People v. Saenz

Poochigian

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Kern Sup. Ct. No. 128753A)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. John S. Somers, Judge.

Charles M. Bonneau, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

On the night of July 21, 2009, defendant/appellant Michael Anthony Saenz (defendant) shot and killed Jerry Munoz (Munoz) while Munoz sat in the driver's seat of his own pickup truck. Defendant was arrested the next morning, and admitted that he shot and killed Munoz because Munoz disrespected him, and said that he had planned to do so for one week. Defendant's girlfriend later claimed that defendant was afraid of Munoz because Munoz once drew a knife on defendant.

Defendant was charged and convicted of first degree murder (Pen. Code, § 187), with special allegations found true that defendant personally used a firearm (Pen. Code, § 12022.5, subd. (a)) and discharged a firearm causing death (Pen. Code, § 12022.53, subd. (d)). The court found he had one prior serious felony conviction and one prior strike conviction. Defendant was sentenced to the second strike term of 50 years to life for first degree murder, plus a consecutive term of 25 years to life for the firearm allegation, and a consecutive five-year term for a prior serious felony conviction.

On appeal, defendant contends the court denied his constitutional right to a speedy trial. Defendant also contends the jury improperly observed and learned about prejudicial photographic evidence. Defendant raises two allegations of prosecutorial misconduct. We will affirm.

FACTS

Andrew Saenz (Andrew) was defendant's uncle. Andrew and Munoz were lifelong friends. As of July 2009, Munoz had been living in Andrew's house on Orange Street for a few months. The house had previously been owned by Andrew's late mother, who was defendant's grandmother. Andrew testified that Munoz and defendant knew each other but they were not good friends.

As we will explain post, defendant subsequently gave a full confession to law enforcement officers that he shot and killed Munoz. During that confession, defendant explained that several weeks before the homicide, he "got into it" with Munoz when they were both drunk and they argued about "a little petty issue." Defendant did not like Munoz living in his late grandmother's house, and Munoz was "very disrespectful" toward defendant's family. Defendant said Munoz was stealing from the neighbors and "bringing heat" to his family's house. Defendant arrives at Andrew's house

After defendant was arrested for shooting Munoz, defendant was fully advised of the warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436, he waived his constitutional rights, and he gave a full confession during a videotaped interview. Prior to trial, defendant moved to exclude his confession and argued it was involuntary. The court denied the motion and admitted his confession. Defendant has not renewed his challenge to his confession in this appeal.

On the evening of July 21, 2009, defendant left the motel room he shared with his girlfriend, Deavan Gonzalez. Gonzalez knew defendant had a gun when he left the motel.

Gonzalez's parents lived in an adjoining motel room. James Burns, Gonzalez's father, gave defendant a ride to a particular location. Burns knew defendant had a gun with him that night. Burns also knew defendant had problems with "disrespect" from unknown family members who lived on Orange Street. At defendant's request, Burns dropped off defendant by Bakersfield High School, in the vicinity of Orange Street. Defendant acted a little nervous, but he did not say what he was going to do there.

During his postarrest confession, defendant said he went to Andrew's house that night because he knew he was going to shoot and kill Munoz. Defendant told officers that he disliked Munoz and decided to shoot him because Munoz "disrespected" defendant. Defendant explained that he did not take "that kind of stuff very lightly" and "[a]s it is, I was already on thin ice, so I just decided to shoot him. [T]his last week, I was just thinking about it, you know, just something about the guy I didn't like. I didn't like him and, you know, no one knew what I was going to do."

Defendant said he was completely sober that night. Defendant said waited until it was dark and then went to the Orange Street house. He had already decided not to shoot Munoz at his family's house, and he did not want to get Andrew involved.

Defendant said that when he arrived at the Orange Street house, he visited with Andrew and some friends in the backyard. Defendant looked for Munoz and found him in the house. Defendant shook hands with Munoz, and asked Munoz if he could give him a ride to his sister's house on Fairfax and Pioneer. Defendant told officers that when he asked Munoz for the ride, he knew that he was going to shoot Munoz: "That's when I was going to take him out there and shoot him...."

Andrew testified that defendant arrived at the house, chatted for awhile, and then asked Munoz for a ride. Andrew offered to pay for the gasoline if Munoz drove defendant home in Munoz's truck. Andrew decided to join them for the drive. Andrew testified there were no problems between Munoz and defendant that night, and Andrew did not see defendant with a weapon.

Defendant said that Andrew "butted in," offered to pay for the gasoline, and said he would go along for the ride. Defendant said Andrew was "totally not aware of what was going to happen." Defendant decided to go ahead and shoot Munoz anyway it because "it was pretty much a done deal." Defendant knew that if he asked Andrew not to get into Munoz's truck, Andrew probably would have "tried to prevent it like not let [Munoz] take me or he probably would have killed the plan." The homicide

Defendant told officers that he got into Munoz's truck and sat in the front seat between Munoz and Andrew; Munoz was driving. Defendant said Munoz had "a smart attitude" and he made "smart remarks" during the drive. Defendant gave Munoz driving instructions and told him to stop by the gas station and apartments at Pioneer and Fairfax.

Andrew testified defendant and Munoz had a normal conversation during the drive, defendant gave directions, and they did not exchange words.

Defendant told officers that when they reached the corner, defendant and Andrew got out of the truck. Defendant hugged Andrew and he shook Munoz's hand. Defendant said he walked to the driver's side door and gave Munoz some cigarettes through the open window. Defendant said he then pulled out his gun and shot Munoz three times in the chest.

Andrew testified that when Munoz arrived at the corner, Andrew and defendant got out of the truck. Andrew stayed outside the truck and had a cigarette. Andrew testified defendant gave Munoz a cigarette through the driver's side window. Andrew testified he was looking in another direction when he heard three gunshots. Andrew insisted he never saw defendant shoot Munoz. Andrew looked back at the truck, but he did not see defendant. After the homicide

Andrew testified that after he realized Munoz had been shot, he panicked and ran to a nearby store. He told the clerk to call 911 because there was a shooting. He ran back to the truck, and found the truck had jumped the curb and it was rolling away. Andrew leaned into the truck from the passenger side and found Munoz slumped over to the side. Andrew assumed Munoz was shot, but he did not see any blood. Andrew tried to control the steering wheel and turned off the engine. Andrew got out of the truck and ran into a woman, and then ran back to his own house.

Defendant told officers that after he shot Munoz, he ran to his sister's nearby apartment like "nothing happened." He asked his sister if he could spend the night and she agreed. Defendant said his sister did not know what happened until he was arrested the next morning. The witnesses

Around 9:21 p.m., Leon Russell was driving a bus on Pioneer and approached the intersection at Fairfax. Russell saw a pickup truck at the curb. A man was standing in the street, outside the driver's door of the truck. Russell could not hear anything, but the man gestured and appeared to argue with someone in the truck. The man stepped back from the driver's door and he had a gun. The man fired shots into the driver's side window and ran away. Russell drove past the truck and saw someone in the truck's passenger seat, who was reaching over toward the steering wheel.

Esmeralda Silva and her daughter, Regena, lived in a nearby apartment complex. Esmeralda and Regena heard gunshots and looked out the window of their second floor apartment. They saw a pickup truck parked next to the apartment building, and it was up on the curb and rolling on the sidewalk. They ran downstairs and found the truck had stopped. Munoz was sitting in the driver's seat, leaning toward the middle of the bench seat, and he was not moving. Regena did not see anything in Munoz's hands, and they thought he was dead.

