P. v. Baldwin

Filed 10/5/07 P. v. Baldwin CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

James Lamont Baldwin (defendant) was convicted by jury of first degree murder, and being a felon in possession of a firearm. The jury also found true an enhancement allegation that he discharged a firearm causing great bodily injury.[1] The court sentenced defendant to a prison term of 25 years to life for first degree murder, and a consecutive term of 25 years to life for the firearm use.

On appeal defendant contends: (1) The prosecutor engaged in numerous instances of misconduct that individually or cumulatively rendered the trial fundamentally unfair; (2) the court abused its discretion under Evidence Code section 352 by admitting many portions of recorded telephone calls between defendant and one of his girlfriends, and the admission of this evidence violated his federal constitutional right to due process; (3) the court erred by admitting evidence of threats and violence against witnesses that were neither made nor authorized by defendant; (4) the court failed adequately to investigate jury misconduct; and (5) the cumulative prejudicial effect of the foregoing errors deprived defendant of due process and a fair trial.

Facts

On July 1, 2002, the Oakland police found the body of Terrill Zachary lying between two parked cars on 91st Avenue between A and B Streets. He had been shot five times, twice to the back of the head and three times to the back of the lower torso. Firearms experts determined that the murder weapon was a .40 caliber Glock pistol, and that all nine .40 caliber shell casings found at the scene came from a single gun.

Wesley Tucker

Sergeant Medeiros, a member of the Oakland Police Departments homicide unit, was assigned to investigate Terrill Zacharys murder. Other than a few anonymous tips, the case was essentially inactive until September 10, 2002, when Wesley Tucker was arrested standing near a car containing illegal drugs. To avoid being returned to custody, Tucker offered to provide information about the murder. He was interviewed by Sergeant Longmire, and identified Mr. Baldwin as the killer and Eric Gaines, also known as Little E, as the person who drove him to the scene of the murder. Tucker had not reported what he knew to the police earlier because there was a code on the streetif you talk to the police you get killed. He was worried that if he cooperated with the police something might happen to his children or their mother, who lived in Oakland.

Tucker testified that, prior to the murder, he had been Mr. Baldwins friend for approximately 10 years. On July 1, 2002, Tucker and his four-year-old son were leaving a baseball game at the Oakland Coliseum when defendant called from his girlfriend, Mocha Aldridges, house on 100th Avenue and asked Tucker to pick him up. Tucker first picked up his brother Phil Jones and their friend Aaron Thigpin, then drove to 100th Street, where he picked up Mr. Baldwin. While riding in the car, Mr. Baldwin borrowed Tuckers cell phone to make several calls. In one of these calls, he told someone to meet him at 90th Street and bring his 40, meaning his .40 caliber pistol. Tucker dropped his son off at his mothers house before he and the others went to a liquor store near the corner of 90th Avenue and East 14th Street.

Mr. Baldwin and Phil Jones began a heated argument over an incident that had occurred a few nights earlier. Phil threatened Mr. Baldwin with a small bat, and Mr. Baldwin responded with verbal threats. As Tucker tried to stop them from fighting, a white Nissan Altima drove up. Another of Mr. Baldwins girlfriends, Tynesha Ross, was in the back seat. Mr. Baldwin walked over to the car, leaned in and while looking for his gun, muttered, Where is it? After a few seconds, he turned around, walked over to Phil, and punched him in the face. When Phil fled into a nearby liquor store, Mr. Baldwin yelled at him to come back and fight.

Tucker continued to try to calm Mr. Baldwin down, but others arrived, including Erik (Little E) Gaines, and urged him on. When Gaines offered to join Mr. Baldwin in a fight against Phil, Tucker started arguing with Gaines about escalating the fight. Eventually, Mr. Baldwin calmed down, and decided to go for a ride with Gaines.

Later, Tucker and Aaron Thigpin, who were standing at the corner of 90th Avenue and East 14th Street, heard a series of pops and saw Mr. Baldwin running up the street saying someone was shooting at him. He jumped into Tuckers car and told Tucker to take him to his brother Kennys house on 71st Avenue. As he drove, Tucker asked what had happened. Mr. Baldwin replied he had made Terrill Zachary because he believed Terrill Zachary had killed his friend, Little T. Mr. Baldwin, who had previously told Tucker that he had shot someone else whom he believed had killed Little T, said that he was sure Terrill Zachary was the real killer because he had the same kind of gun used to kill Little T. Mr. Baldwin told Tucker he had been riding in Erik Gainess car when he saw Terrill Zachary. He got out of the car, ran up to Terrill Zachary and shot him. The only person who saw his face was Randy Hicks, also known as Bone. During the drive, Mr. Baldwin removed a .40 caliber pistol from the pocket of his hoodie. When they reached his brothers house, Mr. Baldwin went inside and changed into a Pendleton jacket and a Raiders hat. Tucker then drove him to a nearby gas station where Mr. Baldwin drove off with another friend.

Tucker drove back to 91st Avenue to see if what Mr. Baldwin had said was true. The police had blocked off the crime scene, Terrill Zachary was lying on the ground under a sheet and Mr. Baldwin, Aaron Thigpin, Jermaine Fudge and Reggie Brown were in the crowd that had gathered.

After murder charges were filed against Mr. Baldwin, a friend of his told Tucker that he knew Tucker was a witness, and that he should leave town. Despite being on probation in Alameda County, Tucker moved out of state because he was afraid he would be killed for his involvement in the case. Someone also approached the mother of his children at a shopping mall and asked whether they still lived in the same place. Eventually Tucker was arrested out of state and returned to California for violating his probation. Tucker continued to fear for his safety in custody, and for the safety of his children and their mother, because of his cooperation with the police.[2]

Mr. Baldwins Arrest

After obtaining this information from Tucker, Sergeant Medeiros decided to conduct a parole search of Mocha Aldridges home, where Mr. Baldwin resided. In order not to alert him that he was the target of a murder investigation, Sgt. Medeiros informed the patrol officers who were to conduct the search to treat it as a parole search without mentioning the murder investigation. The officers conducted the search on September 20, 2002, and found a small amount of marijuana in a shoe box, and a dreadlock wig. They arrested Mr. Baldwin for marijuana possession, his parole was revoked. The murder charges were filed against him in April 2003.

