People v. Baxter

Filed 11/23/05 P. v. Baxter CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, v. KERRY LYNDE BAXTER, Defendant and Appellant.

A105111 (Alameda County Super. Ct. No. C141955)

Kerry Lynde Baxter timely appeals from a judgment sentencing him to 66 years to life in state prison. On October 15, 2003, a jury found Baxter guilty of second degree murder with a true finding on two firearm enhancements; guilty of attempted murder with a true finding on one firearm enhancement; and guilty of possession of a firearm by an ex-felon. (Pen. Code, §§ 187, 664, 1203.06, subd. (a)(1), 12021, subd. (a)(1), 12022.53.)

Baxter contends (1) the prosecutor’s peremptory challenges of four African-American prospective jurors violated his constitutional rights; (2) the trial court erroneously admitted evidence of his criminal character; (3) the admission of Lawana Wyatt’s out-of-court statements to the police violated his confrontation rights; (4) the court erred in admitting evidence of the deceased victim’s character for peacefulness; (5) the court erred in allowing testimony by a police officer regarding the credibility of other witnesses’ statements; and (6) the prosecutor committed misconduct during closing argument. We affirm.

BACKGROUND

On the night of March 30, 2001, Anthony Blake, an innocent bystander, was shot and killed by a stray bullet while standing outside the Club Martinique (the Club). A second victim, Jhamani Jones, was shot in the foot after he argued with Baxter that night.

A. Evidence Presented by the Prosecution

1. Testimony of Witnesses Who Heard Gunshots and Saw Jones and Baxter Running From the Crime Scene

Witnesses testified they saw Blake, Baxter and Jones at or outside the Club that night. Sometime after 10:00, they heard gunshots. Blake was not inside the Club at that time; he was just outside smoking a cigarette. After the gunshots, Blake fell to the ground with a bullet hole in his chest.

The shots came from Maple Street downhill from the Club. The Club’s bouncer saw Jones running uphill on Maple Street from that direction. He did not see a gun in Jones’s hand. Another witness standing in his home’s driveway near the Club told police he saw Baxter come running past him almost a minute after hearing the shots. He did not see anything in Baxter’s hands.[1]

2. Testimony of Jhamani Jones

Jones had felony convictions for vehicle theft and robbery, and an outstanding warrant for domestic abuse in Merced County.

Jones knew Baxter through some friends. The night of the shooting, Jones went to the Club at about 10:00 p.m. Once there, a friend told Jones that Baxter was there and had a gun. Jones went over to talk to Baxter. There was a rumor circulating at the time that Jones had broken the window on Baxter’s car with a BB gun and Jones wanted to talk to Baxter to clear his name.

Jones asked Baxter if they could talk outside. Baxter patted Jones’s midsection to see if Jones had a gun. Jones testified he did not have a gun on him that night. Jones and Baxter left the Club and walked downhill on Maple Street. Jones told Baxter he was not responsible for the broken car window, but Baxter wanted Jones to pay to repair it. During their conversation, Baxter was operating his two-way pager and Jones felt like he was wasting his time. Baxter asked Jones if he had a weapon; Jones testified he told Baxter that “maybe” he did because he was nervous. Jones grew tired of explaining he did not break the car window and finally “said F it. I’m through with it.”

Jones started to walk away from Baxter. As he did so, Baxter made another comment, and Jones turned to see Baxter holding a gun. The gun was pointed in Jones’s direction (toward the Club), but at the ground. When Jones saw the gun’s flash, he fled, running up the hill toward the Club. Jones heard Baxter fire five or six shots at him. At the time, Baxter was about half a block away from the Club.

One of the shots hit Jones in the arch of his left foot. Jones then ran to an apartment building, and asked someone there to call the police. He ran on to the home of Lanetta Burkes (the aunt of some friends of his) and asked the family there to call the police and an ambulance for him. Jones told the family Baxter had shot him because of the broken window. But Jones asked them not to tell the police this because he planned to say he did not know who had shot him. Jones planned to retaliate against Baxter by shooting him. Jones waited at Burkes’s home until the police and paramedics arrived. He had surgery to remove a bullet lodged in the top of his left foot.

Jones at first told the police he was standing outside the Club smoking when somebody just started shooting; he did not tell them that Baxter shot him. Jones later revealed Baxter had shot him when the police said they were going to charge Jones with Blake’s murder.

3. Testimony of Lanetta Burkes and Latoya Wallace

Lanetta Burkes and her daughter Latoya Wallace confirmed Jones’s testimony that after the shooting he knocked on the door of their home and asked them to call 911. A recording of the 911 call was played for the jury. In the recording, Jones can be heard in the background saying “Somebody told that nigga I busted his windows man” and “I don’t play with no B.B. guns man.” Jones told Burkes and Wallace that Baxter had shot him, but asked them not to tell the police this. Jones told Burkes he was going to handle the matter himself by killing Baxter. Both Burkes and Wallace complied with Jones’s request not to tell the police who shot Jones. But they later told the police what Jones had told them after the police said Jones wanted them to tell the truth. Both Burkes and Wallace testified they did not see a gun on Jones that night.

4. Testimony of Michelle Franklin

Michelle Franklin knew Baxter as the boyfriend of her sister, Lawana Wyatt. Franklin lived near Maple Street. The night of the shooting she heard what sounded like four gunshots coming from that street. As Michelle stood inside her doorway, Baxter ran past her and into her house. He told Michelle to shut the door and turn off the lights. Soon after, Michelle left Baxter alone in her house, and he was gone when she returned later that night.

Lawana Wyatt came to Franklin’s house the following afternoon and removed a black canvas bag from the living room closet. About a month earlier, Baxter had given this bag to Franklin, who stored it in her bedroom closet. There was a silver handgun inside the bag. Baxter retrieved the gun from the bag about two weeks before the night of the shooting. Franklin did not know how the black bag had been moved from her bedroom closet to her living room closet.

5. Testimony of Police Officers and Experts

The police received two emergency calls reporting that Jones had been shot, corroborating Jones’s testimony regarding people at two homes near the shooting calling 911. Officers went to Lanetta Burkes’s home and found Jones there with a gunshot wound in his foot. After Jones was taken to the hospital, a gunshot residue sample was taken from him. Neither the prosecution nor the defense ever had the sample tested.

The doctor who conducted the autopsy on Blake concluded he died from a bullet wound to the chest. The condition of the bullet inside Blake’s body indicated it had ricocheted off of something before hitting Blake.

In investigating the shooting, the police did not find any weapons. However, they did find two expended shell casings on the sidewalk of Maple Street in the same place that Jones said the shooting occurred. According to a ballistics expert, it was absolutely certain that the same .380-caliber semiautomatic handgun fired the two recovered shell casings, but the bullets retrieved from the bodies of Blake and Jones could not be matched to the two casings.

The ballistics expert testified that the condition of both bullets was consistent with them having ricocheted off a hard object before hitting Blake and Jones. He also testified there was a greater than 90 percent probability that the same weapon fired these two bullets.

A medical expert testified a bullet entered the bottom of Jones’s left arch or sole, and then lodged beneath the skin in the top of his foot. The bullet’s trajectory indicated the bullet entered below the foot. The expert opined the bullet could have entered the sole of Jones’s foot when the sole was exposed as Jones either walked or ran.

B. Evidence Presented by the Defense: Baxter’s Testimony

Baxter testified that the night of the shooting, he was sitting at the bar at the Club, feeling buzzed from two or three drinks, when Jones came in. At Jones’s request, Baxter went outside with Jones to talk in private.

Sometime earlier, someone had told Baxter that the rear window of his mother’s car had been shot out. He found out that Jones was probably responsible. Baxter took the shot-out window as a threat to his safety – he felt “targeted.” He retrieved the gun which he had stored at Michelle Franklin’s house and started to carry it for protection. He had the gun on him the night of the shooting. The gun was a .380-caliber chrome pistol.

Baxter and Jones walked down the hill from the Club toward Maple Street and then Baxter stopped. Jones was upset about a rumor he heard Baxter had put out that Jones had shot out the car window. Baxter answered a page while listening to Jones. Baxter had not put out the rumor and asked Jones what had happened. Jones said he should kill Baxter. Baxter put away his pager and tried to calm Jones down. He told Jones he was not upset about the window.

Jones told Baxter he did not play with BB guns. Baxter told Jones he was acting like a punk because Jones probably knew who had shot out the window. Baxter told Jones to tell the truth.

Jones turned sideways as if he were going to walk up the hill, and then back toward Baxter. Baxter saw Jones had a handkerchief “on his hand” and a gun. Jones then fired one or two shots in Baxter’s direction. Thinking Jones was trying to shoot him, Baxter defended himself by pulling out his gun and firing two or three shots. Baxter was facing up hill toward the Club as he fired. When Baxter saw Jones running away, Baxter stopped firing and ran in the opposite direction. But on cross-examination, Baxter agreed that at some point while he was firing his gun, Jones was running away from him. Baxter denied he was trying to kill Jones, testifying he was “just trying to repel his attack.”

Baxter ran to Michelle Franklin’s house and went inside. Baxter had not been shot and did not know if anyone else had been. Baxter told Franklin to shut off the lights. Baxter knew he was not supposed to have a gun because he had been convicted of a felony – assault with a deadly weapon. When he left Franklin’s house, he left his gun under a door mat behind the stairs.

The next morning, Baxter and Lawana Wyatt picked up the gun and a black canvas bag from Franklin’s house. After he heard Blake had died, Baxter threw the gun off the San Mateo bridge. He fled to Nevada, but later turned himself in. He never intended to kill Blake and only fired at Jones in self-defense.

DISCUSSION

I. Peremptory Challenges of African-American Prospective Jurors

Before trial, defense counsel objected on Batson-Wheeler[2] grounds to seven peremptory challenges used against African-American prospective jurors. On appeal, Baxter argues the prosecutor’s peremptory challenges of four of these prospective jurors violated his state and federal constitutional rights. We conclude the trial court properly denied defense counsel’s Batson-Wheeler motions with respect to these jurors.

