P. v. Williams




Filed 3/2/11 P. v. Williams CA2/2




NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, v. CASSANDRA WILLIAMS, Defendant and Appellant.

B220826 (Los Angeles County Super. Ct. No. MA039915)

APPEAL from a judgment of the Superior Court of Los Angeles County. Lisa Chung, Judge. Affirmed.

Pamela J. Voich, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted Cassandra Williams (appellant) of assault with a deadly weapon in violation of Penal Code section 245, subdivision (a)(1).[1] The jury found that appellant personally caused great bodily injury within the meaning of section 12022.7, subdivision (a). The trial court sentenced appellant to the midterm of three years in prison and struck the punishment, but not the true finding, on the great bodily injury allegation.
Appellant appeals on the grounds that: (1) the evidence was insufficient to support her conviction; (2) the trial court erred in failing to instruct on the lesser included offense of simple assault; (3) the trial court erred in denying appellant’s new trial motion based on juror misconduct; and (4) prosecutorial misconduct violated appellant’s federal constitutional rights under the Sixth and Fourteenth Amendments. We affirm.
FACTS
We recite the evidence in the light most favorable to the judgment below. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Appellant presented no evidence in her defense.
On September 24, 2007, Sallie Rouse Settle (Sallie) was married to William Settle, whom she called “Bill.” Sallie had two daughters living at home: Arlene Settle (Arlene), age 12, and Chrisandra Rouse (Chris), who was 21. Sallie and Bill were separated, and Sallie had filed for divorce. Bill and appellant were living together.
On the day of the incident, Arlene had called Bill, her father, and asked for his help in obtaining supplies for her science project. During the conversation, Arlene heard appellant speaking in the background. Appellant was berating Arlene, as she had done earlier in the day, because Arlene had asked appellant to stop calling her home. After the conversation ended between Arlene and her father, appellant called Arlene on her cell phone and said, “This is for you and your drunk mother.” Appellant and Arlene shouted and cursed at each other. Later that day, Arlene’s phone rang again, but Chris answered it instead of Arlene. Chris heard appellant say, “‘You little bitch, you need to stay—you and your drunk-ass mama need to stay the fuck away from my man.’” Chris became angry at appellant for attempting to speak to her young sister that way, and she and appellant engaged in a very vulgar conversation. Appellant told Chris that if she did not show her respect she would get her “ass whooped.” Chris challenged appellant in return. Appellant said she would come over, and Chris said she would be waiting. Chris called her mother.
Sallie received upsetting phone calls from both of her daughters, and she became concerned for their safety. Sallie telephoned appellant and asked her why she had telephoned and argued with Arlene. Appellant and Sallie began to argue during their telephone conversation, and appellant eventually threatened to knock Sallie’s teeth out. Appellant demanded to know where Sallie was.
Sallie returned home at approximately 9:30 or 10:00 p.m. Sallie tried to reach Bill by telephone from her garage, which was the house smoking area and was set up like a living room. Arlene entered the garage cursing and screaming about her telephone conversation with appellant. Arlene said that appellant was on her way to their home to fight with Chris.
Appellant arrived in a truck driven by someone else. She got out of the truck and began screaming, “I’m Sandy” and cursing. Sallie heard appellant say she was going to “kick our ass or whatever.” At that point, Sallie’s mother, uncle, and Chris were also in the garage. Appellant told them to come out and fight, but they refused. Appellant eventually entered the garage.
Sallie and appellant “got into a physical exchange.” Sallie remembered that at some point she swung at appellant with her left hand and thought she had broken her hand. Chris screamed, “Mom, you’re bleeding. She cut you. She has a knife.” Chris had seen something reflect light in appellant’s hand as she approached appellant to pull her away from Sallie. She told her mother to back up and said, “She got a knife. She has something in her hand.” The shiny object that Chris saw appellant holding was not jewelry. Chris had noticed earlier that appellant was gesturing with one hand as she talked, but the other hand stayed still by her side. The still hand “was kind of curved,” with the wrist facing away from Chris.
