Filed 3/27/18 P. v. Junior CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO


THE PEOPLE,
Plaintiff and Respondent,
v.
MELVIN JUNIOR,
Defendant and Appellant.

No. A150208

(San Francisco County Super.
Ct. No. 225693)


Defendant Melvin Junior appeals from a judgment of conviction for auto theft, entered after a jury trial. He contends the trial court erred by admitting evidence of his previous auto theft conviction and his “Grand Theft Auto: Vice City” video game tattoo because it was propensity and character evidence admitted in violation of Evidence Code section 1101, subdivision (a). He also argues the prosecutor committed misconduct in closing argument. We conclude the trial court did not err by admitting evidence of his prior auto theft conviction; that defendant forfeited his appellate claim regarding the court’s admission of evidence of his “Grand Theft Auto” tattoo; and that defendant does not establish the prosecutor committed misconduct. Therefore, we affirm.
BACKGROUND
In a July 2016 information, the District Attorney for the City and County of San Francisco charged defendant with unlawfully taking a vehicle (Veh. Code, § 10851, subd. (a)), and made various special allegations. The only issue in dispute was defendant’s intent in taking the vehicle, a Tesla Model S. The People contended he intended to steal it, while defendant contended he acted under the delusion that he was an FBI operative permitted to take the car as a part of his mission to stop a communist Chinese invasion of the West Coast.
I.
Pretrial Evidentiary Motions
Prior to trial, the prosecution moved under Evidence Code section 1101, subdivision (b) to present evidence that defendant had two prior vehicle theft convictions, both in 2004, which the prosecution contended was relevant to defendant’s intent in taking the Tesla. The defense wanted the evidence excluded as unduly prejudicial under Evidence Code section 352 and violative of his due process rights. The court granted the prosecution’s motion for one of the convictions, which occurred in October 2004. It concluded the second conviction, in June 2004, was dissimilar enough to the present offense to be more prejudicial than probative, but could be introduced for impeachment purposes.
The prosecution also moved in limine to present testimony of defendant’s appearance at the time of the incident, including a tattoo on his right forearm that read, “Grand Theft Auto,” as circumstantial evidence of his state of mind. The defense sought to exclude this evidence as irrelevant and unduly prejudicial under Evidence Code sections 350 to 352. The court ruled the evidence would not be admitted because it was more prejudicial than probative.
A jury trial followed. As we will discuss, evidence was presented regarding defendant’s October 2004 auto theft conviction and regarding his “Grand Theft Auto” and other tattoos. The court instructed the jury to limit its consideration of the auto theft conviction evidence to whether “defendant acted with the intent to deprive [the Tesla owner] of possession or ownership of the vehicle for any period of time.” It did not instruct the jury regarding the tattoo evidence specifically.
II.
The Evidence Presented at Trial
A. The Prosecution’s Eyewitnesses
Jacob Snow, a bartender at the Tempest bar, located on Natoma Street in San Francisco, testified that shortly after the bar opened at noon on November 1, 2015, defendant entered, shirtless, wearing a back brace and carrying a suitcase. Defendant put on a shirt at Snow’s request, went to the bathroom and came out four or five minutes later. He talked in a rapid and rambling manner about communism and said repeatedly, “[T]he reds are coming, the reds are coming.” He asked if Snow sold fake identification cards and said everyone needed one. He was perspiring and jittery, and seemed to be under the influence of something. Snow asked if he was going to buy something. Defendant did not answer, grabbed his things and left.
Snow further testified that about thirty seconds later, he saw defendant circle twice around a Tesla parked by a warehouse next door, throw his suitcase into the car’s open trunk and get into the car. Two men walked out of the warehouse, noticed defendant sitting in the car and tried to open the door, but could not. Snow saw them knocking and interacting, but could not hear what was said. He asked them through a window, “ ‘Hey, do you want me to call someone.’ ” One of the men said yes, so Snow called the police. The Tesla started up and hit a Toyota directly in front of it, making a loud bang. The Tesla backed up, went up on the curb and “sped down Natoma,” doing “a little fishtail” and moving “recklessly.”
