P. v. Adcock

Filed 3/24/09 P. v. Adcock CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

----

A jury convicted defendant Mark Adcock of first degree murder (Pen. Code, 187, subd. (a), 189; undesignated statutory references that follow are to the Penal Code) and found true special circumstance allegations that the murder was committed within the course of a robbery ( 190.2, subd. (a)(17)(A)) and a burglary ( 190.2, subd. (a)(17)(G)). Defendant was sentenced to state prison for life without the possibility of parole.

On appeal, defendant contends the judgment must be reversed because (1) the evidence was insufficient, (2) the prosecutor violated Brady v. Maryland (1963) 373 U.S. 83 [10 L.Ed.2d 215] (hereafter Brady) by failing to gather and furnish to the defense information on the credibility of a prosecution witness, (3) the prosecutor committed misconduct, and (4) the trial court received the verdicts in an improper manner. We affirm the judgment.

Facts and Proceedings

The murder

Daryl Sussdorf owned and operated Nugget Auto Sales, a used car dealership in Sacramento. He ran the business by himself, without any employees. He provided the financing for his customers; they would purchase their cars and make payments at the dealership later. Sussdorf recorded the payments on account cards and in a receipt book. When an account was paid off, Sussdorf would deliver the title document to the customer.

Most of Sussdorfs customers paid with cash, so he often had a lot of cash at the dealership. He commonly carried several hundred dollars in his wallet or pocket. He did not make a bank deposit every day; instead, he would do so after accumulating a lot of money. He kept a moneybag in the office for making deposits.

The door to the dealerships office locked automatically, so Sussdorf knew who was coming and going. The office had two floors. There were security cameras outside the dealership but they did not work. On two occasions, codefendant Russell Jones had purchased cars from Sussdorf.

In January 2005 (all of the events described herein occurred in 2005 unless otherwise indicated), Sussdorfs wife was suffering from terminal cancer. Their daughter, Kathy Jenson, was caring for her. Sussdorf and Jenson spoke by telephone approximately five to 10 times per day.

On January 21, at about 4:15 p.m., Lonette Cannon went to the dealership and paid Sussdorf $400. He was alone. Cannon chatted with him for a few minutes and then left at 4:30 p.m.

Jenson last spoke to Sussdorf at about 5:00 p.m. that evening. After that, she telephoned him several times but he did not answer or return her calls. He would usually arrive home at about 6:45 p.m. or call to say that he was running late.

By 7:00 p.m., Jenson was very concerned because neither she nor her mother had heard from Sussdorf. She sensed that something was wrong, so she picked up her fianc, Chris Valenzuela, and went to the dealership. While enroute, Valenzuela telephoned 911 and told the Sacramento County Sheriffs Department about the situation.

Jenson and Valenzuela arrived at the dealership at about 8:15 p.m., and her brother, Dale Sussdorf, arrived soon afterward. Valenzuela started looking around. The office door was locked and the blinds were closed, but Valenzuela could see inside by looking through the gaps between each blind. He saw a large amount of blood and papers scattered about.

Sacramento County Sheriffs Deputy Quis Formoli arrived a few minutes after Jenson and Valenzuela. Dale Sussdorf kicked open the door and Formoli went inside.

There was blood in many places on the first floor of the building, including on the floor, on the blinds, and under the desk chair. Skull fragments and soft tissue were on a wall, and body tissue was on the floor. In addition, there was blood on the staircase, blood dripping down an upstairs wall, and blood on the upstairs carpet.

Sussdorf was sitting in a chair on the second floor. His jeans were down below his knees. His head was bleeding profusely and he was gasping for air. He did not respond to Deputy Formoli.

Deputy Formoli went back downstairs and told Valenzuela about Sussdorfs condition. Valenzuela, who was a firefighter and emergency medical technician, went upstairs with Formoli. They administered first aid until paramedics arrived.

The paramedics removed Sussdorfs clothing in order to treat him. A detective later examined Sussdorfs jeans and observed that the right rear pocket had been torn from the seams that attached it to the pants. There was no money in any of the pockets.

Behind the desk on the first floor, sheriffs deputies found an empty tan wallet. It looked very similar or identical to Sussdorfs wallet. A bank bag was present in the office.

A receipt book was on the desk on the first floor. It contained a receipt dated January 21 for 400 from Lonette Cannon. Also on the first floor, deputies found an account card with codefendant Joness name written in Sussdorfs handwriting. There was blood on the bottom of the card. The card was found with other account cards and was not the only card with blood on it. No money was found in the office.

Sussdorf had suffered 11 blows to his head. Ten days later, he died of his injuries. The injuries were consistent with blows from a hammer.

Defendants admissions to J.B.