Esmeralda testified that as they looked at the victim in the truck, a man walked by and said he saw something happen. Esmeralda told the man to stay until the police arrived. The man refused and said there was a warrant for his arrest, and he disappeared. At about the same time, a man went into a nearby market and asked the clerk to call the police because someone had been shot. The initial investigation

At 9:25 p.m. Kern County Sheriff's Deputy Bowling responded to the shooting dispatch, and found Munoz inside his pickup truck. Munoz was slumped over on his right side. The paramedics responded to the scene, but Munoz was dead.

Bowling found three spent nine-millimeter Lugar casings about 50 feet west of Munoz's truck. The casings would have been expelled from the ejection port of a semi- automatic weapon as it was fired. There was a spent bullet on the ground near the driver's side door of Munoz's truck. The fatal shots

Munoz had been shot three times. One bullet entered and passed through Munoz's left arm, and then entered the left side of his chest, went through his heart, exited through the right side of his body; this gunshot wound immediately caused death. A second bullet also entered and passed through Munoz's left arm, entered the left side of his chest, went through the liver, and exited his body; this wound caused excessive internal bleeding and was found to be independently fatal.

Munoz suffered a third gunshot wound which grazed his left wrist and caused a superficial injury. This same bullet may have caused the fourth gunshot wound, whereby a bullet entered just below his rib cage, passed through the chest cavity, and lodged in his spine; it would not have been fatal.

The two bullets which entered Munoz's left arm traveled in a straight line, from the left to right side of his body. The bullet which entered Munoz's rib cage was "more front to back" with "a little bit of a downward component," but it still went from left to right.

Munoz was wearing a short-sleeve T-shirt when he was shot. There was no stippling on Munoz's body, which meant the gun was more than 24 inches away when it was fired.

There was 0.068 milligrams per liter of morphine in Munoz's body, which was consistent with moderate heroin use, and would have made him sleepy and not violent. The arrest of defendant

Teresa Jaquez, defendant's half sister, lived in an apartment on Fairfax with her young children. On the night of July 21, 2009, defendant arrived at her apartment and stayed overnight. The next morning, a SWAT team arrived at Jaquez's apartment, and officers used a loudspeaker to order defendant to step outside. Defendant told Jaquez, " 'They're here for me.' " Defendant surrendered without incident.

After defendant was arrested, an officer asked him where the gun was located. Defendant replied, " 'a Glock 17, it's in there by the door.' " The officers found a Glock semi-automatic nine-millimeter pistol inside a basket of laundry, wrapped in a baby's blanket. The gun was loaded and ready to fire with one round in the chamber and six rounds in the magazine. A criminalist later determined the three spent casings found at the shooting scene had been fired from this Glock pistol. Defendant's postarrest interview

As explained ante, Detective McMinn conducted a videotaped interview with defendant after he was arrested, and the videotape was played for the jury. Defendant readily admitted that he went to Andrew's house with the intent to shoot and kill Munoz because Munoz disrespected him. Defendant said he "just didn't like" Munoz, and it was his own decision to shoot him. "No one put me up to you, you know. I was, honestly, I waited a week to debate if I was going to do it or not, my own thinking, my own ... my own choice." Defendant said "it was already a green light that I was going to do it," and he was trying to decide "how to get away with it." Defendant said he had never killed anyone before, and he killed Munoz "for myself" because Munoz had been disrespectful. "I just basically, you know waited for the right time and it was that you know, [I] went over there to the house."

Detective McMinn testified that defendant never said that Munoz had a knife, that he was afraid of Munoz, or that he had to kill Munoz or be killed himself. The search of Munoz's truck

On the night of the homicide, the investigating officers performed a cursory search of Munoz's truck simply to look for the victim's identification. The truck was locked, sealed, and towed to the sheriff's department so it could be searched at a later date.

After defendant was arrested and confessed to Detective McMinn, a criminalist thoroughly searched Munoz's truck, and found gloves, tools, and other work implements. The criminalist also found a ball-peen hammer and an eight to ten inch kitchen steak knife in the truck's cab. There was no blood on the kitchen knife. There were two folding knives in the ashtray, and they were both folded closed.

Detective McMinn testified that when he interviewed defendant, Munoz's truck had not yet been thoroughly searched and McMinn did not know any knives were in the vehicle. Additional prosecution evidence

Detective Royce Haislip testified about his interview with Andrew, which occurred the night of the homicide. Andrew initially claimed he had been using heroin with Munoz that night, they went to an apartment complex to buy more drugs, and an unknown person shot Munoz. On further questioning, Haislip asked Andrew if defendant was the gunman. Andrew replied, "I don't want to get killed." Haislip asked Andrew if he really thought defendant would kill him. Andrew said, "Yes." Andrew said he was afraid he would end up dead if he cooperated.

At trial, Andrew testified he initially lied about the shooting because he did not want to be considered as a snitch.

Detective Haislip testified that Andrew subsequently admitted he was present when defendant shot Munoz. Haislip testified Andrew did not say anything about Munoz having a knife.

At trial, Andrew testified for the prosecution and admitted that he did not want to appear because he knew people on both sides, and he did not want to be considered a snitch. Andrew admitted that he initially lied about the shooting when he was interviewed by officers.

Andrew admitted he had prior convictions in 1997 and 2002, for lying to officers about his identity; in 1998, for petty theft with a prior conviction, and in 2002, for second degree burglary and petty theft with a prior conviction. He also had a juvenile adjudication for armed robbery.

Deavan Gonzalez, defendant's girlfriend, testified as a prosecution witness and said that Munoz was mean when he was drunk or high, "which was all the time." Gonzalez further testified that Munoz had "done [defendant] wrong" and defendant felt "disrespected" by Munoz, because Munoz brought "stolen stuff to his grandma's house and everything." Defendant was angry and felt Munoz "disrespected" his grandmother's house. Munoz also stole things from defendant.

It was stipulated that in 1997, Munoz had a misdemeanor conviction for the willful and unlawful use of force or violence on a person (Pen. Code, § 243, subd. (a)); and in 1999, he had a misdemeanor conviction for the unlawful infliction of corporal injury resulting in a traumatic condition (Pen. Code, § 273.5, subd. (a)).

Gonzalez testified that about two weeks before the homicide, she saw Munoz pull an eight-inch knife on defendant, and Munoz said he was going to kill defendant. Gonzalez admitted she failed to tell the police about the knife incident when she was initially interviewed, and she didn't tell anyone about the knife until several months after the homicide.

Prior to trial, Gonzalez advised the prosecutor that she did not want to testify against defendant because she was "on his side."

Detective McMinn testified he interviewed Gonzalez shortly after the homicide. Gonzalez said that defendant and Munoz did not get along and they argued about the Orange Street house. The conflict became physical when defendant slapped Munoz in the face. Gonzalez told McMinn that defendant later made peace and shook hands with Munoz. McMinn testified that Gonzalez never said anything about Munoz threatening defendant with a knife. Defense theory

Defendant did not testify and did not present any defense witnesses. In closing argument, however, defense counsel argued defendant was not guilty of first degree murder, and that he shot Munoz in self-defense. In making this argument, defense counsel relied on Deavan Gonzalez's trial testimony about the dispute between defendant and Munoz, and Gonzalez's claim that Munoz pulled a knife on defendant and threatened to kill him. Defense counsel also relied on the discovery of knives inside of Munoz's truck. Counsel argued that Munoz could have pulled a knife on defendant while Munoz was still sitting in the driver's seat of his truck, and defendant believed he had to shoot Munoz in order to protect himself.

