(Super. Ct. No. CM026403)
The opinion of the court was delivered by: Blease, J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.