P. v. Webber

Filed 3/14/07 P. v. Webber CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Patrick H. Donahue, Judge. Affirmed.

Leslie Conrad, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Ronald A. Jakob and Bradley A. Weinreb, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury convicted Krysten Webber of aiding and abetting the first degree murder of Steven Hartt (see Pen. Code,  187, subd. (a); all further unlabeled statutory references are to this code, unless otherwise noted), and found true the special circumstance that she committed the murder in the course of a robbery ( 190.2, subd. (a)(17)(A)). The jury also convicted Webber of first degree robbery ( 211, 212.5, subd. (a)), and found she personally used a firearm in the murder and robbery ( 12022.53, subd. (b)). For the murder, the trial court imposed a sentence of life in prison without the possibility of parole, plus additional terms for the arming enhancement, robbery conviction, and Webbers guilty plea to possession of a firearm by a felon.

Webber contends a statement she gave to police following the murder should have been suppressed because she did not knowingly waive her rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) and because her lack of sleep and use of methamphetamine rendered any waiver involuntary. She also argues the trial court erred by not requiring the prosecution to disclose medical reports concerning a brain injury the victim previously suffered, which bolstered her claim he had a propensity to lash out angrily, supporting her self-defense claim. She raises four claims of prosecutorial misconduct and, lastly, asserts the trial court misinstructed the jury on the robbery murder special circumstance. Finding no basis to overturn the judgment, we affirm.

I

FACTUAL AND PROCEDURAL BACKGROUND

Hartt suffered a fall in a construction-related accident in 1999 that fractured his spine and left him paralyzed from the waist down. His injuries included head trauma that eventually required a partial lobectomy to remove portions of the right frontal and parietal areas of the brain to reduce swelling and save his life. After the accident, Hartt received a monetary settlement and used the funds to buy a home in Fullerton modified for his needs, where he lived independently.

In June 2003, Hartt allowed Eddie (Boogie) Cain to move in and soon afterward Cain brought Webber, his girlfriend, into the home. Scott Treichel also took up residence in Hartts place, as did his girlfriend, Daniella Storley, and her six-year-old daughter. None of these people paid rent; Hartt gave them money and drugs, and paid for their food and cigarettes. In return, Webber and Cain helped care for Hartt. The house deteriorated to the point where there were dog feces in every other room, dirty dishes piled up, and the swimming pool turned green.

Hartt claimed he had $10,000 in his bedroom closet. One of his friends, Rodney (Hot Rod) Davis, found Webber rifling through the closet at 2:00 a.m. one morning while Hartt was in bed, awake. Hartt confronted Webber, asking, What are you doing? Hartt did nothing more at the time, but told Storley and Treichel he planned to kick Webber and Cain out of the house because they were stealing from him. Hartt also confided to his sister that he believed Webber and Cain were stealing from him.

On September 6, 2003, in addition to suffering from bedsores and a gangrenous foot, Hartt had vomited and defecated on himself. Webber and Cain attempted to clean him, but Hartt refused their help. Hartt exploded with anger when they telephoned his sister for assistance, and he evicted the duo. Cain responded, If you werent in that wheelchair, I would kick your ass, and Hartt rejoined, If I wasnt in this wheelchair, I would kick your ass. Cain and Hartt yelled at each other until Hartt pulled out a gun and Cain and Webber left the house.

The two drove to Daviss home; Davis was Cains cousin. Cain was angry at being evicted. According to Davis, Cain threatened, I am going to kill him, and Webber encouraged him, [K]ill him, Boogie; kill him, Boogie; kill him, Boogie. Within the last month, Davis had given Hartt a 12-gauge shotgun and ammunition because Hartt expressed concerns for his safety. Hartt kept the shotgun, two revolvers, and some knives on a shelf within arms reach of the hospital bed in his bedroom. There was also a safe on the shelf, a refrigerator, and a box of decorative knives on the other side of the bed.

Late in the evening of September 7th, Webber and Cain returned to Hartts house. Treichel heard the pairs arrival and informed Hartt, who did not appear concerned. Treichel departed for the garage, where he smoked marijuana and methamphetamine with Cain. Cain expressed anger about his eviction and told Treichel, I am going to take that fuckers guns away.

Treichel went to his bedroom to sleep, and later heard scuffling and vibrations that may have come from Hartts room. Sometime between 4:00 a.m. and 6:00 a.m., Cain burst into Treichel and Storleys room and ordered them to leave. He had Hartts shotgun in his hands. He returned a few minutes later with Webber by his side and again told them to leave. Storley awakened, disoriented; she noticed the gun on Cains shoulder and heard someone say Cain and Webber were getting married.