“ ‘The use of peremptory challenges to remove prospective jurors on the sole ground of group bias violates the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution [citing Wheeler, supra, 22 Cal.3d at pp. 276-277] as well as the equal protection clause of the Fourteenth Amendment to the United States Constitution. [Citing Batson, supra, 476 U.S. at p. 89]’ [Citation.] ‘A party who suspects improper use of peremptory challenges must . . . make a prima facie showing that one or more jurors has been excluded on the basis of group or racial identity . . . . Once a prima facie showing has been made, the prosecutor then must carry the burden of showing that he or she had genuine nondiscriminatory reasons for the challenge at issue.’ [Citation.] ‘ “[T]he trial court must then decide . . . whether the opponent of the strike has proved purposeful . . . discrimination.” ’ [Citation.]” (People v. Ward (2005) 36 Cal.4th 186, 200 (Ward).)

“The party seeking to justify a suspect excusal need only offer a genuine, reasonably specific, race or group-neutral explanation related to the particular case being tried. [Citations.] The justification need not support a challenge for cause, and even a ‘trivial’ reason, if genuine and neutral, will suffice.” (People v. Arias (1996) 13 Cal.4th 92, 136 (Arias).) A prospective juror may be excused based upon bare looks and gestures, hunches, and even arbitrary reasons. (Wheeler, supra, 22 Cal.3d at p. 275; People v. Turner (1994) 8 Cal.4th 137, 165 (Turner).)

“ ‘The trial court’s ruling on this issue is reviewed for substantial evidence.’ [Citation.] ‘We review a trial court’s determination regarding the sufficiency of a prosecutor’s justifications for exercising peremptory challenges “ ‘with great restraint.’ ” [Citation.] We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court’s ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal.’ ” (Ward, supra, 36 Cal.4th at p. 200.)

Based on its own observations of the voir dire process in this case, the trial court expressed some reservation about whether Baxter had made a prima facie showing with respect to several of the jurors who were the subject of defense counsel’s Batson-Wheeler motions. But in order to allow both counsel to make a record regarding the issue, the court found in “the interests of justice” that such a showing had been made.[3]

The record indicates the trial court listened carefully to counsel and the prospective jurors, and observed their demeanor. The court considered this in making “as sincere and reasoned an effort to evaluate” the prosecutor’s justifications as it “possibly” could. The court properly considered the fact that two African-Americans (one male, one female) were left on the jury, but acknowledged this fact was not dispositive. (Ward, supra, 36 Cal.4th at p. 203 [“ ‘While the fact that the jury included members of a group allegedly discriminated against is not conclusive, it is an indication of good faith in exercising peremptories, and an appropriate factor for the trial judge to consider in ruling on a Wheeler objection’ ”].)

The court concluded generally that what the prosecutor stated with respect to each juror was “entirely supported by the record.” The court ultimately denied the motions with respect to each of the four jurors discussed post.

a. Comparative Juror Analysis

Baxter uses comparative juror analysis (CJA) in an attempt to demonstrate “the prosecutor failed to strike non-minority jurors who have the same characteristics as those cited by the prosecutor in explaining her challenge” to minority prospective jurors. At trial, the court and the party objecting to challenges of prospective jurors may rely on such analysis in finding or arguing Batson/Wheeler violations. (Johnson, supra, 30 Cal.4th at p. 1318.) However, as Baxter acknowledges, the California Supreme Court in Johnson held that CJA could “not be used for the first time on appeal.” The court in Johnson reasoned “that comparing, for the first time on appeal, the answers of excused jurors with those of jurors not excused to determine whether the trial court erred in denying an objection to the use of peremptory challenges is unreliable and fails to give due deference to the trial court’s ruling.” (Johnson, supra, 30 Cal.4th at p. 1306.) “ ‘[T]he very dynamics of the jury selection process make it difficult, if not impossible, on a cold record, to evaluate or compare the peremptory challenge of one juror with the retention of another juror which on paper appears to be substantially similar. [Attempting] to make such an analysis of the prosecutor’s use of [her] peremptory challenges is highly speculative and less reliable than the determination made by the trial judge who witnessed the process by which the defendant’s jury was selected. It is therefore with good reason that we and the United States Supreme Court give great deference to the trial court’s determination that the use of peremptory challenges was not for an improper or class bias purpose.’ ” (Id. at p. 1319.) “When such an analysis was not presented at trial, a reviewing court should not attempt its own comparative juror analysis for the first time on appeal . . . .” (Id. at p. 1325.)

The only CJA the trial court engaged in consisted of comparing the demeanor of one of the prospective jurors at issue (that of Jennifer S.) with the general demeanor of all of the other prospective jurors. Baxter relies on this single instance to assert that the trial court engaged in CJA while ruling on the motions. Moreover, the closest that defense counsel came to engaging in CJA was to dispute that another prospective juror (Dana N.) had any more of a blank stare than some of the other prospective jurors. Because both of these instances of trial court level CJA concerned juror demeanor, we are in a poor position to analyze them on appeal. (See Johnson, supra, 30 Cal.4th at pp. 1319-1320 [difficulties of reviewing a “cold record”]; Ward, supra, 36 Cal.4th at p. 202 [reviewing courts give great deference to the trial court’s observations regarding a prospective juror’s demeanor].) More importantly, they do not support the CJA Baxter asks us to engage in on appeal, i.e., to compare the answers given by some non-minority jurors with those given by the challenged jurors at issue in this appeal.

However, recently, in Miller-El v. Dretke (2005) --- U.S. ---, 125 S.Ct. 2317 (Miller-El), the United States Supreme Court engaged in CJA even though the trial court had not done so. (Id. at pp. 2325-2332.) The court acknowledged that although it had not developed a CJA in its earlier decision in the same matter (Miller-El v. Cockrell (2003) 537 U.S. 322), it “did note that the prosecution’s reasons for exercising peremptory strikes against some black panel members appeared equally on point as to some white jurors who served.” (Miller-El, supra, 125 S.Ct. at pp. 2325-2326.) In response to the dissent’s assertion that it was improper for the majority to engage in CJA (id. at pp. 2347-2348. (dis. opn. of Thomas, J.)), the majority stated “the dissent conflates the difference between evidence that must be presented to the state courts to be considered by federal courts in habeas proceedings and theories about that evidence.” (Id. at p. 2326, fn. 2.) In the majority’s view, it sufficed that “the transcript of voir dire, recording the evidence on which [defendant] Miller-El base[d] his arguments and on which we base our result, was before the state courts.” (Id.) Whether Miller-El now compels California appellate courts to conduct CJA despite the absence of such analysis at the trial court level is a question we need not and do not decide. Assuming for the sake of argument that such an analysis must be conducted here, Baxter’s CJA arguments fail. (See Ward, supra, 36 Cal.4th at p. 203 [“Even assuming that we must conduct a comparative juror analysis for the first time on appeal (See Miller-El[, supra, 125 S.Ct. at p. 2326, fn. 2]), such an analysis casts no doubt” on the court’s conclusion there was not impermissible group bias].) Baxter compares three of the prospective jurors to non-minority jurors who are not similarly situated. (Ward, supra, 36 Cal.4th at p. 203 [CJA with non-minority jurors allowed to serve did not establish purposeful discrimination where those jurors were not similarly situated to the prospective minority jurors struck by the prosecutor]; cf. Miller-El, supra, 125 S.Ct. at p. 2325 [“If a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination”; emphasis added].) Moreover, Baxter uses such analysis to challenge one or two reasons relied upon by the prosecutor with respect to each of the three prospective jurors, but not to challenge the other race-neutral reasons the prosecutor relied upon and which were properly accepted by the trial court as valid and credible. (People v. Landry (1996) 49 Cal.App.4th 785, 791 (Landry) [upholding denial of Batson/Wheeler motions “[b]ecause the record . . . demonstrate[d] that the trial court found at least one legitimate race-neutral explanation for each questioned peremptory challenge”].)

After separately evaluating the record regarding each of the four prospective jurors at issue, we conclude there is sufficient evidence to support the trial court’s rulings that the “prosecutor’s stated reasons for exercising each peremptory challenge are neither contradicted by the record nor inherently implausible. [Citation.] Accordingly, we find no Batson/Wheeler error.” (Ward, supra, 36 Cal.4th at p. 205.)

b. Analysis of the Record Regarding Each Prospective Juror

1. Jennifer S.

Jennifer S. was a postal worker. The prosecutor was concerned, based in large part on Jennifer S.’s demeanor, that this juror had the potential to go “postal.” The court agreed a juror’s occupation can be a race neutral and appropriate reason for a peremptory challenge, and Baxter agrees. (Landry, supra, 49 Cal.App.4th at pp. 790-791 [a prospective juror’s occupation is a valid reason to exercise a peremptory challenge].)

More importantly, the prosecutor’s concern about going “postal” was based primarily on Jennifer S.’s demeanor. She had a scowl on her face throughout voir dire and was not pleasant to the prosecutor when questioned. The court agreed with the prosecutor’s observations of Jennifer S.’s demeanor, and noted the juror’s scowling, frowning and unpleasant demeanor appeared to be different from that of the other jurors.

We cannot tell from the record what Jennifer S.’s facial expressions were. However, “we give ‘ “great deference” on appeal’ to the trial court’s observations regarding a ‘prospective juror’s demeanor’ [when] nothing in the record contradicts [the court’s] observations . . . .” (Ward, supra, 36 Cal.4th at p. 202 [showing such deference where the prosecutor relied on the prospective juror’s unconventional appearance and her “uptight” body language and the trial court found “the prosecutor’s stated reasons were sincere and genuine”].) Moreover, the fact that this “prospective juror evinced ‘a degree of hostility toward the prosecutor’ ”constitutes “substantial evidence” in support of “the trial court’s denial of [Baxter’s] Wheeler claim.” (Ibid.; Turner, supra, 8 Cal.4th at p. 170 [upholding challenge to prospective juror based on prosecutor’s assertion that her body language and way of expressing herself indicated “a great deal of hostility within her”].)