J.B. met defendant in 1992 or 1993. They lost contact but in 2004 they resumed their social relationship and used heroin together. J.B. later stopped using heroin and underwent Methadone and Cyboxin treatment.

One day during a telephone conversation, defendant told J.B. that defendant was in trouble. Defendant began to say that he had been with someone who had beat[en a] man up side his head . . . with a hammer. J.B. told defendant to stop talking because the police might be listening, and to speak with him in person instead.

J.B. then met defendant at the Methadone Clinic in Sacramento, where they both were patients. Defendant told J.B. the following: he and another guy went to hit a lick, which means to rob someone, at an auto dealership. The victim was an old man. They stripped (robbed) the victim and, while they were doing so, defendants cohort went crazy and started beating the victim with a hammer. This spooked defendant, who went outside and acted as a lookout.

Defendant told J.B. that he and his companion took $800 from the victim. Afterward, they used the money to purchase crack cocaine and heroin and got high. Defendant did not tell J.B. that the victim had died; J.B. learned that from the news.

J.B. informed investigator Andre Lemay of the California Department of Justice that he knew about the crime. Lemay put J.B. in contact with the Sacramento Sheriffs Department. J.B. then told Detectives Cabral and Kolb what defendant had told him.

J.B. later learned that a foundation was offering a $5,000 reward in connection with this crime. He told Lemay that he hoped to qualify for the reward. He could get the reward if there was a conviction.

In 1998, J.B. had been convicted of felony burglary. Then in 2004, he had been convicted twice of that offense. He served a prison sentence for the 1998 conviction. After that conviction, he became a police informant. He had provided information to Andre Lemay on occasion. He had also provided information to the Oakland Police Department. For his convictions in 2004, he received consideration in sentencing because he was providing information to law enforcement.

J.B. informed the Sacramento County District Attorneys Office that defendants friends and family had called him and threatened his life. The District Attorneys Office relocated him for his safety. The office spent about $22,300 on J.B., including moving expenses, hotel stays, periodic rent payments, and return trips to testify. The office does not pay his daily living expenses. That was the only money that J.B. received for providing information about this case.

Defendants arrest and statements to law enforcement

On February 23, after speaking with J.B. and obtaining an arrest warrant, Detectives Cabral and Kolb, together with other officers, arrested defendant in San Francisco. During the ride back to Sacramento, defendant waived his Miranda (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694]) rights and spoke with the detectives. The conversation was recorded but road noise made the recording difficult to hear.

Defendant told the detectives that he and codefendant Jones walked from Joness home to the dealership to do a lick, which means a robbery. Defendant waited at the corner while Jones went inside. When Jones came back outside, they walked to a bus stop.

The detectives interviewed defendant on videotape when they returned to Sacramento. During the interview, defendant said the following: J.B. was a family friend. On the day of the crime, Jones was wearing a puffy black jacket and red gloves. Jones was in Sussdorfs office for a total of 10 to 15 minutes. Jones told defendant that he had hit Sussdorf several times because he did not want Sussdorf to come after him. During the bus ride afterward, Jones showed defendant Sussdorfs wallet, which contained checks from Nugget Auto Sales. Jones took $860 from Sussdorfs pocket, and he and defendant spent it on drugs and a motel room. The duo stayed in the motel from the Friday to the Sunday following the murder. The murder weapon, a hammer, was disposed of there. Jones was worried about blood being on his jacket.

Defendant told the detectives that a lick was like a petty theft or like going into a grocery store. It also meant getting money from someone. At one point during the interview defendant stated that, prior to the robbery, Jones would not tell him how he was going to get the money. At another point, defendant stated that Jones had told him he might be able to get into the office and grab some cash while the person who worked there was dealing with customers. Defendant did not know that Jones planned to carry out a strong-armed robbery. Defendant denied ever leaving the sidewalk during the robbery, and he told the detectives that they should check the security cameras to verify this.

Defendant was consistent in his story to the detectives. He expressed willingness to help the detectives, and he volunteered to wear a wire, to make a pretextual telephone call to Jones, or to be placed in a room with Jones and have the conversation recorded. The detectives used the last two techniques.

It was stipulated that on the day of the attack, defendant and Jones checked into a Motel 6 in Sacramento, checked out two days later, and paid in cash.

Searches of Joness residence

Joness house was searched on the day of his arrest. The search yielded a pair of gloves that were made of red fibers that matched fibers found on Sussdorfs jeans.

The search also yielded a receipt dated April 21, 2003. Daryl had handwritten on the receipt that he had received $250 from Jones and was still owed $1,158.

The search also yielded a hammer.

