P. v. Lunsford

Filed 3/28/07 P. v. Lunsford CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Defendant Douglas Mark Lunsford (Lunsford) was found guilty after a jury trial of first degree murder and conspiracy to commit murder. (Pen. Code,  187, subd. (a), 182, subd. (a)(1).) The jury also found that Lunsford committed the murder while armed with a firearm (Pen. Code,  12022, subd. (a)(1)), and lying in wait for the victim. (Pen. Code,  190.2, subd. (a)(15).) Lunsford was sentenced to life without possibility of parole on the murder conviction, and 15 years to life on the conspiracy conviction.

Lunsford has two main contentions on appeal: that the prosecutor was guilty of prejudicial misconduct in closing argument, and that prejudicial error resulted from the use of a jury instruction regarding fabrication of evidence by a third party (CALJIC No. 2.05). We will affirm the judgment.

I. FACTS AND PROCEDURAL HISTORY

A. Background Summary

We summarize briefly the facts and background of the case, focusing on the evidence and arguments to the jury that underlie Lunsfords claims on appeal.

Nathan Dannemiller (Dannemiller) was shot to death on August 6, 2002 in Humboldt County. Dannemillers father-in-law, defendant Douglas Lunsford, was charged with his murder.

About 10 months earlier, on October 3, 2001, Dannemiller had been the intended victim of an attempted murder, when shots were fired into his truck in Trinity County. Defendant Lunsford was charged with that attempted murder, but the jury could not reach a verdict, and a mistrial was declared (hereafter, the Trinity County case). Dannemiller testified at the trial in the Trinity County case, and his testimony was later read to the jury in Lunsfords trial for Dannemillers murderthe case now before us.

Dannemiller testified in the Trinity County case that while he was driving to work very early in the morning of October 3, 2001, his car was fired on from Lunsfords truck. At the time, Lunsfords truck had wood racks in the back, made of two by fours or other lumber. Dannemiller testified that Lunsford previously had a camper shell on the back of his truck, but Dannemiller had not seen the camper shell on the truck for about a year.

After the mistrial in the Trinity County case, and seven days before Lunsford was due to appear for a pretrial conference leading to the retrial, Dannemiller was murdered.

Dannemillers murder was the unhappy ending in a tangled web of extended family disputes, divorce proceedings, and a custody battle. Dannemiller had been married to Chasity, who is the daughter of Lunsfords wife, Marcella.[1]Dannemiller and Chasity had two young children: a son with another biological father, and a daughter. Dannemiller and Chasity were involved in divorce proceedings and a child custody battle in which Chasity claimed Dannemiller had abused or molested the children. Marcella and defendant Lunsford also became involved in the custody battle.

Dannemiller obtained a court order that granted him shared custody of the children, including visitation with the children from 6:00 p.m. on Thursday to 6:00 p.m. on Sunday. The court order was mailed on Friday August 2, 2002. Dannemiller was shot and killed four days later, on Tuesday morning, August 6, 2002, as he left his apartment in Eureka (Humboldt County), for work.

Lunsford was charged with Dannemillers murder, and conspiracy to commit murder. The information was later amended to include the shooting on October 3, 2001 that had been charged in the Trinity County attempted murder case as one of the charged overt acts in the conspiracy.[2]

B. Jonathan Lunsfords Testimony

On January 28, 2005, Jonathan Lunsford (Jonathan), one of defendants brothers, was called as a witness by the prosecution at defendants trial for murder. Jonathan testified about events that took place on October 3, 2001, shortly after the Trinity County attempted murder.

Jonathan testified he was a minister and was working as an assistant pastor in Klamath, in addition to his job at a lumber company. On October 3, 2001, the morning of the Trinity County attempted murder, Jonathan was reading the Bible at about 7:30 a.m., when defendant came over to Jonathans home to invite him to their mothers home nearby for breakfast. While the brothers were at their mothers home, the phone rang and Jonathan answered. It was a call for defendant Lunsford from a law enforcement officer. Defendant took the phone call and then asked Jonathan to step outside with him and help him take the wood racks off his truck and put the camper shell on it. (Jonathan had given defendant the camper shell in return for some work defendant had done for him repairing his deck and carrying some wood.) By way of explanation, defendant Lunsford told Jonathan that someone had attacked Dannemiller, and the police had been given a description of defendants truck. Jonathan assumed Lunsford wanted to change its appearance to protect himself.

On cross-examination by the defense, Jonathan was asked many questions about the subjects covered in his direct testimony. Defense counsel asked Jonathan whether he was being truthful in his testimony, and whether Jonathan would do anything to hurt his brother (the defendant), or lie for his brother. Jonathan testified that he would not purposely hurt his brother, and would try not to lie for him. Jonathan testified that he told Lunsford he would not lie about helping him put the camper shell onto the truck, because I believe that all liars can go to hell. Jonathan stated he had testified truthfully on direct examination, [t]o the best of my knowledge and [t]o the to the full extent.

On redirect examination, the prosecution asked again if Jonathan would lie for the defendant, and Jonathan again replied, I [would] try not to. Jonathan testified that he was offended by questions insinuating he was somehow involved in something of this nature and stated Im not even involved in it.