The prosecutor also relied on the facts that Jennifer S. had two nephews recently arrested in Louisiana for drug-related offenses, and she said she was close to their mother, her sister. Noting that the contact with these close relatives was recent, the court properly agreed that in the case of this juror having relatives who had been arrested and charged was an appropriate, race-neutral reason to excuse her. (People v. Allen (1989) 212 Cal.App.3d 306, 314-316 (Allen) [valid bases for challenging prospective jurors include having relatives or close friends who have been arrested].)[4]

On appeal, Baxter engages in CJA with regard to this reason, noting that the prosecutor accepted three non-minority jurors (Juror Nos. 4, 6 and 11) who had either themselves been arrested or had close relatives who had been arrested. However, none of these jurors was “similarly situated” to Jennifer S. so as to establish purposeful discrimination. (Ward, supra, 36 Cal.4th at p. 203.) For example, Juror No. 4 evinced a pro-prosecution perspective – he said his arrested relatives “got what they deserved” when they were sentenced. Juror No. 11’s brother was convicted of robbery ten years earlier, and the juror did not think it was likely to affect her judgment as a juror. And Juror No. 6 had little contact with her father who had been in and out of jail – her parents divorced when she was a toddler. She was sure the authorities did their best to treat him fairly. Moreover, this juror had extensive law-enforcement contacts, including a stepfather who was a retired sheriff and police officer; a brother who was a corrections officer; and her best friend who was a “motorcycle cop.” (People v. Dunn (1995) 40 Cal.App.4th 1039, 1052 [“the trial court reasonably could infer . . . [the juror’s] relationship with her brother-in-law was attenuated sufficiently that it would not create a problem for the prosecution in this case, and that [her other relative’s occupations in law enforcement] indicated [the juror] was inclined to have a favorable attitude towards . . . the prosecution”].)

Both the prosecutor and the trial court also properly relied on the facts that Jennifer S. hesitated in answering a question regarding whether or not she could be fair and impartial, and she had arrived 15 minutes late for jury service.

2. Dana N.

The first reason the prosecutor gave for challenging Dana N. was her job experience.[5] The prosecutor focused on her previous job as a human resources manager for AT&T, concluding that, in the prosecutor’s experience, people employed in human resources positions tend to be more liberal-minded rather than pro-law enforcement or conservative-minded. The court agreed that a juror who has been employed in this type of profession may have a liberal bent which might affect jury deliberations, and properly found this was an appropriate, race-neutral reason to excuse her. (Landry, supra, 49 Cal.App.4th at p. 790 [upholding challenge to a prospective juror based on the juror’s educational background in psychiatry or psychology and employment at a youth services agency because the prosecutor concluded, based on her experience, this juror might be more sympathetic to the defense].)

Relying on Landry, Baxter argues CJA shows this reason was a “sham” because Juror Nos. 1 and 9 were both nurses, occupations “more closely aligned with psychology and sociology.” However, the court in Landry did not limit challenges to jurors with backgrounds in psychology or the like, but instead emphasized that a prosecutor’s experience with jurors with certain educational or employment backgrounds could be a race-neutral basis for a peremptory challenge. (Landry, supra, 49 Cal.App.4th at pp. 790-791.)

Baxter also argues the prosecutor’s reliance on Dana N.’s employment was too vague to constitute a valid basis for a challenge, citing People v. Turner (1986) 42 Cal.3d 711. However, in that case, the prosecutor stated he did not “remember exactly” why he challenged the prospective juror, but thought “it was something in her work.” (Id. at p. 725.) In this case, the prosecutor’s description of the work-related reason was not at all vague.

Baxter also points out the prosecutor did not strike other jurors with administrative jobs, such as Juror No. 3 (a credit manager) and Juror No. 4 (a loan process manager). However, the prosecutor was not concerned with Dana N.’s current administrative job, but with her previous employment as a human resources manager.

The prosecutor also cited Dana N.’s response to a hypothetical on transferred intent which involved a defendant who had been drinking. Although the prosecutor did not ask about the drinking, Dana N. responded that the defendant in the hypothetical should not have been drunk in the first place. The prosecutor considered this response problematic because there would be “witness after witness [in the People’s case] talking about drinking and drug use,” the incident took place in and around a bar, and both victims had been drinking. The court agreed with the prosecutor’s interpretation of Dana N.’s response, and thought it was reasonable to infer that this juror might not be sympathetic with most of the prosecution witnesses.

Baxter again engages in CJA with respect to this reason, noting Juror No. 4 described his wife as a long-term alcoholic. But Juror No. 4 explained he did not think testimony during the trial regarding the use of alcohol would interfere with him being an impartial juror because he had nothing against alcohol or people drinking.

The prosecutor further relied on Dana N.’s demeanor during the voir dire process – her arms were crossed and she had a blank stare on her face. The court properly accepted this reason based on its own observation of Dana N.’s demeanor. (Ward, supra, 36 Cal.4th at p. 202 [appellate courts give great deference “to the trial court’s observations regarding a ‘prospective juror’s demeanor’ ”and appearance].)

3. Robin L.

One reason the prosecutor challenged Robin L. was that the father of her children had been convicted of drug trafficking several times, most recently three years ago, and Robin L. had visited him in prison. The court properly concluded this was a valid, race-neutral reason to challenge this juror. (Allen, supra, 212 Cal.App.3d at pp. 314-316 [valid bases for challenging prospective jurors include having relatives or close friends who have been arrested].)

Baxter again argues this reason was a pretext based on the prosecutor’s acceptance of the same three non-minority jurors (Juror Nos. 4, 6 and 11) we discuss in connection with Jennifer S., supra. However, as we discuss supra, none of these jurors was “similarly situated” to Robin L. so as to establish purposeful discrimination. (Ward, supra, 36 Cal.4th at p. 203.)

Robin L. also had a court date that conflicted with Baxter’s trial – she was to testify as the main witness in an assault case. The court properly found this time conflict was another valid reason to excuse her.

4. Robert M.

Robert M. was a prospective alternate juror. The prosecutor was concerned Robert M. would not be open-minded with respect to Jhamani Jones, one of the victims in the case and a key witness for the prosecution. She cited Robert M.’s “carefree” or “flippant” attitude about his apparent lack of relationship with his grown son, a part-time actor in New York whom Robert M. said he visited as “[s]eldom as possible.” She said Jones, like Robert M.’s son, was a young man who has been “somewhat misguided in life and has made inappropriate choices as well.” The court agreed Robert M.’s response suggested he disapproved of his son’s choices in life and thought it reasonable to conclude this juror could be hostile toward a principal prosecution witness.

On appeal, Baxter engages in CJA with respect to this reason, this time comparing Robert M. to a single non-minority juror (Juror No. 4) who, he speculates, “had a strained relationship with his alcoholic wife, and his drug-using daughters.” But the record does not indicate what kind of relationship Juror No. 4 had with these relatives or what his attitude toward them was.

Another reason relied on by the prosecutor was Robert M.’s “casual” or “flippant” attitude about witnessing the murder of a friend of his. Robert M. said he “got a break” when the bullet hit the friend instead of him, and responded that he felt “fine” about the shooter being convicted of second degree murder. The prosecutor deemed Robert M.’s attitude inappropriate given he was potentially going to be a juror in a murder trial. The court also characterized Robert M.’s attitude as flippant, especially considering Robert M. could have been killed and his friend died. The court found Robert M.’s attitude was relevant to whether he would view the case seriously. (People v. Ayala (2000) 24 Cal.4th 243, 264, fn.1 [prospective juror’s “flippant attitude in responding to various questions during general voir dire” justified challenge]; cf. Turner, supra, 8 Cal.4th at p. 170 [upholding challenge to prospective juror based on her having witnessed her fiancé being shot and seriously injured where the prosecutor “was uncertain what effect this shooting had on her”].)

c. The Prosecutor’s Voir Dire of the Panel as a Whole Compared with Her Voir Dire of the Struck Prospective Jurors Does Not Indicate the Challenges Were Made Based on Race.

Baxter points out the prosecutor asked most of the panel (42 out of 71 prospective jurors), including 11 out of the 12 sitting jurors, about whether they would credit the testimony of a witness who had a felony conviction. Baxter notes this question was not posed to any of the four prospective African-American jurors at issue, and argues, without citing any authority in support, that this indicates a discriminatory intent.

However, an examination of the record reveals that 22 out of the 42 prospective jurors who were questioned about the credibility of convicted felons provided an earlier response which triggered this questioning: 16 of them stated in response to the juror questionnaire that they had been victims of crime before the prosecutor asked them how they would feel about testimony by convicted felons; three of them were asked about the issue after they indicated in response to the questionnaire that they had relatives or friends with jobs in law enforcement; and three of them brought up the issue on their own, apparently after hearing the prosecutor raise it with other prospective jurors.

Moreover, as the Attorney General correctly points out, almost all of the responses relied upon by the prosecutor as grounds for challenging the four prospective jurors at issue arose during the prosecutor’s voir dire. The prosecutor elicited these responses when she asked follow-up questions to their responses to the questionnaire given to all of the prospective jurors. Consequently, the responses of the four prospective jurors at issue were elicited in an even-handed way. The content of their responses indicated a potential for bias such that the prosecutor apparently did not see a need to ask these jurors additional questions regarding their attitudes toward convicted felons. (Ward, supra, 36 Cal.4th at p. 200 [“ ‘We presume that a prosecutor uses peremptory challenges in a constitutional manner’ ”].)

II. Introduction of Evidence of Baxter’s Criminal Character Pursuant to Evidence

Code Section 1103[6]

a. Factual and Procedural Background

Before trial, the People sought to introduce evidence of Baxter’s 1988 conviction for assault with a deadly weapon as evidence of Baxter’s motive and intent to kill Jhamani Jones, and to disprove any claim of mistake or accident, such as that Baxter’s gun accidentally or mistakenly fired. (Evid. Code, § 1101, subd. (b) [evidence a person committed a crime is not inadmissible under this statute to prove some fact other than his disposition to commit such an act, such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident].) The trial court ruled that, should Baxter testify on his own behalf, the fact of his 1988 conviction and a brief description of what the conviction was for, i.e., assault with a firearm, would be admissible to impeach Baxter, but no additional facts about the conviction would be admissible .

In a motion in limine, the prosecutor moved pursuant to People v. Blanco (1992) 10 Cal.App.4th 1167 (Blanco) to introduce evidence of the facts underlying Baxter’s 1988 conviction should the defense introduce evidence of victim Jhamani Jones’s character for violence (such as the conduct underlying Jones’s arrests for robbery and spousal abuse). Defense counsel told the court he had no intention of offering any evidence of Jones’s character for violence. The trial court thus concluded the issue was moot.

