Filed 1/22/20 P. v. Gause-Subia CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

STEPHEN PATRICK GAUSE-SUBIA,

Defendant and Appellant.

H045552

(Santa Clara County

Super. Ct. Nos. F1557331, C1638766)

I. INTRODUCTION
II.
Defendant Stephen Patrick Gause-Subia appeals after a jury convicted him in case No. F1557331 of first degree murder (Pen. Code, § 187) and willful, deliberate, and premeditated attempted murder (§§ 664, 187, 189). The jury found true the allegations that defendant personally used a deadly or dangerous weapon, a knife, during the commission of the offenses (§ 12022, subd. (b)(1)) and that he inflicted great bodily injury during the commission of the attempted murder (§ 12022.7, subd. (a)). The trial court sentenced defendant to 25 years to life for the murder, consecutive to life with the possibility of parole for the attempted murder, consecutive to five years for the enhancement allegations.

Defendant contends that the evidence was insufficient to support both the attempted murder conviction and the jury’s finding that the attempted murder was willful, deliberate, and premeditated; the trial court abused its discretion when it admitted autopsy photographs and police body camera videos into evidence; the prosecutor committed Griffin error when questioning defendant’s expert witness; the trial court improperly permitted the prosecutor to argue that the jury could consider defendant’s demeanor at trial; cumulative error warrants reversal; and the abstract of judgment must be corrected.

For reasons that we will explain, we will affirm the judgment while directing the trial court to issue an amended abstract of judgment that correctly reflects the sentence imposed.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Prosecution Evidence

In late 2015, defendant’s 60-year-old aunt, Olivia Subia, lived with defendant’s 83-year-old grandmother, Margarita Subia, at Margarita’s home in Gilroy. Defendant’s father, Mike, and defendant’s brother, Frank, also lived at the house. While defendant lived there sporadically, there were times when his family would not let him stay there due to his behavior. Defendant was repeatedly asked to leave because of his drinking and drug use and the fact that he was loud, disruptive, and did not follow the house rules. On three occasions, family members had to call the police to have defendant removed. However, even when defendant was not supposed to be staying at the house, Mike sometimes allowed him to shower and bathe there. There were also times when Margarita allowed him to stay.

Around September 22, 2015, defendant told Olivia when he was asked to wait at a park while Olivia took Margarita to a doctor’s appointment, “I’m not mad right now, Auntie, but when I do get mad, you’ll see.”

On October 5, 2015, defendant was not supposed to be staying at the house. Around 4:00 or 5:00 a.m., Olivia heard a coughing sound coming from the front window of the kitchen. A few minutes later, she heard a knock on the sliding glass door and asked, “Who is it?” Defendant responded, “It’s Stephen,” and told her that Mike had given him permission to stay in his room. Olivia responded by saying, “No.” Defendant knocked a few more times but Olivia did not answer. It was not uncommon for defendant to knock like that in the middle of the night. A few minutes later, Olivia heard defendant come to the front yard and say, “Fucking.”

At some point, Margarita allowed defendant into the house. Margarita asked defendant whether he had been drinking, but he went straight to Mike’s room without responding. Margarita went back to her own room. At approximately 5:15 or 5:30 a.m., Olivia left for work.

Olivia came home from work at approximately 5:30 p.m. She left briefly to loan her car to her older brother “Trini” but then returned. While she was inside the hallway bathroom, Olivia heard screaming and yelling. As she reached for the bathroom doorknob, defendant kicked the door in and Olivia fell backwards onto the floor. Defendant attacked her. Olivia tried to protect herself by holding her hands above her head and putting her feet in the air. Defendant repeatedly stabbed Olivia in the head and she began to bleed. After about one to two minutes, the blade from defendant’s knife broke and became lodged in Olivia’s skull. Defendant “just stopped” and walked down the hallway towards Olivia’s room. Defendant then left the house.

Olivia believed that defendant was going to kill her. Although she could not see defendant’s face as he was attacking her, Olivia had no doubt that it was him. Defendant was wearing “black or red shorts with a stripe down the side.” He was not wearing a shirt.

After waiting until she did not see defendant, Olivia walked out of the bathroom and into the hallway. As she turned to the left, she could see that Margarita was in her room and that she was bleeding from her head. Olivia called 911. When police arrived, Margarita was conscious but confused. Margarita told them that her grandson had attacked her. Olivia and Margarita were taken to the hospital for treatment.

After learning of the attack, Frank went home and then went to the hospital. On the way to the hospital, Frank was 90 percent sure that he saw defendant in the parking lot of a 7-Eleven. Defendant appeared hunched over and “zombielike.” He was dragging his footsteps with his head leaning forward as if he were looking at the ground. Frank called 911.

Officer Andrew Viale arrived in the area of the 7-Eleven around 8:22 p.m. Officer Viale saw defendant and noted that he was wearing a black shirt and long gray shorts.

Upon observing defendant, the officer activated his emergency lights and pulled up approximately 10 feet behind him. Officer Viale exited the car with his gun drawn. He told defendant to get on the ground and to lie face down. Defendant followed the officer’s commands and did not appear to be confused by the officer’s instructions. He was cooperative during the arrest and appeared very calm.

When Officer Viale asked defendant to tell him what he weighed, defendant responded that “he eats.” He appeared to be acting sarcastic. Officer Viale asked defendant for his name and date of birth and defendant responded that his name was “JT Subia” and gave an incorrect birth date. When officers searched defendant, they did not find a knife or any other weapon. Officer Viale took defendant to the police department.

At approximately 9:00 p.m., Officer Dawn Delfino met with defendant to photograph him, document any injuries, and collect his clothing. Defendant was cooperative and appeared to understand what Officer Delfino was saying, but he seemed tired and his speech was mumbled. Officer Delfino did not think defendant was under the influence of drugs or alcohol. His eyes did not appear to be watery or bloodshot and his pupils appeared to be within normal range.

At 2:00 a.m. on October 6, 2015, Olivia underwent emergency neurosurgery for life-threatening injuries. She had been stabbed four times in the head and the tip of the knife had embedded in her skull. The surgeon observed that the knife had gone through Olivia’s scalp, bone, and brain matter, and that it had contused her brain causing it to bleed. A plastic surgeon who treated Olivia determined that her index finger was fractured and there was a complete transection of the tendons that controlled her pointer finger. It took Olivia eight months to recover from the attack.

Margarita fell into a coma after surgery was performed to relieve the pressure on her brain. She never regained consciousness and died on October 18, 2015.

According to the forensic pathologist who performed Margarita’s autopsy, Margarita suffered 21 sharp force injuries to her face, head, chest, left thigh, left hand, and right forearm. She also had blunt force wounds on multiple surfaces of her body, but her injuries were predominantly focused on her face and head. Margarita had a complex facial and skull fracture and her nose was fractured. One of the stab wounds went through Margarita’s eyelid and into the globe of her left eye. Margarita was also stabbed twice on her left hand; one of those wounds went entirely through her hand.

An internal examination revealed that Margarita had significant injuries to her head and her brain was swollen. Margarita had been hit with enough force to cause brain damage. The pathologist opined that the front of Margarita’s face had also been slammed into a hard surface or she had been struck with something. Margarita’s cause of death was multiple sharp and blunt force injuries and the manner of death was homicide. Margarita undoubtedly died from the October 5, 2015 attack.