A few days after the search, detectives returned to the Jones residence and asked Joness mother whether she had a black puffy jacket. Joness mother retrieved a black puffy jacket from Joness bedroom closet. Bloodstains on the jacket contained Sussdorfs DNA. Joness mother testified that she did not know whose jacket it was, but she had seen Jones wearing a puffy jacket. A photograph of Jones taken the month before the attack appeared to show him wearing the jacket.

Defense

J.B. had been relocated to Sacramento after having testified in a San Francisco homicide. In an affidavit supporting defendants arrest warrant, Detective Kolb wrote that J.B. was a mercenary informant, meaning a person who supplies information for money. The affidavit also said that J.B. was known as a reliable informant who had provided reliable information on serious cases in the Bay Area.

One or two days after the attack, Detective Kolb posted reward notices near the dealership. The notices said that Sussdorf had been brutally assaulted at his place of business. There was news coverage of the crime, and the police held a press conference. At the conference, the police did not release the details of the homicide, such as the fact Sussdorf had been beaten. When J.B. spoke with Kolb, he provided information that had not been released to the public.

Codefendant Jones did not present any evidence.

Discussion

I

Sufficiency of the Evidence

Defendant contends the judgment must be reversed because there was insufficient evidence of first degree felony murder and insufficient evidence of the burglary-murder and robbery-murder special circumstances.

We consider these claims in turn, but preliminarily, we note that defendant also contends there was insufficient evidence that he or Jones premeditated and deliberated the murder. But [t]he special circumstance finding[s] show[] the jury relied at least on a felony-murder theory in finding defendant guilty of first degree murder. Accordingly, we need not consider whether the evidence would also support a finding of premeditation. [Citations.] (People v. Valencia (2008) 43 Cal.4th 268, 289.)

To determine sufficiency of the evidence, we must inquire whether a rational trier of fact could find defendant guilty beyond a reasonable doubt. In this process we must view the evidence in the light most favorable to the judgment and presume in favor of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. To be sufficient, evidence of each of the essential elements of the crime must be substantial and we must resolve the question of sufficiency in light of the record as a whole. (Peoplev.Carpenter (1997) 15 Cal.4th 312, 387, quoting Peoplev.Johnson (1993) 6 Cal.4th 1, 38; see Jacksonv.Virginia (1979) 443 U.S. 307, 317-320 [61 L.Ed.2d 560, 572-574].)

A. First Degree Murder

In California, the first degree felony-murder rule is a creature of statute. [Citation.] When the prosecution establishes that a defendant killed while committing one of the felonies section 189 lists [including burglary and robbery], by operation of the statute the killing is deemed to be first degree murder as a matter of law. [Citation.] Under the felony-murder rule, a strict causal or temporal relationship between the felony and the murder is not required; what is required is proof beyond a reasonable doubt that the felony and murder were part of one continuous transaction. [Citation.] (People v. Young (2005) 34 Cal.4th 1149, 1175.)

It was undisputed that, in a continuous transaction, defendant accompanied Jones to the dealership; Jones went inside the office and robbed Sussdorf; Sussdorf was bludgeoned with a hammer during the robbery; and he died of his wounds.

The evidence was sufficient to prove that defendant participated in the burglary and robbery. According to J.B.s testimony, defendant admitted that he and another person went to the dealership to hit a lick, meaning to commit a robbery; that defendant and his companion stripped the victim, meaning that they robbed him; that while they were doing so, defendants companion went crazy on the old man and beat him with a hammer; and that the attack spooked defendant who then went outside and acted as a lookout.

Except where additional evidence is required by statute, the direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact. (Evid. Code,

411; see People v. Richardson (2008) 43 Cal.4th 959, 1030-1031.) J.B.s testimony was sufficient proof of defendants participation in the felony murder. It shows that defendant went to the dealership for the purpose of committing a robbery; that he participated in stripping, or robbing, the victim; and that his participation was neither accidental nor merely negligent.

Defendant argues the evidence was insufficient because J.B. was not credible. However, it is the exclusive province of the trial judge or jury to determine the credibility of a witness. (People v. Maury (2003) 30 Cal.4th 342, 403.)

Defendant also argues that J.B. was an accomplice whose testimony required corroboration. Specifically, he claims that J.B. was an accessory after the fact because he did not immediately tell the police about defendants admissions. The argument fails because an accessory after the fact is not an accomplice. ( 32, 33; People v. Sully (1991) 53 Cal.3d 1195, 1227.)

Defendant claims the prosecution failed to establish the corpus delicti of the murder independent of his admissions to J.B. He relies on this courts opinion in People v. Parker (1954) 122 Cal.App.2d 867, in which the crime was assisting an inmate to escape from jail. The inmate was a trustee who needed no assistance to escape. (Id. at p. 873.) Although there was abundant evidence that he had, in fact, escaped, no evidence other than the defendants admission suggested that the inmate had received any assistance. (Id. at pp. 873-874.)

