IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte)
February 1, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
CLINTON RAY EGBERT, DEFENDANT AND APPELLANT.
(Super. Ct. No. CM026403)
The opinion of the court was delivered by: Blease, J.
P. v. Egbert
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Clinton Ray Egbert was convicted of the second degree murder of his wife, Tamara, and sentenced to prison for a term of 15 years to life. The jury additionally found that he personally and intentionally discharged a firearm in the commission of the murder, for which he received a consecutive 25 year-to-life term, for an aggregate sentence of 40 years to life. Although the crime occurred in 2000, defendant was not arrested for the murder for seven years.
Defendant argues the judgment against him should be reversed because of prosecutorial misconduct occurring during closing argument. We shall conclude that the instances of misconduct that were not forfeited for failure to object or that were not cured by admonition, were nevertheless harmless, and cumulatively harmless beyond a reasonable doubt.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant's wife, Tamara, was killed in February 2000. Her body was discovered around 4:15 in the afternoon on Saturday, February 19, 2000, at the bottom of Lookout Point, near Paradise, California, approximately 250 to 300 feet from the top of the point. She was wearing sweatpants and panties, but no top, bra, shoes, or socks. Searchers found a gray sweatshirt and a colostomy bag beside the body.*fn1 There were two bullet holes in the sweatshirt. The victim had been shot once in the chest with a .22 caliber bullet. There was a second gunshot wound located possibly below the right armpit, although the precise location was difficult to pinpoint because of the many post-mortem injuries.
The victim had several ante mortem injuries, including a bruised, swollen eyelid, a contusion and abrasion on the chin, large blue grooves on the right lower leg, a laceration and contusion on the right upper forehead within the hairline, a star shaped laceration over the back left side of the head, and a small abrasion on the left eyebrow. These injuries were inflicted a matter of hours before death. Her blood alcohol concentration was .14 percent, indicating she was intoxicated at the time of death. The victim was dead when her body was thrown from Lookout Point. The cause of death was a combination of blunt force trauma and two gunshot wounds.
After obtaining a search warrant, the sheriff's department searched defendant's residence around 11:00 p.m. the night the body was recovered. One of the items for which they were searching was a Ruger 10/22 rifle, which was capable of firing the bullet found in the victim's body. They located magazines that hold ammunition for that specific type of weapon, but not the weapon itself. There was also a cylinder for a .22 caliber handgun. Also found were a Ruger pistol revolver, a .22 Ithica rifle, and a .357 Winchester rifle. Later testing revealed that the rifle could not have shot the bullet found in the victim's body. The revolver could not be ruled out as the murder weapon, but there were no characteristics upon which to base a positive match.
Defendant's pickup was also searched. The bed of the pickup contained three areas with a small amount of substance that tested presumptively positive for human blood. No conclusive tests were possible because of the small amount of the substance. The samples were sent to the Department of Justice for DNA analysis, but no DNA was detected on any of the samples.
The victim's purse was located inside the house, as well as her glasses. Her purse contained two colostomy bags. Her bra was in the bathroom. The bagless vacuum cleaner appeared to be new, and had water in it, as if it had been washed out. In a spare bedroom, deputies found a La Paz County Sheriff's jacket and badge, a box with ammunition, handcuffs, a scope for a rifle or handgun, and some handgun grips.*fn2 All of these belonged to defendant.
A receipt was found for a set of four tires. The receipt was dated February 12, the day after the victim disappeared and one week before the body was discovered. There were two letters in the kitchen garbage can, torn in half. The letters were from the victim to defendant. In them, the victim complained that defendant was distrustful of her, that he listened in on her personal phone calls, that he lied to her, that he was lazy and had not had a job for months, that he was drinking to excess, that he wanted a divorce, that he was generally unhappy, that he was not looking for a job, and that they were in trouble financially. Also in the kitchen were an envelope with defendant's blood on it and a paper towel with defendant's blood on it.