B. Defense Evidence

Defendant’s theory at trial was that he was unconscious due to voluntary intoxication when he attacked Margarita and Olivia. In support of this defense, defendant called witnesses who had seen him on the date of the attack and an expert who testified on the effects of drugs and alcohol. Defendant did not testify.

Steven Joseph Fernandez, Jr., testified that he had known defendant for approximately four years and they saw each other frequently. Around noon on October 5, 2015, defendant knocked on Fernandez’s front door and Fernandez let him in. Fernandez noticed that defendant looked different that day, like he was “kind of bugged out.” It did not seem like defendant was sober, but he also appeared different from the times that Fernandez had seen him under the influence of drugs or alcohol. Defendant spoke slowly, slurred, and mumbled. Although defendant was not stumbling, he was not walking normally. After about 45 minutes to an hour, defendant and Fernandez went to an adjacent parking lot where they smoked marijuana and a friend from high school joined them. Defendant did not interact much and appeared to be laughing and speaking to himself.

Fernandez stated that after he went inside the house to check on his daughter, he returned to find defendant sitting in the driver’s seat of his neighbor’s truck. Fernandez asked, “What the fuck are you doing?” and told defendant, “You’re not supposed to be doing that. This is my neighbor’s car. I live here. You can’t be doing that type of shit here.” Defendant got out of the truck. While they walked back to Fernandez’s garage, defendant talked to himself. Defendant left around 2:30 p.m. His walk “wasn’t as bad as it was before,” but his speech and the way his face looked were the same as when he had arrived at Fernandez’s house.

On cross-examination, Fernandez testified that defendant “always [kind] of mumbles” whether he is “stoned or not.”

Defendant’s father Mike testified that defendant drank alcohol, smoked marijuana, and had used methamphetamine. On October 5, 2015 at 5:00 a.m., Mike left Margarita’s house for work. When Mike came home at about 4:45 p.m., he was surprised to see defendant lying on his bed. Defendant had red eyes and appeared to be “nodding out” like he had been up for days. He would drop his head before picking it up and his eyes were opening and closing. Defendant’s speech was slurred.

Mike stated that defendant’s demeanor was different from other times that he seemed high or drunk. Even so, Mike believed that defendant was under the influence of something. Mike told defendant that he needed to get his life together and defendant said, “Okay, dad. I’m okay. I love you.” Mike then left the house for his 6:00 p.m. racquetball game.

Laura Estrada, the phlebotomy technician who drew defendant’s blood at 9:31 p.m. on October 5, 2015, testified that defendant “had a big smile” when she met him and was “smiling the whole time.” When she asked him a few questions, he became serious and did not respond. Estrada stated that defendant smelled of alcohol, his eyes were very red, and his speech was rambling. She believed that defendant was under the influence of drugs.

The parties stipulated that defendant’s blood tested positive for THC, THC COOH, methamphetamine, and amphetamine. Defendant’s blood had a blood alcohol concentration of .039 percent. Defendant’s blood tested negative for PCP, cocaine, and opiates.

Dr. Melissa Piasecki testified as an expert in general psychiatry, forensic psychiatry, and substance abuse. Based on her training and experience, Dr. Piasecki testified that the voluntary use of alcohol, THC, and methamphetamine could cause a person to become unaware of his or her actions. Dr. Piasecki stated that there were two ways such unawareness could result. An individual could experience psychosis and hallucinate or an individual could experience global brain dysfunction or “delirium” and no longer have clear thoughts or purposeful behavior.

Dr. Piasecki testified that defendant’s blood test results suggested that he had ingested THC within six to twelve hours of his blood draw and had ingested methamphetamine within four to sixty hours of the blood draw. Assuming that defendant had not consumed alcohol in the three hours before his blood was drawn, Dr. Piasecki estimated that defendant would have had a blood alcohol level of .09 or .10 percent at 6:00 p.m. A person with that blood alcohol level would have difficulty passing field sobriety tests and problems with coordination. Combined with THC or methamphetamine, a .09 or .10 percent blood alcohol content would cause a person to experience more severe impairment.

Dr. Piasecki testified that she watched the video recording of defendant’s arrest. Dr. Piasecki stated that defendant followed instructions in a “fairly responsible way.” However, she observed that defendant appeared to question why officers were placing him in handcuffs, which suggested that he may have been unaware of “the situation that [led] him to be arrested and handcuffed.” Dr. Piasecki also noted that some of defendant’s responses to the officers’ questions did not make sense. For example, when he was asked how his name was spelled, defendant said “J-T. It’s spelled J-T.” Defendant also appeared to be fairly “unreactive” in an objectively anxiety-provoking situation. Dr. Piasecki opined that defendant’s behavior was consistent with someone who was under the influence of methamphetamine, alcohol, and/or THC.

Dr. Piasecki also watched the video recording of defendant’s interview by Detective Cryar. Dr. Piasecki stated that defendant’s posture and behavior during the interview could be consistent with intoxication resulting from the use of methamphetamine, alcohol, and marijuana. She opined that it was possible that defendant was intoxicated and either sedated or tired or he could have been in a state of withdrawal from a stimulant. Based on a hypothetical that tracked the facts of defendant’s attack on Olivia and Margarita, Dr. Piasecki testified that it was “reasonably possible” a perpetrator in those circumstances and with similar toxicology results was unconscious or unaware of his or her actions.

On cross-examination, Dr. Piasecki testified that there were no studies that had determined that a person who had used methamphetamine met the definition of legal unconsciousness, but she was aware of studies that documented methamphetamine-induced psychosis that may or may not have resulted in a state of legal unconsciousness. Similarly, Dr. Piasecki testified that she was unaware of any studies that documented a state of legal unconsciousness that had been caused by THC, but she was aware of studies that documented confusion and psychosis caused by THC. Dr. Piasecki also stated that she was not aware of any studies that documented a state of legal unconsciousness caused by alcohol. Dr. Piasecki testified that a person of defendant’s height and weight would only experience a “blackout” from alcohol at a blood alcohol concentration higher than .101 percent. Dr. Piasecki stated that a person who used methamphetamine two days before the offense, smoked marijuana at noon on the date of the offense, and drank some alcohol sometime after 6:30 p.m. on the date of the offense, could have had the same blood test results as defendant.

C. Prosecution’s Rebuttal

Officer Robert Zuniga testified that he spoke with Mike at the hospital on the night of the offense. Mike stated that he had not talked to defendant that evening and did not know where he was. Officer Zuniga testified that when he asked Mike where defendant might have gone, Mike said the only place he could think of was defendant’s friend Steven’s apartment, which was in a complex across from Gilroy High School. Mike provided the officer with defendant’s cell-phone number.

Mark Burry testified as an expert in forensic toxicology, drug impairment, alcohol analysis, and alcohol impairment. Burry stated that there was no way to determine when defendant had consumed alcohol based on his blood alcohol concentration. Burry testified that methamphetamine can be used in a therapeutic setting to treat attention deficit disorder and narcolepsy. Someone taking methamphetamine for attention deficit disorder would be expected to have .050 micrograms per milliliter of methamphetamine in his or her blood; someone being treated for narcolepsy would be expected to have .200 micrograms per milliliter of methamphetamine in his or her blood. Based on the fact that methamphetamine and amphetamine were detected in defendant’s blood, Burry opined that defendant could have ingested methamphetamine as recently as 20 minutes before his blood was drawn or up to 60 hours before the blood draw. Burry testified that the effects of methamphetamine last about six to twelve hours. According to Burry, a person who drank alcohol, smoked some form of THC, ingested methamphetamine sometime between 6:15 p.m. and 8:30 p.m., and had his or her blood drawn at 9:31 p.m., could have had the same blood test results as defendant. Burry was unaware of any studies that documented methamphetamine as a cause of legal unconsciousness.