Here, in contrast, there was abundant--and undisputed--independent evidence that the felony murder had been committed. Defendants identity as a participant in the crime was not a part of the corpus delicti; it could be proved by his words alone. (People v. Valencia, supra, 43 Cal.4th at p. 296.)

B. Special Circumstances

The jury found true two special circumstances: defendant committed the murder while engaged in the crimes of burglary and a robbery. ( 190.2, subd. (a)(17)(A) & (G).) Because it was Jones who attacked Sussdorf with a hammer, defendant was liable for the special circumstances if he (1) was a major participant in the commission of the burglary or robbery, and (2) acted with reckless indifference to human life. ( 190.2, subds. (c) & (d).)

The term reckless indifference to human life means subjective awareness of the grave risk to human life created by his or her participation in the underlying felony. [Citation.] (People v. Proby (1998) 60 Cal.App.4th 922, 928.) This amply describes defendants mental state. He knew that Jones had gone crazy on Sussdorf and had started beating him with a hammer. By then going outside and acting as a lookout knowing that Jones was beating Sussdorf with a hammer, defendant displayed a reckless indifference to human life.

In sum, the murder verdict and special circumstance findings are supported by substantial evidence. (Peoplev.Carpenter, supra, 15 Cal.4th at p. 387.)

II

Discovery

Defendant contends the prosecutor violated Brady by failing to seek information regarding witness J.B. from agencies that were not involved in this case. We disagree.

A. Defendants discovery request

In October 2007, defendant filed a motion in limine seeking to exclude J.B.s testimony unless previously requested information [was] made available to the defense regarding bias, credibility and veracity . . . . Defendant did not identify any specific evidence that he was seeking.

At a hearing on the motion, defendants counsel argued that he needed information about J.B.s prior conduct as an informant so he could demonstrate that J.B. was fabricating his testimony about defendants confession in order to reap a financial reward. Counsel admitted that the prosecution had given him J.B.s rap sheet.

The prosecutor responded that the prosecution did not have any documentation on J.B.s history other than the rap sheet; nor did it have any information about his prior activities as an informant or his testimony from previous trials. The prosecution had given the defense everything it had concerning J.B., including the rap sheet, two or three impeachable felonies, and a list of expenditures the prosecution had undertaken to provide for J.B. The prosecutor added that both parties knew about the reward in this case. In addition, defendant possessed the name of J.B.s handler at the California Department of Justice, Andre Lemay, and had the opportunity to interview him. Defense counsel said he had called Lemay once or twice but Lemay had not called back.

Defense counsel conceded that the prosecution had given the defense everything it had but asserted that the executive branch of the government has information through law enforcement on [J.B.] Defense counsel requested an Evidence Code section 402 hearing in order to question J.B. about his history as an informant.

Defense counsel further explained that he wanted the prosecution to provide police reports from the cases in which J.B. had been convicted. The prosecutor said that he did not have those reports. The court asked whether these were Sacramento cases, and the prosecutor responded, I think some are and some arent. Defense counsel interjected, its between the Bay Area and Sacramento. The prosecutor noted that the defense had possessed J.B.s rap sheet for a long time and could have ordered the police reports. The court deferred ruling on defendants discovery request and request for an Evidence Code section 402 hearing (Further references to section 402 are to the Evidence Code).

B. J.B.s testimony at the Evidence Code section 402

hearing

Before J.B. testified in front of the jury, the trial court held an Evidence Code section 402 hearing, as defendant had requested. J.B. was the only witness and gave the following testimony: in the past, he has been an informant for Special Agent Andre Lemay. He first became an informant for Lemay in 2003. He talked to Lemay from 2003 to 2005. He last spoke with Lemay on the day he was relocated, in about March 2005.

J.B. had given information to Lemay, and later had testified, in an Alameda County murder trial. Afterward, the Oakland Homicide Detail assisted J.B. in moving away from Alameda County.

J.B. did not know how many times he had give Lemay information that started an investigation. He and Lemay had talked on the telephone a vast amount of times about a vast amount of different things. The present case was the only matter where J.B. gave Lemay information about a criminal investigation that was already ongoing. Lemay had never paid J.B. for providing information, and J.B. did not receive payment from any other source.

In 2004, J.B. was sentenced in an Oakland burglary case. He received a benefit, in that after having violated parole he was sentenced to jail rather than sent back to prison. At about the same time in another case, a charge of first degree burglary was reduced to second degree burglary, and J.B. received probation.