During Baxter’s direct examination, defense counsel asked him why he had fired at Jones that night. Baxter responded, “in defense of myself, you know – I mean, me knowing [Jones’s] reputation, you know, him and Stevie and Kenny and Germaine, they do purse snatches and robberies.” The prosecutor objected on hearsay grounds. Defense counsel said he was offering the testimony for a limited purpose, but said “that’s fine.” The trial court struck Baxter’s answer.

On cross-examination, the prosecutor asked Baxter whether someone told him that Jones and another man broke the window of his mother’s car. Baxter responded that he had asked Jones and others what happened, but no one gave him “a front answer.” Then someone told him that Jones owned a pellet gun. Baxter then started to explain that on another occasion someone told him “that there was a gas station. . . .” At this point, defense counsel objected to the narrative form of Baxter’s answer. The trial court ruled: “The defendant is answering the question so I’ll let him complete his answer. Go ahead.” Baxter responded: “That they participated in a robbery.” Defense counsel objected to this answer as being irrelevant, and the court struck that last portion of Baxter’s answer on that ground.

Outside the presence of the jury, the prosecutor argued Baxter’s testimony opened the door for her to introduce evidence of the facts underlying Baxter’s 1988 conviction. After reviewing the transcript, the court expressed concern that Baxter had twice “interjected into the testimony . . . evidence of the reputation of the victim, Jhamani Jones.” The court noted Baxter had brought “to the attention of the jury that Mr. Jones has committed felonies, in particular, on the first instance, purse snatches and robberies, and on the second instance, robberies of gas stations.” Although defense counsel had not solicited Baxter’s testimony on this issue and the testimony had been stricken, the court stated it had “to be aware of realities here,” i.e., that Baxter had twice testified regarding Jones’s reputation and specific instances of criminal conduct. The court noted this issue had been litigated “rather substantially in Mr. Baxter’s presence, so he has been well aware that this court is very concerned about the potential applicability of section 1103.” The court reasoned that notwithstanding the fact it had stricken the character evidence, the jury heard it and the court was inclined to allow the prosecutor to examine Baxter about the details of his 1988 conviction and, if necessary, to prove them independently. The court concluded that the fact defense counsel did not ask questions to adduce these answers did not prevent application of section 1103 where the defendant himself interjected the evidence.

Defense counsel argued section 1103 was inapplicable because the prosecutor had first placed Jones’s character at issue during her direct and redirect examination of a police officer. The prosecutor asked the officer, who had reviewed Jones’s criminal history, whether Jones had any “gun possession charges,” to which the officer replied no. The prosecutor then asked the officer whether Jones had any charges “with regards to him using a firearm.” The officer gave no answer because the court sustained defense counsel’s objection on relevancy and character evidence grounds. Defense counsel argued this line of questioning indicated the prosecutor was trying to show Jones did not have “a character for weapons.” The court rejected this argument.

The court concluded in view of Baxter’s knowledge of what would happen if he placed into evidence Jones’s character for violence and the “very specific and lengthy litigation of that exact point,” that Baxter “took advantage of any opportunity to inject into this case the reputation of the victim for violence.” The court ruled section 1103, subdivision (b) applied such that the prosecutor could introduce evidence regarding the underlying facts of his 1988 conviction.

The prosecutor proceeded to cross-examine Baxter regarding the details of his 1988 conviction. Baxter admitted firing a gun three or four times at Jerrell Edwards, a man who had recently shot and killed one of Baxter’s friends. The prosecutor also played for the jury a tape recording of Baxter’s statement to the police about this shooting, in which Baxter admitted he wanted to kill Edwards for having killed Baxter’s friend and admitted he shot Edwards in the arm. Finally, the prosecutor presented testimony by a police officer who had investigated the Edwards shooting. He testified Baxter never told the police he fired at Edwards in self-defense.

b. Analysis

Baxter argues the trial court erred in admitting evidence regarding the underlying facts of his 1988 conviction pursuant to section 1103, subdivision (b). He asserts this was error because (1) defense counsel, as opposed to Baxter himself, did not offer any victim-character evidence; (2) Baxter’s testimony providing this evidence was stricken from the record; and (3) section 1103 should not be applied to Baxter’s “detriment when the prosecutor first asked questions about Jones’ character.” We conclude the trial court did not abuse its discretion in admitting this evidence.

Section 1103, subdivision (a) provides that the defense can offer evidence of the victim’s character to prove conduct in conformity with that character. (Evid. Code, § 1103, subd. (a)(1).) Section 1103, subdivision (b) provides in relevant part: “evidence of the defendant’s character for violence or trait of character for violence (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) is not made inadmissible by Section 1101[7] if the evidence is offered by the prosecution to prove conduct of the defendant in conformity with the character or trait of character and is offered after evidence that the victim had a character for violence or a trait of character tending to show violence has been adduced by the defendant under . . . subdivision (a).” (Evid. Code, § 1103, subd. (b).)

We review the trial court’s ruling admitting evidence under section 1103 for abuse of discretion. (People v. Barnett (1998) 17 Cal.4th 1044, 1118 [“When a trial court overrules a defendant’s objection[] that evidence is . . . inadmissible character evidence, we review the ruling[] for abuse of discretion”]; People v. Cox (2003) 30 Cal.4th 916, 955 (Cox) [“An appellate court applies the abuse of discretion standard to review any ruling by a trial court on the admissibility of the evidence”].) Under this standard of review, “ ‘as long as there exists a reasonable or even fairly debatable justification, under the law, for the action taken, such action will not be here set aside.’ ” (People v. Clark (1992) 3 Cal.4th 41, 111 (Clark).)

1. The Fact That Baxter’s Testimony Was Unsolicited Did Not Preclude the Court from Applying Section 1103.

Baxter relies on authorities regarding defense counsel’s control over trial tactics and strategies to argue that Baxter himself, against defense counsel’s wishes, cannot be said to have adduced evidence of Jones’s character for violence so as to trigger section 1103. (See, e.g., Witkin & Epstein, 5 California Criminal Law (3d ed. 2000), Criminal Trial § 239, pp. 367-368 [If “defendant elects to be represented by an attorney, the attorney has the authority and the duty to handle the trial, e.g., to introduce evidence, examine and cross-examine witnesses,” etc.].) However, as the trial court correctly observed, section 1103 does not limit its application to evidence offered by attorneys; the statute speaks only of evidence “adduced[8] by the defendant.” (Evid. Code, § 1103, subd. (b) [emphasis added].) And a defendant’s right to testify on his own behalf overrides the tactical authority of his counsel. (People v. Bradford (1997) 15 Cal.4th 1229 1332 [“The defendant may exercise the right to testify over the objection of, and contrary to the advice of, defense counsel”].) Moreover, as the trial court pointed out, Baxter was present with his defense counsel when the parties extensively litigated the issue of character evidence, so he was “well aware” of the court’s concern about the issue as well as his counsel’s intent to avoid introduction of such evidence. Despite this awareness, Baxter made the choice to testify as he did. (See Blanco, supra, 10 Cal.App.4th at p. 1176 [A criminal defendant “has a choice as to presenting evidence of the victim’s character, which is similar to many tactical choices at trial – such as deciding whether to testify”].) Consequently, the court did not abuse its discretion in concluding that the fact Baxter testified regarding Jones’s character without his counsel’s prompting did not preclude application of section 1103.

2. The Fact That the Court Struck Baxter’s Testimony from the Record Did Not

Preclude the Court from Applying Section 1103.

Baxter contends section 1103 did not apply because “no evidence was admitted as to Jones’ character for violence,” the court having struck that portion of Baxter’s testimony. Baxter cites no authorities in support of his contention. Section 1103 does not require the character evidence regarding the victim to have been admitted before the statute’s provisions are triggered; again, the statute speaks only of evidence being “adduced,” i.e., brought forward, “by the defendant.” (Evid. Code, § 1103, subd. (b).) Even though the trial court had stricken this testimony, the court properly recognized it had “to be aware of realities here,” i.e., that Baxter had twice brought to the jury’s attention Jones’s reputation for and specific instances of criminal conduct. Given the plain language of section 1103 does not require the victim-character evidence be admitted and the fact that Baxter twice brought Jones’s criminal character before the jury, we cannot say the trial court abused its discretion in ruling that section 1103 was triggered. (Clark, supra, 3 Cal.4th at p. 111 [there is no abuse of discretion where there is a “reasonable or even fairly debatable justification, under the law, for the action taken”].)[9]

3. The Prosecutor’s Unanswered Question About Jones’s Character Does Not

Show the Court Abused Its Discretion.

Baxter does not argue that the prosecutor’s unanswered question to a police officer about whether Jones had any charges “with regards to him using a firearm” opened the door for the defense to present evidence of Jones’s violent character. Nor does Baxter assert error with respect to the prosecutor’s question to the officer. As noted above, the court sustained defense counsel’s objection to the prosecutor’s question. Instead, Baxter argues that by allegedly ignoring this attempt by the prosecutor to adduce evidence of Jones’s peaceful character, the “trial court indulged in an asymmetrical application of the rules of evidence.” Without citing any authority in support, Baxter argues simply that this “was not fair.” This assertion does not affect our conclusion that the trial court did not abuse its discretion in ruling that section 1103 applied.

In any event, it was reasonable for the trial court to analyze the prosecutor’s unanswered question differently from Jones’s stricken testimony. There is a practical difference between (1) the situation where a jury hears a question, but not its answer (CALJIC No. 1.02 (Jan. 2005 ed.) [“A question is not evidence”]; People v. San Nicolas (2004) 34 Cal.4th 614, 674-675 [defense counsel’s objection to the prosecutor’s question, which was sustained before the witness could answer, “was sufficient to dispel any prejudice from the prosecution’s unanswered inquiry”]); and (2) the situation where the jury actually hears an answer, i.e., testimonial evidence, but it is later stricken. (People v. Hill (1998) 17 Cal.4th 800, 845 [“ ‘It has been truly said: “You can’t unring a bell” ’ ”].)

