proposition that the Eighth and Fourteenth

Amendments to the United States Constitution prescribe heightened reliability for

proceedings in capital cases‖].)

― ‗Hearsay evidence‘ is evidence of a statement that was made other than

by a witness while testifying at the hearing and that is offered to prove the truth of

the matter stated.‖ (Evid. Code, § 1200, subd. (a).) ―Hearsay is generally

1 Iuli‘s wife, Seu, was defendant‘s cousin, but Iuli testified that she was

treated as, and considered, a sister to defendant.

8

excluded because the out-of-court declarant is not under oath and cannot be cross-

examined to test perception, memory, clarity of expression, and veracity, and

because the jury (or other trier of fact) is unable to observe the declarant‘s

demeanor.‖ (People v. Cudjo (1993) 6 Cal.4th 585, 608.) To challenge a

testifying witness‘s own prior, out-of-court statement as inadmissible hearsay is

unusual,2 but we agree with defendant that Iuli‘s own statement to his wife

constituted hearsay evidence, for it was an out-of-court statement that was offered

for its truth, i.e., that Seu‘s brother—defendant—killed someone.

Both defendant and the People discuss the applicability of various

exceptions to the hearsay rule but we need not address them because, even were

we to assume the trial court abused its discretion in admitting the evidence (see

People v. Jones (2013) 57 Cal.4th 899, 956 [―a trial court‘s decision to admit . . . a

hearsay statement . . . will not be disturbed on appeal absent a showing of abuse of

discretion‖]), any error was harmless under the Watson standard. (People v.

Watson (1956) 46 Cal.2d 818, 836; see People v. Duarte (2000) 24 Cal.4th 603,

618-619 [Watson standard applies to the erroneous admission of hearsay

evidence].) Applying that standard, we conclude that, after examining the entire

cause, including the evidence, it is not ―reasonably probable that a result more

favorable to the appealing party would have been reached in the absence of the

error‖ (People v. Watson, supra, at p. 836), because the evidence of defendant‘s

guilt was very strong, if not overwhelming. Iuli testified that he was with

2 ―Hearsay evidence is usually presented by someone other than the

declarant. Typically, it consists of the testimony of a witness who heard the

declarant make the statement . . . . [¶] Sometimes, however, the hearsay declarant

is also a witness at the proceeding in which the out-of-court statement is

introduced.‖ (1 Jefferson, Cal. Evidence Benchbook (Cont.Ed.Bar 4th ed. Mar.

2014) Hearsay and Nonhearsay Evidence, § 1.9, pp. 7–8.)

9

defendant when they, along with Palega and Tautai, accosted the victim and

robbed him, after which defendant shot and killed him. Iuli was thus an

eyewitness to the crime. This evidence was corroborated by the testimony of

Palega, also an eyewitness, and by evidence that Tautai told police that defendant

was the shooter (although he later recanted). That Iuli told his wife the same

information was cumulative to this eyewitness evidence and was thus not

particularly prejudicial to defendant. Although defendant argues the admission of

the challenged statement in Iuli‘s direct testimony, and not on redirect in an

attempt to rehabilitate the witness‘s credibility, ―unduly magnified‖ the testimony

such that it served as ―an effective and persuasive, if deceptive, vehicle for

bolstering Iuli‘s credibility,‖ the claim is overstated. As Iuli‘s testimony was

corroborated by Palega‘s testimony and evidence of Tautai‘s pretrial statements to

police, and the jury was apprised of the circumstances and terms of Iuli‘s plea

bargain, the jury had ample evidence with which to assess his credibility.

Moreover, although the trier of fact did not observe Iuli when he made the

statement to his wife, defendant remained free to cross-examine Iuli in front of the

jury and have him recount the circumstances of the statement. In other words,

defendant had a fair opportunity to challenge Iuli‘s ―perception, memory, clarity

of expression, and veracity‖ (People v. Cudjo, supra, 6 Cal.4th at p. 608) about his

assertion that defendant ―blew some dude away.‖ Under the circumstances, it is

not ―reasonably probable that a result more favorable to the appealing party would

have been reached in the absence of the error.‖ (People v. Watson, supra, at

p. 836.)

We reach the same conclusion with regard to defendant‘s Eighth

Amendment claim. Although the People argue defendant forfeited this claim by

not specifically raising it at trial, we need not resolve the forfeiture question.

Assuming for argument the issue was preserved, because there was no prejudicial

10

error under state law, any error regarding Iuli‘s testimony about his statements to

his wife did not render defendant‘s trial so fundamentally unfair as to violate his

right to a reliable penalty judgment under the Eighth Amendment to the federal

Constitution. (People v. Carrington (2009) 47 Cal.4th 145, 194–195.)

b. Iuli’s Opinion That Tautai Seumanu Intended to Take the Blame

During the prosecutor‘s examination of Iuli, the witness described a pretrial

encounter he had when he, Tautai and defendant were together in a holding cell.

Iuli testified that defendant asked him and Tautai to ―take the blame off of him and

that he would be out there taking care of us‖ by sending them money in prison.

Iuli testified that he told defendant: ―Fuck no. You take your own beef.‖

According to Iuli, Tautai remained silent and did not appear angry. The following

then occurred:

―Q. [Prosecutor Backers] What did Tautai do when [defendant] asked

one of the two young guys to take the beef?

―MR. CIRAOLO [defense counsel]: Objection. Hearsay.

―THE COURT: Overruled.

―MS. BACKERS: Q. You can answer, sir.

―A. He didn‘t do nothing.

―Q. What was the look on his face?

―A. Don‘t know.

―Q. Did he get angry at [defendant] like you did?

―A. No.

―Q. Didn‘t you tell me he looked like he was going for it?

―A. Yes.

―MR. CIRAOLO: Calls for opinion and conclusion. Ask it be stricken.

―THE COURT: Sustained. It may be stricken.

11

―MS. BACKERS: Q. Have you ever told anybody that Tautai looked like he

was going to take the beef for somebody?

―A. Yes.

―Q. What made you say that?

―MR. CIRAOLO: Calls ultimately for the man‘s opinion and conclusion. It

has been asked and answered.

―THE COURT: No. That is asking for factors he based his conclusion on.

Overruled.

―MS. BACKERS: Q. What made you say that, Mr. Iuli?

―A. I think because it was his brother, his older brother. He wouldn‘t

want to see his older brother go down.‖ (Italics added.)

Citing the decision to overrule this last objection, defendant argues the trial

court abused its discretion under state law, and also violated the Eighth

Amendment, by permitting the prosecution to introduce improper opinion

testimony from Iuli regarding Tautai‘s intention to take the blame for the crimes.

By doing so, defendant claims, the trial court allowed the prosecution to impeach

Tautai‘s credibility before he was able even to take the stand and because Tautai

was a key defense witness, such advance impeachment ―had a strength far in

excess of its actual probative force.‖ Further, defendant argues, the prejudice from

the error was amplified by the prosecutor‘s reference to Iuli‘s testimony on this

point in her closing argument.

Contrary to defendant‘s argument, Iuli‘s testimony regarding his

perceptions was not improper opinion evidence from a lay witness. Evidence

Code section 800 provides: ―If a witness is not testifying as an expert, his

testimony in the form of an opinion is limited to such an opinion as is permitted by

law, including but not limited to an opinion that is: [¶] (a) Rationally based on the

perception of the witness; and [¶] (b) Helpful to a clear understanding of his

12

testimony.‖ Likewise, we have explained that ―[a] lay witness may testify to an

opinion if it is rationally based on the witness‘s perception and if it is helpful to a

clear understanding of his testimony.‖ (People v. Farnam (2002) 28 Cal.4th 107,

153.) Iuli was a percipient witness to the encounter in the holding cell and he thus

spoke from personal knowledge gleaned from his own participation in, and

observation of, the event in question. Moreover, after he answered in the

affirmative when asked whether he ―ever told anybody that Tautai looked like he

was going to take the beef‖ for defendant, Iuli could properly describe his own

motivation for telling someone that information. As noted, ante, the admission of

evidence is generally tested by the abuse of discretion standard, and we find the

trial court acted within its discretion in admitting Iuli‘s description of the

encounter in the holding cell.

Because there was no error under state evidence law, defendant‘s federal

constitutional claim is meritless as well. (People v. Carter (2003) 30 Cal.4th

1166, 1196 [―Defendant‘s claims of federal constitutional error, entirely dependent

as they are on his claim of state law error, likewise must fail.‖]; People v. Gurule

(2002) 28 Cal.4th 557, 655 [same].)

c. Evidence That Defendant Put Out a Contract to Kill Iuli

During his testimony, Tony Iuli several times mentioned, or referred to, his

understanding that defendant had taken out a contract on his life, presumably to

prevent him from testifying or as retaliation for his decision to assist the

prosecution. Defendant was initially successful in preventing questioning on this

topic when the trial court sustained his hearsay objection. He did not, however,

object to Iuli‘s later testimony on the same subject, which referenced the alleged

contract three different times. He now claims the admission of this ―highly

inflammatory‖ evidence violated the hearsay rule as well as his right to due

13

process of law and a reliable determination of facts in a capital trial, guaranteed by

the Eighth and Fourteenth Amendments to the United States Constitution. We

address the three instances separately, and conclude no prejudicial error occurred.

The issue of an alleged contract to have Iuli killed arose following Iuli‘s

admission that his relationship with defendant soured after he told defendant to

―take [his] own beef.‖ The prosecutor then asked: ―Well, didn‘t you get a

contract put out on you?‖ Defense counsel immediately objected, citing

―[h]earsay, opinion and conclusion,‖ which the trial court sustained. The court

also sustained an immediate follow-up objection of ―no foundation.‖ The

prosecutor pressed on and asked Iuli about an April 25, 2000, hearing at which

both Iuli and Tautai were present in court. Iuli admitted he spoke to Tautai in

Samoan at this hearing and told him of his intention to take an offered plea deal

from the prosecution. Iuli advised Tautai that if the prosecution should offer him a

similar deal, he should take it. The following colloquy then occurred:

―Q. [Prosecutor Backers] What else did you tell [Tautai]?

―A. I told him I have some heat on me.

―Q. You have some heat on you?

―A. Yes.

―Q. What does that mean?

―A. I have a contract out on me.

―Q. Did you tell him who put that out on you?

―A. Yes.

―Q. What did you tell him?

―A. I told him his brother did.

―Q. His brother Paki [i.e., defendant], right?

―A. Yes.‖ (Italics added.)

14

Defense counsel did not object to this first reference to the alleged contract

on Iuli‘s life, an omission defendant acknowledges. The People argue defendant

forfeited the claim by failing to object (Evid. Code, § 353, subd. (a); People v.

Hinton (2006) 37 Cal.4th 839, 894), but defendant contends we should find the

issue is properly before us because his trial attorney was constitutionally

ineffective for failing to object to the above testimony. As we have often

observed, whether or not to object to evidence at trial is largely a tactical question

for counsel, and a case in which the mere failure to object would rise to such a

level as to implicate one‘s state and federal constitutional right to the effective

assistance of counsel would be an unusual one. (People v. Abilez (2007) 41

Cal.4th 472, 493, fn. 3.) An attorney may well have a reasonable tactical reason

for declining to object, and ― ‗[i]f the record on appeal sheds no light on why

counsel acted or failed to act in the manner challenged, an appellate claim of

ineffective assistance of counsel must be rejected unless counsel was asked for an

explanation and failed to provide one, or there simply could be no satisfactory

explanation.‘ ‖ (Ibid.)

Here we discern two possible reasons why counsel may have refrained

from objecting. First, counsel may have desired not to highlight the evidence by

making an objection. ―[T]he decision whether to object, move to strike, or seek

admonition regarding [undesired] testimony is highly tactical, and depends upon

counsel‘s evaluation of the gravity of the problem and whether objection or other

responses would serve only to highlight the undesirable testimony.‖ (People v.

Catlin (2001) 26 Cal.4th 81, 165, italics added.)

Second, defense counsel may have concluded—despite the trial court‘s

initial decision to sustain a hearsay objection— that the challenged evidence was

not hearsay because it was admissible not for its truth but as evidence of Iuli‘s

state of mind that was relevant to his credibility. ―Evidence is relevant if it has

15

any tendency in reason to prove or disprove any disputed fact or consequence,

including evidence relevant to the credibility of a witness. (Evid. Code, § 210

[citation.]) Thus, ‗ ―[e]vidence that a witness is afraid to testify or fears retaliation

for testifying is relevant to the credibility of that witness and is therefore

admissible. [Citations.] An explanation of the basis for the witness‘s fear is

likewise relevant to [his] credibility and is well within the discretion of the trial

court. [Citations.]‖ ‘ [Citation.] ‗Moreover, evidence of a ―third party‖ threat

may bear on the credibility of the witness, whether or not the threat is directly

linked to the defendant.‘ ‖ (People v. Abel (2012) 53 Cal.4th 891, 924–925.) That

Iuli ―was willing to testify against a former member of the group despite his fear

of retaliation was supportive of the credibility of his testimony‖ and thus

admissible despite the rule against hearsay evidence. (People v. Green (1980) 27

Cal.3d 1, 20, overruled on other grounds in People v. Martinez (1999) 20 Cal.4th

225, 239.) Where a sound legal basis exists for the admission of evidence, an

attorney is not ineffective for failing to object to its introduction. (People v.

Majors (1998) 18 Cal.4th 385, 403.)

The testimony that Iuli believed defendant had taken out a contract on his

life was admitted not to prove the contract actually existed, but rather to bolster

Iuli‘s credibility by showing that he believed such a contract existed and was still

willing to testify against defendant. There being a plausible reason why counsel

did not object, we cannot conclude on this record that counsel‘s inaction lacked a

reasonable tactical basis. In sum, not only did defendant‘s failure to object forfeit

the issue for appeal, but the substantive claim is meritless.

The issue of the alleged contract on Iuli‘s life arose again when he testified

concerning what Tautai told him at that April 25, 2000, court hearing. This time,

defendant adequately preserved the claim by making a timely, and continuing,

objection:

16

―Q. And what did Tautai say when you said that his brother Paki had put

a hit on you, or put some heat on you?

―A. He said —

―MR. CIRAOLO [defense counsel]: Hearsay. Objection.

―THE COURT: Overruled.

―MS. BACKERS [the prosecutor]: Q. You can answer, sir.

―A. He said don‘t take — first he said he was going to take the blame,

then he said: Don‘t take the deal and he‘ll try to talk to — try to talk to his

brother.

―Q. To take the heat off of you, right?

―A. Yes.

―Q. So you are sitting here in the courtroom and you are about to take the

deal, right?

―A. Yes.

―Q. You tell Tautai that his brother has put a hit on you?

―A. Yes.

―Q. You basically got a snitch jacket in this case, right?

―A. Yes.

―Q. You were the first one to confess back in May of ‘96?

―A. Yes.

―Q. And then on April 25th this year, here in this courtroom, when you

told Tautai that his brother put a hit on you, he said he knew about it, right?

―A. Yes.

―Q. And he was going to try to talk you out of the deal?

―MR. CIRAOLO: Excuse me. Continued objection as to what Tautai said

on hearsay grounds.

―THE COURT: Overruled.‖ (Italics added.)

