Filed 6/18/13 P. v. Enciso CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FIFTH APPELLATE DISTRICT


THE PEOPLE,
                                                                                           F064244
         Plaintiff and Respondent,
                                                                            (Super. Ct. No. VCF238907A)
                   v.

MIGUEL ANGEL ENCISO,                                                                     OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Tulare County. Gerald F.
Sevier, Judge.

         Charles M. Bonneau, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Deputy
Attorney General, for Plaintiff and Respondent.
                                                        -ooOoo-
                                                INTRODUCTION
         Following his conviction for first degree murder, Miguel Angel Enciso appeals on
the following bases: First, defendant contends the evidence is insufficient to support first
degree murder based upon lying in wait because there is a lack of evidence of watchful
waiting or surprise attack. Second, defendant asserts the trial court violated the hearsay
rule and defendant‘s right to confrontation by permitting evidence that his girlfriend had
a tattoo bearing his name, accompanied by angel wings, because the tattoo amounts to
nonverbal conduct intended as a substitute for verbal expression. Third, defendant
maintains the prosecutor committed misconduct by referencing the tattoo and calling
defendant the ―angel of death‖ because the comments amounted to improper denigration.
Fourth, defendant contends the prosecutor committed repeated instances of misconduct
during cross-examination of defendant, that the admonishments given were inadequate,
and that his motion for mistrial should have been granted on this basis. Lastly, defendant
asserts that because there is no jury instruction regarding self-defense and its applicability
to lying-in-wait murder, the jury instructions given, coupled with misstatements of the
law by the prosecutor during closing argument, amount to instructional error as the jury
was led to believe complete and imperfect self-defense were unavailable to defendant.
We disagree with defendant and affirm the judgment in its entirety.
                                    PROCEDURAL HISTORY
         In an information1 filed December 15, 2010, the Tulare County District Attorney
charged defendant with one count of murder. (Pen. Code,2 § 187, subd. (a).) It was
further alleged the murder was committed during the commission of a burglary and that
defendant intentionally killed the victim while lying-in-wait. (§ 190.2. subd. (a)(15),
(17).)
         On February 22, 2011, defendant pled not guilty and denied the allegations.
         Before trial, the People‘s motion to amend the information to strike the lying-in-
wait special-circumstance allegation was granted. (§ 190.2, subd. (a)(15).)


         1Codefendant   Flora Mayra Perez was also charged, but was to be tried separately after
the trial court granted the People‘s severance motion on March 10, 2011.
         2All   further statutory references are to the Penal Code unless otherwise indicated.


                                                   2.
         Following a jury trial, defendant was found guilty of first degree murder. The jury
found the felony-murder special allegation not true. (§ 190.2, subd. (a)(17).)
         Thereafter, on January 11, 2012, defendant was sentenced to an indeterminate
term of 25 years to life.
         A timely notice of appeal was filed January 13, 2012.
                                           FACTS
         On June 29, 2010, farm workers in the area of Manning and Hill Avenues in
Fresno County discovered a burned body in an orchard. Near the body, officers and
investigators observed tire and shoe tracks, a gas cap, and a gas can.
         A bar code found on the gas can led investigators to the Dinuba Wal-Mart. With
the assistance of Wal-Mart personnel, the bar code was then matched to a specific
transaction. More particularly, the gas can and other items were purchased at 11:01 p.m.
on June 28, 2010, for a total of $91.82; the items were paid for with a $100 bill. Other
items purchased included latex gloves, trash bags, Clorox wipes, Febreze, and towels.
         Wal-Mart video footage associated with the transaction identified two suspects, a
man and a woman. The two appear in seven video clips taken while they shopped in the
store. The suspects were later identified as defendant and his girlfriend Flora Mayra
Perez.
         Meanwhile, Estevan Dominguez became concerned about the whereabouts of his
nephew, Jose Dominguez. Jose had been at Estevan‘s home until about 10:00 p.m. on
June 28, 2010. The two planned to meet at 5:00 a.m. the next morning so that Jose could
work with him in the fields. Before leaving his uncle‘s home, Jose asked to borrow $300.
Estevan gave Jose five $100 bills.
         Jose did not show the next morning. Estevan tried calling Jose, but there was no
answer. After work, Estevan drove to Jose‘s home, a trailer located in Orosi. The doors
were open and no one was home. Estevan noticed that two of Jose‘s vehicles were
missing, including the Nissan Frontier Jose had been driving the night before and a
Nissan Sentra. Estevan returned to his own home and called Jose‘s brother.

                                              3.
       Investigators learned of the missing person report on the afternoon of July 1, 2010.
The picture of the missing person resembled that of the individual found in the orchard.
Estevan and Lucio Dominguez identified the body as that of Jose Dominguez.
Subsequent DNA analysis confirmed the body was that of Jose Dominguez.
       Investigators following up on the missing person report responded to Jose‘s
residence. The trailer was unlocked and no one was present. They found a latex glove in
a bedroom, a bag containing plastic 55-gallon trash bags was found on a couch in the
living room, and an orange extension cord in another bedroom. They found coins on the
floor in the hallway, but no weapons or ammunition were found. Items belonging to
Perez were also found, including a prepaid phone card, prescription medication, mail, and
photographs. There were no signs of forced entry, nor did it appear anyone had entered
the trailer through a window.
       On July 2, 2010, at about 12:15 a.m., investigators went to Perez‘s home in
Goshen and searched it. Perez and her two minor children shared the home with
defendant. The investigators found a number of items that matched the items purchased
at the Dinuba Wal-Mart, including Clorox wipes, Febreze, and towels. They also found a
MasterCard credit card and a Bank of the West check card in the victim‘s name, the title
to a 1994 Honda in the names of Perez and the victim, and a pair of sunglasses. Drying
on the fence outside were articles of clothing similar to the clothing worn by defendant
and Perez while shopping at the Dinuba Wal-Mart a few days earlier.
       Jose‘s Nissan Sentra was found in Visalia on July 7, 2010. Tire tread impressions
found in the orchard were consistent with the tire pattern on Jose‘s Sentra. Additionally,
Perez‘s fingerprint was recovered from the gas cap located in the orchard. Video footage
was obtained from Bank of the West in Visalia. It showed Perez wearing sunglasses and
utilizing Jose‘s check card to withdraw $180 from his account on June 30, 2010, at 10:07
a.m.
       Jose Bacilio Leon and Claudia Bernal lived together in Visalia; both knew
defendant as ―Carlos.‖ Leon received several text messages from defendant beginning

                                            4.
June 29, 2010, asking if he would be interested in buying a car for $800. On July 1,
2010, defendant, accompanied by a woman, brought a white Nissan Sentra to the
Leon/Bernal home. Although Leon told defendant he could not afford to buy the car,
defendant asked to leave the car there because he had nowhere to park it as he was in the
process of moving. The Nissan Frontier owned by Jose was also later located in Visalia,
on July 14, 2010. Maria Villareal testified that defendant, known to her as ―Carlos,‖
brought the truck to her home in July 2010 so that her husband could take care of it.
       An autopsy revealed that Jose was dead prior to being set on fire, but a cause of
death could not be determined. No drugs or alcohol were detected. There was no disease
or defect, nor were there any obvious signs of injury; the deceased had been otherwise
healthy. The pathologist later learned that Jose had been choked to death. He testified
his autopsy findings were consistent with an individual who had been choked by an arm
around the neck, and thus, in his opinion, the cause of Jose‘s death was homicidal
asphyxia.
Defendant’s Testimony
       Direct Examination
       Defendant recalled being arrested on a Thursday night and being taken to Fresno
to be interviewed by detectives. He admitted lying to the detectives initially about his
activities earlier that week, but did eventually tell the truth.
       One morning Perez woke him inquiring whether they had parked the car on the
street the night before. Defendant confirmed they had, but Perez indicated the car was
missing.3 Also missing was Perez‘s purse that had been left inside the car; the purse
contained a sum of cash as defendant had been paid a few days prior. Jose was Perez‘s
ex-husband. Perez and defendant assumed Jose had taken the vehicle. Although
defendant told Perez to call the police to report the car stolen, Perez indicated that title to

       3The missing vehicle was found on June 28, 2010, at about 2:00 a.m. in Lindsay by the
California Highway Patrol. The vehicle had been burned and was a total loss.


                                               5.
the car was in both her name and Jose‘s name and thus it would not be considered stolen
by Jose. Instead, because she was angry, Perez wanted to go to Jose‘s to beat him up and
get the car. The vehicle was their only form of transportation and defendant used it to get
to work. Defendant elected to accompany Perez to make sure she was okay and to back
her up. He thought they would find the car, get it back, and then leave. Defendant
admitted that when he told the detectives that he was going to fight Jose, he was telling
the truth.
       Defendant decided to accompany Perez because he knew Jose to be violent. Perez
told defendant that Jose frequently hit her, and he knew Jose had been jailed for domestic
violence. Two to three weeks before this incident, Jose had assaulted defendant with a
steel bar, after having crashed his own car into Perez‘s friend‘s car. Jose also broke the
rear window of defendant‘s Mustang.4
       After Perez could not find a ride to Jose‘s, defendant called his friend ―Funda‖ to
give them a ride. When they arrived at Jose‘s trailer, Perez‘s car was not there. While
defendant waited outside, Perez went inside the trailer. She returned to advise defendant
that Jose was not home. They waited in the trailer, then in a nearby orange orchard when
it became too hot. As it was getting dark, Perez and defendant returned to the trailer.
They did not turn on any lights.
       Defendant knew that things with Jose were ―gonna probably get aggressive‖ in
light of the previous incident between them. He was nervous and scared. Perez was
searching Jose‘s trailer for his gun, but she did not find a gun. Defendant found some
knives in the kitchen and hid them. Defendant testified he did not leave even after
learning that Jose might have a gun because he and Perez did not have a ride. They also
needed the car back so that defendant could get to work in Fresno the following day.