Defense investigator Maria Miracle testified that she interviewed Mike on January 26, 2017. Miracle stated that Mike told her that defendant would sneak into the house through Mike’s bedroom window and that sometimes defendant was allowed to be in the home, but only when Mike was there, too. Mike said that defendant caused Margarita anxiety.

Miracle testified that Mike told her he saw defendant at the house in the late afternoon or early evening of October 5, 2015. Defendant was in Mike’s room when Mike got out of the shower, and Mike believed that defendant had entered the house through the window. Mike stated that defendant “looked high and out of it.” Margarita and Olivia were there when Mike left the house around 5:00 or 5:30 p.m.

Defense investigator Annabeya Ayala testified that she interviewed Mike in June and July 2016. Mike told her that defendant had been kicked out of a friend’s house. Mike said that one of the reasons defendant was kicked out of Margarita’s house was because he was loud and disruptive and would not allow anyone to sleep at night. Ayala stated that Mike told her that about two to three weeks before the offense, defendant was kicked out of the house because he was getting high and bringing people over.

D. Charges, Verdict, and Sentencing

Defendant was charged in a second amended information with murder (§ 187; count 1) and willful, deliberate, and premeditated attempted murder (§§ 664, 187, 189; count 2). It was also alleged that defendant personally used a deadly or dangerous weapon, a knife, during the commission of both offenses (§ 12022, subd. (b)(1)) and that defendant inflicted great bodily injury during the commission of count 2 (§ 12022.7). A jury found defendant guilty as charged.

The trial court sentenced defendant to 25 years to life on count 1, consecutive to life with the possibility of parole on count 2, consecutive to five years for the various sentence enhancements.

III. DISCUSSION

A. Sufficiency of the Evidence

Defendant contends that his conviction of attempted murder must be reversed because there is no substantial evidence either that he intended to kill Olivia or that the attempted murder was willful, deliberate, and premeditated. We are not persuaded.

1. Standard of Review
2.
“ ‘ When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ ” (People v. Powell (2018) 5 Cal.5th 921, 944.)

In assessing whether the evidence is sufficient to sustain a conviction, “[w]e neither reweigh the evidence nor reevaluate the credibility of witnesses. [Citation.] We presume in support of the judgment the existence of every fact the jury reasonably could deduce from the evidence. If the circumstances reasonably justify the findings made by the trier of fact, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.”

(People v. Jennings (2010) 50 Cal.4th 616, 638-639.) “Further, [we] accept logical inferences that the jury might have drawn from any circumstantial evidence.” (People v. Mejia (2012) 211 Cal.App.4th 586, 602.)

3. Sufficiency of the Evidence of Intent to Kill
4.
Defendant contends there is insufficient evidence that he intended to kill Olivia because there is no evidence that he ever threatened to kill or injure her and because he abandoned the attack on his own “free will” while Olivia was still “clearly alive and resisting.” We determine there is substantial evidence that defendant intended to kill Olivia based on the circumstances of the crime and defendant’s acts. (People v. Sánchez (2016) 63 Cal.4th 411, 457 (Sánchez); see also People v. Smith (2005) 37 Cal.4th 733, 741 (Smith).)

A conviction for attempted murder requires a showing of a “specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.” (People v. Lee (2003) 31 Cal.4th 613, 623; People v. Swain (1996) 12 Cal.4th 593, 604-605.) “Because direct evidence of a defendant’s intent rarely exists, intent may be inferred from the circumstances of the crime and the defendant’s acts.” (Sánchez, supra, 63 Cal.4th at p. 457; see also Smith, supra, 37 Cal.4th at p. 741.) Whether a defendant acted with such intent is a question for the trier of fact that can be proven by either direct or circumstantial evidence. (People v. Lashley (1991) 1 Cal.App.4th 938, 945-946 & fn. 4; People v. Belton (1980) 105 Cal.App.3d 376, 380-381.)

People v. Avila (2009) 46 Cal.4th 680 (Avila) is instructive. There, the defendant became involved in a confrontation with a group of friends, including David Montoya, who were socializing in a parking lot. (Id. at p. 686.) After the confrontation appeared to dissipate, the defendant grabbed a large knife. (Ibid.) As Montoya tried to roll up the window of his car, the defendant shattered the window and stabbed him more than twenty times. (Ibid.) He then stabbed two other members of the group in the heart, killing them. (Ibid.)

In finding sufficient evidence of an intent to kill Montoya, our state high court observed that the “defendant repeatedly attempted to stab Montoya, an unarmed and trapped victim, and succeeded in stabbing him in the arm and leg. This evidence alone is substantial evidence of defendant’s intent to kill.” (Avila, supra, 46 Cal.4th at pp. 701 702.) Moreover, the court determined that the jury “reasonably could have inferred defendant had the same intent to kill when, immediately prior to the murders, he attacked Montoya in the same manner.” (Id. at p. 702.)

Here, the evidence established that Olivia was in the hallway bathroom when defendant kicked in the door, knocking her to the floor. Defendant then repeatedly stabbed Olivia in the head so forcefully that the knife went through her skull and into her brain, causing her brain to bleed and the blade to lodge in her skull. Defendant’s ambush on Olivia came immediately after he brutally attacked Margarita, where he also inflicted injuries to Margarita’s head and face—injuries that were ultimately fatal.

The jury could reasonably infer from the circumstances of defendant’s attack on Olivia, which occurred while she was unarmed in a confined space and immediately after he had inflicted fatal injuries on Margarita, that he intended to kill her. (See Avila, supra, 46 Cal.4th at pp. 701-702; see also People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1552 [evidence of intent to kill was shown in part by repeated stabbing in an unprovoked attack where the victim was unarmed and defenseless].) In addition, the jury could reasonably infer that defendant intended to kill Olivia based on evidence that he repeatedly and forcefully stabbed her in the head, a vital part of her body. (See People v. Bolden (2002) 29 Cal.4th 515, 561 [determining that the defendant “could have had no other intent than to kill” when he plunged the knife deeply into a “vital area of the body of an apparently unsuspecting and defenseless victim”]; People v. Moore (2002) 96 Cal.App.4th 1105, 1114 (Moore) [finding sufficient evidence of specific intent to kill the attempted murder victim where the defendant stabbed the victim “in the abdomen, an extremely vulnerable area of the body”].)

While defendant argues that he stopped his attack on Olivia “of his own free will,” the evidence established that he stopped stabbing her when the blade of his knife broke. The fact that defendant “ ‘ “abandoned his efforts out of necessity or fear does not compel the conclusion that he lacked the animus to kill in the first instance.” [Citation.]’ [Citation.]” (Smith, supra, 37 Cal.4th at p. 741.)

For all of these reasons, we conclude there is sufficient evidence in the record that defendant intended to kill Olivia.