17

Defendant contends this passage contains two pieces of inadmissible

hearsay. The first is that Iuli believed that defendant had taken out a contract to

have Iuli killed. As explained, ante, this evidence was not hearsay because it was

admissible as circumstantial evidence of Iuli‘s credibility, i.e., that he was willing

to testify despite the perceived danger of his being killed as a snitch. The second

piece of allegedly inadmissible evidence was that Tautai knew about the contract.

But the significance of Tautai‘s testimony was not simply that he was aware that

defendant had initiated a contract to have Iuli killed, but that Iuli believed Tautai

could convince defendant to rescind the contract if Iuli would change his mind and

refuse to assist the prosecution. Thus, Iuli testified:

―MS. BACKERS: Q. Tautai was trying to talk you out of taking the deal,

right?

―A. [by TONY IULI] Yes.

―Q. And he told you that if you didn’t take the deal that he could talk to

his brother about taking the heat off of you, right?

―A. Yes.

―Q. What did you understand that to mean?

―A. Excuse me?

―Q. What did you understand that to mean, that Tautai would talk to

[defendant] about taking the heat off, that he would lift the contract?

―A. Yes.‖ (Italics added.)

Defendant contends the information embedded in this testimony—i.e., that

defendant had taken out a contract to have Iuli killed—was inadmissible hearsay.

We assume this claim was preserved by defendant‘s continuing hearsay objection

―to what Tautai said,‖ but as we have explained, the hearsay rule was inapplicable

because the evidence of the contract was admissible not for its truth but to show

Iuli‘s state of mind. The further point—that Tautai could convince defendant to

18

rescind the contract if Iuli changed his mind about testifying—was similarly

admissible despite the hearsay rule, for this information was also relevant to Iuli‘s

state of mind and, thus, his overall credibility: Iuli believed he could avoid being

killed if he would decline to assist the prosecutor, but he was willing to testify

against defendant anyway.

The next part of Iuli‘s testimony on which defendant relies for this

argument occurred just after the trial court overruled defendant‘s continuing

hearsay objection to Iuli‘s testimony regarding Tautai‘s statements:

―Q. [Prosecutor Backers] And [Tautai] told you he was going to take the

blame?

―A. [by Tony Iuli] Yes.

―Q. And part of your deal is that if you requested, you would be housed

out of state, right?

―A. Yes.

―Q. During that conversation on April 25th, this year, towards the end of

the conversation, did you tell Tautai that you have been sitting here for four years

for something his fucking dumb-ass brother did?

―A. Yes.‖ (Italics added.)

Defendant relies on the highlighted portion of this testimony to argue the

trial court abused its discretion in denying his continuing hearsay objection. This

was evidence of an out-of-court statement made not by Tautai, but by Iuli, and was

apparently offered for its truth (i.e., that Iuli had been in pretrial detention for a

murder actually committed by defendant). We need not determine whether this

statement was improperly admitted because, like the statement that Iuli told his

wife that ―your fucking brother blew some dude away,‖ the admission of this

hearsay statement, if error, was manifestly harmless. Ample evidence, ranging

from Tony Iuli‘s and Jay Palega‘s eyewitness accounts of the crimes, to evidence

19

from Tautai Seumanu (before he recanted), as well as evidence that defendant was

in possession of property stolen from the victim, that the victim‘s blood was on

defendant‘s jacket, that the murder weapon was found in a car to which defendant

had exclusive access, and that defendant‘s thumbprint was on a box of

ammunition that fit the murder weapon, supported the case against defendant.

Moreover, the statement evidence—assuming for argument that it was

inadmissible hearsay—was provided by the declarant himself (Iuli) while on the

stand, and the jury could thus fairly assess his credibility. In these circumstances,

it is not ―reasonably probable that a result more favorable to the appealing party

would have been reached‖ had this stray comment been excluded. (People v.

Watson, supra, 46 Cal.2d at p. 836.) Any error was thus harmless.

We also find that the combined effect of any evidentiary errors in admitting

certain comments Iuli made while testifying does not require reversal under either

state law or federal constitutional law. In light of the ample evidence of

defendant‘s guilt, admission of the various stray comments defendant now

challenges, even if error, together do not convince us that it was ―reasonably

probable that a result more favorable to the appealing party would have been

reached‖ had these comments been excluded. (People v. Watson, supra, 46 Cal.2d

at p. 836.) There being no prejudicial error under state law, we also find that any

error regarding Iuli‘s testimony did not render defendant‘s trial so fundamentally

unfair so as to violate defendant‘s right to due process and a reliable penalty

judgment under the federal Constitution. (People v. Jones, supra, 57 Cal.4th at

p. 933.)3

3 Defendant also contends the prosecutor‘s subsequent reference during the

penalty phase to the alleged contract defendant took out to have Iuli killed

(footnote continued on next page)

20

d. Admission of Gang Status List

Prior to the parties‘ opening statements, the court and attorneys discussed

the various exhibits. As to exhibit 46, a chart bearing gang nicknames,4 the

prosecutor made a showing in support of admissibility, saying that after

Pamintuan‘s murder, while the four participants were in custody, defendant ―wrote

out, in handwriting, on a piece of paper this particular chart, which named him

first, ‗Uso for Life‘ means ‗Brothers for Life.‘

―It names Paki [defendant] first, Mr. Smurf, and says America‘s Most

Wanted Samoans. This was a badge of honor for him, a stripe for him. He did

this after he committed the murder while he was in custody and he gave that to

Tony [Iuli] and asked him to type it up on the computer at Juvenile Hall.

―It is my position that the fact he wrote this out and said his name first, and

then said Samoan Style America‘s Most Wanted Samoans is an admission he did

the murder, but indicates consciousness of guilt and indicates absolutely no

(footnote continued from previous page)

undermined the reliability of the jury‘s penalty determination. We address that

issue, post, in part II.B.4., finding the claim was forfeited.

4 The exhibit appeared like this:

USO 4 LIFE

MR. SMURF BIG TONE

MAC.JAY RIP TEO (I LOVE YOU 4-4)

T. SPOON FAGASA

LIL. VIC PETE

LIL. JAY LIL. TONE

SAMOAN STYLE

AMERICA‘S MOST

WANTED SAMOAN‘S!!!

21

remorse.‖ Defense counsel and the trial court both disagreed, the latter saying it

was a ―stretch‖ to characterize the document as an admission by defendant that he

had murdered someone. The prosecutor stated she planned on using the document

when questioning Iuli and the court deferred judgment on it, saying, ―We will

cover it again.‖

The prosecutor did not, in fact, utilize exhibit 46 when questioning Iuli.

When later cross-examining Tautai Seumanu, however, she referred to the exhibit

in an attempt to impeach the witness. Tautai testified he did not remember the

chart and had not previously seen the list. The prosecutor noted that if a gang

member commits a murder, he ―earn[s] [his] stripes‖ and is ―going to be number

one on that list,‖ and then asked, ―That is the whole idea behind it, right?‖ Tautai

answered: ―Some.‖ Tautai testified that he killed Pamintuan to earn his ―stripes,‖

but admitted that although the murder ―[w]ouldn‘t necessarily move me to the

top,‖ it would earn him respect in the gang. The trial court overruled defense

objections that the questioning lacked a proper foundation (although it sustained

some objections the questioning was argumentative or assumed facts not in

evidence). Tautai confirmed ―uso‖ meant ―brothers for life,‖ and that the first

person on the list (―MR. SMURF‖) referred to defendant, the third person on the

list (―MAC.JAY) was Jay Palega, the fourth person (―TEO‖) was Iuli‘s brother,

Tim Tao, who died in 1998, and the next entry, ―T.SPOON,‖ referred to himself,

Tautai ―Teaspoon‖ Seumanu. Counsel objected on the basis that the prosecutor

had failed to lay a proper foundation, and the prosecutor agreed to establish that

the exhibit was in fact a gang status list. The prosecutor then asked the witness,

―Mr. Seumanu, . . . if you pulled the trigger in this murder, explain to the jury why

you are number five on that list,‖ whereupon the trial court sustained defendant‘s

renewed objection (based on lack of foundation) and the prosecutor moved on.

22

In a somewhat scattershot argument, defendant first contends the admission

of testimony concerning the meaning of exhibit 46 was evidentiary error because

the prosecutor failed to properly authenticate the exhibit and because it was

hearsay. Defendant forfeited his hearsay claim because he failed to object on that

ground. He did, however, object to the evidence on the ground that it was not

properly authenticated, thereby preserving the issue for our review. We agree the

prosecutor never authenticated exhibit 46: ―Authentication of a writing is required

before it may be received in evidence.‖ (Evid. Code, § 1401, subd. (a).)

―Authentication of a writing means (a) the introduction of evidence sufficient to

sustain a finding that it is the writing that the proponent of the evidence claims it is

or (b) the establishment of such facts by any other means provided by law.‖

(Evid. Code, § 1400.) Tautai specifically denied having seen the document

previously and disclaimed any knowledge that defendant was its author.

Accordingly, Tautai could not authenticate the document, and because the

prosecutor did not otherwise introduce evidence showing the list was in fact a

status list for the Sons of Samoa street gang, the trial court erred in permitting the

prosecutor to question Tautai about it. (Tony Iuli would later authenticate the

document when he testified at the penalty phase.) But defendant‘s objection was

eventually sustained, diminishing the possible prejudice. And Tautai exhibited

general familiarity with the nicknames in the document and with the hierarchy of

the Sons of Samoa gang in general, information that could have been elicited

without reference to the list. Under the circumstances, we find any error in failing

to authenticate the list was harmless.

Second, defendant contends the prosecutor committed misconduct by

capitalizing on the improper evidence, ―inject[ing] herself into this case as a

witness‖ and ―purveying hearsay,‖ and ―presenting information to the jurors that

she could not reasonably expect to prove . . . by . . . other evidence.‖ He suggests

23

his federal constitutional rights were violated.5 Although defendant did not object

on grounds of prosecutorial misconduct, we will assume for purposes of argument

that the futility of an objection excused his failure to do so. Turning to the merits,

however, we find no misconduct. The evidence of the gang status list was, for a

time, admitted over defendant‘s objection for lack of foundation so the prosecutor

did not act unethically by continuing to question Tautai about it until the court

eventually sustained defendant‘s objection. The further claim Ms. Backers was

―purveying hearsay‖ cannot be sustained because the trial court never ruled the

gang status list was hearsay. Finally, we have examined Backers‘s examination of

Tautai and find her use of leading questions, which necessarily included stating

facts she assumed the witness would affirm or deny, was justified because Tautai

was an obviously hostile witness. We thus reject the claim the prosecutor‘s

questioning of Tautai about the gang status list constituted misconduct. We

further find no violation of defendant‘s right to confrontation, due process, and a

reliable penalty trial under the Sixth, Eighth and Fourteenth Amendments.

2. Alleged Judicial Misconduct

During his direct examination by the prosecutor, Tautai Seumanu proved an

evasive and difficult witness. Although he previously, and tearfully, had informed

police that defendant was the shooter, Tautai later pleaded guilty to the charged

crimes, claimed to be the shooter himself and corroborated defendant‘s alibi

defense in his testimony. When questioned on the stand, however, Tautai refused

to provide any specific information about the Sons of Samoa, the street gang to

which he and defendant belonged. Asked who was in the gang, he replied: ―I

5 Defendant similarly contends that reference to exhibit 46 during the

prosecutor‘s penalty phase closing argument deleteriously affected the jury‘s

penalty decision. We address that issue, post, in part II.B.5.

24

can‘t give no names‖ because ―they are not in the case.‖ The prosecutor then

remarked: ―You are under oath to tell the truth. I know that doesn‘t mean much

to you.‖ Defense counsel quickly interposed an objection to this gratuitous

comment, arguing it was improperly argumentative. The trial court sustained the

objection, saying: ―Ms. Backers, I know the temptation, but sustained.‖ (Italics

added.) There was no further objection and the prosecutor‘s questioning of Tautai

continued. Defendant now contends the trial court‘s fleeting comment (―I know

the temptation‖) was judicial misconduct and demonstrated such profound and

damaging judicial bias that we must reverse the judgment under both state law and

the Eighth and Fourteenth Amendments to the United States Constitution. For

several reasons, we disagree.

At the threshold, we conclude defendant‘s failure to object on this ground

forfeited the claim for appeal. As a general rule, a specific and timely objection to

judicial misconduct is required to preserve the claim for appellate review. (People

v. Geier (2007) 41 Cal.4th 555, 613, overruled on other grounds in Melendez-Diaz

v. Massachusetts (2009) 557 U.S. 305.) Although defendant argues he may be

excused from this general rule because an objection would have been futile, the

circumstances in no way suggest an objection and request to have the jury

admonished would have found an unsympathetic jurist.

Were we to reach the claim despite its manifest forfeiture, we would find it

meritless. A trial court should of course refrain from making comments before the

jury that might suggest it has allied itself with the prosecution. (See People v.

Harris (2005) 37 Cal.4th 310, 347.) For example, ―[a] trial court commits

misconduct if it ‗persists in making discourteous and disparaging remarks to a

defendant‘s counsel . . . and utters frequent comment from which the jury may

plainly perceive that the testimony of the witnesses is not believed by the judge,

and in other ways discredits the cause of the defense . . . .‘ ‖ (People v. Fudge

25

(1994) 7 Cal.4th 1075, 1107.) The trial court‘s comment defendant challenges

does not contravene this rule. Not only was the comment solitary and fleeting, it

was also ambiguous in that it may reasonably have been understood by the jury

not as an expression of where the court‘s sympathies secretly lay, but as merely a

polite reminder to the prosecutor, upon sustaining the defense objection, to

maintain her composure in the face of a recalcitrant and combative witness.

Finally, even if the issue were properly preserved and the remark construed

as misconduct, the trial court‘s single, brief comment could not possibly have been

prejudicial. ― ‗ ―[O]ur role . . . is not to determine whether the trial judge‘s

conduct left something to be desired, or even whether some comments would have

been better left unsaid. Rather, we must determine whether the judge‘s behavior

was so prejudicial that it denied [the defendant] a fair, as opposed to a perfect,

trial.‖ ‘ ‖ (People v. Abel, supra, 53 Cal.4th at p. 914.) On this subject it is worth

noting that the jury was instructed with CALJIC No. 17.30, which instructs the

jury to disregard any comment by the trial court that might suggest it disbelieved a

particular witness.6 Under the circumstances, the trial court‘s single, fleeting and

ambiguous interjection could not have prejudiced defendant in any way.

3. Alleged Prosecutorial Misconduct: Vouching

a. Introduction

As noted above, defendant was charged jointly with codefendants Jay

Palega, Tony Iuli, and Tautai Seumanu with the murder, aggravated kidnapping,

and robbery of Nolan Pamintuan. As described in more detail below, the

6 Thus, the jury was instructed: ―I have not intended by anything I have said

or done, or by any questions that I may have asked, or by any ruling I may have

made, to intimate or suggest what you should find to be the facts, or that I believe

or disbelieve any witness. [¶] If anything I have done or said has seemed to so

indicate, you will disregard it and form your own conclusion.‖

26

prosecutor offered Palega and Iuli a plea deal: in exchange for their testimony

against defendant, they would be allowed to plead guilty to reduced charges. Both

Palega and Iuli took the deal and testified against defendant. In his opening

argument, defense counsel mentioned the plea deal, noted the prosecutor offered

the deal after defendant withdrew his speedy trial waiver (time waiver), and

suggested the jury could infer the prosecutor did not believe she had a strong

enough case to convict defendant without Palega‘s and Iuli‘s testimony. The

parties thereafter agreed to a set of stipulated statements (stipulations) informing

the jury the prosecutor‘s decision to offer the plea deals was unrelated to

defendant‘s decision to hasten his trial, and that she independently decided that

Palega and Iuli bore reduced moral culpability for the crimes.

