Filed 8/11/14 P. v. Garcia-Munguia CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

BRYAN JULIUS GARCIA-MUNGUIA,

Defendant and Appellant.

B243213

(Los Angeles County

Super. Ct. No. LA062209)

ORDER MODIFYING OPINION

AND DENYING REHEARING

[NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on July 10, 2014, be modified as follows:

1. On page 8, in the first full paragraph, the first sentence beginning “Finally, 

even if the trial court” is deleted and the following is inserted in its place:

Finally, even if the trial court abused its discretion by excluding Lara’s 

proffered testimony, the jury heard appellant’s counsel’s remarks during opening 

statement that appellant had schizophrenia, heard the court’s later instruction that 

what attorneys say in opening statements was not evidence and opening statements 

were meant to be a preview of the evidence, and heard evidence concerning 

appellant’s mental health problem and schizophrenia.

2. On page 13, the first two sentences are deleted and the following is inserted in 

their place:

In sum, in the argument section of his opening brief, appellant asserts the 

prosecutor argued certain matters that appellant places in quotation marks, but 

appellant frequently fails to quote accurately the prosecutor’s arguments, if any. 
2

Moreover, to the extent appellant suggests the matters within those quotation 

marks are merely his characterization of prosecutorial arguments more fully 

recited in appellant’s statement of the relevant facts in his opening brief, we have 

considered that recitation and the prosecutor’s arguments as set forth in the record. 

The prosecutor’s comments were fair comment on the evidence (see Hill, supra, 

17 Cal.4th at p. 819), except perhaps to the extent the court instructed the jury to 

disregard prosecutorial comments (see fn. 6, ante), and those instructions cured 

any harm.

There is no change in the judgment.

Appellant’s petition for rehearing is denied.
Filed 7/10/14 P. v. Garcia-Munguia CA2/3 (unmodified version)

NOT TO BE PUBLISHED IN THE 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

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

BRYAN JULIUS GARCIA-MUNGUIA,

Defendant and Appellant.

B243213

(Los Angeles County

Super. Ct. No. LA062209)

APPEAL from a judgment of the Superior Court of Los Angeles County,

Gregory Dohi, Judge. Affirmed.

Corona & Peabody and Jennifer L. Peabody, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Shawn McGahey Webb and 

Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________
2

Appellant Bryan Julius Garcia-Munguia appeals from the judgment entered 

following his conviction by jury on count 1 – first degree murder (Pen. Code, § 187) with 

personal use of a dangerous and deadly weapon (Pen. Code, § 12022, subd. (b)(1)). The 

court sentenced appellant to prison for 26 years to life. We affirm.

FACTUAL SUMMARY

1. People’s Evidence. 

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 

6 Cal.4th 1199, 1206), the evidence, the sufficiency of which is undisputed, established 

appellant lived with his mother, Saida Munguia (Saida), the decedent, in a Reseda 

condominium. When appellant was 15 years old, he developed epilepsy and his 

relationship with Saida began to deteriorate. Appellant was defiant, disrespectful, and 

assaultive towards Saida.

1

 On May 31, 2009, Saida left the residence to go on an outing 

and appellant stayed home because he was angry. Saida eventually returned and, 

 

1 A neighbor overheard appellant and Saida arguing, and appellant yelling a couple 

of times to Saida, “Bitch, I’m going to kill you.” On April 12, 2008, Saida and her 

boyfriend, Elan Palmer, removed appellant from the residence. Appellant, angry, said he 

would return with friends and kill Palmer, and appellant broke a window at the residence. 

Sometime after April 2008, appellant battered Saida. In about March 2009, appellant 

returned from Honduras and was more violent than ever. On May 28, 2009, appellant 

was defiantly playing loud music in the residence. Saida turned off the electricity in the 

residence. Appellant called Saida a bitch and later told her it was “time to kill.” Saida 

summoned police and, when they arrived, appellant was extremely angry and expressed 

hatred. On May 29, 2009, appellant called 911, claimed Saida was a roommate who was 

stealing from him, and asked for police assistance to recover his property. Appellant did 

not tell the 911 operator Saida was appellant’s mother. On May 29, 2009, Saida, crying, 

told Adam Padavic, a friend, she was making plans to have appellant removed from the 

residence to get him help. On May 30, 2009, Saida took appellant to Daniel’s Place, a 

facility in Santa Monica where he could receive therapy. Appellant was scheduled to 

return there the following Monday. On some date prior to May 31, 2009, Saida called 

911 and said she had a mentally ill son, appellant, who was becoming aggressive. Saida 

said appellant was “[a]pparently bipolar, schizophrenic, epilepsy.” Palmer testified he 

had met one of appellant’s psychiatrists. Renia Tong, Saida’s mother, testified that in 

2009, appellant was taken to the hospital and was very nervous and acting strangely. 
3

sometime between 8:00 p.m. on May 31, 2009, and the morning of June 1, 2009, 

appellant killed her. 