5. Sufficiency of the Evidence that the Attempted Murder Was Willful, Deliberate, and Premeditated
6.
Defendant contends that the jury’s finding that his attempt to murder Olivia was willful, deliberate, and premeditated is not supported by sufficient evidence because there was little evidence of motive and no evidence of planning, and the attack was sudden and violent. We conclude otherwise.

Although attempted murder is not divided into degrees, section 664, subdivision (a) contains a penalty provision requiring the imposition of a life sentence based on a finding that the attempted murder was willful, deliberate, and premeditated. (See People v. Bright (1996) 12 Cal.4th 652, 656-657, overruled on another point by People v. Seel (2004) 34 Cal.4th 535, 550, fn. 6.) “ ‘ “Willful” means intentional.’ ” (Moore, supra, 96 Cal.App.4th at pp. 1112-1113.) “ ‘ “Deliberation” refers to careful weighing of considerations in forming a course of action; “premeditation” means thought over in advance.’ ” (People v. Sandoval (2015) 62 Cal.4th 394, 424.) “ ‘ “The process of premeditation and deliberation does not require any extended period of time. ‘The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly.’ ” ’ [Citation.]” (Ibid.)

In People v. Anderson (1968) 70 Cal.2d 15, 26-27 (Anderson), the California Supreme Court outlined three categories of evidence that may show premeditation and deliberation: (1) the defendant’s actions prior to the offense that show planning activity; (2) facts about the defendant’s prior relationship and conduct toward the victim that show a motive to kill the victim; and (3) evidence regarding the nature and manner of the killing from which the jury could infer the defendant must have “intentionally killed according to a ‘preconceived design.’ ” The court has since “emphasized that [Anderson’s] guidelines are descriptive and neither normative nor exhaustive, and that reviewing courts need not accord them any particular weight.” (People v. Rivera (2019) 7 Cal.5th 306, 324 (Rivera).) However, “[w]hen the record disclose[s] evidence in all three categories, the verdict generally will be sustained.” (People v. Proctor (1992) 4 Cal.4th 499, 529.)

We find evidence of all three Anderson factors in the record. First, there is evidence of planning activity. Instead of leaving the house after he attacked Margarita in her bedroom, defendant walked down the hallway and kicked down the bathroom door to reach Olivia. The California Supreme Court has determined that similar conduct shows premeditation and deliberation. In People v. Potts (2019) 6 Cal.5th 1012, 1028, for example, the court concluded that “[t]he evidence of premeditation and deliberation was particularly strong with respect to [the second victim], because defendant had to travel through the house to reach her after attacking [the first victim] near the front door.” Similarly, in People v. Cage (2015) 62 Cal.4th 256, 277, the court found evidence of premeditation and deliberation where “instead of . . . leaving the home, defendant stepped over or around [one victim’s] bloody body and proceeded up the stairs to [the other victim’s] room.” Beyond there being at least a short passage of time between the two offenses here, defendant had to take considered, purposeful, and deliberate steps to attack Olivia. Under these circumstances, there is evidence of planning activity even assuming that defendant formulated the plan to kill Olivia shortly before attacking her. (See, e.g., People v. Harris (2008) 43 Cal.4th 1269, 1287; Potts, supra, 6 Cal.5th at p. 1027.)

Second, there is evidence of motive. Olivia testified that she and Margarita had previously called the police on defendant. Approximately one to two weeks before the offense, defendant became angry and told Olivia, “I’m not mad right now, Auntie, but when I do get mad, you’ll see.” On the morning of the attack, defendant knocked on Olivia’s window and told her that Mike had given him permission to stay there. Olivia responded by saying, “No,” and did not let defendant into the house. A jury could reasonably infer from the evidence of these interactions that defendant had a motive to attack Olivia. (See Rivera, supra, 7 Cal.5th at p. 325 [evidence of motive can be inferred from prior relationship and conduct]; People v. Cruz (1980) 26 Cal.3d 233, 245 [“Defendant’s pent-up resentment toward his victim establishes the prior relationship from which the jury reasonably could infer a motive for the killings.”].)

Third, there is evidence based on the nature of the attack that defendant premeditated and deliberated. Defendant stabbed Olivia repeatedly in the head with such force that the blade lodged in her skull. A rational jury could reasonably infer from the manner, force, and placement of defendant’s blows that defendant deliberately intended to kill her. (See Anderson, supra, 70 Cal.2d at p. 27 [“plunging a lethal weapon into the chest evidences a deliberate intention to kill”].) Moreover, Olivia testified that defendant attacked her for a minute or two, which gives rise to “an implied interval to reflect” and provides further evidence that defendant had the opportunity to premeditate and deliberate. (People v. Williams (2018) 23 Cal.App.5th 396, 410; see also People v. Stitely (2005) 35 Cal.4th 514, 544 [the defendant’s application of lethal pressure to the victim’s neck “suggests defendant had ample opportunity to consider the deadly consequences of his actions”].)

For these reasons, we conclude there is substantial evidence in the record that “reasonably justif[ies]” the jury’s finding that defendant’s attempt to murder Olivia was willful, deliberate, and premeditated. (Jennings, supra, 50 Cal.4th at pp. 638-639.)

B. Admission of Autopsy Photographs and Police Body Camera Videos

Defendant contends that the trial court erred when it admitted autopsy photographs and police body camera footage into evidence because the evidence’s prejudicial effect outweighed its probative value. Defendant also contends that the erroneous admission of the photographs and videos violated his Fourteenth Amendment right to a fair trial. We find no error.

1. Background
2.
The prosecutor filed a motion in limine to move 20 autopsy photographs and several police body camera videos into evidence. The prosecutor argued that the autopsy photographs were relevant to prove malice aforethought and the degree of the crime. Regarding the body camera videos, the prosecutor asserted that the videos’ probative value was “exceedingly high,” in part because the videos were the only documentation of Margarita’s injuries at the scene prior to medical treatment. The prosecutor argued that the footage would allow the jury to observe the crime scene, assess Margarita’s and Olivia’s injuries before medical intervention, and enable their understanding of other evidence. In addition, the prosecutor asserted that Officer Stanford’s body camera video provided evidence of defendant’s guilt because it included Margarita’s statements that her grandson attacked her. The prosecutor provided the court with all of the autopsy photographs and full-length copies of the body camera videos for its review.

During the hearing on the motion, the trial court stated that it had reviewed the autopsy photographs and body camera videos. The court observed that Officer Stanford’s body camera video was approximately 12 minutes 28 seconds long. It showed that Margarita was still sitting up when the officer arrived and recorded her medical treatment and removal from the scene. The court stated that the prosecution had edited “[the] video down substantially to three clips” it sought to move into evidence.

Defendant objected to the admission of the autopsy photographs and body camera videos. Defendant noted that a coroner would be testifying regarding Margarita’s injuries and argued that because he was not going to dispute the injuries or Margarita’s cause of death, the videos were not relevant and, even if they were, their probative value was outweighed by their prejudicial effect. Defendant asserted that the footage was “graphic,” “very disturbing,” and “inflammatory,” observing that one of the clips showed medical responders putting a tube into Margarita’s eye area to remove blood. Alternatively, defendant argued that the autopsy photographs and body camera videos were cumulative to each other and asked the court to admit only the photographs or the videos. Defendant also requested the court to limit the number of autopsy photographs admitted.