Defendant now contends the evidence of the prosecutor‘s subjective

motivation for offering the plea deals was inadmissible, and her closing argument

referencing that evidence was misconduct because she thereby improperly

vouched for the credibility of her witnesses. As we explain, defendant forfeited

these arguments by failing to object, and the claims are meritless in any event.

b. Background

At the time of the crimes, Tony Iuli was 16 years old. By that time he had

had multiple contacts with the justice system and knew, when arrested, he would

not be treated as a juvenile. He also knew he was facing life in prison without

possibility of parole for the crimes against Pamintuan. Jay Palega was 18 years

old when Pamintuan was killed and learned while in pretrial detention that the

prosecution did not intend to pursue the death penalty against him.

The prosecution filed the information in this case on June 19, 1997.

Deputy District Attorney Angela Backers was assigned to prosecute the case on or

around December 28, 1997. Attorney Michael Berger represented Iuli and

27

approached Backers at least three times in 1999, attempting to obtain a plea

bargain for his client. He was at that time unsuccessful.

Defendant withdrew his time waiver on March 3, 2000, requiring that trial

begin no later than May 2, 2000. Around this time the prosecution offered, and

Iuli rejected, two plea bargains. The first deal required that he plead guilty to first

degree murder, accept a sentence of 25 years to life in prison, and testify against

defendant at the guilt phase of trial. The second deal required that he plead guilty

to second degree murder, accept a sentence of 15 years to life in prison, and testify

against defendant at both the guilt and penalty phases of trial. Iuli rejected both of

these offers because he believed prisoners with life terms would never be paroled

by prison authorities. Palega, who was represented by Attorney William Muraoka,

subsequently rejected the same offers for the same reason.

The prosecutor then offered a different deal, which Iuli accepted on April

26, 2000. Pursuant to this new deal, Iuli agreed to plead guilty to voluntary

manslaughter, simple kidnapping, and attempted robbery, and to admit a firearm

use enhancement, in return for a determinate prison sentence of 16 years, eight

months. The plea deal also required Iuli to testify truthfully against defendant at

both the guilt and penalty phases of the trial. Iuli wrote a letter to Palega urging

him to accept the same deal, which Palega did on May 15, 2000. Both men

eventually testified against defendant and identified him as the one who shot

Pamintuan.

Defendant was represented at trial by Attorneys Michael Ciraolo and

Deborah Levy. In Ciraolo‘s opening statement, he referred to the plea deals Iuli

and Palega received: ―And one thing I want you to remember is a particular day,

and that is March 3d of this year. Because what occurred on that day is my client

withdrew his time waiver, which meant he had to commence this trial within 60

28

days. And after that date, the prosecution realized that they cannot make the case

against my client, that they had to get him by testimony.

―The prosecution‘s case revolves around two people, Tony Iuli and Jay

Palega. These men were former co-defendants of the defendant. They were

charged with the same charges that my client was charged with, only the

prosecution was not seeking the death penalty. The prosecution was only seeking,

and has only sought, the death penalty against my client. Those two men were

faced with prison, with life without possibility of parole. They were to die in

prison.

―The prosecution approached them, through their counsel, and offered

them, what we say in the criminal vernacular, deals. And the deal was that if they

testify against my client on the guilt phase of the trial, they would receive first-

degree murder convictions. They had to plead to first degree, which meant 25

years to life. If they testified against my client at the penalty phase of the trial,

they would get a second degree plea bargain, which was 15 years to life.

―Both those men refused that offer.

―The prosecution was compelled to renegotiate her position and ultimately

offer both these men a fixed term of a maximum of 17 years in prison, 16 years,

eight months. So no matter what happened, they would get no more than 17 years

for their testimony.

―When these men testify—they had given statements previously to the

police. The prosecution worked with them with considerable time and effort to get

their statements here in court. When they testify, they are testifying under

complete distrust by the prosecution because they have not been sentenced yet.‖

(Italics added.)

The prosecutor did not object to this argument. But later, she expressed

concern that defense counsel had misled the jury in two ways: (1) by suggesting

29

she believed she had a weak case; and (2) by asserting that when she realized that

defendant‘s withdrawal of his time waiver would require her to go to trial, she

approached counsel for Iuli and Palega and offered them a deal. Contrary to these

assertions, she explained, ―The truth of the matter is that I never approached Mr.

Berger or Mr. Iuli, his client, with a deal until the defense had approached me

asking for a deal.

―Mr. Berger, for over one year, was asking me for a deal that would include

Tony [Iuli] testifying against the remaining three codefendants and identifying the

shooter in the murder. [¶] . . . [¶] And the offer of proof is that after the [section]

1538 [suppression hearing] in this case, . . . Mr. Berger approached me, no less

than three times, probably more, whenever he would see me, basically he would

say: Have you put together an offer for my client, Mr. Iuli?‖

Prosecutor Backers explained that she had been busy trying an unrelated

capital case when Mr. Berger approached her about a deal and she had not had the

time to consider a plea deal for Iuli until after that trial. But after defense

counsel‘s opening statement, she became concerned the jury had been misled

about the pertinent events. Accordingly, she proposed a stipulation, explaining:

―So the impression left with the jury that I got desperate because I thought I

couldn‘t prove my case against this defendant, and approached them for deals, is

absolutely not true.

―And I am trying to correct that misimpression by a series of stipulations

that I have offered that indicate that I had been working on the case for two years

providing discovery, and by the time they pulled [their] time [waiver] on March

3d, I had, during the same week, provided them with 1,174 pages of penalty phase

discovery, which obviously indicated that I had already worked up a penalty

phase, because I was giving them almost 1,200 pages in penalty phase discovery.

30

―And I would anticipate calling Mr. Berger, and Mr. Muraoka, and having

them testify—well, as far as Mr. Berger is concerned, that Mr. Berger is the one

who approached me, not me approaching him.

―And the question I would propose to ask Mr. Iuli when he is on the stand

is: You and your lawyer had an agreement that you would take a deal from the

prosecution that included you testifying against the others, and you had that

agreement that you would take that deal for over a year before you actually pled

guilty. And that is the substance of the question I would ask Mr. Iuli.

―And there is a series of questions I would ask Mr. Berger, basically that

would prove the offer of proof that I just made; that he came to me and was asking

for a deal for quite a long period of time before I made him an offer.‖ (Italics

added.)

Defense Counsel Ciraolo protested, arguing his opening statement was ―a

fair inference on what we believe the evidence would show,‖ and ―[w]hat is

critical here is that an offer was not made until after we withdrew the time waiver.

And the offer that was made by Ms. Backers was rejected. They had—there had

to be a further offer. The subsequent offer was accepted.

―Whether Ms. Backers had a case or not, what her rationale was or was not

for making an offer, I believe is fair comment in opening statement and outline

and final argument.

―If she wants to put her credibility on the line, the evaluation of the case,

she is doing so here. And I don‘t think that is appropriate.‖

The court found Mr. Ciraolo‘s argument was permissible, but that the

prosecutor should also be permitted to rebut the argument with evidence. The

court agreed with defense counsel, however, that the prosecutor‘s proposed

stipulation was ―fairly inartful, both the way the stipulation is presented and also

the way—the question Ms. Backers wants to pose [to Berger, Iuli‘s attorney]. It is

31

probably not the best way to approach it.‖ The court then deferred judgment on

the matter until a later time, saying: ―I think there are other ways to put the

information in front of the jury without opening an entire Pandora‘s box. And

what I foresee is the focus of this case being transferred, either intentionally or

unintentionally, from the facts of the ultimate issue to prosecutorial conduct and

credibility. And I don‘t think that serves the interest of justice here.

―So let me see if I can come up with something else . . . and then readdress

this [later].‖

c. The Berger and Muraoka Stipulations

The trial court thereafter proposed a stipulation that stated: ―The

information in this case was filed in the Superior Court of Alameda County on

June 19th of 1997. At that time, California law provided that the defendant had a

statutory right to demand a trial on the charges contained in the information within

60 days of June 19th, 1997, or on or before August 18th of 1997.

―The defendant entered a general time waiver waiving his right to a trial

within 60 days of June 19th, 1997.

―The defendant withdrew that general time waiver on March 3d of the year

2000. This required that the trial in this case commence on or before May 2d of

the year 2000.

―Deputy District Attorney Angela Backers was first assigned this case on or

about December 28th of 1997.

―Mr. Michael Ciraolo and Ms. Deborah Levy became attorneys of record

for the defendant on or about December 11th of 1998.

―There has been ongoing discovery and the providing of information on the

guilt and possible penalty phases of this case by Ms. Backers to Mr. Ciraolo and

Ms. Levy since December 11th of 1998.

32

―Mr. Michael Berger, who is the attorney sitting over there, has represented

Mr. Tony Iuli in this matter from on or about May 27th of 1996.

―During the year 1999, Mr. Berger approached Ms. Backers on at least

three occasions regarding a possible plea agreement which would involve Mr. Iuli

being allowed to plead to a lesser offense in consideration for Mr. Iuli providing

testimony in this trial.

―Mr. Iuli entered such a plea agreement on April 26th of the year 2000.‖

Defendant‘s attorney, Ciraolo, expressly agreed to this stipulation, which

was read to the jury.

Later, the trial court proposed two additional stipulations covering the

circumstances of Palega‘s plea. The first one provided: ―On May 5th of the year

2000, during an interview with Ms. Backers, defendant Tony Iuli wrote a letter to

defendant Jay Palega. The letter was reviewed by Ms. Backers and Mr. Iuli‘s

attorney, Mr. Michael Berger. Mr. Berger placed a phone call to Mr. Muraoka to

inform him about the letter. Mr. Muraoka came to the courtroom to pick up the

letter. At that time, Ms. Backers informed Mr. Muraoka that the same plea

agreement offered and accepted by Mr. Iuli was now being offered to Mr. Palega.

Mr. Palega accepted the offer and entered into the plea agreement by pleading

guilty on May 15th of the year 2000.‖

The second Muraoka stipulation provided: ―If called to testify, Mr.

William Muraoka, an assistant public defender in Alameda County, would testify

that on or about May 15th of the year 2000 he had a conversation with Ms.

Backers regarding the plea agreement entered into by his client. Ms. Backers

indicated to Mr. Muraoka that based on her evaluation of the evidence as the

deputy district attorney assigned to this case, that while she believed all four

defendants were legally guilty of the murder, her review and evaluation of the

evidence led her to believe it was appropriate for her to exercise her discretion as

33

the prosecutor of the case, to enter into the plea agreements which have been

stated on the record.‖

Defendant‘s attorney expressly agreed to both Muraoka stipulations, which

were read to the jury.

d. Questioning and Closing Argument

Iuli and Palega were both questioned about the circumstances of their plea

bargains on direct and cross-examination. In her closing argument, the prosecutor

addressed the deals she made with them in exchange for their testimony, saying:

―[T]here are some major differences between the men in that van.

―And the differences are this: the two men in the front seat of that van [i.e.,

Iuli and Palega] wanted to let [Pamintuan] go. They wanted to let him live. They

didn‘t believe [defendant] should shoot him. They even told [him] not to shoot

him. . . .

―If somebody gives up their stuff, you let them go. But [defendant] broke

their rule, too. Instead of letting [Pamintuan] go, like they told him to, like they

thought they should, he blew [the victim‘s] chest apart.

―There is a moral difference, not a legal difference, but a moral difference

between the two in the front seat and the two in the backseat. And that is why

there were different offers made. And that is the only reason why.‖ (Italics

added.)

Further: ―So the offers that were made, which you now have heard so

much about, and you heard the actual conditions of the offer read to the witnesses

while they were on the stand, is that those two men in the front seat who wanted to

let [the victim] go, let him live, got 16 years, eight months.

―And clearly, after seeing Tautai testify, I think you can see why there is

such a difference between the two in the front seat and the two in the backseat. I

34

am sure you can see that that discretion was exercised with a proper amount of

integrity. Because once you met Tautai, and you saw his lack of moral fiber, I am

sure that you could see that there was a big difference between the two in the

backseat and the two in the front seat.

―What you were told is that the reason those offers were lowered from a life

top to a determinate term was because after [defendant] pulled [his] time [waiver]

on March 3d, I couldn‘t prove my case. That is what you were told. I want you to

think about the evidence I have in this case and that you now know is true.‖

(Italics added.) The prosecutor then listed all the evidence of guilt, aside from

Iuli‘s and Palega‘s testimony. She then continued: ―You know how compelling

and how strong the evidence is in this case. So now you know the truth about why

those offers were made to Tony and Jay.‖ Defendant did not object to this

argument.

e. Defendant Forfeited His Claims

Defendant mounts a two-pronged attack on the evidence of Prosecutor

Backers‘s subjective motivation for offering plea deals to Iuli and Palega. First,

he contends the evidence was inadmissible because it was irrelevant and

immaterial. As we have already explained, challenges to the admission of

evidence must be preserved for appellate review with a timely and specific

objection at trial. (Evid. Code, § 353, subd. (a); People v. Hinton, supra, 37

Cal.4th at p. 894.) Here, defendant not only failed to object but his counsel

stipulated to the Berger and Muraoka stipulations. Under the circumstances, he

may not now be heard to complain, because ―when a party enters into a voluntary

stipulation, he generally is precluded from taking an appeal claiming defects in the

stipulation.‖ (People v. Gurule, supra, 28 Cal.4th at p. 623; cf. People v. Duff

35

(2014) 58 Cal.4th 527, 540 [―a stipulation to the excusal of jurors forfeits any

subsequent objection to their omission from the jury pool‖].)

Second, defendant contends the prosecutor committed misconduct by

improperly vouching for the truthfulness of her witnesses, Tony Iuli and Jay

Palega, citing three separate incidents: Her direct examination of Iuli, the

admission of the Muraoka stipulation,7 and her closing argument. None of these

claims was properly preserved for our review. It is well settled that making a

timely and specific objection at trial, and requesting the jury be admonished (if

jury is not waived), is a necessary prerequisite to preserve a claim of prosecutorial

misconduct for appeal. (People v. Pearson (2013) 56 Cal.4th 393, 426; People v.

Cole (2004) 33 Cal.4th 1158, 1201.) ―The primary purpose of the requirement

that a defendant object at trial to argument constituting prosecutorial misconduct is

to give the trial court an opportunity, through admonition of the jury, to correct

any error and mitigate any prejudice.‖ (People v. Williams (1997) 16 Cal.4th 153,

254.)

Defendant appears to acknowledge that he failed to object but contends any

objection would have been futile. ―A defendant will be excused from the

necessity of either a timely objection and/or a request for admonition if either

would be futile. [Citations.] In addition, failure to request the jury be admonished

does not forfeit the issue for appeal if ‗ ―an admonition would not have cured the

harm caused by the misconduct.‖ ‘ [Citation.] Finally, the absence of a request

for a curative admonition does not forfeit the issue for appeal if ‗the court

7 The nature of defendant‘s complaint regarding the Muraoka stipulation is

unclear. To the extent he complains the stipulation should not have been admitted,

he forfeited that claim when his trial attorney agreed to the stipulation. To the

extent defendant means to attack the prosecutor‘s closing argument, he forfeited

that claim as well by failing to object on that ground.