After Chris shouted that appellant had a knife, Sallie and appellant backed away from each other, and appellant began walking backwards down the driveway. Sallie kept repeating that her hand hurt. Blood was dripping from Sallie’s sleeve, and she would not let Chris touch her. Chris saw a huge gash on Sallie’s left wrist, and there was blood on the floor. Sallie saw blood on her left wrist and realized that appellant had cut her. Sallie did not see a knife or any weapon on appellant. Arlene saw blood dripping from appellant’s sleeve where her right hand was, but she did not see a knife. Sallie’s mother, Sallie Belle Rouse (Sallie Belle), did not see a knife on appellant. Appellant kept on screaming and “talking crazy.” When Sallie told her mother to call the police, appellant called Sallie “one of those police-calling bitches.” Appellant and her companion then left “cursing, yelling, and screaming.”
The police and an ambulance arrived. As Sallie was being treated for her injuries, she was told that appellant and her companion had been apprehended. Sallie was taken to identify appellant and then to the hospital.
Photographs of Sallie’s injuries were shown to the jury. Sallie received approximately eight stitches in her wrist, in which the ulnar nerve had been severed. She suffered a lot of pain and lost complete use of one of her fingers and partial use of a second finger. She underwent an unsuccessful operation to repair the nerve damage. Sallie still had a scar at the time of trial. Sallie was wearing a diamond bracelet on her left wrist on the night of the incident. It was not sharp or dangerous, and it did not seem as if the bracelet was cutting into her hand. Sallie Belle helped her daughter hold up her arm and did not see any jewelry cutting into Sallie’s arm.
Sallie testified that she had no reason to make up the incident or lie, and she denied that she was trying to remove appellant from “the scene” in order to get her husband back. She was the petitioner in the divorce proceedings. She acknowledged lying in a request for a restraining order against her husband. She falsely stated that he had broken her nose, although it was Chris who actually broke Sallie’s nose. Sallie explained that the form she filled out for the restraining order asked her to list all injuries inflicted by the other person, and Bill had broken her nose before. She had not intended to deceive anyone. Sallie acknowledged that she made a false statement under oath at the preliminary hearing when she said she did not touch appellant. Sallie Belle had never met appellant and had no bias against her. It was Bill’s involvement with a young girl who claimed he fathered her child that caused Sallie to divorce him.
Chris acknowledged that her mother had a drinking problem and that Chris and her mother had fought on more than one occasion. Chris had broken her mother’s nose, and Sallie had threatened Chris’s life. Sallie was not drinking on the day of the fight. Chris denied telling the responding officer that appellant had an eight-inch steak knife. Chris acknowledged that she was convicted of a felony, either embezzlement or grand theft, in 2008.
Sheriff’s Deputy Jeremi Edwards responded to the call of an assault with a deadly weapon. He broadcast the license plate number of the car in which appellant was riding while paramedics treated Sallie. He saw a pool of blood on the garage floor. Deputy Edwards took Sallie to a field showup where she identified appellant, and he read appellant her Miranda^[2] rights.
Appellant agreed to speak with the deputy. She had gone to Sallie’s home to talk, accompanied by her cousin and her boyfriend, Bill. Appellant never swung at Sallie. Bill became upset with the arguing and left on foot. Appellant said she did not have a knife. Deputy Edwards did not find a knife on appellant. Chris told the deputy that appellant had used an eight-inch steak knife.
DISCUSSION
I. Sufficiency of the Evidence
A. Appellant’s Argument
Appellant argues that her conviction was not supported by sufficient evidence and resulted in a denial of due process. There was no testimony that placed a knife in appellant’s hand at any time during her altercation with Sallie. Appellant was apprehended almost immediately after the fight with Sallie, and police did not find a knife or any other weapon in her possession. The nature of the wound was entirely consistent with the inference that it was caused by Sallie’s diamond bracelet, and there was no evidence to establish what caused the puncture wounds. Appellant asserts that we should modify the judgment to reflect a conviction of the lesser included offense of misdemeanor simple assault.