The trial court acknowledged that the body camera videos were disturbing but found they were relevant to prove intent, premeditation, deliberation, identification, and defendant’s personal use of a knife, all of which the prosecution had to prove to the jury beyond a reasonable doubt. Noting that there were no photographs of the victims at the scene, the court found that the video footage was not cumulative. The court stated that each video clip was less than two minutes long and one clip was less than a minute. The court determined the first video clip was relevant to show Margarita as the first responders found her and for evidence of Margarita’s statement regarding who inflicted her injuries. The court observed that the first clip did not show “too much of Margarita” and was not “particularly prejudicial [or] even particularly gory or gruesome,” although it was “disturbing because [Margarita] is bleeding.” The court concluded that the first clip was “certainly . . . not more prejudicial than probative.”

Regarding the second clip, the trial court stated that it “is really admitted for the purpose of showing [Margarita’s] injuries.” The court observed that the video showed the injuries to Margarita’s face, head, and hand and the blood flowing from her eye, which was “difficult . . . to watch.” The court noted that the video was “pretty short” and did not have sound, which helped to reduce its prejudicial impact. The court stated that “sometimes you just are stuck with things being particularly disturbing or gory or gruesome because that is the effect of what happened,” and ruled that the video was admissible. The court stated, “[T]he jury needs to determine the injuries, the extent of the injuries, and those things are going to be relevant to intent, premeditation, deliberation, great bodily injury, the defense in this case[,] and so forth.”

Regarding the third video clip, the trial court confirmed that it was being offered for Margarita’s statement that her grandson attacked her and determined that the statement was admissible.

Regarding the video of Olivia taken by Officer Zuniga’s body camera, the court found that it “did not see any [Evidence Code section] 352 issues with [it]” and that it was admissible because it showed Olivia’s injuries.

After discussing the autopsy photographs with counsel in chambers during trial, the trial court determined the photographs were relevant and not cumulative. The court stated that it had shared defendant’s concern regarding a photograph that showed Margarita’s brain, but the prosecutor had provided “a new version” of the photograph that defendant did not object to. Defendant objected to a photograph showing Margarita with her head tilted back and her eyes open, and the prosecutor agreed to withdraw it. Defendant also objected to a photograph showing an opening in Margarita’s neck that was not caused by the stabbing. The prosecutor responded that it was the only photograph that depicted the bruising to Margarita’s neck. The prosecutor anticipated that the coroner would testify that the opening in Margarita’s neck was caused by medical intervention and observed that other photographs showed Margarita with a breathing tube. The court determined that the photograph was admissible because it was not particularly gruesome or inflammatory, other photographs would show that a medical procedure had caused the opening to Margarita’s neck, and the coroner would testify that the opening was not an injury. Defendant “agree[d] that that’s the way to resolve that particular issue.”

Four video clips and nineteen autopsy photographs were ultimately admitted into evidence.

2. Standard of Review
3.
A trial court’s admission of victim photographs and crime scene videos is reviewed for abuse of discretion. (People v. Winbush (2017) 2 Cal.5th 402, 458 (Winbush) [photographs]; People v. Lewis (2001) 25 Cal.4th 610, 641 [videos].) The trial court’s decision will not be disturbed unless the evidence’s probative value is clearly outweighed by its prejudicial effect. (Winbush, supra, at p. 458.)

4. Analysis
5.
Defendant contends that the trial court erred when it admitted the autopsy photographs because they were “unnecessary since the coroner testified in graphic detail as to the number, nature, and location of [the] wounds suffered by Margarita.” Defendant asserts that the body camera videos were also cumulative of the coroner’s testimony and that because the contested issue at trial was defendant’s state of mind, not identity or cause of death, the “shock[ing], horrify[ing,] and disgust[ing]” evidence was more prejudicial than probative.

After independently reviewing the photographs and videos, we find that although they are disturbing and unpleasant, “as such evidence always is,” none of the exhibits is “unduly gruesome or inflammatory.” (See People v. Pollock (2004) 32 Cal.4th 1153, 1171, italics added.)

The autopsy photographs are not inflammatory or cumulative of each other. None shows Margarita’s exposed brain and her genitalia have been obscured from view. The photograph that includes the opening for a breathing tube is no more disturbing than any other autopsy photograph and is the only depiction of the bruising on Margarita’s neck. The photographs establish the location, cause, and severity of Margarita’s injuries and serve to illuminate the coroner’s testimony.

The first clip of the body camera footage of Margarita is one minute 54 seconds. It shows Margarita sitting in a chair bleeding profusely as officers and paramedics try to assist her. She is dazed but mumbles that her grandson came in and beat her. The second clip is one minute 59 seconds, has no audio, and shows paramedics treating Margarita inside an ambulance. The footage shows Margarita’s injuries, particularly the severe wound to her left eye and the paramedics’ attempts to treat it and suction the blood away from the area. The third clip is 32 seconds long and is taken at another point when Margarita is being treated by paramedics. The footage is taken from a different vantage point than the second clip and shows that Margarita’s scalp has been sliced open and she is bleeding profusely from her head. It also contains Margarita’s clear statement that her grandson inflicted her injuries.

The video clips are not cumulative of the autopsy photographs as they show Margarita alive and injured at the scene. They are also not cumulative of each other. Although the footage is unpleasant, it is clearly probative of the nature of the attack and the identity of the perpetrator and, as the trial court found, provides evidence of intent, premeditation, deliberation, identification, and defendant’s personal use of a knife. The evidence was “probative to the questions of the requisite state of mind of the perpetrator because the severity and number of wounds helped establish that the killing was intentional.” (People v. Perez (2018) 4 Cal.5th at 421, 458.)

The body camera video of Olivia is 40 seconds long, contains no audio, and shows her injuries before medical treatment. Although it is clear that Olivia has been bleeding and has sustained injuries to her head and hand, the footage is not particularly gory and is the only depiction of Olivia’s injuries before treatment. It, too, provides evidence of intent, premeditation, deliberation, and defendant’s personal use of a knife.

For these reasons, we determine that the trial court did not abuse its discretion when it found that the prejudicial effect of the photographs and videos did not clearly outweigh the evidence’s probative value. (See People v. Crittenden (1994) 9 Cal.4th 83, 134 (Crittenden); Evid. Code, § 352.) Based on our review of the evidence, we conclude that the trial court properly admitted the autopsy photographs and body camera videos to establish that the offenses were “premeditated and deliberate and to explain and corroborate the testimony of the forensic pathologist.” (People v. Riggs (2008) 44 Cal.4th 248, 304. (Riggs).) “[P]rosecutors, it must be remembered, are not obliged to prove their case with evidence solely from live witnesses; the jury is entitled to see details of the victims’ bodies to determine if the evidence supports the prosecution’s theory of the case.” (People v. Gurule (2002) 28 Cal.4th 557, 624.)

Although defendant also contends that the admission of the autopsy photographs and police body camera videos violated his Fourteenth Amendment right to a fair trial, he “forfeited that claim by failing to raise that independent ground below. [Citation.] To the extent defendant’s claim is a constitutional gloss on his trial objection and therefore not forfeited, it is without merit because there was no abuse of discretion. [Citation.]” (Riggs, supra, 44 Cal.4th at p. 304.)