36

immediately overrules an objection to alleged prosecutorial misconduct [and as a

consequence] the defendant has no opportunity to make such a request.‘ ‖ (People

v. Hill (1998) 17 Cal.4th 800, 820.)

To the extent the prosecutor‘s questioning of Iuli and her closing argument

simply relied on information contained in the stipulations, we agree an objection

would have been futile, for by counsel agreeing to the stipulations, they became

fair game for questioning and argument. To the extent the prosecutor‘s arguments

went farther than merely relying on the stipulations, such as when she argued there

was a ―moral difference‖ between Iuli and Palega, on the one hand, and defendant

and Tautai, on the other hand, or when she opined that she exercised the ―proper

amount of integrity,‖ a timely objection would not have been futile, for it would

have provided the trial court an opportunity to prevent the prosecutor from

injecting her subjective views into the case. Under the circumstances, we find

defendant‘s claim of prosecutorial misconduct regarding these latter claims was

forfeited.

f. The Merits

Were we to overlook defendant‘s failure to preserve his misconduct claim

and address its merits, we would find the prosecutor did not engage in ―deceptive

or reprehensible methods to attempt to persuade either the trial court or the jury.‖

(People v. Morales (2001) 25 Cal.4th 34, 44.) As a general matter,

―[i]mpermissible ‗vouching‘ may occur where the prosecutor places the prestige of

the government behind a witness through personal assurances of the witness‘s

veracity or suggests that information not presented to the jury supports the

witness‘s testimony.‖ (People v. Fierro (1991) 1 Cal.4th 173, 211.) Similarly,

evidence of a prosecutor‘s subjective motivations when prosecuting a case is not

37

relevant,8 for ―[i]t is misconduct for prosecutors to bolster their case ‗by invoking

their personal prestige, reputation, or depth of experience, or the prestige or

reputation of their office, in support of it.‘ [Citation.] Similarly, it is misconduct

‗to suggest that evidence available to the government, but not before the jury,

corroborates the testimony of a witness.‘ [Citation.] The vice of such remarks is

that they ‗may be understood by jurors to permit them to avoid independently

assessing witness credibility and to rely on the government‘s view of the

evidence.‘ [Citation.]‖ (People v. Bonilla (2007) 41 Cal.4th 313, 336.)

The prosecutor‘s questioning of Iuli and Palega did not violate these rules.

The credibility of these witnesses was, of course, of vital importance and the

prosecutor appropriately touched on the circumstances of their plea bargains

during her questioning of them on direct examination. (People v. Bonilla, supra,

41 Cal.4th at p. 337.) We find nothing in the exchanges defendant identifies

between the prosecutor and the witnesses to suggest the prosecutor vouched for

the truthfulness of either Iuli or Palega. Although defendant also points to

passages in Ciraolo‘s cross-examination of Iuli, it is unclear how defense counsel’s

questioning is relevant to whether the prosecutor improperly vouched for Iuli‘s

credibility. On this record, then, we find the prosecutor did not, in her questioning

of either Iuli or Palega, improperly vouch for their credibility.

8 Defendant quotes from People v. Cain (1995) 10 Cal.4th 1 (disapproved on

another ground in People v. Moon (2005) 37 Cal.4th 1, 17), but the reference is

inapt. There, we stated: ―The prosecutor‘s opinion about the various

coparticipants‘ relative culpability is not relevant to any issue at trial.‖ (Cain, at

p. 64.) But in Cain, a case in which the jury was informed the defendant‘s

accomplice had received a lesser sentence, we merely held that the trial court did

not abuse its discretion in excluding evidence at the penalty phase that the

prosecution had initially offered the accomplice an even shorter sentence, but later

withdrew the offer.

38

We turn finally to whether the prosecutor improperly vouched for Iuli and

Palega during her closing argument. The rules are well settled: A criminal

prosecutor has much latitude when making a closing argument. Her argument

may be strongly worded and vigorous so long as it fairly comments on the

evidence admitted at trial or asks the jury to draw reasonable inferences and

deductions from that evidence. (People v. Ward (2005) 36 Cal.4th 186, 215.)

― ‗[S]o long as a prosecutor‘s assurances regarding the apparent honesty or

reliability of prosecution witnesses are based on the ―facts of [the] record and the

inferences reasonably drawn therefrom, rather than any purported personal

knowledge or belief,‖ her comments cannot be characterized as improper

vouching.‘ ‖ (People v. Bonilla, supra, 41 Cal.4th at p. 337.)

Both defendant and the People quote large portions of the prosecutor‘s

closing argument in which she refers to the information contained in the Berger

and Muraoka stipulations. We have examined the prosecutor‘s argument and

conclude her comments were permissible because her ― ‗assurances regarding the

apparent honesty or reliability of prosecution witnesses [were] based on the ―facts

of [the] record and the inferences reasonably drawn therefrom, rather than any

purported personal knowledge or belief.‖ ‘ ‖ (People v. Ward, supra, 36 Cal.4th at

p. 215.) To be sure, at one point the prosecutor refers to her decision to offer plea

deals to Iuli and Palega and tells the jury ―I am sure you can see that that

discretion was exercised with a proper amount of integrity,‖ but even this

argument was based on her express assessment of the evidence showing a

significant difference between defendant and Tautai (whom she referred to as the

men in the backseat of the van) and Iuli and Palega (who were in the front of the

van and urged defendant not to shoot Pamintuan). After listing the evidence of

defendant‘s guilt aside from Iuli‘s and Palega‘s testimony, she finished the

thought: ―You know how compelling and how strong the evidence is in this case.

39

So now you know the truth about why those offers were made to [Iuli and

Palega].‖ To the extent defendant complains the prosecutor obliquely referred to

her personal motivation in offering the deals, no misconduct occurred because the

trial court had previously ruled such evidence was admissible.

Defendant urges us to find improper vouching despite the prosecutor‘s

reliance on the evidence presented to the jury, arguing that even under such

circumstances, her argument may be considered impermissible vouching if she

placed the prestige of the government behind the testimony of the two witnesses.

We find no such improper vouching here. Ms. Backers never suggested she had

other evidence, unpresented to the jury, to support Iuli‘s and Palega‘s credibility

(see People v. Turner (2004) 34 Cal.4th 406, 433 [prosecutor improperly vouched

for the credibility of expert witness by referring to the prosecutor‘s personal

knowledge of the witness and his prior use of the witness]), or that she personally

believed them independent of the evidence (see People v. Guzman (1988) 45

Cal.3d 915, 941, overruled on another point in Price v. Superior Court (2001) 25

Cal.4th 1046, 1069, fn. 13 [having district attorney testify why he offered witness

immunity ―may well raise‖ a meritorious vouching claim]). Instead, her argument

referred specifically to evidence and inferences drawn from that evidence.

We also reject defendant‘s claim that counsel was ineffective for failing to

object to the prosecutor‘s closing argument. Not only do we find her argument

permissible, we also observe the record suggests Mr. Ciraolo made a deliberate

tactical decision to enter into the Berger and Muraoka stipulations. Once those

matters were before the jury, the prosecutor could fairly rely on them in closing

argument, for prosecutors are given wide latitude during argument and may urge

the jury to draw any reasonable inference from the evidence. (See People v. Hill,

supra, 17 Cal.4th at p. 819.) By declining to object, we assume Ciraolo fairly

determined that the prosecutor‘s argument was permissible and not subject to

40

objection.

Finally, we reject defendant‘s federal constitutional claims as both forfeited

for lack of an objection, and meritless as a substantive matter. ― ‗A prosecutor‘s

conduct violates the Fourteenth Amendment to the federal Constitution when it

infects the trial with such unfairness as to make the conviction a denial of due

process. Conduct by a prosecutor that does not render a criminal trial

fundamentally unfair is prosecutorial misconduct under state law only if it

involves the use of deceptive or reprehensible methods to attempt to persuade

either the trial court or the jury.‘ ‖ (People v. Gonzales and Soliz (2011) 52

Cal.4th 254, 305.) Defendant made no objections expressly or even impliedly

referring to the federal Constitution and thus forfeited the issue. Were we to

address these claims despite their forfeiture, we would find that (1) because there

was no improper vouching under state law, defendant‘s due process claim is also

meritless; (2) because the prosecutor‘s closing argument was based on the

evidence admitted at trial, there was no denial of defendant‘s confrontation or

cross-examination rights under the Sixth Amendment (see People v. Harris (1989)

47 Cal.3d 1047, 1083–1084); and (3) because there was no improper vouching

under state law, defendant‘s trial was not rendered insufficiently reliable under the

heightened standards demanded by the Eighth Amendment for capital cases

(People v. Cudjo, supra, 6 Cal.4th at p. 623; see Beck v. Alabama (1980) 447 U.S.

625, 638).9

9 We address defendant‘s further claim the prosecutor‘s alleged improper

vouching infected the penalty phase of trial, post, in part II.B.1.

41

4. Other Alleged Prosecutorial Misconduct

a. Allegedly Impugning Defendant’s Postarrest Silence

Although defendant did not testify, he presented an alibi defense through

both his wife, Lucy Masefau, who testified defendant was with her on the night of

the crimes, and Tautai Seumanu, who testified that he was the primary participant

in the crimes and that defendant was not in the stolen van with him when he, along

with Iuli and Palega, robbed and killed Pamintuan. During closing argument, the

prosecutor referred to defendant‘s proffered alibi defense and argued it was not

worthy of belief because the circumstances suggested it had been recently

manufactured. Thus, Ms. Backers argued:

―Remember the stipulations you got about the fact that when this

information was filed against the defendant in June of 1997 that he legally had a

right to a trial within 60 days?

―In June of 1997, if you are sitting here and you are innocent and you have

an airtight alibi, you can have your trial in 60 days.

―But he didn‘t. He waived time. He waived time. And that is proven by

stipulation in this case.

―Real alibi witnesses do not sit on their alibi and keep it secret for four-and-

a-half years while their allegedly innocent husbands are rotting in jail.‖ Defendant

did not object to these comments.

In summing up, the prosecutor returned to this subject: ―Ask yourself if

[defendant] really had an airtight alibi. If he really wasn‘t there, then how come

his three accomplices mention his name and bring it up and put him there right

when they get arrested?

―Why would they do that?

―Why wouldn‘t they say: No, my brother wasn‘t with us, he was home

with his wife.

42

―Because he was with them, that is why. That is how a real alibi works.

They would say: Oh, the fourth guy wasn‘t our brother, he was home.

―They tell it right then, the police go check it out, the alibi is true,

[defendant] doesn‘t get charged. That is how alibis work. They are given up right

at the time, not four and a half years later.‖ Again there was no objection.

Defendant contends such argument constituted improper comment on his

right to remain silent in violation of his constitutional rights under the United

States Constitution. (Doyle v. Ohio (1976) 426 U.S. 610; see People v. Thomas

(2012) 54 Cal.4th 908, 936.) A question of forfeiture is immediately apparent, for

defendant did not object to the prosecutor‘s argument on Doyle error grounds.

(People v. Collins (2010) 49 Cal.4th 175, 202 [an objection is required to preserve

Doyle error for appellate review].) Defendant acknowledges this omission but

contends ―the unusual circumstances of this case would render the application of

the forfeiture rule itself fundamentally unfair.‖ We are not convinced. The

prosecutor‘s line of argument connecting defendant‘s willingness to delay the

commencement of his trial to the credibility of his alibi witnesses (who came

forward relatively late in the process) was not, as defendant claims, ―sudden and

unforeseen,‖ and defendant‘s failure to object was not excusable on that ground.

Nor are we convinced by defendant‘s argument that our adherence to routine state

procedural law requiring a specific and timely objection to preserve Doyle error

for appeal (Evid. Code, § 353; People v. Collins, supra, 49 Cal.4th at p. 202)

―would itself constitute a violation of the Due Process Clause of the Fourteenth

Amendment [by] confer[ring] on one party the power to manipulate mere

procedure for its own undue and unfair advantage.‖ Defendant could have

avoided the alleged due process violation by the simple expedient of making a

timely and specific objection, coupled with a request the jury be admonished.

43

Nor do we accept defendant‘s further argument that he may be excused for

his failure to object because an objection would have been ―useless.‖ Although

the failure to object to prosecutorial misconduct may be excused on the ground of

futility (People v. Collins, supra, 49 Cal.4th at pp. 202–203 [discussing the futility

exception in the context of Doyle error]), nothing on this record suggests such

futility.

Were we to overlook this procedural obstacle and find the issue properly

before us, we would reject it on the merits. Assuming for purposes of argument

the rule in Doyle v. Ohio, supra, 426 U.S. 610, applies to a prosecutor‘s closing

argument,10 we would find no error even had defendant properly preserved the

claim for our review. The gist of the prosecutor‘s argument was aimed not at

defendant‘s silence, but that of his primary alibi witness, Lucy Masefau. Thus,

when the prosecutor argued that “[r]eal alibi witnesses do not sit on their alibi and

keep it secret for four and a half years while their allegedly innocent husbands are

rotting in jail‖ (italics added), she was plainly arguing that Lucy Masefau was not

a believable alibi witness. Accordingly, the prosecutor‘s argument was not

intended to have the jury draw negative inferences so much from defendant’s

silence as from Lucy’s silence. Mere witnesses, of course, have no constitutional

right to remain silent. We thus conclude that, even had defendant preserved the

issue, his Doyle error claim is meritless.

10 The People contend the rule in Doyle v. Ohio, supra, 426 U.S. 610, applies

to the impeachment of a testifying witness only, and is inapplicable to a

prosecutor‘s closing argument. Because we conclude the prosecutor‘s argument in

this case did not constitute Doyle error because the argument was addressed to

Masefau‘s silence, not defendant‘s, we have no occasion to resolve the question

regarding the proper scope of the rule in Doyle.

44

b. Allegedly Impugning Defense Counsel’s Integrity

During the presentation of the People‘s case-in-chief, a dispute arose during

the examination of Dr. Clifford Tschetter, the autopsy surgeon, who testified he

found both shotgun pellets and wadding from the shotgun shell in the victim‘s

body. During cross-examination, defense counsel had the witness admit his report

contained a discrepancy: the written autopsy report made no mention of the

shotgun shell wadding. Moreover, the witness acknowledged the wadding he

found in the victim‘s body was not visible in one of the X-rays taken of the

victim‘s body. On redirect, Dr. Tschetter identified a photo showing the wadding,

soaked in blood, on a table, presumably in the autopsy room. Detective Cardes

later corroborated Dr. Tschetter‘s testimony, reporting that he recalled the doctor

removing the wadding from the victim‘s body, at which time Cardes photographed

it.

The prosecutor touched on this subject briefly in her closing argument:

―You met Detective Cardes. And he had different things to say about this case.

The things that are important for this conversation we are having right now is that

he attended this autopsy. And while he was at the autopsy, he personally saw and

photographed Dr. Tschetter removing the pellets and wadding from Nolan‘s chest.

―There has been a lot said about that wadding in this case. And Mr. Ciraolo

asked Dr. Tschetter: Well, you didn‘t dictate into your autopsy report, so how do

you know it actually came out of Nolan‘s chest?