The owner of the Tesla, Joel Brandt, testified that around 1:00 p.m. on the day of the incident, he was unloading six 50-pound wooden boards from his parked Tesla into a woodworking shop through the shop’s Natoma Street delivery entrance. Defendant walked into the shop and began talking. He did not seem “all there” and was not making a lot of sense. He said things like, “ ‘Why did you give me these clothes? Look at these pants.’ ” Brandt said defendant did not belong there and asked him to step outside. Defendant did not respond and Brandt, not wanting to confront a much bigger man, continued to unload boards, and defendant left the area.
About a minute later, Brandt noticed the Tesla’s trunk was closed and saw defendant getting in the car. Brandt went to the driver’s side door and told defendant a couple of times, “ ‘This isn’t your car, you can’t be in there, I need you to get out.’ ” Brandt rapped on the glass and gestured at defendant, but did not try to open the door. Defendant would “kind of look over [Brandt] and not really look at [him].” He said, “ ‘How do you start this car, how do I go?’ ” and “frantically” tried to figure out how to start the car.
Brandt testified that he went into the shop briefly and came back to the Tesla with a man who agreed to help him. The man asked defendant, “ ‘What’s going on man,’ ” and calmly said something like, “ ‘Maybe you should get out of this car.’ ” After about two minutes of trying, defendant started the Tesla, which could start as long as the key fob, in Brandt’s pocket, was in the vicinity. Brandt did not see defendant pull out, but did see him drive down the street at a not “exceptionally fast” speed. Someone gave Brandt a phone connected to a 911 operator, to whom Brandt spoke while tracking the Tesla on a smartphone application. With Brandt’s help, police recovered the car within minutes in a nearby hotel parking lot and Brandt went there. The car was properly parked in a parking spot and not damaged.
Eric Stevenson testified that Brandt (whose name he did not know) came up to him in the woodworking shop and said, “ ‘Hey, this guy is stealing my car, help me.’ ” Stevenson went with Brandt to the driver’s door of a Tesla Model S parked at the shop’s loading dock. A man inside the car was trying to start it. He was a “little panicked,” but “pretty nonchalant.” Stevenson told him, “ ‘Get out of the car. What are you doing dude, why are you doing this.’ ” The man said, “ ‘Hey, I’ll get out when you tell me how to start the car.’ ” Seeing the man would not get out, Stevenson testified, “we just said, ‘Hey, can you call the police now,’ whatever.” Stevenson went to his bag, got out his phone and called the 911 operator. The man started the car, hit a Toyota in front of it, backed up and “sped” away. Stevenson and Brandt used a tracking application of Brandt’s to tell the 911 operator the car’s location. The Tempest bartender also called and spoke to 911.
San Francisco Police Department Officer Patrick Woods testified that he heard the dispatch broadcast about the Tesla. He went to a hotel on Seventh Street, where he saw defendant get out of a Tesla in the hotel’s parking lot and approach a group of people. Defendant came over to talk to Woods at Woods’s request, and seemed to wonder what was going on or why was he involved.
B. Defendant’s Statement to Police
Sergeant Brian Stansbury of the San Francisco Police Department interviewed defendant at a police station on the day of the incident. Stansbury testified that defendant was “coherent, relaxed, talkative, friendly,” and did not display any signs of intoxication. A recording of this interview was admitted into evidence and played for the jury.
In the interview, defendant readily responded to a variety of questions about himself and his activities. He said someone had gotten his teen-aged daughter into prostitution, and that he was doing everything he could to find out about her. He took the car “[t]o get some attention,” and agreed it was “a cry for help” because he was looking for his daughter. He agreed that, as the inspector suggested, he picked the Tesla out of “opportunity.” He said he thought the “guy,” an apparent reference to Brandt, was his “handler,” and that defendant wanted to spend some time with his girlfriend after working so hard. He said that a “buddy” had driven him “all over the damn place” and insisted on driving to more places, so defendant exited the car, went to a bar, washed up and prayed, came out of the bar and “the guy pulls in, boom he’s got this nice ass Tesla.” Defendant asked the guy, “ ‘Are you a ride for me?,’ ” and the guy said, “ ‘Yeah.’ ” Defendant thought, “there’s a ride back to Tunisia.” He hopped in the car, which was “was not good obviously.” Defendant asked how to use the car and the guy showed him, and defendant then drove away.