The condition of the victim's body indicated the victim had been dead eight or nine days, placing the time of death sometime on the previous Thursday or Friday. The Egberts' next door neighbor, Dolis Schmidtke, testified that she recalled hearing two gunshots either Thursday or Friday evening around 10:00 or 11:00. Four or five days after hearing the gunshots, she saw a picture of a missing person posted at the Safeway where she worked. She realized from the address on the poster that the missing person was her neighbor. She did not know the Egberts, but had heard arguing from one of the houses neighboring her own.
Victoria Stahler, a neighbor who was nine or ten years old at the time, also recalled hearing gunshots. She heard two or three gunshots, then about 20 minutes later heard screeching tires and saw a car going "really fast down the road."
Susan Rizzo, one of the victim's friends, spent the weekend of February 11 through 13 with her boyfriend in Paradise. When Rizzo returned home she had a telephone message from the victim. The victim sounded intoxicated, and Rizzo could not understand the message. The time stamp on the message was "nine something p.m." on Friday the 11th. Rizzo erased the message.
Ira Ingersoll was a friend of the Egberts. He first learned that the victim was missing on Sunday, February 13, when he stopped by to see the Egberts. Defendant told him that he and the victim had a fight on Friday night, and she left and had not come back. After Ingersoll left, defendant called him and asked him to come back and give him moral support. Ingersoll came back on Monday, the 14th and stayed until Saturday.
On Monday, February 14, 2000, between 8:00 and 9:00 a.m., defendant called Reliable Property Management, the victim's workplace, and spoke with Karen Dooley. Defendant asked Dooley if his wife were there. Defendant told Dooley that he and the victim had an argument on Friday evening, and that she had left the house without her coat, purse, umbrella, or any belongings, even though it had been raining. Defendant said he had not notified anyone else of the victim's disappearance.
The victim's mother testified that it would be unusual for the victim to leave the house without her glasses, and that she would not leave the house for any extended period of time without her purse and her colostomy bags. She became aware her daughter was missing on the morning of the 14th of February, 2000, when one of the victim's co-workers called and asked if she knew where her daughter was. She immediately called defendant, who told her that he and the victim had argued on Friday night, and the victim had not come home. The mother called the rest of the family to see if the victim was staying with one of them, but no one had seen her.
Defendant contacted the police on Monday morning, February 14, 2000. He reported that he and his wife had been drinking on Friday night and got into an argument. He stated that she left the house after the argument, and he had not seen her since. He told the officer that she had been wearing sweats, had taken a duffel bag of clothes, and had taken $200.*fn3 He said he had hidden her purse so that she would not drive. He told the officer he had not reported his wife missing sooner because she had done this kind of thing before.
On Tuesday, February 15, 2000, defendant and Ingersoll went out searching for the victim. That afternoon, the victim's sister-in-law went to the house and spoke to defendant. Defendant told her that he and his wife had an argument on Friday and she left the house. Also on Tuesday, defendant again contacted the police for an update. The police requested defendant bring a current photo of his wife for distribution to the media and to the public.
Police officer Todd Lefkowitz went to defendant's residence. While there, he noticed two guns -- a rifle propped up against the corner of the bedroom, and a revolver on top of the nightstand. Defendant showed Lefkowitz the victim's purse and told him that her ATM card was missing. Lefkowitz took the victim's address book back to the police department in order to photocopy the pages. He returned the address book to defendant later Tuesday evening. When Lefkowitz entered the residence, defendant was sitting in a recliner, and was sweating profusely, even though it was not particularly warm inside. Defendant got out of the chair to greet Lefkowitz, who then noticed the handgun he had seen earlier in the bedroom wedged down between the arm of the chair and the bottom cushion. Lefkowitz asked defendant why he had moved the gun, and defendant replied that it just made him feel better. Defendant told Lefkowitz he thought his wife might be with a friend named Michelle Sheurman in Winters, California.