Mr. Baldwins phone calls

In telephone conversations with Mocha Aldridge following his arrest for the parole violation, Mr. Baldwin repeatedly complained that somebody was snitching. He referred to being investigated by homicide officers and also discussed leaving town with Aldridge, or by himself. At one point he told her that she could have been gone too and the authorities would offer her low term 25.

Erik Gaines

On October 22, 2002, the police picked up Erik Gaines on an outstanding warrant. He provided a detailed account of Mr. Baldwins involvement in Terrill Zacharys murder and was released without charges. In his statement, Gaines said he was willing to tell the police all he knew about the murder but he would not sign any papers or go on tape because he was afraid he would be killed.[3] Throughout the interview he repeated that he was afraid to give information and did not want to testify because he was concerned he would be killed. Gaines said that Randy Hicks was also scared because he had come face to face with defendant right after the shooting, and that Jermaine Fudge and Reggie Brown were also afraid that defendant was going to try to kill them.

Gaines said that shortly before the shooting, he and Mr. Baldwin were cruising the neighborhood in Gainess car. Gaines turned onto 91st Avenue at A Street but when he reached the end of the block, at B Street, Mr. Baldwin asked Gaines to turn around and loop back. As Mr. Baldwin looked at Terrill Zachary he said, Thats that [person who] killed T. Terrill Zachary was talking to Bone; nearby were Jermaine Fudge and Reggie Brown. Mr. Baldwin, who was wearing a black hoodie and jeans, instructed Gaines to drive around the block and let him out. As he got out of the car, he put on a braided wig. Gaines also noticed that he had a .40 caliber pistol that he regularly carried. Gaines drove away, but then headed back to 91st Street. When he reached 91st Avenue and D Street, he saw Bone and Jermaine Fudge running and picked them up. Bone told him that Mr. Baldwin walked up to Terrill Zachary with his gun out and when he started to run, Mr. Baldwin shot him in the back several times. Terrill Zachary fell and Mr. Baldwin stood over him and let him have it.

Gaines saw Mr. Baldwin about an hour and a half later at 90th Avenue and East 14th Street. He had changed his clothes. Gaines complained to him that he had made his car hot by shooting Terrill Zachary. Mr. Baldwin said that no one would connect the car to the murder. When Gaines asked why he had killed Terrill Zachary, Mr. Baldwin responded that he had killed Little T and that it was murder for murder. After that conversation, Gaines stayed away from Mr. Baldwin.

Before Gaines testified at the preliminary hearing, Deputy District Attorney Ford read to him the transcript of his taped interrogation. Gaines was distressed to learn it had been taped, but confirmed the statement was accurate. He also expressed concern about who would be in the courtroom. When the prosecutor told him that Mr. Baldwin and several members of his family were present, Gaines said he was afraid to testify because he was in custody, going to prison for robbery, and feared a snitch jacket would place his life in danger.

When Gaines took the stand at the preliminary hearing, he refused to answer questions. The court ordered him to respond and he testified he simply told the police what he thought they wanted to hear so that he could go home, and that a lot of his statement was gibberish based upon rumors on the street. He acknowledged that he had asked the district attorney who would be in the courtroom, explaining that he had to go back to live in the neighborhood and you can get killed for testifying.

Jermaine Fudge

Jermaine Fudge testified in Mr. Baldwins defense that on the night of July 1, 2002, he was hanging out with Bone on 91st Avenue. He saw Terrill Zachary walking down 91st Avenue, followed by another person wearing a black hoodie. Fudge did not recognize the person, but recalled that he was shorter and thinner than defendant. The person walked behind a van and started shooting. He and everyone else ran away from the scene. Later, Fudge and Bone were picked up by Gaines and in the car they discussed why Terrill Zachary had been shot, but Bone never said he saw the killer.

Aaron Thigpin

Aaron Thigpin, testifying in Mr. Baldwins defense, stated that he, Tucker and Phil Jones were driving around together on the night of July 1, 2002; however, Mr. Baldwin was never in the car with them and he did not see him until later that week. Later that evening, while he and Tucker were hanging around a liquor store at 90th Avenue, they heard what sounded like firecrackers. He walked up the street and came across the crime scene. Aaron testified that Tucker and Mr. Baldwin had been good friends, but that they had a falling out. Tucker told Aaron that he did not like Mr. Baldwin, and wanted to pay[] him back. Aaron acknowledged that it would put his life in danger to be a snitch, but testified he had nothing to fear because he did not know anything about the murder.

Phil Jones

Phil Jones was out of state and did not testify at the trial.

Randy Hicks

Randy Hicks was killed prior to the trial.

Defense Case

Mocha Aldridge testified that she and Mr. Baldwin had arranged to go to his mothers house in Modesto on June 30, 2002, the day before the murder. Deborah Baldwin, defendants mother, arrived in Oakland in a rented car to pick them up but defendant was out with friends and could not be located. Aldridge drove to Modesto with Mr. Baldwins family, and returned later that evening in the rental car to get him. They arrived in Modesto late that evening, and stayed through the July Fourth holiday.

Cecelia Franklin, a good friend of Deborah Baldwins, testified that she had seen defendant at Deborah Baldwins house on June 30 and July 1. Denise Pitts, another close friend of Deborah Baldwin, testified that she recalled seeing Mr. Baldwin at his mothers house in the evening of July 1.