       4Ruben    Marroquin, a high school classmate and former boyfriend of Perez, testified
about two incidents involving Jose. In the first, Jose broke the rear window of Marroquin‘s car
and, in the second incident, he used his own car to damage Marroquin‘s vehicle. Marroquin filed
a police report about the latter incident, but not the former.


                                              6.
       When Jose came home, he was not driving Perez‘s car. He was acting suspicious
however, and defendant thought he had a gun. Jose entered his trailer through the sliding
glass door. The lights were off when Jose stepped into the bedroom, and he turned on the
light. Defendant and Perez were there. Jose struck defendant first, saying,
―‗Motherfucker, my uncle‘s coming.‘‖ The two began fighting and Jose ran toward the
hall. Defendant thought Jose was going for the gun, so he chased Jose. They continued
to fight in the hallway and defendant got a hold of Jose from behind. Defendant
restrained Jose to keep him from getting a weapon; he did not want to kill Jose.
       Although he had attended a few weeks of martial arts training three years earlier,
defendant never earned a belt. Rather, his reference to ―training skills‖ when he was
speaking with detectives was in reference to the choke holds he observed while watching
Friday night ―UFC‖ fights on television. After making sure Jose could not move, he
noticed blood coming from Jose‘s mouth. He thought Jose had passed out. Defendant
did not remember telling detectives that Jose was not breathing while Perez went through
his pockets. He recalls talking with Perez about taking Jose‘s stuff after Jose was lying
on the floor. They took the money from Jose because their money was stolen when
Perez‘s car and purse were taken. There were other items of value in the trailer,5 but they
did not take those items.
       Once defendant realized Jose was dead, he got scared and ―freaked out.‖
Defendant wanted to leave the body there, but Perez wanted to burn it. At Wal-Mart,
Perez selected and picked up most of the items purchased.
       Although he told Perez he had killed people before, defendant had never killed
anyone. He wanted to look ―macho‖ and was trying to impress her.




       5A television, DJ equipment and stereo components, as well as a number of CD‘s were
undisturbed in Jose‘s trailer.


                                             7.
       Cross-Examination
       Defendant admitting telling detectives that he felt nothing after killing Jose. He
denied that he was putting on an act for the jury.
       Defendant‘s relationship with Perez moved fast; at the time of this incident, the
two had been dating about a month. The day prior to the incident, Perez had defendant‘s
name and angel wings tattooed on her back. Defendant spoke about going back to
Mexico and Perez wanted to go with him. He did not remember Perez telling him that
she could not go because Jose had custody rights regarding their two children.
       While defendant was aware Perez had an outstanding warrant, she did not tell him
she had filed a false police report against Jose. Also, Perez did not reveal she was being
prosecuted for filing a false report. He did not know Perez had been convicted of
stealing. Nonetheless, defendant did not believe Perez to be manipulative or a liar.
       Perez was mad and wanted to beat up Jose because she assumed he had taken the
car.6 Defendant wanted Jose to stop ―messing‖ with them, and he was prepared to follow
Perez‘s plan to beat up Jose. He assumed the missing car would be at Jose‘s home, and
they would get the car and beat up the victim so that he would leave them alone. They
just wanted the car back. If he had to fight Jose, he would do so. However, defendant
also claimed he was present to protect Perez, not to beat up Jose.
       Defendant arranged to get a ride to Jose‘s from his friend Jose Ponce Ochoa,7 or
―Funda.‖ He told Ochoa he needed a ride to get his car. Defendant does not remember
telling Ochoa that his car had broken down and that he needed a ride to Perez‘s aunt‘s

       6There were no   keys to Perez‘s car; it could be started with ―anything.‖
       7Ochoa testified   that he knew defendant as ―Carlos.‖ He recalls giving defendant a ride
to Orosi along with a woman, but did not recall the date. It was in the afternoon; Ochoa did not
recall telling investigators it was about 4:00 p.m. Defendant told Ochoa that he needed a ride
because his car had broken down but had since been fixed and needed to be picked up from
Perez‘s aunt‘s house. Both defendant and the woman were calm on the drive from Goshen to
Orosi. He stopped once at a store and the woman got out, went into the store, and returned with
a purchase. Once in Orosi, defendant didn‘t want to be dropped off right at a house; rather,
Ochoa dropped the two off at the intersection of Avenue 419 and Ione Road.


                                                8.
house. He asked Ochoa to drop them off at the corner, rather than in front of the house,
because Ochoa‘s truck had a faulty transmission. Defendant denied that his true motive
was to sneak up on Jose. Despite claiming Ochoa‘s truck ―barely‖ made the trip from
Goshen to Orosi due to its faulty transmission, defendant acknowledged the truck drove
well enough to stop at a store on the way.
       Once defendant and Perez arrived at Jose‘s trailer, they waited because he was not
home. Defendant acknowledged he had no right to be in Jose‘s home. Although it was
dark when Jose arrived home, defendant denied he and Perez left the lights off to surprise
him. He claimed it was light enough inside the trailer because the neighbor‘s lights were
on. Defendant does not remember telling detectives that Jose was surprised that
defendant and Perez were in his home.
       Defendant does not know whether Jose saw Perez when he arrived home, but he
did see defendant. Jose did not seem afraid of him; defendant denied that Jose tried to
run from him. Because he was afraid Jose would go for a gun, defendant choked Jose
from behind. He was not thinking about squeezing as hard as he could, nor did he pay
attention to whether Jose began shaking. When Jose passed out, defendant continued to
choke him. When he spoke with detectives, defendant estimated he continued to choke
Jose for five minutes, but he was not actually keeping track of time. Defendant used a
choke hold he had seen used on television. He put Jose‘s neck inside the triangle created
by his right hand on his left biceps while applying pressure with the palm of his left hand
against Jose‘s head. He admitted that he did not tell detectives that he performed the
choke hold to keep Jose from getting a gun.
       After choking Jose, defendant tied him up because he thought Jose was still alive.
He did not know what to do after realizing Jose was dead. He never called 911. He
followed Perez‘s lead because he did not know what else to do. Defendant denied trying
to make it look as if Jose had left town.
       At Wal-Mart, Perez did most of the shopping because cleaning up was her idea.
Defendant admitted telling detectives that they were both suggesting items to buy while

                                              9.
at Wal-Mart, but indicated that Perez selected most of the items. Defendant denied
buying the products to make it smell better at Jose‘s residence; rather, he stated he and
Perez had planned to buy cleaning supplies even before Perez‘s car was taken by Jose.
They had not planned to buy gloves or gas cans. Defendant did not recall that the first
thing he put in the cart at Wal-Mart were the gas cans. They purchased the gas cans
because Perez wanted to burn Jose‘s body. He did not recall telling detectives that he did
most of the burning of the body; Perez did most of it. Neither did defendant remember
telling detectives that both he and Perez used gloves, because only Perez did so to clean
up the blood and fingerprints.
       With regard to the Wal-Mart purchase, defendant explained that when he told the
detectives they paid with ―his money,‖ he did not mean Jose‘s money. Instead, he meant
the money that was found on Jose but that actually belonged to Perez and himself—the
money that had been in Perez‘s purse inside the missing car.8
       Defendant and Perez took two of Jose‘s vehicles because they did not have a ride.
He tried to sell both of the vehicles so that they could buy another because neither of
Jose‘s vehicles worked well. Defendant drove Perez to the ATM on June 30, 2010, so
that she could withdraw money from Jose‘s account. He denied being disappointed that
there was only $180 available in the account. Defendant denied planning to kill Jose to
obtain money so that he and Perez could go to Mexico.
       When defendant told the detectives that Jose‘s killing did not bother him and that
he felt nothing, he meant that he felt nothing for Jose because Jose should not have taken
Perez‘s car. Later he said he felt nothing because he was fearful. While it appears on the
Wal-Mart video footage that he is smiling and having fun, defendant testified he was not
calm. He was shaking and helping Perez get the items she wanted. He was only


       8Defendant  testified that Perez‘s driver‘s license and the children‘s social security cards
were found in Jose‘s wallet and that those items had also been inside Perez‘s purse when the car
went missing.