B. Relevant Authority
The standard of appellate review for sufficiency of evidence was articulated in People v. Johnson (1980) 26 Cal.3d 557 (Johnson). When an appellate court seeks to determine whether a reasonable trier of fact could have found a defendant guilty beyond a reasonable doubt, it “‘must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’” (Id. at p. 576; see also People v. Rayford (1994) 9 Cal.4th 1, 23.) The court does not limit its review to the evidence favorable to the respondent, but must resolve the issue in light of the whole record. (Johnson, supra, at p. 577.) The court must also judge whether the evidence of each of the essential elements of a crime is substantial. (Ibid.) “The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.] Although it is the jury’s duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant’s guilt beyond a reasonable doubt. [Citation.] ‘“If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citation.]”’ [Citation.]” (People v. Kraft (2000) 23 Cal.4th 978, 1053–1054.)
It is the exclusive province of the trier of fact to determine witness credibility and the truth or falsity of the facts; the court is not free to substitute its view of the evidence for that of the trier of fact. (People v. Ochoa, supra, 6 Cal.4th at p. 1206; People v. Ceja (1993) 4 Cal.4th 1134, 1139.) The uncorroborated testimony of even one witness may provide substantial evidence, unless the testimony is physically impossible or inherently improbable. (People v. Scott (1978) 21 Cal.3d 284, 296.) Reversal for insufficiency of the evidence “is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
C. Evidence Sufficient
It is true, as appellant argues, that none of the witnesses testified that she saw a knife in appellant’s hand. Chris testified, however, that she saw a shiny object in appellant’s hand just before she warned her mother. At that very moment, Sallie realized she had been cut and held her arm up. There was a pool of blood on the floor of the garage from Sallie’s cut. Arlene saw blood dripping from appellant’s sleeve.
The defense argument that the injury, which resulted in a severed nerve, was caused by Sallie’s diamond bracelet strained credulity. It is reasonably inferable that appellant had a knife or other sharp object in her hand and that she cut Sallie with it. Chris saw appellant gesturing with only one hand, and appellant kept her other hand still and by her side with the hand curved. Although no knife was found on appellant or in her car, the record does not specify where appellant was stopped. It does not state that the police arrived as appellant was attempting to leave Sallie’s home, as appellant asserts. The record states that the police officers “came back” to Sallie’s home and said they had found appellant. Sallie was transported to appellant’s location in a police car.
Since we “‘“presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence”’” (People v. Rayford, supra, 9 Cal.4th at p. 23), there is sufficient evidence that appellant cut Sallie with a deadly weapon.
II. Simple Assault Instruction
A. Appellant’s Argument
Appellant asserts that the evidence supported instructing the jury regarding the lesser included offense of simple assault. The trial court’s failure to read this instruction presented the jury with the choice of convicting appellant of felony assault with a deadly weapon or nothing. According to appellant, this was reversible error.
B. Relevant Authority
A trial court must instruct on general principles of law relevant to the issues raised by the evidence. (People v. Saddler (1979) 24 Cal.3d 671, 681.) A defendant is entitled to instruction on lesser included offenses, without a request or even over objection, if the evidence raises a question as to whether all of the elements of the charged offense were present, but not when there is no evidence the offense was less than that charged. (People v. Breverman (1998) 19 Cal.4th 142, 154.)
Mere speculation the crime was less than that charged is insufficient to trigger the duty to instruct (see People v. Berryman (1993) 6 Cal.4th 1048, 1081, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823). The court must “‘refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues.’” (People v. Saddler, supra, 24 Cal.3d at p. 681.)