Deborah Baldwin testified that she rented a car from Enterprise Rent-A-Car (Enterprise) in Modesto on June 30 and drove to Oakland, arriving around noon. Her son could not be found, so she drove back to Modesto with Aldridge. Later that day, Deborah Baldwin let Aldridge take the car back to Oakland to pick up her son. Aldridge returned with him late that night and they stayed at her house until the evening of July 4. Deborah Baldwin acknowledged on cross-examination that she had been barred from renting from Enterprise since 2001 because of an outstanding debt. She explained that Cecilia Franklin had rented the car for her on or around June 28 and that she had paid for the rental expenses in cash.

Defendant testified that he and Mocha Aldridge drove to his mothers house in a rented car, arriving in Modesto at 8:30 p.m. on June 30, 2002, and that they stayed there until the evening of July 4. When asked about his taped jail conversations with Aldridge, defendant denied that he believed he was being investigated for murder. His reference to low term 25 in the call was not to the 25-year-to-life sentence for murder, but rather a reference to a 25-month term for a drug offense that Aldridge would have to serve if she were convicted and got the low term of three years for selling marijuana. He explained that when he talked about someone snitching he was referring to his marijuana stash. He would not identify the third party he was talking to on the phone until, after four refusals, the court ordered him to answer. He said he knew the person only as Boo or Booby, and that he and Boo had agreed to become partners in a record business. His directions to Boo to handle that shit, check your surroundings, and snitching all referred to handling record business arrangements. Boo had $1,500 dollars for defendant, and when defendant told him not to let anyone send him the bzat he was referring to this cash. He stated that his reference to a bzat did not refer to a gun, and he was concerned that if anyone sent his cash to Aldridge, she would spend it.

Mr. Baldwin denied shooting Terrill Zachary, and testified that he had no ill feelings towards him. He and Tucker, on the other hand, had a falling out sometime before July 2002. Their friendship cooled over an affair he had with the mother of one of Tuckers children, and after he had a physical fight with Tuckers brother, Phil Jones.

Germain Tapia lived at 91st Avenue between A and B Streets. He had tried to stay uninvolved, but was located by the defense and subpoenaed to testify near the end of trial. He testified that on the night of July 1, 2002, he was at 91st Avenue and A Street helping a friend work on a car. At 11:00 p.m. he saw a person in a blue hoodie walk by. Tapia could not see his face because his hood was up, but the person was shorter and skinnier than Mr. Baldwin and walked with a limp. A few minutes later Tapia heard approximately 10 shots. He saw two guys run past, and then ran inside his house.

Rebuttal

Jason Tardiff, the custodian of records for Enterprise, testified that a silver Pontiac Grand Am had been rented to Cecelia Franklin on July 2, 2002, at 5:44 p.m., the day after the murder. The car was rented from July 2, 2002, through August 12, and was paid for in cash. Cecelia Franklin had also rented a Toyota Camry on June 19, 2002, which she returned on June 24, 2002. Tardiff confirmed that since May 17, 2001, Enterprise had in effect a do not rent flag for Deborah Baldwin.

Analysis

I

Prosecutorial Misconduct

Defendant contends the prosecutor committed misconduct by repeatedly (1) asserting or arguing facts not in evidence; (2) vouching for the integrity of his witnesses; (3) misstating the facts; (4) misstating the law; (5) appealing to passion and prejudice; (6) using leading questions as a means to testify, and accusing defense witnesses of concealing exculpatory evidence such as defendants alibi until the trial, or simply fabricating their testimony; and (7) accusing defense counsel of concealing evidence and participating in a conspiracy to threaten or intimidate witnesses. He contends each incident of misconduct was part of the prosecutors overall strategy to cast the trial as a personal contest between the prosecutor as an embodiment of morality and the social orderagainst the [defendant] and [defendants] loved ones, whom the prosecutor collectively demonized as lowlifes and killers.

The threshold problem, as defendant acknowledges, is that defense counsel did not object to most of the questions, statements, or arguments that defendant now contends constituted misconduct. A claim of prosecutorial misconduct is usually waived by failure to object. (People v. Coddington (2000) 23 Cal.4th 529, 595, overruled on other grounds by Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) The record does not support defendants reliance upon the futility exception recognized in People v. Hill (1998) 17 Cal.4th 800, 821. In Hill, the court excused defense counsels failure to object because the court not only failed to rein in the excesses of the prosecutor in the face of defense objections, it also made comments in front of the jury characterizing the defense objections as meritless, chastising defense counsel for making them, and suggesting that defense counsel was an obstructionist. (Id. at pp. 821-822.) By contrast, the record here shows that the court regularly sustained meritorious defense objections throughout the trial. (See, e.g., RT 172, 175, 185, 197, 206, 210, 212, 275, 326, 442, 443, 444, 473, 486, 571, 677, 696, 698, 699, 701, 702, 704, 714, 717, 736, 806, 810-813, 816, 819, 830, 834-837, 840, 865, 909, 912, 915, 916-919, 922-923, 927-929, 931-933, 937, 939, 941, 942, 970, 980, 995, 998, 1005, 1049, 1093, 1095, 1097-1098, 1100, 1102, 1108, 1115-1117, 1124-1125.) The court once even made an objection on the defenses behalf. Moreover, there is no record of the court criticizing defense counsel or otherwise penalizing him for making objections. Under these circumstances timely objections would not have been futile, and the failure to assert these objections at trial waived most of his claims of misconduct on appeal. (People v. Noguera (1992) 4 Cal.4th 599, 638.)