                                                10.
pretending to be normal. Defendant stated he felt like everyone was staring at him as if
they knew what had happened, so he told himself to act normal and calm.
       Although detectives provided defendant with an opportunity to tell his side of the
story, he just answered the questions he was asked. This is why he did not tell detectives
that Jose had previously assaulted him.
                                      DISCUSSION
I.     There Was Sufficient Evidence in Support of a Lying-in-Wait Theory
       Defendant claims there is insufficient evidence to support a first degree murder
conviction based upon a lying-in-wait theory because the only evidence concerning entry
into the victim‘s home came from defendant‘s statements that he and Perez were there to
confront the victim about getting Perez‘s car back. Defendant contends the evidence
does not establish a period of watchful waiting to harm or attack the victim, as is
required, and thus, his conviction must be reversed.
       When reviewing a sufficiency of the evidence claim, we determine whether, in the
light most favorable to the prosecution, any rational trier of fact could have found the
defendant guilty beyond a reasonable doubt. Examination of the record focuses on
whether the evidence is reasonable, credible, and of solid value. We will presume the
existence of every fact the trier could reasonably deduce from the evidence presented in
support of the judgment. (People v. Moon (2005) 37 Cal.4th 1, 22, citing People v.
Catlin (2001) 26 Cal.4th 81, 139, and Jackson v. Virginia (1979) 443 U.S. 307, 319.)
       Lying-in-wait murder requires only a wanton and reckless intent to inflict injury
likely to cause death, whereas lying-in-wait special circumstance requires intent to kill.
(People v. Moon, supra, 37 Cal.4th at p. 22; see also People v. Streeter (2012) 54 Cal.4th
205, 246.) Here, because the People dismissed the lying-in-wait special-circumstance
allegation, only a wanton and reckless intent to inflict injury likely to cause death was
required.
       Lying-in-wait murder requires three elements be proven: (1) concealment of
purpose; (2) a substantial period of watching and waiting for an opportune time to act;
                                             11.
and (3) immediately thereafter, a surprise attack on an unsuspecting victim from an
advantageous position. (People v. Streeter, supra, 54 Cal.4th at pp. 246-247; People v.
Moon, supra, 37 Cal.4th at p. 22.) The purpose of the watching and waiting element is to
distinguish those cases in which a defendant acts insidiously from those in which he or
she acts out of rash impulse. (See People v. Moon, supra, at p. 24.)
      Regarding lying in wait, the jury was instructed with CALCRIM No. 521 as
follows:

            ―If you decide that defendant committed murder other than felony
      murder, you must decide whether it is murder of the first or second degree.
      Felony murder is murder of the first degree. [¶] … [¶]

             ―The defendant has been prosecuted for first degree murder under
      two theories:

            ―One, the murder was committed by lying in wait; or two, felony
      murder.

             ―Each theory of first degree murder has different requirements, and I
      will instruct you on each.

              ―You may not find the defendant guilty of first degree murder unless
      all of you agree the People have proved that the defendant committed
      murder, but all of you need not agree on the same theory.

             ―[L]ying in wait.

             ―The defendant is guilty of first degree murder if the People have
      proved that the defendant murdered while lying in wait or immediately
      thereafter.

             ―The defendant murdered by lying in wait if:

             ―One, he concealed his purpose from the person killed;

             ―Two, he waited and watched for an opportunity to act;

            ―And, three, then from a position of advantage, he intended to and
      did make a surprise attack on the person killed.

             ―The lying in wait does not need to continue for any particular
      period of time, but its duration must be substantial enough to show a state
      of mind equivalent to deliberation or premeditation.…‖

                                           12.
       We find sufficient evidence to establish the existence of each element of the lying-
in-wait theory, including the second and third elements challenged by defendant.
Defendant argues he and Perez only intended to go to Jose‘s trailer in order to get Perez‘s
vehicle, not to attack Jose. Therefore, he reasons, there is insufficient evidence of a
period of watchful waiting to harm or attack Jose. We disagree because defendant‘s own
testimony revealed that his purpose in accompanying Perez to Jose‘s trailer included
fighting or ―beat[ing] up‖ Jose. Defendant made similar statements9 to the detectives and
his July 2, 2010, interview with them was played for the jury. Additionally, he and Perez
waited about six hours for Jose to return home. Watchful waiting can also be inferred
from defendant‘s testimony that he saw Jose arrive home in a different vehicle than
expected and that when Jose exited that vehicle he was ―acting like suspicious, like
walking … if he had done something.‖
       Defendant further argues there is insufficient evidence of ―a surprise attack on an
unsuspecting victim from a position of advantage‖ because his and Perez‘s purpose in
entering Jose‘s trailer was to confront him, ―but not to attack him by surprise or
otherwise.‖ Again, however, defendant‘s own testimony supports a finding of sufficient
evidence of surprise. Perez and defendant waited in the trailer for hours and did not turn
on any lights. Defendant testified that he and Perez waited in a bedroom. When Jose
returned home and turned on the light in the room, he saw them standing there.
Additionally, during the interview with detectives, defendant indicated Jose did not know
he and Perez were inside the trailer and that they had surprised him. Beyond defendant‘s
statements and testimony, there is evidence of surprise in the testimony offered by
Ochoa. Ochoa drove defendant and Perez from their home in Goshen to Orosi at about


       9The transcript of the interview reveals that defendant stated: ―So, I went to the trailer
and … yeah, so I got into, into a fight with him. Uh, but it was like a hand to hand fight.‖ He
stated Perez wanted to beat Jose and defendant agreed to go with her to do so. He was planning
to fight with Jose. Defendant knew, while waiting for Jose, there would be some type of
confrontation.


                                               13.
4:00 p.m. in the afternoon. Defendant told Ochoa that his car had broken down in Orosi,
but had since been fixed and needed to be picked up at Perez‘s aunt‘s house.
Nevertheless, Ochoa did not drop off defendant and Perez at her aunt‘s house or at any
particular house. Rather, defendant asked Ochoa to drop them off at the corner of Ione
Street and Avenue 419. The jury could reasonably infer from this evidence that
defendant and Perez intended to surprise Jose in his own home, attacking from a position
of advantage.
       Defendant‘s reliance upon People v. Lewis (2008) 43 Cal.4th 415 is misplaced
because it is factually distinguishable. In Lewis, the defendant and others engaged in a
crime spree wherein motorists were approached and their vehicles or possessions taken
by force. Five individuals were killed. (Id. at pp. 432-440.) The defendant challenged
the sufficiency of the evidence regarding a lying-in-wait special circumstance as it related
to the murder of victim Jose Avina. The California Supreme Court determined that
because the defendant‘s statement contradicted a lying-in-wait theory, there was no direct
evidence admissible against the defendant that pertained to the circumstances leading up
to the collision with Avina‘s truck. (Id. at pp. 507-508.) Eyewitness statements only
recounted events after the shooting. The property taken from Avina‘s truck and linked to
the defendant was not helpful because there was no admissible evidence that the taking of
the property was any more than an afterthought. Finally, the physical evidence shed no
light on what occurred prior to the confrontation with Avina. (Id. at p. 508.) The only
statement that supported the necessary watching and waiting was a codefendant‘s
statement—one that was inadmissible against the defendant. (Id. at pp. 508-509.) Here,
as discussed above, unlike Lewis, defendant‘s own statements and testimony supported
the lying-in-wait theory. Moreover, unlike Lewis, other evidence indicated defendant
waited for a period of about six hours for Jose to return home as Ochoa testified he
dropped off defendant and Perez in Orosi around 4:00 p.m. and Jose‘s uncle testified that
Jose left his home about 10:00 p.m. on that date.


                                            14.
       Defendant also relies on People v. Carter (2005) 36 Cal.4th 1215 in support of his
argument that there was insufficient evidence of watchful waiting for a surprise attack
from a position of advantage. This case, too, is factually distinguishable and of no help
to defendant. Carter engaged in a crime spree, targeting women who had previously
spurned his advances. His crimes included murder, sexual assault and robbery. (Id. at
pp. 1221-1237.) On appeal, Carter challenged the sufficiency of the evidence regarding
the special circumstance of lying in wait for the murder of Janette Cullins. (Id. at pp.
1259-1262.) At trial, the prosecution had relied upon the presence of wood chips near a
door that had been forced open in Cullins‘s apartment and the presence of Cullins‘s car
parked with its engine running for several minutes that night to establish the special
circumstance of lying in wait. (Id. at p. 1261.) The California Supreme Court
determined that

       ―[t]he wood chip evidence tended to show forced entry, not that the entry
       occurred prior to Cullins‘s arrival. Cullins may have arrived at her
       apartment before defendant did, and he may have forced his way in while
       she was undressing elsewhere in the apartment. Under the latter scenario,
       the lying-in-wait special circumstance would rely upon the neighbor who
       heard the car engine running, and the time of that event cannot be
       pinpointed. Moreover, the car idling, besides occurring at an uncertain
       time, does not strongly imply that defendant was waiting in the car to attack
       Cullins; if defendant had planned a home invasion when Cullins arrived
       home, he likely would have turned off the engine so as not to attract
       attention. We therefore set aside the special circumstance of lying in wait.‖
       (Id. at pp. 1261-1262.)
       The facts in Carter are easily distinguishable from the facts of this case.
Defendant‘s presence in the trailer before Jose arrived is undisputed. This fact was
established not by speculative inferences but by direct evidence. As already explained,
that evidence comes in the form of defendant‘s own testimony, his statements to
detectives, and other testimony. Defendant testified he and Perez waited in a bedroom of
Jose‘s trailer with the lights off. Jose was not aware of their presence until he turned on
the light and saw defendant and Perez standing in the room. Defendant told detectives
that Jose did not know he and Perez were inside the trailer and that Jose was surprised.