Asked if he felt remorse for taking the car, defendant said, “Of course, absolutely,” and apologized. He said “there was no . . . ill intent. . . . [I]t was a cry for help.” When the inspector referred to the “stolen car,” defendant did not object. Asked if he had questions, defendant asked, “How do I work for you guys?,” and said his girlfriend was an informant.
C. Prior Acts Evidence
Krystelle Rogers testified that her 1990 Toyota Camry was stolen one day in the fall of 2004. She drove up to an apartment complex, parked in a driveway, shut off her car, left her keys in the ignition and walked over to a friend’s first floor apartment door. As she walked towards the door, a man walked by who had come from the apartment and seen her exit her car. Rogers saw her car being backed out of the driveway and reported it as stolen to the police. It was recovered two weeks later, but without her purse and belongings, including a very expensive ring. The parties stipulated that in October 2004 defendant pled guilty to the theft of Rogers’s car in violation of Vehicle Code section 10851, subdivision (a), which he was alleged to have violated in the present case.
D. Defendant’s Testimony
Defendant, 39 years old at the time of trial, testified that he had been prescribed numerous psychiatric medications in the past and received psychiatric treatment as far back as childhood. In 2004 he was treated for depression and hearing voices, and in 2007 and 2010 he was treated for depression, anxiety, and hearing voices. At his request, he received treatment for depression, hearing voices and anxiety in October 2015 and for the same from December 2015 through January 2016. He was also taking anti-seizure medication.
Defendant acknowledged he was convicted of two auto thefts in 2004, felony theft in 2010 and assault in 2012. In each case, he pled guilty because he was “dead bang guilty.” He was a younger man in 2004 and had “[a]bsolutely” become a different person since that time.
Defendant testified that in the weeks before the incident, he could not reach his daughter, which was very unusual. Voices told him she had been forced into prostitution in San Francisco. He heard her scream for help and thought he saw her and her mother in his Rodeo neighborhood, although they did not live there. On October 28, 2015, he and his girlfriend, Michelle, went to San Francisco, where they stayed in hotels. He searched for his daughter in areas of prostitution and showed pictures of his daughter to prostitutes and pimps. He started to believe he was an FBI operative fighting crime in San Francisco and working to stop a communist Chinese invasion of the West Coast, and thought he needed to do some undercover work for the FBI to help him find his daughter.
Also on October 28, 2015, defendant said, he started “binging” on drugs and alcohol, including methamphetamine, which he had last used in early September. He had some blackouts and remembered nothing about October 31, except being at St. Francis Hospital, where he told staff he wanted to be “5150’d,” i.e., be kept under observation for 72 hours, because he wanted to hurt himself. He was given an antipsychotic medication, but was not kept there.
Defendant said the next morning, November 1, he went with Michelle to a San Francisco café, where he took Xanax and put one to three grams of methamphetamine in his coffee. After arguing with Michelle, he went for a walk to clear his mind, bought a pint of alcohol and drank it. He told “central command” he had to change clothes to go undercover and a short time later, someone handed him a pair of jeans and a t-shirt, which he changed into in an alley. He then had a blackout and found himself in a car with an acquaintance on Natoma Street. Confused and concerned about Michelle, whose whereabouts were unknown to him, defendant got out of the car. He heard Michelle scream and say he had gotten her kidnapped. Worried that his acquaintance might be involved, he walked away and into the Tempest bar. He put on a shirt at the bartender’s request and went into the bathroom, washed, prayed and asked central command for instructions. He asked the bartender about a fake ID because he needed a new one to fake being communist and Chinese when the invasion occurred.