III. Out-of-Court Statements by Lawana Wyatt

a. Factual and Procedural Background

Lawana Wyatt was Baxter’s girlfriend. Several days after the shooting, Sergeant Medeiros interviewed Wyatt at the police station. After the People unsuccessfully subpoenaed Wyatt to testify at trial, the court ruled she was unavailable. Wyatt’s statements during the police interview were introduced into evidence through Medeiros’s testimony under Evidence Code section 1230 as declarations against interest.[10]

According to Medeiros’s testimony, Wyatt said she had seen Baxter with a handgun about a week before the shooting. Medeiros testified Wyatt’s description of the handgun matched the description that Jones and Michelle Franklin had given Medeiros of the handgun Baxter held the night of the shooting.

Wyatt told Medeiros that Baxter had an argument with Jones regarding his mother’s broken car window outside the Club the night of the shooting. Baxter also told her he shot at Jones three times while Jones was running away. Wyatt said Baxter told her he had not seen Jones with a weapon that night.

Wyatt said she drove Baxter to his mother’s house the day after the shooting with the handgun in a bag in the car’s trunk. Wyatt saw Baxter take the bag with the gun in it into his mother’s house. Wyatt said she went to Franklin’s house the day after the shooting to retrieve a black canvas bag.

On cross-examination, Medeiros testified Wyatt told him Baxter said he was protecting himself at the time of the argument with Jones. Baxter told Wyatt that Jones was mad, was going to kill Baxter, and was trying to shoot Baxter, so Baxter shot at Jones. Wyatt said Baxter was sorry and upset that an innocent bystander had been killed.

On redirect examination, Medeiros testified that Wyatt was evasive during the interview when she said Baxter pulled out his gun to protect himself from Jones. Medeiros did not think Wyatt’s behavior was unusual because of her 15-year relationship with Baxter – she told Medeiros she was worried about the consequences of her statements for herself, her children, and Baxter. He testified that before her taped interview, Wyatt told an account of what happened that night that was consistent with what Jones had told Medeiros. After the tape started recording, Medeiros said Wyatt told a somewhat inconsistent account which she admitted was inconsistent when challenged about it.

b. Analysis

After completion of Baxter’s trial, the United States Supreme Court held in Crawford v. Washington (2004) 541 U.S. 36 (Crawford) that “testimonial” hearsay statements are admissible under the Confrontation Clause only if the declarant is unavailable and the defendant has had a prior opportunity to cross-examine the declarant. (Id. at p. 68.) The Attorney General does not dispute admission of Wyatt’s statements violated Baxter’s confrontation rights under Crawford. (Id. at pp. 51, 53, fn. 4 [A statement is “ ‘testimonial’ ” when it is “knowingly given in response to structured police questioning” and a declarant in her circumstances would have reasonably expected her statement to be “used prosecutorially”].) Instead, the Attorney General argues admission of Wyatt’s statements was harmless error under Chapman v. California (1967) 386 U.S. 18, 24 (Chapman) [requiring “the beneficiary of a [federal] constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained”]). Baxter agrees review of this error is governed by Chapman. (People v. Pirwani (2004) 119 Cal.App.4th 770, 791 [applying Chapman standard to Crawford error].) We conclude admission of Wyatt’s statements was harmless error under Chapman.

Baxter asserts this case was “a quintessential credibility contest between [Baxter], who claimed self defense, and Jones, who claimed he was unarmed and running away when [Baxter] shot at him.” However, Baxter admits that “Wyatt’s statement[s] seem[] to provide support for both these versions: she said that [Baxter] said he shot to protect himself, but she also said that [Baxter] shot Jones three times while running away.” Moreover, Wyatt’s statements “merely corroborated other testimony at trial.” (People v. Farnam (2002) 28 Cal.4th 107, 158 [finding admission of hearsay testimony was harmless error under Chapman for this reason].)

First, Wyatt’s statement that she had seen Baxter with a handgun about a week before the shooting corroborated testimony by Michelle Franklin, Wyatt’s sister, who saw Baxter with the gun twice before the shooting. And Baxter himself admitted storing the gun at Franklin’s house, and using it to shoot at Jones.

Second, Wyatt’s statement that Baxter had an argument with Jones about the broken car window outside the Club merely corroborated the testimony of both Jones and Baxter – there was no “credibility contest” between them on this point.

Third, Wyatt’s statement that Baxter shot at Jones three times while Jones was running away did not contradict Baxter’s testimony. Baxter said he fired two or three shots at Jones, and admitted that at some point while he was firing his gun at Jones, Jones was running away from him. Moreover, there was expert testimony that the location of Jones’s gunshot wound was consistent with Jones running or walking away at the time the wound was inflicted.

Fourth, Wyatt’s statements relating to self-defense were contradictory. On the one hand, she said Baxter had not seen Jones with a weapon that night. On the other hand, she said Jones was trying to shoot Baxter and Baxter was protecting himself. Furthermore, Jones’s testimony that he did not have a weapon that night was corroborated by the testimony of four witnesses who saw Jones running toward the Club immediately after the shooting and who saw Jones after he asked them to call 911. And his testimony was also corroborated by police and expert testimony that the only shell casings retrieved from the crime scene came from a single .380-caliber handgun – the type of handgun Baxter admitted using to shoot at Jones.

Last, Wyatt’s statements regarding Baxter’s post-shooting conduct corroborated testimony by Michelle Franklin, as well as by Baxter himself.

Baxter asserts “the salient fact about the admission of Wyatt’s hearsay testimony” was that the police officer who testified as to her statements provided a “weighted interpretation” of them, opining which were “true” and which were “evasive.” This argument is not based on the content of Wyatt’s out-of-court statements, but on Medeiros’s courtroom testimony. We address this argument in section V. post. We note here, however, that the court sustained defense counsel’s objection to the prosecutor’s question asking Medeiros whether he thought Wyatt was telling the truth after he started taping her statements. This was the only time during Medeiros’s examination he was asked to opine about whether Wyatt’s statements were true. And Medeiros’s opinion that Wyatt was evasive at one point during the interview was proper because it was based on his comparing Wyatt’s statements at that point with what Wyatt had told Medeiros 20 minutes earlier (before he started taping her statements).

Baxter also notes the jury requested a readback of Medeiros’s testimony regarding his interview of Wyatt. He asserts this indicates the jury relied on this inadmissible evidence in reaching its verdicts, citing People v. Day (1992) 2 Cal.App.4th 405, 420 [noting “the lengthiness of deliberations, the jurors’ request to review certain testimony, and the jurors’ request for clarification of [certain of the] instructions establish that the case was close”]. However, as Baxter admits, Wyatt’s statements supported both the prosecution’s and his own theories of the case. And as we discuss above, virtually all of Wyatt’s statements corroborated the testimony of other witnesses.

Finally, we conclude there was no cumulative prejudicial impact from the two errors we find in this case (see section VI., post, for the second error) as each of them was harmless. (People v. Bunyard (1988) 45 Cal.3d 1189, 1236 [where each of several errors were “harmless when considered individually,” “[t]heir cumulative effect did not prejudice defendant”].)

IV. The Court Did Not Err in Permitting References to and

Evidence of Blake’s Character for Peacefulness.

a. Factual Background

1. The Prosecutor’s Opening Statement

Without objection by defense counsel, the prosecutor referred to Blake during her opening statement as “a hardworking family man” and as a father, husband, brother, and “good friend to many people.” After the prosecutor said she, like defense counsel, had “a client too,” the court sustained an argument objection. The prosecutor told the jurors they would not hear “a whole lot about Anthony Blake,” but urged them not to “forget about him.” The court sustained another argument objection and ordered the last comment stricken.

The prosecutor described Blake, his job, and his family. She then said Blake’s son would testify that at the time leading up to his murder, things were stressful at home. The court sustained relevancy and argument objections. She next said Blake frequented the Club because of stress he had been experiencing at home. The trial court overruled a relevancy objection. She stated the Club’s bartender would testify that Blake was “a likeable guy, that he had never been in any disputes in that bar.” Defense counsel objected without stating a ground, and the trial court overruled the objection.

2. Testimony Regarding Peacefulness

Blake’s son, Jesse, testified his father had worked as a cable splicer for PG&E for roughly 28 years, and, to Jesse’s knowledge, Blake did not get into physical fights. The trial court overruled defense counsel’s objections to this testimony on relevancy grounds. Jesse then testified, without any objection by defense counsel, that his father was a “peaceful or likeable guy,” had never been in a fight at the Club, and had never had any guns.

Similarly, defense counsel did not object to testimony by both bartender Wendell Lee and bouncer Ricky Lee that Blake was peaceable, gentle and easy going; that Blake did not get into any arguments, disputes or altercations at the Club; and that Wendell Lee had never seen Blake with any guns.

The court overruled relevancy objections to allow both Wendell Lee and the Club’s owner, Gary Harris, to testify Wendell Lee quit working at the Club after Blake was killed because Blake was Lee’s good friend. Lee also added that Blake did not deserve to die like that.

After Wendell Lee’s direct examination, and outside the presence of the jury, defense counsel noted the prosecutor had asked Lee questions regarding Blake’s nonviolent, nonaggressive character. Defense counsel did not argue this questioning elicited inadmissible character evidence regarding Blake; instead, he argued Lee’s testimony opened the door for the defense to ask Lee about an incident where Jones caused a fight at the Club, even though the incident did not involve either Blake or Baxter. The prosecutor admitted she had asked about Blake’s character for nonviolence, but argued Lee’s testimony had nothing to do with Jones. Defense counsel argued Blake’s character was irrelevant because there was no dispute that Blake was an innocent bystander. Defense counsel also argued testimony that Blake was nonviolent implied Jones “could fit into that category too because you won’t hear anything about him.”

The court did not think the jury would conclude Jones was nonviolent based on testimony about Blake. The court also concluded the fact the defense did not intend to contest that Blake was an innocent bystander did not mean the prosecutor could not “pursue a line of inquiry which would at least preclude reasonable jurors from concluding that he was an aggressor.” The court also concluded that if it allowed testimony about Jones starting a fight at the Club, it would then allow the prosecution to admit evidence regarding Baxter’s conviction for assault with a deadly weapon pursuant to Evidence Code section 1103, subdivision (b). Defense counsel then stated he would not “go there, then. That’s why I brought it up.”

b. Analysis

Baxter argues the court erred in permitting references to and evidence of Blake’s character for peacefulness. Baxter contends these references and evidence impermissibly engendered sympathy for Blake, were irrelevant, and were inadmissible under Evidence Code section 1103, subdivision (a). We conclude there was no error.