                                             15.
This evidence is bolstered by the testimony of Ochoa, who indicated that defendant did
not want to be dropped off in front of any particular house; rather, he asked to be let out
at an intersection.
       In sum, we are not persuaded by defendant‘s arguments. Defendant himself
testified he and Perez intended to assault Jose, and they waited for a period of six hours in
Jose‘s empty trailer, never turning on the lights as dark descended. The trier of fact could
reasonably deduce from this evidence that defendant concealed his purpose from Jose,
waited and watched for an opportunity to act, and then, from a position of advantage—a
dark bedroom in an empty home at night—surprised Jose before choking him to death.
II.    Admission of Evidence Regarding Perez’s Tattoo Was Not Error
       Defendant contends the trial court erred in admitting evidence of Perez‘s tattoo
because the tattoo amounts to hearsay.
       During testimony by lead detective Robert Buenrostro, the prosecutor asked
whether the detective had noticed any tattoos on Perez at the time of her arrest. Defense
counsel objected based upon relevance and the court called for a sidebar. Outside the
presence of the jury, the prosecutor explained that Perez had a tattoo on her back bearing
defendant‘s name and that the two had been dating for only a month. He contended the
tattoo showed how committed Perez and defendant were to one another, how madly in
love Perez was, and how defendant needed to meet her expectations. Defense counsel
responded that the tattoo ―[s]hows her actions not his actions,‖ and continued to object
based upon relevancy. The trial court then stated the tattoo had ―arguable relevance.‖
Defense counsel again stated the tattoo was ―evidence of her actions, though, not his
actions.‖ The trial court indicated it understood counsel‘s argument, but overruled the
objection. Following a brief recess, the detective testified that at the time of her arrest,




                                              16.
Perez had a tattoo with the name ―Miguel Angel‖ surrounded by angel wings on her
back.10
       On appeal, defendant maintains the trial court should have excluded evidence of
Perez‘s tattoo on hearsay grounds. He argues the tattoo constitutes nonverbal conduct
intended as a substitute for verbal expression. Because defendant had no opportunity to
cross-examine Perez, he contends his constitutional rights pursuant to the Sixth
Amendment to the United States Constitution have been violated.
       Hearsay 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 not admissible unless it qualifies under some
exception to the hearsay rule. (Id., at subd. (b).) For purposes of the hearsay rule, a
―statement‖ is defined as ―oral or written verbal expression‖ or ―nonverbal conduct …
intended … as a substitute for oral or written verbal expression.‖ (Evid. Code, § 225.)
       Although we assume tattoos might constitute hearsay, depending on what they are
offered to prove (People v. Lewis, supra, 43 Cal.4th at pp. 496-498), here, defense
counsel‘s objections were based on relevancy and, later, a lack of foundation, rather than
hearsay. ―‗It is, of course, ―the general rule‖‘ —to which we find no exception here—
‗―that questions relating to the admissibility of evidence will not be reviewed on appeal in
the absence of a specific and timely objection in the trial court on the ground sought to be
urged on appeal.‖‘‖ (People v. Alvarez (1996) 14 Cal.4th 155, 186; see also People v.
Chaney (2007) 148 Cal.App.4th 772, 776-780.) Here, defendant has forfeited this claim
by failing to make the necessary hearsay objection in the trial court. (Evid. Code, § 353.)
       Even if his objections were construed to include a hearsay objection, those
objections did not preserve a constitutional claim that admission of the testimony


       10When   a photograph of the tattoo on Perez‘s back was identified and subsequently
admitted during cross-examination of defendant, defense counsel objected to its admission based
upon relevancy and a lack of foundation.


                                              17.
regarding Perez‘s tattoo violated defendant‘s right to confront witnesses under the rule of
Crawford v. Washington (2004) 541 U.S. 36, 68. (People v. Chaney, supra, 148
Cal.App.4th at pp. 777-778 [kidnapping defendant‘s objection to officer‘s testimony
concerning witness‘s statements at scene of crime, emphasizing his inability to cross-
examine witness, was based on hearsay, and thus did not preserve constitutional claim
that admission of witness‘s statement violated defendant‘s right to confront witnesses
under rule of Crawford v. Washington]; People v. Waidla (2000) 22 Cal.4th 690, 726, fn.
8 [a ―‗bare reference‘‖ to an inability to cross-examine is insufficient to satisfy the
requirement of a timely and specific objection on constitutional grounds].)
       In People v. Zamudio (2008) 43 Cal.4th 327, 353, the court explained that

       ―a constitutional claim is not cognizable on appeal unless (1) it ‗is of a kind
       (e.g., failure to instruct sua sponte; erroneous instruction affecting
       defendant‘s substantial rights) that required no trial court action by the
       defendant to preserve it, or (2) the new arguments do not invoke facts or
       legal standards different from those the trial court itself was asked to apply,
       but merely assert that the trial court‘s act or omission, insofar as wrong for
       the reasons actually presented to that court, had the additional legal
       consequence of violating the Constitution.‘ [Citation.]‖ (Italics omitted.)
       Defendant‘s constitutional claim does not fall under the first exception. As for the
second exception, a claim under Crawford does involve facts or legal standards different
from those defendant asked the trial court to apply on the basis of a relevancy or lack of
foundation objection. Defendant did not offer a constitutional basis for his objection.
Thus, defendant‘s claim has been forfeited for purposes of appellate review.
III.   Prosecutorial Misconduct Regarding “Angel of Death” References
       Next, defendant contends the prosecutor committed prejudicial misconduct by
arguing to the jury that Perez‘s tattoo ―symbolized … defendant as the ‗angel of death.‘‖
He asserts his objection to the admission of this evidence should have been sustained and
that the prosecutor‘s argument amounted to denigration and invited speculation regarding
the lying-in-wait theory and express and implied malice. We disagree.



                                             18.
              ―‗The applicable federal and state standards regarding prosecutorial
       misconduct are well established. ―‗A prosecutor‘s … intemperate behavior
       violates the federal Constitution when it comprises a pattern of conduct so
       ―egregious that it infects the trial with such unfairness as to make the
       conviction a denial of due process.‖‘‖ [Citations.] Conduct by a prosecutor
       that does not render a criminal trial fundamentally unfair is prosecutorial
       misconduct under state law only if it involves ―‗―the use of deceptive or
       reprehensible methods to attempt to persuade either the court or the
       jury.‖‘‖‘ [Citation.]‖ (People v. Navarette (2003) 30 Cal.4th 458, 506.)
Prosecutorial misconduct requires reversal only if it results in prejudice to the defendant.
(People v. Fields (1983) 35 Cal.3d 329, 363.) Where it infringes upon the defendant‘s
constitutional rights, reversal is required unless the reviewing court determines beyond a
reasonable doubt that the misconduct did not affect the jury‘s verdict. (People v. Harris
(1989) 47 Cal.3d 1047, 1083.) Prosecutorial misconduct that violates only state law is
cause for reversal when it is reasonably probable that a result more favorable to the
defendant would have occurred had the prosecutor refrained from the objectionable
conduct. (People v. Barnett (1998) 17 Cal.4th 1044, 1133.)
       The issue of prosecutorial misconduct is forfeited on appeal if not preserved in the
trial court by timely objection and request for admonition. (People v. Cunningham
(2001) 25 Cal.4th 926, 1000.) If an objection has not been made, ―‗―the point is
reviewable only if an admonition would not have cured the harm caused by the
misconduct‖‘‖ (id. at pp. 1000-1001) or if an objection would have been futile. (People
v. Hill (1998) 17 Cal.4th 800, 820-821, overruled on another ground in Price v. Superior
Court (2001) 25 Cal.4th 1046, 1069, fn. 13; see also People v. Pearson (2013) 56 Cal.4th
393, 425.)
       Here, during closing argument, the prosecutor argued as follows:

              ―[PROSECUTOR]: … Got this relationship; they‘re living together.
       They‘re getting tattoos with each other‘s names on them. He‘s wanting to
       go to Mexico. He‘s wanting to go with her, you know, but there‘s a third
       wheel. There was a third wheel.

               ―So she gets her tattoo shortly before the crime, Miguel Angel. Isn‘t
       that kind of ironic? You got the angel wings. You got Miguel Angel here.

                                             19.
       He turned out to be her angel of death. He turned out to be her angel of
       death, and they talked about it before. They talked about killing before,
       killing, people, before they go over to his house. You know, this is a short
       relationship, a month, but within that month, he‘s bragging to her how he‘s
       killed before.‖
Subsequently, the prosecutor stated: ―So we have this angel of death, and look at him,
look at him before the crime and look at him after the crime.‖ These comments did not
elicit objections. Shortly thereafter, the prosecutor referred to defendant‘s purported
calm: ―How is he acting on that ride over there? Calm. Anna Reyes, the [Wal-Mart]
cashier, how is he acting at that checkout stand? Calm. [¶] This is a man without a
conscience.‖ Neither did this particular comment elicit an objection.
       Later, speaking of the Wal-Mart purchases that were found in the Perez residence
at the time of the arrests, the prosecutor argued:

               ―[PROSECUTOR]: These items are found at the residence, and it‘s
       sadistic. The Fabreze [sic], you know, that they purchased at the Wal-Mart
       to get rid of any stench after they killed the victim in his own residence, the
       Clorox wipes in that truck here. We got these in the bedroom, and these
       babies of the victim sleeping on the bed, you know, the black towel. What
       is that? That‘s sick. That‘s sick. It‘s a man without a soul.

              ―[DEFENSE COUNSEL]: Your Honor, I‘m gonna object. Can we
       have a side-bar, please?

              ―THE COURT: Yes.

              ―(Whereupon, the following proceedings were had at side-bar,
       outside the presence of the jury, to wit:)

              ―[DEFENSE COUNSEL]: That‘s misconduct to denigrate the
       defendant by calling—saying things like he doesn‘t have a soul or in the
       case of People versus Herring which is a 1993 case, 20 Cal.App.4th 1066 at
       1077[]. In that case—[¶] … [¶] … Used the same thing, they called a
       person a parasite, defendant I‘m talking about. He called him a parasite,
       other name calling, stuff like that.

              ―So far, he‘s used him—called him angel of death, called him other
       names. It‘s not appropriate. It‘s denigration of defendant, misconduct. I‘d
       object on those grounds.