Defendant said he left the bar and walked towards a garage, where he saw the Tesla and Brandt, who looked “real familiar.” A voice said Brandt was his handler and would help with his mission. To be sure, defendant walked up to Brandt and said, “ ‘You know these clothes don’t fit, why did you guys give me these clothes?’ ” When Brandt apologized, defendant knew Brandt was his handler. Brandt told defendant to get out, which defendant thought meant he had to get out of San Francisco. Defendant asked if Brandt was his ride to “Tunisia,” code for Rodeo. When Brandt repeated that defendant had to get out, defendant assumed he was to return to Tunisia.
Defendant thought the Tesla was an FBI vehicle for his use during his mission. He put his suitcase in its trunk and got in its driver’s seat. Brandt approached and defendant asked how to start it. Brandt pointed to the dashboard and defendant saw, “Depress the brake”; he did, and the car started. He backed out and went down the street, drove by his hotel and stopped there to look for Michelle so they could return together to Tunisia. He parked and walked up to a group and asked if they had seen her. The police arrived and detained him. He spoke to an inspector, maintaining his cover as he tried to determine if the inspector would help or hinder him. The inspector did not respond to key code words, so defendant did not reveal himself. Defendant later learned his daughter was fine.
Prior to cross-examination, the prosecution argued defendant’s claim that he was a changed man since his 2004 auto thefts opened the door to questioning him about his “Grand Theft Auto” tattoo. The defense disagreed, but the trial court allowed the prosecution, as well as the defense, to ask about the tattoo. Defendant testified that he loved video games and had three video game tattoos, including a “Grand Theft Auto: Vice City” video game tattoo on his right arm that he had had since that game came out in 2001. The game was about someone doing missions who could steal or buy cars, and a person who stole a car just jumped in the car and took off.
E. Psychological Evaluations and Treatment
Dr. Martin Williams, a clinical and forensic psychologist, testified for defendant as an expert in bipolar and schizoaffective disorders, and psychosis. He interviewed defendant and reviewed medical records of defendant’s three years of psychiatric treatment, prescriptions for psychotic thinking and depression, and October 31, 2015 treatment at St. Francis Hospital, and defendant’s recorded police interview.
Williams testified that he thought defendant suffered from bipolar disorder, a mood disorder with possible psychotic symptoms and mania, and possibly from schizoaffective disorder, which had similar symptoms and could include auditory hallucinations, delusional thinking and disorganized behavior; defendant also had a well-established track record of psychosis and severe depression. Williams said bipolar and schizoaffective disorders were chronic and did not go away, but could include symptom-free periods. Methamphetamine use could cause a bipolar individual to become psychotic and exhibit rapid speech, sweat, jitters, and non-responsiveness. Illicit drug use could cause blackouts and “brownouts,” when a person had only bits and pieces of memories.
Williams thought defendant was psychotic the day of the incident; among other things, defendant operated under the delusion that the Tesla’s owner was his handler and that he was to take the Tesla as part of a plan he was supposed to follow. Williams did not think defendant was faking his delusional symptoms that day because he did not try to simulate mental illness during his recorded interrogation and his medical records showed a history of a disorder. Defendant did not exhibit objective signs of mental illness when he spoke to Williams.
As part of the People’s rebuttal to Williams’s testimony, Ian Albert, a therapist at the San Francisco County Jail responsible for assessing and evaluating mental illness, testified that he met with defendant in November 2015 after defendant reported to medical staff that he had bipolar dis order Albert could not recall the meeting, but reviewed his records of it. Defendant told Albert he had taken psychiatric medication in the past and been hospitalized around 2005, but had not taken medication in the last six years. This caused Albert to question whether he had bipolar disorder, since it required daily medication to prevent reoccurrences of illness. Albert did not look at records of defendant’s 2005 treatment, and did not think defendant’s condition then was relevant to his 2015 evaluation of defendant, especially since defendant did not display any symptoms to Albert. Defendant’s speech, thought content, and perceptions were within normal limits and defendant, although he said he was depressed, was smiling and “looking kind of cheerful and chipper.” Albert concluded defendant did not need any treatment. Also, defendant told Albert he had used a half a gram of methamphetamine daily for 20 years, a considerable amount.