On Wednesday night defendant was drinking cocktails with Ingersoll, when he told Ingersoll, "I think she's dead, been shot, and she's in Paradise." Ingersoll asked why defendant thought that, but got no answer. Later, defendant said, "We better go to Paradise tomorrow and take a look around, see if we can find her."
On Thursday, defendant and Ingersoll drove to Paradise. Defendant told Ingersoll that the victim had a friend who lived on Neal Road, and that she might be walking around. They passed Lookout Point on Skyway Drive when they came back to Chico. That night, defendant stated that they should go back up to Paradise and take a look around.
On Friday, defendant and Ingersoll drove back toward Paradise, but turned on Skyway drive before they got to Paradise. As they passed Lookout Point, defendant saw a car parked on the side and said, "Well, that car wasn't there yesterday." Ingersoll had not noticed the car the day before. Detective Jose Lara spoke to defendant on Friday. Defendant told him that his wife had taken the checkbook with her, as well as an umbrella, a blue or gray gym bag, and $190 cash.
The prosecution presented evidence that defendant had been a controlling and jealous husband. The victim's mother testified she had seen the couple argue, and that whenever her daughter would come to visit her, defendant would call constantly to speak to his wife. He called every time he did not know where his wife was. This usually occurred on the weekend. Dorothy Walker, an acquaintance of the Egberts, overheard defendant several times say that if the victim ever decided to leave him he would kill her. He also said, "Nobody else is going to have her but me." Sheryl Barker testified that the victim would come over to her house, and on some occasions would be upset and crying. Defendant would call her on the telephone "lots and lots," so they would leave and go to a bar so that they would not have to answer the telephone. This would happen most of the time when the victim came over. Sometimes, defendant would call the bar as well. They would have to tell the bartender to tell defendant they were not there. Once in 1999 the victim was attending a reception when the door to the room flew open, and defendant walked in and grabbed the victim by the arm and pulled her out the door, literally pulling her out of her shoes.
There was also evidence that defendant and the victim fought. Ingersoll admitted defendant had told him more than once that he could commit murder and get away with it. Approximately six months prior to the murder, defendant was overheard shouting at his wife that he could "get rid of" her. The Egberts frequented JG's Bar and Grill, where the owner testified they sometimes became argumentative after drinking.
The victim's son, Shaun Sibley, testified he had seen defendant and his mother argue on numerous occasions, and had seen defendant throw and break things and push his mom. Sibley testified that he remembered defendant owning a Ruger .22 rifle, but that it was not among the pictures he was shown of the weapons retrieved from defendant's house.
After the case was reopened, Sally Streeter told authorities that she and defendant lived together for 12 to 18 months beginning sometime in 2001 or 2002. At first, defendant claimed his wife Tami had died of cancer. However, sometime in 2003 he told Streeter that he witnessed his wife being shot in the head and chest, and being thrown off a roof. Streeter said that defendant probably was not sober when he made the statement because he drank almost a half gallon of whiskey every two days. Eventually, defendant started to become very aggressive, and became physically abusive about a month before she moved out. He would hit her at night while she was sleeping, and when she asked him about it the next day, he claimed not to remember.
Sally Streeter's son, Dale, testified that in July 2003, he and defendant were arguing when defendant pulled out a .38, pointed it at Dale and said, "I can make you disappear the same way I did my wife." Defendant was intoxicated at the time.
Defendant was married to Julie Johnson from 1983 to 1991, prior to his marriage to the victim. He owned a lot of firearms during the marriage. Johnson testified that when they were living in Arizona, they got into an argument and defendant began pushing and shoving her around the kitchen with his fist in her face. He told her that he was going to kill her and throw her down a mine shaft where nobody would ever find her.
Defendant argues the judgment should be reversed because of multiple instances of prosecutorial misconduct during closing argument which resulted in prejudice. We agree that some of the instances cited amounted to misconduct, but conclude the misconduct did not, either separately or cumulatively, result in prejudice.
The standards governing our review of claims of prosecutorial misconduct are well settled.
