Filed 4/16/13 P. v. White 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,
                                                                                           F063160
         Plaintiff and Respondent,
                                                                         (Merced Super. Ct. No. MF45727)
                   v.

JAMES EVERTT WHITE,                                                                      OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Merced County. Carol Ash,
Judge.
         Ann Hopkins, 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, Michael A. Canzoneri and
David A. Lowe, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
                                                INTRODUCTION
         On the afternoon of March 8, 2007, appellant/defendant James Evertt White
confronted Stephen Jackson on a residential street in Merced. Defendant was angry that
Jackson was living with defendant‟s former girlfriend, Lashe Castle, and that Castle had
obtained a restraining order against defendant. Defendant produced a black billy club or
“asp,” and hit Jackson with it. Jackson and defendant briefly fought on the street,
stopping traffic and attracting neighbors. When Jackson allowed defendant to get up,
defendant produced a small gun and fired two shots which hit Jackson in the chest, arm,
and neck. Defendant immediately left the scene. The chest wound was fatal and Jackson
died within minutes. Jackson‟s 11-year-old son was present during the fight and the fatal
shooting.
       At the beginning of trial, defense counsel said in opening statement that the
evidence would show the homicide occurred as a result of self-defense or heat of passion.
During trial, however, defendant testified that he never fired the gun, and it accidentally
discharged when a bystander intervened and struggled to take control of the weapon. The
prosecution produced that bystander as a rebuttal witness, and he testified that he never
touched the gun, and that defendant fired the shots directly at Jackson.
       Defendant was charged and convicted of count I, first degree murder (Pen. Code,1
§ 187), with the special allegation that he personally used a firearm resulting in death or
great bodily injury (§ 12022.53, subd. (d)); count II, possession of a firearm by a felon
(§ 12021, subd (a)(1)); and count III, unlawful possession of a prohibited weapon, a billy
club (§ 12020, subd. (a)), with one prior strike conviction (§ 1170.12). He was sentenced
to an aggregate term of 75 years to life.
       On appeal, defendant contends the trial court improperly permitted the prosecution
to introduce evidence about the vandalism of Jackson‟s residence, and that Jackson
believed defendant was responsible. Defendant further contends the trial court should
have excluded evidence about defendant‟s prior acts of domestic violence against Castle.


       1   All further statutory citations are to the Penal Code unless otherwise indicated.



                                               2.
Defendant argues the testimony about these incidents constituted inadmissible character
evidence and violated his due process rights.
       Defendant also argues the prosecutor engaged in numerous instances of
misconduct during closing argument by vouching for the case, citing facts not in
evidence, and accusing defense counsel of fabricating a defense. We will affirm.
                                          FACTS
       In 2002, Mauree Lashe Castle (Castle) met defendant, and they started dating. In
2003, they moved into a house together in Merced.
       In 2003 or 2004, Castle introduced defendant to Stephen Jackson. Jackson and
Castle were long-time family friends. Jackson was a former college football player and
worked as a carpenter and handyman. He was described as a stout, muscular man.2
Jackson had a son, Khalil, who had lived with Jackson since he was four years old, and
they were very close.
       Defendant and Jackson became friends. Defendant, known as “Pedro,”
occasionally worked for Jackson. Jackson and Khalil often saw defendant and Castle at
family gatherings. Defendant and Jackson socialized, and Castle and Khalil testified they
never saw any problems between them.3
Defendant’s relationship with Castle
       Castle testified that in 2002, at the beginning of her relationship with defendant,
they had a lot of fun together. However, the relationship subsequently became physically


       2 The coroner testified that Jackson was five feet eight inches tall and weighed 226
pounds. Jackson‟s driver‟s license stated that he was six feet one inch tall and weighed
245 pounds.
       3 By the time of trial, Khalil described defendant as his father‟s “ex-friend.”
Khalil was 11 years old when he saw defendant kill his father, and he was 16 years old
when he testified. Khalil admitted he had been arrested for theft and the sale of
marijuana. These incidents occurred after Jackson had been killed. Khalil testified he
probably would not have committed those acts if his father had not been killed.


                                             3.
abusive. Castle testified that between 2003 and 2006, defendant was physically abusive
toward her on four or five occasions. “It wasn‟t a constant thing. It didn‟t happen every
day.”4
         Castle testified that the first incident occurred in November 2003, after they had
been at a friend‟s house and argued. As they walked to their car, defendant hit Castle.
Castle hit him back, and defendant “continued to hit” her. He used an open hand, a
closed fist, and also kicked her. Defendant slammed her hand into the car door. Castle
did not call the police. Defendant later apologized, and Castle forgave him.
         Castle testified the second incident occurred about a year later, and the third
incident was six months after that. Defendant usually hit her in the face with a closed
fist. She never called the police because she was afraid “he‟d be much more upset and
come after me even harder than the time before .…” Defendant threatened Castle, and
told her that “wherever I went he would find me .…” Castle was afraid for herself and
her daughter.
         Castle testified about another incident when defendant was intoxicated, produced a
gun, and placed it on her chest. Defendant said he loved her and he was not going to let
her go. Castle left defendant three or four times, but she always returned.
Castle breaks up with defendant
         Castle testified that she did not tell Jackson about defendant‟s physical abuse until
late in 2006, just before she left defendant. Jackson was concerned about her safety.
         Castle testified that in November 2006, defendant was intoxicated and wanted to
drive his car. Castle told him not to drive. Defendant became upset and hit Castle in her




        In issue II, post, we will address defendant‟s contentions that the court
         4
improperly admitted the domestic violence evidence as relevant to motive, and that it
should have excluded Castle‟s testimony as improper character evidence.



                                               4.
daughter‟s presence. That was “the last straw” for Castle, and she decided to leave
defendant.
       Castle testified that she waited to leave defendant until he was out of town,
because she knew defendant would never let her leave. On that particular day, defendant
went to Oakland with Jackson. Castle left Jackson a phone message about what she was
going to do and asked him to let her know when they were going to return. Castle packed
up her belongings, and her mother picked her up from defendant‟s house. Castle left a
note for defendant, saying that she was leaving him. Later that day, Jackson sent Castle a
text message that they were driving back from Oakland.
       After Castle left Jackson, she lived with her mother in Merced. Defendant
contacted her and was very upset. He wanted to reconcile, but Castle refused. Castle
testified that defendant “wasn‟t trying to hear it” and insisted they could work things out.
Defendant repeatedly called Castle and tried to reconcile.
Castle moves in with Jackson
       In December 2006, Khalil was eleven years old and in the fourth grade. Jackson
and Khalil lived in a mobile home in Merced. At that time, Jackson and Castle realized
they had feelings for each other, and they began a dating relationship. Soon afterwards,
Jackson proposed to Castle.
       At some point in January 2007, Castle and her child moved into Jackson‟s mobile
home. Khalil testified that Jackson and defendant were no longer friends once Jackson
and Castle began their relationship.
       Castle testified about an incident which occurred after she moved in with Jackson.
Jackson and Castle were at the home of Jackson‟s mother in Merced. Defendant arrived
and again asked to reconcile with Castle. Defendant asked Castle if she was sleeping
with Jackson, and he became angry.




                                             5.
The gathering at defendant’s house
       Joseph Coney, Jr., was married to Jackson‟s sister. Coney knew defendant,
Jackson and Castle. He also knew that Castle had left defendant and moved in with
Jackson.
       Coney testified that he attended a gathering at defendant‟s house when everyone
was drinking beer.5 Defendant was angry about Jackson. Defendant said that he felt like
he wanted to kill Jackson. Defendant said he felt “like hiding by his mom‟s house and
shooting him or something of that sort.”
       Coney did not take defendant‟s comment seriously. However, Coney told his wife
(Jackson‟s sister) about defendant‟s comment.
Defendant’s call; vandalism at Jackson’s mobile home
       On January 13, 2007, Jackson, Castle, and Khalil were in the San Francisco area.
Castle testified that while they were out of town, she received a telephone call from
defendant. Defendant was very angry and said his landlord had given him an eviction
notice. Defendant blamed Castle and said it was her fault that he was being evicted.
Defendant said that she “would pay for it.”
       When Jackson, Castle, and Khalil returned to the mobile home that night, they
discovered that it had been vandalized. The windows were broken, the interior was
“trashed,” the television was broken, and several things were missing. Jackson‟s car had
been parked there, and the windows were also broken.
       Castle testified that she immediately felt defendant was responsible because
Jackson and Castle did not have any enemies, and “[t]here was no one else who I could
even think about that, you know, would have done that.” Castle had previously heard



       5Coney testified this incident occurred before the vandalism at Jackson‟s mobile
home, and before Jackson obtained the restraining order against defendant.



                                              6.
that defendant “talked about vandalizing [Jackson‟s] car because I was using one of his
cars .…”6
       Castle and Jackson filed a police report about the vandalism. Castle told the
police that she thought defendant was responsible, because she had ended their
relationship and defendant had made telephone threats about the eviction notice.
       Castle testified that Jackson was upset about the vandalism and “wanted to take
matters into his own hands, but he decided not to. He prayed about it.” Jackson was
concerned about Khalil‟s safety because the child was frightened. They moved out of the
mobile home because it was not safe to stay there. Jackson and Castle continued to live
together for a short period of time, and then Castle moved back to her mother‟s house.
The restraining order
       On or about February 6, 2007, Castle filed a request in superior court for a
restraining order to keep defendant away from Castle, Castle‟s mother, Castle‟s daughter,
Jackson, and Khalil. The request was based Castle‟s declaration about the vandalism
incident, her belief that defendant was responsible for the vandalism, defendant‟s
telephone threats, and his prior acts of domestic violence.7
       The court granted Castle‟s request, and a temporary restraining order was issued
against defendant with a notice for defendant to respond and appear for a hearing on
further issuance of a restraining order.
       At trial, Castle testified that she was frightened after the vandalism incident and
believed defendant was responsible. Castle testified that she requested the restraining



       6 In issue I, post, we will address defendant‟s contentions that the court improperly
allowed the prosecution to introduce evidence about the vandalism of the mobile home as
relevant to motive.
       7   The prosecution introduced the application and the restraining order as an
exhibit.



                                              7.
order as a result of the vandalism incident, to keep defendant away from Jackson, Khalil,
Castle, and Castle‟s daughter. Khalil testified that he knew about the restraining order.
Jackson never expressed any fear of defendant, but told Khalil to watch out and call him
if anything happened.
Defendant complains and threatens Castle
       Castle testified that shortly after the restraining order was issued, defendant saw
her while he was driving. He stopped his car in the middle of the street and obstructed
traffic. Defendant was upset and told Castle, “[O]h, you and [Jackson] got a restraining
order on me .…” Defendant “kind of chased me around the car and he jumped back in
[to his car] and drove off.” Castle was frightened by the incident.
       Castle testified about another incident when defendant called her and complained
about the restraining order. Castle was in the grocery store when she received the call,
and defendant said: “[B]itch you‟re dead .…”
The Wal-Mart incident and the text message
       Joseph Coney, Jr., Jackson‟s brother-in-law, testified that he heard about the
vandalism at Jackson‟s mobile home, and knew that Jackson and Castle believed
defendant was responsible. Coney heard that Jackson had obtained a restraining order
against defendant.
       Coney testified that he also heard that defendant had a gun. Coney was concerned
that the situation between defendant and Jackson was escalating. Coney told Jackson
about defendant‟s prior statements, and that defendant had a gun. Jackson seemed to
dismiss it.
       In February 2007, Jackson and Khalil were driving out of Wal-Mart‟s parking lot.
They passed defendant‟s white van as he traveled in the opposite traffic lane. Khalil
thought defendant was about to make a turn, but instead defendant stopped in the middle
of a busy intersection. Khalil testified that defendant held up the restraining order
documents while he was still in his car. Defendant then got out of his car and walked up