―And Dr. Tschetter told you: Because I took it out. I put it in this petri

dish. I labeled it: Pellets and wadding from Nolan‘s right chest. Then it was

inside this envelope, which I also signed, which said: Pellets and wadding from

Nolan‘s right chest.

―And now we know there is a photograph of it lying on a table in the

coroner‘s office covered in blood.

45

―And you might ask yourself: Why is all this hullabaloo being made about

this wadding?

―I will tell you why.

―That wadding was imbedded in Nolan‘s chest. And that means this

shooting was at close range.

―Well, why does Mr. Ciraolo care if the shooting was at close range if

Tautai is the shooter?

―Why does he care?

―Because he knows you are not going to believe that Tautai is the shooter.

He knows Paki [defendant] is the shooter. And he is hedging his bets by making

all this conversation about this wadding because he knows that you know Paki is

the shooter.‖ (Italics added.) There was no objection.

Later, during rebuttal argument, the prosecutor briefly returned to the

subject: ―There are several shams that have been put forward to you in the hopes

that you might believe one of them. And these are those:

―Number one, that the wadding didn‘t really come from Nolan‘s chest;

―Number two, that after March 3d the prosecution realized they couldn‘t

make their case and they approached the two codefendants for a deal because there

was no evidence in the case;

―[Number three], that Paki was home asleep with his wife, who just never

happened to mention his alibi for four and a half years;

―That Tautai is really the triggerman and that Tautai told the police back in

‘96 that Paki was the triggerman so he could ascend the royal throne to be the

tribal chief.

―This is what you have been asked to buy by the defense.‖ (Italics added.)

Again, there was no objection.

46

Defendant contends the prosecutor twice improperly impugned the personal

integrity of defense counsel, once during her closing argument (―[H]e knows you

are not going to believe that Tautai is the shooter. He knows Paki is the shooter‖),

and once during her rebuttal argument (―There are several shams that have been

put forward to you‖). As he acknowledges, however, he did not object to either

argument, as is required to preserve claims of alleged prosecutorial misconduct for

review on appeal. (People v. Hill, supra, 17 Cal.4th at p. 820.) Absent adequate

justification for this omission, the claim is forfeited.

Defendant argues we should overlook his failure to object because any

objection would have been futile. Arguing that impugning the integrity of defense

counsel is ―effectively the same error as [a prosecutor‘s] vouching‖ for the

truthfulness of witnesses, defendant contends that because the trial court permitted

the prosecutor to put before the jury her personal motivation in offering Iuli and

Palega plea bargains, the court would almost certainly have rejected any objection

to the prosecutor‘s closing argument. Defendant‘s attempt to link his claim of

improper vouching with his assertion the prosecutor improperly attacked the

personal integrity of defense counsel is unconvincing. First, as we explained,

ante, no improper vouching occurred. Second, no reason appears why, had

defendant objected that the prosecutor was improperly impugning the integrity of

defense counsel, the trial court could not simply have asked the prosecutor to

reformulate her argument from stating that defense counsel ―knows Paki is the

shooter‖ to ―the evidence shows Paki is the shooter.‖ Perceiving no linkage

between the earlier claim of alleged improper vouching and the present claim, we

reject defendant‘s assertion that the ―two issues [are] substantially the same.‖ We

also reject as contrary to law defendant‘s further argument that we should assume

the jury would have been unable to follow a curative admonition. Instead, absent

some indication to the contrary, we assume a jury will abide by a trial court‘s

47

admonitions and instructions. (People v. Stitely (2005) 35 Cal.4th 514, 559.) We

conclude defendant forfeited this issue.

Were we nevertheless to overlook this procedural defect and address the

merits, we would find error but no prejudice. ― ‗A prosecutor commits

misconduct if he or she attacks the integrity of defense counsel, or casts aspersions

on defense counsel.‘ [Citations.] ‗In evaluating a claim of such misconduct, we

determine whether the prosecutor‘s comments were a fair response to defense

counsel‘s remarks‘ [citation], and whether there is a reasonable likelihood the jury

construed the remarks in an objectionable fashion [citation].‖ (People v. Edwards

(2013) 57 Cal.4th 658, 738.) ―To prevail on a claim of prosecutorial misconduct

based on remarks to the jury, the defendant must show a 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, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th

390, 421, fn. 22.)

Defense counsel attempted to undermine Dr. Tschetter‘s credibility by

focusing on the discrepancy between the witness‘s testimony and his written

autopsy report. Accordingly, the prosecutor was entitled to address the matter in

closing argument and attempt to convince the jury the discrepancy was of little

importance. But although a prosecutor is accorded wide latitude in attacking the

defense‘s case (People v. Gamache (2010) 48 Cal.4th 347, 390), for a prosecutor

to claim that defense counsel does not believe in his or her client‘s innocence is

improper (People v. Edwards, supra, 57 Cal.4th at p. 740; People v. Thompson

(1988) 45 Cal.3d 86, 112). The prosecutor crossed the ethical line when she

48

suggested defense counsel did not personally believe his client‘s story and, in fact,

believed that defendant personally shot Pamintuan.

Contrary to the People‘s argument, this is not a case in which the

prosecutor merely asserted that defense counsel ―was aware of the weakness‖ in

the proffered defense; Ms. Backers quite clearly stated defense counsel “knows

Paki is the shooter. And he is hedging his bets by making all this conversation

about this wadding because he knows that you know Paki is the shooter.‖ (Italics

added.) This argument makes clear the prosecutor improperly argued defense

counsel did not believe in his client‘s innocence.

Also improper was the prosecutor‘s assertion that defense counsel

presented a ―sham‖ defense. A prosecutor may vigorously challenge the validity

of any defense, and can characterize the testimony of a witness, including the

defendant, as untruthful, but to state or imply that defense counsel has fabricated a

defense is generally misconduct. (People v. Farnam, supra, 28 Cal.4th at p. 171;

People v. Bain (1971) 5 Cal.3d 839, 847.) To the extent the prosecutor here did

not simply argue the defense was unsupported by facts and thus a sham, but that

defense counsel “put forward” a sham, the argument improperly implied that

counsel was personally dishonest. ― ‗An attack on the defendant‘s attorney can be

seriously prejudicial as an attack on the defendant himself, and, in view of the

accepted doctrines of legal ethics and decorum [citation], it is never excusable.‘ ‖

(People v. Hill, supra, 17 Cal.4th at p. 832, quoted with approval in People v.

Turner, supra, 34 Cal.4th at p. 430.)

The prosecutor thus committed misconduct in closing argument in two

ways: she implied defense counsel knew his client was guilty, and that counsel

―put forward‖ a sham defense, i.e., one he knew was false. Because defendant did

not interpose timely and specific objections to the improper argument, the errors

were not preserved for appeal. But even had the claims been preserved, reversal

49

would not be required because these two instances of improper argument,

considered together, could not have prejudiced defendant. As noted earlier, there

was strong evidence of defendant‘s guilt in the form of Iuli‘s and Palega‘s

eyewitness testimony, coupled with Tautai‘s initial identification of defendant as

the shooter, defendant‘s possession of the victim‘s property and his thumbprint on

the box of shotgun shells.11

c. Allegedly Appealing to the Jury’s Passions and Prejudices

That defendant robbed and killed Nolan Pamintuan on the eve of the

victim‘s wedding formed the basis of the prosecutor‘s narrative of the case. She

referred to this theme both in her opening remarks to the jury and in her closing

argument. Defendant contends these comments so appealed to the jury‘s passions

and prejudices that they strayed into the realm of prosecutorial misconduct

because they improperly encouraged the jury to decide the case based on emotion

rather than fact. In support, defendant identifies three categories of alleged

impropriety, claiming the prosecutor (1) ―invoked the theme of the bridegroom

murdered on his wedding day, while his bride‘s gift [of an inscribed watch]

became the ‗trophy‘ of a murderer‖; (2) improperly asked the jury to view the

crime through the eyes of the victim; and (3) improperly referred to the victim and

his surviving family as her ―clients.‖ As we explain, defendant did not object to

these comments and thus failed to preserve any of these claims for appellate

review. We also conclude that no prejudicial misconduct occurred.

11 Defendant contends the prosecutor‘s subsequent reference during the

penalty phase to defense counsel‘s alleged lack of belief in his client, and to the

defense as a sham, further undermined the correctness of the jury‘s penalty

determination. We address that issue, post, in part II.B.3.a.

50

(i) Defendant Forfeited These Claims

As explained, ante, in order to preserve a claim of prosecutorial misconduct

for appeal, a defendant must make a timely and specific objection to the alleged

misconduct and request the jury be admonished to disregard it. (People v.

Pearson, supra, 56 Cal.4th at p. 426; People v. Hill, supra, 17 Cal.4th at p. 820.)

Defendant acknowledges his failure to object to the prosecutor‘s comments but

argues that he should be excused from complying with this basic precondition to

appeal because, for two reasons, an objection would have been futile. (Hill, supra,

at pp. 820–821.) First, in denying defense objections to the prosecutor‘s cross-

examination of defendant‘s wife, Lefea ―Lucy‖ Masefau, the trial court signaled

that it would not have sustained any defense objections to the prosecutor‘s

argument based on an improper appeal to the passions and prejudices of the jury.12

We disagree that the prosecutor‘s examination of Masefau excused defendant from

the requirement of a timely and specific objection to the prosecutor‘s opening

statement. Masefau‘s cross-examination occurred more than two weeks after the

prosecutor‘s opening statement. Defense counsel could not, at the time of the

12 Defendant relies on this exchange during cross-examination of defendant‘s

wife:

―Q. [Prosecutor Backers] You didn‘t hear about [the crime] during that

whole week?

―A. No.

―Q. This sweet Filipino boy with interviews from his family all over the

news.

―MR. CIRAOLO: Your honor, objection.

―THE COURT: Overruled.

―MS. BACKERS: Q. You never saw it on the news?

―A. No.

―Q. You never saw how traumatized his family was on the news?

―MR. CIRAOLO: Same objection, your honor.

―THE COURT: Overruled.

―THE WITNESS: No.‖

51

opening statements, have known what objections the trial court would later sustain

or overrule. Nor can we say, based on the trial court‘s overruling of counsel‘s

objection during Masefau‘s testimony, that it would necessarily have overruled

counsel‘s objection to the prosecutor‘s closing argument. Significantly,

defendant‘s objection to Masefau‘s cross-examination did not explain the basis of

the objection. Accordingly, to conclude the prosecutor‘s cross-examination of

Masefau and the prosecutor‘s closing argument were objectionable for the same

reason, such that defendant should now be excused from objecting to the later

argument, is unjustified.

As a second reason to support his assertion that an objection to the

prosecutor‘s argument would have been futile, defendant analogizes to People v.

Bandhauer (1967) 66 Cal.2d 524. He argues the prosecutor‘s ―various appeals to

passion and prejudice [were] scattered in incremental amounts throughout the

arguments in this case,‖ and that the grounds for an objection were not fairly

apparent until it was too late to permit an objection and corrective admonition to

counteract the prejudice. As he argues: ―Once the Pandora‘s box was opened, no

admonition could restore the contents and close it.‖

In People v. Bandhauer, supra, 66 Cal.2d 524 (Bandhauer), the prosecutor

emphasized his position as a public officer sworn to act with fairness and seek

justice. But he also opined that in his career he had seldom seen a more depraved

character than the defendant. (Id. at p. 530). This court concluded the latter

assertion was improperly testimonial because ―[i]t was not related to the evidence

in the case and was not subject to cross-examination. It presented to the jury an

external standard by which to fix the penalty based on the prosecutor‘s long

experience. The error was aggravated by the prosecutor‘s telling the jury that he

would recommend life imprisonment in a proper case, for he thus made clear that

52

his request for the death penalty was based on his personal judgment and belief.‖

(Id. at p. 530.)

Turning then to the People‘s argument that the Bandhauer defendant had

forfeited the issue for appeal by failing to object on this ground, this court rejected

it, explaining: ―The argument on the public responsibility of the prosecutor was

not by itself subject to objection. The testimonial statements were injected

gradually into the argument so that it was not until the prosecutor made the

clinching assertion that he had seldom seen a more depraved character that

grounds for objection were apparent. It was then too late to cure the error by

admonition, and any effort of the prosecutor to cure the error by formally

retracting what he obviously believed would only have compounded it. Under

these circumstances defendant is not precluded from raising the issue for the first

time on appeal.‖ (People v. Bandhauer, supra, 66 Cal.2d at p. 530.)

Apart from the unique facts in Bandhauer, the notion that an appellate court

should overlook a defendant‘s failure to alert the trial court to a prosecutor‘s

improper argument if the impropriety is revealed gradually and incrementally has

not taken root in our law. We begin by noting the rule requiring claims of

prosecutorial misconduct be preserved for appellate review by a timely and

specific objection and request for admonition is well established (see, e.g., People

v. Linton (2013) 56 Cal.4th 1146, 1205; People v. Whalen (2013) 56 Cal.4th 1, 52;

People v. Clark (2011) 52 Cal.4th 856, 960; People v. Gonzales and Soliz, supra,

52 Cal.4th at p. 305; People v. Wilson (2008) 44 Cal.4th 758, 800; People v. Cole,

supra, 33 Cal.4th at p. 1201; People v. Hill, supra, 17 Cal.4th at p. 820; People v.

Benson (1990) 52 Cal.3d 754, 794) and long settled (see, e.g., People v. Brice

(1957) 49 Cal.2d 434, 437; People v. MacDonald (1914) 167 Cal. 545, 551;

People v. Ah Fook (1883) 64 Cal. 380, 383). More than a century ago this court

declined to review forfeited claims of prosecutorial misconduct, noting: ―It is now

53

well settled that an appellate court will not consider a claim as to the misconduct

of counsel in argument unless objection is so made.‖ (People v. Fleming (1913)

166 Cal. 357, 377.) ―The reason for this rule, of course, is that ‗the trial court

should be given an opportunity to correct the abuse and thus, if possible, prevent

by suitable instructions the harmful effect upon the minds of the jury.‘ ‖ (People

v. Green, supra, 27 Cal.3d at p. 27, quoting People v. Simon (1927) 80 Cal.App.

675, 679.)

Although two cases have discussed the substantive merits of the

misconduct at issue in Bandhauer, supra, 66 Cal.2d 524 (People v. Medina (1995)

11 Cal.4th 694, 776 [―In the present case, unlike Bandhauer, the prosecutor did

not purport to rely on his own personal experience, his ‗many, many years‘ as

prosecutor, or any other facts outside the record.‖]; People v. Ghent (1987) 43

Cal.3d 739, 772 [same]), only one case has acknowledged Bandhauer‘s procedural

holding that a failure to object may be excused if the objectionable material is

injected into a prosecutor‘s argument slowly and incrementally. (People v.

Modesto (1967) 66 Cal.2d 695, 716–717, disapproved on other grounds in Maine

v. Superior Court (1968) 68 Cal.2d 375, 383, fn. 8.) But that case distinguished

Bandhauer, saying: ―[I]n this case, unlike Bandhauer, a timely objection by the

defense would have prevented the most harmful comments from ever reaching the

jury[;] and an appropriate instruction could have prevented those remarks which

did reach the jury from exerting any impact beyond that of defense counsel‘s own

statements. Under such circumstances, an objection may not be made for the first

time on appeal.‖ (People v. Modesto, supra, at pp. 716–717.)