The following day, February 1, 2005,[3]Jonathan was recalled to the witness stand by the prosecution. Jonathan explained that after time to reflect on his prior testimony and his memory of the circumstances that happened, he wanted to supplement his testimony. He testified that there were some facts he had not revealed in his initial testimony; he knew an answer that I did step around in response to a line of inquiry about what happened next.[4] Jonathan testified that defendant, in addition to asking for help in changing the appearance of his truck, gave Jonathan a black rifle case and asked him to put it in Jonathans house. Jonathan complied; he put the rifle case in his house where he keeps his other rifles, but did not open it. All of this happened on the morning of October 3, 2001, after defendant received a second phone call (which Jonathan believed was from defendants daughter) alerting him to the attempted murder of Dannemiller. Defendants reaction to the call was scared, I suppose, or just surprised.

In his second cross-examination of Jonathan, defense counsel questioned Jonathan in great detail about the circumstances that caused Jonathan to contact the district attorney after he had finished testifying the day before. Defense counsel also asked Jonathan about his prior contacts with defense counsels office when Jonathan anticipated he would be called as a witness in his brothers trial for Dannemillers murder. Jonathan testified that he told a defense investigator about defendant having given him the rifle case, which was essentially the same testimony he gave at trial on February 1, 2005. Jonathan testified that when he left the courtroom the day before, he was troubled because the prosecution had asked what did you and [defendant] do next, and Jonathan omitted the testimony about the rifle case. Defense counsel elicited that Jonathan had also called defense counsel the day before, seeking defense counsels guidance as to whether he had answered the questions truthfully. Jonathan testified that defense counsel told him he could not give Jonathan advice because he represented defendant.

Jonathan also testified on cross-examination that when he looked in his closet on the evening of October 3, 2001 or the next day, the black rifle case was gone. Defendant later told Jonathan that he had retrieved the gun and, in Jonathans words, had cut it up and got rid of it.

C. Evidence From The Keefauvers Regarding the Day of the Murder

Ryan Keefauver and James Keefauver testified for the prosecution at Lunsfords trial for Dannemillers murder. On the morning of Dannemillers murder, August 6, 2002, Ryan Keefauver went over to the home of his father, James Keefauver, a deputy sheriff. James lived across the street from Dannemiller in Eureka. Ryan and Dannemiller were acquaintances. As Ryan waited for his father to answer the door, he could see Dannemiller in his upstairs apartment across the street, moving around inside his kitchen where the light was on, and apparently getting ready to go to work. James let Ryan into his home, and James started making coffee. As the coffee was being made, they heard two shots. Ryan went to the door and looked across the street. He saw a medium-sized man running away, heading towards a car that was parked close by near the corner of Del Norte and L Streets. The man jumped into the passenger side of the car, which was already idling, and the car pulled away, going fast. Ryan testified that the man had maybe a slight difficulty in running at a full speed; the man seemed to be running as though maybe having a knee injury of some sort. Ryan admitted at trial that when he was interviewed by the police about an hour after the shooting, he had not said anything about the man having any difficulty running. (Testimony about the fleeing suspects apparent difficulty running was relevant, because defendant sought to show in his defense that he suffered from arthritis, which would make it painful, though not impossible, for him to run.)

Ryan Keefauver and another neighbor of Dannemillers, Grace Auzenne, identified the getaway car as belonging to Charles Lunsford, defendants son.

James Keefauver similarly testified that he saw a man running away. The running was not normal or smooth; the mans stride was short and his feet were hitting the ground pretty hard. James admitted that he had initially reported to the police that he had not seen the fleeing man because he had not remembered getting a glimpse of him; he later remembered he actually had seen the man running away. James also testified that he recently had a conversation with the prosecutor and his investigator, and when James mentioned there was something [] strange about the way the man ran, the prosecutor mentioned that maybe the man had a back injury.

James then realized this made perfect sense and explained the unusual gait of the fleeing man.

II. DISCUSSION

A. Claim of Prosecutorial Misconduct

Defendant makes three claims of prosecutorial misconduct, all arising out of the prosecutors closing argument to the jury. First, he claims the prosecutor improperly impugned the integrity of defense counsel in connection with the trial testimony of Jonathan Lunsford, whose testimony we have summarized above. Second, defendant contends the prosecutor made improper comments questioning the possible bias of a defense ballistics expert. Third, defendant argues the prosecutor improperly vouched for the credibility for certain witnesses, including the Keefauvers and a prosecution ballistics expert. We address each claim in turn.

The applicable federal and state standards regarding prosecutorial misconduct are well established. (People v. Samayoa (1997) 15 Cal.4th 795, 841 (Samayoa).) A prosecutor is given wide latitude during argument; it may be vigorous as long as it amounts to fair comment on the evidence, which may include reasonable inferences and deductions. (People v. Wharton (1991) 53 Cal.3d 522, 567 (Wharton).) A prosecutors . . . 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.] But 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. [Citations.] (People v. Espinoza (1992) 3 Cal.4th 806, 820.) 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.] (Samayoa, supra, at p. 841.)