                                             8.
to the driver‟s side of Jackson‟s car. Defendant cursed at Jackson, and Jackson cursed
back at him. Jackson stayed in the car. Jackson told defendant that they should go to the
adjacent gas station and “get it on.” Khalil thought they were going to fight, but
defendant drove away. Jackson told Khalil not to worry and that everything would be
okay.
        Khalil testified that around the same time, Castle showed him a text message that
Castle said she received from defendant. Khalil testified the text message threatened
Castle, that he “wanted her head. He wanted to kill her.”
                            THE DAY OF THE HOMICIDE
        Around 1:00 p.m. on March 8, 2007, Shdari Crane was at defendant‟s house in
Merced for a short period of time. Defendant and Crane had been dating for a few
months. Crane saw a small silver revolver on a master bedroom shelf. She picked it up
and realized it was a real gun. Crane had never seen a weapon in defendant‟s house and
asked him about it. Defendant said it was his gun, and that he carried it all the time.
        On the afternoon of March 8, 2007, Jackson picked up Khalil from school and
they went to the house of Jackson‟s mother in Merced. Jackson worked on a project at
the house. Later in the afternoon, Jackson and Khalil drove to a nearby store to purchase
parts. Jackson was driving a Suburban SUV.
        Khalil testified that Jackson was driving on Highway 59 when they saw defendant
driving a van in the opposite direction. Defendant swerved into Jackson‟s lane as if he
was going to hit them head-on. Defendant then swerved back into his own lane and
continued on his way. Jackson drove to the store, they purchased the parts, and then
headed back to Jackson‟s mother‟s house.
        Khalil testified that Jackson drove on Highway 59 and turned onto Cone Avenue.
As Jackson made the turn, they saw defendant‟s van driving out of a mini-market.
Jackson made a U-turn and drove back to defendant‟s van. Defendant stopped, cursed
Jackson, and said, “[L]et‟s go finish this.” Jackson and defendant exchanged curses, and

                                             9.
they talked about fighting. Jackson pointed toward the mini-mart. Defendant disagreed
about the mini-mart because there were cameras there. Defendant said: “ „No, let‟s go
over there to your mom‟s house.‟ ” Jackson agreed and started to drive to his mother‟s
nearby house. Khalil was worried that they were going to fight.
       Khalil testified that during the encounter at the mini-mart, defendant raised his
hand and gestured as if he was firing a gun. Khalil thought defendant meant he was
going to shoot. He did not see defendant with a gun.
The fight
       Khalil testified that Jackson was driving on Cone Avenue, heading for his family‟s
house, when defendant‟s van drove in front of them and cut them off. Jackson had to hit
his SUV‟s brakes to stop suddenly. Defendant‟s van stopped in the street at an angle,
directly in front of Jackson‟s SUV.
       Khalil testified that defendant got out of his van, left the driver‟s door open, and
walked up to Jackson‟s SUV. Jackson got out of his SUV and closed his driver‟s door.
Defendant was carrying a long, black baton, and hit Jackson in the forehead with it.
Jackson tackled defendant, and defendant dropped the baton. Jackson got on top of
defendant and punched him. Jackson and defendant were fighting toward the front of
defendant‟s van, near the open driver‟s door.
       Khalil testified that another man walked across the street and approached
defendant and Jackson as they were fighting. The man looked right at them and said,
“ „Hey, stop fighting.‟ ” Jackson continued to punch defendant as the unknown man
stood near them.8

       8 As we will explain, post, this man was later identified as Benito Aguirre, who
lived in the area. Defendant testified at trial that Aguirre wrestled with him for the gun,
and it accidentally discharged twice. However, Aguirre testified as a rebuttal witness for
the prosecution, that he just told them to stop fighting, that he never touched the gun, and
that defendant fired the gun at Jackson.



                                             10.
       Khalil testified that defendant repeatedly asked Jackson to let him get up. Jackson
finally stepped away, and defendant stood up.
The fatal shooting
       Khalil had been watching the fight from inside Jackson‟s car. At some point,
Khalil got out of the car and decided to run to his family‟s house for help. As he ran, he
heard one gunshot. He looked back and saw defendant produce a gun and fire two shots
into defendant‟s chest. “I seen [Jackson] on the ground and I heard the first shot, boom, I
heard another one. My dad kind of stumbled. I seen him fall, and I just kept running,
went to get [a neighbor for help].” Khalil had not seen defendant with a gun before he
heard the shots.

       “Q. [D]o you remember very clearly seeing this man [defendant] shoot
       your father twice?

       “A.    Yes.”
       Khalil knocked on a neighbor‟s door and asked for help. Khalil and the neighbor
ran back to the scene of the fight. When Khalil and the neighbor returned to the scene,
defendant had driven away.9 Jackson was lying on the ground, and bleeding from his
stomach and face. Khalil knew his father was badly hurt and tried to talk to him.
Jackson told his son that it was going to be alright, and to stay in school and “do what
you got to do.”
Homicide witnesses
       Troy Edward Jones was the neighbor who Khalil asked for help. Jones was
standing in his garage of his residence, located near the intersection of Cone Avenue and
G Street, when he saw a van and a burgundy SUV traveling on Cone Avenue. The van


       9 At trial, Khalil insisted that defendant shot Jackson as Khalil ran for help. On
the day of the homicide, however, Khalil told the police that defendant shot Jackson as
Khalil ran back to the scene with the neighbor.



                                            11.
pulled in front and cut off the SUV while the SUV was still moving. The two vehicles
stopped, and the two drivers got out of their vehicles and started fighting. Jones thought
one of the men briefly returned to the van during the fight.
       Jones testified the fight was even until the van‟s driver produced a long, black
stick. The van‟s driver hit the SUV‟s driver with the black stick. The SUV‟s driver fell
to the ground and stayed there. Jones thought the van‟s driver reached under his shirt.
Jones heard two gunshots, and saw the van‟s driver firing a gun toward the ground. Jones
went into his house, called 911, and saw the van drive away from the scene.
       As Jones was talking to the 911 operator, someone banged on his door. Jones
opened the door and found Khalil, who was crying and hysterical, and said that his dad
had been shot. Jones and Khalil rushed to the scene. Khalil tried to help his father, but
Jones held him back until the police arrived. Jones noticed that a bus and other vehicles
had stopped on the street.
       Ricardo Munoz was driving a county bus along his regular route on Cone Avenue
toward G Street. He saw an SUV and white van stopped on the side of the street. Munoz
testified that the van was parked at an angle in front of the SUV. Munoz testified that it
appeared the van had cut off the SUV. The driver-side door of the van was open. There
were two men fighting in the street. Munoz could not drive around the two vehicles, and
he called his dispatcher to contact the police.
       As Munoz waited in his bus, he watched the two men as they continued to fight.
One man appeared to be getting the better of the fight, and he was on top of the other man
as they wrestled on the ground. The first man stood up and started to walk away, and
Munoz thought the fight was over.
       Munoz testified that a crowd had gathered on the street. A man from the crowd
appeared to briefly speak to the man who was already standing up. In the meantime, the
man on the ground started to get up, but he did not appear to be a threat to the first man.
The first man suddenly turned around and pointed a gun at the other man, and fired two

                                             12.
shots at him from 8 to 10 feet away. Munoz did not know where the gunman obtained
the weapon, and thought he could have walked to the van and reached into the open door.
       Munoz thought the gunman‟s first shot was into the victim‟s stomach, because the
victim bent forward as if he had been punched in the stomach. The gunman fired the
second shot, the victim was hit again, and the victim fell back to the ground. The
gunman looked into the bus, and Munoz feared for the safety of his bus passengers. The
gunman got into the van and immediately left the area.
Jackson’s death
       At 4:42 p.m., Merced Police Officer Brian Rinder responded to the scene and saw
the bus and several other vehicles stopped at the intersection. He found Stephen Jackson
lying on the street. Jackson‟s eyes were open, and he was bleeding from his mouth and
the left side of his head. Rinder opened Jackson‟s shirt and found a bullet wound in his
chest. Jackson had no pulse, and he was not breathing. Rinder found an expandable
black baton, also known as an “asp,” about 10 to 20 feet from Jackson‟s body.
       The paramedics arrived and attempted to treat Jackson. Jackson was transported
to the hospital where he was pronounced dead.
Initial investigation
       While the paramedics were treating Jackson, Officer Rinder spoke to Khalil at the
scene. Khalil said that he was a passenger in his father‟s Suburban SUV. Jackson was
driving on Cone Avenue near Highway 59 when he saw defendant driving a white van.
Jackson turned and defendant followed them. Defendant pulled alongside of them, in the
opposing traffic lane. Khalil said defendant held up his hand and moved his finger as if
he was firing a firearm. Khalil said defendant cut them off and made them stop near the
G Street intersection.
       Khalil told Officer Rinder that defendant got out of the white van and walked up
to the driver‟s side of the Suburban, where Jackson was still seated. Defendant was



                                           13.
holding the black baton. Jackson got out of the SUV, and Jackson and defendant started
fighting in the street.
        Khalil said he ran out of the SUV to a nearby house and asked someone to call
911. As Khalil ran back to the two vehicles, he saw defendant holding a silver or
chrome-colored handgun. Defendant was standing over Jackson, who was on the ground,
and he shot Jackson.
Pathology report
        The pathologist determined that Jackson suffered two gunshot wounds, and
recovered two .32-caliber bullets from Jackson‟s body. One bullet entered Jackson‟s
upper right arm, exited through his right shoulder, re-entered his body through the right
side of his neck, and lodged in his temple and under the scalp. The other bullet entered
Jackson‟s chest and traveled in a straight line, front to back, at a 25-degree angle. It went
through his heart and aorta and lodged in his spine. The gunshot to the chest inflicted
fatal wounds, and Jackson would have died within seconds.
        The pathologist believed the gunman could have been at least 18 inches away
from Jackson when he fired. The pathologist could not determine which gunshot had
been fired first. If the first shot had been into the chest, Jackson could have leaned
forward in reaction to it, as if he had been punched in the chest. Jackson could have
taken a few steps, tried to run, screamed or talked, and then collapsed; he would have
died within 30 seconds. The gunshot which inflicted the shoulder/head/neck wounds
could have been inflicted when Jackson was lying on the ground.
        Jackson also suffered minor abrasions on his knees, torso, knuckles, and the back
of his hands. These abrasions were consistent with someone hitting Jackson with an asp,
or Jackson hitting someone, falling on the asphalt, and/or rolling around during an
altercation. Jackson had an abrasion on his head, which could have been inflicted by an
object hitting his head. Jackson was not under the influence of drugs or alcohol when he
died.

                                             14.
The search for defendant
       Defendant was the only suspect and fled the scene. On the morning of Saturday,
March 10, 2007, defendant‟s white van was found in Stockton.
       On or about March 11, 2007, defendant called Shdari Crane. Crane encouraged
defendant to turn himself in. Defendant said he was going to do so.
       On Monday, March 12, 2007, defendant turned himself in to the police at
Highland Hospital in Oakland. The homicide weapon was never located.
Domestic violence expert
       Detective Raquel Rios, a domestic violence investigator with the Merced Police
Department, testified for the prosecution as an expert on domestic violence.10
       Detective Rios testified about the cycle of violence in an intimate relationship, the
various stages, and misconceptions about domestic violence situations.
       Detective Rios testified that power and control play a role in an abusive
relationship. The abusive partner may use both physical violence and emotional
intimidation. An abused partner may not be able to leave the relationship because of
financial dependence on the abuser, and the abused partner may also be afraid that the
abuser‟s threats will become more volatile upon leaving.
       Detective Rios testified while domestic violence is typically displayed from one
partner toward the other partner, it can also extend to the other partner‟s child, parent,
friend, or someone helping out that person. The abusive partner may direct his or her
actions at other people to hurt the abused victim. “They ultimately could be put at risk
because of the mere fact they‟ve been helping them. And, I mean, there is a lot more




       10 In issue II, post, we will address defendant‟s contentions that Rios‟s testimony
constituted inadmissible character and profile evidence.



                                             15.
followed up by that, of course, if there is other incidents that have clearly shown that‟s
going to happen.”
       The prosecutor asked Detective Rios about the following hypothetical situation:

       “[T]here is a woman that was in an abusive relationship for approximately
       three years. She had tried to leave on a couple of occasions, and she
       attempted to leave, her abuser would threaten her. When she finally
       leaves – she was finally able to leave. She was assisted by a male friend of
       hers. Soon after that the male friend and her started dating and her abuser
       started threatening both of them. If I told you that the abuser was
       confronting the male friend would you have an opinion as to why that was
       occurring?”
       Detective Rios replied that it depended on how many times the person confronted
the victim and what actions occurred. The prosecutor asked Rios to assume the facts and
circumstances from the police reports about Castle and Jackson. Rios testified that in her
opinion, based on the history of domestic violence and subsequent threats, Jackson “was
being stalked as much as Ms. Castle was” because of Jackson‟s relationship with Castle.
       On cross-examination, defense counsel asked to assume further facts in the
hypothetical, that the old and new boyfriends had known each other. Detective Rios
conceded that the old boyfriend may have simply been angry at the new boyfriend
because he ran off with his girlfriend, since the men had been friends.
                                 DEFENSE EVIDENCE
       Angela Romero11 testified that on the afternoon of the homicide, she was at the
home of Benito “Benny” Aguirre (Aguirre), located near the intersection of Cone Avenue
and G Street.




