Filed 12/27/17 P. v. Butler CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT


THE PEOPLE,

Plaintiff and Respondent,

v.

REGINA LOUISE BUTLER,

Defendant and Appellant.
H043510
(Santa Clara County
Super. Ct. No. C1351802)

Defendant Regina Louise Butler appeals from a judgment entered after a jury found her guilty of first degree murder (Pen. Code, § 187). The jury also found that defendant personally used a deadly weapon in the commission of the offense (Pen. Code, § 12022, subd. (b)(1)). In a bifurcated proceeding, the trial court found that defendant had two prior convictions within the meaning of the “Three Strikes” law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) and two prior serious felony convictions (Pen. Code, § 667, subd. (a)). The trial court sentenced defendant to 75 years to life in prison consecutive to an 11-year term. On appeal, defendant contends: there was insufficient evidence of premeditation and deliberation to support her first degree murder conviction; and the prosecutor committed misconduct. We reject these contentions and affirm the judgment.

I. Statement of Facts
A. The Prosecution Case
Stanley Jacobson was 69 years old when he was murdered in 2013. His mental capacity was limited: he could not read or write or memorize telephone numbers; he was unable to follow three-step instructions; and he required assistance with his finances, car, and medical care. Christina Bauer was Jacobson’s granddaughter by marriage and had known him for approximately 30 years. Bauer became Jacobson’s primary caretaker after her grandmother’s death and she served in this capacity for six years.
Jacobson lived at Hilltop Manor, an apartment complex for low-income senior citizens, for 16 years. He received social security disability benefits of $860 every month. Bauer supplemented his income with $150 in cash and two cartons of cigarettes while other family members provided additional support. Jacobson usually had $150 left in his checking account at the end of each month. Jacobson’s cell phone was included on Bauer’s cell phone plan. Bauer programmed the phone to allow him to use it.
In December 2011, Jacobson met defendant. Defendant was unemployed, had been homeless for three to five years, and sometimes worked as a prostitute. Jacobson allowed defendant to stay in his apartment “off and on for over a year.” Bauer and Jacobson had disagreements on a weekly basis about defendant’s presence at the apartment because he risked losing his housing. After Philip Steffeck, the administrator of Hilltop Manor, began receiving numerous complaints from other residents regarding defendant’s visits, he also spoke to Jacobson and Bauer about the policy violations.
In 2012, Bauer noticed an unauthorized charge on her cell phone plan attributable to Jacobson’s phone number. This consisted of downloaded games and an order for multiple iPhones. Defendant also used Jacobson’s cell phone.
On February 23, 2012, Steffeck sent Jacobson a letter suggesting that he either not allow defendant to live in his apartment or move. The situation would improve for a time and then Jacobson and defendant would begin cohabiting again.
Around mid-December 2012, Bauer stopped providing financial support and cigarettes because she wanted Jacobson to “realize he’s going the wrong path.” Jacobson did not want to communicate with family members, did not answer the phone or the door, and stopped bathing. Jacobson “felt [Bauer] couldn’t be the boss of him and tell him he couldn’t have a relationship.” Jacobson also decided not to pay the rent. Since Bauer was financially responsible for Jacobson’s rent if he did not pay it, they argued about his decision between Christmas and New Year’s Eve 2012. Bauer’s relationship with Jacobson became very strained and he would no longer listen to her. They did not argue before Jacobson met defendant. Bauer spoke to Jacobson for the last time on February 2, 2013.
On February 7, 2013, Steffeck informed Jacobson that he was being evicted as of March 1, 2013 since he was not complying with the rules of Hilltop Manor. The letter was clipped outside Jacobson’s apartment. Steffeck asked Jacobson’s friend to read it to him. Steffeck could not remember whether the letter was read to Jacobson on February 7 or 8. On February 7, 2013, Jacobson’s cell phone was turned off.
At 3:00 p.m. on February 8, 2013, Officer Noe Longoria, a security supervisor at Regional Medical Center of San Jose, received a report of a female trying to manipulate the nurses’ charting computer. Officer Longoria found defendant at the charge nurse station and asked her whether she was trying to access one of the computers. She responded something to the effect of “Yes. Basically I work here.” When he asked where her employee badge was, she replied that she was new. Since he made and issued the employee badges, he felt that this was odd since he did not recognize her as a new employee. As he started to escort her to a more private area, Officer Longoria saw that she was trying to hide a hospital phone. Officer Longoria eventually arrested her for theft of the hospital phone and called the police. During the hour before she was transported by the police, Officer Longoria did not notice that defendant had any symptoms of being under the influence of alcohol or methamphetamine. Defendant was incarcerated from February 8 until February 14, 2013.