J.B. had continued to act as an informant since the last time he spoke with Lemay, but he refused to say for whom unless defendant was removed from the courtroom. Before 2005, J.B. had been an informant for the Alameda County Narcotics Task Force, the Oakland Police Department Narcotics Task Force, and the Oakland Homicide Detail.

The Sacramento District Attorneys Office relocated J.B. and his family because of information he provided in this case. The office paid J.B.s relocation expenses and stuff pertaining to that. J.B. did not receive anything from any other source in connection with this case. J.B. had asked Lemay if there was a reward in this case, and Lemay said there was a $5,000 reward.

C. Analysis

In Brady, the United States Supreme Court held that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. [Citation.] The high court has extended the prosecutors duty to encompass the disclosure of material evidence, even if the defense made no request concerning the evidence. [Citation.] The duty encompasses impeachment evidence as well as exculpatory evidence. [Citation.] Such evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.] [T]he reviewing court may consider directly any adverse effect that the prosecutors failure to respond might have had on the preparation or presentation of the defendants case. [Citations.] Defendant has the burden of showing materiality. [Citation.] (People v. Hoyos (2007) 41 Cal.4th 872, 917-918.)

In this case, defense counsel was seeking evidence that [J.B.] had given false information in the course of his long career as an informant. On appeal, defendant argues the prosecutor was duty-bound to seek this Brady material from other agencies not involved in this case. We disagree.

Under Brady, the prosecutors duty extends to evidence known to the others acting on the governments behalf [citation], [b]ut the prosecution cannot reasonably be held responsible for evidence in the possession of all government agencies, including those not involved in the investigation or prosecution of the case. . . . [I]nformation possessed by an agency that has no connection to the investigation or prosecution of the criminal charge against the defendant is not possessed by the prosecution team, and the prosecutor does not have the duty to search for or to disclose such material. [Citation.] [Citations.] (People v. Zambrano (2007) 41 Cal.4th 1082, 1133.)

Defendant does not contend the prosecutor failed to obtain information in the possession of the Sacramento County District Attorney or the Sacramento County Sheriff.

Defendants claim of prejudice relies in part on a discussion of J.B. in an unpublished opinion of the Court of Appeal, First Appellate District. Rather than rely on the opinion as legal authority (Cal. Rules of Court, rule 8.1115, subd. (a)), defendant asks that we take judicial notice of the opinion. We decline to do so, because the opinion is not relevant under the doctrines of law of the case, res judicata, or collateral estoppel. (Cal. Rules of Court, rule 8.1115, subd. (b); see also In re Bush (2008) 161 Cal.App.4th 133, 146, fn. 5.)

Defendants claim of prejudice also appears to rely on a February 2008 online news article, retrieved via the search engine Google, recounting the arrest of a person with the name of the informant, who resided out of state, for investigation of first degree murder. Because the murder occurred on February 19, 2008, after this trial concluded on February 1, 2008, it could not have shed any light upon J.B.s credibility.

Defendants Brady claim has no merit.

III

Evidence of J.B.s Relocation

Defendant contends the prosecutor committed misconduct by eliciting evidence that J.B. was relocated for safety reasons, and by making improper comments in his opening and closing summations. However, his failure to object forfeited any claim of prosecutorial misconduct or error by the trial court. [Citations.] (People v. Lancaster (2007) 41 Cal.4th 50, 81-82.)

Perhaps anticipating this conclusion, defendant contends his trial counsels failure to object constitutes ineffective assistance. We consider defendants points in turn.

A. Relocation of J.B.

Defendant claims the prosecutor committed misconduct in his direct examination of Dale Joe, an investigator for the Sacramento County District Attorneys Office, by implying that J.B. was in potential danger or possible danger and that J.B. needed to be relocated for witness protection reasons. Defendant reasons that, [b]y leading jurors to believe threats were made to [J.B.], the prosecutor not only implied facts [defendant] could not possibly rebut satisfactorily; he prompted the jury to speculate that [defendant] authorized the making of threats and to infer therefrom that [defendant] was a murderer, ready to have [J.B.] killed just as he was ready to help kill Sussdorf. (Citing People v. Mason (1991) 52 Cal.3d 909, 947, and People v. Weiss (1958) 50 Cal.2d 535, 554 [evidence of anonymous threat not connected with the defendant should at once be suspect as . . . an endeavor to prejudice the defendant before the jury in a way which he cannot possibly rebut satisfactorily because he does not know the true identity of the pretender].) We are not convinced.

The prosecutors questioning of Joe did not violate any court ruling. (Compare People v. Batts (2003) 30 Cal.4th 660, 669 [question elicited statutorily inadmissible evidence that had been excluded by court order].) Conduct by a prosecutor that does not violate a court ruling is misconduct only if it amounts to the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury [citations] or is so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process [citation]. (People v. Silva (2001) 25 Cal.4th 345, 373.)