DISCUSSION

I. Defendant's speedy trial rights were not violated

Defendant contends he was denied his statutory right to a speedy trial pursuant to Penal Code section 1382 when the court continued his trial date over his objection.

A. Arraignment and trial readiness

On November 20, 2009, defendant was arraigned in superior court and pleaded not guilty to murder as charged in the information. The case was set for trial on January 11, 2010, with the trial readiness hearing set for December 30, 2009. Defendant was represented by Mr. Cadman, a deputy public defender.

The prosecution later moved to trail the readiness conference. On November 23, 2009, defendant stated he was willing to trail the readiness conference as long as he did not have to waive time regarding his speedy trial rights, and stated he was unwilling to waive time.

On December 18, 2009, the court trailed the readiness hearing to January 5, 2010. On January 5, 2010, the court held the trial readiness hearing, defendant rejected a plea bargain offer of 55 years to life, and the trial date was confirmed for January 11, 2010.

On January 11, 2010, the court granted the prosecutor's request and trailed defendant's jury trial to January 19, 2010, which was the 60th day after arraignment in defendant's case.

B. The Graham case

In the meantime, Mr. Cadman also represented defendant Anthony Graham in People v. Graham, Kern County Superior Court case No. BF125944A, a criminal case completely unrelated to defendant's case.

On defendant's motion, and without any opposition from the Attorney General, this court has taken judicial notice of certain reporter's transcripts in the case of People v. Anthony Graham, Kern County Superior Court case No. BF125944A. All citations to the Graham case are to the documents in that case that were judicially noticed.

On or about January 13, 2010, Mr. Cadman filed a motion to continue the trial for Graham. In his declaration, Mr. Cadman stated that Graham had repeatedly waived time, and on December 29, 2009, Graham's trial was finally set for January 19, 2010, in Department 3. Mr. Cadman further declared he represented defendant Saenz, that case had been trailed at the People's request to January 19, 2010, the 60th day after the arraignment of Saenz, and Saenz was unwilling to waive time. Mr. Cadman requested the court continue Graham's trial to trail behind Saenz's case.

On January 15, 2010, the court held a hearing on the motion to continue Graham's trial. The prosecution opposed the motion. The court deferred ruling on the motion since Graham's trial was scheduled to begin on January 19, 2010.

C. Proceedings in defendant's case on January 19, 2010

The unrelated criminal trials for both defendant and Graham were set to begin on January 19, 2010. There were hearings in both cases that morning. Mr. Cadman represented both defendants in these unrelated cases. The record strongly implies that Mr. Cadman first appeared in defendant's case that day.

Thus, on the morning of January 19, 2010, Judge Lewis called defendant's case for trial in Department 1. Mr. Cadman said defendant was ready for trial and it was the 60th day. Mr. Cadman further stated that he had "just been sent to [Department] 3" on the "Graham case."

Mr. Cadman further explained:
"The defendant called ready on this case on January 11th and was ready. My colleague Mr. Wilson [the prosecutor] was not ready, which is fine.
"On [January] 15th I made a record in the Graham case ... that that case had been continued several times. At least once it had been continued with the People's lack of objection.
"Mr. Graham was willing to waive time so that my other case on [defendant] could go to trial. And the reason it's important, today is the 60th day.
"[Defendant] has never waived time. It's a homicide case. He's looking at life.
"So my request had been to put [defendant] first so that [defendant] would not have to give up his right to a speedy trial.
"I understand the court's order regarding Graham. I'm ready on both, but would like to make that record.
"And I do also have witnesses that I would like the court to ask be ordered back, please."

Mr. Wilson, the prosecutor, said he was ready for trial but the Graham case took statutory precedence over defendant's case because Mr. Cadman "was already in trial and, as such, he's unavailable."

The court asked Mr. Cadman if "you think you're really in trial?" Mr. Cadman replied, "I think we're really in trial, Judge. Twenty day estimate." Defendant interjected: "Bull****, man."

The court found Mr. Cadman was not available because he was assigned out to trial in the Graham matter in Department 3. The court ordered defendant's case "to trail behind the trial that Mr. Cadman is in," to January 25, 2010.

D. Proceedings in Graham's case on January 19, 2010

After Mr. Cadman appeared in defendant's case, he appeared with Graham in Department 3, before Judge Friedman, for the scheduled start of trial in Graham's case. There was a discussion between the court and the parties that Graham's trial date had been set based on Judge Friedman's schedule, because he had spent the prior week at a training course in San Francisco.

Mr. Cadman advised the court about the timelines in Graham and Saenz, that Saenz had refused to waive time, and Graham was willing to continue his case so that Mr. Cadman could represent Saenz, but the court had deferred ruling on his motion for continuance of Graham's case.

Mr. Cadman conceded that "it's actually been decided that this [Graham] case will go and Mr. Saenz will trail behind this case." The prosecutor stated that when Mr. Cadman filed his motion for continuance in the Graham trial, "we were already out to trial [in Graham] in Department 3." The prosecutor explained that Graham's case was one year old, Graham had waived time, but Graham's case had been trailing for nine months. The prosecutor further stated:

"I would like the record to clearly reflect, because it's going to be pertinent on the Saenz case-and I represented to Judge Lewis [when Mr. Cadman moved for a continuance]-that it is my understanding, and I believe it was Mr. Cadman's understanding, as well as your Honor's understanding, that we were to commence trial today [in Graham] with in limine motions and we were already, basically, sent to Department 3. We weren't sent to Department 3 today. We were sent to Department 3 when we agreed to the continuance so your Honor could attend the conference in San Francisco."

Mr. Cadman confirmed that Graham's trial had been set for January 19, 2010. Mr. Cadman further explained that Saenz was ready first but had been trailed for various reasons.

"THE COURT: It's my understanding that we were going to start today [in Graham].
"MR. CADMAN: As mine."
Thereafter, Mr. Cadman began the trial in Graham's case.

E. Further trailing of defendant's trial

On January 25, 2010, the court again called defendant's case. Another deputy public defender appeared on behalf of Mr. Cadman, and she stated that Mr. Cadman was still in trial in Graham's case. The court confirmed that Mr. Cadman was involved in Graham's trial in Department 3, they were in the process of picking a jury, and the trial would last several weeks. The court trailed defendant's trial to February 3, 2010.

Mr. Wilson, the prosecutor, briefly summarized the history of the case and argued that defense counsel was unavailable within the meaning of Barsamyan v. Appellate Division of Superior Court (2008) 44 Cal.4th 960 (Barsamyan):

"As I reflected on the record we made last week, Mr. Cadman had announced ready; however, under Barsamyan case, due to the fact he was already in trial in People versus Graham, BF 126944A, he may have been answering ready in terms of his preparation, but I just want the record to be clear in that under the Barsamyan case he was not legally capable of announcing ready due to the fact he was not completely free for uninterrupted trial."

The court agreed Mr. Cadman "was not available for trial. I'll note that for the record."