The parties stipulated that mental health services were available to defendant from November 1, 2015, to November 18, 2015, but he did not receive any beyond his meeting with Albert; mental health services were available to defendant from February 1, 2016, to July 10, 2016, but he did not request any; and defendant did not receive any prescription medication from mental health services from November 1, 2015, to the end of July 2016. In surrebuttal, defendant testified that he told Albert he was having problems but, since Albert did nothing, he did not ask for help again.
III.
Verdict, Sentence and Appeal
The jury found defendant guilty as charged. After a bench trial the court found certain special allegations to be true. The court sentenced defendant to three years for vehicle theft and an additional year for his prior auto theft convictions, and struck a prior strike conviction. Defendant filed a timely notice of appeal.
 
DISCUSSION
I.
The Court Did Not Err by Admitting Evidence of Defendant’s October 2004
Auto Theft Conviction.
Defendant first contends the trial court violated his constitutional rights to due process and a fair trial by admitting evidence of his October 2004 auto theft conviction under Evidence Code section 1101, subdivision (b). We disagree.
Defendant was charged with unlawfully taking a vehicle in violation of Vehicle Code section 10851, subdivision (a). It provides in relevant part, “Any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle . . . is guilty of a public offense . . . .” (Italics added.) Whether defendant acted with this requisite intent was the only really disputed issue.
Evidence Code section 1101, subdivision (a) bars the admission of evidence of a person’s character or a trait of his or her character when it is offered to prove conduct on a specified occasion. However, Evidence Code section 1101, subdivision (b) allows “the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as . . . intent . . .) other than his or her disposition to commit such an act.” Thus, “ ‘[e]vidence that a defendant committed crimes other than those for which he is on trial is admissible when it is logically, naturally, and by reasonable inference relevant to prove some fact at issue, such as . . . intent . . . .’ ” (People v. Fuiava (2012) 53 Cal.4th 622, 667.) Admission depends on “ ‘(1) the materiality of the facts sought to be proved, (2) the tendency of the uncharged crimes to prove those facts, and (3) the existence of any rule or policy requiring exclusion of the evidence.’ ” (People v. Kelly (2007) 42 Cal.4th 763, 783.) “ ‘The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. . . . [T]he uncharged conduct must be sufficiently similar to support the inference that the defendant “ ‘probably harbor[ed] the same intent in each instance.’ ” ’ ” (People v. Foster (2010) 50 Cal.4th 1301, 1328.) “Evidence of uncharged offenses ‘is so prejudicial that its admission requires extremely careful analysis.’ ” (People v. Ewoldt (1994) 7 Cal.4th 380, 404, superseded by statute on other grounds as stated in People v. Robertson (2012) 208 Cal.App.4th 965, 991.)
Defendant argues, “[T]he prosecution’s theory of relevance was that ‘he has shown his intent to steal cars when the victim is nearby.’ . . . There was no evidence presented by the prosecution that illuminated appellant’s mental state during the 2004 auto theft from which it could be argued that appellant possessed the same mental state at the time of the instant offense. The substance of the prosecution’s theory of admissibility was that the existence of three charges of auto theft proved that appellant was an auto thief. This is an argument based on propensity. ‘[E]ven evidence properly admitted under Evidence Code section 1101, subdivision (b) cannot be relied upon to prove propensity or disposition.’ (People v. Barnwell [2007] 41 Cal.4th [1038,] 1057.)”
Defendant’s argument lacks merit. Evidence Code section 1101, subdivision (b), authorizes the admission of prior acts evidence to prove intent. Defendant contended he acted under a delusion that he had Brandt’s permission to take the Tesla, but the circumstances of his October 2004 offense suggested otherwise. Rogers’s testimony indicated defendant’s conduct then was similar—he got in her car and drove it away in broad daylight with her nearby. Contrary to his assertion that the 2004 evidence did not “illuminate[] [his] mental state” at that time, it included his pleading guilty to the same charge of auto theft, which plea indicated he intended to take Rogers’s car without her permission. (People v. Thomas (1986) 41 Cal.3d 837, 844, fn. 6 [“A plea of guilty admits every element of the crime charged”].) “ ‘[T]he recurrence of a similar result . . . tends . . . to negative . . . good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act . . . .’ ” (People v. Ewoldt, supra, 7 Cal.4th at p. 402.)