Treichel hurried to the living room where Storleys daughter was sleeping on a futon. He noted Webber was running around and seemed kind of hysterical. Treichel rushed Storleys daughter outside to his truck and when he returned for her mother, Webber and Cain were standing near the door to Hartts bedroom. Storley spotted a skateboard in Cains hand, but he no longer had the shotgun. Treichel and Storley headed outside, where Storley heard Webber repeat from the front porch, Rodney was here.

Treichel drove to a nearby shopping center and then around the block in an adjacent neighborhood for a half-hour or forty-five minutes, but returned to Hartts house. As he approached the house on foot, he encountered Webber and Cain in the open garage. Cain admitted, I took care of him, but added, If the cops ask, tell them Hot Rod did it. Treichel returned to the truck and told Storley he had seen blood on Webber and Cain and a chunk of something on Cains shirt.

Treichel sped off to the shopping center, where he tried to telephone Hartt to no avail, but reached Davis to let him know Cain and Webber planned on blaming him for the crime. Davis testified Webber phoned him that morning, hysterical, claiming that Cain was freaking out and she needed Daviss help at the house. Davis called the police.

Meanwhile, Treichel drove back to Hartts residence and, as he approached, he spotted Cain and Webber in the street. Cain, perched on a skateboard, waved Treichel down and asked for his truck, which Treichel immediately turned over to him. Storley saw blood on Cains hands. After Cain and Webber departed, Treichel proceeded to Hartts house, where he found the telephone ripped out of the wall. Treichel saw Hartts body in his bedroom and just saw blood and it was a pretty gory sight, so I just knew I knew he wasnt alive.

When the police arrived, they discovered Hartts 12-gauge shotgun under a truck behind the house. There was blood on the barrel. Hartts body was in his bed, with a gun-shaped lighter resting in his hand and a pillow over his face. In addition to the blood in the bedroom, bloodstains covered the bathroom countertop, sink, floor, and cabinet door, and there was a bloodstained shirt on the floor in Cains room.

Investigators located Treichels truck a short distance from Hartts home, where it had run out of gas. They staked out the vehicle and arrested Webber and Cain when they returned hours later. Cain had Hartts wallet. Officers found two bloody knives in a bloody revolver case recovered from the truck. A black canvas bag contained a bloody and broken BB gun, plus two older model revolvers, each with a twisted barrel and one with a broken grip. Of two skateboards, one had blood on its top and wheels. Webbers purse contained seven 12-gauge shotgun shells and a small knife. Subsequent testing revealed Hartts DNA on the skateboard, the two revolvers, the two knives, the BB gun, and the gun bag; Cains DNA was on one of the knives and the BB gun.

Detective Brent Rebert of the Fullerton Police Department interviewed Webber at the stationhouse. She characterized Hartts actions in evicting her and Cain this way: And [he] started in again with being irate and . . . you know, acting like we were trying to rob him . . . like we were trying to take him for his money or his cars or, you know, something. Although she initially denied involvement in Hartts killing and tried to minimize her actions, Webber admitted she and Cain talked about going into Hartts room to remove his guns. She explained their motive: The baby comes over. You know, neighbors come over. The nurses come every day. And hes gonna go crazy and shoot somebody. You know. He already tried to shoot [Cain]. Webber claimed that [i]f worse came to worse, [Cain] was just gonna knock him out.

Webber told Rebert she heard Cain and Hartt arguing. She also said that when she entered the room, the two were wrestling over a gun. Cain was holding down one of Hartts arms and trying to pull a gun from him by the barrel. Webber ran from the room, and when she returned, she saw Cain land several punches on Hartt. The gun fell from Hartts hands; Webber grabbed it and struck Hartt with it [a] couple, three, four times in the head as Hartt reached for other guns and knives on the shelf. Hartt was pretty strong and continued to fight pretty fierce. Webber left the room and returned several times. She did not see Cain stab Hartt, but there was blood everywhere. Hartt was unconscious and gurgling but still breathing when Webber and Cain left the room.

Cain also spoke to police. The prosecution charged both Webber and Cain with first degree murder, but chose to proceed with separate trials.

At Webbers trial, the medical evidence showed Hartt suffered five blunt force wounds to his head and face, knife wounds around the eyes and ears, and three stab wounds to the heart, which likely were inflicted after the other knife wounds. Hartt also had defensive wounds on his wrists and hands, and a contusion on the right wrist, which a defense expert opined was consistent with the assailant striking the wrist against the bed rail to release a weapon. Hartt also suffered a skull fracture, a potentially fatal injury, but the cause of death was exsanguination from a stab wound to the heart. The defense expert acknowledged that lacerations on the rear right side of Hartts head were consistent with having been caused by skateboard wheels, as were the abrasions on Hartts face and shoulders.