In particular, appellant, using a knife, stabbed Saida 14 times, i.e., seven times to 

her head or face, once on the left side of her neck, three times on her left shoulder, twice 

on the left side of her chest, and once on her left arm. One stab wound to her face, the 

stab wound to her neck, and a stab wound to her chest were each fatal. In addition to the 

14 stab wounds, Saida had multiple defensive stab wounds on her hands. Saida’s body 

was discovered in appellant’s bedroom.

About 8:00 p.m. on June 1, 2009, Saida’s family was outside near the residence

when appellant approached. Appellant saw the family and tried to flee, but Masiel 

Munguia (Masiel), Saida’s sister, eventually confronted him. Masiel asked appellant, 

“Why did you take her away from us?” and appellant replied he did not do it, and 

Mexicans with black hoodies did it.

About June 1, 2009, Los Angeles Police Detective Jason LeDuff conducted a 

videotaped interview of appellant following his arrest. Appellant initially denied killing 

Saida but ultimately told LeDuff the following. Appellant’s mother brought food to 

appellant’s room, then yelled she was appellant’s mother. Appellant stabbed Saida in her 

neck and chest. He stabbed her because he felt angry. Appellant was angry at Saida 

“[f]or being stabbed.” Appellant wanted Saida to die because she was suffering, and 

appellant tried to finish off “what they had started.” LeDuff asked, “What who had 

started?” and appellant replied, “Whoever had left her there [¶] . . . [¶] stabbed.” 

Appellant told LeDuff, “whoever did this must have a reason for doing this” and “must 

have some sort of criminal insanity background.” Appellant also told LeDuff, “I am a 

sane person.”

2. Defense Evidence.

In defense, Erica Ullmann testified as follows. Ullmann was a counselor at 

Daniel’s Place. The clinic was for people “with mental health issues which is bipolar, 

schizophrenia, schizoaffective disorder, depression, anxiety, O.C.D., . . .” The clinic 
4

dealt with people who had psychotic issues and people who merely had anger 

management issues. Ullmann obtained intake information from clients, and the 

information was written in a report that was placed in a file. The information included

what the client provided as the client’s diagnosis. In 2009, appellant and his mother 

came to the clinic because he was experiencing mental health issues. Appellant told 

Ullmann he had anger issues and was depressed.

Los Angeles Police Officer Luis Farfan testified that on May 28, 2009, he 

responded to a call about loud music at Saida’s residence. Appellant told Farfan that 

Saida was not appellant’s mother, and that Saida stole appellant’s original mother.

ISSUES

Appellant claims (1) the trial court erroneously excluded expert testimony from 

Raul Lara, (2) the trial court erroneously excluded expert testimony from Dr. Timothy 

Collister, (3) the prosecutor committed misconduct during jury argument, and 

(4) cumulative prejudicial error occurred.

DISCUSSION

1. The Trial Court Properly Excluded Alleged Expert Opinion Testimony From Raul 

Lara.

a. Pertinent Facts.

During opening statement, appellant’s counsel commented this incident began 

when appellant “was diagnosed with a mental health problem with an issue 

schizophrenia.” (Sic.) After 16 of the 18 People’s witnesses testified at trial, appellant, 

on March 19, 2012, outside the presence of the jury, indicated as follows. Appellant 

wanted to present testimony from Raul Lara, appellant’s marriage and family therapist

(MFT), that appellant had symptoms consistent with schizophrenia.2 Appellant’s counsel 

 

2 Appellant indicated a transcript reflected a police interview of Lara, and appellant 

wanted Lara to testify to the same information the transcript reflected Lara told police. It 

appears the parties informally agreed the trial court could review the transcript (court’s 

exh. No. 4) and the court read it.
5

argued the testimony was relevant only to the issue of whether appellant could “form the 

intent to commit first-degree murder.”