"'A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such "'unfairness as to make the resulting conviction a denial of due process.'"' [Citations.] 'Under state law, a prosecutor who uses such methods commits misconduct even when those actions do not result in a fundamentally unfair trial.' [Citation.] 'In order to preserve a claim of misconduct, a defendant must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the claim of misconduct preserved for review.' [Citation.] When a claim of misconduct is based on the prosecutor's comments before the jury, '"the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion."' [Citations.]" (People v. Friend (2009) 47 Cal.4th 1, 29.)
We will not reverse a conviction for prosecutorial conduct that violates state law unless it is reasonably probable that the jury would have reached a result more favorable to the defendant in the absence of the misconduct. (People v. Wallace (2008) 44 Cal.4th 1032, 1071.)
A. Photo of Victim While Alive
At the beginning of closing argument, the prosecutor showed a Christmas photograph of the victim. Defense counsel objected on the ground the photograph had not been entered into evidence. The trial court told the prosecutor to move on to another picture in the presentation and instructed the jury to disregard the photograph. Later in the prosecutor's closing, the Christmas photograph was displayed again, and defense counsel again objected. The trial court told the prosecutor that the picture was not in evidence and ordered it not be used.
After the jury rendered its verdict, defendant moved for a new trial. The Christmas photograph was one of the grounds upon which the motion was based. Defense counsel stated that the prosecutor had also used the photo during her opening statement, and that he had not objected because he believed it would be used during trial to identify the victim.
Defendant argues it was misconduct for the prosecutor to show the photo because it was not admitted into evidence, and argues it prejudiced the jury by evoking sympathy for the victim. It is improper for trial counsel to rely on facts in argument that are not in evidence. (People v. Cash (2002) 28 Cal.4th 703, 732.) The danger in admitting photographs of the victim while alive is that the photographs will generate sympathy for the victim, but the photographs are admissible in the trial court's discretion if they are otherwise relevant and their prejudicial effect is not clearly outweighed by their probative value. (People v. Rogers (2009) 46 Cal.4th 1136, 1163.)
It was misconduct for the prosecutor to use a photograph that had not been admitted into evidence, but we conclude it did not unfairly prejudice defendant. Even though the picture was shown three times, the display of the picture was brief, and the jury was told to disregard it. The picture was not one that would particularly engender undue sympathy for the victim. The brief display of the picture did not so infect the trial with unfairness that it denied defendant due process, nor is it reasonably probable the result would have been more favorable to defendant without the display of the picture.
B. Jigsaw Puzzle
The prosecutor used a demonstration during closing argument that defendant described in his motion for new trial as follows:
"During the closing argument, the prosecution had an enlarged picture of the alleged victim on an easel in front of the jury. Next to that photograph was another easel that held another photograph covered by pieces of a jigsaw puzzle, each piece of which contained a word or phrase which allegedly referred to a piece of evidence. As the prosecution argued her case, an assistant removed pieces of the puzzle ultimately revealing an extremely unflattering enlarged photograph of the defendant. That photograph was never shown to the defense nor had it been marked or received into evidence."
During the closing argument, defense counsel objected that the picture of defendant was not in evidence.
Again in his new trial motion, defendant argued that the error was in showing a photograph of him that was not admitted into evidence and that was unflattering. The prosecutor explained that the picture of both the victim and defendant used in the presentation were driver's license photographs.
Defendant now argues the prosecutor's demonstration was misconduct because it "minimized and trivialized the standard of proof in a graphic, theatrical manner and unfairly denigrated appellant in the process[,]" as well as because the photograph of defendant was not admitted into evidence.
We have already determined that it was improper for the prosecutor to show photographs in closing argument that were never admitted into evidence. However, as in the case of the earlier photo of the victim, we conclude any error in showing the picture of defendant was harmless.
As to defendant's standard of proof argument, in People v. Katzenberger (2009) 178 Cal.App.4th 1260, 1266, this court held that a similar jigsaw puzzle presentation misrepresented the reasonable doubt standard. We concluded that such a presentation was problematic because it invited the jury to guess or jump to a conclusion, and because it inappropriately suggested a specific quantitative measure of reasonable doubt. (Id. at pp. 1267-1268.)