First, the trial court did not abuse its discretion in overruling any of the relevancy objections at issue concerning evidence of Blake’s peaceful nature. (People v. Kipp (2001) 26 Cal.4th 1100, 1123 (Kipp) [“We apply the deferential abuse of discretion standard when reviewing a trial court’s ruling on a relevance objection”]); Clark, supra, 3 Cal.4th at p. 111 [there is no abuse of discretion “ ‘as long as there exists a reasonable or even fairly debatable justification, under the law, for the action taken’ ”].) “ ‘Evidence is relevant if it has any tendency in reason to prove or disprove a disputed fact at issue.’ ” (Kipp, supra, 26 Cal.4th at p. 1123.) As the trial court correctly concluded, this evidence was relevant to establish Blake’s innocent bystander status. (Cf. People v. Garcia (1981) 115 Cal.App.3d 85, 107 [holding other-crimes evidence relevant to prove defendant “was something other than an innocent bystander”].) And to the extent Baxter now objects to some of the opening statement or evidence on relevancy grounds without having done so at trial, Baxter has waived such objections. (Evid. Code, § 353, subd. (a) [no reversal for erroneous admission of evidence unless there was “an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion”].)

Second, Baxter waived any objections based on Evidence Code section 1103. (Evid. Code, § 353, subd.(a).) With respect to all of the character evidence at issue, defense counsel either made no objection at all or failed to object on character grounds, relying exclusively on relevancy grounds instead. (People v. Thomas (1992) 2 Cal.4th 489, 520 [defendant’s argument on appeal that testimony was inadmissible character evidence was waived by failure to urge this ground at trial]; People v. Mattson (1990) 50 Cal.3d 826, 854 [“Specificity [of the ground for objection to evidence] is required both to enable the court to make an informed ruling on the motion or objection and to enable the party proffering the evidence to cure the defect in the evidence”].) Contrary to what Baxter asserts, at no point did it become futile for defense counsel to object on character evidence grounds because the trial court was never asked to rule on any such objection. Defense counsel apparently chose not to make any objections on character grounds despite the fact he was aware of this issue – he raised it with the trial court in an attempt to introduce evidence regarding Jones starting a fight at the Club.

Finally, even assuming the trial court erred, we conclude there is no reasonable probability the jury would have reached more favorable verdicts for Baxter had the trial court stricken those portions of the opening statement and testimony at issue. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson) [standard for determining whether an error constitutes a “ ‘miscarriage of justice’ ” is whether “it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error”]; People v. Marks (2003) 31 Cal.4th 197, 226-227 (Marks) [holding with respect to error in admitting evidence that application of the ordinary rules of evidence “does not implicate the federal Constitution, and thus we review allegations of error under the ‘reasonable probability’ standard of Watson”].) The references to and testimony about Blake’s likeable and peaceable character, as well as the references and testimony which Baxter argues impermissibly engendered sympathy for Blake, were mild and brief compared to the other portions of the trial. (Arias, supra, 13 Cal.4th at pp. 160-161 [no prejudice where the prosecutor’s references to the victims’ feelings were “relatively brief”]). Moreover, they did not pertain to the central issue, i.e., whether Baxter acted in self-defense.[11]

Baxter argues the prejudicial nature of such error is evidenced by the prosecutor’s reliance on it in her closing argument to the jury. Baxter makes it clear he does not argue that this reliance constituted prosecutorial misconduct – it merely shows the prejudice which flowed from the alleged error. First, Baxter notes the prosecutor stated during her argument that Blake was a “hardworking family man.” However, this merely echoed Baxter’s own testimony about Blake. (See footnote 11, ante.) Second, Baxter points to the prosecutor’s statements that Blake was a human being with a family. But these statements did not flow from some earlier alleged erroneous admission of evidence. We see no prejudice.

V. Sergeant Medeiros’s Testimony Regarding Witnesses He Interviewed

Baxter asserts a pervasive theme of the prosecution’s presentation was “that law enforcement was the arbiter of the truth.” He relies almost exclusively on some of Sergeant Medeiros’s testimony regarding his interviews of witnesses in the case, arguing this testimony and one portion of the prosecutor’s closing argument based on it violated his constitutional rights. He also argues that in two instances where defense counsel failed to object, that failure amounted to ineffective assistance of counsel. We conclude there was no error and that Baxter has not shown the requisite prejudice for his ineffective assistance of counsel claim.

a. Factual Background

1. Medeiros’s Testimony Regarding Jones, and the Prosecutor’s

Reliance on It During Closing Argument

The prosecutor asked Sergeant Medeiros about his interview of Jones, when at first Jones said he was shot while smoking a cigar outside the club and the police considered Jones the main suspect in Blake’s homicide. The prosecutor asked how Jones had replied to the question whether he had ever used a firearm. Medeiros responded in part by saying Jones was respectful, but that Medeiros knew Jones “was lying.” Medeiros recounted how Jones finally told Medeiros he would tell Medeiros “the truth” about what happened the night of the shooting. The prosecutor then asked, “Now, when [Jones] started to tell you the truth, what exactly did he say?” Defense counsel then objected, saying it was for the jury to say whether Jones was telling the truth. The court overruled the objection, saying the jury was “allowed to know what Mr. Jones told Sergeant Medeiros.” Medeiros then recounted Jones’s version of what happened that evening – that he did not have a gun and that Baxter had shot him.

The prosecutor later asked Medeiros why he released Jones after taking a taped statement from him. Medeiros replied, “I believed him.” The prosecutor then asked, “So he was no longer a suspect in this?” Medeiros replied, “I was going to keep an open mind, but at that time I truly believed him, yes.” Defense counsel made no objections to this testimony.

On redirect examination, the prosecutor asked Medeiros whether he was surprised when during the first 20 minutes of his interview with Jones, Jones did not tell the truth. Medeiros responded that 99 percent of the people “we interview do not tell us the truth off the bat. It sounds like exaggeration. I’m telling you [it] happens almost every single time.” The prosecutor then asked, “Did he ever tell you that one of the reasons why he didn’t tell you the truth is that he wanted to retaliate [against Baxter]?” Medeiros replied, “Yes, he did.” Defense counsel made no objections to this testimony.

During closing argument, the prosecutor noted Medeiros had concluded Baxter was responsible for Blake’s murder and Jones’s attempted murder. The prosecutor said the “most important piece of evidence that Sergeant Medeiros told you” was that “he believed Jhamani Jones, and that’s why Jhamani Jones was released after being arrested. That’s huge. That is a big piece of evidence.” There was no objection to this argument.

2. Medeiros’s Testimony Regarding James Taylor

Medeiros’s testimony about his interview of James Taylor came after Taylor testified he had lied to the police when he told them he saw Baxter running from the crime scene. Taylor testified he lied because the police told him he could not leave until he told them the truth.

The prosecutor asked Medeiros whether Taylor initially was cooperative when Medeiros and another officer interviewed him. Medeiros responded, “He wasn’t hostile or anything, but at the beginning he was obviously not telling us the truth.” The trial court sustained defense counsel’s objection on the ground Medeiros gave a conclusion beyond the scope of the question. The prosecutor then asked whether Medeiros taped Taylor when Medeiros first talked to him. Medeiros then explained that their standard procedure was to first interview while taking notes and then to tape the interview. When asked why that was the procedure, Medeiros explained he had done “thousands upon thousands of interviews, and [a] high percentage of them start off with lies and nobody wants to get involved; . . . nobody wants to get the phrase snitch put on them.” Medeiros said his experience in conducting this investigation was also that people were not cooperative.

The prosecutor then asked Medeiros about what happened when they started to tape Taylor’s interview. The prosecutor said, “Now, you mentioned in the beginning you didn’t feel [Taylor] was telling the truth. What exactly was he saying?” Medeiros responded, “That he did not witness anything.” Medeiros explained that he confronted Taylor about this by telling him someone had told Medeiros that Taylor witnessed part of the crime. Taylor told Medeiros he was afraid for his safety and did not want to be involved. Taylor then changed his mind and started telling Medeiros what he saw. The prosecutor asked Medeiros whether he threatened Taylor at all during the interview or whether he had forced Taylor to tell him “the truth.” Medeiros replied he had not. Medeiros agreed that Taylor seemed sincere when he told Medeiros toward the end of the interview he wanted to help the police. There were no objections to any of this testimony.

3. Medeiros’s Testimony Regarding Lawana Wyatt

After reading from a transcript of Medeiros’s interview of Lawana Wyatt wherein Wyatt at first denied Baxter had told her he shot at Jones, the prosecutor asked whether Medeiros confronted Wyatt “that she was not telling you the entire truth?” Medeiros said yes, and explained “it was obvious she was being evasive, because [Wyatt] told us differently 20 minutes prior” when her statements were not being taped. When asked what Wyatt’s demeanor was like during the interview, he explained that “when we got on tape, [Wyatt] became very evasive.” Medeiros did not find this unusual “because of her relationship with Mr. Baxter.” The prosecutor then asked: “So [Wyatt] told you the truth when the . . . tape was not recording, and then when she went on tape, she gave you the partial truth, but you occasionally had to confront her?” The court then sustained an objection regarding the use of the word “truth” and asked the prosecutor to rephrase the question. The prosecutor then asked whether before the tape-recording, Wyatt told Medeiros an account of what had happened that night that was consistent with what Jones had told Medeiros. Medeiros replied “yes.” Next the prosecutor asked whether “once the tape started recording, [Wyatt] then told you an account that was somewhat inconsistent with what Mr. Jones had told you?” Medeiros replied, “Somewhat, but when she was challenged with the inconsistencies, she admitted that she was hiding.” There were no objections to this testimony.