Defendant Lunsford did not object at the time to any of the alleged prosecutorial misconduct. To preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct. (People v. Earp (1999) 20 Cal.4th 826, 858 (Earp), citing People v. Price (1991) 1 Cal.4th 324, 447 (Price); accord, People v. Welch (1999) 20 Cal.4th 701, 753 (Welch); People v. Ochoa (1998) 19 Cal.4th 353, 431; see also Samayoa, supra, 15 Cal.4th at p. 841.)

Where a defendant failed to object to the alleged misconduct below, the initial question to be decided is whether a timely objection and admonition would have cured the harm. (Welch, supra, 20 Cal.4th at p. 753.) If it would, the contention must be rejected; if it would not, the court must then and only then reach the issue whether on the whole record the harm resulted in a miscarriage of justice within the meaning of the Constitution. (People v. Green (1980) 27 Cal.3d 1, 34, citation omitted; accord, Welch, supra, at p. 753; People v. Frye (1998) 18 Cal.4th 894, 969 (Frye); People v. Jackson (1996) 13 Cal.4th 1164, 1239; People v. Bemore (2000) 22 Cal.4th 809, 845-846 (Bemore).) Here, as will appear from our discussion below, the claimed prosecutorial misconduct resulted from relatively brief and minor comments, and was not so serious as to preclude curative admonition upon a timely objection. (Welch, supra, at p. 753; Bemore, supra, at pp. 845-846.) Therefore, the claims of misconduct were waived for purposes of appeal. (Welch, supra, at p. 753; Bemore, supra, at pp. 845-846.) However, we will also address defendants claims of prosecutorial misconduct on the merits.

1. Comments Regarding Jonathan Lunsford

In closing argument, defense counsel commented on the testimony of Ryan and James Keefauver, described above, each of whom had testified that the man they saw running from the scene of the murder on August 6, 2002 had some difficulty in running. Defense counsel argued that he found it disturbing that the Keefauvers had testified concerning a defect in running when they had not previously told the police this fact. Defense counsel pointedly suggested that James Keefauver was lying in this regard: But I found that . . . to be disturbing in any case, even in a small case, that someone would come in and lie. But certainly in a case of this magnitude, . . . that he would do that is disturbing.

In his rebuttal closing argument the prosecutor stated in response: [Defense counsel] talked about Jim Keefauver and Ryan Keefauver. And how, at the time that Jim Keefauver was questioned by law enforcement, he didnt remember seeing this person who he came in here and testified to you about. And [defense counsel] said its disturbing to him that someone would come in here and lie. [] Now, I know [defense counsel]; I have a lot of respect for him as an attorney, but lets think about that comment. []Its disturbing that someone would come in here and lie.[] [] He knew Jonathan [Lunsford] came in here and lied. The first day when I was questioning Jonathan, he had direct evidence that Jonathan was lying cause Jonathan told him that [defendant Lunsford] had given him the gun. Jonathan told him that hed given him a box of shells. But when Jonathan came in here and he said, Okay. Okay. After you changed this truck, whatd [sic] you do? I dont remember. Okay. Well, lets walk through it. I dont remember. Lets walk through it. I dont remember. [] And then on cross-examination, he was offended that I would ask him questions because it implied that he was somehow involved. [] Well, the next day he came back in and said, Well, yeah, I did help my brother change the car and I did get a rifle from him and then he destroyed it, and I knew all this. . . . and I came in here and I was telling you the truth because you, actually, didnt ask the right questions and I was trying to be evasive. No one had asked the right questions before. And as long as I wasnt asked the right question, I wasnt going to give the truth. [] Okay. Because, ladies and gentlemen, the truth never changed. What changed is what Jonathan was willing to tell us. Okay? [] So lets think about that for a moment because if someone was disturbed that someone came in here and lied to you under penalty of perjury, the level of disturbance should have started a lot earlier.

Defendant contends on appeal that this last comment to the jury impugned the integrity of his defense counsel, and constituted improper argument. (See Bemore, supra, 22 Cal.4th at pp. 845-846; Welch, supra, 20 Cal.4th at p. 753.) As noted above, defendants failure to object to this comment at the time deprived the trial court of the opportunity to assess the comment in context, rule upon any objection, and, if necessary, admonish the jury to disregard the comment. Under these circumstances, the claimed error was waived. (Welch, supra, at p. 753; Bemore, supra, at pp. 845-846.)

Further, in analyzing the merits of defendants claims as to this comment by the prosecutor, we begin with the principle that a prosecutor has broad discretion to state his views as to what the evidence shows, and what inferences may be drawn therefrom. A prosecutor may vigorously argue the case. (Welch, supra, 20 Cal.4th at pp. 752-753.) The cases where misconduct and prejudice have both been found arose from extreme instances of prosecutorial misconduct. (People v. Gionis (1995) 9 Cal.4th 1196, 1220 (Gionis); People v. Hill (1998) 17 Cal.4th 800, 823-835.)