People v. Barnwell, upon which defendant relies, is inapposite. It involved evidence that the defendant previously owned a gun, introduced to show his “ ‘propensity to own or carry’ ” the type of weapon used in the charged murder (People v. Barnwell (2007) 41 Cal.4th 1038, 1055–1056, italics omitted), not evidence admitted as relevant to a disputed issue of intent, as occurred here and as the jury was instructed. (See People v. Boyette (2002) 29 Cal.4th 381, 436 [“the trial court properly instructed the jury on the law, and we presume the jury followed those instructions”].) In short, defendant does not establish the trial court erred by admitting evidence of defendant’s October 2004 auto theft conviction.
II.
Defendant Has Forfeited His Appellate Claim Regarding the Tattoo Evidence.
Defendant next argues the trial court prejudicially erred by improperly admitting propensity and character evidence in violation of Evidence Code section 1101, subdivision (a) when it admitted evidence of his “Grant Theft Auto” tattoo. The People disagree, and also argue defendant has forfeited this appellate claim by failing to raise it first in the trial court. We agree defendant has forfeited his claim and, further, conclude any purported error was harmless.
A. The Relevant Proceedings Below
As we have discussed, before trial, the prosecution sought to have evidence of defendant’s “Grand Theft Auto” tattoo admitted. Defendant sought to exclude it as irrelevant and unduly prejudicial under Evidence Code section 352. The trial court excluded it as unduly prejudicial.
After defendant testified that he had changed since his 2004 auto thefts, the prosecution renewed its request. It argued the tattoo evidence was now admissible because of the evidence presented about defendant’s mental state and defendant’s testimony that he was a changed man, even though “he still has a tattoo permanently on his body declaring that grand theft auto is a good thing.” The defense argued the tattoo was “completely irrelevant,” merely a video game logo, highly prejudicial and of no probative value, and that “nothing has changed since the Court’s motion in limine ruling initially.” The court admitted the evidence because defendant could explain it and his “changed man” testimony made it more probative than prejudicial. As we have discussed, defendant testified that he loved video games and had three video game tattoos, including a “Grand Theft Auto: Vice City” video game logo tattoo on his right arm that he had had since that game came out in 2001. The game was about someone doing missions who could steal or buy cars, and a person who stole a car just jumped in the car and took off.
B. Defendant Has Forfeited His Appellate Claim.
Evidence Code section 353, subdivision (a) prohibits reversal for the erroneous admission of evidence unless “[t]here appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated to make clear the specific ground of the objection or motion.” Our Supreme Court has instructed that, in accordance with section 353, subdivision (a), “ ‘no “particular form of objection” is required,’ ” but “ ‘the objection must “fairly inform the trial court, as well as the party offering the evidence, of the specific reason or reasons the objecting party believes the evidence should be excluded, so the party offering the evidence can respond appropriately and the court can make a fully informed ruling.” ’ ” (People v. Valdez (2012) 55 Cal.4th 82, 130 (Valdez).) The Valdez court concluded a defendant had forfeited his claim that gang evidence, including of his tattoos, was inadmissible propensity evidence under Evidence Code section 1101, subdivision (a) because he did not raise this specific objection below, instead arguing the evidence was “irrelevant, cumulative, lacking in foundation, or prejudicial.” (Valdez, supra, at p. 130.) The court concluded “these objections were insufficient to preserve for appeal the claim that the evidence was inadmissible under Evidence Code section 1101, subdivision (a).” (Id. at p. 130.)