C. Griffin Error

Defendant contends that the prosecutor prejudicially erred under Griffin when she asked Dr. Piasecki whether an unconscious person who stabbed his grandmother and aunt would show remorse for his actions once he regained consciousness. Defendant argues that the prosecutor’s question invited the jury to speculate about his failure to testify because only he could explain his lack of remorse. The Attorney General counters that the prosecutor did not comment on defendant’s silence and that she properly cross-examined the expert witness on the basis of her opinion.

1. Background

On cross-examination, the prosecutor asked Dr. Piasecki whether a person unaware of what is going on around him would still engage in goal-oriented behavior. Dr. Piasecki responded that she thought it was possible. When the prosecutor asked her to elaborate, Dr. Piasecki stated, “So I’ll give you an example. There may be somebody who is in a delirium state because they are experiencing a lot of confusion due to global brain dysfunction. It’s basically having a lot of confusion and disorientation. [¶] That person may be in a hospital. They may see somebody they think is a threat to them. It’s actually perhaps a nurse coming to take their blood pressure. They may strike and hurt that person as a goal, but they may be unaware of the situation. If they weren’t delirious, they would have said, ‘I would never hurt a nurse. That would be the last thing I would do.’ [¶] At the time they did behave in a way that appeared very goal-oriented because they saw the person, they used their fists, they struck the person. But they were unaware of their situation.”

The prosecutor later returned to Dr. Piasecki’s example, asking the expert how she would expect the person to react when he came out of the confusion or delirium. Dr. Piasecki responded, “Typically, a person in that situation is concerned both about their action[s], but also about the state they had been in.” The prosecutor asked, “Would you expect such a person — let’s go back to the hypothetical of this individual 20-year-old man who unconsciously, without awareness, stabs his grandmother and his aunt repeatedly in the head to an extent that the . . . grandmother dies and the aunt requires a craniotomy and a craniectomy to recover from her injuries and prevent her death. [¶] When that person is no longer unconscious or unaware of the acts and the effects of their acts and the results of their acts, would you expect that person to show remorse?” Defendant objected on the grounds of prosecutorial misconduct and burden shifting. The trial court excused the jury.

The trial court stated, “The issue is phrased in a hypothetical. The witness was given a hypothetical in terms of what one would see — a different hypothetical in an unconscious state. I don’t think its improper for the D.A. to give a hypothetical. [¶] I think the word ‘remorse’ may be a poor choice of words because it’s an attitude not a behavior. But I think to ask a hypothetical in terms of what . . . behavior one might see, hypothetically speaking, if it can be phrased in such a way, is not, in and of itself, improper. I think using the word ‘remorse’ — I sustained the objection to that, and it will be stricken. [¶] However, . . . given this witness’ opinion and example she gave, it is not improper for [the prosecutor] to test that” through a hypothetical question.

Defendant stated that Dr. Piasecki’s example was given on cross-examination and was not raised by the defense. The trial court agreed, but observed that it was volunteered by the witness as an example of an unconscious state and her view of what that meant. Defendant argued that there was “a particular . . . window of time that we are dealing with that ends with Detective Cryar’s interview . . . at 12:56 a.m. and anything . . . that either places at issue [defendant’s] failure to take responsibility or express remorse or to have a coming-to moment where he has become aware of his actions is beyond the scope of what’s been testified to, and essentially invites the jury to [impermissibly] consider . . . whether [defendant] has taken responsibility; why he’s not testifying; why he’s been brought here at trial.”

The trial court stated that it did not disagree with defendant’s comments. The court added, “[T]here are a number of times that [defendant] is seen throughout that evening at different levels, etc. I think that the D.A. needs to be very careful in terms of what time frame she is discussing because certainly he has a constitutional right to a trial; he has a right . . . not to testify. We don’t want [the jury] speculating about those things.” The court asked the prosecutor whether there was “any specific behavior or anything that would indicate [that] at some point after [defendant’s] arrest he’s aware of what happened.”

The prosecutor responded by observing that by the time of defendant’s interview with Detective Cryar, defendant had been arrested for attempted murder, had been processed, and was being interviewed by a detective. The prosecutor argued that defendant showed no sadness or upset for “his actions when he was apparently unaware of them.” Defendant countered that nothing in the record indicated that he was told the reason for his arrest and that the police officers at the scene made vague statements such as, “ ‘Something serious happened.’ ”

The trial court agreed that there was no evidence in the record that defendant had been informed that he was arrested for stabbing his grandmother. The court also observed that it was Dr. Piasecki’s testimony that at the time of defendant’s interview with Detective Cryar, defendant was still under the influence. The court concluded, “So I am going to sustain the objection unless there is some proffer from the People in terms of something specific. I’m not finding there to be prosecutorial misconduct based on exactly what I said before. This witness had made certain opinions, and you can test those opinions, but I am going to sustain the objection and strike the question from the record.”

2. Analysis

Griffin established that the Fifth Amendment of the United States Constitution forbids “comment by the prosecution on the accused’s silence.” (Griffin, supra, 380 U.S. at p. 615; U.S. v. Robinson (1988) 485 U.S. 25, 32 [Griffin prohibits “ ‘[the] prosecutor from suggesting to the jury that it may treat the defendant’s silence as substantive evidence of guilt.’ ”].) “Pursuant to Griffin, it is error for a prosecutor to state that certain evidence is uncontradicted or unrefuted when that evidence could not be contradicted or refuted by anyone other than the defendant testifying on his or her own behalf. [Citations.]” (People v. Hughes (2002) 27 Cal.4th 287, 371-372.) The California Supreme Court has also suggested “that it is error for the prosecution to refer to the absence of evidence that only the defendant’s testimony could provide. [Citation.] But although ‘ “Griffin forbids either direct or indirect comment upon the failure of the defendant to take the witness stand,” ’ the prohibition ‘ “does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence or call logical witnesses.” ’ [Citation.]” (Id. at p. 372.) Claims of Griffin error are evaluated by inquiring whether there is a reasonable likelihood that a prosecutor’s remarks would have been understood as referring to a defendant’s failure to testify. (People v. Clair (1992) 2 Cal.4th 629, 662 (Clair).)

Here, the prosecutor’s single question regarding remorse “cannot fairly be interpreted to refer to defendant’s failure to testify.” (Crittenden, supra, 9 Cal.4th at p. 147.) The reference to remorse occurred in a hypothetical question posed to the defense expert and was not a comment on defendant’s failure to take the stand or confess his guilt. Rather, it was a follow-up question to the expert’s statement that she would expect a person made aware of his or her unconscious, violent behavior to be concerned about his or her actions and his or her state of unconsciousness. In addition, as the trial court found, the prosecutor was entitled to test Dr. Piasecki’s opinion—rendered in response to a hypothetical posed by defendant—that it was reasonably possible that a person acting under circumstances that tracked the facts of this case was unconscious or unaware of his or her actions during the attack. Thus, it is not reasonably probable that the jury understood the prosecutor’s hypothetical question, which asked the expert whether she would expect a person to show remorse once he or she is made aware of his or her unconscious behavior, to reference defendant’s failure to testify. (See Clair, supra, 2 Cal.4th at p. 662.)