To the extent his claims based upon prosecutorial misconduct have been waived, defendant argues counsel was ineffective for failing to object. (See People v. Pitts (1990) 223 Cal.App.3d 606, 693.) In this context, defendant must show that counsels omission fell outside the range of an objective standard of reasonableness. (People v. Ledesma (1987) 43 Cal.3d 171, 216.) When the claim of misconduct is based upon arguments or comments the prosecutor made before a 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.  (People v. Ochoa (1998) 19 Cal.4th 353, 427.) If the challenged statement or argument was not misconduct then, of course, it would not be outside the range of competence for counsel to fail to object. Even where the prosecutor may have engaged in objectionable conduct, mere failure to object does not establish incompetence. (People v. Wharton (1991) 53 Cal.3d 522, 567.) Defendant must show that counsels omission involved a critical issue, and that the failure to object could not be explained as a reasonable trial tactic. (People v. Lamphear (1980) 26 Cal.3d 814, 828-829; People v. Jenkins (1975) 13 Cal.3d 749, 753.) If counsels performance does fall outside the range of reasonable competence, defendant then bears the burden of showing that counsels omission resulted in prejudice. (People v. Ledesma, supra, at p. 217.)

We shall apply these standards to our review, grouped by category, of the numerous instances of misconduct cited by defendant.

1. Statements of Fact Not in Evidence.

Although the prosecutor is free to  argue all reasonable inferences from evidence in the record, our state Supreme Court has repeatedly warned that statements of facts not in evidence by the prosecuting attorney . . . constitute misconduct. (People v. Bolton (1979) 23 Cal.3d 208, 212.) In the worst case scenario, such statements may imply that there is additional evidence known to the prosecutor, but unavailable to the jury. These implications . . . make the prosecutor his own witnessoffering unsworn testimony not subject to cross-examination. It has been recognized that such testimony, although worthless as a matter of law, can be dynamite to the jury because of the special regard the jury has for the prosecutor, thereby effectively circumventing the rules of evidence. (Id. at p. 213.)

Defendant begins with the prosecutors comment during voir dire that in most murder cases there are no eyewitnesses. Defendant did not object, but now argues the comment was misconduct because it offered as fact that most murder cases do not involve eyewitness, to explain away the primary weakness of the prosecutions case, i.e., the absence of an eyewitness to the shooting. There is no reasonable likelihood that the jury so understood it. (See People v. Ochoa, supra, 19 Cal.4th at p. 427.) The prosecutor made the statement merely as a prelude to inquiring whether the prospective jurors would have difficulty basing a decision on circumstantial evidence in the absence of eyewitness testimony. That is an appropriate line of inquiry during voir dire. Since the prefatory comment was not misconduct, it was not ineffective for counsel to fail to object.

Next, defendant cites the portion of the prosecutors opening statement discussing reluctant witnesses. The prosecutor began by noting that witnesses did not want to be in here, and youll see that as time passes in this case. In fact, some defendants themselves go to the crime scene to see whos talking to the police.[4] The prosecutor continued: And when cases come to court, family members come from various sides to report back on the street whats happening. Defendant argues that this latter statement was misconduct because it was not supported by any evidence at trial. To the contrary, the prosecutors statement was supported by testimony that Erik Gaines asked Deputy District Attorney Ford, before the preliminary hearing, who would be present in the courtroom, and specifically whether defendant or his family would be present. When Gaines was told that 15 to 20 members of defendants family were present, he said he was worried about his safety, and did not want to testify. The district attorney also testified that at the preliminary hearing it was obvious that many people present at the hearing were defendants family members and that defendant waved and nodded to them. It was also supported by Tuckers testimony that defendants sister went to his house and told his family to warn him against testifying.

Defendant next cites several instances in which he contends the prosecutor improperly testified, and stated his own personal belief that the alibi defense was a fabrication.

The first example occurred in the context of cross-examination of Mocha Aldridge. The prosecutor established that Aldridge had attended the preliminary hearing, was aware of the pending charges against defendant, and yet did not come forward with the information that defendant had been with her in Modesto. He also established that she had given her calendar, where she kept a record of her daily activities, and a statement to the defense investigator in 2003. The prosecutor then stated, [T]he record should reflect that I didnt receive any knowledge of this until I got a letter from defense counsel shortly before the trial began. Defendant argues this latter statement was improper testimony. Statements by attorneys are not evidence, and defendant could have objected on that ground, and asked for an admonition that the jury disregard it, but he did not. Nonetheless, the failure to object was not incompetent. The specific information about precisely when the prosecutor first learned of the alibi was not a critical issue, and was collateral to the basic point that the prosecutor was making with this line of questioning, i.e., that Aldridge had not disclosed the alibi to the authorities before the trial. Moreover, defense counsel could reasonably make a tactical decision not to object to the prosecutors statement, because the facts could easily have been established by other proper means.

Next, defendant asserts that, during the cross-examination of Deborah Baldwin, the prosecutor made testimonial statements in the form of argumentative questions that conveyed his personal belief that she lied to him and intentionally concealed key facts when he interviewed her before trial to get further information about the car rental. As he had done with Mocha Aldridge, the prosecutor interrogated Baldwin about why she had not previously disclosed to any law enforcement authorities the facts relevant to the alibi defense.[5] At one point during this line of questioning, the prosecutor became argumentative. In response to Baldwins explanations for not coming forward earlier, the district attorney said: No. If my kid were locked up for murder, and he was with me, Id go to the police officer and say, Hey, my kid was with me. He couldnt have done it. [] Why didnt you do that? The court sustained the defense objection. At another point, in response to Baldwins explanation as to why, in a pretrial interview, she told the prosecutor she had rented the car, and had not mentioned Cecelia Franklins role, the prosecutor stated, You lied to me when you said that you rented the car. The court overruled the objection that this was argumentative, but restated the assertion that she lied as a question. Later, when the district attorney asked Baldwin if she believed he was going to check out whatever information she gave him, she acknowledged she knew he would. The district attorney responded, Right. I did check it out. I did. The court sustained the defense objection and instructed the prosecutor not to testify. The court repeated this admonition when the district attorney stated in reference to Cecelia Franklin, I had no idea who she is . . . until she arrived here, right?