On February 15, 2013, Bauer went to Jacobson’s studio apartment. The door was unlocked. There were three big bags of garbage by the door and three raw pieces of chicken on the floor and one on the counter. This was unusual for Jacobson. The apartment smelled like rotten garbage. She threw out the garbage and the chicken and left a window open in the kitchen. There was also clothing and a stuffed bear on Jacobson’s bed. Bauer found Jacobson’s wallet in the laundry hamper in the bathroom, which was unusual since Jacobson never went anywhere without it. The wallet was also wrapped in a sweater that was not Jacobson’s. There was a gas card and an ATM card in the wallet, but no cash. Bauer was unsuccessful in accessing the ATM card because someone had changed the PIN. Jacobson did not know how to change the PIN. Bauer checked Jacobson’s gas card and AAA card and saw that they had not been used. She reported Jacobson missing three days later.
On February 22, 2013, Bauer went to the apartment with two police officers. They opened more windows, but the apartment still smelled bad. Since Jacobson would not have known how to contact family members or how to return to his home, Bauer went to over 70 homeless camps to see if anyone had seen him. She also posted flyers. Bauer returned to Jacobson’s apartment on February 28, 2013. It still smelled. She opened windows and left.
On March 7, 2013, defendant asked the maintenance person at Hilltop Manor to open the door to Jacobson’s apartment. He told her that he could not open it without permission from the manager. After Bauer was informed that defendant wanted to enter the apartment, she called the police. When Bauer arrived at Hilltop Manor less than 10 minutes later, defendant was walking away from the apartment. Bauer begged defendant to tell her where Jacobson was and told her that she had put up missing persons flyers. Defendant said that she had taken them down. Though defendant wanted to leave, Bauer convinced her to stay. Defendant said that she needed a bathroom, and Bauer told her that they could enter Jacobson’s apartment. According to Bauer, defendant was speaking rapidly, smacking her lips, and seemed fidgety.
When the two women entered the apartment, the smell was “really bad,” and Bauer began choking. Defendant entered the bathroom, but did not close the door. Defendant went through the laundry hamper, yelled at it, and kicked over the seat in the shower while Bauer locked the apartment door and waited for the police. Bauer eventually followed the smell and found Jacobson’s body under a foam egg crate mattress, clothing, and a stuffed bear on the bed. Bauer called 911 and stated that she had found the missing person. Defendant became hysterical. She later asked Bauer about a pipe. Bauer had found a glass pipe near some VCR tapes on a previous visit and smashed it.
Personnel from the fire department arrived and declared Jacobson dead. About an hour and 20 minutes after the 911 call, Officer Stephen Brownlee went to Jacobson’s apartment. He called the coroner and escorted everyone out of the apartment. He initially thought the circumstances involved an unattended death. Officer Brownlee told defendant to leave the area, but Bauer told him that defendant was the only person who would know what had happened to Jacobson. Defendant wanted to enter the apartment to retrieve her belongings, but Officer Brownlee did not allow her to do so.
Andrea Whelan, an investigator from the coroner’s office, arrived about 45 minutes after Officer Brownlee called her. She entered the apartment and when she reached the bed, she could smell decomposition in an advanced state. As part of her standard procedure, Whelan told Officer Brownlee to ask defendant if “anybody heard any yelling, or anything coming from this apartment.” At that point, the officer still believed that the death had been unattended. He reluctantly asked defendant, “Did you guys ever argue loudly?” She replied, “Yeah.” He asked, “Did you yell at him a lot?” She said, “Yes, I yelled at him.” Defendant then stated, “I never slapped him. Stabbed the fuck out of him.” Her demeanor was “matter of fact” and Officer Brownlee did not believe her. He did not observe her speaking rapidly, but her eyes were red or bloodshot.
While Officer Brownlee was speaking to defendant, Whelan conducted her investigation. She removed a stuffed bear, a quilt, a small piece of fabric, and a large piece of foam, which were covering Jacobson. She noticed a rip in his shirt and a corresponding wound on his abdomen. After removing several items stacked on the floor beside the body, she noticed that there were more defects in Jacobson’s shirt higher up on his chest. At that point, she alerted Officer Brownlee that there was “something abnormal” and that a CSI team was needed for further investigation. In response, Officer Brownlee detained defendant. He also told his supervisor that it was not an unattended death and he needed a tape recorder in case defendant made any other spontaneous statements. Defendant offered to help him locate Jacobson’s car and took him to the area around Regional Medical Center.
Meanwhile, Whelan suspected a murder had occurred and waited for additional investigators to arrive. Jacobson’s body was in a fetal position with his arms up by his face. There was a white cloth and a piece of red women’s underwear which were crumpled together in the area of his nose and mouth. Since his arms were covering his nose and mouth area, Whelan could not determine whether these items were inside his mouth. The white cloth had blood stains and purge, which was dark brown. Whelan explained that purge is the collection of decomposing fluids which originate in the lungs and exit the body through the nose and mouth. Purge would ooze out of the body and touch items close to the body. Whelan thought the purge “traveled just a few inches from his body.” The presence of purge indicated to her that the items were in and around either the nasal or mouth area of Jacobson. The underwear had very dark brown stains as well as maggots. Maggots indicated that the item has been pressed against decomposing flesh. When Whelan moved Jacobson’s body, there was a knife lying on the mattress next to his left shoulder. The knife was covered with dark red stains that could have been from decomposition.