On March 20, 2012, the court noted Lara never performed a systematic analysis of 

appellant and never wrote a report.3 The court also noted, “. . . I think the jury by now 

has got the picture, that there is a history of mental illness to deal with.” The court also

indicated Lara’s statements in court’s exhibit No. 4 were “a far cry from some sort of 

systematic diagnosis.” The court ruled Lara lacked a basis to render a diagnosis of 

schizophrenia, and his opinion lacked sufficient foundation. The court indicated, 

however, it would permit voir dire of Lara.

During the March 21, 2012 voir dire by appellant’s counsel, Lara testified as 

follows. Lara was a licensed MFT and had a private practice. As an intern therapist, 

Lara had several jobs, including working with the Los Angeles County Mental Health 

Department (department). For about two or three years while Lara was an intern, he was 

a department case manager who worked with perhaps five to eight schizophrenic clients 

on an ongoing basis. Lara had no special training or skill in that area other than those 

five or eight clients he saw per year. 

As an MFT, Lara mainly dealt with relationship issues. However, he was able to 

diagnose schizophrenics. Lara testified schizophrenics became paranoid, their speech 

was fragmented, and they did not make sense. The symptoms Lara was describing 

pertained to a paranoid schizophrenic. 

In perhaps 2005 or 2006, when appellant was about 18 or 19 years old, Lara began 

seeing appellant and Saida in Lara’s office. Lara saw the two more than a dozen times 

 

3

The court also indicated appellant’s proffer of Lara’s testimony was a surprise to 

the court and People. The court quoted a February 21, 2012 exchange during which, after 

the prosecutor withdrew from consideration two admissibility issues pertaining to mental 

health evidence, appellant’s counsel indicated he did not intend to call a mental health 

expert at that time. The court, commenting on this exchange, stated, “This smacks of 

gamesmanship . . . . All we’re accomplishing by essentially hiding the ball is causing 

delay.” Appellant’s counsel later acknowledged he had not spoken to Lara “until a few

minutes ago.”
6

over the years, and saw appellant by himself several times. When Lara talked with 

appellant, appellant discussed problems he was having with Saida. The following 

occurred: “Q And . . . you never had one-on-one sessions with the defendant regarding 

any schizophrenia or anything like that because you felt that that was out of your 

expertise and someone else needed to have determined that right, doctor? [Sic.] [¶] 

A No, it never – it never came up.” Appellant never told Lara appellant was having 

signs of schizophrenia. In perhaps 2008 or 2009, Lara met with appellant at a restaurant. 

Appellant exhibited signs of schizophrenia and acted unusually. The last time Lara saw 

appellant was perhaps in 2008 or 2009. 

Lara denied he had records for the period during which he treated appellant. Lara 

believed treatment started in 2002. Appellant and Saida met Lara on an inconsistent 

basis. They would perhaps come in one day of the year, then wait another six months 

before returning. Appellant’s counsel asked if Lara had ever diagnosed appellant with 

any sort of mental illness. Lara replied to the effect he had referred appellant to the 

department, the department asked Lara for a diagnosis, and Lara told the department “it 

was a psychotic disorder, but not otherwise specified.” Lara never assessed appellant for 

schizophrenia.

During voir dire, the court asked Lara how long he had worked as a case manager, 

and Lara replied “about 10 years ago.” Lara denied he did specialized study in the field 

of schizophrenia, and denied he kept up with the literature specific to schizophrenia. 

Lara never diagnosed anyone with schizophrenia during his practice as an MFT.

Although, as mentioned, Lara testified he met appellant and Saida on an 

inconsistent basis, Lara also testified he saw appellant perhaps 20 or 25 times over many 

years, perhaps “six years plus.” The following occurred: “The Court: Did you ever 

examine the defendant, . . . with a mind towards diagnosing him with a DSM IV 

condition? [¶] The Witness: No, Your Honor. That’s why I refer them to the 

[department] and . . . I think, it was referred from them [the department] -- to UCLA, I’m 

not sure. [¶] The Court: Beg your pardon? [¶] The Witness: I’m not sure, you know, 
7

in that whole thing. [¶] The Court: So would it be fair to say you would not be 

comfortable rendering that diagnosis and that’s why you send it out to other people? [¶]

The Witness: Exactly.” The court concluded Lara was not qualified to render any 

diagnosis, he was not an expert in schizophrenia, it would be misleading for him to 

render an expert opinion, and the court would not allow him to do so. 

b. Analysis.