On February 3, 2010, defendant's case was again called. Mr. Cadman appeared and stated he was on "day three of the Graham case in Department 3," it was moving slowly, and he thought it might be finished by February 10, 2010. Mr. Cadman added:

"If I may remind the Court, [defendant] was ready on the 60th day but due to my unavailability he was forced to endure trial past the 60th day and he would like me to make a record he has never waived time. [¶] On that, I would submit."

The prosecutor stated he was ready.

The court found Mr. Cadman had not concluded the matter in Department 3, and he would not be available for defendant's case that week. The court trailed defendant's case to February 11, 2010.

On February 11, 2010, the court called defendant's case. Mr. Cadman stated he was still involved in the Graham trial and closing arguments were about to begin. The prosecutor stated he was ready. The court found good cause to trail defendant's case to February 18, 2010, because Mr. Cadman was in trial in Graham's case and unavailable.

On February 18, 2010, defendant's jury trial began.

There is no indication in the instant appellate record that defendant filed a motion to dismiss based on a purported violation of his statutory right to a speedy trial under Penal Code section 1382.

F. Penal Code Section 1382

Defendant contends his statutory right to a speedy trial, as set forth in Penal Code section 1382, was violated because he never waived time, and his case should have been started before Graham's case.

"The Sixth Amendment to the federal Constitution, as applied to the states through the due process clause of the Fourteenth Amendment [citation], guarantees a criminal defendant the 'right to a speedy and public trial.' Similarly, article I, section 15 of the California Constitution guarantees an accused the 'right to a speedy public trial.' The California Legislature has 're-expressed and amplified' these fundamental guarantees by various statutory enactments, including Penal Code section 1382. [Citation.]" (People v. Harrison (2005) 35 Cal.4th 208, 225 (Harrison))

"To implement an accused's constitutional right to a speedy trial, the Legislature enacted [Penal Code] section 1382." (Rhinehart v. Municipal Court (1984) 35 Cal.3d 772, 776.) Penal Code section 1382 mandates specific timeframes within which a defendant must be brought to trial. (Pen. Code, § 1382, subd. (a).) Penal Code section 1382 provides, in relevant part: "(a) The court, unless good cause to the contrary is shown, shall order the action to be dismissed in the following cases: [¶] (2) In a felony case, when a defendant is not brought to trial within 60 days of the defendant's arraignment on an indictment or information ...." (Pen. Code, § 1382, subd. (a)(2), italics added.)

"A continuance granted at the request of counsel normally constitutes such good cause [citation], at least in the absence of evidence showing incompetency of counsel [citation] or circumstances where counsel's request for a continuance is prompted only by the need to service other clients and the defendant himself objects to the delay. [Citation.]" (People v. Wright (1990) 52 Cal.3d 367, 389, disapproved on other grounds in People v. Williams (2010) 49 Cal.4th 405, 459.)

"Defense counsel, as part of his or her control of the procedural aspects of a trial, ordinarily has authority to waive the statutory speedy trial rights of his or her client, even over the client's objection, as long as counsel is acting competently in the client's best interest. [Citations.] This is because statutory speedy trial rights are not among those rights that are considered so fundamental that they are 'beyond counsel's primary control.' [Citations.] On the other hand, our concern for the client's right to the assistance of unconflicted counsel has led us to conclude that appointed defense counsel lacks authority to waive his or her client's statutory speedy trial rights when the client personally objects to a continuance and the sole reason for the continuance is defense counsel's obligation to another client. [Citations.] (Barsamyan, supra, 44 Cal.4th at p. 969, italics in original.)

"The statutory speedy trial provisions ... are 'supplementary to and a construction of the state constitutional speedy trial guarantee. [Citations.]" (People v. Martinez (2000) 22 Cal.4th 750, 766 (Martinez).) "No affirmative showing of prejudice is necessary to obtain a dismissal for violation of the state constitutional speedy trial right as construed and implemented by statute. [Citation.] Instead, 'an unexcused delay beyond the time fixed in [Penal Code] section 1382 ... without defendant's consent entitles the defendant to a dismissal.' [Citation.]" (Ibid., original italics.)

The right to a speedy trial, whether constitutional or statutory, may be waived. (People v. Wilson (1963) 60 Cal.2d 139, 146 (Wilson).) The statutory speedy trial right "will be deemed waived unless the defendant both objects to the date set and thereafter files a timely motion to dismiss." (Ibid) A defendant who chooses to move for dismissal under section 1382 must do so "as soon as is reasonably possible after the expiration of the allowable delay...." (Id. at p. 145, fn. 3, italics in original.) The defendant may not "wait until just before trial, by which time prospective jurors may be assembled, the witnesses subpoenaed and in attendance, and the proceedings ready to begin." (Ibid.)

"The right to a speedy trial must therefore be asserted, if at all, in the court where the prosecution is pending, and prior to the commencement of trial. [Citation.] It is too late to raise the point for the first time on appeal [citations]; nor may it be raised for the first time by a petition for habeas corpus after judgment of conviction [citations] or by an application for writ of error coram nobis [citations]." (Wilson, supra, 60 Cal.2d at p. 146.)

"The right to a speedy trial, furthermore, will be deemed waived unless the defendant both objects to the date set and thereafter files a timely motion to dismiss." (Wilson, supra, 60 Cal.2d at p. 146, italics in original.) "Moreover, it is equally well settled that even after such an objection 'There is no duty incumbent on the court to order dismissal under said section 1382 unless the defendant demands it' [citations]. '[A] right to move for a dismissal is the sole right protected by section 1382.' It is not enough that the defendant has objected at the time the cause was set for trial beyond the statutory period: 'an appellant in such a case cannot make a successful claim of error by the trial court merely because the court has not heeded an objection to the setting of the case....' [Citation.] The defendant must also move to dismiss after the expiration of the allowable delay (but before the beginning of trial) so that if the court decides that the statutory period has been exceeded, that there has not been good cause for the delay, and that a proper and timely objection was made, a futile trial will be avoided." (Id. at p. 147, original italics.)

The standard of review for statutory speedy trial claims pursuant to section 1382 is dependent on whether the defendant raised the issue prior to trial or after conviction:

"For statutory speedy trial claims ... the standard of review that appellate courts use in pretrial writ proceedings is more favorable than the standard they use in appeals from judgments after conviction. As we have explained, no affirmative showing of prejudice is necessary to obtain a dismissal for violation of the state constitutional speedy trial right as construed and implemented by statute. [Citation.] Because prejudice is not an issue, a trial court ordinarily should rule on a statutory speedy trial claim, and the defendant should seek appellate review of denial of such a claim, before the trial is held. Prejudice becomes an issue for a statutory speedy trial claim only when the defendant waits until after the judgment to obtain appellate review. '[O]nce a defendant has been tried and convicted, the state Constitution in article VI, section 13, forbids reversal for nonprejudicial error,' and so on appeal from a judgment of conviction a defendant asserting a statutory speedy trial claim must show that the delay caused prejudice, even though the defendant would not be required to show prejudice on pretrial appellate review. [Citation.]" ( Martinez, supra, 22 Cal.4th at p. 769, first italics in original, second italics added.)

" '[I]t is not unreasonable to require a felony defendant who does not seek or obtain pretrial relief to demonstrate actual prejudice when reversal of a judgment is sought on this ground on appeal.' [Citations.]" (People v. Booker (2011) 51 Cal.4th 141, 157, original italics.)