At base, Bandhauer‘s rationale is that, due to the incremental nature of the

improper argument, by the time the basis of an objection was apparent it would

have been ineffective to counteract the prejudice flowing from the misconduct. In

other words, an objection would have been futile, which is an established

54

exception to the rule requiring an objection. (People v. Hill, supra, 17 Cal.4th at

pp. 820–821.) We thus read Bandhauer narrowly to illustrate an unusual

application of the futility exception, one in which supporting facts are presumably

rare, but which, if shown, could support a finding that an objection would have

been futile.

The instant case is not one of those rare cases. From the outset it was clear

the prosecutor intended to frame the case as the brutal killing of a man on the eve

of his wedding, which understandably resulted in extreme anguish for the bride,

the wedding party and the victim‘s family and friends. The prosecutor may have

intended to sway the jury to her side as an emotional matter, but her argument was

based on the facts of the case, not on her opinion of the defendant as depraved.

This was, therefore, not a situation in which the true basis of an objection was

unclear until the prosecutor uttered a final clinching comment. As in People v.

Modesto, supra, 66 Cal.2d 696, we conclude a timely objection would have been

effective in preventing the harm that could have resulted from the alleged

improper argument, and the failure to object thus forfeited the issue for appeal.

(ii) The Prosecutor’s Reliance on the Wedding Theme

Were we to address defendant‘s claim of prosecutorial misconduct for

relying on a wedding theme despite its forfeiture, we would find no error. ― ‗The

purpose of the opening statement is to inform the jury of the evidence the

prosecution intends to present. . . .‘ [Citation.] ‗Nothing prevents the statement

from being presented in a story-like manner that holds the attention of lay jurors

and ties the facts and governing law together in an understandable way.‘ ‖

(People v. Farnam, supra, 28 Cal.4th at p. 168, quoting People v. Millwee (1998)

18 Cal.4th 96, 137.) In turn, ―[c]losing argument presents a legitimate opportunity

to ‗argue all reasonable inferences from evidence in the record‘ ‖ (People v.

55

Bolton (1979) 23 Cal.3d 208, 212), and a ― ‗prosecutor has a wide-ranging right to

discuss the case in closing argument. [She] has the right to fully state [her] views

as to what the evidence shows and to urge whatever conclusions [she] deems

proper. Opposing counsel may not complain on appeal if the reasoning is faulty or

the conclusions are illogical because these are matters for the jury to determine.‘‖

(People v. Thomas (1992) 2 Cal.4th 489, 526.)

In neither instance is it proper to appeal to the passions and prejudices of

the jury. ― ‗[A]n appeal for sympathy for the victim is out of place during an

objective determination of guilt.‘‖ (People v. Kipp (2001) 26 Cal.4th 1100, 1130;

see People v. Pensinger (2001) 52 Cal.3d 1210, 1250 [argument urging the jury to

imagine the crime had happened to their own child held an improper appeal to the

passion and prejudice of the jury]; People v. Talle (1952) 111 Cal.App.2d 650,

676 [closing argument asking for a guilty verdict based on sympathy for the victim

was prosecutorial misconduct].)

The prosecutor‘s reliance on a wedding theme in her opening statement and

closing argument did not violate these rules. At the time of the prosecutor‘s

opening statement, she could reasonably have anticipated the jury would be

presented with evidence that police found the victim‘s engagement ring and his

Movado watch, inscribed with his wedding date, in defendant‘s shirt pocket when

he was arrested. Such evidence served to link defendant to the crimes against

Pamintuan. The prosecutor could also anticipate she would present to the jury

evidence showing police found Pamintuan‘s jacket in the outbuilding where

defendant lived, and that the jacket clearly belonged to the victim because police

found Pamintuan‘s wedding ―to do‖ list in the pocket. Therefore, the prosecutor‘s

comments during her opening statement describing the victim as a bridegroom

who was focused on renting tuxedos and preparing for his wedding the next day

when defendant robbed, kidnapped and murdered him, and her comments

56

regarding his bride‘s gift of the Movado watch as the ―trophy‘‘ of a murderer,

were fairly based on evidence the prosecutor reasonably intended to present.

When the prosecutor made similar comments during her closing argument,

evidence supporting the comments had in fact been introduced. Her argument was

thus fair comment on the evidence and did not suggest ―that emotion may reign

over reason‖ or invite ―an irrational, purely subjective response.‖ (People v. Lewis

(1990) 50 Cal.3d 262, 284.)

(iii) Invoking the Victim

We reach a slightly different conclusion with regard to defendant‘s second

contention, that the prosecutor acted improperly by asking the jury to view the

crime through the eyes of the victim. In closing argument, the prosecutor began

describing defendant‘s actions, and those of Tony Iuli, Jay Palega and Tautai

Seumanu, during the last moments of Nolan Pamintuan‘s life, saying: ―Paki starts

telling him to give it up, give up everything you‘ve got. Give up whatever you

have on him. And Nolan was saying he didn‘t have anything. Then Tautai and

Paki took his wallet and stuff. They are stripping him of his belongings. They

were telling him to take his stuff off.

―Paki is starting to go through the wallet. Tautai gets the watch off his

wrist, the Gucci watch. Both of them are mad.

―Imagine begging for your life, begging to be let go, being held captive at

the end of a shotgun by these four frightening men, and they get mad at you

because you only have a little cash.‖ (Italics added.)

The prosecutor later returned to this theme: ―Nolan gives the $300 to Paki.

Not to anybody else, but to Paki.

―Now they are sitting there at the curb with the sliding door closed and

these men, Paki and Tautai and Jay, tells you — actually all four of them got angry

57

at Nolan because they thought he could get more. They still weren‘t satisfied with

the amount of money he got out of the machine.

―And he says: We were all in agreement that he was lying, that he could

have gotten more. And we were angry at him. And Nolan was saying he wasn‘t

lying, that he took out the most he could get out of the machine.

―So Paki is yelling at him calling him a liar, telling him to stop lying to us.

―Imagine trying to save your own life, giving them the most you can give

them, and you are being called a liar and having a gun pointed at you.‖ (Italics

added.)

As is apparent, the prosecutor‘s argument improperly asked the jury to view

the crime through Pamintuan‘s eyes. ―We have settled that an appeal to the jury to

view the crime through the eyes of the victim is misconduct at the guilt phase of

trial; an appeal for sympathy for the victim is out of place during an objective

determination of guilt.‖ (People v. Stansbury (1993) 4 Cal.4th 1017, 1057, revd.

on other grounds in Stansbury v. California (1994) 511 U.S. 318; cited with

approval in People v. Lopez (2008) 42 Cal.4th 960, 969–970; see also People v.

Leonard (2007) 40 Cal.4th 1370, 1406–1407.) Despite this misstep, however, we

find the prosecutor‘s misconduct in making a few remarks in a much longer

closing argument, and an even longer trial, could not have prejudiced defendant,

especially given the strong evidence of his guilt. (See People v. Leonard, supra, at

p. 1407 [finding the misconduct was harmless because ―the prosecutor‘s passing

remark could not have prejudiced defendant, given the overwhelming evidence of

guilt‖]; People v. Stansbury, supra, at p. 1057 [finding the misconduct was

harmless because ―we do not believe a brief statement of this sort would sway the

jury over that long a period‖].)

58

(iv) The Prosecutor’s Clients

The third instance in which defendant contends the prosecutor improperly

appealed to the passion and prejudice of the jury came in opening statements,

when the prosecutor referred to the victim and his family as her ―clients.‖ At that

time, the prosecutor noted that the jury had been introduced to the two defense

attorneys and their client, defendant Ropati Seumanu. The prosecutor continued:

―I have a client too. The chair next to me appears to be empty, but his name is

Nolan. And I would like to introduce you to him. [¶] This is Nolan Pamintuan.‖

Later, in closing argument, the prosecutor mentioned some of the victim‘s family,

although she did not refer to any of them specifically as her ―clients.‖

Defendant argues the prosecutor‘s assertion the victim was her client was

an untrue statement (see People v. Von Villas (1992) 10 Cal.App.4th 201, 250 [it is

a ―venerable and long-standing principle that the district attorney represents the

People of the State of California in criminal proceedings‖]), and ―[h]er

argumentative purpose [in making such an argument in her opening statement] . . .

was to cast the prosecution as a private vindication for a terrible loss in order to

exploit the emotion inherent in such a vivid personalization.‖ Later, defendant

claims, the prosecutor continued her ―personalization and exploitation of

sympathetic factors‖ in closing argument.

Were we to address this claim despite its forfeiture, we would find the

prosecutor‘s argument was impermissible and thus misconduct. ―The nature of the

impartiality required of the public prosecutor follows from the prosecutor‘s role as

representative of the People as a body, rather than as individuals. ‗The prosecutor

speaks not solely for the victim, or the police, or those who support them, but for

all the People. That body of ―The People‖ includes the defendant and his family

and those who care about him. It also includes the vast majority of citizens who

know nothing about a particular case, but who give over to the prosecutor the

59

authority to seek a just result in their name.‘ ‖ (People v. Eubanks (1996) 14

Cal.4th 580, 589–590.) But we also conclude that, for several reasons, the

prosecutor‘s misconduct was harmless. First, as explained, ante, the evidence of

guilt was strong. Second, the jury was instructed that it ―must not be influenced

by sentiment, conjecture, sympathy, passion, prejudice, public opinion or public

feeling. Both the People and a defendant have a right to expect that you will

consciously consider and weigh the evidence, apply the law, and reach a just

verdict, regardless of the consequences.‖ Third, the jury was also informed that

the arguments of counsel are not evidence (see CALJIC No. 1.02; CALCRIM No.

222), and we assume it followed this instruction. (People v. Stitely, supra, 35

Cal.4th at p. 559.) Contrary to defendant‘s argument that absent the prosecutor‘s

alleged appeal to the jury‘s passions and prejudices, ―it is reasonably probable that

[he] would have been acquitted,‖ we find the prosecutor‘s arguments, although

encouraging the jury to identify with the victim to an improper degree, did not

render the trial fundamentally unfair or otherwise infect the trial with such

unfairness as to violate defendant‘s constitutional rights. (People v. Morales,

supra, 25 Cal.4th at p. 44.)

d. Allegedly Attempting to Elicit Inadmissible Evidence from

Tautai Seumanu

Defendant argues the prosecutor committed further prejudicial misconduct

by attempting to elicit inadmissible information from Tautai Seumanu on cross-

examination. Tautai had recanted his previous statement to police identifying

defendant as Pamintuan‘s killer, pleaded guilty to the charges, and by the time of

his testimony had been sentenced to 28 years to life in prison. At trial he asserted

that defendant was not Pamintuan‘s killer, and that in fact he (Tautai) was the

triggerman. During Tautai‘s cross-examination by the prosecutor, he admitted

60

that, as a juvenile, he could not get any additional time in prison for taking the

blame for the murder. The following colloquy then occurred:

―Q. [by Prosecutor Backers] So when you took the deal, you knew Tony

[Iuli] was going to testify against you?

―A. [by TAUTAI SEUMANU] Yes.

―Q. And your big brother [i.e., defendant]?

―A. Yes.

―Q. And you knew that all three of you had said that your big brother was

the triggerman in ‘96?

―A. Yes.

―Q. And you asked me for the same deal to testify against your big

brother, didn‘t you?

―MR. CIRAOLO [defendant‘s counsel]: Objection. Hearsay, privileged

communications.

―THE COURT: Overruled.

―MR. CIRAOLO: No foundation.

―THE COURT: Overruled.

―THE WITNESS: When did I ask you this?

―MS. BACKERS: Q. You wanted the exact same deal that Tony [Iuli] and

Jay [Palega] got, and I said no way.

―MR. CIRAOLO: Your honor, objection. Counsel is testifying and no

foundation.

―THE COURT: Overruled.

―MS. BACKERS: Q. You were willing to come in and say that your big

brother was the triggerman if you could get the ‗L‘ [i.e., life term] taken off of

your sentence, weren‘t you?

―A. I didn‘t.

61

―Q. You didn‘t want the same deal Tony and Jay got?

―A. Hell no.

―Q. Hell no?

―A. No.

―Q. You wanted to go down for life?

―A. No.

―Q. You never wanted to get out of jail?

―A. No.

―Q. No, you don‘t want to get out of jail?

―A. No.

―Q. Are you telling this jury that you did not ask me for the same deal

Tony and Jay got so you could testify against your big brother?

―MR. CIRAOLO: Same objection, your honor. [¶] Could we approach the

bench on this?

―THE COURT: Sure.‖

At side bar, out of the jury‘s hearing, defense counsel made clear the nature

of his objection:

―MR. CIRAOLO: Your honor, I am objecting. No foundation. Counsel is

trying to establish there was a direct communication between the defendant, who

is represented by counsel, with her.

―THE COURT: I don‘t hear him say it didn‘t happen. I don‘t see — Mr.

Daley is [Tautai‘s] lawyer. You cannot assert a privilege.

―MR. CIRAOLO: I am objecting there is no foundation.

―THE COURT: She asked him if it happened. He said no. I don‘t see

anybody else asserting any privilege.

―The objection is overruled.‖

62

Sometime later, outside the jury‘s presence, Tautai‘s attorney, Mr. Daley,

objected to the questioning:

―MR. DALEY: . . . My concern is the questions addressed to my client about

whether or not he had requested a deal. Obviously, he had no communication with

[the prosecutor], at least none that I am aware of. I don‘t think they ever

exchanged any words.

―I can say that I did make an inquiry, and was abruptly turned down. And

without getting into confidential communications, I can say I did it without any

instructions from my client just to see if it was available.

―And I think I communicated that to [the prosecutor] at the time. Of

course, we are going back four or five months at this point.

―There was the implication in the record, at this point —

―THE COURT: Well, Mr. Daley, I didn‘t hear you objecting at the time.

―MR. DALEY: The objection was whether my client had any

communications and requested an offer and he answered no, which is true.

―THE COURT: Okay. So —

―MR. DALEY: The implication —

―THE COURT: Mr. Daley, I can‘t deal with implications if you sit there and

don‘t say anything, okay? So you didn‘t say anything, he answered no, so that is

the end of that story as far as I am concerned.‖

Based on these exchanges, defendant contends the prosecutor committed

three different types of misconduct: (1) She asked questions she knew called for

inadmissible evidence (People v. Pinholster (1992) 1 Cal.4th 865, 943,

disapproved on another ground in People v. Williams (2010) 49 Cal.4th 405, 459);

(2) ―her questions contained representations she knew would not be confirmed by

Tautai and could not be proved otherwise‖ (see People v. Friend (2009) 47 Cal.4th

1, 80; People v. Bolden (2002) 29 Cal.4th 515, 562); and (3) she knowingly asked

63

questions containing false representations of fact (People v. Sakarias (2000) 22

Cal.4th 596, 633).

Assuming for argument that defendant preserved these claims for appeal by

making a timely and specific objection, and further assuming the prosecutor

committed misconduct, we conclude no prejudice resulted. Regarding the claim

that the prosecutor sought to elicit inadmissible evidence, although the wording of

the prosecutor‘s questions implied that Tautai unsuccessfully sought a plea deal,

the witness vehemently denied doing so; when asked whether he wanted the same

deal as Iuli and Palega, he replied tersely: ―Hell no.‖ Thereafter, the prosecutor

did not present any evidence suggesting that such plea negotiations ever occurred.