“‘To prove a violation of Penal Code section 245, subdivision (a), the prosecution must establish that a person was assaulted and that the assault was committed by the use of a deadly weapon or instrument or by means of force likely to produce great bodily injury. Assault with a deadly weapon is a general criminal intent crime [citation] and requires proof only of an attempt to commit a violent injury upon the person of another. It does not require proof that an injury occurred. [Citation.]’” (People v. Griggs (1989) 216 Cal.App.3d 734, 739–740.) A simple assault is “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (§ 240; People v. Williams (2001) 26 Cal.4th 779, 784.) It is a lesser included offense of assault with a deadly weapon. (People v. Jones (1981) 119 Cal.App.3d 749, 754.)
C. No Error
Under the circumstances of the instant case, there was no evidence from which a reasonable juror could conclude that, if appellant assaulted Sallie, it was anything less than assault with a deadly weapon by means likely to cause great bodily injury. Sallie suffered a fairly deep wound to her wrist, and the circumstantial evidence indicated it was caused by a shiny metal object that appellant had concealed in her hand, or in her hand and sleeve. The defense position that Sallie was cut with her own diamond bracelet was not supported by the degree of the injuries Sallie suffered.
Furthermore, the jury found true the allegation that appellant caused great bodily injury to Sallie, thus precluding a conviction for mere simple assault. (See People v. Price (1991) 1 Cal.4th 324, 464 [failure to instruct on voluntary manslaughter as lesser included offense of murder is harmless error in light of jury finding that defendant killed victim in the perpetration of burglary, making the killing necessarily felony murder].) The jury was given Sallie’s medical records, and the prosecutor asserted that the cut to her wrist measured three centimeters in depth, which the jury was able to verify. Sallie testified that the ulnar nerve was severed, and she lost the use of one finger, with partial loss of use in a second finger. She underwent surgery in an attempt to correct the damage. This finding supports the jury’s verdict of aggravated assault and its great bodily injury finding.
Accordingly, no instruction on the lesser included offense was required. Moreover, any error in failing to read the simple assault instruction was harmless in that it is not reasonably probable that appellant would have received a more favorable result but for the alleged error. (People v. Breverman, supra, 19 Cal.4th at p. 178; People v. Watson (1956) 46 Cal.2d 818, 836.)
III. Juror Misconduct
A. Appellant’s Argument
According to appellant, there was more than a substantial likelihood the jury based its decision of guilt on the fact that appellant’s failure to testify was an indication of the strength of her defense. This was clearly prejudicial misconduct and grounds for reversal. In addition, appellant was deprived of her constitutional right to trial by a fair and impartial jury.
B. Relevant Authority
Every criminal has a right to a trial by an unbiased, impartial jury. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 16; People v. Nesler (1997) 16 Cal.4th 561, 578.) Juror misconduct is one of the grounds on which a criminal defendant may move for a new trial. (§ 1181, subds. 3, 4; People v. Ault (2004) 33 Cal.4th 1250, 1260.) When a party seeks a new trial on this basis, the trial court undertakes a three-step inquiry. First, it must determine whether the declarations offered in support of the motion are admissible under Evidence Code section 1150. If they are, the court must next consider whether the facts establish misconduct. Finally, assuming misconduct is found, the court must determine if it was prejudicial. (People v. Duran (1996) 50 Cal.App.4th 103, 112–113; People v. Hord (1993) 15 Cal.App.4th 711, 724.)
In determining whether juror misconduct occurred we accept the trial court’s credibility findings if supported by substantial evidence. (People v. Mendoza (2000) 24 Cal.4th 130, 195.) “Juror misconduct raises a rebuttable presumption of prejudice. The presumption may be rebutted by proof that prejudice did not actually result.” (Ibid.) Prejudice may also be rebutted by a reviewing court’s examination of the entire record in order to determine whether a reasonable probability of actual harm to the complaining party exists. (People v. Miranda (1987) 44 Cal.3d 57, 117, disapproved on another point in People v. Marshall (1990) 50 Cal.3d 907, 933.)