In the foregoing exchanges, the prosecutor undoubtedly became argumentative, and made assertions of fact instead of asking the witness questions. Nonetheless, his conduct did not prejudice defendant. The court sustained defense objections in all but one instance. In that one instance, the court overruled the objection but restated the prosecutors assertion that Baldwin lied, in the form of a question. Generally, a defendant cannot show prejudice when the court sustained an objection to claimed misconduct. (See People v. Price (1991) 1 Cal.4th 324, 482; People v. Pinholster (1992) 1 Cal.4th 865, 943.) Moreover, the substance underlying these argumentative questions, i.e., that Deborah Baldwin failed to come forward with the alibi evidence when it would have been logical to do so, lied about the details of the car rental when the prosecutor interviewed her, and was lying about the alibi at trial, was proper argument that the prosecutor could and did make at the close of trial. (See People v. Price, supra, at p. 484 [no prejudice caused when argumentative questions did not imply the existence of facts not otherwise before the jury, and would have been the proper subject of closing argument].) We also find no reasonable likelihood that the jury would have construed the prosecutors comments during cross-examination as a statement of his personal belief that Baldwin lied or intentionally concealed information from him. Instead, the jury would have recognized that he was using cross-examination aggressively to expose the inconsistencies in her testimony, and to impeach her credibility. (See People v. Ochoa, supra,19 Cal.4th at p. 427.)

Defendant next contends the prosecutor committed misconduct when cross-examining defendant about what he meant when he referred to the low-term 25 in a telephone call to Aldridge. Defendant testified he was referring to the low term of three years for marijuana sales, resulting in actual time of 25 months, not a term of 25 years to life for murder. The prosecutor retorted that theres no crime in the Penal Code that you get low term of 25. When defendant persisted with his explanation, and added that was the term he had received when he was convicted of selling marijuana, the prosecutor admonished defendant not to deceive the jury. The prosecutor insisted that defendant must know that two years is the low term for sale of marijuana, because that was the sentence he received. The court sustained the defense objection that these were argumentative statements only nominally in the form of questions, and told the jury to disregard his comments. It allowed the prosecutor to restate the assertions as questions. Again, the form of questioning was improper, but defendant was not prejudiced because the court sustained an objection and told the jury to disregard the prosecutors comment. The prosecutor also later introduced evidence that defendant had in fact been sentenced to two years for a marijuana sales conviction. Moreover, defendant did not suffer any prejudice because the arguments contained in the questions would have been proper if made at the appropriate time. (See People v. Price, supra, 1 Cal.4th at p. 484.)

Defendant also cites as misconduct the prosecutors assertion in closing argument that it was not common to be able to crack an alibi like this, because there was no evidence regarding how common it was to crack an alibi. He argues that the effect of this remark was to persuade the jury, based upon the prosecutors own experience, that this was a particularly strong case for the prosecution. It was not ineffective to fail to object. The prosecutors statement did not concern a critical issue. The critical point was that the prosecutor had presented overwhelming evidence undermining the alibi. Whether this was a rare or common event was a collateral point that added nothing to the strength of the prosecutions case.

Defendant next argues the prosecutor improperly argued to the jury that Wesley Tucker and Erik Gaines would not, under Proposition 36, have faced long prison sentences for possession of drugs. Again, no defense objection was made at the time. Defendant now argues this was a particularly egregious example of misconduct because there was no evidence regarding sentencing under Proposition 36, and because, as he reads the record, both witnesses would have faced more serious charges than simple possession of drugs. We need not resolve the dispute whether the prosecutor accurately described the charges and consequences to either witness[6] because, assuming arguendo that the description was inaccurate, it was not incompetent to fail to object. The prosecutors argument merely minimized the degree of penal consequence these witnesses faced, but it did not undermine defense counsels basic point that they both faced incarceration, and admitted that they gave information concerning the killing of Terrill Zachary in the hope of gaining their freedom.

Defendant further contends the prosecutor committed misconduct during his rebuttal by stating, We checked every car that Cecelia Franklin rented. We brought the one from July 2nd, and the one from June 19th. There was nothing rented in between. Defendant argues that this was an improper attempt by the prosecutor to close an evidentiary gap created by the testimony of the custodian of records, who stated that he had been asked only to examine the records for car rentals to Cecelia Franklin for June 19 and July 2. Defense counsel had relied on this testimony to suggest that the prosecution failed to rule out the possibility that there were records of other rentals by Cecelia Franklin in between those dates. Counsel was not ineffective for failing to object, because a timely objection would only have forced the prosecutor to restate his argument more carefully as a reasonable inference from the failure of the defense to present records, or Franklins testimony that she did rent a car on June 30. In any event, it is clear from the remainder of the prosecutors rebuttal on this point that this is the unobjectionable argument he was making. The prosecutor pointed out that defense counsel could have subpoenaed the car rental records, or called Cecelia Franklin to testify, and suggested the reason they did not is because the records did not exist, and that the alibi was a lie. The obvious inference was that if such evidence existed the defense would have introduced it. (See People v. Gonzalez (1990) 51 Cal.3d 1179, 1216 [permissible for prosecutor to comment upon defendants failure to introduce logical evidence].)

We also see no analogy between this conduct and that of the prosecutor in People v. Gaines (1997) 54 Cal.App.4th 821, the case upon which defendant relies. In Gaines, the court found prejudicial misconduct because the prosecutor, in the guise of argument, provided the jury with a summary of what a missing defense witness would have said, and told the jury the defense had the witness available but did not call him because the witness would have impeached the defendants testimony. None of this information was based upon evidence in the record. The court held this argument went far beyond urging an adverse inference from the failure of the defense to present logical witnesses because none of these assertions about what the defense witness would have said, or that his testimony would have impeached the defendant, was in the record. (Id. at pp. 825-826.) In this case, by contrast, the prosecutor did nothing more than argue a reasonable inference from the failure of the defense to present logical witnesses.