Prior to its deliberations, the jury was instructed with CALJIC No. 1.02, which

states in pertinent part: ―Statements made by the attorneys during the trial are not

evidence‖ and ―Do not assume to be true any insinuation suggested by a question

asked a witness. A question is not evidence and may be considered only as it

helps you to understand the answer.‖ We assume the jury followed this instruction

(People v. Stitely, supra, 35 Cal.4th at p. 559), rendering it unlikely under any

standard that defendant was prejudiced by the prosecutor‘s allegedly improper

attempt to elicit inadmissible evidence. (See People v. Sandoval (1992) 4 Cal.4th

155, 182 [relying on CALJIC No. 1.02 to find prosecutorial misconduct

harmless]).

These same jury instructions undermine defendant‘s further argument that

additional questions constituted prejudicial misconduct. Although he claims the

prosecutor committed misconduct by asking Tautai questions containing

―representations she knew would not be confirmed by Tautai and could not be

proved otherwise,‖ as well as questions that included false representations of fact,

these were mere insinuations by the prosecutor that, when not backed up by actual

evidence, were bound to be disregarded by the jury. We conclude that to the

64

extent, if any, the prosecutor‘s cross-examination of Tautai crossed an ethical line,

any misconduct was not prejudicial.

5. Combined Prejudice

Relying on the alleged judicial misconduct flowing from the trial court‘s

comment, ―I know the temptation‖ (ante, pt. I.B.2.), the allegedly improper

admission of exhibit 46, the list of ―America‘s Most Wanted Samoans‖ (ante, pt.

I.B.1.d.), and the prosecutor‘s alleged misconduct in questioning Tautai regarding

that gang status list, as well as whether he sought a plea deal (ante, pt. I.B.4.d.),

defendant contends the combined effect of these alleged errors requires reversal

even if the errors do not individually rise to the level of prejudicial error. We have

held a number of instances of prosecutorial misconduct may act synergistically to

create an atmosphere of prejudice more intense than the sum of its parts. (People

v. Hill, supra, 17 Cal.4th at p. 845; see People v. Vance (2010) 188 Cal.App.4th

1182, 1207 [reversing judgment based on a combination of errors, citing Hill].)

Here defendant seeks to combine alleged judicial and evidentiary errors with

prosecutorial misconduct. But as explained, ante, the claim of judicial misconduct

(―I know the temptation‖) was forfeited, meritless, and harmless. Nor did

prejudice occur when the trial court initially admitted exhibit 46 over defendant‘s

objection. All that remains is defendant‘s claim of prosecutorial misconduct. As

explained ante, in part I.B.1., the prosecutor did not commit misconduct by

questioning Tautai about the gang status list. And as explained, ante, in part

I.B.4.d., any error occurring during the prosecutor‘s questioning of Tautai about

prior plea bargain negotiations was harmless because Tautai denied seeking a plea

bargain, the prosecutor did not introduce any evidence of such negotiations, and

the jury was instructed not to consider insinuations suggested by questions that are

not supported by evidence. (CALJIC No. 1.02.) Even considering these matters

65

together, we find the cumulative prejudice flowing from these errors did not

render the guilt phase of defendant‘s trial fundamentally unfair.

6. Alleged Instructional Error: CALJIC No 2.15

Defendant, having been found in possession of the victim‘s watch and ring,

was charged with robbery. The jury was accordingly instructed with CALJIC No.

2.15, which states in pertinent part: ―If you find that a defendant was in conscious

possession of recently stolen property, the fact of that possession is not by itself

sufficient to permit an inference that the defendant is guilty of the crimes of

robbery or receiving stolen property. Before guilt may be inferred, there must be

corroborating evidence tending to prove defendant‘s guilt. However, this

corroborating evidence need only be slight, and need not by itself be sufficient to

warrant an inference of guilt.‖ As we have observed, this instruction is ―generally

favorable to defendants; its purpose is to emphasize that possession of stolen

property, alone, is insufficient to sustain a conviction for a theft-related crime.‖

(People v. Gamache, supra, 48 Cal.4th at p. 375.)

Defendant nevertheless contends this instruction violated his constitutional

rights by establishing a ―permissive inference of guilt based on evidence of

conscious possession of recently stolen property‖ and, because the rule provides

that only slight corroboration is thereafter needed, it dilutes the ―ineluctable rule

that a criminal conviction may be predicated only on proof beyond a reasonable

doubt. (In re Winship (1970) 397 U.S. 358, 364.)‖ We have previously addressed

and rejected these precise arguments. Regarding the claim the instruction creates

an unconstitutional permissive inference, we explained in People v. Gamache,

supra, 48 Cal.4th 347, that ―the instruction satisfies the due process requirement

for permissive inferences, at least for theft-related offenses: the conclusion it

66

suggests is ‗ ―one that reason and common sense justify in light of the proven facts

before the jury.‖ ‘ ‖ (Id. at p. 375.)13

We have also previously addressed and rejected defendant‘s reasonable

doubt argument, holding CALJIC No. 2.15 ―does not establish an unconstitutional

mandatory presumption in favor of guilt [citation] or otherwise shift or lower the

prosecution‘s burden of establishing guilt beyond a reasonable doubt [citations].‖

(People v. Gamache, supra, 48 Cal.4th at p. 376.) Further, ―nothing in the

instruction . . . relieves the prosecution of its burden to establish guilt beyond a

reasonable doubt.‖ (People v. Parson (2008) 44 Cal.4th 332, 355–356; see People

v. Rogers (2013) 57 Cal.4th 296, 336.) Because defendant advances no persuasive

reason why our previous authority addressing this issue was in error, we adhere to

them now and reject the claim that CALJIC No. 2.15 violated his constitutional

rights.

II. PENALTY PHASE

A. Facts

Section 190.3, factor (b) defines as a permissible factor in aggravation

―[t]he presence . . . of criminal activity by the defendant which involved the use or

13 Although defendant focuses on the instruction‘s use of the word ―slight‖

when describing the corroboration requirement, and analogizes to the

disparagement by lower federal courts of the rule that, once a criminal conspiracy

has been shown, the government need show only a slight connection between the

accused and the conspiracy (see, e.g., United States v. Marsh (1st Cir. 1984) 747

F.2d 7, 13 & fn. 3), the analogy fails. Whereas a slight connection to a criminal

conspiracy says little about whether the person entertained the mental state

necessary to show guilt of conspiracy, ―[p]ossession of recently stolen property is

so incriminating that to warrant conviction there need only be, in addition to

possession, slight corroboration in the form of statements or conduct of the

defendant tending to show his guilt.‖ (People v. McFarland (1962) 58 Cal.2d 748,

754.)

67

attempted use of force or violence or the express or implied threat to use force or

violence.‖ Accordingly, the prosecution presented evidence of defendant‘s

numerous prior acts of violence.

In 1991, defendant, 17 years old, was riding in a car with his father. The

car in front of them, driven by Jacqueline R., stopped because the car in front of

her had stopped to allow a passenger out. Defendant and his father blew the horn

and began ―acting crazy.‖ When they were able to proceed, defendant and his

father pulled up alongside Jacqueline R.‘s car and began throwing objects at it,

including a length of pipe and a metal tire rack that landed on her hood and

narrowly missed the windshield. They chased her as she drove away and

continued to throw things at her car. Defendant and his father were arrested for

assault with a deadly weapon.

Darrell Churish met defendant in 1991 or 1992. Defendant told him he

―claimed‖ blue, and was the leader of a Crips-affiliated gang called the Sons of

Samoa. Churish recalled an incident in which defendant brought a handgun to

school. People feared him because he was bigger than most students.

In 1992, still only 17 or 18 years old, defendant and several friends went to

Arroyo High School, intent on beating up anyone wearing red, the color of the

rival Bloods street gang. When they encountered some students, defendant was

the first to throw a punch, starting an all-out melee. He also kicked someone in

the head and later told his friend Mannix Molia he felt good and wanted to do it

again.

Sometime in 1992, defendant saw a man at a bus stop wearing a

Georgetown University jacket. Defendant confronted the man and knocked him

down with a single punch, taking his jacket; Darrell Churish confirmed this

account but said no punch was thrown. On another occasion, Churish and

defendant were at a mall when Churish admired someone‘s Oakland Raiders

68

jacket. Defendant offered to forcibly acquire it for Churish, who declined the

offer. Mannix Molia testified that defendant had a new jacket ―every other week‖

and would obtain them by knocking out the jacket‘s owner.

In 1994, defendant and friends spotted a drunk staggering in a park. For

fun, they chased him but the friends soon gave up. Defendant persisted, caught

him, and punched the man in the head, knocking him unconscious. According to

one of the friends, defendant was ―famous‖ for doing this kind of thing and was

known for the power of his punch. Mannix Molia testified he had seen defendant

use this punch four or five times.

One assault occurred around this time when from an apartment balcony

Churish saw a man looking into his car‘s window. He commented that the man

might be considering breaking into his car. By the time he got down to the street,

the man was ―all bloody‖ and had to go to the hospital. Palega said defendant hit

the man in the head with a bottle.

In 1995, defendant and other Samoans attacked Avikash Singh at Mt. Eden

High School in Hayward. They pulled Singh out of his car and beat and kicked

him. They also smashed one of the car‘s windows and took Singh‘s wallet and

pager. Iuli saw defendant stomping on Singh‘s head as he lay on the ground.

In January 1996, defendant and some friends went in Myron Cruz‘s

mother‘s van to the San Leandro Marina, which was a known location for teens

and young adults to have romantic encounters. They began shaking parked cars to

harass the couples inside and one person took exception, exiting his car and

yelling profanities. Defendant and two of his friends beat and kicked the man.

Later, the victim, now in his car, rammed Cruz‘s van, shearing off the side door.

Defendant and his friends fled. They trashed the van, dumped it in a creek, and

reported it stolen so they would not have to tell Cruz‘s mother what really

happened.

69

In February 1996, rival gang members shouted insults at Iuli when he and

others drove down Pompano Avenue in Hayward. Later that evening, Iuli and

defendant ―decided to pull a drive-by‖ in retaliation for the insults and returned to

the street, firing three shots from defendant‘s .380-caliber pistol at the house

where Iuli had been insulted. The bullets struck the front of the house, one of

them penetrating into the living room.

A month later, Hayward police encountered defendant with a group of

suspected gang members in Tennyson Park in Hayward and arrested him after

finding a .380-caliber pistol in his car, loaded with hollow point bullets.

Defendant had problems with violence while in jail. In August 1996, while

in Santa Rita Jail, defendant was written up for making and drinking an intoxicant

in his cell. When confronted by a deputy sheriff, defendant behaved in an

aggressive and threatening manner, shaking his fists, removing his shirt and

throwing chairs around. After he was secured, he threatened the deputy, saying:

―I‘ll take care of you later.‖ In 1998, defendant was involved in a fight in the jail

with at least three other inmates. One deputy saw defendant throw at least three or

four punches. In 2000, defendant refused to return to his cell during a lockdown.

When ordered into an isolation cell, he refused and became aggressive and hostile.

He complied only when threatened with pepper spray. A search of his cell

uncovered illegal tattooing implements, for which he was assessed a 20-day loss

of privilege.

In addition to section 190.3, factor (b) evidence, the prosecution presented

victim impact evidence in aggravation. (Payne v. Tennessee (1991) 501 U.S.

808.) The victim‘s brother, Paul Pamintuan, was to be the best man at the

wedding. Only 18 months younger than Nolan, Paul was very close to the victim

and went to him for advice, relying on his counsel as an older brother. Rowena

Panelo testified that the victim was both her fiancé and her best friend. He was a

70

caring, thoughtful and loving person. The victim‘s mother, Dr. Clementina

Manio, gave similar evidence. All three witnesses recounted the difficult

circumstances of May 18, 1996, when Nolan Pamintuan was missing and how and

when they learned of his murder. Panelo testified that the experience was ―[r]eally

difficult to explain. I mean, it is just heartbreaking. You are looking forward to

something, a really happy part of your life, and to realize that wasn‘t going to

happen, that you will never see this person you love so much ever again, it is just

very hard.‖ The victim was buried in the tuxedo he had intended to wear at his

wedding, and his funeral was held in the church where he was to have been

married.

The defense case in mitigation focused on defendant‘s family life and

cultural heritage. He was born in American Samoa in 1975, the son of Vui

Seumanu, who was a matai, or tribal chief. Defendant was the heir to this status,

and he chose to follow tradition and submit to several days of painful ritual

tattooing in which a shark tooth dipped in ink was used to cover his body in tattoos

from his knees to above his waist.

Defendant‘s mother died when he was only two years old and his father left

him with a relative when he moved from Samoa to the mainland. Defendant later

joined his father in California after he had remarried. Defendant‘s father had

seven more children with his new wife (including Tautai Seumanu), defendant‘s

half siblings. Defendant‘s stepmother, Sao Seumanu, testified defendant was a

helpful child—her ―right hand‖—helping to take care of the younger children.

She asserted defendant was ―a really good person‖ who, when he began working,

gave his entire paycheck to her to help feed the family. She did not know he was

in a gang, had never seen him with a gun, and denied knowing anything about the

nine millimeter ammunition and large-capacity ammunition clips found in her

71

bedroom in the family compound where she lived with defendant. She admitted

she had been convicted of welfare fraud.

Defendant‘s father, Vui Seumanu, was a pastor in the First Samoan Gospel

Church and defendant eventually became a deacon in the church, helping with the

younger children and with the choir. Vui said defendant was very responsible in

taking care of his many siblings while Vui was away on church business. He

admitted he had a 1998 conviction for welfare fraud.

According to defendant‘s half sister, Hanna, he was a good husband and

father, and treated his wife‘s daughter, Peggy, as his own child. When defendant‘s

grandfather was sick, defendant moved in with him and acted as his caretaker for a

year. Other relatives testified to defendant‘s good nature.

A defense expert, Clarence Scanlan, himself a high chief from American

Samoa, explained that, because of his physical size and status in the Samoan

community, defendant ―is going to be the protector of his younger brothers,

sisters, family members, whatever the type of situation, a friend or associate, or

fellow whatever it is. It is not [his] role to be the aggressor. It is his role to take

down whoever it is, because he can‘t let the lower subordinate be the one to settle

the situation, because he will lose his esteem and position within the gang, or the

organization, or village, or whatever it might be. So his role is more as a

protector.‖ The witness opined that defendant‘s role in his family and culture

explained many of the violent incidents admitted in aggravation, noting that many

were ―for protection of his family members. There [are] some bad ones he did,

and I think that is reflective of his establishing his name and making people fearful

of him, the more fearful people become of you, the less you have to flex your

muscle and go out there and enforce whatever you have.‖

72

B. Discussion

1. Alleged Prosecutorial Vouching

Emphasizing the jury was instructed at the penalty phase to consider all the

facts adduced during the entire trial,14 defendant argues the prosecutor‘s closing

argument in the penalty phase of trial improperly capitalized on her earlier, guilt

phase, vouching for Iuli‘s and Palega‘s credibility. Defendant did not object to the

prosecutor‘s penalty phase argument on this ground and thus forfeited the claim

for appeal. In any event, we found no improper vouching at the guilt phase (ante,

pt. I.B.3.f.), and the prosecutor‘s penalty phase argument merely emphasized the

moral decision the jury was required to make. For example, the prosecutor

asserted that ―[y]ou are charged with returning a moral and just verdict for this

crime and for this sweet innocent life that was taken so brutally.‖ We previously

have found similar arguments permissible. (See, e.g., People v. Rountree (2013)

56 Cal.4th 823, 859 [prosecutor could fairly argue ― ‗[c]apital punishment is

merely society‘s expression of the moral outrage of particularly offensive

conduct‘ ‖].)