In Bemore, supra, 22 Cal.4th at pages 845-846, the California Supreme Court addressed a claim of prosecutorial misconduct arising from comments in closing argument that the appellant contended had impugned the integrity of his defense counsel, by accusing defense counsel of concocting various defenses as evidence unfolded at trial, and implied counsel knew such shifting defenses were untrue. (Id. at p. 845.) The court first rejected these claims as waived, because there had not been timely objections to the prosecutors arguments in this regard. (Id. at pp. 845-846.) The court also rejected these claims on their merits: In any event, no misconduct occurred. It is generally improper for the prosecutor to accuse defense counsel of fabricating a defense [citations], or to imply that counsel is free to deceive the jury [Citations]. Such attacks on counsels credibility risk focusing the jurys attention on irrelevant matters and diverting the prosecution from its proper role of commenting on the evidence and drawing reasonable inferences therefrom. [Citations.] [] Nevertheless, the prosecutor has wide latitude in describing the deficiencies in opposing counsels tactics and factual account. (Id. at p. 846; see also Welch, supra, 20 Cal.4th at p. 753.)

Similarly, the statements challenged by defendant in this case did not rise to the level of prejudicial misconduct, and were related to the evidence of record. As set forth above in the summary of facts, when Jonathan first testified, defense counsel repeatedly and pointedly asked Jonathan whether he was being truthful in his testimony, including asking whether and why it was important to Jonathan to tell the truth, which elicited the answer I believe that all liars can go to hell. Defense counsel went on to ask whether Jonathan had been truthful in speaking to the police after the attempted murder of Dannemiller, whether Jonathan had testified truthfully at the Trinity County trial, and whether he had been testifying truthfully in the murder trial. He even elicited that there were some things for which Jonathan did not recall details, that he would not say things he was not sure about, and that he would not guess. These questions by defense counsel stand out in the trial record as explicitly bolstering Jonathans credibility as a witness.

When Jonathan was recalled to the stand by the prosecution and testified the next day, defense counsel elicited a remarkable series of admissions from Jonathan that made clear that Jonathan had not been forthright the day before: Jonathan had provided information about the rifle case and destruction of the rifle to a defense investigator in advance of trial, and had hoped to avoid testifying as to that evidence unless directly asked. Defense counsel also elicited that Jonathan had tried to discuss his misleading testimony with defense counsel after he finished testifying the day before. Defense counsel chose to elicit testimony that put his role and his investigators role before the jury. The prosecutor had a right to comment on this evidence, particularly where, only the day before, defense counsel had bolstered Jonathans credibility through a series of leading questions.

Further, there was in fact evidence that Ryan and James Keefauver had seen the fleeing suspect after the murder, and noticed his unusual gait while running. The issue of whether James Keefauver had fabricated evidence or been less than truthful on the stand was an issue raised by the defense in closing argument, and was properly the subject of prosecution argument in rebuttal. (See Bemore, supra, 22 Cal.4th at pp. 845-846; Welch, supra, 20 Cal.4th at p. 753; see also Gionis, supra, 9 Cal.4th at pp. 1216-1221 [Prosecutors comments that defense counsel was arguing out of both sides of his mouth, and many other similar comments, were not misconduct.].)]

Defendant relies on People v. Perry (1972) 7 Cal.3d 756, 789-790 (Perry), where the prosecutor accused defense counsel of trickery and argued that defense counsel were not ethically obligated to present the facts and so were free to obscure the truth and confuse the jury. (Ibid.) Although our high court found the comments were objectionable, because a conviction should rest on the evidence, rather than the actions of defense counsel, (id. at p. 790) these comments were not prejudicial, and constituted a mere polemic retaliation for the prior attacks by defense counsel on the prosecution. (Id. at p. 791.) In the present case, the comment by the prosecutor was relatively more mild and brief, and even less likely to constitute prejudicial misconduct than the comments in Perry. (See Bemore, supra, 22 Cal.4th at pp. 845-846; Gionis, supra, 9 Cal.4th at p. 1216.) Here, the jury was also instructed that the arguments of counsel were not evidence. We presume the jury followed the courts instructions. (See People v. Boyette (2002) 29 Cal.4th 381, 436 (Boyette).)

Defendants citation to People v. Pitts (1990) 223 Cal.App.3d 606, 705 (Pitts) is also unavailing. Pitts was a child molestation case, in which the defense called a child victim to the stand to deny she had been molested by her father. The prosecutor attacked defense counsel for doing so, and accused defense counsel of contributing to the ruination of the childs life. (Ibid.) This accusation went beyond permissible argument and constituted a subtle accusation that defense counsel knowingly presented perjured testimony (ibid.) which, when considered in connection with numerous other instances of misconduct, required reversal of the judgment of conviction. (Ibid.) In our case by contrast, the prosecutor made a brief response to defense counsels claim that it was disturbing that the Jim Keefauver had testified falsely. Under these particular circumstances, this comment was not misconduct, and not prejudicial. (See Bemore, supra, 22 Cal.4th at pp. 845-846; Gionis, supra, 9 Cal.4th at p. 1216; cf. Perry, supra, 7 Cal.3d at p. 791.)