                                             20.
              ―THE COURT: What remedy do you seek?

              ―[DEFENSE COUNSEL]: What remedy do I seek, Judge?

              ―THE COURT: Yes. What—you‘re objecting.

               ―[DEFENSE COUNSEL]: Sustain the objection and tell him not to use
       that kind of pejorative language towards the defendant.

              ―THE COURT: Okay.‖
The trial court overruled defense counsel‘s objection, stating ―[t]he angel of death is—it‘s
proper argument. He‘s referring to something within—within the evidence. [¶] Counsel
is allowed some latitude. I agree that he‘s not allowed to denigrate the defendant. I don‘t
find the angel of death to be a denigration.‖ Defense counsel then expressly stated that
he ―didn’t object to that comment. It was the second one …‖ (italics added), meaning the
comment about defendant having no soul or no conscience. The trial court responded
that it did not find the soulless comment to be a denigration and overruled the objection.
However, before the jury returned, the trial court reversed position, noting that it had
―taken a look at the court reporter‘s notes [regarding the prosecutor‘s argument and was]
going to direct the jury to disregard the last statement, ‗It‘s a man without a soul.‘‖ The
trial court then admonished the jury that it ―shall disregard the last bit of the argument,
that part of the argument, quote, ‗It‘s a man without a soul.‘ You‘ll disregard it, won‘t
consider it in any way.‖
       Significantly, we note that defendant did not object to the prosecutor‘s statements
referring to defendant as the ―angel of death.‖ In fact, defense counsel expressly
indicated that he was objecting only to the comment about defendant having no soul.11
As noted earlier, the general rule is that ―‗―a defendant may not complain on appeal of
prosecutorial misconduct unless in a timely fashion—and on the same ground—the
defendant [requested] an assignment of misconduct and [also] requested the jury be

       11The trialcourt admonished the jury about the ―man without a soul‖ comment and
defendant does not argue that the admonishment failed to cure any harm that may have resulted.


                                              21.
admonished to disregard the impropriety. [Citation.]‖‘‖ (People v. Ayala (2000) 23
Cal.4th 225, 284; see also People v. Cunningham, supra, 25 Cal.4th at p. 1000.) Because
defendant is arguing prosecutorial misconduct on a different basis than that argued
below, we find he has forfeited this argument on appeal.
       Moreover, an admonition would have cured any harm. On this record, defendant
cannot establish that he should be excused from making a timely objection to the ―angel
of death‖ comment, nor can he establish that a request for an admonition would have
been futile. Particularly where, as here, the court did admonish the jury regarding the
prosecutor‘s ―man without a soul‖ comment. (People v. Hill, supra, 17 Cal.4th at pp.
820-821.) That said, the ―angel of death‖ commentary does relate to the evidence
because defendant‘s middle name is Angel, there was testimony that Perez and defendant
had talked of killing other people in the past, and Jose had been choked to death by
defendant. Thus, to characterize defendant as an ―angel of death‖ is not misconduct.
       Lastly, this case is distinguishable from People v. Herring (1993) 20 Cal.App.4th
1066, relied upon by trial counsel and referenced by appellate counsel. In Herring, the
prosecutor made improper comments about defense counsel, including ―‗I chose this side
and he chose that side. My people are victims. His people are rapists, murderers,
robbers, child molesters. He has to tell them what to say. He has to help them plan a
defense. He does not want you to hear the truth.‘‖ (Herring, supra, at p. 1073.) With
regard to the defendant, the prosecutor called him ―‗primal man in his most basic level.…
He wouldn‘t know what love was. He‘s like a dog in heat.…‘ ‗This is primal man. He
thinks all I have to do is put a little force on her. Women love this. Every man knows
that.…‘ ‗He‘s like a parasite.‘‖ (Id. at pp. 1073-1074.) The trial court sustained the
defendant‘s objections and admonished the jury. (Id. at p. 1074) The appellate court
found the admonition to the jury that it should disregard all remarks and that the only
evidence the jury should consider was that derived from testimony on the witness stand,
or evidence marked and received, was insufficient to cure the harm. (Id. at pp. 1074-
1075.) Herring is distinguishable from this matter. The language and commentary in

                                            22.
Herring were unrelated to the evidence and directed at the defendant‘s character in such a
way as to encourage the jury to disregard the law. As explained ante, that did not occur
in this case.
       In sum, defendant has forfeited any argument regarding the prosecutor‘s ―angel of
death‖ commentary for he failed to object, and he cannot show that his failure to do so
should be excused or that an admonition to the jury would have been futile. Even so, the
claim fails on the merits as the commentary relates to the evidence.
IV.    There Were No Repeated Instances of Misconduct and the Motion for
       Mistrial Was Properly Denied
       Defendant asserts that following the misconduct complained of previously (see
part III., ante), the prosecutor committed repeated instances of misconduct during his
cross-examination, and again during closing argument. For these reasons, defendant
argues his motion for mistrial based upon that misconduct should have been granted. We
find otherwise.
       A.       The Applicable Legal Standards
       As noted above, a ―prosecutor‘s … intemperate behavior violates the federal
Constitution when it comprises a pattern of conduct‖ that is so egregious it infects the
trial with unfairness, resulting in a denial of due process. A prosecutor violates state law
if he or she ―use[s] deceptive or reprehensible methods‖ in attempting to persuade the
court or the jury. (People v. Navarette, supra, 30 Cal.4th at p. 506.) Reversal is required
where prejudice results. (People v. Fields, supra, 35 Cal.3d at p. 363.) If, however, the
reviewing court determines beyond a reasonable doubt that the misconduct did not affect
the jury‘s verdict, reversal is not required. (People v. Harris, supra, 47 Cal.3d at p.
1083.) Where prosecutorial misconduct violates only state law, reversal is required when
it is reasonably probable that a result more favorable to the defendant would have
occurred had the prosecutor refrained from the objectionable conduct. (People v.
Barnett, supra, 17 Cal.4th at p. 1133.)



                                             23.
      In the absence of a timely objection and request for admonition, the issue of
prosecutorial misconduct is forfeited on appeal. (People v. Cunningham, supra, 25
Cal.4th at p. 1000.) Only where an objection would have been futile, or where an
admonition would not have cured the harm, will a failure to object be overlooked. (Id. at
pp. 1000-1001; People v. Hill, supra, 17 Cal.4th at pp. 820-821.)
      B.     The First Instance of Alleged Prosecutorial Misconduct
      Upon commencing his cross-examination of defendant, the prosecutor asked as
follows:

             ―[PROSECUTOR]: Told the officer you felt nothing for killing [Jose];
      right? Right?

            ―[DEFENSE COUNSEL]: Objection, your Honor, he‘s badgering the
      witness. He should be allowed to answer the question.

             ―THE COURT: Give him a chance to answer, Mr. [Prosecutor].

             ―[PROSECUTOR]: You told the officer you felt nothing for killing
      him; right?

             ―[APPELLANT]: Yes.

              ―Q. You were a different Miguel Enciso who was interviewed right
      after killing [Jose] than you are today; isn‘t that true?

             ―[DEFENSE COUNSEL]: I‘m gonna object to that question.

             ―THE COURT: Sustained.

            ―[PROSECUTOR]: You had time to work out how you want to present
      yourself to the jury, haven‘t you?

             ―A. I don‘t understand your question.

            ―Q. You went over with your attorney how you‘re going to present
      your demeanor to the jury; right?

             ―A. No.

             ―Q. When you‘re arrested, your demeanor is what we saw on that
      video; right?


                                           24.
             ―A. I don‘t understand your question.

             ―Q. The way you acted on the day you were arrested is much
      different than how you‘re acting here today; correct?

             ―A. I don‘t know I can tell.

             ―Q. When you were arrested, you didn‘t have a care in the world;
      correct?

             ―A. I don‘t understand your question.

             ―Q. You understand—understood all his questions [referring to
      defense counsel]; is that because you went over everything with him
      several times?

             ―A. No.

             ―Q. You know that we all watched your video of the interview;
      correct?

             ―A. Yes.

             ―Q. And we all watched you on [the] Wal-Mart [video]; right?

             ―A. Yes.

            ―Q. So you‘re here in front of this jury trying to put on an act right
      now, aren‘t you?

             ―A. No.

            ―[DEFENSE COUNSEL]: I‘m gonna object and ask to strike. That last
      answer is argumentative.

             ―THE COURT: Overruled.‖
      C.     The Second Instance of Alleged Prosecutorial Misconduct
      Immediately following a sidebar on an unrelated issue, the prosecutor asked
defendant the following:

             ―[PROSECUTOR]: That sad face you just put on, how come you
      didn‘t have that when the jury was back in the jury room?

             ―[DEFENSE COUNSEL]: Objection, your Honor, argumentative,
      relevance.

                                            25.
               ―THE COURT: The jury will disregard that. [¶] Keep in mind that
       statements by counsel and questions are not evidence. You will totally
       disregard that. You will decide this case based upon what you observe in
       this courtroom when the witness is on the witness stand and every witness
       is on the witness stand, nothing else. [¶] All right. Ask a question. [¶] Is
       there any direction that the court has given so far that any juror will have
       any difficulty following? [¶] All right. Continue.‖
       During closing argument, the prosecutor commented upon defendant‘s ―sad,
pouting face‖ and argued defendant ―tries to make it look like he‘s the victim in all this,
but who‘s really the victim? He puts on an act, and you know this ‘cause we see him at
the Wal-Mart video. You see him without a care in the world right after he choked out
the victim, tied him up and went to go get those cans to burn him.‖ No objection was
made to the foregoing.
       D.     The Third Instance of Alleged Prosecutorial Misconduct
       During recross-examination, the following colloquy occurred:

              ―[PROSECUTOR]: Isn‘t it true the only act that‘s going on is the way
       you‘re testifying here in front of the jury?