Appellant claims the trial court erred by excluding Lara’s proffered expert opinion 

testimony.4 Appellant argues the trial court erred by excluding Lara’s proposed 

testimony appellant exhibited signs of schizophrenia, Lara believed appellant had 

schizophrenia, Lara diagnosed him as having a psychotic disorder, and Lara referred him 

for further treatment. We reject appellant’s claim.

The only issue in this case is whether the trial court erred by excluding the 

proffered testimony from a particular therapist, i.e., Lara. We have recited the pertinent 

facts and the trial court’s reasoning for excluding Lara’s proffered testimony. That 

testimony included Lara’s frank admission to the effect he would not be comfortable 

rendering a diagnosis. The fact some evidence arguably might have supported a different 

trial court ruling does not render erroneous the court’s ruling. In light of the trial court’s 

 

4

“A person is qualified to testify as an expert if he has special knowledge, skill, 

experience, training, or education sufficient to qualify him as an expert on the subject to 

which his testimony relates.” (Evid. Code, § 720, subd. (a).) An expert witness may give 

opinion testimony “[b]ased on matter (including his special knowledge, skill, experience, 

training, and education) perceived by or personally known to the witness or made known 

to him at or before the hearing, whether or not admissible, that is of a type that 

reasonably may be relied upon by an expert in forming an opinion upon the subject to 

which his testimony relates, unless an expert is precluded by law from using such matter 

as a basis for his opinion.” (Evid. Code, § 801, subd. (b).) A trial court’s determinations

a witness qualifies as an expert, and the expert’s testimony is properly based, are matters 

left to the discretion of the trial court and will not be disturbed absent abuse of discretion. 

(People v. Jones (2013) 57 Cal.4th 899, 950-951; People v. Jones (2012) 54 Cal.4th 1, 

57.) We find trial court error regarding a witness’s credentials as an expert only if the 

evidence shows a witness clearly lacks qualification as an expert. (People v. Jones, 

supra, 54 Cal.4th at p. 57.)
8

reasoning, we conclude the trial court did not abuse its discretion by excluding Lara’s 

proffered testimony on the grounds he was not qualified as an expert and he lacked a 

proper basis for his opinion. Moreover, the application of the ordinary rules of evidence, 

as here, did not violate appellant’s Fifth, Sixth, or Fourteenth Amendment rights. 

(Cf. People v. Boyette (2002) 29 Cal.4th 381, 427-428 (Boyette).) 

Finally, even if the trial court abused its discretion by excluding Lara’s proffered 

testimony, the jury heard appellant’s counsel’s remarks during opening statement that 

appellant had schizophrenia, and the jury heard evidence concerning appellant’s mental 

health problem and schizophrenia. If Lara had given the proffered testimony, effective 

cross-examination would have diminished, if not negated, the testimony’s value. There 

was ample evidence that at the time of the killing appellant committed premeditated and 

deliberate intent-to-kill murder, and the jury found he committed such murder. No 

prejudicial abuse of discretion occurred. (Cf. People v. Watson (1956) 46 Cal.2d 818, 

836.)

2. The Trial Court Properly Excluded Expert Testimony From Dr. Collister.

a. Pertinent Facts.

The record contains a 16-page, undated competency evaluation report (court’s 

exh. No. 2) prepared by Dr. Timothy Collister, a clinical psychologist, reflecting his 

evaluation of appellant in November 2011 and Collister’s opinion appellant was 

competent to stand trial. The report was admitted into evidence at the December 2, 2011 

competency hearing.

On March 21, 2012, after both parties rested, and during discussions concerning 

jury instructions, appellant suggested he should have introduced evidence of appellant’s 

mental illness. On Thursday, March 22, 2012, the prosecutor represented as follows. 

Reports by three doctors, including Dr. Sanjay Sahgal and Dr. Collister, had been 

available to the parties for years prior to trial. Appellant previously had represented that 

this case was not going to be about appellant’s mental health. However, the prosecutor 
9

did not object if appellant wanted to reopen to present testimony concerning appellant’s 

mental health at the time of the alleged offense. 