Moreover, even if we were to assume that the prosecutor’s hypothetical question indirectly violated Griffin, we would conclude that the error was harmless. “[I]ndirect, brief and mild references to a defendant’s failure to testify, without any suggestion that an inference of guilt be drawn therefrom, are uniformly held to constitute harmless error.” (People v. Hovey (1988) 44 Cal.3d 543, 572.) The trial court instructed the jury that “[a] defendant has an absolute constitutional right not to testify” and that it was “not [to] consider[,] for any reason at all the fact that the defendant did not testify.” The jury was also instructed that “[n]othing the attorneys say is evidence” and “[t]heir questions are not evidence.” We presume the jury understood and correctly applied these instructions. (People v. Holt (1997) 15 Cal.4th 619, 677.)

For all of these reasons, we conclude that the prosecutor’s question did not constitute reversible error under Griffin.

D. Rebuttal Argument Regarding Defendant’s Courtroom

Demeanor

Defendant contends that the trial court erred when it allowed the prosecutor to reference in her rebuttal argument evidence regarding defendant’s courtroom demeanor. Defendant asserts that the prosecutor’s comments violated his Fifth Amendment right to remain silent and his Fourteenth Amendment right to due process and that his “courtroom behavior was not relevant to any disputed issue at trial.”

1. Background
2.
During defendant’s cross-examination of Detective Cryar, defendant played two video clips of his interview by the detective on October 6, 2015, and moved the complete video recording of the interview into evidence. On redirect, the prosecutor asked Detective Cryar whether defendant’s posture in court was consistent with his posture during the interview. Detective Cryar responded that “[s]hort of being able to lean against a wall, it appears very similar.” Detective Cryar also testified that in his opinion defendant’s courtroom demeanor was similar to his demeanor during the interview; defendant was leaning over in court in a similar manner to the way he was leaning during the interview; and it was not unusual for suspects to behave that way during police interviews. Defendant did not object on Fifth or Fourteenth Amendment grounds or lodge a relevance objection.

During Officer Delfino’s cross-examination, defendant asked the officer about his demeanor when she met with him at the Gilroy Police Department at approximately 9:00 p.m. on October 5, 2015. Officer Delfino testified that defendant was sleeping or resting when she first saw him. Officer Delfino stated that defendant’s eyes were closed and he was leaning against a counter, and she shook his left shoulder to wake him. Defendant woke up but appeared sleepy and his speech was quiet and mumbled. On redirect, the prosecutor asked Officer Delfino whether defendant’s courtroom demeanor appeared to be the same as it was on October 5, 2015. Officer Delfino responded that defendant did not appear to be as tired in court as he did that night. Defendant did not object.

Before Dr. Piasecki testified, defendant informed the trial court that he received an e-mail from the prosecutor stating that she intended to call a witness to testify in rebuttal regarding defendant’s courtroom demeanor. Defendant stated that he “may or may not have objected previously” to testimony regarding his courtroom demeanor, but that going forward he would “be objecting to any effort by the prosecution to draw any attention to [his] behavior, his demeanor in court.” Defendant asserted that courtroom demeanor evidence was not relevant and “would have significant prejudice [on] his rights to a fair trial.” The prosecutor argued that defendant had put his demeanor at issue, anticipating that Dr. Piasecki would base her opinion that defendant was unconscious during the attack partially on defendant’s demeanor and appearance on the date of the offense. The prosecutor asserted that to the extent defendant’s courtroom demeanor was “essentially the same or very similar” to his demeanor at the time of the crime, it was relevant to rebut defendant’s claim that he was unconscious during his attack on Margarita and Olivia.

The trial court found that the evidence already admitted regarding defendant’s courtroom demeanor was not “improper . . . because questions were asked by the Defense related to their interpretation of the Defendant’s demeanor.” As an example, the court referenced defendant’s decision to move the video of his interview by Detective Cryar into evidence “to support the defense . . . that the Defendant was not in his right mind at the time of the commission of the crime.” The court determined that the detective’s testimony on his observations of whether defendant was currently behaving in a similar fashion was appropriate. The court deferred its ruling on the admissibility of any courtroom-demeanor rebuttal testimony.

In defendant’s case-in-chief, Dr. Piasecki testified that defendant’s “posture was notable” during his interview by Detective Cryar. Dr. Piasecki observed that defendant was “leaning against the wall. . . . [N]ot only was his posture notable for the way in which he was positioned, but also he was fairly immobile in that position, suggesting that he was either very sleepy or in need of the support of a wall for some other reason.” Dr. Piasecki opined that defendant’s posture could be consistent with “substance use” as “it could represent . . . a state of current intoxication” or “a withdrawal state.”

After both sides had rested, defendant requested the trial court to instruct the jury to “disregard [his] nontestimonial courtroom conduct, demeanor, or behavior in their evaluation of his guilt or innocence.” Defendant stated his request was “essentially a corollary to [his] previously lodged objections . . . to any questioning by the People related to [his] courtroom conduct and demeanor.” The trial court denied defendant’s request, stating that it found “the issues related to defendant’s conduct are relevant, and [that] certain witnesses . . . appropriately commented on whether his demeanor was similar in court to demeanor that was relied upon by the defense expert to support her belief that he was either under the influence or otherwise acting in a way one would not expect” on the date of the offense.

During the prosecutor’s rebuttal argument when she discussed the bases of Dr. Piasecki’s testimony that defendant was impaired on the night of the offense, the prosecutor stated: “Defendant’s demeanor. We heard from both of the officers who talked to the defendant on the night of the murder. Both of them testified his demeanor here in court — it’s exactly the same as it was that night except maybe he’s a little less tired. That’s how he behaves. That’s how he sits. That’s how he slumps.” Defendant “renew[ed] [his] objection to . . . these references,” and the trial court overruled the objection. The prosecutor continued: “That is not evidence that the defendant was under the influence or impaired. That’s evidence that that’s the way the defendant is.”

3. Standard of Review
4.
A trial court’s ruling on the scope of closing argument is reviewed for abuse of discretion. (People v. Edwards (2013) 57 Cal.4th 658, 743.) “A merely debatable ruling cannot be deemed an abuse of discretion.” (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 390 (Bryant, Smith and Wheeler).) Rather, “[a]n abuse of discretion will be ‘established by “a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” ’ [Citation.]” (Ibid.)

5. Analysis
6.
“ ‘In criminal trials of guilt, prosecutorial references to a nontestifying defendant’s demeanor or behavior in the courtroom have been held improper on three grounds: (1) Demeanor evidence is cognizable and relevant only as it bears on the credibility of a witness. (2) The prosecutorial comment infringes on the defendant’s right not to testify. (3) Consideration of the defendant’s behavior or demeanor while off the stand violates the rule that criminal conduct cannot be inferred from bad character.’ ” (People v. Boyette (2002) 29 Cal.4th 381, 434.) However, reference to a defendant’s courtroom demeanor may be permissible when it relates to a factual issue disputed at trial. (See People v. Garcia (1984)160 Cal.App.3d 82, 91, fn. 7 (Garcia); People v. Smith (2007) 40 Cal.4th 483, 524.)

In Garcia, the prosecutor during closing argument referenced the defendant’s “snicker[ing] and jeer[ing] and laugh[ing]” while the victim testified regarding “[her] horrendous experience [and] how close she came to death.” (Garcia, supra, 160 Cal.App.3d at p. 93.) The Court of Appeal found “[i]t is clear that the prosecutor’s reference to defendant’s courtroom behavior was improper. In essence, the prosecutor invited the jury to speculate that defendant’s courtroom conduct shows him to be the type of person willing to participate in unlawful activity; and therefore he is likely to have committed the crimes in question.” (Ibid.)