       11 Romero admitted she had misdemeanor convictions in 2005 and 2007 for petty
theft and unlawfully taking or driving a vehicle.



                                             16.
       Romero testified that she saw the van and the SUV parked on the side of the road.
The two vehicles were lined up straight, one in front of the other. Romero insisted that
the van had not cut off the SUV. The van‟s door was ajar. The bus was behind the SUV.
       Romero saw two men fighting near the van‟s open door. The men were punching
each other. She recognized Jackson, and he was on top of defendant. Jackson was
punching and beating defendant, and Jackson was winning the fight. Defendant‟s back
was against the van‟s open door, and he was trapped between the van and the open door
while Jackson was beating him.
       Romero testified that Aguirre crossed the street and approached the two men.
Aguirre told them to “knock it off” and stop fighting. Jackson slowly got up and backed
away from defendant.
       Romero testified that something “silver-ish” fell out of defendant‟s pocket.
Aguirre turned around and said, “ „[H]e‟s got a gun,‟ ” and ran away from the two men.
Romero did not see any weapon.
       Romero testified that she rushed back into Aguirre‟s house and did not see the
actual shooting. She heard gunshots, turned around, and saw Jackson on the ground.
Defendant jumped into the van and left.
       On cross-examination, Romero conceded that she had previously told the police
that she saw Jackson get shot while he was lying on the ground. Romero also conceded
that she previously said that “ „all of a sudden the guy was over [Jackson] and he just
pow, pow, pow, pow .…‟ ”12




       12Romero admitted that her son was incarcerated in the main jail at the time of the
trial. Romero testified that in the weeks prior to the start of the trial, she told a member
of Jackson‟s family that she was afraid to testify because she felt it could endanger her
son.


                                            17.
                        DEFENDANT’S TRIAL TESTIMONY
       Defendant testified at trial about his relationships with Castle and Jackson, and the
homicide. His account was vastly different from the testimony of the prosecution
witnesses.
       Defendant denied that he hit or threatened Castle during their relationship and
testified that Castle lied about all the domestic violence incidents. Defendant insisted that
Castle would have filed some type of report if she had been beaten.
       Defendant testified that he had relationships with other women while he was living
with Castle and fathered a child with another woman. Defendant told Castle about these
relationships, and they did not have any problems. Defendant further testified that Castle
was also seeing other people.
       Defendant testified that in November 2006, Jackson asked him to go to Oakland
with him. When he returned to Merced, he discovered Castle had left him. However,
Castle returned about one week later and gave him an ultimatum to stop seeing other
women. Defendant said no and continued to see other women.
       A few weeks later, Castle again left defendant. Defendant denied that Castle left
him because he was an abusive bully. Defendant was not angry that she left. However,
Castle used to contribute to the rent on defendant‟s house, and he was concerned about
how he was going to pay by himself. Defendant concluded that he would have to “do a
little more hustling” and sell “a lot of weed” to make rent. After Castle left him,
defendant dated Shdari Crane and described their relationship as being “sex buddies.”
       The vandalism
       In January 2007, defendant‟s landlord advised him that Castle‟s name had been
removed from the rental agreement, he owed $3,000 in back rent, and he had to move out
by March. Defendant was surprised and called Castle about it, but she hung up.
Defendant was upset about the rent issue.



                                            18.
       Defendant learned that Castle was living with Jackson, but testified that he was not
angry or jealous about it. However, defendant did not think it was “right” for Jackson
and Castle to have a relationship because Jackson‟s son and Castle‟s daughter were
cousins.13
       Defendant heard from mutual friends that Jackson blamed him for the vandalism
of his residence. A friend dropped off defendant at the home of Jackson‟s mother, and
defendant talked to Jackson about the vandalism. Defendant told him that he did not do it
and asked Jackson to stop accusing him of it. Jackson told defendant that a red SUV was
seen near the mobile home at the time of the vandalism. Defendant replied that he did
not own a red truck. Jackson mentioned that defendant could have borrowed a mutual
friend‟s red Cadillac Escalade SUV. Defendant admitted that he had borrowed the
friend‟s red Escalade for 15 to 20 minutes on the day of the vandalism, but claimed he
only used it to conduct a marijuana transaction in an alley.14
       During that same visit, defendant also spoke to Castle about the overdue rent.
Castle told defendant not to worry about it, that she would pay it, and to leave her alone.
Defendant testified that he was only angry because Castle had failed to pay his landlord.
       Defendant testified that everyone in Jackson‟s family blamed him for the
vandalism and it hurt him “[d]eeply” because they had all been friends. However,
defendant felt everything was “good” with Jackson after their conversation, and Jackson
drove defendant back to his house.



       13   Castle had a daughter; that child‟s father was the brother of Khalil‟s mother.
       14 Defendant testified he was allowed to smoke marijuana because he had a
“medical marijuana card” for a job-related back injury. Defendant admitted he also sold
marijuana in Merced; that he carried a firearm when he sold drugs; that he was an ex-
felon; that he knew the medical marijuana card did not allow him to sell drugs; and he
knew he was committing a crime by selling drugs and carrying a weapon.



                                              19.
      The restraining order
      Defendant testified that the police served him with a restraining order a few weeks
later. Defendant was angry because none of the abuse or vandalism allegations were true.
      Defendant testified that he saw Jackson at an intersection, stopped at the light, and
asked him about the restraining order. Jackson told defendant to go about his business.
Defendant admitted he briefly stepped out of his car and acknowledged that conduct
violated the restraining order. Defendant drove away when the light turned green.
      Defendant’s gun and asp
      Defendant testified that about a month before the homicide, he obtained a small,
chrome-colored .32-caliber Derringer. He bought the gun and an asp from “a guy in an
alley” to have protection, even though he thought things were “cool” with Jackson. He
did so because a friend had told defendant that Jackson was asking around for a gun.
Defendant began carrying both weapons with him, even though he knew that as a felon
he could not possess a firearm.15
      Defendant testified that Joseph Coney lied when he testified that defendant said he
was angry about Jackson and Castle, and that he wanted to kill Jackson. Defendant
denied leaving any threatening messages for Castle after they separated.
      The day of the homicide
      Defendant testified that while Shdari Crane visited him several hours before the
homicide, she lied when she claimed to have seen a gun because the weapon was hidden
in a dresser drawer that day. However, defendant admitted that Crane had previously
seen the gun and asp when he visited her house.
      Defendant testified he was carrying his gun when he left his house on March 8,
2007. Later that day, defendant went to family court and filed his response to the

      15 Defendant admitted that he had prior felony convictions in 1992 and 1993,
including one for evading the police, and he knew that he could not possess a firearm.


                                           20.
restraining order. Defendant left the gun in the van when he went into the courthouse.
When he returned to his van, he put his gun in his pocket. He went to a friend‟s house
and they smoked marijuana. He later gave a ride to the friends‟ nieces and dropped them
off at a house near Jackson‟s mother. Defendant denied that he went into that
neighborhood to look for Jackson.16
       Defendant testified that he drove to a gas station and passed Jackson as he was
driving in the opposite direction. Defendant denied that he was looking for Jackson or
that he was angry about the restraining order. Defendant turned onto Cone Avenue, and
Jackson turned behind him. Defendant stopped at the intersection to turn. Jackson was
following him and did not pass on the side. Defendant admitted that he stopped in the
middle of the street and “just bounced out” of his van to talk to Jackson about the
restraining order. Defendant knew the restraining order was still in effect, it protected
both Jackson and Khalil, and Khalil was in the car, but he still decided to violate the
order and talk to Jackson.
       Defendant disputed Khalil‟s account that defendant and Jackson spoke at the mini-
mart, or that defendant gestured his hand like he was firing a gun. Defendant also denied
that he said they should not go to the mini-mart because there were cameras there, or
suggested they should go to Jackson‟s mother‟s house. When asked why he stopped in
the middle of the intersection, defendant testified that he “felt like we could have that

       16  Jacqueline Hill testified that defendant gave her and her sister a ride that
afternoon. Louwanna Vaughn, their mother, testified that defendant dropped off Hill and
her sister at her house around 4:00 p.m. Vaughn lived near Cone Avenue and G Street.
Anywhere from 10 to 30 minutes later, Vaughn and Hill heard gunfire. Vaughn looked
outside and just saw a crowd of people.
        A police detective testified that he interviewed Vaughn on the day of the homicide
because she lived in the neighborhood. Vaughn stated that she heard a couple of
gunshots and then heard an engine “rev” and tires “burn rubber.” However, Vaughn said
she was home alone when she heard the gunshots; she never said her daughters were also
home.


                                             21.
conversation right” there at the corner, instead of following Jackson to his mother‟s
house.
         The fight
         Defendant denied that he cut off Jackson‟s SUV and disputed the testimony of the
witnesses at the scene, that the van was parked at an angle in front of the SUV.
         Defendant admitted that when he got out of the van to speak to Jackson, he had
both the asp and gun in his pocket. Defendant insisted that he did not intend to fight with
Jackson. Defendant testified that Khalil was wrong when he said that defendant was
holding the asp when he got out of his van.
         Defendant testified that Jackson got out of his vehicle, and they cursed and argued.
Jackson punched him in the jaw. Defendant fell down and Jackson moved toward him.
Defendant reached in his pocket for the asp and swung it at Jackson. Jackson blocked the
asp with his arm, and it fell to the ground.
         Defendant testified that Jackson grabbed his waist, tackled him, and pushed him
back to the van. Defendant fell into the van‟s open doorway, and defendant thought he
suffered a broken rib. Jackson threw a couple of punches. Defendant was able to push
Jackson away. Defendant tried to get into his van, but Jackson grabbed him again.
Defendant “bounced” against the van, and they fell into the street. Jackson punched
defendant in the head while defendant was lying on his back. Defendant kicked Jackson,
and he stumbled backwards.
         The homicide
         Defendant testified that he saw the asp lying on the street and started to crawl
toward it. He also saw his gun on the ground. He picked up the gun because he did not
want anyone else to have it. Defendant did not want to shoot Jackson. Jackson was
about eight feet away from him. Defendant held the gun in his left hand, against his
body.



                                               22.
          Defendant testified that “[a]ll of a sudden some guy just come out of nowhere and
try to take the gun from me and the gun went off.” Defendant did not know this man,
who was later identified as Aguirre. Defendant testified that Aguirre held defendant‟s
hand and wrist, and the gun discharged. Jackson had been leaning slightly forward.
Jackson “kind of turned,” and defendant thought he was hit in the shoulder. Defendant
testified that he was still on the ground, and he continued to struggle with Aguirre for
control of the gun. The gun “went off again” and fell to the ground. Jackson stumbled to
his knees and then fell in the street. Aguirre ran away into the neighborhood.
          Defendant testified that the shooting was an accident, and he did not shoot Jackson
out of fear, self-defense, or heat of passion over his relationship with Castle. Defendant
testified the gun went off because Aguirre wrestled with him for the gun.
          Defendant testified that Munoz, the bus driver, was wrong when he said that
Aguirre left the area prior to the gunshots being fired. Defendant also insisted the bus
driver was wrong when he testified that defendant pointed the gun at Jackson‟s prone
body and fired twice.
          Defendant testified that after the two gunshots were fired, he picked up the gun,
panicked, and left the scene. Defendant threw the gun on the freeway, drove to Stockton,
met a friend there, and abandoned his van. Defendant got rid of the gun because “[t]here
was no need” for it anymore. Defendant went to Oakland and turned himself in to the
police.
          Defendant insisted the shooting was an accident, and he never tried to kill Jackson.
He ran away because he panicked. Defendant admitted that it took five days until he
turned himself in, even though it was an accident. Defendant denied that he told anyone
that he shot Jackson in self-defense.
          Defendant testified that he did not bear any responsibility for Jackson‟s death.




                                               23.
       “[THE PROSECUTOR]. … So if you, Mr. White, the felon, hadn‟t
       shown up with a firearm that you were not supposed to own or possess,
       would [Jackson] be here today?

       “A.    Yes.

       “Q.    But you don‟t have any responsibility for his death?

       “A.    Yes, I have responsibility for his death.

       “Q.    All right. Which is it, sir, cuz [sic] you told us both.