There are some differences in the presentation in this case and the one at issue in Katzenberger. In that case, the prosecutor told the jury that the demonstration related to the jury instruction on reasonable doubt, and that the picture (of the Statue of Liberty) would be recognizable even before all the pieces were in place. (People v. Katzenberger, supra, 178 Cal.App.4th at p. 1264.) The prosecutor stated that the jury would recognize the picture "'beyond a reasonable doubt without looking at all the pieces of that picture.'" (Id. at p. 1265.)
In the case before us, the record is not entirely clear at what point the prosecutor began the puzzle demonstration. The prosecutor talked about the reasonable doubt instruction at the beginning of her argument, but did not specifically relate it to the puzzle demonstration. At the end of the closing argument, the prosecutor stated:
"And you can see on this diagram that there are other puzzle pieces missing. You don't -- we didn't actually find the gun the defendant used, although we know what it was. And we don't know where she was killed in terms of in the house or outside of the house. The gunshots were extremely loud according to both of our witnesses. He could have easily shot her outside. Remember, she's a smoker. But there's nobody here that has a reasonable doubt that her killer is not depicted in this picture and sitting right over there."
Thus, although the prosecutor said the words, "reasonable doubt" in connection with the demonstration, it was not clear that she was equating the puzzle demonstration with the way in which the jurors were to determine whether defendant was guilty beyond a reasonable doubt.
Defendant has forfeited the argument that the prosecutor's puzzle demonstration amounted to improper argument regarding the reasonable doubt standard by not raising the issue at trial. In order to preserve a claim of misconduct, defendant must make a timely objection and request an admonition, unless an admonition would not have cured the harm. (People v. Friend, supra, 47 Cal.4th at p. 29.) In this case, the trial court could have instructed the jury that the prosecutor's demonstration was not to be understood to suggest a different standard of proof than the one given in the instructions.
Defendant asserts that any failure of his trial counsel to object on standard of proof grounds constituted ineffective assistance of counsel. To prevail on a claim of ineffective assistance of counsel, defendant must establish that his trial counsel's representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for the deficient performance, the result of the trial would have been different. (People v. Mesa (2006) 144 Cal.App.4th 1000, 1007.) We conclude defense counsel's performance in not objecting to the puzzle demonstration did not fall below an objective standard of reasonableness because there was no published California case at the time of trial that held such a demonstration to be misconduct, and because it was not clear that the puzzle demonstration was intended to illustrate the concept of reasonable doubt.
Both People v. Foster (2003) 111 Cal.App.4th 379, 385, and People v. Zambrano (2004) 124 Cal.App.4th 228, 238, held that where no published case had specifically decided it was misconduct for a prosecutor to ask a defendant whether another witness was lying, the defendant could not establish that his counsel's failure to object to such questions fell below an objective standard of reasonableness. Likewise, here there were no published California cases holding a reasonable doubt/puzzle analogy to constitute misconduct. Even had this court issued its Katzenberger opinion earlier, it was not sufficiently clear that the prosecutor was making an analogy to the reasonable doubt standard to put defendant's trial counsel on notice that an objection should be made. Accordingly, defense counsel's conduct did not fall below an objective standard of reasonableness.
C. Griffin Error
Defendant argues the prosecutor committed Griffin*fn4 error by calling attention to facts that only he could explain through his testimony. Griffin held that a prosecutor may not comment, either directly or indirectly, on the defendant's failure to testify, because such comment tenders to the jury that the failure to testify is evidence of guilt. (People v. Frye (1998) 18 Cal.4th 894, 977, overruled on another point in People v. Doolin (2009) 45 Cal.4th 390, 421.)