4. Medeiros’s Testimony Regarding Whether the Shots Were Fired

from a Single Gun

The prosecutor asked whether Medeiros was surprised that only two gun casings were recovered, but several witnesses had testified they heard more than two shots fired. Medeiros responded: “No. On a large proportion of our crime scenes, casings end up disappearing. . . . People can pick them up. They’re very easily caught in vehicle tires. There was a concern, but everyone we interviewed who heard gunshots, every single person, no one ever said it was more than one gun, that it was different guns. . . . These people have heard gunshots before . . . . People can tell us if there’s different guns. . . . Everyone said it was one gun being used.”

The next day, the prosecutor asked Medeiros whether an account by Jones that he had heard five to six shots would “not . . . be believable.” Medeiros replied, “no.” The trial court sustained an objection that the question called for a conclusion. The prosecutor next asked whether the fact that Jones said he heard four to five shots on one occasion, and five or six shots on another occasion, meant “that what he observed . . . on Maple Street did not happen?” The court sustained an objection on the same ground before Medeiros could answer.

Not long after, the prosecutor asked Medeiros about his testimony the day before that some witnesses had told him they thought the shots were fired from the same gun. Medeiros explained only four witnesses told Medeiros they believed that, “but probably a better way for me to ph[r]ase it [is] not one person said it sounded like it was a different gun.” The prosecutor then asked whether Medeiros himself had concluded all the shots were fired from the same gun based on other information he had gathered during his investigation. The court sustained a relevancy objection. The prosecutor then asked whether “that information [from his own investigation] was part of your state of mind when you answered that question yesterday?” Over defense counsel’s objection (without stating any grounds), the court allowed Medeiros to respond, “That’s correct.”

5. Questions Posed to Officer Harris but Not Answered

In connection with her examination of Officer Harris about Baxter’s 1988 shooting of Jerrell Edwards, the prosecutor asked Harris if he believed Baxter when Baxter said he was scared after shooting Edwards. The trial court sustained an objection before Harris could answer. Shortly after, the prosecutor asked whether, based on the information Harris learned during witness interviews, it appeared Baxter and two others “were trying to kill Jerrell Edward[s]?” Again, the trial court sustained an objection before Harris could answer.

b. Analysis

As Baxter admits, the trial court only twice overruled defense counsel’s objections to Medeiros’s alleged improper “vouching” testimony. We conclude the trial court did not abuse its discretion in overruling these objections. (Kipp, supra, 26 Cal.4th at p. 1123; Clark, supra, 3 Cal.4th at p. 111.) The first overruled objection was in response to the prosecutor’s question, “Now, when [Jones] started to tell you the truth, what exactly did he say?” This question came after Medeiros testified that, at one point during Jones’s interview, Jones told Medeiros he would tell “the truth” about what happened the night of the shooting. Consequently, contrary to what Baxter agues, Medeiros was not asked at this point to give his lay opinion regarding the veracity of Jones’s statements. The assessment that what Jones was saying was “the truth” came not from Medeiros or the prosecutor, but from Jones himself, i.e., Jones was the one who said he was starting “to tell” Medeiros “the truth” at that point during the interview, in contrast to what he had told Medeiros earlier. This is why, when overruling defense counsel’s objection, the court said the jury was “allowed to know what Mr. Jones told Sergeant Medeiros.”

The second overruled objection, presumably on relevancy grounds, was when the prosecutor asked whether information Medeiros had gathered during his investigation was part of Medeiros’s state of mind when he explained the day before that the witnesses he interviewed believed the shots were fired from the same gun. This testimony was relevant to explain the basis for Medeiros’s earlier testimony that “[e]veryone said it was one gun being used,” especially in light of his later testimony that only four witnesses had actually told him they believed the shots were fired from the same gun. (Kipp, supra, 26 Cal.4th at p. 1123 [“ ‘Evidence is relevant if it has any tendency in reason to prove or disprove a disputed fact at issue’ ”].) Contrary to what Baxter argues, Medeiros did not express in this testimony any opinion that he believed Jones when Jones said he did not have a gun – in fact, he made no reference to Jones at all. Consequently, the court did not abuse its discretion in overruling the objection.

Related to this testimony, Baxter argues the prosecutor engaged in misconduct when she twice asked Medeiros whether Jones would have been “believable” had he said he heard varying numbers of shots fired that night. The court twice sustained objections to these questions on the ground they called for a conclusion. First, Baxter has waived any claim of misconduct by failing to object to these questions on that ground at trial. “To preserve a claim of prosecutorial misconduct for appeal, a criminal defendant must make a timely objection, make known the basis of his objection, and ask the trial court to admonish the jury.” (People v. Brown (2003) 31 Cal.4th 518, 553 (Brown).) “Failure to make a specific and timely objection and request that the jury be admonished forfeits the issue for appeal . . . .” (Id.) Second, we conclude the prosecutor’s questions did not infect “ ‘the trial with such unfairness as to make the conviction[s] a denial of due process,’ ” nor did they constitute “ ‘ “ ‘deceptive or reprehensible methods to attempt to persuade . . . the jury.’ ” ’ ” (People v. Harrison (2005) 35 Cal.4th 208, 242 [federal and state standards of prosecutorial misconduct].)

With respect to other testimony by Medeiros and Harris to which defense counsel’s objections were sustained, we discern no prejudice. (People v. Cobb (1955) 45 Cal.2d 158, 163 [concluding there was no prejudice to the objecting defendant where the objection to the question was sustained].) Baxter argues prejudice based on all of Medeiros’s testimony, and does not address prejudice flowing only from testimony to which his counsel’s objections were sustained.

With respect to the remaining Medeiros testimony and the one portion of the prosecutor’s closing argument at issue, defense counsel made no objections whatsoever. Consequently, Baxter has forfeited any alleged error on appeal. (People v. Hart (1999) 20 Cal.4th 546, 615 [“Because defendant failed to interpose an objection [to the introduction of the evidence] that set forth the specific grounds for the objection, the issue may not be raised for the first time on appeal”]; Brown, supra, 31 Cal.4th 518, 553 [forfeiture of claim of prosecutorial misconduct by failure to make specific and timely objection]; People v. Osband (1996) 13 Cal.4th 622, 693 [same].)

Baxter argues we should review these claims of error despite his counsel’s failure to object at trial because his federal constitutional rights were violated. However, he cites no authorities holding the error he alleges raises federal constitutional issues. In fact, the lone California decision he cites as an example where a conviction was reversed based on the erroneous introduction of an officer’s belief in the veracity a witness (the victim) analyzed the error under the Watson standard. (People v. Sergill (1982) 138 Cal.App.3d 34, 41; see also Marks, supra, 31 Cal.4th at pp. 226-227 [application of ordinary rules of evidence “does not implicate the federal Constitution” and thus errors in their application are reviewed “under the ‘reasonable probability’ standard of Watson”]; People v. Melton (1988) 44 Cal.3d 713, 745 [applying Watson standard to error in admitting testimony which included lay opinion about the veracity of statements made by another].)

Baxter next argues defense counsel was ineffective for failing to object to Medeiros’s testimony that (1) he had done “thousands upon thousands of interviews,” a high percentage of which “start off with lies”; and (2) he felt James Taylor was not telling the truth at the beginning of his police interview, but later “started telling [] what he saw.” Even assuming defense counsel’s performance in not objecting to this testimony was deficient, we conclude it is not reasonably probable his failure to object affected the outcome in this case. (People v. Castillo (1997) 16 Cal.4th 1009, 1014-1015 [for ineffective assistance of counsel claim, defendant “must show that counsel’s performance was both deficient and prejudicial, i.e., that it is reasonably probable that counsel’s unprofessional errors affected the outcome”].) This portion of Medeiros’s testimony countered Taylor’s earlier trial testimony that he had lied to the police when he told them he saw Baxter running from the crime scene. However, even if Medeiros’s testimony affected the jury’s assessment of Taylor’s statements, this likely had no impact on their verdicts. Taylor simply said he saw Baxter running from the crime scene, a fact which was not in dispute. For example, Michelle Franklin testified, without equivocation, that she saw Baxter run into her house near the crime scene after hearing four gunshots coming from that location. And Baxter confirmed Franklin’s account during his own testimony, stating he ran from the crime scene after he shot at Jones.

VI. Prosecutorial Misconduct During Closing Argument

a. Argument Regarding the Gunshot Residue Test

1. Factual Background

During his closing argument, defense counsel emphasized the police had taken a gunshot residue (GSR) sample from Jones, but never had it tested: “And what was the first decision of . . . Sergeant Medeiros? Collect that evidence [of GSR from Jones]. Why? Because it’s important. It can either back up what Jhamani Jones says, or it can show him to be a complete fabricator. [¶] . . . Where is the gunshot residue?” Defense counsel continued: “You took [the GSR sample]. You’re in control of it. If you want to prove something, it’s been sitting there since the day you collected it. Your sergeant directed it to be done because he felt it was important. It’s proof that could either give you Jhamani’s head or give you the cross that says he’s right.”

Defense counsel continued: “[The People] are charged to prove that [Jones is] credible. . . . And they have made the conscious, willful, deliberate, premeditated, over two years since 2001, to not give you that evidence. Now they’re going to say, oh, but the defense can do it. Hogwash. We can. We’re not going to do it. You prove it. . . . I say why didn’t you bring in the gunshot residue when you haven’t? Because they want to gamble . . . with the truth. . . . Are you convinced of the truth of these charges when the State won’t even bring you the most convincing evidence they have, when they hide it from you?” Defense counsel ended his closing argument by asking the jury to “realize why [the best evidence regarding Jones’s credibility] was not given. Because even the prosecution didn’t want the answer.”

During her rebuttal argument, the prosecutor responded to defense counsel’s argument as follows: “You . . . know through [testimony at trial] that anybody can check out that GSR kit on Jhamani Jones and get that tested. That includes the defense. And the defense did not do it, otherwise, you would have that evidence before you. [¶] If it showed that Jhamani Jones tested positive for gunshot residue there[by] saying perhaps he had a firearm in his . . . hands that night, you would have heard about it. There’s a reason why the defense did not check out that gunshot residue test and get it tested. The reason is that it would show that Jhamani Jones did not have any gunshot residue– ”

Defense counsel then objected on the grounds her argument called for speculation. The trial court overruled the objection, noting to the jury it had given it the rules “by which you may consider the argument of counsel.” The prosecutor continued: “That is why you do not have that evidence before you, because that evidence would show that Jhamani Jones didn’t fire a gun and that Jhamani Jones [didn’t] at any time have a gun. And that’s why it wasn’t brought forth in the trial as the only reason why.”