Appellant’s counsel indicated he wanted to call Collister as an expert to testify 

appellant’s “mental illness affects his . . . ability to form the intent to commit this crime.” 

Collister’s proffered testimony was based in part on the competency report.

The court indicated as follows. Ample evidence already had been presented that 

appellant suffered from delusions or hallucinations and had impulse control problems at 

the time of the offense, and the proffered evidence was “in many ways redundant given 

what the jurors already know.” During Collister’s examination of appellant, appellant 

made compelled statements to Collister, and those statements would have to be excluded 

before the proffered testimony could be received.

After the court reviewed Collister’s competency report, the court asked if 

appellant’s counsel knew if Collister would be able to testify any time soon. Appellant’s 

counsel replied Collister told him Collister would be unavailable Wednesday, and 

appellant’s counsel believed Wednesday was the only day Collister said he would be 

unavailable. 

The court stated, “This is astonishing to me that this comes up at this late hour. 

This is something that’s a very complicated matter to resolve. There would be, if 

necessary, all sorts of waivers of privilege that would have to go into this.” The court 

also indicated if Collister testified, it would raise the issue of whether the People could 

counter with an expert or have appellant examined again.

The court also indicated as follows. The court had no idea when Collister would 

be available to testify. Collister had evaluated appellant as part of a competency 

evaluation, not for the completely different purpose of determining what appellant’s 

mental state was at or about the time of the alleged offense. Collister’s report was based 

largely on Sahgal’s report, and Sahgal obtained from appellant a number of statements 

and admissions. 
10

Appellant’s counsel indicated the only additional information he had from 

Collister was his statements to appellant’s counsel by email that (1) appellant was 

suffering from a mental illness at the time of the crime, (2) appellant’s history of mental 

illness caused him to overreact to stress and apprehension, and, (3) because of appellant’s 

mental illness, it was possible he was acting impulsively under the circumstances present 

at the time of the alleged offense.

The court concluded Collister’s proffered testimony would result in extraordinary 

consumption of time and would add very little to the evidence already presented 

regarding appellant’s impulsivity and whether he was suffering from delusions. The 

court excluded, under Evidence Code section 352, Collister’s proffered testimony.

b. Analysis.

Appellant claims the trial court erred by not permitting him to reopen his case to 

present Collister’s proffered testimony. We reject appellant’s claim. 

Trial courts have broad discretion to reopen a case to allow the introduction of 

additional evidence (People v. Goss (1992) 7 Cal.App.4th 702, 706) and a trial court’s 

denial of a defendant’s request to reopen cannot be reversed on appeal unless the trial 

court abused its discretion. (People v. Meza (1981) 116 Cal.App.3d 988, 995.) 

Moreover, a trial court enjoys broad discretion under Evidence Code section 352 when

assessing whether probative value outweighs undue prejudice, confusion, or consumption 

of time. (People v. Brown (2000) 77 Cal.App.4th 1324, 1337.) When ruling on a section 

352 motion, a trial court need not expressly weigh prejudice against probative value, or 

even expressly state it has done so. All that is required is that the record demonstrate the 

trial court understood and fulfilled its responsibilities under section 352. (People v. 

Williams (1997) 16 Cal.4th 153, 213.)
11

The pertinent facts reflect the trial court considered appropriate factors when 

excluding the proffered testimony under Evidence Code section 352. Nothing more was 

required. Application of the ordinary rules of evidence here did not violate appellant’s 

Fifth, Sixth, or Fourteenth Amendment rights. (Cf. Boyette, supra, 29 Cal.4th at pp. 427-

428.) It follows the court did not abuse its discretion by not reopening the case. 

3. No Prosecutorial Misconduct Occurred During Jury Argument.

Appellant claims the prosecutor committed misconduct during jury argument.5 

We conclude otherwise. Except as indicated to the contrary below, appellant failed to 

object on the ground of prosecutorial misconduct and failed to request a jury admonition 

with respect to the challenged prosecutorial comments, and a jury admonition would have 

cured any harm. To that extent, appellant waived issues of prosecutorial misconduct. 

(Cf. People v. Gionis (1995) 9 Cal.4th 1196, 1215; People v. Mincey (1992) 2 Cal.4th 

408, 471.)

As to the merits, appellant argues the prosecutor committed misconduct by making 

the following alleged comments during jury argument.