Accordingly, it is error for the prosecution to refer to the absence of evidence where only the defendant's testimony could provide such evidence. (People v. Harrison (2005) 35 Cal.4th 208, 257.) The prosecutor may, however, comment on the state of the evidence or on the failure of the defense to introduce material evidence or call logical witnesses. (People v. Medina (1995) 11 Cal.4th 694, 755.) Any error resulting from indirect, brief and mild references to a defendant's failure to testify without any suggestion that the failure implies guilt is uniformly deemed harmless. (People v. Hovey (1988) 44 Cal.3d 543, 572.)
Defendant points to three instances of claimed Griffin error. First, during closing argument the prosecutor explained implied malice to the jury, telling the jurors that an intentionally committed act, the natural consequences of which are dangerous to human life, can supply the element of malice. She said, "At the time that he acted, he knew his conduct was dangerous to human life. We can't peek into his mind because we don't have a statement from him, but we certainly can look to his behavior and that gives us a glimpse into his mind." Defense counsel made no objection.
This comment presents no Griffin error. It is permissible to reference the state of the evidence and the fact that defendant's state of mind may be difficult, if not impossible, to prove directly. (People v. Mitcham (1992) 1 Cal.4th 1027, 1051.) In any event, there was no implication of guilt from defendant's failure to testify, and this brief, mild reference to a statement from defendant was harmless.
The second claimed instance of Griffin error was during the prosecutor's closing argument:
"The Court instructs you that if there are more than one explanation for something, that you -- and if one of those is reasonable, go with that one. So, why is guilty the only reasonable explanation? Well, we do have the fact that Tami was reported missing after 2.5 days, almost three days. What would the defendant say up to that?"
Again, defense counsel did not object to this comment. We find any error was harmless, first because the comment is practically unintelligible, and second because this was another brief, mild, indirect comment without any suggestion of guilt.
The third claim of Griffin error is the content of a slide presentation. The slide contained two columns as follows:
Why Guilty is only reasonable explanation (2)
* Doesn't mention stoma until later
* Letters from Tami in the trash
* 2 neighbors heard 2 gunshots 2-11-00
* Rifle is missing
* Threats to kill Tami
* Physical force
* Forgot about it?
* I didn't read them?
* No explanation
* No explanation
* No explanation
* Everyone is lying?
As the slide was shown, the prosecutor commented:
"He doesn't mention the stoma or ileostomy until later, much later, on his either fourth or fifth contact with Lefkowitz. He remembers to tell them she has glasses and she has a scar on her face, but doesn't tell them about the need for the bags and ileostomy? No, that doesn't make any sense.
The letters from Tami in the trash. I suppose, you know, say what he wants on that, but they're there."
At this point defense counsel objected and moved for a mistrial. The court instructed the prosecutor to remove the slide from the screen, and told the jury to disregard it and treat it as though they had never seen it.
To the extent, as in the case of the stoma discussion, that the information on the slide referred to defendant's failure to mention something to the police prior to trial at a time that he was cooperating with them, no Griffin error occurred. (People v. Jenkins (1974) 40 Cal.App.3d 1054, 1057-1058.) The privilege against self-incrimination is not implicated by a defendant's conduct prior to trial absent a showing that the conduct was in assertion of the privilege to remain silent. (People v. Preston (1973) 9 Cal.3d 308, 315.) Here, the prosecutor was merely commenting on the fact that defendant gave police numerous details about his wife, but failed to include the important information that she needed colostomy bags.
It is unclear what the prosecutor's argument regarding the rest of the slide would have been. Assuming that the jury could have interpreted the information on the slide as a comment on defendant's failure to testify, the comment was brief, mild, and did not imply guilt from such failure. We conclude any error was harmless. Also, any error was cured by the trial court's admonition to disregard the slide. (People v. Castillo (2008) 168 Cal.App.4th 364, 386.)
D. Misstatements of Evidence
The prosecutor misstated or mischaracterized the evidence in several instances during closing argument. She argued that defendant had not bothered to call law enforcement to report the victim missing until someone had called from her workplace asking where she was. In fact, the evidence showed that defendant called his wife's work, then called the police. Defense counsel objected, and the trial court instructed the jury that the arguments of counsel are not evidence.