              ―[DEFENSE COUNSEL]: Objection, your Honor, that‘s argumentative.

              ―THE COURT: Objection‘s overruled.

              ―[PROSECUTOR]: Isn‘t that true.

              ―[DEFENDANT]: No, sir.

              ―Q. Last week at the end of direct examination, you gave an
       indication like you were crying; right?

              ―A. I wasn‘t pretending. I was—that‘s the way I feel.

              ―Q. Couldn‘t get any tears to come out of your eyes, though, could
       you?

              ―[DEFENSE COUNSEL]: Objection, your Honor, that‘s argumentative.

              ―THE COURT: It is.

              ―[DEFENSE COUNSEL]: Move to strike the question.


                                             26.
               ―THE COURT: The—ladies and gentlemen, you understand that
       questions are not evidence. You are the observers. You can, of course,
       view the witness while the witness is testifying. You are the judges of the
       facts. [¶] … [¶] We‘ve talked about this before, and I‘m sure you have all
       this in mind. Questions are not evidence.

               ―[PROSECUTOR]: The real Miguel Enciso is who we see in 64;[12]
       isn‘t that true?

              ―[DEFENSE COUNSEL]: Objection, your Honor, that‘s argumentative,
       too.

              ―THE COURT: Sustained.

              ―[DEFENSE COUNSEL]: I would ask to go to side-bar, please.

              ―THE COURT: All right. [Jury in recess.]

              ―[DEFENSE COUNSEL]: Beginning another series of argumentative
       questions. It‘s misconduct on top of being argumentative, and I‘m saying it
       on the record. I already cited the cases before we picked up again today.

              ―[PROSECUTOR]: This defendant is putting on a show, and I know
       he‘s putting on a show, and I have evidence of his character when he‘s not
       putting on a show, when he‘s being photographed, when he‘s being
       interviewed, the Wal-Mart, and that is in no way argumentative.

              ―I could ask him these questions. He could deny them, but just
       because I ask a question doesn‘t make it argumentative. He‘s putting on a
       show, and he didn‘t [at] all these other places where I have images of him
       or recordings of him.

              ―THE COURT: The—the record speaks for itself insofar as what
       questions have been asked, the court‘s rulings on them, and your concern is
       noted, [counsel].

              ―[DEFENSE COUNSEL]: Thank you, your Honor.‖
After recess, and when the proceedings resumed in front of the jury, the People opted not
to ask any further questions of defendant.




       12Referring to   People‘s exhibit 64, defendant‘s booking photo.


                                                27.
      E.      The Fourth Instance of Alleged Prosecutorial Misconduct
      Finally, defendant contends that during his closing argument, the prosecutor erred
by arguing as follows while discussing felony murder:

             ―[PROSECUTOR]: There‘s a special—I‘ve—there‘s a special
      circumstance of CALCRIM 730, and this is easy, too. It‘s felony murder,
      same thing. You have the instructions. It‘s just what I argued. So there‘s
      going to be a first degree murder finding and then right below that special
      allegation felony murder. [¶] … [¶] Defendant got up and lied to you. He
      was essentially trying to get you to continue to burn that body.

              ―[DEFENSE COUNSEL]: Your Honor, I‘m gonna object to that.

              ―THE COURT: I don‘t understand that last sentence.

              ―[PROSECUTOR]: I haven‘t finished.

              ―THE COURT: We need to have a side-bar.

             ―(Whereupon, the following proceedings were had at side-bar,
      outside the presence of the jury, to wit:)

              ―THE COURT: All right.

              ―[DEFENSE COUNSEL]: It‘s improper to ask them to—it‘s an appeal
      to the emotions of the jury to tell them that they‘re continuing to burn the
      guy because of—that‘s just improper argument.

              ―THE COURT: What was the rest of your sentence going to be?

            ―[PROSECUTOR]: That he‘s lying to you, trying to trick you into
      burning the body and covering up his crime.

              ―[DEFENSE COUNSEL]: I object, it‘s improper argument.

            ―THE COURT: Well, that‘s nonsensical [in] my view, [I am] just
      gonna strike it. You may argue that he lied—

              ―[PROSECUTOR]: Okay, okay.

              ―THE COURT: —and you may argue why and your position he lied;
      okay.

              ―[PROSECUTOR]: Okay.

              ―(Whereupon, the side-bar proceedings were concluded.)

                                           28.
               ―THE COURT: The reference to continuing to burn the body, you are
       to disregard that.‖
       F.     Analysis
       We are not persuaded by defendant‘s arguments that the prosecutor‘s comments
amounted to prejudicial misconduct nor, in the instances of a failure to object, are we
convinced that such an objection would have been futile or that an admonition would not
have cured the harm.
              1.      First Instance
       With regard to the first alleged instance of misconduct, defense counsel objected
on the basis that the question, ―So you‘re here in front of this jury trying to put on an act
right now, aren‘t you?‖ was argumentative. That objection was overruled and
defendant‘s testimony continued until the day‘s proceedings were concluded.
Proceedings resumed the following Tuesday, November 22, 2011, and counsel argued to
the trial court that the prosecutor‘s earlier question about whether defendant had
―carefully worked out his demeanor and testimony with counsel before testifying‖ was
improper. The trial court pointed out, however, that no objection was made to that
question. Defense counsel then argued that had he objected, he would have drawn
attention to the behavior and that the jury may have been given the impression that the
prosecutor had some additional information that was not brought out. The trial court
stated that an ―extreme implication [would be] that somehow [defense counsel had]
suborned perjury,‖ that the court would have sustained an objection and given an
admonition and, therefore, the trial court invited counsel to propose such an admonition.
Defense counsel asked to finish making his record before proposing the admonition, and
the trial court agreed.
       Shortly thereafter, counsel asked to be permitted to draft an admonition in writing
for the court‘s consideration. Counsel submitted the admonition after proceedings




                                             29.
resumed following a break between November 23 and December 5, 2011.13 Specifically,
on December 6, 2011, counsel noted that he wrote ―an admonition with respect to what
happened in the cross-examination of [defendant]. I wrote an admonition which the court
is including in the instructions. The admonition is essentially what I proposed, and I
don‘t have any objection to its wording in the final version that‘s going to be given to the
jury.‖
         The trial court indicated the ―special instruction that the parties have agreed on‖
provides that ―the prosecutor erred when asking the defendant if he went over his
testimony and demeanor with counsel before testifying in this trial. Such questions are
not allowed. The jury is instructed to disregard the questions, and the implications from
the questions and not consider them for any reason.‖ With regard to whether answers
were given to the questions and whether those answers should be stricken, the following
discussion occurred:

                ―THE COURT: … [Defense counsel], are you satisfied that this
         instruction addresses—fully addresses the issue?

                 ―[DEFENSE COUNSEL]: When we took this motion up, I was and still
         am concerned about the questions in their totality, the implications thereof.
         I think if we‘re giving a admonition to cure that, I‘m satisfied that this
         admonition does that if it‘s the remedy that‘s available.

                 ―THE COURT: All right. There was not an objection to the question
         [at issue]. I have stated—I don‘t know if I‘ve stated this on the record or
         not.

                 ―Certainly, if there had been an objection at the time, the court
         would have dealt with the issue. This is a very pointed admonition, if you
         will, to the jury relating to such questions and that issue which is really not
         a proper issue at all for the jury to consider.

               ―I have stated, counsel, that I would strike the questions and
         answers, and I think that should be done anyway at this point because if the


         13All
             parties were aware of the trial court‘s unavailability during this period and
expressly agreed to the extended break in the proceedings.


                                                30.
       jury asks for a reread of [defendant]‘s testimony, that should not be part of
       the reread.‖
Thereafter, the trial court directed the court reporter to strike the answers and questions
from the record. The special instruction or admonition was read to the jury prior to its
deliberations.
       Defendant contends this admonition is insufficient to cure the harm caused
because the ―accumulation of misconduct overwhelmed the effect of repeated
admonishments,‖ and the ―jury‘s verdict was necessarily affected by questions and
argument, given the jury‘s assumed special regard for the prosecutor.‖ We simply do not
find repeated instances of misconduct as asserted by defendant, and therefore, disagree
that any misconduct ―overwhelmed the effect‖ of the admonishments given. Moreover,
as the trial court recognized, with regard to this particular assertion of error, defense
counsel failed to object in the first instance. While he belatedly argued that his failure to
object was the result of a risk of harm to his client or futility, the record does not support
such an argument, particularly where the court sustained previous objections. (People v.
Cunningham, supra, 25 Cal.4th at pp. 1000-1001; People v. Hill, supra, 17 Cal.4th at pp.
820-821.) Additionally, ―[a]n objection always will highlight the matter to which the
objection is directed. Allowing this consequence to overcome the requirement of an
objection would negate the rule that a party must object and request an admonition in
order to preserve a claim of error and enable the trial court to correct the asserted error.‖
(People v. Foster (2010) 50 Cal.4th 1301, 1352-1353.)
       Additionally, to the degree the questions posed to defendant regarding his
demeanor at trial could be interpreted to be negative commentary about defense counsel
(―You went over with your attorney how you‘re going to present your demeanor to the
jury; right?‖ and ―[I]s that because you went over everything with him several times?‖),
the prosecutor‘s questions were not so extreme that an admonition would not have cured
any harm. (See, e.g., People v. Gionis (1995) 9 Cal.4th 1196, 1216-1217 [prompt