On March 7, 2013, Sergeant Teresa Jeglum was the supervisor for the homicide investigation. The police were unable to locate any of Jacobson’s neighbors who saw or heard his murder.
Dr. Joseph O’Hara, a forensic pathologist working as a medical examiner, performed the autopsy on Jacobson. The cause of death was multiple stab wounds with penetration of the right lung and right carotid artery. Jacobson had been stabbed 34 times. The majority of the wounds were between one half to three inches deep. None exceeded three inches. There were seven stab wounds on the right side of his head, face, and neck. There were six stab wounds on the right side of his chest and abdomen. There were also stab wounds on his right thigh, the right side of his back, his right buttock and thigh, and the left side of his back. There were cuts on the bottom of his right hand and between his fingers. Four wounds were fatal. Two of the fatal wounds were to the right side of his neck. They were approximately three inches deep and transected the carotid artery, which supplies blood to the brain. The other two fatal wounds were on the right side of his chest and punctured his right lower lung lobe. They were about two and a half inches deep. Dr. O’Hara could not determine the position of either Jacobson or his assailant when he was stabbed. Due to decomposition of Jacobson’s body, he could not determine the angle of the wounds or what kind of sharp object had been used. He did not see any fibers consistent with cloth in Jacobson’s oral cavity.
Cordelia Willis, a criminalist, testified as an expert in the chemical properties of leuco crystal violet (LCV), the practical exercise of detecting LCV, and the area of blood stain patterns. Willis explained that LCV is a chemical that reacts with the hemoglobin from blood. When Willis suspects blood is present, she sprays LCV on the object. If blood is present, the object will turn purple. On May 1, 2013, she and another criminalist went to Jacobson’s apartment to look for possible blood stains and any evidence of blood stains that might have been cleaned up. There was blood above the back of the bed and in the bathroom. The stains behind the bed were mostly smears. The pattern of blood on the bathroom sink, the bathroom counter, the wall behind the sink, and the floor in front of the sink suggested that someone had tried to wash blood from his or her hands. There was a blood stain on the wall next to the sink that indicated that someone rubbed or wiped the wall in large circular patterns as if the person was washing the wall. There was also blood on the edge of the bathroom door. Willis’s tests were presumptive tests for blood, which had not been confirmed. She also could not state how long the stains had been present.
Michelle Bell, a criminalist, testified as an expert in the area of DNA and DNA analysis. She tested the red and brown stained areas on the front clasp area of a bra. She found a DNA mixture of three people, which included defendant as a possible contributor and Jacobson as a possible major contributor. Defendant was a contributor to the DNA on the back of the bra, but Bell could not reach any conclusions as to the identity of the minor contributor. She tested a blood swab from the bathroom floor and concluded Jacobson was the source of the DNA profile obtained. Jacobson was a possible contributor to the DNA profile from a knife blade swab. Jacobson was also a possible contributor to the DNA mixture on the knife handle, and defendant was excluded as a possible contributor. No conclusions could be made about the identity of the DNA found on a bathroom towel swab.
Detective Stewart Davies interviewed defendant following her arrest on March 7, 2013. She initially stated that she could not remember what had happened. However, she subsequently provided details of the stabbing. Defendant stated that she had “had quite a bit of alcohol and crystal” that day and she was suffering with the symptoms of menopause. Jacobson was lying on the bed and she was “dancing around like an idiot ‘cause [she] was so drunk” when she snapped. She was “pretty sure [she] just snapped because he . . . was acting weird in a way [she wouldn’t] tolerate.” He “was just being all whiney.” Defendant had a temper and a “low tolerance for ignorance.”
Defendant demonstrated for Detective Davies how she stabbed Jacobson. She straddled him and began stabbing him in the stomach and he “was fighting like crazy.” She used a serrated knife, which she got from the kitchen. She “stabbed the fuck out of him. [¶] . . . For a long time. He made a lot of noise.” She struggled with him “until he stopped moving” and “stayed there a little longer to make sure.” When she left, she knew he was dead because she “heard the air comin’ out of his gastrointestines for a long, long time.” She did not recall what she did with the knife, but she might have taken it with her. Defendant took Jacobson’s car, but did not remember where she left it. She told Detective Davies that the murder occurred one or two days prior to her arrest at Regional Medical Center.
Defendant stated that she knew the difference between right and wrong, but she did not think that what she did to Jacobson was wrong. She explained that she thought Jacobson was Jesus, she “was being really righteous,” and “like Jesus dies and then he comes back up.” She had “the utmost remorse” and thought that she killed Jacobson because she is “crazy.” According to defendant, “they say [she’s] bipolar.” But she thought she was “kinda schizo.” She also believed that she had multiple personalities and asserted that she had been hearing voices since she was a child. Defendant had “really wanted to” stab people many times, but did not do so because she knew the consequences. She denied that she intended to kill Jacobson when she went to his apartment that night.