Defendant also contends in this connection that the prosecutor misstated the law by arguing that defense counsels conduct should be considered circumstantial evidence of appellants guilt. We do not find such a legal argument by the prosecutor in the record; the prosecutor did not argue the law in this regard. (See Boyette, supra, 29 Cal.4th at p. 435.) The prosecutor did not argue that defense counsel had a legal responsibility to correct any testimony, or that his failure to do so should be considered as circumstantial evidence of guilt. Rather, the prosecutor responded to defense arguments by highlighting their asserted implausibility, which was not misconduct. (See ibid.; Bemore, supra, 22 Cal.4th at pp. 845-846; Gionis, supra, 9 Cal.4th at p. 1216.)[5] Further, the jury was instructed that it should apply the law as stated in instructions from the court, not from the arguments of counsel. Once again, we presume the jury followed the courts instructions. (Boyette, supra, at pp. 435-436.)

Because we have rejected defendants claim of misconduct as waived, and, in any event, on the merits, we do not discuss his related claim that this asserted prosecutorial misconduct deprived him of his federal or state constitutional rights. (See Gionis, supra, 9 Cal.4th at pp. 1218-1219.)

2. Defense Ballistics Expert

Defendant contends the prosecutor committed misconduct in commenting to the jury about the defense ballistics expert, Peter Barnett. Barnett testified that in his opinion a shell casing found near the site of the Trinity County shooting could not be matched to the rifle that had been seized from defendants brother Carson Lunsford. On cross-examination, Barnett testified that he primarily testified for defendants, and had only testified for the prosecution in a [v]ery small percentage, less than five percent, of the cases in which he presented evidence at trial. Barnett conceded that his income level was tied to the people who hired him.

In this regard, defendant objects to the following comments by the prosecutor regarding Barnett in closing argument: How do you get paid? . . . And if you come in and testify, you actually get more money because if you look at this stuff and you agree with [the prosecution as to] it, whos going to call you. Right? And if you want to increase your income, youre gonna have to look at this evidence and say no, I do find a difference and thats why its important for you to pay me money . . . . The prosecutor also stated later in his closing argument that Barnett had a motive not to provide trustworthy evidence: Ive already talked about Peter Barnett. Hes got a motive. Hes got a fine motive.

Defendant contends these comments were misconduct, because they improperly disparaged Barnett and implied that Barnett was biased as a result of being retained primarily by defendants.

First, an objection and admonition at the time of trial could have cured any asserted error in this regard, so the point was waived. (People v. Ervin (2000) 22 Cal.4th 48, 92 (Ervin); see also Bemore, supra, 22 Cal.4th at pp. 845-846; Gionis, supra, 9 Cal.4th at p. 1216.)

Second, it is not improper to comment on the possible bias of a witness, if the comment is based on facts placed in evidence, or reasonable inferences from information that is factually accurate. (People v. Farnam (2002) 28 Cal.4th 107, 171 (Farnam); Ervin, supra, 22 Cal.4th at p. 92; People v. Sandoval (1992) 4 Cal.4th 155, 179-180; Price, supra, 1 Cal.4th at pp. 457-459.) There was evidence at trial that Barnett primarily relied on being hired by defendants in criminal cases to make his living, suggesting a possible bias that could be argued to the jury. Therefore, the prosecutors comments in this regard were not misconduct. (Farnam, supra, at p. 171.)

Defendant apparently concedes that it is proper to inquire about the payments to expert witnesses. Nevertheless, defendant characterizes argument based on this evidence as improper, because the prosecutor essentially accuse[d] the expert of making up false testimony and false disagreement with the prosecutions experts solely for the sake of making money and commented on payment as a motive to commit perjury by inventing disagreements to make more money. However, the record makes clear that the arguments made by the prosecutor were not as florid as characterized in the briefs on appeal; moreover, they did not constitute misconduct because they were based on the evidence of payments to the witness, and possible reasonable inferences from that evidence. (Farnam, supra, 28 Cal.4th at p. 171.) Nor were they so disparaging of the defense expert witness as to constitute misconduct. (Ervin, supra, 22 Cal.4th at p. 92.)

3. Vouching For Witnesses

Defendant contends the prosecutor impermissibly vouched for the credibility of the Peoples ballistics expert, Ronald Nies and for James Keefauver, who testified he saw a fleeing man run with difficulty from the scene of Dannemillers murder. We address each in turn.

The ballistics evidence provided by Nies may be summarized as follows: A shell from a rifle was found near Dannemillers body. Ballistics evidence from Nies linked this shell to a rifle stolen from Donald Manion, who had been a boyfriend of defendants wife, Marcella. (Manions rifle was later found in a swampy area about a mile from a house occupied by Marcella and Chasity. Near the gun was a box of ammunition with three rounds missing.)

Defendant objects for the first time on appeal to the following statements by the prosecutor about Niess testimony: Okay. Lets look at Ron Nies. [] Could Ron Nies lie to you? Everyone that came in here could lie to you. Does he have a motive to lie to you? Do you think he wants Doug Lunsford to go to prison? Maybe. He also probably doesnt know that much about him, doesnt really care that much about the case. Its one of those thousands. Okay. Hes just the guy lookin[g] in that [micro]scope to figure out whether he can match one thing to another.