We follow Evidence Code section 353 and Valdez here. In the trial court, defendant argued the tattoo evidence should be excluded as irrelevant and prejudicial under Evidence Code sections 350 to 352. He now argues the evidence was inadmissible as impermissible character and propensity evidence barred by Evidence Code section 1101, subdivision (a). Defendant contends his counsel’s objection during trial that the prosecution sought to use the tattoo evidence to show “that he’s [a] car thief” amounted to an objection to bad character or propensity evidence. We disagree. Counsel made this statement in the context of his larger objection about the undue prejudice and lack of probative value of the evidence, and he did not refer at all to Evidence Code section 1101, propensity evidence or character evidence. His statement did not fairly inform the court or the prosecution that the defense objected under Evidence Code section 1101, subdivision (a). Defendant has forfeited his claims. (Evid. Code, § 353; Valdez, supra, 55 Cal.4th at pp. 129–130.)
C. Any Error Admitting the Tattoo Evidence Was Harmless.
Given defendant’s forfeiture, we have no need to discuss the merits of his tattoo evidence claim. However, to forestall any claim that he received ineffective assistance of counsel, we briefly discuss our view that, assuming for the sake of argument the trial court should not have admitted the evidence, the error was harmless.
Essentially, defendant contended at trial that he took the Tesla under the delusion that he had Brandt’s permission as his FBI handler to use the car for his undercover mission, and argues the “Grand Theft Auto” tattoo evidence was unduly prejudicial to his defense because it literally and unfairly labeled him a car thief when he was in fact delusional that day. The prosecution, on the other hand, contended defendant was not delusional that day and deliberately stole the Tesla, consistent with his prior conduct as a car thief, which conduct he memorialized with his tattoo.
We need not endorse either point of view in our harmless error analysis because there was overwhelming evidence that defendant knew he did not have Brandt’s permission to take the Tesla, whether or not he erroneously believed Brandt was his FBI handler. Snow, Brandt and Stevenson testified that defendant, after entering the Tesla, was repeatedly told by Brandt and/or Stevenson, as they knocked on the Tesla to get his attention, that the Tesla was not his and that he should get out of it. They testified that they discussed and/or began calling the police as defendant attempted to start the car. Snow and Stevenson testified defendant started the Tesla and immediately hit the Toyota in front of him, but nonetheless then backed up and left. Defendant’s claim that Brandt showed him how to start the Tesla is contradicted by Brandt’s own testimony and conduct that day and entirely implausible. Further, defendant indicated in his recorded police interview that same day that he knew it was wrong to take the Tesla, even as he said certain things that were consistent with his purported delusions.
Nothing in defendant’s testimony or in the testimony of his expert, Williams (who did not consider the testimony of Snow, Brandt or Stevenson in his evaluation), about defendant’s psychological state of mind the day of the incident indicates he could not understand and appreciate what was being said or occurring around him that day. To the contrary, defendant indicated he understood what was said of him, and that he was capable of figuring out how to start the Tesla and drive it to the hotel where he was staying. His recorded interview with Sergeant Stansbury establishes he had ample ability to understand what was being said to him that day. Yet, defendant provides no explanation for why, upon being told repeatedly to exit the Tesla, he continued to try to start it, started it and drove the Tesla away, even after colliding with the Toyota. And as we have discussed, the court properly admitted the evidence of defendant’s October 2004 auto theft conviction, which evidence further establishes his criminal intent.
In light of this overwhelming evidence of criminal intent, the impact of his “Grand Theft Auto” tattoo, particularly in light of his other video game tattoos and testimony that he had the tattoo applied before his 2004 auto thefts and supposed change of heart, was negligible. Any error in admitting it was harmless under either the state or federal standard for error. (See People v. Watson (1956) 46 Cal.2d 818, 836 [state]; Chapman v. California (1967) 386 U.S. 18, 24 [federal].)
III.
Defendant Does Not Show Any Prosecutorial Misconduct Occurred.
Defendant also argues the prosecution engaged in prejudicial misconduct in closing argument by suggesting the defense was contrived and based on lies by defendant and Williams, requiring reversal of the judgment. We disagree.