Thus, "a defendant's failure to timely object to the delay and thereafter move for dismissal of the charges is normally deemed a waiver of his right to a speedy trial. [Citations.]" (People v. Wright, supra, 52 Cal.4th 367, 389; Harrison, supra, 35 Cal.4th at p. 225.)

G. Analysis

Defendant contends his statutory right to a speedy trial, as set forth in section 1382, subdivision (a), was violated when the court repeatedly continued and trailed his case over his objections. Defendant argues that Judge Friedman abused his discretion in the Graham case when he declined to granted Mr. Cadman's motion to continue the Graham trial in favor of defendant's trial.

Mr. Cadman clearly sought to bring defendant's case to trial within 60 days of the arraignment, pursuant to defendant's request and his refusal to waive time. Mr. Cadman repeatedly objected to trailing defendant's case, and he tried to continue Graham's trial in order to start defendant's case within the 60 days. As we have explained, Graham's case had already been sent out to trial and the court believed there was good cause to delay defendant's trial since Mr. Cadman was unavailable.

In any event, defendant did not file a motion to dismiss for violation of his statutory speedy trial right under Penal Code section 1382. While Mr. Cadman claimed defendant's speedy trial rights were being violated, he never sought affirmative relief or moved to dismiss defendant's case. More importantly, defendant cannot show he was prejudiced by the approximately 30-day delay in the start of his trial. There is no evidence that any witnesses were unable to appear or he was unable to present certain evidence.

At oral argument in this case, appellate counsel agreed that defendant did not file a motion to dismiss based on the alleged violation of his statutory speedy trial rights, and that as to prejudice, defendant did not suffer the loss of any evidence as a result of the brief delay to the start of his trial.
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We thus find that defendant failed to move for dismissal pursuant to Penal Code section 1382 prior to trial, and he has failed to show prejudice from the approximately 30-day delay in the start of his jury trial. II. Inadvertent display of defendant's photograph

As we will explain, defendant has a tattoo above his left eye that says "666." Defense counsel received the court's permission to cover that tattoo with makeup. During trial, however, the prosecutor inadvertently, and very briefly, displayed a photograph of defendant to the jury which depicted that tattoo. Defendant contends his constitutional right to a fair trial was violated when the photograph which depicted his "666" tattoo was displayed to the jury.

A. Motion for mistrial

At the beginning of trial, the parties discussed the admissibility of a particular photograph of defendant which was taken shortly after he was arrested. The prosecutor argued the photograph was relevant to refute any claim that defendant had been injured by Munoz and shot him in self-defense. However, the prosecutor acknowledged the photograph showed defendant had a tattoo which said "666" above his eye, and that defense counsel had received the court's permission to use makeup to cover the tattoo during trial. Defense counsel objected to that photograph because it depicted the tattoo, and argued the photograph was prejudicial and inadmissible. The court deferred ruling on the admissibility of the photograph.

During the course of trial, and outside the jury's presence, the prosecutor reminded the court that it had to decide on the admissibility of the photograph. The court agreed to address the matter at a later time.

As the trial continued, the prosecutor used a power point presentation to display certain photographs to the jury. At one point, the court conducted a hearing outside the jury's presence in order for defense counsel to place an objection on the record. Defense counsel stated that during the prosecutor's use of the power point presentation, a photograph of defendant briefly appeared on the screen in the jury's presence, and that photograph clearly showed defendant's "666" tattoo above his eye. Defense counsel reminded the court that it had yet not ruled on the admissibility of that photograph, and defendant had been wearing makeup on his forehead to obscure the tattoo.

Defense counsel said he knew the prosecutor did not display the photograph on purpose. Counsel also admitted that he did not know whether any of the jurors saw the photograph on the screen, but he thought it was possible for them to have viewed it. Counsel argued a mistrial should be granted because the picture of defendant's "666" tattoo was extremely prejudicial. Defense counsel did not say what the tattoo meant.

The prosecutor acknowledged the photograph inadvertently appeared on the screen in the jury's presence when he turned on the power point presentation. The prosecutor explained he had pulled up the photograph in preparation for a bench conference as to whether it was admissible, he had forgotten about it, and he did not remember it was going to be displayed when he turned on the machine.

The prosecutor argued the photograph was relevant and admissible because it showed defendant's appearance immediately after he was arrested. The picture showed he had not suffered any injuries, and it refuted defendant's likely claim that Munoz came at him with a knife and that defendant shot Munoz in self-defense.

The trial judge directed the prosecutor to display the disputed photograph on the screen. The judge then stepped down from the bench, walked to the rail, and looked at the photograph from the perspective of where the jurors had been sitting. The court noted from that vantage point, the jury could have seen defendant's "666" tattoo above his left eye in that photograph.

The court denied defendant's motion for a mistrial and found that while defendant's tattoo was clearly shown in the photograph, the showing of the photograph "was quite brief, it was just as [the prosecutor] was turning on the video machine the photograph itself began to come up." The court found that defense counsel immediately realized what was going on and advised the prosecutor, who turned off the machine "almost immediately." The court believed the photograph was on the screen for less than 15 seconds.

The court did not know if any of the jurors saw defendant's tattoo in the photograph, and it did not notice if the jurors were looking at the screen when the photograph was displayed. However, the court found that even assuming any jurors saw the photograph, there was no incurable prejudice "that would have been caused by viewing the photograph." The court further found:

"I will note for the record that despite what have been reasonably effective efforts using makeup, which the Court permitted for [defense counsel] to cover up [defendant's] tattoo, it is still to some extent visible even on him as we sit here in court, and he is sitting about 15 feet or so from the jury rail. So I'm sure to some extent it's visible to [the jury]; although, it's much less visible than it was prior to the makeup being applied."
The court asked the parties if they had any comments. Defense counsel stated:
"Only that I would like to, as an officer of the court, represent that [the photograph] appeared far less than 15 seconds, probably 3 seconds, Judge."

The court thanked defense counsel and noted that counsel was the first person in the courtroom who noticed the photograph was on the screen.

As a separate matter, the court held the photograph was inadmissible because it was more prejudicial than probative under Evidence Code section 352. The court stated it did not know whether defendant's "666" tattoo was meant to be viewed as a "sign of evil" or meant something else, such as Penal Code section 666, petty theft. Defendant "has never availed any of us, certainly me, of the reason why he has that tattoo and that's his personal and private business. I am not asking." However, the tattoo was fairly visible in the photograph and the court excluded that exhibit.

The court decided to permit the prosecution to introduce another photograph into evidence which showed defendant's appearance but did not display the tattoo, and found that photograph would address the prosecutor's argument that defendant was not injured when he was arrested.

B. New trial motion

After defendant was convicted, he filed a motion for new trial and again argued the inadvertent display of the photograph was prejudicial because the jury could have seen his "666" tattoo in the picture. The court denied the motion:

"I will note that while the tattoo or the photograph showing the tattoo had been excluded and the Court did grant permission for makeup to be applied to [defendant], quite frankly, the photograph was on the screen for an extremely brief period of time.
"The makeup, while the efforts to cover that tattoo up were admirable and I think, for the most part, effective, they certainly were not perfect. I cannot say whether or not the jury saw it, despite the makeup; nevertheless, again, the appearance of that was extremely brief and in passing and the Court suspects that many of the jurors did not even see it.
"Even if they all saw it, the Court does not feel that was so irreparably damaging to [defendant's] chances of a fair trial that his due process rights were denied...."