B. The Defense Case
Part of defendant’s interview with Detective Davies was played for the jury. Defendant admitted taking money from Jacobson’s neighbor on the day that she stabbed Jacobson. She denied taking money from Jacobson’s bank account.

II. Discussion
A. Sufficiency of the Evidence
Defendant contends that the evidence was insufficient to support the finding of premeditation and deliberation.
“Where, as here, a defendant challenges the sufficiency of the evidence on appeal, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]” (People v. Hubbard (2016) 63 Cal.4th 378, 392.)
“ ‘A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill. [Citation.] “Deliberation” refers to careful weighing of considerations in forming a course of action; “premeditation” means thought over in advance. [Citations.]’ [Citation.] ‘ “Premeditation and deliberation can occur in a brief interval. ‘The test is not time, but reflection. “Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly.” ’ ” [Citation.]’ [Citations.] [¶] People v. Anderson (1968) 70 Cal.2d 15 (Anderson) discusses three types of evidence commonly shown in cases of premeditated murder: planning activity, preexisting motive, and manner of killing. [Citation.] Drawing on these three categories of evidence, Anderson provided one framework for reviewing the sufficiency of the evidence supporting findings of premeditation and deliberation. In so doing, Anderson’s goal ‘was to aid reviewing courts in assessing whether the evidence is supportive of an inference that the killing was the result of preexisting reflection and weighing of considerations rather than mere unconsidered or rash impulse.’ [Citation.] But, as we have often observed, ‘Anderson did not purport to establish an exhaustive list that would exclude all other types and combinations of evidence that would support a finding of premeditation and deliberation.’ ” (People v. Solomon (2010) 49 Cal.4th 792, 812 (Solomon).)
As to the first Anderson category of evidence, defendant contends that the evidence of planning was insufficient. We disagree. Planning activity is present when there are “facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing.” (Anderson, supra, 70 Cal.2d at p. 26.) Here, defendant obtained the knife from the kitchen prior to the stabbing. Though the apartment was small, the time needed to make a decision to go to the kitchen, to locate the knife, and return with it to the bed was sufficient for reflection.
As to the second Anderson category of evidence, defendant contends that there was insufficient evidence of motive. She argues that her “anger with Jacobson because he was doing something stupid, acting ‘fishy,’ or annoying her in a way she could not tolerate” established “an unconsidered, rash, impulsive killing.” Motive is shown by “facts about the defendant’s prior relationship and/or conduct with the victim from which the jury could reasonably infer a ‘motive’ to kill the victim.” (Anderson, supra, 70 Cal.2d at p. 27.) Here, there was evidence from which the jury could have reasonably concluded that defendant had a financial motive for killing Jacobson. Jacobson was about to be evicted from his apartment and thus would no longer be able to provide defendant with housing. By killing him, she could take whatever cash he had in his wallet. She could also take whatever money she could get from his bank account by using the PIN she had changed and the ATM card that she had hidden in the clothes hamper. Defendant argues that “the amount of money in his checking account was not the sort of sum worth killing for and hardly supplied a credible motive.” This argument fails. Given that defendant was about to become homeless again, her need for any amount of money was substantial.
As to the third Anderson category of evidence, defendant’s contention that the manner of killing did not establish premeditation and deliberation is not persuasive. Here, the manner of killing supported a finding that defendant killed Jacobson pursuant to a preconceived plan. The jury could have reasonably concluded that defendant placed the white cloth and women’s underwear over Jacobson’s mouth, so that none of his neighbors could hear him as he struggled. Defendant told the officers that the killing took a “long time.” She straddled him and stabbed him 34 times while he was lying on the bed. Two of the fatal wounds were to his neck and the other two fatal wounds were to his right lung. Defendant struggled with Jacobson until he stopped moving, and she “stayed there a little longer to make sure” that he was dead. The manner of killing provides substantial evidence that defendant weighed in advance how best to carry out the murder.
Defendant’s behavior after the stabbing is also relevant. (See People v. Perez (1992) 2 Cal.4th 1117, 1128 [“the conduct of defendant after the stabbing . . . would appear to be inconsistent with a state of mind that would have produced a rash, impulsive killing”]; see also Solomon, supra, 49 Cal.4th at p. 812 [Anderson factors are not exclusive].) Here, after defendant was certain that defendant was dead, she covered his body, cleaned up the blood on various surfaces, and left pieces of raw chicken to mask the smell of his decomposing body. This conduct was not consistent with someone who had acted rashly and impulsively.
In sum, there was sufficient evidence to support defendant’s first degree murder conviction on a premeditation and deliberation theory.