6

(Subsequent references to page 

 

5 A prosecutor violates the Fourteenth Amendment by committing conduct that 

infects the trial with unfairness to the degree that due process, the defendant’s right to a 

fair trial, is denied. A prosecutor’s misconduct that does not render a trial fundamentally 

unfair may violate state law if it uses deceptive or reprehensible methods to attempt to 

persuade the court or jury. (People v. Hill (1998) 17 Cal.4th 800, 819 (Hill).)

6

The prosecutor commented (at p. 3379 of the reporter’s transcript), “[y]ou’ll have 

the form from Daniel’s Place that he himself filled out and wrote or told as they were 

filling out that he has anger issues and he has depression as his only diagnoses.” (Sic.) 

The court then sustained appellant’s objection on the ground of improper argument and 

instructed the jury to disregard the prosecutor’s last comment about depression and 

diagnoses. Appellant also asserts the prosecutor commented (at pp. 3411-3412),

appellant’s mental defense “doesn’t cut the mustard” because “he hasn’t pled not guilty 

by reason of insanity.” However, the prosecutor commented to the effect the only fact 

appellant’s counsel cited to the jury was there was something wrong with appellant and 

everybody knew he was not normal. The prosecutor then made the challenged 

comments, but the court sustained appellant’s objection on the ground of improper 

argument and instructed the jury to ignore the prosecutor’s last “statement.” We assume 

appellant did not waive prosecutorial misconduct issues as to the above challenged 
12

numbers in parentheses are to the reporter’s transcript). Appellant asserts the prosecutor 

commented (at p. 3386), “it was ‘speculation of what disease he had.’ ” (Sic.) However, 

what the prosecutor said was, “It isn’t up to our speculation of what disease [he might]

have had and what family members thought they had diagnosed him. We’re not medical 

doctors.”

Appellant asserts the prosecutor commented (at p. 3386), “appellant’s only mental 

disease was ‘conjured up in his head’ after his arrest.” However, what the prosecutor 

said was, “[appellant] says something very telling to the detectives. [¶] He says it could 

have been someone who was criminally insane. . . . And why does he say that? [¶] 

Think about what he’s being accused of, where he was going the next day and what 

defenses he may have conjured up in his head.”

Appellant asserts the prosecutor commented (at pp. 3411-3412), “there was no 

evidence that appellant actually had a mental disease.” However, the prosecutor did not 

make that comment. Appellant asserts the prosecutor commented (at pp. 3413-3414), 

“the only evidence of a mental disease was counsel’s arguments, which were 

speculation.” However, the prosecutor commented, concerning the issue of whether 

appellant had a mental condition, the jury should consider what appellant’s trial counsel 

was saying “versus the proof that you’ve heard,” and the jury could decide what 

appellant’s mental state was, “not by what we say is speculation, not by what the 

lawyer’s interpretation of what may have been, quote, wrong with [appellant], but with 

[appellant’s] actions.” (Sic.) Appellant asserts the prosecutor commented (at p. 3413) no 

doctor testified appellant had a mental condition, and appellant complains the prosecutor

commented appellant had a “selective mental defense” because, he expressed remorse for 

killing Saida.

 

comments, but even if we assume those comments were improper, the court’s instructions

cured any harm. (Cf. People v. Prysock (1982) 127 Cal.App.3d 972, 998.)
13

In sum, appellant frequently fails to recite accurately the prosecutor’s comments, 

if any. Moreover, the prosecutor’s comments were fair comment on the evidence (see 

Hill, supra, 17 Cal.4th at p. 819), except perhaps to the extent the court instructed the 

jury to disregard prosecutorial comments (see fn. 6, ante), and those instructions cured 

any harm. This is not a case such as People v. Daggett (1990) 225 Cal.App.3d 751, 757-

758, in which the prosecutor, during jury argument, improperly took advantage of 

erroneous trial court evidentiary rulings. There were no erroneous evidentiary rulings in 

this case. No prejudicial prosecutorial misconduct occurred in this case during jury 

argument, nor did the prosecutor during jury argument violate appellant’s Fifth, Sixth, 

and/or Fourteenth Amendment rights.7

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

We concur:

KLEIN, P. J.

ALDRICH, J.

 

7

In light of our above analysis, appellant was not denied effective assistance of 

counsel to the extent his trial counsel failed to object to the alleged misconduct. We 

reject appellant’s additional claim the trial court committed prejudicial cumulative error.