C. Analysis

Defendant contends the inadvertent display of the photograph, which depicted his "666" tattoo above his right eye, constituted inadmissible character evidence, the evidence was prejudicial, and it violated his right to a fair trial. The admission of evidence results in a due process violation only if it makes the trial fundamentally unfair. (People v. Partida (2005) 37 Cal.4th 428, 439.)

However, we note that defendant raised these issues through motions for mistrial and new trial. A motion for mistrial "should be granted only when a party's chances of receiving a fair trial have been irreparably damaged." (People v. Ayala (2000) 23 Cal.4th 225, 283.) We defer to the trial court's factual findings if they are supported by substantial evidence, and we review the court's denial of the mistrial motion for an abuse of discretion. (Id. at pp. 283, 299; People v. Batts (2003) 30 Cal.4th 660, 684-686.)

Similarly, the determination of a motion for new trial rests completely within the trial court's discretion. (People v. Williams (1988) 45 Cal.3d 1268, 1318, abrogated on another ground as stated in People v. Guiuan (1998) 18 Cal.4th 558, 560-561.) "In reviewing a motion for a new trial, the trial court must weigh the evidence independently. [Citation.] It is, however, guided by a presumption in favor of the correctness of the verdict and proceedings supporting it. [Citation.] The trial court 'should [not] disregard the verdict ... but instead ... should consider the proper weight to be accorded to the evidence and then decide whether or not, in its opinion, there is sufficient credible evidence to support the verdict.' [Citation.] ] A trial court has broad discretion in ruling on a motion for a new trial, and there is a strong presumption that it properly exercised that discretion. ' "The determination of a motion for a new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears." ' [Citation.]" (People v. Davis (1995) 10 Cal.4th 463, 523-524.) In general, a trial court abuses its discretion if its material factual findings are not supported by substantial evidence. (People v. Bennett (2009) 45 Cal.4th 577, 621.)

We find the court did not abuse its discretion when it denied defendant's motions for mistrial and new trial. It is undisputed that the photograph was inadvertently displayed on the screen in the jury's presence. The court recognized that the critical issues in both motions were whether any of the jurors saw the photograph and, more importantly, noticed that the photograph depicted defendant's "666" tattoo above his eye. The trial judge carefully considered these issues, and even stepped off the bench and sat by the jury box to determine if any of the jurors could have seen the tattoo from that angle.

The court denied both motions based on its factual findings that the photograph was shown on the screen very briefly, the prosecutor turned off the display almost immediately, and the photograph was on the screen for perhaps 15 seconds. In an admirable display of integrity, defense counsel advised the court that the photograph was actually on the screen for probably only three seconds. More importantly, however, the court concluded that even though defense counsel had taken steps to obscure the tattoo above defendant's eye, the jury was still able to see it through the makeup. The court found defendant's right to a fair trial had not been violated.

We find the court's factual findings are supported by substantial evidence. The court was in the unique position to determine how long the photograph was displayed on the screen, whether the jurors could have seen the tattoo in the photograph, and whether the jurors already knew about the tattoo despite the makeup on defendant's face. Defense counsel did not dispute any of the court's factual findings, and actually clarified that the photograph was on the screen for an even briefer period of time than originally believed by the court.

We further note that even if the jury looked at the photograph and saw defendant's "666" tattoo, any potential prejudice is necessarily harmless under any standard in this case. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.) As we have explained, defendant readily admitted to law enforcement officers that he shot Munoz three times in the chest, that he had planned to shoot him for about one week, and he went to Andrew's house with the specific intent to perform this act. While defense counsel tried to argue that Munoz might have produced a knife and confronted defendant, defendant never said anything about a knife when he was interviewed, and repeatedly said that he shot Munoz because Munoz had shown disrespect to defendant and his family.

Based on the facts and circumstances in which the photograph was displayed, we find the court properly denied defendant's motions for mistrial and new trial, and his due process rights to a fair trial were not denied. III. Evidence about defendant's booking photograph

Defendant contends that the jury was improperly exposed to evidence that a booking photograph existed for him. Defendant argues the reference to his booking photograph constituted inadmissible character evidence and was prejudicial, because it allowed the jury to learn that he had a prior record, and violated his right to a fair trial.

A. Motion for mistrial

During the pretrial evidentiary motions, the court excluded any reference to defendant's prior record, which consisted of juvenile arrests and juvenile adjudications.

As explained in the factual summary, ante, Detective Haislip testified he interviewed Andrew on the night of the shooting. Haislip testified the interview occurred before defendant was arrested, and he showed Andrew a photograph of defendant to confirm defendant's identity.

"[THE PROSECUTOR]: At some point in the interview you came back in [to the interview room] and I believe presented a photograph to [Andrew]?
"A. That's correct.
"Q. Who was the photograph of?
"A. It was a booking photograph of [defendant]."

Defense counsel immediately requested a sidebar and an unreported bench conference occurred.

Thereafter, the court instructed the jury that it was going to strike Detective Haislip's answer to the last question, and admonished the jury to disregard the answer. The court then excused the jury for the day.

After the jury left, defense counsel moved for a mistrial based on Detective Haislip's reference to defendant's booking photograph. Counsel argued the "bell has been rung" that defendant had a prior record, in direct violation of the court's pretrial evidentiary ruling. Defense counsel further argued an instruction could not cure the prejudice. The prosecutor disagreed and argued the court properly admonished the jury to disregard Haislip's answer about the booking photograph. The prosecutor noted that the jury did not know why a booking photograph existed for defendant.

The court noted that it had excluded any evidence about defendant's prior record. The court further noted the prosecutor did not deliberately solicit prejudicial information about a booking photograph. However, the court was concerned that Detective Haislip used that phrase because the reference implied defendant had been previously arrested for a different offense. The court decided to take the matter under submission until the next day, and instructed the parties to admonish all witnesses about obeying the court's evidentiary rulings.

When the court reconvened the following morning, the court reviewed the legal standard to consider a motion for mistrial. The court again stated that it was disturbed by

Detective Haislip's reference to a booking photograph, but decided to deny defendant's motion for mistrial.

"In my view, exercising my discretion, the comment was relatively brief. It mentioned the term booking rather than specifically an arrest or conviction. I harbor no illusion that it's not possible to figure out from that or that that is such an obscure reference that it may not be at least some indication [defendant] has a previous criminal history, but it's not immediately or automatically clear nor certainly is it clear as to what that was, if any, in answer to the question. And also, the comment was quite properly immediately objected to by [defense counsel], the Court sustained the objection, struck the answer and admonished the jury to disregard it."

The court further noted the jury had already heard "a considerable amount of information" that defendant shot Munoz, and the jury had to decide whether defendant acted in self-defense. The jury had also heard "considerable information" about Munoz's criminal history and drug use.

The court asked defense counsel if he wanted the jury to receive further admonishments about the matter or leave it alone. Defense counsel declined the court's offer for another instruction to avoid bring further attention to the matter. Defense counsel agreed the prosecutor did not intentionally elicit the answer from Detective Haislip. However, counsel asked the court to strike the entirety of Haislip's testimony as an alternate remedy, including evidence about his interview with Andrew.