2. Vouching

Defendant identifies four instances of misconduct consisting of vouching for witnesses. The defense did not object to any of them. Vouching consists of bolstering the credibility of a witness by placing the prestige of the government behind the witness, through personal assurances that the witness is truthful, or the suggestion that information outside the record exists, to which the prosecutor is privy, that demonstrates the witness is truthful. (See People v. Frye (1998) 18 Cal.4th 894, 971.) We have reviewed each claim and determined that, in context, the jury would not reasonably have understood the comment as vouching, and counsel therefore was not ineffective for failing to object.

The comments were as follows: In his opening statement the prosecutor described Sergeant Medeiros as one of Oaklands finest homicide detectives. In closing argument, the prosecutor stated, I met Wesley Tucker in Santa Rita jail on May 10, 2004, and he essentially told me the same thing in the presence of Inspector Pat Johnson. The prosecutor also stressed, with respect to deals made by the witnesses, [E]verything is open. I have never in any way deceived you. Finally, the prosecutor stated, I have tried to bring you all the witnesses that I can. Defendant acknowledges that the single comment in opening statements about Sergeant Medeiros would not by itself have been prejudicial, but argues that, taken together with the other three, these comments had the effect of personally vouching for the credibility of the prosecutions witnesses, and the integrity of the prosecutor himself.

No reasonable jury would have understood the comment about Wesley Tucker as a personal assurance that Tucker was truthful, or a suggestion that the prosecutor was privy to information outside the record that demonstrates the witness is truthful. (See People v. Frye, supra, 18 Cal.4th at p. 971.) Instead, the prosecutor was simply arguing that one of the reasons the jury should find Wesley Tucker credible was that his testimony at trial was consistent with his prior statement, and Tucker himself had so testified.

Similarly, when read in context, the assertion that everything is open. I have never in any way deceived you was not reasonably likely to have been understood as a personal assurance that the prosecutor had not concealed evidence. The comment was made in the course of argument acknowledging that both Wesley Tucker and Eric Gaines provided information to law enforcement in exchange for leniency. The prosecutor was simply urging the jury not to discredit these witnesses on that basis because this was a lawful method of obtaining information and the evidence showed the deals were openly made, and the witnesses had disclosed the benefits they received or expected to receive.

Finally, the prosecutors assertion that he presented all the witnesses he could would not reasonably have been understood as urging the jury to accept his personal promise based upon facts outside the record that all available witnesses had been presented. This statement was merely prefatory to the prosecutors specific explanation that Phil Jones was out of state, and the prosecutor referenced trial testimony in support of that assertion.

We conclude that none of these comments were reasonably likely to have been understood as vouching, and it therefore was not ineffective for counsel to fail to object.

3. Misstatement of Evidence

Defendant contends that the prosecutor mischaracterized or misstated the evidence in his closing arguments relating to the credibility of defense witnesses Aaron Thigpin and Jermaine Fudge. Again, the defense did not object to any of the statements that defendant now contends constituted misconduct.

Although prosecutors have wide latitude to draw inferences from the evidence presented at trial, mischaracterizing the evidence is misconduct. [Citations.] A prosecutors vigorous presentation of facts favorable to his or her side does not excuse either deliberate or mistaken misstatements of fact. (People v. Hill, supra, 17 Cal.4th at p. 823.) The line between permissible argument regarding inferences from the evidence and impermissible misstatement of the evidence is, however, often difficult to draw. (Ibid.) We shall conclude the prosecutors statements fell on the side of permissible argument advocating reasonable inferences from the evidence. Since the challenged statements did not constitute misconduct, it was not ineffective to fail to object.

In the context of a general argument that many defense witnesses believed their lives would be in danger if they testified for the prosecution, the prosecutor stated: Aaron Thigpin would not have made it home alive, he said, if he saw Wesley Tucker with the defendant on this day. Defendant argues that by inserting the words he said, the prosecutor incorrectly implied that Thigpin expressly testified that he would not have made it home alive had he seen Wesley Tucker with defendant that day. We do not find it reasonably likely that the jury would construe this argument as a literal statement of Thigpins testimony. Thigpins testimony, in response to a hypothetical question, was that he personally believed his life would be in danger if he identified a person responsible for a murder. He added that everybody thinks that. He also claimed not to be worried because I dont involve myself in that. He testified that defendant was not with him, Wesley Tucker, and Phil Jones, the night Terrill Zachary was killed. The prosecutors use of the phase he said logically referred to Thigpins admission that he believed he would be killed if he identified a person responsible for the murder. The jury would have understood the prosecutor to be arguing that the reasonable inference was that Thigpin believed he would be killed if he had testified he saw defendant on the day of the murder, and therefore the jury should not credit his testimony that defendant was not there.

The prosecutor made a similar point with respect to Jermaine Fudge: Jermaine Fudge would not have made it home alive, if I saw someone like the defendant who did this killing. Defendant contends that, by inserting the pronoun I, the prosecutor suggested he was quoting Fudges testimony despite the fact that Fudge never so testified. Again, we do not find it reasonably likely that the jury would have understood the comment as a direct quote. The injection of the pronoun I was a rhetorical device the prosecutor used to portray what Fudge might be thinking. The prosecutor was clearly suggesting to the jury that it could infer Fudge shared the same fear that Thigpin acknowledged, and that is why Fudge testified he saw a person firing shots but could not identify the shooter, except to say with certainty that the person was not defendant.