Whether a verdict must be overturned for jury misconduct is resolved by employing the substantial likelihood test, which is an objective standard. (In re Hamilton (1999) 20 Cal.4th 273, 296; People v. Nesler, supra, 16 Cal.4th at pp. 578–579; People v. Marshall, supra, 50 Cal.3d at p. 951.) “‘Whether prejudice arose from juror misconduct . . . is a mixed question of law and fact subject to an appellate court’s independent determination.’” (People v. Danks (2004) 32 Cal.4th 269, 303.)
“‘“‘The determination of a motion for a new trial rests so completely within the court’s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.’”’ [Citation.]” (People v. Staten (2000) 24 Cal.4th 434, 466.) Such a motion should be granted only when a defendant’s chances of receiving a fair trial have been irreparably damaged. (People v. Ayala (2000) 23 Cal.4th 225, 282.)
C. Proceedings Below
Prior to sentencing, defense counsel presented a motion requesting the discovery of juror information. He stated that a juror, later identified as juror No. 1, had told him that “the jurors had openly discussed the fact that my client chose not to take the stand.” After hearing argument, the trial court found that the defense had made a prima facie showing, and that there was good cause to conduct a hearing. The defense subsequently filed a motion for new trial, which was based on the declaration of juror No. 1. Defense counsel asserted that the juror herself had made the handwritten corrections appearing in the declaration.[3] The trial court ordered an evidentiary hearing based on the declaration. The trial court stated that juror No. 1 could testify, but the trial court was not going to authorize unsealing of all juror information at that time.
Juror No. 1 confirmed that, in reference to the jurors’ discussion, she had crossed out the words “in detail” on her declaration and had inserted “briefly, two to three minutes.” She wrote, “‘the discussion focused mainly on generalities of why someone would or would not testify.’” When asked whether she or anyone had said during the deliberations that the defendant did not testify and so must be guilty, juror No. 1 answered, “No.” When the prosecutor asked, “So your discussions were basically regarding generalities‌”, the juror answered, “Yes.” She confirmed that the discussions were brief. She later said that paragraph 2 of the declaration was accurate—the paragraph that apparently stated, “there were several jurors that expressed concern that Cassandra Williams did not take the witness stand.”
The trial court asked the juror what she meant by “several” jurors, and juror No. 1 replied that there were “about two or three.” She was not among them. She stated that it was “towards the middle” of the deliberation process. When asked if she remembered anything else, the juror replied, “I just remember it coming up, a couple of jurors, and we repeated specifically that we were instructed that we could not use that as a basis to presume guilt.” She and another juror voiced this admonition. After that “we went more into just the general discussion of why someone wouldn’t. Not specifically for the case, but in general why someone wouldn’t. And the other jurors seemed to be more relaxed with that.”
After hearing argument, the trial court noted that it had read the cases cited by both counsel and the court file. The trial court stated, “In listening to juror number 1 and reviewing the declaration, I think the defense has met their burden that there is presumption of prejudice in that we have a violation of CALCRIM [No.] 355 which was read to the jurors and also discussed during jury selection . . . .” The trial court stated that the issue was whether the presumption of prejudice could be rebutted by proof that no prejudice actually resulted. The trial court observed that the jurors’ discussion was brief—two to three minutes—and that it occurred in the middle of deliberations. The trial court noted that the jury deliberated for less than two hours. The trial court observed that only two or three of the jurors made the improper comment, and juror No. 1 and at least one other juror admonished them that they were to follow the court’s instructions. This was followed by a brief discussion on the generalities of the reasons a defendant would not testify.
The trial court stated there was no showing that the jurors held appellant’s failure to testify against her, nor that they impermissibly lowered the People’s burden of proof or gave the victim more credibility. The testimony and the medical records indicated that the victim’s injury was quite serious, almost severing tendons and resulting in a severe impairment of the hand. The charge was assault with a deadly weapon, and therefore any instrument capable of causing great bodily harm would satisfy the charge. Having heard the trial testimony, the trial court believed the evidence was sufficiently strong so as to support the conclusion of a reasonable juror that the injury occurred because of a deadly weapon and not just because of rings or other jewelry that the parties may have been wearing. The trial court did not find that the substance of the jurors’ discussion rose to a level that affected the core integrity of the trial or to a substantial likelihood of actual prejudice to appellant. The trial court denied the motion for new trial.