                                              31.
admonition corrected any jury misconceptions caused by statement, ―‗―You‘re an
attorney. It‘s your duty to lie, conceal and distort everything and slander everybody‖‘‖].)
              2.     Second Instance
       As noted above, the second instance of alleged misconduct involves references to
defendant‘s ―sad‖ expression during trial.
       Of the two comments, the first occurring during cross-examination (―The sad face
you just put on, how come you didn‘t have that when the jury was back in the jury
room?‖), defense counsel objected prior to any answer by defendant and the trial court
immediately admonished the jury that it was not to consider the question. The court
explained further that the jury‘s observations concerning the testifying witnesses were a
proper consideration. Because the objection was sustained, and defendant did not answer
the question, no prejudice ensued. (People v. Dykes (2009) 46 Cal.4th 731, 763.) The
swift admonition given cured any possible harm. (People v. Gionis, supra, 9 Cal.4th at
pp. 1216-1217.)
       The next comment concerning defendant‘s expression came during the
prosecutor‘s closing argument (―The defendant testifies before you, puts on his sad,
pouting face and tries to make it look like he‘s the victim in all this …‖); however, to this
comment, defense counsel failed to object. Therefore, defendant has forfeited the
argument on appeal. (People v. Cunningham, supra, 25 Cal.4th at p. 1000.) Defendant
argues that because the ―prosecutor‘s comment merely added to the bulk of improper
insinuation,‖ he should be excused for failing to object because the ―misconduct is
repetitious.‖ However, as explained herein, we have found no repetitious error on the
part of the prosecutor. Unlike People v. Hill, supra, 17 Cal.4th at page 845, upon which
defendant relies, here there simply was not the ―sheer number of instances of
prosecutorial misconduct and other legal errors rais[ing] the strong possibility that the
aggregate prejudicial effect‖ was greater than any effect those errors had standing alone.




                                             32.
              3.      Third Instance
       As quoted fully above, these alleged instances of misconduct also concern
defendant‘s demeanor. Defendant argues the questions were denigrating and
argumentative, and that the admonitions given were insufficient. Again, we do not agree.
       Defendant‘s objection to the first question complained of in this section, ―Isn‘t it
true the only act that‘s going on is the way you‘re testifying here in front of the jury,‖
was overruled by the trial court. The question was not improper because defendant
testified, and by doing so, put his contemporaneous feelings of remorse at issue. (People
v. Watkins (2012) 55 Cal.4th 999, 1031.) At trial, defendant testified that he did not
know what to do after realizing Jose had died, and he merely followed Perez‘s lead and
acted as though he was unaffected by Jose‘s death. Because evidence was presented to
the contrary—the video of defendant and Perez shopping shortly after Jose‘s killing
wherein the two appear in good spirits, as well as defendant‘s comments during the
investigative interview that he was not troubled by Jose‘s death—the prosecutor‘s
question regarding defendant‘s demeanor did not amount to misconduct. In any event,
the question did not infect the trial with such unfairness so as to result in a denial of
defendant‘s rights. (See People v. Earp (1999) 20 Cal.4th 826, 858.)
       With regard to the prosecutor‘s questions concerning defendant having cried
during direct examination, defense counsel‘s objection was sustained as argumentative,
and the question was stricken at defense counsel‘s request. Again, the jurors were
reminded that questions are not evidence and that they ―are the judges of the facts.‖
Because the objection was sustained, and an admonition was given, we find no prejudice.
(People v. Dykes, supra, 46 Cal.4th at p. 763; People v. Gionis, supra, 9 Cal.4th at pp.
1216-1217.)
       Lastly, when the prosecutor asked defendant whether ―the real Miguel Enciso‖
was the individual depicted in his booking photograph (and as such, an individual
exhibiting a very different demeanor than defendant during trial), defense counsel


                                              33.
objected. The objection was sustained. At sidebar, defense counsel argued the
prosecutor was asking a ―series of argumentative questions‖ that constituted misconduct.
In reply, the prosecutor explained his questions were based upon the evidence. He
expected the evidence to establish that defendant‘s demeanor at trial was different from
that on three other occasions: (1) while defendant was shopping with Perez in Wal-Mart
after he had killed Jose, (2) at the time of his booking, and (3) again during his interview
with detectives. According to the prosecutor, defendant exhibited a very different
character (happy, carefree, untroubled by having killed Jose) during those occasions than
his demeanor at trial, to the effect defendant was ―putting on a show.‖ The trial court
indicated that the record spoke for itself and that its rulings did as well. Thereafter, no
further questions were asked and defendant‘s testimony concluded. Defense counsel did
not ask that the jury be admonished regarding this question, either before or after the side
bar. Because defendant did not request an admonition following his objection, he has
forfeited this claim. (People v. Cunningham, supra, 25 Cal.4th at p. 1000 [proper claim
of prosecutorial misconduct requires timely objection and request for admonition].)
Further, there is no indication that any requested admonition would have been futile, or
that such an admonition would not have cured any harm. (People v. Foster, supra, 50
Cal.4th at pp. 1350-1351.) Moreover, ―because the trial court sustained objections to the
argumentative element of the prosecutor‘s questioning, we assume any prejudice was
abated.‖ (People v. Dykes, supra, 46 Cal.4th at p. 764.)
              4.     Fourth Instance
       During closing argument, the prosecutor referenced first degree murder and a
related jury instruction, then stated: ―Defendant got up and lied to you. He was
essentially trying to get you to continue to burn that body.‖ Defense counsel objected to
the statement as improper argument, appealing to the emotions of the jury. The trial
court found the statement to be ―nonsensical‖ and struck it, admonishing the jury that it
was not to consider the reference. We agree with the trial court that the statement made
little or no sense. Further, defendant does not explain how a statement deemed
                                             34.
nonsensical by the trial court, and stricken for consideration by the jury via the trial
court‘s admonishment, is prejudicial. To the contrary, we find the admonishment cured
any harm such a statement could have possibly had even if understood by the jury.
Moreover, ―‗[a] prosecutor is given wide latitude to vigorously argue his or her case and
to make fair comment upon the evidence, including reasonable inferences or deductions
that may be drawn from the evidence‘‖ during closing argument. (People v. Dykes,
supra, 46 Cal.4th at p. 768, citing People v. Ledesma (2006) 39 Cal.4th 641, 726.) Thus,
to the degree the prosecutor‘s comment can be understood to argue that, through lies told
during his testimony at trial, defendant was continuing to victimize Jose, the statement—
as awkward as it was—could have been interpreted to be a fair comment upon the
evidence.
       Defendant‘s reliance upon People v. Hill in support of his prosecutorial
misconduct arguments is misplaced. There, defense counsel ―was subjected to a constant
barrage of unethical conduct, including misstating the evidence, sarcastic and critical
comments demeaning defense counsel, and [the] propounding [of] outright falsehoods‖
by the prosecutor. (People v. Hill, supra, 17 Cal.4th at p. 821.) In Hill, it was noted that
by objecting to the foregoing, defense counsel ―risk[ed] repeatedly provoking the trial
court‘s wrath, which took the form of comments before the jury suggesting he was an
obstructionist, delaying the trial with ‗meritless‘ objections.‖ (Ibid.) Unlike Hill, there
was no ―constant barrage‖ of misconduct by the prosecutor. Also, the trial court was not
critical of defense counsel‘s objections, nor is there any indication on this record that had
defense counsel objected more frequently, he would have ―provok[ed] the trial court‘s
wrath.‖ The misconduct recorded in Hill is plainly distinguishable from the questions
and statements alleged to be misconduct here.
       In conclusion, several of defendant‘s arguments have been forfeited for purposes
of appeal due to a lack of objection or lack of an excuse for a failure to object. To the
degree defendant‘s remaining contentions are viable for purposes of appeal, we do not


                                             35.
find a pattern of misconduct or use of deceptive or reprehensible methods amounting to
prosecutorial misconduct.
       G.     The Motion for Mistrial
       Defendant maintains that his motion for mistrial should have been granted because
the prosecutor‘s questions and statements amounted to serious misconduct requiring
reversal.
       We review the denial of a motion for mistrial under the deferential abuse of
discretion standard. (People v. Cunningham, supra, 25 Cal.4th at p. 984.) ―A motion for
mistrial is directed to the sound discretion of the trial court. We have explained that ‗[a]
mistrial should be granted if the court is apprised of prejudice that it judges incurable by
admonition or instruction. [Citation.] Whether a particular incident is incurably
prejudicial is by its nature a speculative matter, and the trial court is vested with
considerable discretion in ruling on mistrial motions.‘‖ (People v. Jenkins (2000) 22
Cal.4th 900, 985–986, quoting People v. Haskett (1982) 30 Cal.3d 841, 854.)
       Defense counsel moved for a mistrial following his belated objection to the
prosecutor‘s questions regarding defendant‘s demeanor:

               ―[DEFENSE COUNSEL]: I am going to make that motion because I‘m
       not sure it can be cured because of the constitutional right implications and
       the fact that it really denies the defendant a fair trial. They obviously
       know—it‘s not evidence that they can put on to rebut whatever he says.
       It‘s the implication of the question that‘s so damaging. [¶] … [¶] If the
       court‘s not willing to grant a mistrial, I think that an attempted admonition
       should be made ….