B. Prosecutorial Misconduct
Defendant contends that she was deprived of her Fourteenth Amendment right to due process and a fair trial by the prosecutor’s misconduct. She also contends that she was deprived of her Sixth Amendment right to the effective assistance of counsel by trial counsel’s failure to object to the misconduct. We conclude that there were no grounds for a defense objection.
1. Background
During pretrial proceedings, the trial court reviewed the video of Detective Davies’ interview with defendant at the parties’ request. The trial court stated: “And we are back discussing now the issue of the defense experts, specifically Dr. Stewart and Dr. Barnard. And we were having an off the record discussion regarding the scope of what these experts could testify to, the opinions to which they could testify, and more specifically, statements made by Ms. Butler, if any, to either one of these experts in which the experts relied in formulating opinions, and what statements of Ms. Butler were going to be put before the jury. [¶] . . . I’m not ordering Ms. Butler to testify, but if she intends to exercise her constitutional right, then I would order that she testify first before the experts testify, and that will solve the Court’s concern about which statements come in and which don’t.”
Defense counsel also sought rulings on the admissibility of expert testimony as to whether defendant’s voluntary intoxication caused her to blackout and whether she was suffering from posttraumatic stress disorder. Following argument, the trial court gave its tentative ruling that the expert witnesses could testify if defendant testified and laid a proper foundation.
During argument, the prosecutor argued that the defense was that defendant had a mental impairment which prevented her from formulating the specific intent to kill or that she was hallucinating. He then noted that the defense had the power to subpoena witnesses to testify at trial. He continued: “What I’m about to talk about is the Defense’s failure to call logical witnesses. Remember what I said about the law that says, watch out for self-serving statements in evaluating your evidence? Does the person have a personal interest in making these statements? [¶] Well, let’s consider this in this particular case. I suffer from this. I suffer from that. I’m bipolar. By the way, even if that were true it doesn’t eliminate the specific intent. It doesn’t mean because you have this you can’t form the specific intent. [¶] But let’s consider the evidence that’s been presented to you. Zero medical reports to show she’s bipolar. Zero to show she’s schizophrenic. No psych records. No jail records. No hospital admission records. You heard zero other witnesses. Fine. [¶] Let’s assume for the sake of argument we don’t have records. She has friends. She has acquaintances. No one can say, I saw her suffer this episode and she demonstrated something where she could not form the specific intent to [] kill. Zero evidence other than her self-serving statements. [¶] Think about that for a second because the subpoena power allows the Defense an opportunity to bring those witnesses forward to tell you about all the problems that the defendant has, and you saw zero of it.” There was no objection by trial counsel.