A neuropsychologist, Dr. David Lechuga, testified for the defense based on his review of medical records from Hartts construction accident in 1999. Lechuga explained that patients who undergo a lobectomy tend to become impulsive, make poor decisions, have poor insight, and their ability to understand the consequences of their actions typically is compromised. Impairment of the frontal lobe allows for more primitive expression of emotion such as rage and uncontrolled pursuit of drugs and alcohol. Hartts gangrenous infection also could compromise his ability to process information and regulate his behavior. Lechuga concluded Hartts injuries and methamphetamine use would have magnified feelings of anger, potentially translating to violence.

II

DISCUSSION

A. Miranda

Webber asserts the trial court erred in concluding she impliedly waived her rights to an attorney and to remain silent by speaking to a detective after receiving Miranda warnings. As the United States Supreme Court observed in North Carolina v. Butler (1979) 441 U.S. 369: An express written or oral statement . . . is not inevitably either necessary or sufficient to establish waiver. The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case. (Id. at p. 373; see People v. Whitson (1998) 17 Cal.4th 229, 246 (Whitson) [collecting federal and California cases upholding implied waiver of Miranda rights].) Webber sought to suppress her statement on grounds she did not acknowledge she understood her rights and therefore did not knowingly waive them. She also argued her lack of sleep and use of methamphetamine prevented her from understanding her rights, and hence she could not waive them knowingly. Webber also contends she lacked the capacity to waive her rights voluntarily.

In reviewing constitutional claims of this nature, it is well established that we accept the trial courts resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence. We independently determine from the undisputed facts and the facts properly found by the trial court whether the challenged statement was illegally obtained. [Citation.] (People v. Storm (2002) 28 Cal.4th 1007, 1022-1023 (Storm).) Webber insists insufficient evidence supports the trial courts finding of a knowing and voluntary waiver. We disagree.

Ample evidence supports the conclusion Webber knowingly waived her rights. Logically, one must know of a right to waive it. (Miranda, supra, 384 U.S. at p. 468.) Likewise, the warning that anything said can and will be used against the individual is needed in order to make [the suspect] aware not only of the [Fifth Amendment] privilege, but also of the consequences of forgoing it. It is only through an awareness of these consequences that there can be any assurance of real understanding and intelligent exercise of the privilege. (Whitson, supra, 17 Cal.4th at p. 245, quoting Miranda, at p. 469.)

Here, when Rebert advised Webber of her right to remain silent and asked, Do you understand that, she answered, Yes. Webber points out that the transcript of the interview shows her responses as inaudible when Rebert further queried whether she understood her right to appointed counsel and that anything she said could be used against her in court. But Rebert testified Webber affirmatively answered these questions; we simply do not know from the record whether she did so in a whisper or with a nod of the head or some other sign. Rebert stated that if a person gives no response at all, he would repeat his query at least twice, and if the person answers, no, he asks what it is they do not understand. The trial court noted Rebert testified that the response to those [additional Miranda warnings] was yes, and concluded the court believes that. We may not second-guess this credibility determination. (Storm, supra, 28 Cal.4th at p. 1022.) Accordingly, Webbers affirmative answers support the trial courts conclusion she understood her rights and, by proceeding to speak with Rebert, she knowingly waived them.

Resisting this conclusion, Webber contends her sleep deprivation and use of methamphetamine prevented her from comprehending her rights, and therefore any implied waiver she provided was involuntary. Voluntariness, however, is analytically distinct from whether a waiver is knowing and intelligent. In Moran v. Burbine (1986) 475 U.S. 412 (Moran), the high court explained that the inquiry of whether a valid waiver has been established has two distinct dimensions: First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the totality of the circumstances surrounding the interrogation reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. (Moran, at p. 421.) Because Webber presented no evidence of coercive police conduct, we reject her argument she involuntarily spoke with the police. (Colorado v. Connelly (1986) 479 U.S. 157, 167.)

As to the other prong of a valid waiver, whether a suspect lacks capacity to understand her rights and provide a knowing and intelligent waiver depends on the totality of the circumstances surrounding the interrogation. (Moran, supra, 475 U.S. at p. 421; People v. Benson (1990) 52 Cal.3d 754, 779.) A suspect who has ingested drugs or alcohol may provide a valid waiver if she understands her rights. (People v. Breaux (1991) 1 Cal.4th 281, 301 (Breaux).) As discussed, Webber affirmatively indicated she understood her rights. Little in the record undermines this conclusion. Investigator Daniel Solorio, a drug recognition expert, transported Webber to the police station on the morning of her arrest. Webber appeared calm and exhibited no signs she was under the influence of methamphetamine or other substances. She denied using methamphetamine the previous evening. The trial court reviewed a recording of Webbers preinterview statements to Solorio, and found nothing to indicate a lack of capacity.