       “A. If [Aguirre] wouldn‟t have tried to take the gun [Jackson] would still
       be here today.

       “Q. Ah. Not if you hadn‟t shown up with a firearm [Jackson] would still
       be here. If a good samaritan hadn‟t come and tried to breakup a fight
       [Jackson] would be here today?

       “A.    Exactly.”
                                       REBUTTAL
       The prosecutor recalled Shdari Crane as a rebuttal witness. Crane testified she
maintained contact with defendant after he was arrested and talked to him in jail by
telephone. She mentioned the homicide and defendant “just kept saying it was self-
defense.” Defendant never said that Jackson was accidentally shot.
       The prosecutor also called Benny Aguirre as a rebuttal witness. Aguirre identified
himself as the neighborhood bystander who tried to approach defendant and Jackson as
they were fighting, as described by Khalil, Munoz (the bus driver), and even defendant.
However, he categorically disputed defendant‟s claim that he wrestled with defendant for
the gun, or that he was responsible for discharging the fatal gunshot into Jackson‟s body.
       Aguirre testified that he lived with his girlfriend, Ashley Brown, on Cone Avenue.
He heard the sounds of tires squealing and brakes slamming and looked outside. He saw
two men getting out of their cars. Aguirre recognized Jackson, but he did not know
defendant.




                                             24.
       Aguirre testified that defendant got out of his car and was carrying an object that
looked like a stick. Defendant swung the stick at Jackson. Jackson blocked the stick, and
it flew away. Jackson started “smashing” at defendant and “socked” him. Jackson
“whipped his ass.”
       Jackson took defendant down to the ground, and several items fell out of
defendant‟s pockets. Aguirre was about 20 feet away. He saw a “small chrome thing” on
the ground, and thought it could have been a knife, “a knuckle thing,” or some type of
“fighting object.”
       Defendant and Jackson continued to fight on the street. Aguirre thought defendant
was “going for” the small chrome thing. Aguirre was not going to break up the fight, but
he wanted to kick the shiny object out of the way to prevent the situation from escalating.
       Aguirre walked toward the two men and tried to kick the shiny object away.
Defendant crawled toward it faster and reached the object before Aguirre. Defendant
picked it up, and Aguirre realized it was a gun. Aguirre never reached for or touched the
gun.
       Aguirre testified that defendant pointed the gun at Aguirre. Aguirre became
frightened and yelled, “Gun, gun.” As defendant pointed the gun at Aguirre, Jackson was
getting up from the ground. Jackson was about four to six feet away from defendant and
backing away from him. Aguirre started to back away from defendant as he aimed the
gun at him.
       Aguirre testified that defendant turned the gun away from Aquirre, pointed the gun
at Jackson, and fired it at Jackson. Aguirre thought defendant fired two or three shots at
Jackson, and that the shots hit Jackson in the eye and chest. Aguirre testified that after
defendant fired the shots, he jumped into the van and took off.
       Aguirre testified that he never got closer than three feet from the gun. Aguirre
never touched or fired the gun, and he never wrestled with defendant for control of the



                                             25.
gun. Aguirre did not feel responsible for Jackson‟s death or fear that he would be
charged in the case.
                                      DISCUSSION
I. Admission of evidence about vandalism of Jackson’ mobile home
       Defendant contends the court committed prejudicial error when it granted the
prosecution‟s motion to introduce evidence about the vandalism of Jackson‟s mobile
home, and that both Jackson and Castle believed defendant was responsible for the
vandalism. Defendant contends that he was never arrested or charged with the
vandalism, and there was no evidence which connected him to the incident. Defendant
argues the admission of this evidence was irrelevant, prejudicial, and violated his due
process rights.
       A. Background
       The prosecution filed a pretrial motion pursuant to Evidence Code section 1101,
subdivision (b), to admit evidence about the vandalism of Jackson‟s trailer, the belief of
Jackson and Castle that defendant was responsible for the incident, and their decision to
obtain a restraining order against defendant as a result of the vandalism. The prosecution
argued the evidence was admissible to establish defendant‟s motive to murder Jackson,
because defendant repeatedly complained about the restraining order to Castle and
Jackson and denied that he committed the vandalism.
       The prosecution‟s motion also declared that an SUV was seen by the mobile home
on the day of the vandalism, and Castle determined that defendant used an SUV owned
by Kathleen Sanchez that day. The prosecutor declared that Sanchez had been
subpoenaed and would testify at trial.
       Defendant opposed the motion and argued it was speculative that he committed
the vandalism; no one knew who was responsible; and it was irrelevant that Castle
believed he was responsible. Defendant also objected to Castle testifying about any
hearsay evidence that might have connected defendant to the incident.

                                            26.
       The trial court granted the prosecution‟s motion and permitted the evidence, based
on People v. Barnett (1998) 17 Cal.4th 1044 (Barnett).17 The court found the evidence
was relevant to establish defendant‟s motive to retaliate against Jackson and Castle
because they were dating. The court found the evidence was relevant because in his reply
to the restraining order, defendant acknowledged that Jackson had accused him of
vandalizing and burglarizing his mobile home, and defendant stated he had nothing to do
with the incident. The court advised defendant that he could object if Castle offered
hearsay evidence on that topic.
       In opening statement, defense counsel addressed the vandalism evidence and
stated that defendant was “disappointed and angry” when Castle left him and moved in
with Jackson, that there was a vandalism incident at Jackson‟s mobile home, and
“perhaps you‟ll even hear from the defendant admit that, yeah, I was ticked off at my
friend for doing this.”
       As set forth ante, Castle testified at trial about the vandalism of Jackson‟s mobile
home, and the angry call she received from defendant a few hours before she discovered
the vandalism had occurred. The prosecution did not call Kathleen Sanchez as a witness.
During defendant‟s testimony, however, he admitted that he borrowed Sanchez‟s SUV on
the day of the vandalism.
       At the conclusion of the evidence, the court instructed the jury with CALCRIM
No. 375, which addressed both the vandalism and domestic violence evidence (which
will be discussed in issue II, post).

              “The People presented evidence that the defendant committed the
       offenses of battery upon Lashe Castle on more than one occasion and
       vandalism that were not charged in this case.



       17   We will discuss Barnett in issue I(C), post.



                                              27.
              “You may consider this evidence only if the People have proved by
       a preponderance of the evidence that the defendant, in fact, committed the
       offenses.… If the People have not met this burden, you must disregard this
       evidence entirely.

               “If you decide that the defendant committed the offenses you may,
       but are not required to, consider that evidence for the limited purpose of
       deciding whether or not the defendant had a motive to commit the offenses
       alleged in this case. Do not consider this evidence for any other purpose.
       Do not conclude from this evidence that the defendant has a bad character
       or is disposed to commit crime.

              “If you conclude that the defendant committed the uncharged
       offenses that conclusion is only one factor to consider along with all the
       other evidence. It is not sufficient by itself to prove that the defendant is
       guilty of murder. The People must still prove every charge beyond a
       reasonable doubt.” (Italics added.)
       B. Motive
       Defendant contends that testimony about the vandalism incident constituted
inadmissible character evidence. “In general, „evidence of a person‟s character or a trait
of his or her character (whether in the form of an opinion, evidence of reputation, or
evidence of specific instances of his or her conduct) is inadmissible when offered to
prove his or her conduct on a specified occasion.‟ [Citation.] Such evidence is
admissible, however, „when relevant to prove some fact (such as motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether
a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act
did not reasonably and in good faith believe that the victim consented) other than his or
her disposition to commit such an act.‟ [Citation.]” (People v. Page (2008) 44 Cal.4th 1,
40; Evid. Code, § 1101, subd. (b).)
       “Such evidence of other uncharged crimes may be introduced once its proponent
establishes, by a preponderance of evidence, both the fact of the prior offense and the
defendant‟s connection to it. [Citations.] Under the Evidence Code, the truth of the prior
uncharged act and defendant‟s connection to it are preliminary factual issues which must


                                             28.
be decided before the prior misconduct can be deemed admissible; if the prior and
defendant‟s connection to it are not established by a preponderance of the evidence, the
prior is irrelevant to prove the … section 1101(b) fact for which it is being offered.
[Citations.]” (People v. Garelick (2008) 161 Cal.App.4th 1107, 1115.)
       “Motive is always relevant in a criminal prosecution.” (People v. Perez (1974) 42
Cal.App.3d 760, 767.) “Motive describes the reason a person chooses to commit a crime.
The reason, however, is different from a required mental state such as intent or malice.”
(People v. Hillhouse (2002) 27 Cal.4th 469, 504.) “Motive is an intermediate fact which
may be probative of such ultimate issues as intent [citation], identity [citation], or
commission of the criminal act itself [citation].” (People v. Scheer (1998) 68
Cal.App.4th 1009, 1017-1018.)
       Even if evidence of prior bad acts is relevant on the issue of motive, however, the
court must determine the probative value of the evidence under section 352. (People v.
Lewis (2001) 25 Cal.4th 610, 637; People v. Scheer, supra, 68 Cal.App.4th 1009, 1018.)
“ „[B]ecause a motive is ordinarily the incentive for criminal behavior, its probative value
generally exceeds its prejudicial effect, and wide latitude is permitted in admitting
evidence of its existence.‟ [Citations.]” (People v. Gonzalez (2005) 126 Cal.App.4th
1539, 1550.)
       The court‟s determinations on relevance, motive, and prejudice are subject to
review for an abuse of discretion. (People v. Lewis, supra, 25 Cal.4th at p. 637; People v.
Rodriguez (1999) 20 Cal.4th 1, 9-10.)
       C. Analysis
       The court did not abuse its discretion when it found that the vandalism evidence
was relevant and probative as to defendant‟s motive. As the court noted, the California
Supreme Court addressed a very similar situation in People v. Barnett, supra, 17 Cal.4th
1044, which involved a complicated factual situation about relevance, motive, and
prejudice. In Barnett, the defendant was convicted of the kidnapping and murder of the

                                             29.
victim, Richard Eggett. The defendant and Eggett worked together at a remote campsite,
dredging for gold, over a two-year period. Christine Racowski and Dave McGee
occasionally visited the camp. Tensions developed between all the relevant parties,
particularly the defendant and Eggett. The defendant accused Eggett of stealing gold
from him. The dispute escalated to an armed confrontation between the defendant,
Eggett and several others who were at the campsite. The defendant shot Eggett in the
feet, beat him, drove him into the woods, and fatally stabbed him. (Id. at pp. 1070-1074)
         Barnett explained that during the guilt phase, Racowski testified about an incident
when Eggett‟s Jeep had been sabatoged about a year before the murder. Racowski
indicated that defendant had been suspected of vandalizing Eggett‟s Jeep. McGee also
testified about the vandalism, but the court granted the defense motion to limit McGee‟s
testimony as to who he suspected vandalized the Jeep, unless his testimony was based on
his personal knowledge. McGee testified that when he was at the camp, there was
tension between the defendant and Egget. McGee and Eggett later discovered that
Eggett‟s Jeep engine had been vandalized with a screw in the engine. Eggett and McGee
reported the incident to the sheriff. However, McGee also testified that the defendant
“ „sabatoged the vehicle.‟ ” Defense counsel‟s objection was sustained. (Barnett, supra,
17 Cal.4th at p. 1119.)
         Barnett held that McGee‟s testimony about the sabatoge of the Jeep was relevant
to establish the defendant‟s motive to murder Eggett. (Barnett, supra, 17 Cal.4th at pp.
1119-1120) The court rejected the defendant‟s argument that McGee‟s testimony was
inadmissible “because there was no „competent‟ proof of defendant‟s involvement in the
incident,…” or that the testimony consisted of inadmissible character evidence. (Id. at p.
1120.)