The prosecutor objected to defense counsel's request and noted the jury did not know the reason defendant had a booking photograph. The prosecutor noted the jury knew defendant was arrested in this case and, while they could not consider his arrest as evidence against him, the jury could have believed the booking photograph was taken when he was arrested for shooting Munoz. Defense counsel pointed out that Haislip showed the booking photograph to Andrew before defendant was arrested in this case.

The court denied defense counsel's request to strike Haislip's testimony and found it would be an inappropriate remedy for the evidentiary issue. Thereafter, Haislip returned to the stand, and he was admonished to confine his answers to the scope of the questions being asked.

B. Motion for new trial

After defendant was convicted, he moved for a new trial motion and again argued that Detective Haislip's reference to defendant's booking photograph was prejudicial. The court denied the motion and again found the prosecutor did not intentionally violate the court's exclusion of defendant's prior record. The court further found that Haislip's reference to the booking photograph was very brief and in passing, the court sustained defendant's objection, and the court immediately instructed the jury to disregard the statement. The court concluded the error was not prejudicial and defendant received a fair trial.

C. Analysis

Defendant contends that Detective Haislip's reference to his booking photograph constituted the introduction of inadmissible character evidence in violation of the court's evidentiary rulings in this case. Defendant argues Haislip's testimony was prejudicial and violated his due process rights.

We note that defendant challenged Haislip's testimony through motions for mistrial and new trial, both of which are subject to the court's discretion and will not be reversed absent an abuse of that discretion. (People v. Ayala, supra, 23 Cal.4th 225, 283; People v. Williams, supra, 45 Cal.3d at p. 1318.) In contrast to the issues addressed in section I, ante, about the display of the photograph of defendant's tattoo, the factual basis is settled as to Detective Haislip's testimony about the booking photograph, and defendant's appellate arguments raise legal issues as to the impact of Haislip's reference to a booking photograph. "We have explained that '[a] mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.' [Citation.]" (People v. Jenkins (2000) 22 Cal.4th 900, 985-986.)

As a preliminary matter, we note that while defendant was clearly arrested and charged with murder in this case, defense counsel properly argued that Detective Haislip testified that he showed the booking photograph to Andrew before defendant was arrested for killing Munoz. Thus, Haislip's reference to the booking photograph could have raised the inference that defendant had been arrested and booked for an incident which occurred prior to this case.

Defendant argues that Haislip's reference to the booking photograph was prejudicial because the disputed issues were premeditation and self-defense, and the jury could have been swayed by the belief that defendant had a prior criminal conviction. However, we find Haislip's brief statement was not prejudicial, and the court did not abuse its discretion when it denied defendant's motions for mistrial and new trial. The court immediately ordered the statement stricken and properly admonished the jury. (See People v. Pinholster (1992) 1 Cal.4th 865, 925 [presumption of prejudice may be overcome by an admonition to disregard improper information], overruled on another point in People v. Williams, supra, 49 Cal.4th at p. 459.) More importantly, any prejudice that may have arisen from the jury's belief that defendant had been arrested on a prior occasion would have been minimal compared to the jury's observation of the videotape of defendant's postarrest confession, when he calmly explained to law enforcement officer about how he decided to shoot and kill Munoz because of "disrespect," that he made the decision about a week before the homicide, that he went to Andrew's house that night to accomplish that goal, that he made sure to lure Munoz away because he didn't want to shoot Munoz in his family's house, and that he decided to go ahead and shoot him even though Andrew got into the truck with them. While defendant attempted to rely on a self-defense theory, he failed to mention anything about Munoz's alleged use of a knife during his lengthy postarrest interview, and he never said that he was frightened of Munoz or that Munoz confronted him in the truck. We thus conclude any error arising from Haislip's reference to a booking photograph was harmless under any standard. ,IV. Prosecutorial misconduct-Burden of proof

Defendant contends the prosecutor committed prejudicial misconduct during closing argument when he made certain statements about the burden of proof. Defendant argues the prosecutor's statement were prejudicial because he misstated the burden of proof beyond a reasonable doubt.

A. Background

Defendant's prosecutorial misconduct contentions are based on the following segments of the prosecutor's closing argument:

"Let's talk about the law for just a few minutes. I'm sure counsel will spend time on this. The Judge read you the instruction about reasonable doubt. It's not beyond all possible doubt. It's not imaginary or hypothetical. It's not, well, it's possible. It's not speculative. It's not beyond every possibility. And the state of the evidence leaves you with a feeling of an abiding conviction of the truth of the charge.
"I heard a judge once describe it in this way, reasonable doubt is Dodgers come to town, they're gonna [sic] play Cal State. Is it possible that Cal State could win? Major league team, minor, you know, college level, is it possible? Sure, anything's possible. Every now and then we hear about, you know, the underdog in a major fight or a major sporting event somehow manages to win. It's possible. But is it reasonable? Is it reasonable to think that the Dodgers are gonna [sic] lose to Cal State? No.
"[DEFENSE COUNSEL]: Objection, that misstates that law.
"THE COURT: Ladies and gentlemen, I will—this is argument. I will have instructed you and you will have the instruction in the jury room on what constitutes proof beyond a reasonable doubt, and you're to follow the instruction of law given to you by the Court and apply that instruction."

During the instructional phase, the court instructed the jury with CALCRIM No. 220, reasonable doubt. The court also gave the jury CALCRIM No. 200, that the jury must follow the law as the court explained it to them, and "[i]f you believe that the attorneys' comments on the law conflict with my instructions, you must follow my instructions."

B. Analysis

Defendant argues the prosecutor erroneously defined the prosecution's burden of proving the elements of the charged offense beyond a reasonable doubt. "The applicable federal and state standards regarding prosecutorial misconduct are well established. ' "A prosecutor's ... intemperate behavior violates the federal Constitution when it comprises a pattern of conduct' so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.' " ' [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ' " 'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.' " ' [Citation.] 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.] Additionally, when the claim focuses upon 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. [Citation.]" (People v. Samayoa (1997) 15 Cal.4th 795, 841.)

" 'Although counsel have "broad discretion in discussing the legal and factual merits of a case [citation], it is improper to misstate the law. [Citation.]" ' [Citations.] In particular, it is misconduct for counsel to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements. [Citations.]" (People v. Katzenberger (2009) 178 Cal.App.4th 1260, 1266 (Katzenberger).)

Defendant contends the prosecutor's argument reduced the burden of proof beyond a reasonable doubt, as was found in Katzenberger, supra, 178 Cal.App.4th 1260. In that case, the prosecutor compared the reasonable doubt standard to the pieces of a jigsaw puzzle, and argued it was possible to know what was depicted in a jigsaw puzzle beyond a reasonable doubt even if there were missing pieces. (Id. at pp. 1264-1265.) Katzenberger held the prosecutor committed misconduct because he attempted to assign a quantitative value to the reasonable doubt standard, based on how many pieces of a puzzle were missing, and conveyed "an impression of a lesser standard of proof than beyond a reasonable doubt. (Id. at p. 1268.) However, Katzenberger held the error was harmless under Chapman because the jury was properly admonished and the case was not a close one. (Katzenberger, supra, 178 Cal.App.4th at pp. 1268-1269.)