Rebert also testified Webber appeared coherent and he observed nothing in his interview with her that suggested she might be under the influence or impaired. On cross-examination, he acknowledged Webber told him she felt nauseated and dizzy, complained of blurred vision, and had a headache. Rebert conceded Webber jumped from subject to subject in her answers, repeated herself, and complained she felt tired.

Webber claimed at the suppression hearing that she told Solorio on their trip to the station that she used methamphetamine the night before and was tweaking. Webber insisted she had been without sleep on a three-day methamphetamine binge before the interview. A defense expert testified that a dose of methamphetamine lasts between six and eight hours, followed by a withdrawal period. The expert opined use of methamphetamine would still affect her ability to understand the significance of Reberts questions and to weigh her responses even if Webber had last used methamphetamine eight hours before the interview. The expert noted that a single day without sleep would have impaired her cognitive abilities.

Under the totality of the circumstances, the trial court could reasonably conclude that Webbers symptoms did not impair her ability to understand her rights and knowingly waive them. Her complaints of headaches, drowsiness, and nausea are consistent with a hangover and lack of sleep, but do not compel the conclusion she was incapacitated. She acknowledged she understood her rights, and having been advised of those rights in two previous encounters with police supports the conclusion she understood them. (Breaux, supra, 1 Cal.4th at p. 301.) She gave responsive answers to Reberts questions and her emphasis of mitigating factors showed comprehension of her circumstances. As the trial court observed, no evidence suggested Webber used methamphetamine immediately preceding her interrogation or that she remained under the influence of drugs when she was questioned. In sum, substantial evidence supports the trial courts conclusion Webber understood her rights and knowingly waived them by providing her statement to Rebert.

B. Exculpatory Medical Reports

Webber contends the trial court erred in rejecting her claim the prosecutor owed a statutory and federal due process duty to disclose reports of neurological and medical exams conducted by Hartts doctors in 2001. ( 1054.1; Brady v. Maryland (1963) 373 U.S. 83, 86-88 (Brady).) Webber learned of the reports when the prosecutor referred to them while impeaching a defense expert, Dr. Lechuga, for not do[ing] his homework. When Lechuga admitted he was unaware of the reports, the prosecutor criticized him for overlooking this information when formulating his opinion Hartts brain injury likely affected his insight, mood lability, anger control, and impulsivity. The prosecutor did not claim the reports contradicted Lechugas conclusions; rather, he undercut those conclusions by attacking the experts due diligence. Defense counsel informed the trial court that while Hartts family furnished the reports to the prosecution, she assumed the family would refuse to speak with defense investigators and that is why I didnt send anybody to talk to them. Moreover, the prosecutors witness list did not include any of the three doctors who examined Hartt in 2001. The trial court overruled Webbers request for the reports midtrial, and later denied her new trial motion in which she argued the prosecution should have produced the reports pretrial.

One of the reports contained a diagnosis of Hartt lending support to Webbers self-defense claim. Dr. Jeffrey Schaeffer, who met personally with Hartt, underscored in his June 30, 2001 report the severe nature of Hartts brain injury and residual difficulties. He described Hartt as more prone to frustration and irritability, and that he becomes angry and frustrated with himself. More specifically, Schaeffer observed that Hartts anger and frustration stemmed from his motoric limitations and his current living situation [in] what seems to be a nursing care environment, primarily composed of elderly individuals who are far less cognizant and functional than he is. Schaeffer noted Hartt appears to be prone to periods of mood lability, outbursts of anger and generally unstable moods, which the doctor concluded may be difficult to control via psychotropic or antidepressant medication solely. Posttrial, Webber also discovered from the prosecution two additional reports made by Hartts other doctors in 2001. She does not articulate whether or how these reports might have been exculpatory, so we need say no more about them. But Schaeffers report would have provided potentially relevant character evidence of the victim (Evid. Code,  1103) showing a propensity for mood instability, impulsivity, and lack of anger control, arguably bolstering Webbers self-defense and defense of others claim.

Due process requires the prosecutor to reveal exculpatory evidence to the defense. (United States v. Agurs (1976) 427 U.S. 97, 107; accord,  1054.1, subd. (e).) The evidence need not exonerate the defendant; disclosure is required if the evidence is both favorable and material. (Brady, supra, 373 U.S. at pp. 86-88.) As our Supreme Court has explained: Evidence would have been favorable if it would have helped the defendant or hurt the prosecution, as by impeaching one of its witnesses. Evidence would have been material only if there is a reasonable probability that, had it been disclosed to the defense, the result would have been different. (People v. Dickey (2005) 35 Cal.4th 884, 907; accord, Kyles v. Whitley (1995) 514 U.S. 419, 434 (Kyles) [touchstone of materiality is a reasonable probability of a different result].) The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence [s]he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. (Kyles, at p. 434.)