              ―THE COURT: All right. I will say that tentatively, before I hear
       from [the prosecutor], that I would not grant a motion for mistrial. There
       has—this was one of many, many questions that [the prosecutor] asked on
       cross-examination, and because of that, in part, it is not something that the
       court believes the jury is going to attach anything to, particularly if there is
       an admonition, and I think it can be cured by way of an admonition, simple
       admonition.




                                              36.
               ―And again, I realize I haven‘t heard from the People yet, but a
       proper admonition I think would cure it, and I‘m inclined to give it at this
       point.‖
Later, the court stated, ―[s]o the motion for mistrial is denied.‖
       Here, the trial court did not abuse its discretion in denying the motion for mistrial.
It expressly determined that any harm caused by the prosecutor‘s questions could be
cured by a simple admonition. Moreover, as explained in detail above, we have found no
prosecutorial misconduct. Therefore, we likewise hold the trial court‘s denial of
defendant‘s motion for mistrial was proper.
V.     Lying-in-Wait Murder and Self-Defense
       Defendant contends the prosecutor misstated the law pertaining to the availability
of complete and imperfect self-defense to a charge of first degree murder based upon on a
lying-in-wait theory. He argues this misstatement denied him his fundamental right to
present a defense and, thus, his conviction must be reversed. We do not agree.
       Murder is an unlawful killing committed with malice aforethought. (People v.
Cravens (2012) 53 Cal.4th 500, 507.) Malice may be express or implied; it is express
when the defendant intends to kill, and it is implied when the defendant deliberately
commits an act that is dangerous to human life and acts with knowledge of the danger
and a conscious disregard for life. (Ibid.)
       Once a jury has found the defendant committed murder (i.e., a killing with express
or implied malice), it must then determine if the murder was of the first or second degree.
First degree murder includes murders committed by lying in wait. (People v. Stanley
(1995) 10 Cal.4th 764, 794.) A lying-in-wait murder occurs when the defendant conceals
his or her purpose, engages in a substantial period of watching and waiting for an
opportune time to act, and inflicts a surprise attack on an unsuspecting victim from a
position of advantage. (People v. Gurule (2002) 28 Cal.4th 557, 630.)
       First degree lying-in-wait murder does not require intent to kill; rather, the offense
only requires the conscious disregard for life associated with implied malice. (People v.


                                              37.
Ceja (1993) 4 Cal.4th 1134, 1140, fn. 2; People v. Edelbacher (1989) 47 Cal.3d 983,
1023; People v. Superior Court (Bradway) (2003) 105 Cal.App.4th 297, 309; People v.
Laws (1993) 12 Cal.App.4th 786, 793–794.)
       Defendant‘s final argument centers on a statement made during the People‘s
closing argument. In particular, while specifically discussing the jury instructions given
by the trial court, the prosecutor addressed lying-in-wait murder in the following context:

               ―[PROSECUTOR]: Then you go and we got lying in wait. Lying in
       wait, CALCRIM 521. These are summaries again. Go to the instructions if
       you have a doubt. Lying in wait. You concealed your purpose. You wait
       in the dark in another‘s man‘s home till he gets home and chokes him out.
       Yeah, that‘s concealing your purpose.

              ―You wait and watch for an opportunity to act. You wait in his
       home in the dark until he comes home, and you choke him out. Yeah, you
       wait and watch for an opportunity to act.

              ―You did a surprise attack. You wait in another‘s man‘s home in the
       dark until he came home and you choked him out. Yeah, it was a surprise
       attack. In the defendant‘s own words that the victim was surprised, own
       words.

               ―You get here—and I‘m going over this again—from second degree
       murder which was express or implied. So with implied, no intent to kill is
       required. It‘s not concealing his purpose to kill. It‘s not he waited and
       watched for an opportunity to kill. It‘s not he did a surprise attack to kill.
       It‘s that he went there, in his own words, to beat him up, wait in the dark,
       choked him out.

              ―That‘s a confession. Now he wants to deny that he intended to kill.
       Whatever, you don‘t have to make that finding. He did. He did, but you
       don‘t have to make that finding.

             ―Only for second degree murder are there defenses. Felony murder,
       which I’m gonna go over after this, no defenses.

              ―So you heard about self-defense, imperfect self-defense, heat of
       passion. Okay, what—I been going over with you how absurd any type of
       self-defense is.…‖ (Italics added.)
Defendant takes particular issue with the prosecutor‘s comments that ―[o]nly for second
degree murder are there defenses‖ and ―[f]elony murder … no defenses.‖

                                            38.
       Notably, defendant did not object to the prosecutor‘s statement. Therefore, he has
forfeited the issue for purposes of appeal. (People v. Mayfield (1993) 5 Cal.4th 142,
178.) Defendant contends, however, that because his claim involves an important issue
or substantial right, his failure to object is not fatal. He claims the error here is a hybrid
one and is properly before the court: error from the jury instructions to which an
objection is generally not required, coupled with the argument of counsel where an
objection generally is required.
       Even assuming the issue were cognizable, we find no reversible error here. As
noted in People v. Mayfield, supra, 5 Cal.4th at page 179, ―[t]he court‘s instructions, not
the prosecution‘s argument, are determinative, for ‗we presume that jurors treat the
court‘s instructions as a statement of the law by a judge, and the prosecutor‘s comments
as words spoken by an advocate in an attempt to persuade.‘ (People v. Clair [(1992)] 2
Cal.4th [629,] 663, fn. 8.)‖
       Here, the trial court properly instructed the jury. The jury was advised in
CALCRIM No. 200, inter alia, that if it believed ―that the attorneys‘ comments on the
law conflict with [the trial court‘s] instructions, [it] must follow [the] instructions.‖ With
regard to the general principles of homicide, the jury was instructed with CALCRIM
No. 500, including the principle that ―[s]elf-defense is not a defense to felony murder.‖
Next, the jury was instructed with CALCRIM No. 548 that provided, in relevant part, that
―[e]ach theory of first degree murder has different requirements,‖ drawing the jury‘s
attention to the differences between felony murder and lying-in-wait murder. And in
CALCRIM No. 520, the jury was expressly advised that murder with malice aforethought
did ―not apply to felony murder.‖
       Also read to the jury were instructions regarding self defense. CALCRIM No. 505
(Justifiable Homicide: Self-Defense) expressly provided, in part, that the ―instruction
does not apply to felony murder. Self-defense is not a defense to felony murder.‖ The
jury was also instructed with CALCRIM No. 571 regarding imperfect self-defense. The
instruction clarified that it did ―not apply to felony murder. Imperfect self-defense does

                                              39.
not apply to felony murder.‖ CALCRIM No. 540A also provided that ―[s]elf-defense is
not a defense to felony murder.‖
       Despite defendant‘s assertions to the contrary, the prosecutor‘s brief comment did
not serve to confuse the jury. In context, the prosecutor was not arguing that there could
be no defenses to lying-in-wait murder, such as self-defense. Instead, a fair reading of
the argument is that in this case, defendant presented no defenses to lying in wait. The
prosecutor pointed out that the evidence of lying in wait came from defendant‘s own
mouth. The prosecutor characterized defendant‘s defense as ―a confession.‖ The
prosecutor argued that defendant only presented defenses to second degree murder—but
not to lying-in-wait murder, which is first degree murder.
       In any event, the jury was expressly instructed that attorney comments regarding
the law were to be disregarded if those comments differed from the law as instructed by
the trial court. Thus, even assuming the jury understood the prosecutor‘s comment to
mean that self-defense did not apply to lying-in-wait murder, the instructions read and
provided to the jury advised otherwise. The jury was repeatedly advised that self-defense
did not apply to felony murder; it was never instructed that self-defense was unavailable
to a charge of first degree murder on a lying-in-wait theory.
       Further, the jury was repeatedly advised that the People were putting forth two
theories of first degree murder—felony murder and murder by lying in wait—and that
different rules applied to each. The jury found the special circumstance pertaining to
felony murder to be not true. Thus, it is clear the jury found defendant guilty of first
degree murder on a lying-in-wait theory. Because the instructions pertaining to self-
defense were given where two theories were proffered—and the jury rejected the one to
which self-defense did not apply—it is reasonable to conclude the jury did not believe
defendant‘s claims regarding the need of self-defense. To be sure, the evidence
established that Jose was surprised by the presence of Perez and defendant in his home
(no lights were on when Jose arrived home at 10:00 p.m., no unfamiliar cars were parked
in front of or near his home, and Perez and defendant had concealed themselves in a

                                             40.
bedroom in Jose‘s dark trailer) and that Jose was attacked from behind by defendant who
put him in a chokehold and then, once Jose was unconscious, tied him up.
       In his reply brief, defendant cites to Brown v. Payton (2005) 544 U.S. 133, 146, in
support of his argument that an otherwise proper jury instruction can be unclear to the
degree it creates an unconstitutional denial of a defense or shifts the burden of proof.
However, Brown is plainly distinguishable. The instructions given here do not involve a
―catchall instruction‖ pertaining to death penalty mitigation such as that at issue in
Brown.
       In sum, in light of the instructions given here, we discern no reasonable likelihood
that the prosecutor‘s statements would have misled the jury; therefore, defendant has
failed to demonstrate any prejudice and reversal is not warranted.
                                      DISPOSITION
       The judgment is affirmed.

                                                          ___________________________
                                                                              PEÑA, J.
WE CONCUR:


 ________________________________
GOMES, Acting P.J.


 ________________________________
POOCHIGIAN, J.




                                             41.