                “Whether or not defendant‟s involvement in the sabotage was
         adequately established, the relevance of McGee’s testimony lay in the fact
         that he and Eggett attributed the sabotage to defendant in their report to
         the sheriff. According to [another witness], defendant angrily complained

                                             30.
       on the day of the murder that Eggett had „turned him in‟ for „putting
       machine screws down the carburetor‟ of Eggett‟s Jeep. Thus McGee‟s
       testimony … supported the prosecution‟s theory that defendant tortured and
       killed Eggett for revenge. [¶] Because McGee‟s testimony was relevant to
       the issue of motive, its admission did not violate the statutory restriction
       contained in Evidence Code section 1101, subdivision (b).…” (Ibid., italics
       added.)
       In this case, as in Barnett, the court properly allowed Castle and Khalil to testify
that they believed – along with Jackson – that defendant was responsible for the
vandalism of Jackson‟s trailer. The prosecution witnesses explained that defendant and
Jackson had been friends, they worked together, they frequently socialized, and they
never had any problems between them. Their relationship changed when Castle left
defendant and moved in with Jackson. Their relationship deteriorated after the vandalism
incident because Jackson and Castle believed defendant was responsible. Indeed, the
vandalism of Jackson‟s mobile home was a vital fact for the violent tragedy that unfolded
in this case. Castle testified that defendant called her when she was out of town with
Jackson, and he was very angry because he was about to be evicted from the house they
had shared since Castle had stopped paying rent. Defendant told Castle that she “would
pay for it.”
       When Castle and Jackson returned to the mobile home that night, they discovered
it had been vandalized and burglarized, and they believed defendant was responsible.
Their belief was based on defendant‟s angry and threatening words during the telephone
call, which had occurred earlier that day.
       We note the prosecution‟s offer of proof for this evidence was partially based on
Castle‟s testimony that a certain type of SUV was seen near the mobile home at the time
of the vandalism, and the expected testimony of Kathleen Sanchez, that defendant had
borrowed her SUV that day. The prosecution never called Sanchez as a witness. During
his own trial testimony, however, defendant addressed this issue and admitted that he had
borrowed that type of SUV on the day of the vandalism, but insisted that he only used the


                                             31.
vehicle to conduct a marijuana transaction. Thus, the jury heard confirmation for
Castle‟s belief that defendant had borrowed a vehicle which matched the description of
the suspect‟s vehicle. In addition, the jury received a limiting instruction about the
vandalism evidence, that it could not consider the vandalism evidence as relevant to
defendant‟s motive unless it found that the People had proved by a preponderance of the
evidence that the defendant in fact committed the offenses.
       Barnett held that the evidence about the destruction of the engine was relevant and
probative because the witnesses filed a police report and attributed the damage to the
defendant; the defendant was angry they had blamed him; and the defendant‟s anger was
a motive for the murder. (Barnett, supra, 17 Cal.4th at p. 1120.) As with the police
report in Barnett, the vandalism incident was relevant and probative in this case because
it was the basis for the allegations in the restraining order. The entire situation could
have ended with the restraining order. Instead, the conflict escalated as defendant
repeatedly confronted Jackson and Castle – either in person or on the telephone – and
expressed his fury and anger about being named in the restraining order, and that they
had obtained the restraining order by alleging that defendant was responsible for the
vandalism. Indeed, defendant held up the restraining order in his car when he confronted
Jackson and Khalil at the intersection near Wal-Mart.
       Moreover, the vandalism evidence “was no stronger and no more inflammatory”
than the other admissible testimony about defendant‟s repeated threats and angry
statements to Jackson; defendant‟s admission that he knowingly violated the restraining
order on multiple occasions; his habit of confronting Jackson and Castle by stopping
traffic in busy intersections; his purchase of a gun and billy club during this period; and
the murder itself, committed in front of Jackson‟s 11-year-old son. (See, e.g., People v.
Ewoldt (1994) 7 Cal.4th 380, 405.)
       As in Barnett, the evidence about the vandalism, and how it led to the restraining
order and defendant‟s anger at both Jackson and Castle, was highly relevant and

                                             32.
probative of defendant‟s motive to assault and murder Jackson. The court did not abuse
its discretion, and the evidence was not inadmissible character evidence. Also, as in
Barnett, the jury received the appropriate limiting instruction which minimized any
danger that the jury would rely on that evidence for an improper purpose. (See, e.g.,
Barnett, supra, 17 Cal.4th at p. 1120.) We presume the jury followed the court‟s limiting
instruction. (People v. Sanchez (2001) 26 Cal.4th 834, 852.)
          Finally, defendant contends that the admission of the vandalism evidence violated
his federal constitutional due process rights. We note that defendant did not raise this
objection at trial and has waived it. (Barnett, supra, 17 Cal.4th at p. 1119, fn. 54.) We
further note that a defendant‟s federal due process rights are not implicated when, as is so
in this case, the disputed evidence is relevant, material, and admissible on the grounds
provided for in section 1101, subdivision (b). (People v. Catlin (2001) 26 Cal.4th 81,
123.)
II. Admission of evidence about domestic violence
          Defendant next contends the court committed prejudicial error when it permitted
Castle to testify about the domestic violence incidents that occurred when she was living
with defendant, and allowed the prosecution to introduce the testimony from the domestic
violence expert. As in issue I, ante, defendant argues such testimony was irrelevant and
prejudicial, constituted inadmissible character, evidence and violated his due process
rights.
          A. Background
          The prosecution‟s pretrial motion sought to introduce Castle‟s testimony that
defendant committed prior acts of domestic violence against her during their relationship.
The prosecution argued such evidence was relevant and probative of defendant‟s motive
and common scheme or plan to murder Jackson, because of defendant‟s anger that Castle
left him for Jackson. The prosecution further argued that defendant murdered Jackson as



                                              33.
the “culmination of a cycle of violence” that defendant inflicted on both Castle and
Jackson.
       Defendant objected to Castle‟s proposed testimony as inadmissible character
evidence because defendant had not been charged with committing any offenses against
Castle in this case. The prosecutor replied that the case involved an “escalating campaign
of violence” against Castle and Jackson, and defendant murdered Jackson as “the
ultimate act that he sought to commit” to punish Castle and Jackson for being in a
relationship. The prosecutor offered to call a domestic violence expert to explain the
cycle of violence and how it would affect a domestic violence victim‟s family and
friends.
       The court believed the domestic violence evidence was relevant and probative as
to defendant‟s cycle of violence and threats against Castle, his resentment of Castle‟s
relationship with Jackson, and his motive to murder Jackson. However, the court
declined to admit the evidence unless the prosecution established a foundation through
expert testimony about this domestic violence issue. Defendant objected to a domestic
violence expert, but the court overruled the objection.

       “THE COURT:            … I‟ll allow those [domestic violence] incidents
       because I think it is relevant as far as motive, but that would be subject to
       some type of foundation being laid as far as making them relevant to that
       issue based upon . . . [an] alleged relationship between Ms. Castle and
       [defendant].”
       As summarized, ante, the prosecution called Detective Rios as the domestic
violence expert, and Castle testified about defendant‟s acts of domestic violence during
their relationship.
       As noted in section I, ante, the jury received CALCRIM No. 375, a limiting
instruction which addressed both the vandalism and domestic violence evidence, and that
the jury could only consider the domestic violence evidence for motive.




                                             34.
       B. Motive
       As with the vandalism evidence, defendant contends the domestic violence
testimony constituted inadmissible character evidence. However, the domestic violence
evidence was properly admitted to establish motive pursuant to Evidence Code section
1101, subdivision (b), and not as inadmissible character evidence. (People v. Page,
supra, 44 Cal.4th 1, 40.)
       A similar evidentiary situation was addressed in People v. Lewis and Oliver
(2006) 39 Cal.4th 970 (Lewis), where the court held that evidence of multiple uncharged
domestic violence incidents, and threats to the family members of murder victims, was
relevant and probative of the defendants‟ motives to commit first degree murder. Lewis
held the trial court properly admitted these prior uncharged incidents because the
evidence “permitted reasonable inferences about defendants‟ motive, identity, and
opportunity to commit the charged crimes. The [trial] court stressed the close timing and
similar nature of the acts, the relationship between the victims and defendants,
defendants‟ familiarity with the victims‟ property, and defendants‟ access to the murder
weapon.” (Id. at p. 1001.) “The uncharged acts showed an escalating campaign to
retaliate against [the victim] and her family for the marital breakup. This motive also
suggested that defendants were the perpetrators, and that they intended and premeditated
the victims‟ deaths. [Another incident] … showed defendants had the means to commit
the murders.” (Ibid.) Lewis found the trial court did not abuse its discretion as to either
relevance or prejudice, and the jury received the appropriate limiting instruction. (Ibid.)
       In this case, the evidence of defendant‟s history of domestic violence and threats
against Castle was highly relevant and probative of his motive to assault and murder
Jackson and was not admitted as prejudicial character evidence. Indeed, murder has been
described as “ „the ultimate form of domestic violence,‟ ” and the culmination of a history
of violence between a defendant and a domestic partner. (See, e.g., People v. Brown



                                             35.
(2011) 192 Cal.App.4th 1222, 1237; People v. Younger (2000) 84 Cal.App.4th 1360,
1384.)
         Lewis explained the relevance and probative value of domestic violence evidence
as the motive for the escalation of violence and retaliation against the abused partner‟s
family. (Lewis, supra, 39 Cal.4th at pp. 1000-1001.) Defendant continued his pattern of
physical and emotional violence against Castle by extending that violence and anger
toward Jackson, his friend and her new boyfriend. He repeatedly threatened Castle
because of their separation, and his belief that she was responsible for his imminent
eviction. He admittedly violated the restraining order by confronting Jackson in Khalil‟s
presence, in a threatening manner, and complained about the restraining order and his
relationship with Castle. Defendant‟s escalation of violence against Jackson was an
extension of his anger at Castle. The evidence was admissible for his motive to kill
Jackson, and the jury received the appropriate limiting instruction that such evidence was
only admissible to prove motive and not defendant‟s bad character.
         C. The expert’s testimony and profile evidence
         Defendant separately asserts that the testimony from Detective Rios, the
prosecution‟s domestic violence expert, constituted inadmissible profile evidence and
should have been excluded.
         “ „[E]xpert opinion testimony is admissible only if the subject matter of the
testimony is “sufficiently beyond common experience that the opinion of an expert would
assist the trier of fact.” [Citation.]‟ ” (People v. Vang (2011) 52 Cal.4th 1038, 1044.) It
is well recognized that expert testimony regarding domestic violence, battered women‟s
syndrome, and the cycle of violence is admissible because it is sufficiently beyond
common experience and “relevant to explain that it is common for people who have been
physically and mentally abused to act in ways that may be difficult for a layperson to
understand. [Citation.]” (People v. Riggs (2008) 44 Cal.4th 248, 293; see also People v.



                                              36.
Brown (2004) 33 Cal.4th 892, 895-896, 905-907; People v. Humphrey (1996) 13 Cal.4th
1073, 1087-1088; People v. Williams (2000) 78 Cal.App.4th 1118, 1129.)
       Expert testimony on these subjects is relevant to the credibility of the person who
has been battered because it may assist the jury “ „by dispelling many of the commonly
held misconceptions about battered women.‟ [Citation.]” (People v. Humphrey, supra,
13 Cal.4th at p. 1087.)
       In addition, a properly qualified expert may testify on domestic violence issues
“when it is relevant to a contested issue at trial other than whether a criminal defendant
committed charged acts of domestic violence. [Citations.]” (People v. Gadlin (2000) 78
Cal.App.4th 587, 592.) The testimony of Detective Rios, the prosecution‟s expert, was
properly admitted to explain Castle‟s reaction to defendant‟s domestic violence, her
decision to leave him and to ask Jackson to help her, defendant‟s continuing anger and
threats toward Castle after she left him, and the extension of his anger and violence
toward Jackson.
       More importantly, Detective Rios‟s testimony did not amount to inadmissible
profiling evidence against defendant. “A profile ordinarily constitutes a set of
circumstances –some innocuous – characteristic of certain crimes or criminals, said to
comprise a typical pattern of behavior. In profile testimony, the expert compares the
behavior of the defendant to the pattern or profile and concludes the defendant fits the
profile. [Citation.]” (People v. Prince (2007) 40 Cal.4th 1179, 1226.)
       “Profile evidence is generally inadmissible to prove guilt.” (People v. Robbie
(2001) 92 Cal.App.4th 1075, 1084 (Robbie).) “Profile evidence is objectionable when it
is insufficiently probative because the conduct or matter that fits the profile is as
consistent with innocence as guilt.” (People v. Smith (2005) 35 Cal.4th 334, 358.)
       However, “[n]ot all testimony concerning general patterns of criminal activity is
„profile‟ testimony. „Profile evidence is a “point by point examination of profile
characteristics” that enable[s] the investigator to justify pursuing the matter.‟ [Citation.]”