Defendant also argues the prosecutor mischaracterized Thigpins testimony that defendant and Wesley Tucker had had a falling out, by describing this testimony as coming out of the blue, and referring to the claimed dispute between the two as really, really old. Defendant asserts this argument misstated the evidence because it was an uncontroverted fact that Thigpin had long before given the information regarding a fight between Tucker and defendant to defense counsel and the defense investigator. He also contends the vendetta was not really, really old, since the fight Thigpin described had occurred only a few months before the shooting.

Counsel was not ineffective for failing to object, because the prosecutors statements were nothing more than fair argument based upon the evidence, and therefore unobjectionable. Thigpin admitted that he had not told defense counsel or the defense investigator about the fight defendant had with Tucker until his last meeting with them. Although it was unclear precisely when Thigpin finally did disclose the information that defendant and Tucker had a falling out, it was fair argument to characterize the testimony as a recent fabrication, in light of the fact that Thigpin delayed in disclosing it. Whether a fight that was a few months old was too remote to provide a motive for Tucker falsely to incriminate defendant is simply a debatable point, not a mischaracterization of the record. That defendant disagrees with the prosecutors reasoning, or interpretation of the evidence, does not convert fair argument into misconduct. (See People v. Pitts, supra, 223 Cal.App.3d at p. 702 [ adverse party cannot complain if the reasoning be faulty and the deductions illogical, as such matters are ultimately for the consideration of the jury ].)

4. Misstatements of Law

Defendant argues the prosecutor misstated the law, by repeating the theme throughout his closing argument that [i]f you believe this alibi is a lie, is untrue, you have to find him guilty. Defense counsel did not object to these remarks. Nonetheless, defendant now asserts this argument was an egregious misstatement of applicable law because it suggested all the prosecution had to do was disprove the alibi, without proving the elements of the offense beyond a reasonable doubt, and that if the jury found the alibi to be untrue, it was required to convict defendant.

There is no reasonable likelihood that the jury would have construed this, and similar remarks throughout the prosecutors closing, in the manner defendant suggests. (People v. Ochoa, supra, 19 Cal.4th at p. 427.) Counsel therefore was not ineffective for failing to object. Read as a whole, it is obvious that the prosecutor was not purporting to state the law. Rather, he was making a factual argument. At the outset of closing argument the prosecutor posited this basic theme: This is a case of a choice. Do you believe the testimony of Eric Gaines and . . . Wesley Tucker, two people [who] independently at different times tell essentially the [same] description of the defendant committing this murder. Do you believe them, or do you believe the alibi presented by the defense, as you now know, a clearly fabricated alibi. It is your choice. It is a clear choice.[[7]] If you reject this alibi, which I will urge you to do, you must find the defendant guilty. Only a guilty person would present that type of fabricated evidence, and it was. The prosecutor never suggested he did not have the burden of proving defendants guilt. To the contrary, the prosecutor argued at length all the reasons why the testimony of Eric Gaines and Wesley Tucker, if credited by the jury, constituted overwhelming evidence of defendants guilt. Any reasonable jury would have understood the prosecutor was merely arguing that, if the jury determined the alibi was false, it would be left only with overwhelming evidence of defendants guilt, further bolstered by a reasonable inference of consciousness of guilt based upon the fabrication of an alibi. This was entirely proper and unobjectionable argument.

5. Appeals to Passion and Prejudice

Defendant contends the prosecutor committed misconduct by making an appeal to the jury to convict defendant to protect community values, preserve civil order, or deter future lawbreaking, instead of weighing the evidence and making an individualized decision based upon the evidence before it. (See United States v. Witherspoon (9th Cir. 2005) 410 F.3d 1142, 1149.) He cites the prosecutors concluding remarks, in which the prosecutor urged the jury, Its not a crusade against bad guys in Oakland. It is this casethis is homicide in this case in this area, and this is the way it happens. If you permit him to get away with this, you know, its essentially lawlessness out there. [] Dont subject the citizens. Dont send that message out there. Treat this case individually. This is our facts on this defendant. Understand the context. (Italics added.) Again defense counsel did not object. Counsel was not ineffective for failing to object because, to the extent that the prosecutors remarks could have been construed as an appeal to the jury to convict without regard to the evidence simply to preserve order, or to deter future criminals, the prosecutor himself undermined the prejudicial effect of these remarks by cautioning the jury that, Its not a crusade and that it must [t]reat this case individually. Although defendant dismisses these cautionary remarks as a rhetorical device designed to convey the opposite (see People v. Wrest (1992) 3 Cal.4th 1088, 1107), read as a whole, we find no reasonable likelihood that they had that effect because the prosecutors brief references to lawlessness and the need to send a message to the citizens of the community were preceded by lengthy and detailed argument focused entirely upon the evidence.

6. Improper Examination of Witnesses

Defendant contends that the prosecutor committed misconduct by using leading questions in the examination of Wesley Tucker that were designed to elicit very prejudicial and inadmissible evidence regarding threats by third parties against Mr. Tucker and family. He argues the prosecutor also used leading questions to substitute his own testimony for that of the witness.

As the prosecutor questioned Tucker about a warning he received from a mutual friend of his and defendants that he should leave town because it was known that he was a witness in the case, Tucker was reluctant to identify the person who warned him, and his answers became cryptic. The prosecutor, summing up his understanding of Tuckers preceding responses, asked: So basically some friend of the defendants came up to you, since you all came up together, says you better get out of town now, and you just got out of town? When defendant objected that this was a leading question the court agreed, but said it would allow it. Thereafter, the prosecutor continued to use leading questions that elicited testimony about threats to Tuckers family made at the mall, a threatening visit from defendants sister, and Tuckers testimony that he was afraid that members of defendants family might cause harm to Tucker or his family. The prosecutor also asked a series of leading questions concerning what promises the prosecutor had made to Tucker in exchange for his information and testimony.