Brady error may not be treated as harmless, since a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different, [citations], necessarily entails the conclusion that the suppression must have had substantial and injurious effect or influence in determining the jurys verdict, [citations] . . . . (Kyles, supra, 514 U.S. at p. 435.) As our Supreme Court has explained: A showing . . . of the favorableness and materiality of any evidence not disclosed by the prosecution necessarily establishes at one stroke what in other contexts are separately considered under the rubrics of error and prejudice. For, here, there is no error unless there is also prejudice. [Citations.] (In re Sassounian (1995) 9 Cal.4th 535, 545, fn. 7.) Thus, strictly speaking, there is never a real Brady violation unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict. (Strickler v. Greene (1999) 527 U.S. 263, 281.)

We conclude Schaeffers report was favorable, but not material. The prosecutor committed no Brady error because a different result is not reasonably probable had Schaeffers report been disclosed to the defense and placed before the jury. True, the report paints a picture of Hartt in his compromised condition that lends some support to Webbers self-defense claim. Schaeffer reported Hartt suffered mood swings and was prone to outbursts of anger. But Schaeffer specified that Hartt became angry and frustrated with himself. (Italics added.) The report does not state that Hartt also became angry and frustrated with others, although that inference is possible. Still weaker is the inference that he became violent with himself or others, which the report nowhere suggests. Mortal self-defense requires a reasonable apprehension of imminent great bodily injury or death. (See People v. Humphrey (1996) 13 Cal.4th 1073, 1082-1083; Pen. Code, 197, 198.) But Schaeffers report offered little, if any, evidence that Hartt posed a physical danger to others. Rather, the report specified Hartt directed his anger at himself, out of frustration at his lack of mobility and his then-current placement in a nursing home, neither of which have any material relation to the circumstances of his death.

Additionally, the jury concluded Webber intended to rob Hartt, and nothing in Schaeffers report undercuts that conclusion. The robbery finding brought the killing within the felony-murder rule. The purpose of the felony-murder rule is to deter even accidental killings in the commission of designated felonies by holding the felon strictly liable for murder. (People v. Loustaunau (1986) 181 Cal.App.3d 163, 170.) The perpetrator cannot claim self-defense, for this would be fundamentally inconsistent with the very purpose of the felony-murder rule. (Ibid.) As there is no probability of a different result, Webbers statutory claims for disclosure ( 1054.1) also fail. (Cal. Const., art. II,  13.) For all the foregoing reasons, Webber is not entitled to reversal.

C. Prosecutorial Misconduct

Webber argues the prosecutors misconduct in closing argument requires reversal. Specifically, she contends the prosecutor referred to facts not in evidence, misstated the law twice, misled the jury about the content of Dr. Schaeffers report, and used a postmortem photograph of the victim to make an improper plea for revenge. 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.] . . . (People v. Gionis (1995) 9 Cal.4th 1196, 1214-1215.) Such pervasive misconduct requires reversal unless it is harmless beyond a reasonable doubt. (People v. Hill (1998) 17 Cal.4th 800, 844 (Hill).) As a matter of state law, prosecutorial misconduct involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. (People v. Espinoza (1992) 3 Cal.4th 806, 820 (Espinoza).) State law misconduct necessitates reversal where it is reasonably probable the prosecutors intemperate behavior affected the verdict. (Id. at p. 821.) We address Webbers claims of misconduct in the order they occurred at trial.

1. Shotgun Shells

First, Webber objected when the prosecutor argued the seven 12-gauge shotgun rounds recovered in Webbers purse just happen[] to be the ammunition that fits in Rodney Daviss pistol grip shotgun. Defense counsel asked the trial court to admonish the prosecutor not to talk about evidence that was never presented ever. The trial court overruled the objection and declined to admonish the prosecutor. Nevertheless, the prosecutor recognized the force of the objection and acknowledged to the jury that the shotgun was not introduced into evidence. Accordingly, the prosecutor changed his tack to ask: So what is the defendant doing with the ammunition that is calibrated for that weapon . . . ? (Italics added.) Because there had been testimony Davis gave Hartt a 12-gauge shotgun, the identical caliber of the rounds discovered in Webbers purse made it a fair inference they fit the weapon. Thus, the prosecutor committed no misconduct.