                                             37.
(People v. Lopez (1994) 21 Cal.App.4th 1551, 1555.) “By contrast, background
testimony is not „profile‟ evidence and does not specifically address the guilt or
innocence of the defendant. Instead, it enables the jury to understand other evidence that
does address guilt or innocence. [Citations.]” (Id. at p. 1556.)
       The disputed issue in this case was whether defendant was guilty of first degree
premeditated murder or, according to his trial testimony, guilty of a lesser offense or not
guilty because the gun accidentally discharged when Aguirre and defendant allegedly
wrestled for control of it. The court properly permitted the prosecution to introduce
evidence about the vandalism of Jackson‟s mobile home, the restraining order, and the
prior domestic violence incidents, as relevant and probative of defendant‟s motive.
       Detective Rios did not testify that defendant fit the profile of a first degree
murderer, or tie the methodology of the perpetrators of domestic violence to whether
defendant was guilty of first degree murder. Her response to the hypothetical questions
did not amount to an opinion on defendant‟s guilt of first degree premeditated murder.
Instead, she believed the situation was consistent with the perpetrator stalking the victim.
Indeed, it was virtually undisputed that defendant repeatedly crossed paths with Castle
and/or Jackson after Castle left him – he showed up at the house of Jackson‟s mother to
confront Castle about living with Jackson; he repeatedly called and threatened Castle
about leaving him and the eviction notice; he confronted Jackson in an intersection near
Wal-Mart; and he refused to fight at the mini-mart. Defendant even admitted these
incidents occurred and that he repeatedly violated the restraining order, but attempted to
characterize them in a different light.
       Defendant contends Detective Rios‟s testimony was identical to the type of profile
evidence which was criticized in People v. Robbie, supra, 92 Cal.App.4th 1075. In that
case, the defendant was charged with multiple sex offenses. A prosecution expert
testified that many rapists use only minimal force, and described in detail a scenario in
which the rapist is in effect acting as if he thinks of the sexual acts as consensual. (Id. at

                                              38.
pp. 1082-1084.) The expert described behavior which matched the testimony of the
alleged victim. The expert conceded that the same behavior would be consistent with a
truly consensual encounter. Robbie characterized this evidence as inadmissible “profile
evidence.” “[The evidence] implies that criminals, and only criminals, act in a given
way. In fact, certain behavior may be consistent with both innocent and illegal behavior,
as the People‟s expert conceded here.” (Id. at p. 1085.)
       This case did not involve the situation which Robbie found objectionable. True
“[p]rofile evidence” is “unfairly relied upon to affirmatively prove a defendant‟s guilt
based on his match with the profile. The jury is improperly invited to conclude that,
because the defendant manifested some characteristics, he committed a crime.” (Robbie,
supra, 92 Cal.App.4th at pp. 1086-1087.) Detective Rios‟s testimony consisted of
general background information relying on a hypothetical question that was based on the
evidence; she did not testify to impermissible profile evidence.
       In addition, Detective Rios‟s discussion of defendant‟s actual conduct did not
constitute impermissible profiling evidence. The prosecutor asked Rios a hypothetical
question about threatened violence against the new partner of a domestic violence victim.
In the course of setting forth the hypothetical situation, the prosecutor referred Rios to the
police reports about this case and asked Rios to assume similar facts. In doing so, the
prosecutor did not translate Rios‟s testimony into profile evidence, but simply based the
hypothetical question on the evidence in this case. “It is required, not prohibited, that
hypothetical questions [to an expert witness] be based on the evidence. The questioner is
not required to disguise the fact the questions are based on that evidence.” (Vang, supra,
52 Cal.4th at p. 1041.) A prosecutor‟s hypothetical questions to an expert must be based
“on what the evidence showed” the defendant in the case did, “not what someone else
might have done.” (Id. at p. 1046.) “A hypothetical question not based on the evidence
is irrelevant and of no help to the jury.” (Ibid.)



                                              39.
       The prosecutor‟s hypothetical questions to Detective Rios, and Rios‟s testimony
about domestic violence, were relevant and probative of defendant‟s motive and did not
constitute inadmissible profile evidence.
III. Prosecutorial misconduct – Improper vouching/facts not in evidence
       Defendant next contends the prosecutor committed prejudicial misconduct during
closing argument because he allegedly argued facts not in the evidence and invoked the
prestige of his office. Defendant concedes that defense counsel did not object to any of
these comments, and raises ineffective assistance of counsel as an alternative argument.
       We will begin with the well-recognized legal principles implicated by defendant‟s
prosecutorial misconduct arguments. We will then review the portions of closing
argument cited by defendant, taken in context with the entirety of the prosecutor‟s
argument, and find that the prosecutor did not commit misconduct and defense counsel‟s
failure to object was not prejudicial.
       A. Prosecutorial misconduct
       “A prosecutor‟s misconduct violates the Fourteenth Amendment to the United
States Constitution when it „infects the trial with such unfairness as to make the
conviction a denial of due process.‟ [Citations.] In other words, the misconduct must be
„of sufficient significance to result in the denial of the defendant‟s right to a fair trial.‟
[Citation.] A prosecutor‟s misconduct that does not render a trial fundamentally unfair
nevertheless violates California law if it involves „the use of deceptive or reprehensible
methods to attempt to persuade either the court or the jury.‟ [Citations.]” (People v. Cole
(2004) 33 Cal.4th 1158, 1202 (Cole).)
       “When the issue „focuses on comments made by the prosecutor before the jury, the
question is whether there is a reasonable likelihood that the jury construed or applied any
of the complained-of remarks in an objectionable fashion.‟ [Citations.] Moreover,
prosecutors „have wide latitude to discuss and draw inferences from the evidence at trial,‟



                                               40.
and whether „the inferences the prosecutor draws are reasonable is for the jury to decide.‟
[Citation.]” (Cole, supra, 33 Cal.4th 1158, 1202-1203.)
       In reviewing claims of misconduct during closing argument, “we must view the
statements in the context of the argument as a whole. [Citation.]” (Cole, supra, 33
Cal.4th 1158, 1203.) A prosecutor‟s argument “may be vigorous as long as it is a fair
comment on the evidence, which can include reasonable inferences or deductions to be
drawn therefrom.” (People v. Harrison (2005) 35 Cal.4th 208, 244.) “A prosecutor may
„vigorously argue his case and is not limited to “Chesterfieldian politeness” ‟ [citation],
and he may „use appropriate epithets warranted by the evidence.‟ [Citations.]” (People
v. Fosselman (1983) 33 Cal.3d 572, 580.)
       “As a general rule a defendant may not complain on appeal of prosecutorial
misconduct unless in a timely fashion – and on the same ground – the defendant made an
assignment of misconduct and requested that the jury be admonished to disregard the
impropriety. [Citation.]” (People v. Samayoa (1997) 15 Cal.4th 795, 841.)
       Defendant concedes that defense counsel did not object to any of his alleged
appellate claims of prosecutorial misconduct. In the alternative, defendant argues that his
attorney was prejudicially ineffective for failing to object. “To establish ineffective
assistance, defendant bears the burden of showing, first, that counsel‟s performance was
deficient, falling below an objective standard of reasonableness under prevailing
professional norms. Second, a defendant must establish that, absent counsel‟s error, it is
reasonably probable that the verdict would have been more favorable to him.
[Citations.]” (People v. Hawkins (1995) 10 Cal.4th 920, 940, overruled on other grounds
in People v. Lasko (2000) 23 Cal.4th 101, 110 and People v. Blakeley (2000) 23 Cal.4th
82, 89.)
       In light of defendant‟s claim of ineffective assistance of counsel, we will address
the prosecutorial misconduct issues on the merits.



                                             41.
       B. Vouching/facts outside of evidence
       Defendant cites to three excerpts from the beginning of the prosecutor‟s lengthy
closing argument, and argues the prosecutor cited to facts not in evidence and invoked
the prestige of his office. “[I]t is misconduct for prosecutors to vouch for the strength of
their cases by invoking their personal prestige, reputation, or depth of experience, or the
prestige or reputation of their office, in support of it. [Citations.]” (People v. Huggins
(2006) 38 Cal.4th 175, 206-207.) In addition, a prosecutor commits misconduct if he or
she mischaracterizes or misstates the evidence, or refers to facts not in evidence. (People
v. Hill (1998) 17 Cal.4th 800, 823, 827-828, overruled on other grounds in Price v.
Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)
       We have reviewed the entirety of the prosecutor‟s closing argument and
determined that the prosecutor did not cite facts not in evidence or engage in improper
vouching. Defendant cites to portions of the prosecutor‟s closing argument which
occurred in the very beginning of his very broad opening sequence. The prosecutor
explained that everyone who is charged with a crime and tried for that offense has certain
constitutional rights, including the right to counsel, a jury trial, an impartial judge, the
presumption of innocence, not being compelled to testify, the right to confront and cross-
examine witnesses, receive discovery, have the court reporter take down the evidence,
and call witnesses. The prosecutor stated that defendant‟s constitutional due process
rights had been safeguarded during trial, and continued in this context:

               “Understand that, every sh[r]ed of evidence that the prosecution has
       in this case was turned over to the defense prior to it being presented in
       court. Under the rules of discovery, not only must the prosecution turn
       over any information that we believe points to the guilt of the defendant, we
       must also turn over any evidence that could point to his innocence.

              “Under our laws there are no Matlock, gotcha moments where
       Defendants are surprised by evidence they’ve never seen. Every police
       report, diagram, photograph, video, or audio recording, witness statements
       or expert statement was turned over to the defense. Through [defense


                                              42.
         counsel] the defendant has had the opportunity to examine, test, and
         challenge all of the People’s evidence.”
         The prosecutor stated defendant‟s attorney helped select the jury, he was being
tried before a jury of his peers, and the jury was part of the process to ensure he had a fair
trial.

                “Make no mistake, the People of the State of California, the
         prosecution, [co-prosecutor] Ms. Silveira and I, have done everything
         required of us under the law to protect the defendant’s rights. Our job as
         prosecutors is to seek justice, not conviction. We have done everything
         possible to insure that this case has been tried according to the laws of this
         state and this nation.

                 “Now, I make these points, because our respect for the rights of the
         defendant … stand in stark contrast to the defendant‟s total lack of respect
         for the rights that Stephen Jackson possessed. Despite all we‟ve done to
         safeguard the defendant‟s rights not only did he not respect Stephen
         Jackson‟s rights, he showed complete contempt for them.

                 “And believe it, Stephen Jackson had rights too. Stephen had the
         right to live without fear or worry of someone threatening him, someone
         threatening his girlfriend, someone threatening his young son as he went
         about his daily life. Stephen had the right to date a woman of his own
         choosing. He had the right to be secure in his own home. He had the right
         to expect that lawful orders of a court, restraining orders, would be
         respected and obeyed.

                 “… But this defendant whose rights we have zealously protected at
         every turn, couldn‟t have cared less about Stephen Jackson‟s rights.…”
         (Italics added.)
         Defendant cites the three italicized paragraphs out of context, and contends the
prosecutor “in essence gave unsworn testimony that the prosecution had complied with
its duty to turn over evidence to the defense. By asserting that he and Ms. Silveira had
done everything required of them to protect the defendant‟s rights, he was both arguing
facts outside of the evidence, and also invoking his own prestige and that of his office.”
         We disagree. During closing argument, a prosecutor “ „may state matters not in
evidence, but which are common knowledge or are illustrations drawn from common



                                              43.
experience, history or literature.‟ [Citation.]” (People v. Wharton (1991) 53 Cal.3d 522,
567.) The prosecutor‟s general description of a criminal defendant‟s well-known
constitutional and statutory rights – including the right to a neutral and detached
magistrate, representation by counsel, trial by a jury of peers, and discovery of evidence –
did not amount to citing facts not in evidence. It was not delivered to promote the
prestige of the prosecutor‟s office, vouch for the integrity of prosecution witnesses, or
refute any allegations of discovery violations.
       The prosecutor instead sought to illustrate that defendants in all criminal
prosecutions, including this case, are entitled to due process and the right to have a jury
determine guilt, whereas defendant repeatedly ignored Jackson‟s right to peacefully live
his life, and murdered him because he was upset that Castle and Jackson were living
together.
       The prosecutor‟s argument continued with a discussion of how defendant
repeatedly violated the law in the months, weeks, and days leading to the murder of
Jackson, and that his attempt to blame Aguirre for the homicide was not credible:

             “Now, this drug-dealing, restraining order ignoring, abusive,
       dishonest, gun toting, two-time felon wants you to believe one of the most
       absurd stories you‟ll ever hear. We‟re confident that you don‟t.”
       As we have already noted, defense counsel did not object to any of these alleged
instances of misconduct, and defendant has raised ineffective assistance as an alternate
claim. “Failure to object rarely constitutes constitutionally ineffective legal
representation [citation] .…” (People v. Boyette (2002) 29 Cal.4th 381, 424.) Moreover,
“[i]f the record on appeal fails to show why counsel acted or failed to act in the instance
asserted to be ineffective, unless counsel was asked for an explanation and failed to
provide one, or unless there simply could be no satisfactory explanation, the claim must
be rejected on appeal. [Citation.]” (People v. Kraft (2000) 23 Cal.4th 978, 1068-1069.)
Counsel may have decided not to object for the logical reason presented by the entirety of


                                             44.
the argument – that the prosecutor was not committing misconduct when he discussed
every criminal defendant‟s constitutional right to due process. We cannot find on this
record that counsel‟s performance was deficient.
IV. Prosecutorial misconduct; accusing defense counsel of fabricating a defense
       Defendant next contends that the prosecutor committed misconduct during several
portions of closing argument because he allegedly accused defense counsel of fabricating
the “accident” defense, that the gun discharged because Aguirre wrestled with defendant
for control of the weapon. Defendant argues the prosecutor also accused defense counsel
of trying to prevent Aguirre from testifying. Defendant asserts that while the prosecutor
could have argued that defendant himself fabricated the defense, the prosecutor instead
“decided to launch an assault on defense counsel, repeatedly accusing [defendant‟s] legal
team of unethical conduct.”
       As with defendant‟s allegations of misconduct addressed in issue III, ante, defense
counsel did not object to any portion of the closing argument now being challenged on
appeal. Defendant has again raised ineffective assistance as an alternative claim. In any
event, the prosecutor did not commit misconduct and instead engaged in fair comment on
the evidence that had been introduced to the jury without objection, regarding Aguirre‟s
contacts with defense counsel, the prosecution‟s efforts to locate Aguirre, and
defendant‟s trial testimony.
       In order to reach this conclusion, however, we must examine the entirety of the
trial record to illustrate that while the prosecutor‟s comments, taken out of context, might
appear objectionable, he did not commit misconduct in his closing argument based on the
nature of the defense theory and evidence presented to the jury.
       A. Opening statement
       On May 17, 2011, defendant‟s jury trial began with opening statements. Defense
counsel, stated that the case was about a fight that “went too far, about emotion and
passion,” and that Jackson “pummeled” defendant during the fight. Defense counsel

                                            45.
conceded that defendant pulled a gun and fired two shots at Jackson. He did not claim
that the shooting was an accident.

              “At the end of the trial, I suspect you‟ll be instructed on lesser
       crimes of murder and I will ask you to consider, consider finding that
       [defendant] is guilty of a lesser included crime, not murder, not that he
       intended to kill this man, but that there was some sort of rage or passion or
       some sort of self-defense involved.” (Italics added.)
       B. Defendant’s trial testimony
       On Tuesday, May 24, 2011, defendant testified at trial and said that the homicide
was an accident, and the gun went off twice because Aguirre wrestled with him for the
weapon.
       On the same day that defendant testified, the defense recalled Sergeant Rodney
Court, the chief investigator. Court testified that Aguirre did not contact the police
department during the investigation at the scene. Court later tracked down Aguirre and
obtained a statement from him. The defense did not call Aguirre as a witness.
       C. The prosecution’s request for further discovery
       On Wednesday, May 25, 2011, the day after defendant testified, the court granted
the prosecution‟s motion for the defense to provide discovery of contact information for
Ashley Brown, who had been living with Aguirre at the time of the homicide.
       D. Initial rebuttal evidence about efforts to locate Aguirre
       On Wednesday, May 25, 2011, the prosecution recalled Sergeant Court. Court
testified that it was extremely difficult to find Aguirre because there were outstanding
warrants for his arrest. Court finally found and interviewed Aguirre about four months
after the homicide. Court did not try to find Aguirre prior to trial.
       Sergeant Scott Skinner, another of the investigating officers, testified that he
listened to defendant‟s trial testimony, and that was the first time that he had heard that
Jackson was accidentally killed because Aguirre struggled with defendant for the gun.




                                             46.
Skinner testified that immediately after defendant testified, the prosecutor asked Skinner
to find Aguirre but the search was not successful.
       E. Additional rebuttal evidence about efforts to find Aguirre
       On the afternoon of Thursday, May 26, 2011, the trial resumed and the prosecutor
recalled Sergeant Skinner. Skinner testified that on Wednesday evening, May 25, 2011,
the prosecutor gave him additional information about Aguirre‟s possible whereabouts.
Skinner assigned several officers to look for Aguirre on Wednesday night and Thursday
morning. Skinner learned that Aguirre had been found a few hours earlier that afternoon.
       F. Aguirre’s rebuttal testimony about the homicide
       Also on May 26, 2011, Aguirre appeared as the prosecution‟s rebuttal witness, and
testified that he never touched the weapon, defendant fired both shots at Jackson, and he
did not feel responsible for Jackson‟s death.
       Defense counsel vigorously cross-examined Aguirre, asked if he was a “meth
addict”, and asked leading questions which assumed the truth of defendant‟s version of
the shooting, that Aguirre wrestled with him for the gun and it discharged twice. Aguirre
repeatedly became frustrated, insisted that he never touched the gun, and said that
defense counsel was “trying to confuse me.… I‟m telling you how it happened.” This
frustration culminated in the following exchange.

       “[DEFENSE COUNSEL]: Sir, I‟m not trying to trick you I just want [to]
       hear what you have to say.

       “A.    Oh, yes, you are. There ain‟t no trick to it.”18




       18As we will discuss, post, defendant contends the prosecutor committed
misconduct during closing argument when he addressed the nature of defense counsel‟s
cross-examination questions to Aguirre.



                                            47.
       G. Aguirre’s rebuttal testimony about his contacts with the defense
          and prosecution
       Also on rebuttal, Aguirre testified without objection about his contacts with the
defense and prosecution.19 Defendant‟s trial began on Tuesday, May 17, 2011. Aguirre
testified that on Sunday, May 22, 2011, he was living in Visalia when he was contacted
by Bob Gilbert, a defense investigator. Aguirre testified that he did not know that Gilbert
worked for the defense because Gilbert “made it sound” like he was working for Stephen
Jackson. Gilbert said he wanted to serve Aguirre with a subpoena, that Aguirre might
have to testify about the shooting, and he would provide Aguirre with a ride. Aguirre
replied that he did not want the police to serve him because he had outstanding warrants.
       Aguirre testified that Gilbert never called him again. However, Aguirre was later
contacted by his former girlfriend, Ashley Brown, who was now living in Idaho. Brown
advised Aguirre that he needed “to clear my name, something about the shooting.”
Brown gave the prosecutor‟s contact number to Aguirre.
       As a result, Aguirre again called Gilbert because he didn‟t know who wanted to
contact him. He left Gilbert a message about Brown‟s information and asked why he had
to “clear my name.” Gilbert did not return the call.
       Aguirre testified that he again called Gilbert earlier that same day, May 26, 2011,
and Gilbert did not call him back. Aguirre heard “they were looking for me in Visalia
and so I decided to call” the telephone number provided by Brown. Aguirre called the
prosecutor for the first time around 12:30 p.m. that day, May 26, 2011. Aguirre learned
that the prosecutor wanted to call him as a witness, but he was worried because of his



       19 Defendant contends the prosecutor committed prejudicial misconduct during
closing argument when he discussed Aguirre‟s contacts with the defense investigator, and
the prosecution‟s efforts to find Aguirre after defendant‟s trial testimony. As we will
discuss, post, the prosecutor‟s argument constituted fair commentary on the admissible
evidence discussed herein.



                                            48.
outstanding warrants. The prosecutor told him that several officers were looking for him,
and it would be better to voluntarily appear for the trial and deal with his legal problems.
The prosecutor did not make any promises, but said he would “help me get them cited
out” on a promise to appear so he could go home that night.
       H. Analysis of closing argument
       The preceding history of Aguirre‟s contacts with the prosecution and the defense
places the prosecutor‟s closing argument and defendant‟s allegations of misconduct into
context. Defendant contends the prosecutor accused defense counsel of fabricating the
defense claim that Aguirre accidentally fired the fatal gunshots. Defendant cites to
several lengthy segments of closing argument in support of this contention.
       “It is generally improper for the prosecutor to accuse defense counsel of
fabricating a defense [citations], or to imply that counsel is free to deceive the jury
[citation]. Such attacks on counsel‟s credibility risk focusing the jury‟s attention on
irrelevant matters and diverting the prosecution from its proper role of commenting on
the evidence and drawing reasonable inferences therefrom. [Citations.]” (People v.
Bemore (2000) 22 Cal.4th 809, 846 (Bemore).)
       “Nevertheless, the prosecutor has wide latitude in describing the deficiencies in
opposing counsel‟s tactics and factual account. [Citations.] In so doing, the prosecutor
may highlight the discrepancies between counsel‟s opening statement and the evidence.
[Citation.] Misconduct claims also have been rejected where the prosecutor anticipates
the flaws likely to appear in counsel‟s closing argument based on evidence that was
introduced [citation], and where the prosecutor criticizes the defense theory of the case
because it lacks evidentiary support [citation].” (Bemore, supra, 22 Cal.4th at pp. 846.)
       “It is not … misconduct to ask the jury to believe the prosecution‟s version of
events as drawn from the evidence. Closing argument in a criminal trial is nothing more
than a request, albeit usually lengthy and presented in narrative form, to believe each
party‟s interpretation, proved or logically inferred from the evidence, of the events that

                                             49.
led to the trial. It is not misconduct for a party to make explicit what is implicit in every
closing argument,…” (People v. Huggins, supra, 38 Cal.4th at p. 207.)
       With these guidelines in mind, we turn to defendant‟s numerous citations to
closing argument where the prosecutor allegedly accused defense counsel of fabricating
the “accident” defense.
              a. “[S]uch a complete about face”
       Defendant first cites to a particular section of prosecutor‟s closing argument,
where he allegedly began to attack defense counsel. In this section, the prosecutor cited
defense counsel‟s opening statement, that defendant shot Jackson either because of
imperfect self-defense or heat of passion. The prosecutor “emphasize[d]” that an
attorney‟s opening statement is not evidence but “a road map of where they believe the
evidence will lead,” and that defense counsel never used the word “accidental” in his
opening statement. However, “three quarters of the way through this trial the defense
stopped” and turned in the “exact opposition direction from where they had started.”

               “I expect that you were amazed … as you listened to the defendant
       tell us, with a straight face, that the murder of Stephen was an accident.

              “And more than that … not bear the slightest responsibility for.
       Zero. The real culprit and the death of Stephen Jackson, he said, was
       Benny Aguirre. That Benny Aguirre wrestled the gun the defendant was
       holding and then the struggle, not one, but two shots were fired, both
       striking poor Stephen Jackson, the first one dead center in his chest.

               “That, Ladies and Gentlemen, is the most bizarre preposterous and
       utterly unbelievable statement you likely will ever hear. Defense counsel
       never once suggested in his opening statement the killing of Stephen
       Jackson had been an accident. Nor did he blame Benny Aguirre for
       anything. Why? Why you might be asking yourself did the defense do such
       a complete about face in their story? We wondered the same thing.”
       (Italics and bold added.)




                                             50.
       Defendant contends the italicized portion of the above paragraph is the first
instance where the prosecutor argued that defense counsel and the defense team acted
unethically and fabricated a defense.
       These italicized statements must be taken in context with the argument bolded
above, when the prosecutor clearly addressed defendant’s trial claim that Jackson was
accidentally shot because Aguirre struggled with him for the gun. In addition, a
prosecutor may properly highlight discrepancies between defense counsel‟s opening
statement, and the failure of the defense to introduce evidence or call logical witnesses.
(People v. Brady (2010) 50 Cal.4th 547, 566.) In People v. Bemore, supra, 22 Cal.4th
809, defense counsel asserted in opening statement that the defendant did not wear size
13 shoes, and that a suspicious vehicle seen at the crime scene did not belong to the
defendant. In closing argument, the prosecutor argued that both of defense counsel‟s
assertions had been contradicted by several witnesses. On appeal, the defendant argued
that the prosecutor‟s references to defense counsel‟s opening statement were improper
because he was accusing counsel of dishonesty in presenting a defense. (Id. at p. 847.)
       Bemore rejected this claim because the prosecutor accurately summarized the
evidence which contradicted the defense counsel‟s assertions in opening statement.
(Bemore, supra, 22 Cal.4th at p. 847.) “[T]he record supports the prosecutor‟s suggestion
in closing argument that counsel could not reasonably adhere to prior claims concerning
defendant‟s shoe size and car, and that incriminating evidence introduced at trial on both
topics had undermined the defense‟s original theories.” (Ibid.) Moreover, the
prosecutor‟s specific references to defense counsel and his opening statement did not
constitute misconduct:

       “By referring to counsel in the first person and alluding to defenses not
       supported by the evidence, the prosecutor simply employed a rhetorical
       device calculated to focus the jury‟s attention on strong circumstantial
       evidence of guilt and on any corresponding weaknesses in the defense case.