The Court of Appeal explained that “[o]rdinarily, a defendant’s nontestimonial conduct in the courtroom does not fall within the definition of ‘relevant evidence’ as that which ‘tends logically, naturally, [or] by reasonable inference to prove or disprove a material issue’ at trial. [Citations.] Neither can it be properly considered by the jury as evidence of [a] defendant’s demeanor since demeanor evidence is [relevant only] as it bears on the credibility of a witness. (Evid. Code, § 780.)” (Garcia, supra, 160 Cal.App.3d at p. 91, fn. omitted.) The court limited its holding, however, “to those instances where defendant’s nontestimonial behavior at counsel table is not objectively relevant to any disputed issue at trial and is merely offered to show defendant’s character or a trait of his character.” (Id. at p. 91, fn. 7.)

In People v. Smith, the defendant argued that the jurors’ discussion “about defendant’s demeanor during trial was misconduct because it demonstrate[d] that the jury improperly considered information that was not part of the evidence received at trial and relied on this evidence to determine that defendant was sane at the time of the offenses.” (People v. Smith, supra, 40 Cal.4th at p. 524.) The California Supreme Court commented that the defendant had “cite[d] no authority for the principle that it is misconduct for a jury to discuss a defendant’s demeanor during a sanity trial.” (Ibid.) The court held that it was “not misconduct for the jury to discuss his demeanor during deliberations” where a central question during a trial’s “sanity phase was whether defendant suffered from organic mood disorder, bipolar disorder, antisocial personality disorder, or other cognitive or mental disorders” and “a defense expert expressly analyzed defendant’s demeanor during trial.” (Id. at p. 525.)

Here, defendant’s theory at trial was that he was not guilty of the charges because he was legally unconscious during his attack on Olivia and Margarita. Defendant’s expert witness, Dr. Piasecki, testified regarding defendant’s speech, responsiveness, and posture during his interview with Detective Cryar and opined that his posture could be consistent with a state of intoxication or withdrawal. In response to defendant’s hypothetical question that tracked the facts of this case, Dr. Piasecki testified that it was reasonably possible that the attacker was unconscious or unaware of the nature of his actions during the offense. Dr. Piasecki based her response partially on facts in the hypothetical that corresponded to defendant’s behavior, demeanor, and posture during his contact with Officer Delfino and his interview by Detective Cryar. Moreover, defendant asked Officer Delfino questions about his demeanor on the night of the offense. Defendant asked whether he had been sleeping and leaning on a counter when the officer first saw him, whether he appeared lethargic after she woke him up, and whether his speech was mumbled. Finally, defendant did not object to Detective Cryar’s testimony on redirect that defendant’s courtroom demeanor and posture were similar to his demeanor and posture during his police interview or to Officer Delfino’s redirect testimony that defendant did not appear to be as tired in court as he did on the night of the offense.

It was not an abuse of discretion for the trial court to implicitly determine that the fact that defendant’s courtroom demeanor and posture were similar to the way he acted with the police on the night of the offense was “objectively relevant to a[] disputed issue at trial,” namely, whether defendant was legally unconscious during the attack, and to allow the prosecutor’s comment. (Garcia, supra, 160 Cal.App.3d at p. 91, fn. 7.) Unlike in Garcia, the prosecutor did not reference defendant’s courtroom demeanor “merely . . . to show defendant’s character or a trait of his character.” (Ibid.) Nor did the prosecutor “invite[] the jury to speculate that defendant’s courtroom conduct shows him to be the type of person willing to participate in unlawful activity.” (Id. at p. 93.) Rather, the prosecutor argued that the out-of-court demeanor evidence relied on by Dr. Piasecki was “not evidence that the defendant was under the influence or impaired” given testimony that defendant behaved similarly in the courtroom. Thus, we conclude that the trial court did not exercise its discretion in “ ‘ “an arbitrary, capricious, or patently absurd manner” ’ ” when it allowed the prosecutor to reference defendant’s courtroom demeanor in its rebuttal argument. (Bryant, Smith and Wheeler, supra, 60 Cal.4th at p. 390.)

But even if we were to assume that the prosecutor’s argument was improper, we would find the error harmless. While defendant argues that we should assess prejudice under the harmless-beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24, we determine that the assumed error was not of constitutional magnitude. (See People v. Bolton (1979) 23 Cal.3d 208, 214, fn. 4 [“Courts of this state have generally assumed that prosecutorial misconduct is error of less than constitutional magnitude.”]; Garcia, supra, 160 Cal.App.3d at p. 93, fn. 12 [Chapman standard did not apply to the prosecutor’s improper reference to the defendant making faces during testimony].) Thus, we review whether there is a reasonable probability of a more favorable outcome for defendant absent the assumed error. (See Garcia, supra, 160 Cal.App.3d at p. 93 & fn. 12; People v. Watson (1956) 46 Cal.2d 818, 836-837.)

Here, there was ample reason for the jury to reject defendant’s theory that he was legally unconscious due to voluntary intoxication. Defendant’s blood test results were consistent with chronic marijuana and methamphetamine use; the amount of methamphetamine in defendant’s blood was less than that used to treat narcolepsy; and his blood alcohol content was below blackout level. There was also evidence that a person who had consumed alcohol, THC, and methamphetamine in the hours after the attack could have had the same blood test results as defendant. Officer Delfino testified that defendant was cooperative and appeared to understand what she was saying when she met with him a few hours after the offense. She did not remember defendant smelling of alcohol or note any signs of impairment. In addition, there was evidence that defendant had resentment and animosity toward both victims because they would not allow him to live in Margarita’s home. Defendant used a knife to forcefully stab Margarita and Olivia in the head; nothing else in the house was disturbed in the attack and defendant left the residence and changed his clothes after the offense—all of which evinces that defendant had some awareness of his actions. Moreover, the trial court instructed the jury that the attorneys’ remarks were not evidence, and we presume the jury followed the trial court’s instructions. (People v. Bennett (2009) 45 Cal.4th at 577, 596.) Under the totality of the circumstances, we conclude there is no reasonable probability of a more favorable result for defendant absent the prosecutor’s comments.

E. Cumulative Error

Defendant contends that his convictions must be reversed due to cumulative prejudice, but there are no errors to cumulate. Since we have not found error, defendant’s cumulative error argument fails. (In re Reno (2012) 55 Cal.4th 428, 483; People v. Sedillo (2015) 235 Cal.App.4th 1037, 1068.) To the extent we have assumed error for purposes of analysis, none of these errors increases the impact of any other and their cumulative impact did not deprive defendant of a fair trial or the right to due process. (See People v. Thomas (2011) 51 Cal.4th 449, 508.)

IV. DISPOSITION

The judgment is affirmed. The clerk of the superior court is directed to issue an amended abstract of judgment stating that defendant was sentenced to an indeterminate term of life with the possibility of parole for his conviction of willful, deliberate, and premeditated attempted murder on count 2. The clerk of the superior court is directed to forward a certified copy of the corrected abstract of judgment to the California Department of Corrections and Rehabilitation.

___________________________________________

BAMATTRE-MANOUKIAN, J.

WE CONCUR:

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PREMO, ACTING P.J.

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GROVER, J.

People v. Gausesubia

H045552