Although a prosecutor may not personally vouch for the credibility of a witness, a prosecutor may properly argue a witness is telling the truth based on the circumstances of the case. (Boyette, supra, 29 Cal.4th at p. 433; see also People v. Williams (1997) 16 Cal.4th 153, 257 (Williams); People v. Mincey (1992) 2 Cal.4th 408, 447-448.) Thus, the rule against vouching does not prevent the prosecutor from arguing the credibility of testimony, based upon matters placed in evidence and reasonable inferences from the evidence. (Boyette, supra, at p. 433; Frye, supra, 18 Cal.4th at p. 971.)

Here, an objection and admonition at the time of trial could have cured any asserted error in this regard; the point was waived. (See Ervin, supra, 22 Cal.4th at p. 92; see also Bemore, supra, 22 Cal.4th at pp. 845-846; Gionis, supra, 9 Cal.4th at p. 1216.) In any event, these comments were based on the evidence regarding Nies and his asserted lack of personal interest in the outcome or bias as a public employee whose position was to analyze ballistics evidence. Because the comments were based on the evidence and reasonable inferences that could be drawn therefrom, they were not improper vouching. (Boyette, supra, 29 Cal.4th at p. 433; Price, supra, 1 Cal.4th at p. 457; Williams, supra, 16 Cal.4th at p. 257.)

Defendant also contends the prosecutor improperly vouched for James Keefauver.

Here the prosecutor argued as follows: Jim Keefauver, [ Ryan Keefauvers] dad. Very concerned about his son. Never identified the officer -- the suspect before. Never even mentioned that he saw him. Came in here and said, You know what? After I thought about it, I did see him. Make what you will of that. I think hes credible. I dont think he has an investment, but Im not a juror.

Once again, an objection and admonition at the time of trial could have cured any asserted error in this regard; the point was waived. (See Ervin, supra, 22 Cal.4th at p. 92; see also Bemore, supra, 22 Cal.4th at pp. 845-846; Gionis, supra, 9 Cal.4th at p. 1216.) Further, these comments were based upon the evidence or reasonable inferences drawn from the evidence, especially relating to James Keefauvers testimony that he had not at first thought that he had seen someone fleeing from the scene, but later realized he had seen him; and the fact that Keefauver had no obvious personal investment in the case or other motive to lie out of animus or hostility to defendant. In any event, the prosecutor also made clear that it was the jurys decision to determine credibility, not his. (See Earp, supra, 20 Cal.4th at p. 864; People v. Sully (1991) 53 Cal.3d 1195, 1235-1236 (Sully).) Thus, these arguments were not improper. (See Boyette, supra, 29 Cal.4th at p. 433.)

In a letter dated February 20, 2007, appellant calls our attention to People v. Woods (2006) 146 Cal.App.4th 106 (Woods), as to which a petition for Supreme Court review was filed on February 5, 2007, and remains pending. Woods is readily distinguishable on its facts. In Woods, the prosecutor was held to have committed prejudicial misconduct, despite timely defense objections which were overruled by the trial court, in (1) improperly vouching for police witnesses through numerous representations to the jury regarding facts outside the record, which were in fact false; (2) arguing that the defense had a legal obligation to present certain evidence, which the defense did not have; and (3) arguing that the defense had suborned perjury when it conjured up defense witnesses on the eve of trial. (Id. at pp. 113-117.) None of these circumstances are present here.[6]

Finally, defendant also contends that the prosecutor committed misconduct by stating his opinion that he did not believe the defense argument that defendants arthritis would have prevented him from running, as the fleeing man had done after Dannemillers murder. By way of background, defendant had called as a witness his treating physician, Dr. Julie Ohnemus, who testified that he suffered from back pain due to arthritis, and had been found to be totally disabled in the year 2000. She testified that defendants arthritis caused him to have a stiff gait which would not actually prevent him from running, but would cause him to be in pain if he did so.

Defendant contends the prosecutor committed misconduct by arguing as follows: This is a guy . . . whos too incapacitated with his back pain to run after shooting someone, which I dont buy for a minute, folks. Whether you do, thats certainly your right; and were going to talk about that more in detail. The prosecutor later returned to this subject, commenting: This is a guy thats too crippled to, after shooting someone, run, but not too crippled to work on a deck, not too crippled to haul wood, not too crippled to put a camper shell on the back of a truck.[7]

Once again, an objection and admonition at the time of trial could have cured any asserted error in this regard, so the point was waived. (See Ervin, supra, 22 Cal.4th at p. 92.) In addition, these comments were based on the evidence, which showed defendant had helped his brother Jonathan put a camper shell on the back of defendants truck in order to change its appearance, and had also performed various other strenuous physical activities such as hauling wood, and working on his brothers deck. These comments on the evidence did not unduly inject the prosecutors personal beliefs into the jurys deliberations. Although the arguments included a brief statement regarding a lack of personal belief, to the effect that I dont buy for a minute the defense theory, the prosecutors comments were specifically based on the evidence, rather than on an undisclosed personal source of knowledge outside the record, which would constitute improper vouching. (See Earp, supra, 20 Cal.4th at p. 864; Sully, supra, 53 Cal.3d at pp. 1235-1236; Boyette, supra, 29 Cal.4th at p. 433; Frye, supra, 18 Cal.4th at p. 971; People v.Medina (1995) 11 Cal.4th 694, 757-758.)