During defense counsel's closing, he told the jury:
"Do you remember Ms. Norton [the prosecutor] said that Mr. Egbert didn't even report or call regarding this on the 14th until someone from Reliable Property or Tami's employer called him? There are a couple of reasons why you and I and all of us have no doubt. Not somewhere on this scale. Why we have no doubt that's not true. One, you didn't get any testimony regarding that. Number two, on February 14th at approximately 8:40 a.m., Clint contacted Dooley, who works at Reliable Realty. He asked if Tami had arrived at work. Tami did not arrive. . . . [W]e stipulated to it. . . . And that fact is, therefore, true."
The prosecutor also misstated that there was a bloodstain in the pickup. Defense counsel objected, and the court again instructed that the attorneys' statements were not evidence. The prosecutor then stated that there were blood stains in the bed of the pickup that were sent for DNA testing, which indicated they were from defendant. Defense counsel again objected. After a sidebar, the prosecutor told the jury she was mixing up the blood results from the envelope with those from the truck, and clarified that the pickup contained a presumptive test for blood, then argued it would have made sense that defendant used the pickup to transport the body to Lookout Point.
In his closing, defense counsel argued:
"Do you recall Ms. Norton telling you that Tami's blood was found in the back of the pickup truck? We know better than that. We have Ms. Renfroe from DOJ, we have Ms. Calvin from DOJ . . . testified as experts, DNA experts, blood experts. What did they say? . . . They said those 'stains.' They're not blood stains. Those stains in the back of the pickup are -- there's no DNA. Zero. Zero. Meaning no blood, no tissue, no nothing."
While arguing motive, the prosecutor stated, "Defendant was angry that Tami wanted him to get a job. He was ashamed that she was overweight and ill." Defense counsel objected that there was no evidence on that matter. The prosecutor told the trial court that one of the witnesses testified that defendant was ashamed of the victim because she was overweight and ill. The trial judge stated he had no recollection of that testimony. Defense counsel said the information had been in the witness's report, but that he had not testified to it. The trial court instructed the prosecutor to tell the jury she had been wrong. The prosecutor told the jury that the information about the victim being overweight did not get into evidence, and to disregard the information.
The prosecutor continued her argument as to motive by telling the jury that there was evidence the victim was about to leave defendant. Again, defense counsel objected and the court instructed the jury to disregard that portion of the argument.
The prosecutor told the jury that defendant's false statements showed consciousness of guilt, and said:
"He couldn't keep the story straight. He told Diane Valentine and Karen Dooley completely different details. For one, she took a coat and umbrella; other one, left without even a jacket."
At the same time, the prosecutor showed the jury a slide titled, "Defendant's stories" and listed these as defendant's claims: (1) that the victim left Friday night with a bag and $200, (2) to Dooley that the victim left without a jacket, and (3) to Valentine that the victim was wearing a coat and carrying an umbrella, but no bag. Defense counsel objected, and the trial court again instructed the jury that what the attorneys said during argument was not evidence.
In fact, Dooley did testify that defendant told her the victim left the house without her coat, but Valentine, when asked whether she recalled telling law enforcement that defendant said the victim was wearing sweats and a coat and carrying an umbrella, stated she could not recall that.
Finally, during her closing, the prosecutor told the jury that defendant had the tires changed on his truck the day after the victim went missing. Defense counsel objected, stating that there was no evidence that the tires were put on the truck, only that tires were purchased. Again, the trial court reminded the jury that the attorneys' arguments were not evidence.
Defense counsel argued during closing that there was no testimony that the tires were put on the truck, and that there was no evidence from which the jury could draw a permissible inference that the tires were put on the truck.