2. Medical Reports

Second, Webber argues the prosecutor committed misconduct by misleading the jury about the content of Schaeffers report. The prosecutor discredited the defense in closing argument by stating there are doctors who actually met Steven Hartt and interviewed Steven Hartt and tested Steven Hartt and when. . . they choose not to call any one of [these] doctors . . . dont you scratch your head and wonder why not? The implication, of course, was that the doctors information was unfavorable to the defense, but the prosecutor knew Schaeffers report contained information supporting Webbers self-defense claim. The prosecutors argument also implied Lechuga had access to these reports, but the prosecutor himself had withheld them.[1] We condemn these deceptive tactics.

In the particular circumstances here, the prosecutors misconduct does not require reversal. In light of our conclusion that Schaeffers report was not material because it would not have affected the verdict, we similarly conclude it is not reasonably probable the prosecutors implied characterization of the report as favorable to the prosecution had any effect on the jurys verdict. The jury knew, as defense counsel reminded them, that the prosecutor did not introduce Schaeffers report or any others. The trial court instructed the jury to ignore the insinuations of counsel (CALJIC No. 1.02) and to decide all questions of fact in this case from the evidence received in this trial and not from any other source (CALJIC No. 1.03). We presume the jury followed these instructions. (People v. Clair (1992) 2 Cal.4th 629, 663, fn. 8 (Clair).) Accordingly, it is unlikely the jury applied the prosecutors remarks in an objectionable fashion. (People v. Samoyoa (1997) 15 Cal.4th 795, 841.) Consequently, this misconduct presents no basis for reversal.

3. Alleged Misstatements of Law

Third, Webber argues the prosecutor committed misconduct by misstating the law of self-defense. The prosecutor did not misstate the law. The prosecutor argued his view of the evidence that Webber and Cain were the initial aggressors in their conflict with Hartt, and therefore forfeited the right to self-defense. The trial court sustained Webbers objection to this argument, but the argument is an accurate statement of law. An aggressor generally forfeits the right of self-defense, and the exceptions delineated in People v. Quach (2004) 116 Cal.App.4th 294, 301-302, do not apply here. Resting on the bare fact the court sustained her objection, Webber contends a misstatement of law amounts to prosecutorial misconduct. (See Hill, supra, 17 Cal.4th at pp. 830-831.) But this claim evaporates in light of our conclusion the statement accurately recited the law.

Webber also argues the prosecutor misstated the law regarding willfully false statements, fabrications, and flight after crime. (See CALJIC Nos. 2.03, 2.04, 2.52.) The prosecutor shaded these instructions in his favor by arguing: The fact that they lie is not enough all by itself to convict h[er], but its almost enough, And all by itself, [efforts to fabricate or suppress evidence] is not enough, but in conjunction with another fact it is enough, and If theres a tiny bit of evidence somewhere else, the mere fact that they fled, you can assign the appropriate weight and that would be enough. (Italics added.) Outside the jurys presence, the court reproached the prosecutor that these instructions do not say what youre saying. Especially about the part . . . any little bit more [and] you can convict. Thats not what those instructions say.

The court stated it would admonish the jury to look to the instructions, not the attorneys arguments, for the law, and that it would review CALJIC Nos. 2.03, 2.04, and 2.52 specifically with the jury. Contrary to Webbers claim the court failed to admonish the jury, the record reflects it did so. After the sidebar with the attorneys, the court instructed the jury to read the three instructions for yourself. The court then instructed the jury: As to instructions . . . 2.03, 2.04, [and] 2.52, if anything is different between what the attorneys say and what the court says, follow my instructions on the law. The courts pattern instruction (CALJIC No. 1.00) also directed the jury to follow the courts instructions over contrary statements by counsel. And we presume that jurors treat the courts instructions as a statement of the law by a judge, and the prosecutors comments as words spoken by an advocate in an attempt to persuade. (Clair, supra,2 Cal.4th at p. 663, fn. 8.) Webbers claim is therefore without merit.

4. Postmortem Photo

Fourth and finally, Webber attacks as misconduct the prosecutions use of a postmortem photo of Hartt that included the caption, Shes enjoyed her presumption of innocence, now let her enjoy her punishment. The prosecutor apparently flashed the photograph on-screen during closing argument, in his second-to-last slide. Webber characterizes the photograph as gruesome, but admission of photographs of the victim rests within the sound discretion of the trial court. (People v. Edwards (1991) 54 Cal.3d 787, 832; People v. Bean (1988) 46 Cal.3d 919, 943.)

Recognizing this principle, Webber does not challenge the photo itself, but rather argues the caption trivialized the presumption of innocence and urged the jury to speculate about punishment when its task is the determination of guilt. Webber correctly observes that appeals to the passions and emotions of the jury have no place during an objective determination of guilt . . . . (See, e.g., People v. Medina (1995) 11 Cal.4th 694, 759 (Medina).) An aggrieved party must lodge the objection below, which Webber failed to do. Fairness to the opposing party and the trial court generally requires forfeiture of misconduct claims raised for the first time on appeal, unless an admonition would not have cured harm from the misconduct. (People v. Price (1991) 1 Cal.4th 324, 447.) Here, admonition on the presumption of innocence and the jurys duty to determine guilt without respect to punishment would have cured any possible prejudice from the photo. The claim is therefore forfeited. Even assuming Webber had properly preserved the claim, it does not carry the day on the merits.