2. Analysis
In order to preserve a claim of prosecutorial misconduct on appeal, “ ‘ “a defendant must make a timely and specific objection and ask the trial court to admonish the jury to disregard the improper argument.” ’ [Citation.] A failure to ‘object and request an admonition will be excused if doing either would have been futile, or if an admonition would not have cured the harm.’ [Citation.]” (People v. Mendoza (2016) 62 Cal.4th 856, 905.)
Assuming the issue has not been forfeited, we conclude the prosecutor did not commit misconduct.
“ ‘ “ ‘A prosecutor’s . . . 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.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “ ‘ “the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.” ’ ” ’ [Citation.]” (People v. Navarette (2003) 30 Cal.4th 458, 506.)
Defendant acknowledges that a prosecutor may comment on the defense failure to call logical witnesses or to introduce other evidence that could have reasonably been expected to be introduced. (People v. Hughes (2002) 27 Cal.4th 287, 371-372; People v. Sanders (1995) 11 Cal.4th 475, 528-529.) However, relying on People v. Varona (1983) 143 Cal.App.3d 566 (Varona) and People v. Castain (1981) 122 Cal.App.3d 138 (Castain), defendant contends that a prosecutor may not argue the defense should have presented evidence that was excluded at the prosecutor’s behest.
In Varona, the defendants were convicted of false imprisonment and sex offenses. (Varona, supra, 143 Cal.App.3d at p. 568.) The defense was that the victim had solicited the defendants to engage in acts of prostitution, voluntarily went to a nearby house, voluntarily engaged in sexual acts, and became enraged when she discovered that they had no money. (Ibid.) The defendants sought to introduce evidence that the victim had pleaded guilty to prostitution. (Ibid.) The Court of Appeal held that the trial court’s exclusion of the evidence was an abuse of discretion. (Id. at p. 569.) It also held that the prosecutor committed misconduct when he “not only argued the ‘lack’ of evidence where the defense was ready and willing to produce it, but he compounded that tactic by actually arguing that the woman was not a prostitute although he had seen the official records and knew that he was arguing a falsehood.” (Id. at p. 570.)
In Castain, the defendant was convicted of battery on a police officer and resisting arrest. (Castain, supra, 122 Cal.App.3d at p. 141.) The defense was that the officer had used excessive force and thus was not acting within the scope of his duties. The defendant sought to introduce evidence from two individuals who claimed the officer had previously used excessive force. (Id. at p. 142.) The Court of Appeal held that the trial court’s exclusion of the testimony of one of these witnesses was an abuse of discretion and reversed the judgment. (Id. at p. 144.) The Court of Appeal also stated that it would “not dwell on the prosecutor’s obvious misconduct in arguing to the jury the evidence showed only one other incident where [the officer] allegedly had used excessive force, after the prosecutor himself had successfully urged exclusion of Murray’s testimony about a second incident.” (Id. at p. 146.)
In contrast to Varona and Castain, here, the prosecutor did not make an argument based on a falsehood. The trial court ruled that the evidence was admissible if defendant first laid a foundation for it. Defendant made a tactical decision not to offer such evidence. The prosecutor did not obtain exclusion of the evidence and later claimed that defendant’s failure to provide such evidence was evidence of guilt. Instead, the prosecutor properly commented on defendant’s failure to call either medical experts or friends to support her mental illness defense.

III. Disposition
The judgment is affirmed.







 




_______________________________
Mihara, J.



WE CONCUR:






______________________________
Elia, Acting P. J.






______________________________
Grover, J.












People v. Butler
H043510