D. No Prejudice from Juror Misconduct; New Trial Properly Denied
After examining the entire record, we conclude that the voicing of wonderment as to appellant’s failure to testify on the part of two or three jurors out of 12 was not “‘inherently likely’” to have affected the vote of any of the jurors. (See People v. Hord, supra, 15 Cal.App.4th at p. 727.) Juror No. 1’s corrections to defense counsel’s declaration indicate that the remarks regarding appellant’s failure to testify were limited to two or three jurors in the middle of the two-hour deliberation, and these jurors were quickly admonished by juror No. 1 and another juror not to speculate on this issue. Thereafter, a brief discussion ensued about the reasons a defendant might not wish to testify—a discussion that was likely favorable to defendants in general, since the two or three commenting jurors relaxed after that. “‘Transitory comments of wonderment and curiosity’” about a defendant’s failure to testify, although technically misconduct, “‘are normally innocuous, particularly when a comment stands alone without any further discussion.’” (People v. Avila (2009) 46 Cal.4th 680, 727 (Avila).)
In Avila, as in the instant case, approximately two jurors made comments about the defendant’s failure to testify, and the jurors were admonished by other jurors that it was not appropriate to consider that fact. (Avila, supra, 46 Cal.4th at pp. 725–726.) In upholding the finding that no prejudice was shown, the California Supreme Court noted that the discussion of the failure was not of any length or significance and that the offending jurors were quickly admonished. (Id. at p. 727.) Similarly, People v. Loker (2008) 44 Cal.4th 691 (Loker) upheld the trial court’s ruling that there was no prejudice to the defendant after several jurors submitted declarations admitting that they had commented on the defendant’s failure to testify. (Id. at pp. 748–749.) In that case, too, the comments were brief, and the offending jurors were promptly admonished by the foreperson. In finding no prejudice, Loker noted that “[i]t is natural for jurors to wonder about a defendant’s absence from the witness stand.” (Id. at p. 749.) Under these same circumstances, we conclude that there was no “‘substantial likelihood’” appellant was prejudiced by the juror misconduct, and the new trial motion was properly denied. (Ibid.)
IV. Alleged Prosecutorial Misconduct
A. Appellant’s Argument
Appellant contends that, throughout the trial, the prosecutor committed misconduct by making statements or phrasing questions asserting that appellant cut or stabbed Sallie with a knife and that appellant had a knife. The prosecution’s evidence did not support these conclusory statements of facts not in evidence. No witness testified at trial regarding the instrument that caused Sallie’s wounds, and the prosecutor’s statements regarding causation constituted an improper opinion that should have been the subject of expert witness testimony. The prosecutor’s conduct prejudiced the jury against appellant and impinged on the jury’s duty to make evidentiary determinations, resulting in a violation of appellant’s federal constitutional right of due process. Appellant asserts that, absent the misconduct, the jury would have found appellant not guilty of assault with a deadly weapon.
B. Relevant Authority
“The standards governing review of misconduct claims are settled. ‘A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such “‘unfairness as to make the resulting conviction a denial of due process.’”’ [Citations.] ‘Under state law, a prosecutor who uses such methods commits misconduct even when those actions do not result in a fundamentally unfair trial.’ [Citation.] ‘In order to preserve a claim of misconduct, a defendant must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the claim of misconduct preserved for review.’ [Citation.] When a claim of misconduct is based on the prosecutor’s comments before the jury, ‘“the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.”’ [Citation.]” (People v. Friend (2009) 47 Cal.4th 1, 29.)