Criminal defendants have a constitutional right to the presumption of innocence (Estelle v. Williams (1976) 425 U.S. 501, 503), and where there is misconduct that dilutes the presumption, we must reverse unless the error was harmless beyond a reasonable doubt. (United States v. Perlaza (9th Cir. 2006) 439 F.3d 1149, 1171.) We discern no misconduct here in the prosecutors reference to the presumption of innocence in the photo caption. As in People v. Panah (2005) 35 Cal.4th 395, the prosecutors references to the presumption of innocence were made in connection with his general point that, in his view, the evidence, to which he had just referred to at length, proved defendants guilt beyond a reasonable doubt, i.e., the evidence overcame the presumption. (Id. at p. 463.) In other words, the argument that the presumption is overcome operates as a recognition of the presumptions validity, and does not undermine the principle. That was the case here for, in the midst of reciting the evidence against Webber, the prosecutor argued to the jury: When you look at it, those are not the actions of somebody whos innocent.

The captions reference to punishment, however, is a different story. Here, affixed to a postmortem photo of Hartts face, the prosecutors biting imprecation, [N]ow let her enjoy her punishment, amounted to a plea for revenge. Because appeals to passion or prejudice exceed the bounds of permissible argument (Medina, supra, 11 Cal.4th at p. 759), a prosecutor may not ask for a verdict based upon anger, a motivation for revenge or other base thing. (People v. Lucas (1995) 12 Cal.4th 415, 497, fn. 22.) The prosecutor compounded his error in the foregoing slide with a final slide displaying the same postmortem photo with the caption, Dont let this go unanswered and unpunished. This was error because, under current law, the jury generally has no sentencing function outside the death-penalty context.[2] (See People v. Mendoza (1974) 37 Cal.App.3d 717, 727 [The jurys responsibility is limited to the determination of the defendants guilt or innocence of the charge against [her]].)

Although we find the prosecutors attempt to stir the passions of the jury with the photograph and captions disturbing, we conclude the error does not require reversal because it is not reasonably probable it affected the verdict (Espinoza, supra, 3 Cal.4th at p. 821), given the trial courts pinpoint instruction. The court instructed the jury to disregard punishment (CALJIC No. 17.42), and we presume the jury heeded that instruction. (People v. Williams (1982) 128 Cal.App.3d 981, 990.) As discussed, the jury was entitled to view the postmortem photographs, and we cannot conclude the words counsel typed beneath the photograph caused the jury to disregard the courts explicit instruction to ignore punishment.

5. Cumulative Error

Webber contends that the prosecutors pattern of misconduct denied her a fair trial. In the course of a lengthy closing argument over two days, however, the prosecutors cross-examination gaffe (concerning Schaeffers report) and two legal errors (regarding consciousness of guilt and punishment) do not constitute the pervasive pattern necessary to result in a cumulative, synergistic, adverse impact. (Hill, supra, 17 Cal.4th at p. 847.) None of the errors here, individually or together, would lead the jury to ignore the courts instructions (see People v. Aranda (1965) 63 Cal.2d 518, 525), and the instructions therefore eliminated any possible harm. Accordingly, we reject Webbers cumulative error argument.

D. Robbery Special Circumstance Instruction

Webber attacks a supplemental instruction the trial court gave when the jury sent a note during deliberations, asking, If we find a murder was commit[t]ed, is removal of wallet, murder weapons from the murder scene considered (after the murder) robbery? And is the murder considered to be during the course of that robbery. The trial court discussed the matter with counsel, and then responded to jurys query as follows: If the jury finds that a murder was committed: [] The jury needs to determine what Ms. Webbers intent was at the time of the murder. If her intent at the time of the murder was to commit a robbery, but the property was not taken until after the death, it still may be a murder during the course of a robbery. [] However, if the intent to take property was formed after the death occurred, then it would not be murder in the course of a robbery or attempted robbery.

The trial court has a duty to aid jurors in understanding the legal principles they are asked to apply. (People v. Beardslee (1991) 53 Cal.3d 68, 97.) In particular, under section 1138, the court must attempt to clear up any instructional confusion expressed by the jury. (People v. Gonzalez (1990) 51 Cal.3d 1179, 1212; see  1138 [providing for supplemental instructions if jury desire[s] to be informed of any point of law after retiring for deliberation].)