B. CALJIC No. 2.05

Defendant next argues that the trial court erred in giving a jury instruction regarding the fabrication of evidence by a third party, CALJIC No. 2.05, which was given to the jury as follows: If you find that an effort to procure false or fabricated evidence was made by another person for the defendants benefit, you may not consider that effort as tending to show the defendants consciousness of guilt unless you also find that the defendant authorized that effort. If you find defendant authorized the effort, that conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide.

Defendant argues this instruction was improperly given because there was no evidence he had authorized the presentation of any false or fabricated evidence. In reviewing this claim on appeal, we must determine whether there was some evidence in the record which, if believed by the jury, will sufficiently support the suggested inference. (People v. Hart (1999) 20 Cal.4th 546, 620.)

To place this contention in context, we note that the trial court first stated, during the settlement of the jury instructions, that it would not give CALJIC No. 2.05. The prosecution then argued that the instruction applied to the testimony of James Cook. Cook had testified at trial that a man named Shaun Visser admitted to Cook that he had killed a guy that molested a kid or somethin[g]. This admission was allegedly made after Dannemillers murder. Cook testified that he later discussed Vissers admission with defendants brothers while they were out hunting sometime after Dannemillers murder. Visser committed suicide after Dannemillers murder, and the defense suggested Visser had been the killer. In arguing for this instruction, the prosecutor argued that if the jury believed Cooks testimony was not true, then what you have is an effort by someone, not the defendant, to fabricate evidence for the defendant. And all this is instructing the jury is if they, in fact, find that, it means nothing, unless they think that it was somehow authorized by the defendant.

The trial court observed that Cook testified that he did have some contact with Douglas Lunsfords brothers, Kenny and Carson, soon after the death of Shaun Visser. And Im not making any -- I certainly wont make any comment to the jury with respect to that, but I do find now theres a factual basis for the Court to give 2.05. So I will, as requested by [the prosecutor], I will give 2.05. Defense counsel objected to giving the instruction.

Defendant did not object to the trial court giving CALJIC No. 2.06, regarding efforts to suppress evidence by the defendant.[8]

Defendant contends giving CALJIC No. 2.05 was error, because Cooks testimony provided no evidence that defendant had authorized an attempt to present false testimony. Defendant contends Cook did testify that he encountered defendants brothers while they were out hunting, and told them the story Visser had told him, but there was no evidence that defendant was involved in authorizing an effort to present false evidence in this regard. Defendant points out that his family relationship with his brothers is not sufficient to show the required authorization. (People v. Perez (1959) 169 Cal.App.2d 473, 478.)

The People argue this instruction was properly given because it applied to other evidence, i.e., that defendant asked his brother Jonathan to help him alter the appearance of his truck by placing a camper shell on it the morning of Dannemillers attempted murder. In closing argument, the prosecutor related Jonathans testimony to this jury instruction, without any objection at the time of trial. As to Jonathans testimony, there was a proper basis for giving the instruction, because Jonathans testimony provided some evidence that defendant had sought to authorize Jonathans actions in suppressing or altering evidence. (See Hart, supra, 20 Cal.4th at pp. 620-621[holding that CALJIC No. 2.06, regarding destruction of evidence, could be given where some evidence at trial showed a basis for it].) On appeal, the People do not specifically dispute the contention that the instruction would have been erroneous if given only with reference to Cooks testimony, observing only that defendants contention in this respect is immaterial in light of the fact that the instruction would have been proper with reference to Jonathans testimony. (Ibid.)

We agree that Jonathans testimony provided a proper basis for giving this instruction, because it provided some evidence that defendant had authorized the alteration of relevant evidence. Moreover, because the trial court did not limit the application of CALJIC No. 2.05 to any particular evidence, we need not address defendants contention that Cooks testimony was an insufficient basis for giving the instruction.

Defendant also contends that giving this jury instruction lightened the prosecutions burden of proof and infringed on defendants right to present his defense case. However, the California Supreme Court has rejected the claim that a consciousness of guilt instruction similar to this one unfairly reduces the prosecutions burden of proof, or violates a defendants due process rights. (Boyette, supra, 29 Cal.4th at pp. 438-439; accord, People v. Jackson (1996) 13 Cal.4th 1164, 1224.) As the court found in Boyette, in concluding that analogous consciousness-of-guilt instructionsdid not improperly endorse the prosecutions theory or lessen its burden of proof,[9] the instructions made clear to the jury that certain types of deceptive or evasive behavior on a defendants part could indicate consciousness of guilt, while also clarifying that such activity was not of itself sufficient to prove a defendants guilt, and allowing the jury to determine the weight and significance assigned to such behavior. The cautionary nature of the instructions benefits the defense, admonishing the jury to circumspection regarding evidence that might otherwise be considered decisively inculpatory. (Boyette, supra, at pp. 438-439.) We also do not find any improper infringement of the defense right to present evidence as a result of the instruction given here, which sought to provide guidance to the jury regarding evaluation of the evidence presented.