2. Analysis

Baxter argues this argument regarding testing the GSR sample was improper as an argument on facts not in evidence. We conclude the prosecutor’s statement regarding what the GSR test would have shown was not misconduct.

It is well established that a prosecutor may properly “comment on a defendant’s failure to introduce material evidence or call logical witnesses.” (Brown, supra, 31 Cal.4th at p. 554). However, it is improper for a prosecutor to comment on what the content of the absent evidence would have been precisely because the evidence has not been admitted. Commenting on the content of the evidence potentially violates a defendant’s Sixth Amendment confrontation rights. (People v. Gaines (1997) 54 Cal.App.4th 821, 822 (Gaines) [“a prosecutor commits misconduct when he purports to tell the jury why a defense witness did not testify and what the testimony of that witness would have been”].) Such error “requires reversal unless we are satisfied beyond a reasonable doubt that the misconduct did not affect the jury’s verdict.” (Id. at p. 825, citing Chapman, supra, 386 U.S. 18, 24.)

Because of the evidence admitted at trial, the prosecutor did not commit misconduct when she told the jury the “reason why the defense did not check out that gunshot residue test and get it tested [was] that it would show that Jhamani Jones did not have any gunshot residue” and “would show that Jhamani Jones didn’t fire a gun and . . . [didn’t] at any time have a gun.” This statement came within the prosecutor’s “ ‘broad discretion’ ” to argue “ ‘what the evidence shows and what inferences may be drawn therefrom.’ ” (People v. Sanchez (1995) 12 Cal.4th 1, 71 (Sanchez).) Based on (1) the evidence the defense chose not to test the GSR sample and (2) the evidence otherwise showing Jones did not have a gun the night of the shooting, the prosecutor properly argued the jury should infer the defense decided not to test the sample because the test results would confirm Jones had not fired a gun. The prosecutor’s argument did not suggest to the jury that she had information not in evidence that the GSR sample showed Jones did not fire a gun. The jury knew from earlier testimony elicited by the prosecutor that the GSR sample had never been tested and that, consequently, no one knew what the results of a test of that sample would have been. Argument by defense counsel and the prosecutor, both of whom asked why the other side had not tested the sample and introduced the results into evidence, further emphasized this fact.

b. Argument Regarding the Absence of Lawana Wyatt

1. Factual Background

The prosecutor asked the jury why Lawana Wyatt did not testify: “You heard evidence that a bench warrant was issued for her arrest and that the people wanted her to come in and testify. Why wasn’t she here? You know that the defendant and Lawana Wyatt are still girlfriend and boyfriend, that she’s the mother of his children. They were in communications as early as last week. Why is the defendant hiding her, and why didn’t she come forward?” The defense objected there was no “evidence of that,” presumably of Baxter hiding Wyatt. The trial court sustained the objection and ordered the prosecutor’s last comment to be stricken.

The prosecutor continued by saying: “Lawana Wyatt corroborates what Jhamani Jones told you, that he didn’t have a gun and that he was running away from the defendant when the defendant shot him. [¶] Now you also know that she told Sergeant Medeiros that the defendant told her that he was protecting himself. Well, if that’s the case, then why didn’t she testify for him? [¶] . . . [¶] Why did not she come forward?” The trial court overruled defense counsel’s objection (made without stating a ground).

The prosecutor again continued: “Why didn’t she come forward? I mean if that really is the case here why didn’t you hear from her? I tried to bring her in as a witness. I wasn’t successful. Why didn’t the defense bring her in as a witness? [¶] And the reason is because her testimony corroborates Jhamani Jones, not the defendant’s fictional story. That’s why she didn’t come forward.”

2. Analysis

Baxter asserts the last two sentences of the prosecutor’s argument that Wyatt’s testimony would corroborate Jones’s testimony rather than Baxter’s “fictional story” was also improper as argument on facts not in evidence. As we discuss in section III. supra, the statements by Wyatt in evidence did corroborate Jones’s testimony, i.e., testimony that he did not have a weapon that night and that Jones was running away from Baxter when Baxter shot at him. Consequently, unlike in Gaines, supra, 54 Cal.App.4th 821, where there was no evidence of the absent witness’s out-of-court statements (id. at pp. 823-825), in this case there was evidence of Wyatt’s statements on the issue. It was thus not improper for the prosecutor to infer from that evidence admitted during trial (albeit improperly) that Wyatt’s trial testimony would also have corroborated Jones’s testimony. (Sanchez, supra, 12 Cal.4th at p. 71 [the prosecutor has “ ‘broad discretion’ ” to state her “ ‘views as to what the evidence shows and what inferences may be drawn therefrom’ ”].) Similarly, it was not improper for the prosecutor to argue, again based on the statements by Wyatt in evidence, that her testimony would not corroborate Baxter’s story. As we also discuss in section III., ante, Wyatt’s statements relating to self-defense were contradictory.

The prosecutor’s statement that this was the reason Wyatt did not testify at trial was based on facts not in evidence as there was no evidence to explain her absence. However, we conclude beyond a reasonable doubt that this statement by the prosecutor did not affect the jury’s verdicts. (Gaines, supra, 54 Cal.App.4th at p 825.) Again, the judge had admonished the jury that the prosecutor’s argument was not evidence in the case. (Sanchez, supra, 12 Cal.4th at p. 70). And as we discuss in section III., ante, we have concluded that the jury would have reached the same verdicts based on the properly admitted evidence before it even without the benefit of Wyatt’s statements. Consequently, we conclude the jury would have reached the same verdicts without the benefit of any of the prosecutor’s argument about Wyatt, let alone this single statement.

c. Ineffective Assistance of Counsel Claim

We need not address Baxter’s ineffective assistance of counsel claim as we do not conclude defense counsel caused Baxter to waive or forfeit these prosecutorial misconduct claims on appeal.

DISPOSITION

The judgment is affirmed.

_________________________

Parrilli, J.

We concur:

_________________________

Corrigan, Acting P. J.

_________________________

Pollak, J.

[1] As we discuss in Section V. post, this witness, James Taylor, testified at trial that he lied when he told the police he had seen Baxter that night. A tape recording of Taylor’s statements to the police was played to the jury.

[2] (Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).)

[3] During the pendency of this appeal, the United States Supreme Court “[i]n Johnson v. California (2005) --- U.S. ---. 125 S.Ct. 2410, 2419, . . . [Johnson v. California] . . . reversed [the California Supreme Court’s] decision in People v. Johnson (2003) 30 Cal.4th 1302 [Johnson]. . . , and held that ‘California’s “more likely than not” standard [for determining when there has been a prima facie showing that a juror has been excluded based on group or racial identity] is at odds with the prima facie inquiry mandated by Batson.’ ” (Ward, supra, 36 Cal.4th at p. 201, fn. 2.) Because the trial court in this case found a prima facie case of discrimination, “Johnson does not affect our” analysis. (Id.) Moreover, the trial court in this case followed the same standard set forth in Johnson v. California.

[4] In recognition of the relevance of this factor, the questionnaire provided to all prospective jurors in this case asked whether the prospective juror or any members of his or her family or close friends had ever been arrested or charged with any type of criminal offense.

[5] Contrary to what Baxter asserts, the record shows the prosecutor did ask Dana N. about both her current job for a nonprofit and about her prior employment with AT&T.

[6] In this section, unless otherwise indicated, all statutory references are to the Evidence Code.

[7] Section 1101 provides that evidence of a person’s character is generally inadmissible “to prove his or her conduct on a specified occasion.” (Evid. Code, § 1101, subd. (a).)

[8] To “adduce” is defined as “to bring forward (as in explanation, proof, or demonstration).” (Webster’s New Collegiate Dictionary (1977), p. 14.) Contrary to what Baxter argues, section 1103’s use of the word “adduced” does not suggest that it is defense counsel who must “bring forward” the evidence.

[9] While it may have been proper for the trial court also to admit into evidence (with a limiting instruction) those portions of Baxter’s testimony regarding Jones’s reputation and criminal conduct which the court had ordered stricken, defense counsel never requested that these portions of Baxter’s testimony be admitted.

[10] Defense counsel argued during the hearing on the admissibility of this evidence that Wyatt’s out-of-court statements regarding what Baxter told her about the shooting itself were hearsay and not admissible as statements against penal interest. Defense counsel argued these were not statements about Wyatt’s post-shooting conduct which could make her an accessory under Penal Code section 32. However, the trial court rejected this argument, concluding all of Wyatt’s statements were against her penal interest and admissible under Evidence Code section 1230. In reaching this conclusion, the trial court relied on People v. Wilson (1993) 17 Cal.App.4th 271 (Wilson). In Wilson, the Court of Appeal noted that “[a]ccessory liability attaches only to a person who acts with the knowledge that a principal has committed or been charged with the commission of a felony.” (Id. at p. 276.) The court in Wilson held that a wife’s out-of-court statement to police that her husband had told her he had used a gun “to shoot the Mexicans” established “she had knowledge that a felony had been committed” for purposes of accessory liability. (Id. at pp. 274, 276.) “That knowledge, coupled with her statement that she concealed the gun, exposed her to criminal liability as an accessory. . . . The fact that the statement [regarding shooting the Mexicans was] also disserving to [the defendant husband did] not render the statement unreliable and inadmissible.” (Id. at p. 276) Baxter does not raise this issue on appeal. Consequently, this issue has been waived. Moreover, as we discuss in section III.b. post, Wyatt’s statements largely corroborated Baxter’s trial testimony. Thus, regardless of the hearsay issue, competent trial counsel properly could have made a tactical decision not to object to the admissibility of Wyatt’s statements.

[11] Indeed, during his own testimony, Baxter said Blake was a “good” and “upstanding” man, who was “good-natured” and “dependable.” When explaining why he felt bad about Blake’s death, Baxter himself engendered sympathy for Blake by emphasizing Blake had a family dependent on him and that he (Baxter) could not imagine the impact Blake’s death had on that family.