The special circumstance of murder in the commission of a robbery does not apply if the robbery is merely incidental to the killing. Instead, the intent to take property must develop before or during the commission of the murder. (People v. Horning (2004) 34 Cal.4th 871, 904 (Horning); People v. Hughes (2002) 27 Cal.4th 287, 356-357.) The defendant must have killed or participated in the victims killing to advance the independent felonious purpose of robbery. (People v. Green (1980) 27 Cal.3d 1, 60-61; People v. Thompson (1980) 27 Cal.3d 3030, 322.) In other words, the special circumstance requires that the intent to steal be formed before the fatal blow is struck . . . . (Horning, at p. 903.)

Webber argues the second paragraph of the trial courts supplemental instruction erroneously permitted the jury to find the special circumstance true if she formed the intent to steal after any blows were struck, so long as the intent arose before death occurred . . . . Put another way, focusing on her statement to police that Hartt was alive when she left his room, Webber contends the instructions second paragraph directed the jury to find the special circumstance true even if she did not intend to take anything of Hartts until some unspecified time after she departed the scene, but before he died. She argues the courts supplemental instruction was tantamount to a directed verdict, violating her right to a presumption of innocence and a fair jury trial. (See, e.g., People v. Figueroa (1986) 41 Cal.3d 714, 730.)

Fairly read as a whole, the supplemental instruction does not misstate the law as Webber suggests. She overlooks the instructions first paragraph, which accurately reflected the facts of the case where an interval in time separated the defendants allegedly murderous acts and the victims death. In the first paragraph, the court answered the jurys question of how to proceed on the robbery special circumstance [i]f we find a murder was commit[t]ed . . . ? The court instructed the jury to ascertain Ms. Webbers intent . . . at the time of the murder. (Italics added.) The first paragraph of the courts instruction specified that even if property is not taken until after death, the special circumstance applies [i]f her intent at the time of the murder was to commit a robbery . . . . (Italics added.) These are correct statements of law. (See, e.g., Horning, supra, 34 Cal.4th at p. 903.)

The second paragraph is similarly a correct statement of law because a murder in the course of a robbery does not occur if the intent to steal arises after the victims death. (Horning, supra, 34 Cal.4th at p. 903.) True, the second paragraph is not sufficient by itself because it says nothing about the defendants intent at the time of the alleged murder, but the first paragraph already advised the jury of this requirement. We must construe instructions in a common sense manner and as a whole. (People v. Holt (1997) 15 Cal.4th 619, 644.) Indeed, CALJIC No. 1.01 instructed the jury not to single out, as Webber has done, any particular sentence or any individual point or instruction and ignore the others, but rather to [c]onsider the instructions as a whole and each in light of all the others. We presume the jury followed this instruction. (People v. Cruz (2001) 93 Cal.App.4th 69, 73.) Because the two paragraphs of the courts supplemental instruction accurately stated the law when read together, Webbers claim fails.

Finally, Webbers claim of combined error requiring reversal for cumulative prejudice to a fair trial (see People v. Ramos (1982) 30 Cal.3d 553, 581; Hill, supra, 17 Cal.4th at p. 847) is without merit. The only errors were the prosecutors few missteps that, as discussed, do not warrant reversal singly or in combination.

III

DISPOSITION

Judgment affirmed.

ARONSON, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

FYBEL, J.

RYLAARSDAM, J. Concurrence

I reluctantly concur in the decision and have signed the opinion.

I agree with my colleagues that the prosecutors conduct does not rise to a level requiring reversal. Nevertheless I find it disturbing that the Orange County District Attorney employs deputies who either are so ignorant of the law as to believe that the conduct we describe is permitted or, worse, so unethical as to engage in it, knowing its impropriety.

RYLAARSDAM, ACTING P. J.

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[1] If the prosecutor wished to impeach Lechuga with the existence of the reports, he should have introduced into evidence at least the face pages of those reports to demonstrate their existence. Papers waved in an attorneys hand, as the prosecutor waved the reports in critiquing Lechuga for not discovering them, have no evidentiary significance. The prosecutor implied the papers had some weight because they were generated by experts, i.e., the doctors who examined Hartt, but for that very reason the face pages, at a minimum, should have been disclosed. (See  1054.1, subd. (f) [written expert material to be introduced in evidence must be disclosed].) Once the defense learned of the reports, there was no sound reason to conceal their contents but, as we have discussed ante, it is not reasonably probable the failure to disclose the reports affected the verdict and the omission was therefore neither Brady error nor prejudicial under state law.

[2] This may change as juries expressly decide more sentencing factors pursuant to the Supreme Courts recent decision in Cunningham v. California (2007) __ U.S. __, 127 S.Ct. 856.