                                            51.
       No improper attack on counsel‟s personal integrity or professional tactics
       could reasonably be gleaned from such remarks.” (Ibid.)
       As in Bemore, the prosecutor in this case contrasted defense counsel‟s opening
statement that the homicide occurred either because of heat of passion or self defense,
with defendant‟s trial testimony about an alleged accidental shooting. The prosecutor did
not accuse defense counsel of fabricating the accident defense, but instead argued that
defendant was lying when he testified about Aguirre‟s alleged responsibility for the
homicide.
              b. “[S]till on the self-defense track”
       Defendant next cites to a few sentences within another lengthy portion of the
closing argument which immediately follows the section cited above, as further indication
that the prosecutor claimed defense counsel “was complicit in manufacturing an accident
defense.”
       In this section, the prosecutor summarized the admissible evidence about
Aguirre‟s contacts with the defense investigator, the defense investigator‟s failure to
return his telephone calls, and the prosecution‟s efforts to find him after defendant
testified, and then stated:

               “Then it got very interesting. At some point after Sunday, after
       telling Benny Aguirre he would be a defense witness, the defense
       apparently decided to gamble. Sensing that their self-defense strategy, the
       one that [defense counsel] had outlined for you in opening statement was
       going no where, they came up with a new fiction. They, the defense …
       knew where Benny Aguirre was, but they were willing to bet that the
       prosecution wouldn‟t be able to find him before the case went to you.”
       (Italics added.)
       Defendant contends the italicized language shows that the prosecutor accused
defense counsel of fabricating a defense. However, the prosecutor relied on the
admissible evidence about Aguirre‟s contacts with the prosecution and defense
investigators, tied it together with defendant‟s surprising trial testimony that the shooting
was an accident and caused by Aguirre, and then asked the jury to consider why the


                                             52.
defense was not interested in calling Aguirre as a witness, since he would refute
defendant‟s “accident” theory.
       In considering these paragraphs in context with the entirety of the closing
argument, the prosecutor used “defendant” and “defense” interchangeably. Misconduct
claims have been rejected where “the prosecutor criticizes the defense theory of the case
because it lacks evidentiary support [citation].” (Bemore, supra, 22 Cal.4th at p. 847.) In
People v. Frye (1998) 18 Cal.4th 894 (overruled on other grounds in People v. Doolin
(2009) 45 Cal.4th 390, 421), the prosecutor did not impugn defense counsel when he
accused counsel of making an “irresponsible” third party culpability claim, and
describing the defense theory as “ „ludicrous‟ and „a smoke screen.‟ ” (People v. Frye,
supra, at pp. 977-978.)
       In this case, the prosecutor clearly tied his entire argument to his claim that
defendant lied when he testified about the “accidental” shooting. The prosecutor never
accused the defense attorney of suggesting, creating, fabricating, or perpetrating the
“accident” story.
              c. “[S]elling” the accidental shooting defense
       Defendant next cites to several paragraphs, within a larger portion of closing
argument, as further examples of misconduct and argues the prosecutor suggested that
defense counsel presented the defense dishonestly or unethically.
       As with his other challenges, his claims of misconduct are refuted when the
paragraphs are considered within the entirety of the argument. The prosecutor used this
section to again attack the credibility of defendant‟s trial testimony, that defendant
“shock[ed]” everyone with “this ridiculous nonsensical lie” that Aguirre wrestled with
him for the gun and fired the two gunshots. After defendant had testified, “[t]he last
thing that the defense wanted was for Benny Aguirre to come in here and tell the truth.”
The prosecutor then said:



                                             53.
               “It’s one of the most cynical defense strategies I’ve ever seen, Ladies
        and Gentlemen. Nothing more than Russian Roulette with justice. We’re
        gambling. The simple truth is once the defense decided that the
        prosecution, they made up their mind, the prosecution won‟t be able to find
        Benny in time to contradict the defendant‟s new story and it will get to the
        jury before that can be done and all ever a sudden becomes what, the
        perfect fall guy. Somebody that you can blame it on and who isn‟t going to
        be able to come back and tell you it‟s a lie.” (Italics and bold print added.)
        Defendant contends that in the italicized portions, the prosecutor suggested
defense counsel presented the defense dishonestly or unethically. As we have already
explained, however, the prosecutor used “defendant” and “defense” interchangeably, and
he repeatedly claimed that defendant lied when he claimed that Aguirre was responsible
for Jackson‟s death. The prosecutor properly commented on the evidence before the jury
about the defense investigator‟s failure to return Aguirre‟s calls, and the prosecutor‟s
frantic efforts to find Aguirre after defendant testified and before the case went to the
jury.
        Our interpretation is supported by the prosecutor‟s closing argument which
immediately follows the portions cited by defendant. The prosecutor argued that
defendant took the stand “without batting an eye,” he contradicted “every single thing his
attorney told us that we would hear in this trial,” and Aguirre was responsible for
shooting Jackson. “[Defendant] wasn‟t angry. It wasn‟t rage or passion and it wasn‟t
self-defense. I‟m not telling you that, Ladies and Gentlemen, he told you that. He got on
the stand and told you something that was diametrically opposed to what his attorney told
you you would hear during this trial.” The entirety of argument thus shows that the
prosecutor tied his attacks on the defense case directly to defendant’s decision to testify
and defendant’s testimony that the shooting was an accident.
               d. “[A]brupt reversal” of the defense strategy
        Defendant cites to another lengthy portion of closing argument as further evidence
that the prosecutor accused defense counsel of fabricating his defense. The entirety of
the argument again refutes his claims. The prosecutor began this section by again

                                             54.
expressly attacking defendant’s trial testimony that he wasn‟t angry at Jackson, he never
fired the gun, and the homicide was Aguirre‟s fault. He continued:

              “This abrupt reversal in defense strategy calls to mind the old adage
       about not changing horses in the middle of the stream, but it really doesn’t
       matter very much in this case because the self-defense fiction was almost as
       ridiculous as the whopper about the twice accidental discharge of the gun.

               “Ladies and Gentlemen, the District Attorney‟s Office represents the
       People. And there was no way in the world that [co-prosecutor] Ms.
       Silveira and I were going to allow this defendant to blame his own
       cowardly conduct on a missing person, on Benny Aguirre, whose absence
       they controlled. It was not going to happen. I would never let that kind of
       a fiction be perpetrated on a jury.

              “We went into warp speed overdrive Tuesday afternoon with the
       Merced Police Department, Detective Sergeant Skinner, and we used every
       resource available to find Benny Aguirre and convince him to come to
       court before we rested our case. All that night, as you heard, people were
       looking for him. We were in a race. The next morning Detective
       Skinner … told you he sent two people down there … to find him.

              “The defense played games with justice, Ladies and Gentlemen.
       Game of beat the clock, and they lost. Benito Aguirre called me at 12:40
       yesterday, 20 minutes, as you‟ll recall, 20 minutes before we were
       supposed to come back in this courtroom and do closing argument. That‟s
       how close it came.” (Italics added.)
       Defendant argues the italicized argument again shows that the prosecutor was
accusing defense counsel of fabrication. As demonstrated by the entirety of this section,
particularly the bolded language which precedes the italicized statements, the prosecutor
again tied his attacks to defendant’s trial testimony. The prosecutor also properly
commented on the evidence that had been introduced to the jury without objection.
       Even if the prosecutor was commenting on defense counsel‟s tactical decisions,
his argument did not constitute misconduct. For example, in People v. Medina (1995) 11
Cal.4th 694, the prosecutor did not demean defense counsel by arguing that “ „any
experienced defense attorney can twist a little, poke a little, try to draw some speculation,



                                             55.
try to get you to buy something ....‟ ” (Id. at p. 759.) “To observe that an experienced
defense counsel will attempt to „twist‟ and „poke‟ at the prosecution‟s case does not
amount to a personal attack on counsel‟s integrity. [Citations.]” (Ibid.)
       In People v. Huggins, supra, 38 Cal.4th 175, the prosecutor engaged in fair
comment on the evidence and did not demean defense counsel when he said that defense
counsel had a “ „tough job, and he tried to smoke one past us,‟ and that counsel „will
admit only what he has to admit and no more. He will come in at the lowest price
possible.‟ ” (Id. at p. 207.)
       In People v. Kennedy (2005) 36 Cal.4th 595 (reversed on other grounds in
People v. Williams (2010) 49 Cal.4th 405, 459), the prosecutor did not commit
misconduct when he said that defense counsel‟s “ „idea of blowin‟ smoke and roiling up
the waters to try to confuse you is you put everybody else on trial.‟ ” (People v.
Kennedy, supra, at p. 626.) “It is not misconduct for a prosecutor to argue that the
defense is attempting to confuse the jury,” or for the prosecutor “to comment on the
failure of the defense to introduce material evidence or to call witnesses. [Citation.]” (Id.
at pp. 626-627.)
              e. “[S]hake Benny from the truth”
       Finally, defendant cites the following italicized section as another example of
misconduct:

              “Despite using every lawyer, bully tactic he knew, [defense counsel]
       could not shake Benny from the truth of what happened that day. As I told
       you, Benny is no rocket scientist but you saw for yourself he is a pretty
       savvy guy, right. „I‟m not trying to trick you,‟ the defense counsel told
       Benny. Benny looked right back and him and said, „Yeah, you are.‟

               “Don‟t treat people as idiots because they don‟t wear a shirt and tie.
       It was a pathetic attempt to manipulate the ends of justice and failed
       abysmal[ly]. We located the witness they bet we couldn‟t find and he told
       you what you knew Tuesday, that the defendant‟s story was a complete and
       total lie.” (Italics added.)



                                            56.
       As the prosecutor continued with this argument, however, he immediately cited to
defendant‟s trial testimony, and that the jury heard defendant “say with unmistakable
pride” that he was “quite the player” with his other girlfriends. The entirety of this
argument again shows that the prosecutor‟s entire attack on the defense theory was based
on his accusation that defendant lied in his testimony.
       While the prosecutor commented on defense counsel‟s conduct, he cited to the
actual exchange between Aguirre and defense counsel during cross-examination, when
defense counsel asked Aguirre several leading questions based on defendant‟s trial
testimony – that Aguirre had struggled with defendant for control of the gun. At one
point, defense counsel told Aguirre that he was not trying to trick him, but Aguirre
accused defense counsel of engaging in that very conduct and trying to confuse him. The
prosecutor‟s argument constituted fair commentary on Aguirre‟s testimony and apparent
frustration with cross-examination. The prosecutor‟s argument in this section was similar
to the type of argument found valid in Frye, Medina, Huggins, and Kennedy. It did not
constitute misconduct.
              f. Conclusion
       We have rejected defendant‟s arguments that his convictions must be reversed
because of certain aspects of the prosecutor‟s closing argument. In reaching this
conclusion, we note that the general tenor of closing argument on both sides was heated,
particularly regarding the discovery of Aguirre‟s whereabouts and the nature of his trial
testimony. The prosecutor asserted the defense “played games with justice,” claimed the
defense was trying to perpetrate “a fiction” on the jury, and implied the defense
attempted to prevent Aguirre from testifying. In turn, defense counsel asserted the
prosecution did not originally call Aguirre as a witness because his observations did not
“fit” the prosecution‟s theory of the case, and Aguirre “hightailed it” out of the area
because he was involved in the shooting and trying to hide something. Defense counsel
queried why the prosecution did not want the jurors to have “the full story.”

                                             57.
       Nevertheless, to the extent that the prosecutor committed misconduct, or defense
counsel was ineffective for failing to object and request admonitions, we find any error is
necessarily harmless and defendant was not prejudiced by any aspect of closing
argument. It is not reasonably probable that a result more favorable to defendant would
have occurred, given the overwhelming nature of the evidence and defendant‟s inherently
incredible trial testimony.


                                     DISPOSITION
       The judgment is affirmed.



                                                                _____________________
                                                                Poochigian, J.

WE CONCUR:


______________________
Cornell, Acting P.J.


______________________
Kane, J.




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