C. No Misconduct; No Prejudice
At the outset, we conclude that appellant forfeited any claims of asserted misconduct she now raises because trial counsel failed to object. (See People v. Friend, supra, 47 Cal.4th at pp. 29–30.) There is an exception to the objection requirement when “‘the misconduct [is] pervasive, defense counsel [has] repeatedly but vainly objected to try to curb the misconduct, and the courtroom atmosphere was so poisonous that further objections would have been futile.’” (Ibid.) There is no indication in this case that the prosecutor’s use of the word “knife” followed by repeatedly overruled objections led to a poisonous atmosphere that chilled further defense objection.
In any event, we conclude that there was no prosecutorial misconduct, and appellant suffered no prejudice from the prosecutor’s occasional use of the word “knife.” Some of the pages in the record to which appellant cites do not contain the word “knife” at all. Among the instances appellant cites where the word “knife” appears were: (1) In opening statement, the prosecutor said, “And the defendant has a knife near one of her hands. I believe it was her left hand—has a knife kind of concealed somewhat. Cassandra [sic] is able to see—the daughter, a little bit of this knife.”; (2) Upon redirect questioning of Sallie, the prosecutor asked, “If you are such a liar like defense counsel says you are, why didn’t you make up the fact that defendant had a knife . . . because if you were lying, why don’t you just make up that fact that she had a knife‌ . . . But you didn’t see a knife, did you‌”; (3) In direct examination of Chris, the prosecutor asked, “Tell us how you saw this knife or saw this metal object.” An objection was overruled. Subsequently the prosecutor asked, “And you said the defendant has a knife—she has a knife; correct‌” And “You said the word ‘knife.’ Right‌” An objection was sustained. “And when you said ‘she has a knife,’ can you show us how she was holding the knife‌”; (4) In closing argument, the prosecutor stated, “Arlene did state once she heard Chris say she’s got a knife. Arlene looked over the defendant and saw blood dripping down from her sleeve or hand.”; and (5) Again in closing argument, the prosecutor said, “Like I told you before, Arlene—Chris screamed out she had a knife, looked at the defendant, observed blood dripping from her hand and sleeve. That’s circumstantial evidence.”
As can be seen from the quoted passages, most of the uses of the word “knife” were in the context of Chris’s account of her words on the night of the incident. It was not misconduct for the prosecutor to elicit the exact words Chris uttered. Apart from opening statement, the prosecutor actually seemed careful to avoid definitive use of the word “knife” in other contexts. He refers to a knife or “metal object,” or to a “deadly weapon.” By asking Sallie why she did not lie and say she saw a knife when she did not, the prosecutor was not asserting in any way that appellant actually had a knife. In fact, it emphasizes that Sallie did not see a knife. We further observe that, in response to defense argument, the prosecutor asked the jury in his closing argument to read two of the jury instructions and verify that the word “knife” was not even mentioned. He explained that “the 12 of you just have to agree that the defendant used a deadly weapon. So it doesn’t have to be a knife. So you could all agree that nobody said they saw a knife 100 percent. . . . Even Chris[] said she didn’t see a knife 100 percent.”
We conclude that none of the asserted instances of misconduct, considered alone or together, fulfilled the definition of misconduct set out previously. The prosecutor’s instances of using the word “knife” did not result in an unfair trial in violation of appellant’s state and federal constitutional rights. Furthermore, even if we were to find that one or more of these instances constituted misconduct, we would find it harmless under any standard. (Chapman v. California (1967) 386 U.S. 18, 24 [standard of harmless beyond a reasonable doubt employed for federal constitutional error]; People v. Watson, supra, 46 Cal.2d at p. 836 [reasonable probability of a more favorable result is standard for assessing state law error].) The jury was well aware, by means of the testimony and the argument of defense counsel and the prosecutor, that no one saw an actual knife on the day of the incident.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




__________________, J.
ASHMANN-GERST


We concur:



__________________, P. J.
BOREN



__________________, J.
DOI TODD.


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