“A prosecutor commits misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel.” (People v. Hill (1998) 17 Cal.4th 800, 832; People v. Young (2005) 34 Cal.4th 1149, 1193 [misconduct to call defense counsel “liars” to the jury].) Further, “[i]f there is a reasonable likelihood that the jury would understand the prosecutor’s statements as an assertion that defense counsel sought to deceive the jury, misconduct would be established.” (People v. Cummings (1993) 4 Cal.4th 1233, 1302.) However, “ ‘[r]eferring to the testimony . . . of a defendant as “lies” is an acceptable practice so long as the prosecutor argues inferences based on evidence rather than the prosecutor’s personal belief resulting from personal experience or from evidence outside the record.’ ” (People v. Dykes (2009) 46 Cal.4th 731, 773.) In conducting our inquiry, “ ‘we “do not lightly infer” that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements’ ” (id. at p. 772) and we “view the statements in the context of the argument as a whole.” (People v. Dennis (1998) 17 Cal.4th 468, 522.) “A finding of misconduct does not require a determination that the prosecutor acted in bad faith or with wrongful intent.” (People v. Kennedy (2005) 36 Cal.4th 595, 618, disapproved on other grounds as stated in People v. Williams (2010) 49 Cal.4th 405, 458–459.)
First, defendant contends the prosecutor committed misconduct by suggesting that defense expert, Dr. Williams, was testifying falsely when the prosecutor told the jury, “[Dr. Williams] has a product that he is selling and he tried to sell it to you,” and “[Dr. Williams] had an explanation for everything because he’s interested in how this case comes out. He’s being paid to tell you a very specific thing and anything that does not dovetail perfectly with that opinion he can’t admit to.” This was not misconduct. Williams testified that he was being paid $300 an hour by the defense up to a certain amount, that forensic psychology work was 100 percent of his practice and that he last practiced clinical psychology eight years before, that he testified in court every couple of months, that he testified more often on the defense side because they typically raised issues about a defendant’s mental state and that he had only testified once for a criminal prosecution. In light of this evidence, the prosecutor’s comments were not misconduct. As our Supreme Court stated about similar comments by a prosecutor regarding an expert in People v. Shazier (2014) 60 Cal.4th 109, 148–149, the prosecutor’s comments, “though harsh and colorful, were fair comments on the evidence, and they validly assailed the witness’s impartiality and professional credibility.” (Id. at p. 149.)
Second, defendant contends the prosecutor improperly asserted that defendant had lied when the prosecutor told the jury, “You also heard Dr. Williams remind you or tell you that often people facing criminal charges will have a reason to lie. And Mr. Junior’s story and what he wants you to believe is just not true. The things that Mr. Junior wants you to believe do not make sense, they do not comport with reality in terms of what the evidence has shown and what the unbiased facts have borne out during the testimony of this case.” The prosecutor also said a short time later, “Mr. Junior lied about the things that he has to, the intent, and he admits the things that he must, that everyone else is going to come in and testify to.” We have no issue with this line of argument given the evidence, including the overwhelming evidence of defendant’s criminal intent that we have already discussed. (People v. Dykes, supra, 46 Cal.4th at p. 773; see People v. Williams (2016) 1 Cal.5th 1166, 1188-1189 [prosecutor’s reference to defendant’s first defense as a “lie” and the scramble to present an alternative defense not an improper attack on defense counsel].)
Finally, defendant argues that the prosecutor improperly cast aspersions on defense counsel when the prosecutor said, “Don’t go down the rabbit hole of the contrived, fake story about Mr. Junior’s mental health.” We disagree that the prosecutor intended this statement as an attack on defense counsel or that there was a reasonable likelihood the jury would construe it as such, especially since the prosecutor said it immediately after urging the jury to “reject the defendant’s incredible, unreasonable story.” Viewing the comment in context, the prosecutor plainly was arguing defendant had contrived a story, not his counsel.
In short, defendant fails to show the prosecutor engaged in any misconduct during closing argument. Given this conclusion, we do not address the People’s contentions about forfeiture, or the parties’ debate over whether any misconduct was prejudicial or harmless.
DISPOSITION
The judgment is affirmed.
 




STEWART, J.



We concur.




KLINE, P.J.




RICHMAN, J.






















People v. Junior (A150208)