Even if it was subject to an objection under Mason and Weiss, there was nothing deceptive or reprehensible about the prosecutors questioning. (People v. Mason, supra, 52 Cal.3d at p. 947; People v. Weiss, supra, 50 Cal.2d at p. 554.) Nor was the questioning so egregious that it denied defendant due process. (People v. Silva, supra, 25 Cal.4th at p. 373.)

In any event, the testimony elicited by the prosecutor--that the government concluded a paid informant should be relocated for safety reasons--is not the kind of evidence that would unduly bias the jury. Defendant would not have fared any better had this evidence been excluded. Assuming the prosecutor committed misconduct, it was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.)

B. Vouching for J.B.s credibility

In his opening summation, the prosecutor told the jury: what do we know about [J.B.]? We know that for years law enforcement has considered him to be a reliable informant. Thats why he gets used. Law enforcement is not going to use somebody who lies to them. It doesnt do us any good to present witnesses who lie. Thats not what we are here to do. No prosecutor, no police officer wants to convict somebody based on phony evidence. It violates our oath. It violates everything we are here to do. [] So [J.B.] is used because he is good at what he does. He gets information, and when he hears it, he turns it over.

It is misconduct for prosecutors to bolster their case by invoking their personal prestige, reputation, or depth of experience, or the prestige or reputation of their office, in support of it. [Citation.] Similarly, it is misconduct to suggest that evidence available to the government, but not before the jury, corroborates the testimony of a witness. [Citation.] [Citation.] (People v. Riggs (2008) 44 Cal.4th 248, 302.)

The prosecutors argument was based on J.B.s testimony, elicited by defense counsel, that he had acted as an informant for Agent Lemay for two years and, before that, he had acted as an informant for the Oakland Police Department. The prosecutors deductions that law enforcement had found J.B. reliable--and thus that he is good at what he does--followed logically from the fact that he had continued to be used for a period of years. The prosecutors argument did not address evidence available to the government, but not before the jury. (People v. Riggs, supra, 44 Cal.4th at p. 302.)

The prosecutors arguments that it doesnt do us any good to present witnesses who lie, that [n]o prosecutor, no police officer wants to convict somebody based on phony evidence, and that [i]t violates our oath. It violates everything we are here to do, did not attempt to invoke the prestige, reputation, or depth of experience of the prosecutor or his office. (People v. Riggs, supra, 44 Cal.4th at p. 302.) Nor did these arguments attempt to claim, as a matter of fact based on evidence not presented to the jury, that the prosecution witnesses were telling the truth. (Cf. United States v. DeLoreto (3d Cir. 1989) 888 F.2d 996, 999.) Rather, the arguments appear to follow logically from the constitutional bar against intentionally using perjured testimony. (Giglio v. United States (1972) 405 U.S. 150, 153 [31 L.Ed.2d 104].)

We note that defendant cites DeLoreto, supra, 888 F.2d 996 for the proposition that prosecutorial vouching is reversible per se. However, in United States v. Zehrbach (3d Cir. 1995) 47 F.3d 1252, 1254, the Third Circuit overruled DeLoreto insofar as it established a per se rule.

Defendant suggests the prosecutors comments were improper because some police and prosecutors do use people who lie to them. Defendant offers no empirical or other evidence of police or prosecutors suborning perjury, but, in any event, a timely objection and admonition could have avoided any alleged impropriety. (People v. Riggs, supra, 44 Cal.4th at p. 298.) It is not reasonably probable that defendant could have fared any better had the claimed objectionable remarks been clarified. (E.g., Peoplev.Avena (1996) 13 Cal.4th 394, 418.)

C. Misleading argument

1. Background

Sussdorf provided financing for his customers; they would return to the dealership to make payments. Most customers paid in cash. Sussdorf often had a lot of cash at the dealership and commonly carried several hundred dollars in his wallet or pocket.

Behind the desk on the first floor, sheriffs deputies found an empty tan wallet. It looked very similar or identical to Sussdorfs wallet.

Defendant told police that during the bus ride after the crime, Jones had showed him a tan wallet that contained checks from Nugget Auto Sales. According to defendant, Jones admitted having taken the wallet from Sussdorfs front pocket.

In front of Joness jury but not defendants jury, Detective Cabral testified that Jones admitted that, after the attack, he had seen Sussdorfs wallet and it had contained checks from Nugget Auto Sales. Portions of the interview were played for the Jones jury. According to the interview transcript, Cabral noted that defendant and Jones had met at a bus stop and then asked about the wallet. Jones said, I know the wallet that--that--that someone brought out. And, uh, it wasnt me. Thus, Jones implied it was defendant who had removed the wallet from Sussdorfs office. When asked about the wallets color, Jones initially said it was [p]robably black like his own wallet. Cabral responded, Black? and Jones replied, No. Mines brown. Brown. Jones also said he possessed the wallet for only a few seconds while they were on the bus.