We note that the prosecutor's argument in this case did not assign a numerical or quantitative value to the jury's determination of guilt. In addition, the prosecutor did not veer into the prohibited conduct of reducing reasonable doubt to a mere reasonable or everyday decision. (See, e.g., People v. Nguyen (1995) 40 Cal.App.4th 28, 35-36 [prosecutor improperly suggested reasonable doubt standard applied to daily decisions such as changing lanes or getting married]; People v. Johnson (2004) 119 Cal.App.4th 976, 985 [trial court improperly altered reasonable doubt definition by equating proof beyond a reasonable doubt to everyday decisionmaking].)

The prosecutor's characterization of the probability of one athletic team defeating another of greater experience and prowess does little to illuminate a burden of proof analysis. Any shortcoming in the prosecutor's analogy was negated by the court's admonition that the jury must follow the court's instructions-not the argument of counsel.

In any event, even if the prosecutor's statements constituted misconduct, defense counsel immediately objected, the court immediately admonished the jury to follow the court's instructions on the reasonable doubt standard, and the court instructed the jury with the correct pattern instruction on reasonable doubt. Under these circumstances, we presume the jury followed the court's admonition and instruction. (Katzenberger, supra, 178 Cal.App.4th 1260, 1269; People v. Mooc (2001) 26 Cal.4th 1216, 1234; People v. Holt (1997) 15 Cal.4th 619, 662.)

As in Katzenberger, we further find that, contrary to defendant's contentions, this was not a close case. As we have explained ante, defendant confessed that he shot and killed Munoz, that he had been planning to do so for about one week, and he intentionally lured Munoz away from the Orange Street house because he did not want to shoot him at his family's residence. Defendant repeatedly told the officers that it was his idea to shoot Munoz because of the "disrespect" issue, he walked to the driver's side window, gave Munoz a cigarette, and fired three shots into Munoz's chest. While defense counsel tried to construct a self-defense theory based on Gonzalez's trial testimony, that tactic was severely undermined by defendant's repeated insistence that he decided to kill Munoz a week earlier, and defendant's failure to say that Munoz threatened him with a knife when they were in the truck. We conclude that any misconduct in this case was harmless under any standard. (Katzenberger, supra, 178 Cal.App.4th at p. 1269.) V. Prosecutorial misconduct-Comment on defendant's statements

Defendant also asserts the prosecutor committed misconduct during closing argument when he commented on defendant's failure to tell anyone that Munoz threatened him with a knife just before he shot and killed Munoz. Defendant argues the prosecutor made an inappropriate comment on his constitutional right to silence and not to testify in violation of Griffin v. California (1965) 380 U.S. 609 (Griffin).

A. Background

As explained ante, defendant gave a lengthy statement to officers after he was arrested, and he readily admitted that he shot and killed Munoz because Munoz disrespected him. Defendant never said that Munoz had previously threatened him with any weapon, or that Munoz pulled a knife just before defendant shot him.

At trial, defendant did not testify or call any witnesses. However, defense counsel elicited testimony from defendant's girlfriend, Deavan Gonzalez, that she saw Munoz pull a knife on defendant and threaten to kill him a few weeks before the homicide. Defense counsel also cross-examined the criminalist who searched Munoz's truck and found knives in the passenger compartment.

In closing argument, the prosecutor attempted to anticipate defendant's expected self-defense theory, and argued there was no evidence defendant reasonably believed he needed to use any kind of force to protect himself from Munoz on the night of the homcide. The prosecutor argued:

"There's a photograph of [defendant], not a mark on him. Now I'm sure the defense is gonna [ sic] , this magic knife. Okay, it's in the truck. There it is. It was also with a [hammer], three pairs of work gloves, whatever that thing is, some kind of work thing, chemicals, truck stuff. It's very apparent that Jerry Munoz used his truck as a work truck. It's got all his crud [sic] in it. Did you hear a single witness reference that knife being involved, that someone touched it, picked it up, talked about it? Not a single one. Not Andrew Saenz, not the defendant.
"[DEFENSE COUNSEL]: Objection, that's Griffin error."

The court held an unreported sidebar conference with the attorneys. Thereafter, the prosecutor resumed his closing argument as follows:

"[THE PROSECUTOR]: Ladies and gentlemen, when I refer to the defendant, I'm always referring to the statement he gave to Deputy McMinn.
"THE COURT: Ladies and gentlemen, I will overrule the objection, but I will remind you as you have been instructed by the Court previously in the jury instructions already read that the defendant has an absolute constitutional right to testify and you are not to consider in any way, shape or form or discuss the fact-well, let me go back and read the instruction to you and I'll reread the instruction in its entirety. I remind you that a defendant has an absolute constitutional right not to testify. He or she may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt. Do not consider for any reason at all the fact that the defendant did not testify and do not discuss that fact during your deliberations or let it influence your decision in any way. [¶] And for clarification purposes, Mr. Wilson, you've indicated that reference was to [defendant's] previous statement; is that correct?

"[THE PROSECUTOR]: That's absolutely right, Judge."

The prosecutor continued his argument and repeatedly cited to defendant's postarrest statement to the police, and argued that defendant never said anything about Munoz using a knife or using his own gun in self-defense.

During rebuttal argument, the prosecutor returned to defendant's prior statement:

"[Defense counsel] said that what we say is not evidence. That's true. But he wants you to assume facts. He wants you to speculate. Kill or be killed. The only person who has said kill or be killed is that man right there, [defense counsel]. And I understand why. It's his job. But you didn't hear it from [defendant] in his statement.
"[DEFENSE COUNSEL]: Objection, Griffin error.
"[THE PROSECUTOR]: Your Honor, it's not Griffin error. [Defendant] gave a statement, it's clearly arguable, it's permissible.
"THE COURT: Objection overruled."

B. Analysis

Defendant contends the above-portions of the prosecutor's closing argument violated Griffin and constituted improper comment on his constitutional right to remain silent since he did not testify at trial.

"Under the Fifth Amendment of the federal Constitution, a prosecutor is prohibited from commenting directly or indirectly on an accused's invocation of the constitutional right to silence. Directing a jury's attention to a defendant's failure to testify at trial runs the risk of inviting the jury to consider the defendant's silence as evidence of guilt. [Citations.] The prosecutor is permitted, however, to comment on the state of the evidence, 'including the failure of the defense to introduce material evidence or to call witnesses.' [Citation.]" (People v. Lewis (2001) 25 Cal.4th 610, 670.) " We apply a 'reasonable likelihood' standard for reviewing prosecutorial remarks, inquiring whether there is a reasonable likelihood that the jurors misconstrued or misapplied the words in question" to believe the prosecutor commented on the defendant's Fifth Amendment privileges. (People v. Roybal (1998) 19 Cal.4th 481, 514-515.)

The entirety of the record demonstrates that the prosecutor's arguments in this case were not directed to defendant's decision not to testify at trial. Instead, the prosecutor sought to undermine defendant's expected reliance on a self-defense theory by pointing out that defendant never said anything about a knife or self-defense during his lengthy postarrest statement to the investigating officers. To the extent there might have been any confusion on this point, defense counsel objected and the court correctly admonished the jury that the prosecutor's argument was addressed to defendant's postarrest statement. There is no reasonable likelihood that the jury understood the prosecutor's remarks as improper comment on defendant's failure to testify at trial. (People v. Lewis, supra, 25 Cal.4th 610, 671.)

DISPOSITION

The judgment is affirmed.

Poochigian, J. WE CONCUR:

Levy, Acting P.J.

Kane, J.