The mere use of leading questions does not constitute prosecutorial misconduct, absent a showing that they were used to elicit inadmissible evidence. (People v. Williams (1997) 16 Cal.4th 635, 672; People v. Hayes (1971) 19 Cal.App.3d 459, 470.[8]) The evidence of these threats was admissible to show that the witness was afraid and feared retaliation, even in the absence of evidence that the threats were made, or authorized, by defendant. (See People v. Olguin (1994) 31 Cal.App.4th 1355, 1368; see also People v. Burgener (2003) 29 Cal.4th 833, 869-870.) It therefore was not misconduct to elicit this information.

Defendant contends that the prosecutor committed misconduct by using leading questions as a means to offer his own testimony without submitting to cross-examination. The case upon which he relies, People v. Barajas (1983) 145 Cal.App.3d 804, 810-811, involved conduct that is distinguishable from the mere use of leading questions that occurred in this case. In Barajas, in his opening statement, the prosecutor told the jury that an uncooperative informant would identify the defendant as having been involved in a robbery and murder. When called to the stand the witness invoked his Fifth Amendment privilege, and refused to testify. Over a defense objection, the court allowed the prosecutor to ask a series of leading questions in front of the jury. Despite the fact that the witness did not answer any of the questions, and was not cross-examined, the jury was left with the clear impression that this witness would have identified the defendant. The court held that [a] prosecutor may compel a witness to assert a privilege to specific questions, but he may not, under the guise of cross-examination, get before the jury what is tantamount to devastating direct testimony. (Id. at p. 810.) No such misconduct occurred in this case because Tucker answered the prosecutors questions, and was subject to cross-examination.[9]

Defendant next contends that the prosecutor committed misconduct by repeatedly questioning Mocha Aldridge and Deborah Baldwin about why they failed to come forward with evidence of the alibi earlier, and accusing them of keeping this a big secret until trial. During this line of questioning the court sustained some defense objections when the questions became repetitive and argumentative, or when the prosecutor improperly testified by making statements about what he would have done in such circumstances. By sustaining these objections the court effectively kept the cross-examination under control, and eliminated any prejudice that might otherwise have flowed from such questions. (See People v. Pinholster, supra, 1 Cal.4th at p. 943; People v. Mayfield (1997) 14 Cal.4th 668, 755.)

Defendant nevertheless contends that it was prejudicial misconduct even to ask these witnesses why they did not come forward earlier, and to argue that the delay supported the inference that the alibi was a recent fabrication. The authority upon which defendant relies, People v. Lindsey (1988) 205 Cal.App.3d 112, is inapposite. In Lindsey, the court held it was misconduct to argue that defense counsel fabricated the alibi based upon his failure to disclose it before trial. The court reasoned that the argument was the functional equivalent of commenting on the defendants postarrest silence because defense counsel was acting as the agent for a nontestifying defendant. (Id. at p. at 117.) The same concerns do not apply here, where the prosecution made a charge of recent fabrication against defense witnesses, not defense counsel. There is nothing inherently improper about cross-examining a defense witness as to his failure to come forward at an earlier date. In fact, the information discovered during this type of questioning may well aid the trier of fact in its effort to determine whether the testimony is an accurate reflection of the truth or a recent fabrication. [] Although a citizen ordinarily has no legal obligation to offer exculpatory information to law enforcement officials, there are many situations where the natural response of a person would be to come forward in order to avoid a mistaken prosecution of a relative or friend. In that situation a witnesss silence may be akin to a prior inconsistent statement, and therefore, has probative value. [Citation.] (People v. Ratliff (1987) 189 Cal.App.3d 696, 701; see also People v. Tauber (1996) 49 Cal.App.4th 518, 524-525; People v. Santos (1990) 222 Cal.App.3d 723, 736-737.)

Defendant further argues that the prosecutor committed misconduct by offering his own testimony under the guise of cross-examination when he asked Deborah Baldwin a series of leading questions about what happened when he made a surprise visit to her house seeking more information about the recently revealed alibi. It is not misconduct to use leading questions on cross-examination. Ms. Baldwin was free to deny, affirm, or clarify any of the facts included in the questions and did so. Moreover, the jury was instructed that it should not consider facts implied in the attorneys questions, but not supported by the witnesss answers.

7. Bullying and Insulting Defense Witnesses

Defendant next contends that the prosecutor personally attacked defense witnesses, and the defendant himself, accusing them of being liars and denigrating their character. We need not enumerate and separately analyze each instance he cites. We have carefully reviewed the record and conclude that, although the prosecutor occasionally became argumentative and overzealous, the challenged conduct reduces to nothing more than aggressive cross-examination. (RT 968-969 [prosecutor rhetorically asks Fudge whether he seriously believe[d] his testimony that he was not afraid of retaliation]; RT 880-881 [prosecutor questions Denise Pitts about her ability to recall the days she saw defendant at his mothers house]; RT 1048, 1057 [prosecutor admonishes defendant to [t]ry to be honest].) Nor does the record support the charge that the prosecutor called Aldridge a bitch. The prosecutor was using defendants words in one of the recorded calls. In that call, defendant asserted, I can do whatever I want with you, Bitch. The prosecutor then used defendants words, asking Aldridge if he indeed could do whatever he wants with you, Bitch, including prevail upon her to lie on his behalf. The parallel use of foul language may have been poor judgment, but it does not rise to the level of prejudicial misconduct.[10]

Any possible prejudice was eliminated with respect to the remaining exchanges when the court sustained the defense objections. (People v. Mayfield, supra, 14 Cal.4th at p. 755.) (RT 997-998 [court sustained objection that question was argumentative to prosecutors sarcastic rhetorical question to Thigpin, When did you come up wit