Further, any error from the giving of this instruction was harmless. The California Supreme Court considered the assertedly erroneous use of CALJIC No. 2.05 in People v. Crew (2003) 31 Cal.4th 822, 848-849 (Crew), a case not cited by the parties. The defendant in Crew argued, as defendant does here, that there was insufficient evidence for giving CALJIC No. 2.05. The Crew court however found that any error was harmless under any standard. At most, the instruction was superfluous. (Id. at p. 849.) The same is true here. The jury was instructed to ignore any instruction it found not to be applicable to the facts as it found them. Thus, if the jury found no evidence that defendant had authorized an effort to procure falsified or fabricated evidence, the jury would simply disregard this instruction, which therefore was harmless. (Crew, supra, at p. 849; see also People v. Pride (1992) 3 Cal.4th 195, 248-249.) Moreover, the instruction itself had cautionary language, as noted above, so that even if the jury found that an effort to procure false or fabricated evidence was made by a third party for defendants benefit, the jury could not consider that as tending to show the defendants consciousness of guilt unless that jury also found that the defendant authorized that effort. Moreover, such conduct, even if authorized, is not sufficient by itself to prove guilt and its significance, if any is left for the jury to decide. Thus, defendants claim of prejudice from giving CALJIC No. 2.05 is not persuasive, and he is not entitled to relief on this ground. (Crew, supra, at p. 849.)

III. DISPOSITION

The judgment of conviction is affirmed.

MILLER, J.*

We concur.

JONES, P. J.

SIMONS, J.

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[1] We refer to some individuals by their first names, since many have the same surnames.

[2] Lunsfords wife Marcella and his son Charles were also charged with crimes relating to Dannemillers shooting. Lunsford was tried separately and his case is the only one before us on this appeal.

[3]Jonathan first testified on January 28 and January 31, 2005.

[4]On redirect examination, Jonathan testified with regard to the omission in his earlier testimony about what happened on the morning of October 3, 2001 that I knew I was skirting around the truth. He testified that the prosecutor in the Trinity County case had not asked the right questions, but the prosecutor in the murder trial was more thorough.

[5] Defendant refers briefly to an argument by the prosecutor in closing which defendant contends improperly suggested that Jonathans withholding of evidence was authorized by defendant, and by extension, defense counsel personally. And was it authorized? We know it was authorized because [Jonathan had] already told defense counsel up in Trinity County about the truth and that he had the box and that he was given this rifle. In Jonathans testimony on his second cross-examination, he stated that he had told the defense attorney in Weaverville [Trinity County], their private investigator about receiving the rifle case from defendant and defendants admission about later cutting up the rifle. Defense counsel in the Trinity County case was different from the defense counsel in the case on appeal. On the record before us, we do not find that the prosecutor made legal arguments misstating the legal or ethical duties of defense counsel in either trial.

[6] More generally, defendant also relies in part for his vouching arguments on U.S. v. Weatherspoon (9th Cir. 2005) 410 F.3d 1142, 1146-1148 (Weatherspoon).  In Weatherspoon, the majority opinion found prosecutorial misconduct because, among other things, the prosecutor had argued that police witnesses would not risk their jobs by lying, and the prosecutor stated that he personally believed their testimony.  (Ibid.)  In our case, however, the prosecutor did not argue that the prosecution witnesses could not lie, and in fact stated the opposite:  Everyone that came in here could lie to you.  The prosecutor also indicated reasons to believe certain witnesses, based upon their lack of bias or interest in the outcome of the trial, which had been placed in evidence or were reasonable inferences from the evidence.  This was permissible in argument. (See Boyette, supra, 29 Cal.4th at p. 433.)

[7] As previously noted, Jonathan testified he had given defendant the camper shell in return for some work defendant had done for Jonathan, such as repairing his deck, and hauling wood, despite defendants back problem.

[8] CALJIC No. 2.06, as given to the jury, stated: If you find that a defendant attempted to suppress evidence against himself in any manner, such as by destroying evidence or by concealing evidence, this attempt may be considered by you as a circumstance tending to show a consciousness of guilt. However, this conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide.

[9] Among other instructions, the court in Boyette referred to CALJIC No. 2.06 which, as given to the jury, provided: If you find that a defendant attempted to suppress evidence against himself in any manner, such as by the intimidation of a witness, such attempt may be considered by you as a circumstance tending to show a consciousness of guilt. However, such conduct is not sufficient by itself to prove guilt and its weight and significance, if any, are matters for your consideration. (Boyette, supra, 29 Cal.4th at p. 438, fn. 11.) This was a slight variation of CALJIC No. 2.06 as given in this case. (See fn. 7, ante.)

* Judge of the Superior Court of San Francisco County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.