Aside from whether the prosecutor at trial affirmatively vouched for the

credibility of her witnesses, defendant also suggests that simply by allowing Iuli

and Palega to plead to lesser offenses carrying determinate terms, the prosecutor

implicitly communicated to the jury that she personally viewed their roles in

Pamintuan‘s murder as less serious than defendant‘s role, and that the death

penalty was morally appropriate for the criminal actor who was not allowed to

plead, i.e., defendant. To the extent this could have been an implied message of

14 See CALJIC Nos. 8.84.1 (―You must determine what the facts are from the

evidence received during the entire trial . . . .‖), 8.85 (―In determining which

penalty is to be imposed . . . you shall consider all of the evidence which has been

received during any part of the trial of this case‖).

73

Ms. Backers‘s exercise of prosecutorial discretion, such implications are faint and

are present whenever a prosecutor draws distinctions between multiple criminal

actors; as such, they do not rise to the level of improper vouching concerning the

appropriate sentence for defendant. In any event, any possible prejudice was

avoided by a special jury instruction, given at the request of the prosecution,

informing the jury that the sentences of Iuli, Palega and Tautai had no bearing on

what sentence was appropriate for defendant.15 We assume the jury followed this

instruction. (People v. Stitely, supra, 35 Cal.4th at p. 559.)

2. Trial Court Comments During Pretrial Voir Dire

At the penalty phase trial, the jury was instructed pursuant to CALJIC No.

8.88 as follows: ―It is now your duty to determine which of the two penalties,

death or imprisonment in the state prison for life without possibility of parole,

shall be imposed on the defendant.

―After having heard all of the evidence, and after having heard and

considered the arguments of counsel, you shall consider, take into account and be

guided by the applicable factors of aggravating and mitigating circumstances upon

which you have been instructed.

―An aggravating factor is any fact, condition or event attending the

commission of a crime which increases its guilt or enormity, or adds to its

15 That instruction read as follows: ―In deciding the appropriate penalty for

the defendant, you should consider the character and record of the individual

offender on trial before you and the circumstances of his particular charged

offenses. The sentences of the accomplices [are] not a factor in mitigation and it

has no bearing on the defendant‘s character or record and it is not a circumstance

of the offense. Therefore, the sentences of the accomplices should not be

considered in your determination of the appropriate penalty for the defendant in

this case.‖

74

injurious consequences which is above and beyond the elements of the crime

itself.

―A mitigating circumstance is any fact, condition or event which does not

constitute a justification or excuse for the crime in question, but may be

considered as an extenuating circumstance in determining the appropriateness of

the death penalty.

―The weighing of aggravating and mitigating circumstances does not mean

a mere mechanical counting of factors on each side of an imaginary scale, or the

arbitrary assignment of weights to any of them. You are free to assign whatever

moral or sympathetic value you deem appropriate to each and all of the various

factors you are permitted to consider.

―In weighing the various circumstances you determine under the relevant

evidence which penalty is justified and appropriate by considering the totality of

the aggravating circumstances with the totality of the mitigating circumstances.

To return a judgment of death, each of you must be persuaded that the aggravating

circumstances are so substantial in comparison with the mitigating circumstances

that it warrants death instead of life without parole.‖ (Italics added.)

Capital defendants often argue the italicized sentence in this standard

instruction, especially the phrase ―so substantial,‖ is impermissibly vague and

ambiguous, but we have rejected the claim. (See, e.g., People v. Jones, supra, 57

Cal.4th at p. 980.) Defendant admits the instructional language ―is neither unclear

nor ambiguous,‖ but complains that during pretrial voir dire proceedings, the trial

court injected ambiguity into the trial by commenting to the prospective jurors that

the phrase ―so substantial‖ in CALJIC No. 8.88 was ―fairly ambiguous.‖ Thus, for

example, the trial court informed a panel of venirepersons: ―The key phrase in

that instruction is: ‗are so substantial.‘ And that is a fairly ambiguous phrase.

And the law intends it to be such because the law recognizes that you will be

75

engaging in the moral weighing process when you weigh that type of evidence.‖

(Italics added.) The court repeated this comment several times before different

panels of venirepersons.

At the outset, we conclude the issue was not preserved for appeal by a

timely and specific objection to the trial court‘s comments. (People v. Monterroso

(2004) 34 Cal.4th 743, 759 [claim of judicial error based on a judge‘s comments

during voir dire proceedings is forfeited by failure to object].) Although defendant

relies on section 1259 to excuse his failure to object, the argument cannot be

sustained. That statute permits a defendant to raise on appeal a claim challenging

―any instruction . . . even though no objection was made thereto in the lower court,

if the substantial rights of the defendant were affected thereby.‖ Defendant is not,

however, challenging the correctness of a jury instruction; indeed, he asserts that

he is ―defending CALJIC No. 8.88‘s formulation of the ‗so-substantial‘ standard

against the trial court‘s misleading and erroneous ‗amplification‘ of it.‖ As is

clear, his claim is one of judicial error, not misinstruction of the jury, and that

claim is subject to the requirement that a defendant make a timely and specific

objection in order to preserve the issue for appeal.

Were we nevertheless to overlook such forfeiture and address the merits of

the claim, we would find no error. As we explained in another case in which the

trial court made some nonstandard comments to the venirepersons during jury

selection: ―The trial court . . . was not instructing the jury at the time it made the

comments in question. Indeed it was conducting voir dire of prospective jurors.

Its ‗comments ―were not intended to be, and were not, a substitute for full

instructions at the end of trial.‖ ‘ [Citation.] ‗ ―The purpose of these comments

was to give prospective jurors, most of whom had little or no familiarity with

courts in general and penalty phase death penalty trials in particular, a general idea

of the nature of the proceeding.‖ ‘ [Citation.] In the context of voir dire, the trial

76

court‘s comments in this case were proper.‖ (People v. Romero (2008) 44 Cal.4th

386, 423.)16

Finally, any error was harmless. ―[A]s a general matter, it is unlikely that

errors or misconduct occurring during voir dire questioning will unduly influence

the jury‘s verdict in the case. Any such errors or misconduct ‗prior to the

presentation of argument or evidence, obviously reach the jury panel at a much

less critical phase of the proceedings, before its attention has even begun to focus

upon the penalty issue confronting it.‘ ‖ (People v. Medina, supra, 11 Cal.4th at

p. 741 [addressing the prosecutor‘s comments during voir dire].) This is

especially true because the trial court, when informing the venirepersons that the

―so substantial‖ phrase was ambiguous, also told them it was speaking informally,

and that if chosen to serve, the jurors would be given formal instructions at the

16 To the extent defendant claims ―the obfuscation of the so-substantial

standard by the trial court‘s comments was exacerbated here also by the trial

court‘s use of ‗good‘ and ‗bad‘ as synonyms for mitigation and aggravation,‖ this

claim too was forfeited by the failure to object. In any event, this court has itself

endorsed such comments as substantially correct so long as the jury is also

informed that it is making a moral choice and not just a mechanical one. (See

People v. Edwards (1991) 54 Cal.3d 787, 841 [―This court in the past has used the

terms ‗good‘ and ‗bad‘ evidence as shorthand for mitigating and aggravating

evidence.‖].) The jury in this case was so informed.

We also reject, as forfeited and without merit, defendant‘s further claim that

the prosecutor‘s closing argument exacerbated the trial court‘s pretrial comments

characterizing the ―so substantial‖ phrase as ―fairly ambiguous.‖ The prosecutor

vigorously argued the jury should reject an anticipated plea from the defense to

show defendant mercy, compassion and sympathy in light of the many times

defendant victimized people over the years, ending her argument by asking: ―Isn‘t

that morally perverted to ask for leniency for somebody like that?‖ Defendant did

not object to this line of argument, thereby forfeiting the claim, but in any event

we would reject as both exaggerated and unpersuasive the claim that ―in a case in

which the so-substantial standard has been severely distorted, [the prosecutor‘s]

argument would tend both to reflect the [judicial] error and then refract it back

only to increase the risk of misunderstanding and misapplication.‖

77

close of evidence. Because the penalty phase jury was later properly instructed

with the standard penalty phase instructions, we find that even if error occurred, it

was not reasonably possible it affected the penalty verdict. (People v. Abilez,

supra, 41 Cal.4th at pp. 525–526.)

Finally, defendant‘s attempt to inflate the trial court‘s pretrial comments

into judicial error that both violated his federal constitutional rights and is

reversible per se as structural error (see Sullivan v. Louisiana (1993) 508 US. 275,

279–280 [erroneous reasonable doubt instruction requires reversal]) is baseless.

As noted, the jury was properly instructed at the penalty phase and the court‘s

comments during the pretrial phase could not reasonably have undermined the

efficacy of those instructions.

3. Alleged Prosecutorial Misconduct

a. Impugning Defense Counsel’s Integrity

Reprising a claim of alleged prosecutorial misconduct from the guilt phase,

defendant claims the prosecutor‘s guilt phase argument suggesting defense

counsel knew his client was guilty, and that the proffered alibi defense was a

sham, amplified the prejudicial effect of the prosecutor‘s subsequent penalty phase

argument suggesting it was ―morally perverted to ask for leniency for somebody

like [defendant].‖ Defendant argues the earlier guilt-phase misconduct ―referred

forward to the penalty phase‖ such that ―the substance of the slander against

defense counsel‘s integrity hovered over the entire trial.‖ Such argument,

defendant contends, unfairly undermined trial counsel‘s argument in favor of

mitigation and mercy ―not on the basis of evidence, but rather on the basis of an

extra-evidentiary animadversion against the integrity of the defense counsel.‖

According to defendant, such criticism of defense counsel is not a recognized

aggravating factor under section 190.3 (see People v. Coffman and Marlow (2004)

78

34 Cal.4th 1, 108 [―Any aggravating evidence not relating to the sentencing

factors enumerated in section 190.3 is inadmissible in the penalty phase.‖]; see

People v. Boyd (1985) 38 Cal.3d 762, 773–776 [first stating the rule]), and the

prosecutor‘s reliance on it violated both that statute and his constitutional rights

under the Eighth Amendment to the United States Constitution.17

We agree with the People that defendant forfeited this claim by failing to

object on the identified ground. We previously explained that the issue of whether

the prosecutor improperly attacked the integrity of defense counsel was forfeited

by counsel‘s failure to object at the guilt phase. (Ante, pt. I.B.4.b.) Although

defendant attempts to tie that issue to the prosecutor‘s rhetorical question (―Isn‘t

that morally perverted to ask for leniency for somebody like that?‖) during closing

penalty phase argument, the prosecutor‘s question does not appear linked to the

earlier comments about counsel‘s integrity. Without an objection explaining this

theory of exclusion to the trial court, this matter was not properly preserved for

our review. Even were we to overlook this procedural obstacle, we agree with the

People that the prosecutor‘s question, either alone or in combination with earlier

17 For his Eighth Amendment claim, defendant cites Roper v. Simmons (2005)

543 U.S. 551, where the United States Supreme Court ruled that states may not,

consistently with the Eighth Amendment, execute criminal offenders, even those

convicted of first degree murder, who committed their crimes before their 18th

birthday. In explaining its ruling, the court said: ―The Eighth Amendment guards

against the execution of those who are ‗insufficient[ly] culpab[le],‘ [citation], in

significant part, by requiring sentencing that ‗reflect[s] a reasoned moral response

to the defendant‘s background, character, and crime.‘ California v. Brown, 479

U.S. 538, 545 (1987) (O‘Connor, J., concurring). Accordingly, the sentencer in a

capital case must be permitted to give full effect to all constitutionally relevant

mitigating evidence.‖ (Id. at p. 603, underscoring added.) By citing and quoting

this passage, defendant may be understood to argue that the prosecutor‘s argument

undermined the jury‘s ability to fairly assess his proffered mitigating evidence and

to reach a reasoned and moral decision on the question of the proper penalty.

79

statements made in closing argument at the guilt phase, was harmless because it

was not reasonably possible the argument affected the penalty verdict. (People v.

Abilez, supra, 41 Cal.4th at pp. 525–526.)

b. Reference to Richard Allen Davis

Following his conviction at the guilt phase of the trial, defendant decided to

forgo his right to wear street clothes and to instead appear before the jury in jail

clothes. The trial court accordingly informed the jury that it was not to consider

defendant‘s dress as a factor in its deliberations. Thereafter, during the penalty

phase examination of defense expert Dr. Marlin Griffith, Defense Counsel Levy

asked him whether, hypothetically speaking, a criminal defendant‘s decision not to

wear civilian clothes and begin appearing before the jury in jail clothes would

have ―psychological implications‖ for the expert‘s assessment of the person. Dr.

Griffith replied: ―Well, given the gravity of Mr. Seumanu‘s case, and given the

psychological information that I have previously pulled together, yes, I am very

surprised that Mr. Seumanu is dressed in the county jail uniform as opposed to

civilian clothes.‖ The prosecutor briefly cross-examined the witness on this point.

Later, in closing argument, the prosecutor urged the jury to disregard Dr.

Griffith‘s testimony, characterizing it as ―psychobabble‖ that ―doesn‘t mean a

thing.‖ Ms. Backers then said this: ―The guy — do you remember what Richard

Allen Davis did to his jury after he got convicted?

―Same thing [defendant] did to you. You convicted him of first degree

murder and specials. And guess what? He thumbed his nose at you, took down

his hair, put his jail clothes on and said: You can‘t touch me. I am not afraid of

you.‖ There was no defense objection.

Defendant contends the prosecutor‘s reference to Richard Allen Davis, the

notorious kidnapper and killer of a 12-year-old child in 1993 (see People v. Davis

80

(2009) 46 Cal.4th 539), constituted prosecutorial misconduct requiring reversal.18

That the issue was forfeited by the failure to object is immediately apparent

(People v. Hill, supra, 17 Cal.4th at p. 820) and although defendant claims an

objection would have been futile (id. at p. 721), no reason suggests such futility.

The prosecutor did not equate defendant to Davis in terms of comparative moral

fault, but raised only the side point that both defendants demonstrated contempt

for their respective juries. Accordingly, even assuming the argument was

improper, an admonition would likely have been sufficient to cure any harm. We

thus conclude defendant forfeited the issue.

Were we to address the issue, we would find no error. ―In general,

prosecutors should refrain from comparing defendants to historic or fictional

villains, especially where the comparisons are wholly inappropriate or unlinked to

the evidence.‖ (People v. Bloom (1989) 48 Cal.3d 1194, 1213, quoted with

approval in People v. Jablonski (2006) 37 Cal.4th 774, 836–837.) Although

defendant‘s choice of attire was not as confrontational as Davis‘s obscene gesture

to the jury,19 one could fairly argue that, in choosing to wear jail clothes,

defendant demonstrated disdain for the solemnity of the proceedings. Considering

18 Defendant also initially claimed the pr

This text is long and has been trimmed here. Open the source document for the complete record.