The Jones jury also heard a recording of a telephone conversation between defendant and Jones. In the conversation, defendant asked Jones, what did you do with that wallet, blood? Jones answered that it was in the garbage. Defendant asked Jones if his fingerprints were on it, and Jones said they were not.

During closing summation, the prosecutor discussed the evidence placing defendant inside Sussdorfs office. In this context, the prosecutor commented on the significance of defendants statement about Sussdorfs wallet: But [defense counsel] goes on and on and says give me one shred of proof, give me one thing that shows that [defendant] was in that business. I will give you one thing. Peoples 53-A, the wallet, okay? And some of you may already know this or have been thinking about it, but let me play this for you again.

At this point, the prosecutor played a tape recording, apparently of defendant telling the police that Jones had shown him a tan wallet while they were on the bus.

The prosecutor then stated: Whats the problem with that? The wallet never left the business. The wallet is recovered in the business. He gets it wrong. He forgets and he says I saw it on the bus and he knows it is a tan wallet. Its tan. It has a little fingerprint powder on it, but it is a tan wallet. He saw the wallet and the only way he sees the wallet is to be inside the business, folks. There is your evidence. There is your proof he was inside the business. The only way he sees that wallet is to go inside.

2. Analysis

[A] prosecutors knowing use of false evidence or argument to obtain a criminal conviction or sentence deprives the defendant of due process. (People v. Sakarias (2000) 22 Cal.4th 596, 633.) To support such a claim, the defendant must show that the prosecutors argument was physically impossible or indisputably false and the prosecutor knew it. (Cf. People v. Morrison (2004) 34 Cal.4th 698, 717 [where witnesss testimony was not physically impossible or demonstrably false, prosecutor did not commit misconduct by relying on it in closing argument].)

Defendant has not made the required showing. The police talked to defendant and Jones separately. Both men admitted having observed a tan or brown wallet containing checks from Nugget Auto Sales. Both men had an incentive to claim that their observations had occurred somewhere other than the dealership. Thus, both claimed that they observed the wallet on a bus ride.

Each man had a further incentive to shift responsibility for his having seen the wallet onto someone other than himself. Thus, defendant claimed that Jones had admitted taking the wallet from Sussdorfs front pocket. Conversely, Jones admitted that someone brought out the wallet from the dealership but claimed it wasnt [him].

Defendant recognizes that no second wallet was ever recovered by police, and that no evidence other than the defendants statements places a wallet on the bus. The premise of his misconduct claim is that the prosecutor was duty bound to accept that a wallet had been seen outside the dealership because, in their statements, both defendants had said so. Since the self-serving statements do not show that the prosecutors argument was physically impossible, and at best engender dispute as to whether the argument was false, no misconduct is shown. (People v. Morrison, supra, 34 Cal.4th at pp. 716-718.)

D. Detectives belief in defendants guilt

In summation, defense counsel argued that the testimony of Detectives Cabral and Kolb supported his clients claim of innocence because the detectives were fair and just did their job, and they had testified that defendant was cooperative during the investigation.

In closing summation, the prosecutor referred back to this argument and asserted that people who cooperate with the police may lie to them or withhold the truth. He then said: And remember, folks, these same detectives who [defense counsel] admits are professional, hard working, great people doing their job, are the same people who arrested his client for murder and are the people who brought us this case here today. It was their judgment that he is a murderer. (Italics added.)

A prosecutor may not express a personal opinion or belief in the guilt of the accused when there is a substantial danger that the jury will view the comments as based on information other than evidence adduced at trial. [Citations.] The danger that the jury will view the prosecutors expressed belief in the defendants guilt as being based on outside sources is acute when the prosecutor offers his opinion and does not explicitly state that it is based solely on inferences from the evidence at trial. [Citation.] (People v. Lopez (2008) 42 Cal.4th 960, 971; see People v. Bain (1971) 5 Cal.3d 839, 848.)

In this case, the prosecutor voiced the detectives belief, not his own. Their belief predated, and assertedly culminated in, this case here today. Because the prosecutor did not state that the detectives belief had been based upon inferences from evidence later presented at trial, there was some danger that the jury would view the detectives belief as being based on information other than the evidence adduced at trial. (People v. Lopez, supra, 42 Cal.4th at p. 971.)

Nevertheless, not all such comments are improper. Rather, [t]he prosecutors comments must . . . be evaluated in the context in which they were made, to ascertain if there was a substantial risk that the jury would consider the remarks to be based on information extraneous to the evidence presented at trial. [Citations.] (People v. Lopez, supra, 42 Cal.4th at p. 971.)