Although counsel is allowed great latitude in closing argument to urge those conclusions that properly can be drawn from the evidence, counsel may not assume facts not in evidence or mischaracterize the evidence. (People v. Tafoya (2007) 42 Cal.4th 147, 181.) We certainly cannot condone the prosecutor's loose treatment of the evidence in the case. However, in each case defense counsel promptly objected, and the trial court either instructed the jury that the statements were not evidence, or the prosecutor corrected her misstatements. We must presume that the jury followed the court's instructions. (People v. Perry (1972) 7 Cal.3d 756, 791, overruled on other grounds in People v. Green (1980) 27 Cal.3d 1, 28-34.) Moreover, defense counsel adequately addressed the misstatements in his closing argument. Between the trial court's admonitions, the prosecutor's corrections, and defense counsel's arguments, the prosecutor's misstatements were cured.
Even though the prosecutor made several misstatements, they were not so pervasive as to infect the trial with unfairness and deprive defendant of due process. Nor can we say it is reasonably probable that defendant would have obtained a more favorable result had the prosecutor not misstated the evidence, particularly in light of the fact that all of the misstatements were corrected by the trial court, the prosecutor, or defense counsel.
We also reject defendant's argument of cumulative error. Accepting defendant's argument that the standard of prejudice for such cumulative error is the Chapman*fn5 standard because of the inclusion of Griffin error, we conclude there was no prejudice.
While we look askance at the prosecutor's misstatements of fact, theatrical puzzle display, and attempts to put pictures not admitted into evidence before the jury, even when these are viewed cumulatively, they did not so infect the trial as to deprive the defendant of due process, or make it reasonably possible that the error affected the verdict. (See People v. Lewis (2008) 43 Cal.4th 415, 527 [a reasonable possibility that the error affected the verdict is essentially the same as the harmless beyond a reasonable doubt standard].)
The instances of claimed misconduct were not pervasive throughout the trial, but occurred only during the prosecutor's closing argument. Defense counsel was quick to object to every comment that could be construed as misconduct, and the trial court was receptive to the objections and either admonished the jury or instructed the prosecutor to correct her mistakes. Defense counsel was thorough in his correction of the prosecutor's misstatement of evidence.
There was strong, solid circumstantial evidence against defendant. He claimed the victim left the house after an argument, but two neighbors heard two gunshots the night she disappeared. The victim was shot twice. Defendant gave inconsistent accounts of what the victim took with her. The victim wore her glasses and took her colostomy bags whenever she went anywhere, yet these were left at her house, along with her purse. Defendant was known to have had the type of gun that could have shot the bullet that killed the victim, although the gun was never found. There were indications that the couple were not getting along. Before the body was discovered, defendant told a friend he thought his wife had been shot and was in Paradise. The victim was shot, and her body was found near Paradise. Finally, a few years after the victim was killed, defendant told someone he could make them disappear the same way he did his wife.
Given this evidence, and the trial court's willingness to sustain defendant's objections and admonish the jury when the prosecutor crossed the line, the prosecutor's conduct was neither egregious nor pervasive enough to warrant reversal.
Victim Restitution Award
The trial court ordered restitution to the victim's immediate family in the amount of $3,119.36. No objection was made to this order. The probation officer's report indicated the Victim Compensation and Government Claims Board paid the funeral costs in the amount of $3,119.36.
Defendant argues the case should be remanded to the trial court to amend the order to show the restitution amount owed to the Restitution Fund. Defendant has forfeited this objection, if in fact he has standing to raise the issue at all, by failing to object at the sentencing hearing. (People v. Gibson (1994) 27 Cal.App.4th 1466, 1468 [failure to object to a restitution fine on procedural grounds waives the objection].)
In any event, Penal Code section 2085.5, subdivision (b) provides that any amount collected from defendant will be paid to the California Victim Compensation and Government Claims Board, then either paid directly to the victim or paid to the Restitution Fund to the extent the victim has received assistance pursuant to the program. Thus, if the family has received payment from the fund, the amount will go to reimburse the fund.
The judgment is affirmed.
We concur: RAYE , P. J. BUTZ , J.