Viewing the prosecutors remarks in context, we find no error. He effectively argued that the detectives, whose testimony the defense argued supported defendants claim of innocence, were the same people who (1) formed the judgment that he is a murderer, then (2) arrested [defendant] for murder, and then (3) brought us this case here today. The most plausible inference is that the detectives brought the jury the same facts that had underlay their judgment that defendant was a murder. The risk that the jury would consider detectives judgment to be based on information extraneous to the evidence [subsequently] presented at trial was not substantial on this record. (People v. Lopez, supra, 42 Cal.4th at p. 971.)

Defendant further contends the prosecutor committed misconduct by telling the jury what the detectives opinions allegedly were, even though he could not have elicited the detectives opinions of defendants guilt. (People v. Coffmanand Marlow (2004) 34 Cal.4th 1, 77.) However, the prosecutors rebuttal was a fair comment on the defense argument and was not misconduct. (People v. McDaniel (1976) 16 Cal.3d 156, 177.)

In any event, the prosecutors comment was not prejudicial. The jury knew that the detectives had arrested defendant for murder. The comment that the detectives believed him guilty of the crime for which they had arrested him could not have come as a surprise. The remark was harmless by any standard. (People v. Watson, supra, 46 Cal.2d at p. 836; Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711].)

IV

Taking the Verdict

Defendant contends the trial court erred in taking the verdict. Specifically, the court erred by (1) failing to ask the foreperson whether the jury had arrived at a verdict, and (2) asking the jurors whether they had reached a verdict instead of whether they had agreed on a verdict.

A. Background

On December 6, 2007, the trial court was informed that the jury had reached a verdict. The jury was brought into the courtroom. The court said, Ladies and gentlemen, we had a communication that the jury has reached a verdict; is that true? The reporters transcript reads: [DEFENDANTS] JURY: (So say all.) At the courts request, the foreperson handed the verdict to the bailiff. The court asked the clerk to read the verdict, and the clerk did so.

The trial court asked, Ladies and gentlemen of the jury, is that your true and correct verdict? The transcript reads: [DEFENDANTS] JURY: (So say all.). The court asked if any member disagreed with the verdict as the court had read it and instructed any juror who disagreed with the verdict to raise his or her hand. The court then said, The record should reflect that there are no hands raised.

The trial court asked counsel if either party wanted further polling. Both counsel said they did not. The court instructed the clerk to record the verdict, and the clerk complied.

B. Analysis

Section 1149 states: When the jury appear they must be asked by the Court, or Clerk, whether they have agreed upon their verdict, and if the foreman answers in the affirmative, they must, on being required, declare the same.

Defendant contends the trial court violated this statute by (1) failing to ask the foreperson whether the jury had reached a verdict, and (2) asking the jurors if they had reached a verdict rather than asking whether they had agreed upon their verdict.

Where a jury is incompletely polled and no request is made for correcting the error, such further polling may be deemed waived by defendant, who cannot sit idly by and then claim error on appeal when the inadvertence could have readily been corrected upon his merely directing the attention of the court thereto. (People v. Lessard (1962) 58 Cal.2d 447, 452.) Here, defendant did not object that the trial court had failed to ask the foreperson if the jury had reached a verdict, or that the court used the words reached a verdict instead of agreed on a verdict. Defendant has forfeited his claims on appeal.

In any event, there was no error. Section 1149 requires the court to ask the jury, not just the foreperson, whether they have agreed upon a verdict. The statute then provides that, if the foreman answers in the affirmative, they must, on being required, declare the same. Here all jurors, necessarily including the foreperson, answered in the affirmative. The court required no further declaration, and none was given. Nothing in the record suggests that an immediate repetition of the question would have yielded a different answer.

Although the trial court asked whether the jury had reached a verdict, not whether it had agreed upon a verdict, the jury had been instructed on the requirements of a unanimous verdict and knew that, in order to reach a verdict, all of you must agree to it. In this context, the terms reached a verdict and agreed upon a verdict meant the same thing.

Section 1163 states: When a verdict is rendered, and before it is recorded, the jury may be polled, at the request of either party, in which case they must be severally asked whether it is their verdict, and if any one answer in the negative, the jury must be sent out for further deliberation. (Italics added.)

Defendant claims the trial court failed to follow section 1163, because it did not poll[] jurors severally rather than collectively. However, both counsel expressly declined the trial courts offer of further polling. By its terms, section 1163 requires that jurors be polled severally only upon request. Here, there was no request and no error.

Disposition

The judgment is affirmed.

HULL , J.

We concur:

SCOTLAND , P. J.

BUTZ , J.

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