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Filed 1/14/14 P. v. Wahid CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. SAMIR MUSTAPH A WAHID, Defendant and Appellant. E056371 (Super.Ct.No. FCH1000232)
OPINION

APPEAL from the Superior Court of San Bernardino County. Gerard S. Brown, Judge. Affirmed

. Patrick Morgan Ford for Defendant and Respondent. Kamala D. Harris, Attor ney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Sean M. Rodriquez, Deputy Attorneys General, for Plaintiff and Respondent.2

Defendant Samir Mustapha Wahid was convicted o f the first degree murder of his estranged wife, with special circumstances. He contends that the trial court erroneously allowed the prosecutor to make use of defendant’s failure to express remorse or otherwise inform the police that the killing was comm itted in the heat of passion and not premeditated , as he contended at trial. He also contends that the prosecutor committed a number of acts of prejudicial misconduct during cross

- examination and closing argument. We find no error, and we affirm the judgm ent.

PROCEDURAL HISTORY
On April 26, 2012, a jury found defendant guilty of first degree murder, with the special circumstances of financial gain and lying in wait. (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(1), (a)(15).) The jury also found it tru e that defendant personally used a dangerous or deadly weapon in the commission of the cri me. (Pen. Code, § 12022, subd. (b)(1).) The court sentenced defendant to life in prison without the possibility of parole , with one additional year for the weapon u se enhancement

. Defendant filed a ti mely notice of appeal.
FACTS Defendant and his wife, Iman, were married in 1995. They had three children. The marriage was unsatisfactory because of defendant’s inadequate sexual performance

. Defendant felt inadequa te as a husband and in general. Defendant owned an air conditioning company with his bro thers and made a very good living

. He showered his wife with expensive gifts in an effort to win her affection, including purchasing a hair3

salon in 2008 for her to o perate. Despite his efforts, the marriage continued to founder. Defendant closed the salon in 2009 because it was not making money, and was in fact dra ining him financially. One evening shortly after he closed the salon, Iman told him she was going to g o out, that he was not her husband, and that she could “go out and fuck whoever she wants to fuck, and she’s going to show [him] w hat a bitch can do.” Defendant was shocked because they did not use that kind of langu age to each other. The marriage deterio rated further, and i n or about December 2009, defendant moved out of their house at Iman’s request

. He agreed to move out because he hoped that she might realize after he left that she needed him. He wanted the marriage to work, and he wan ted to be loved

. In January 2010, he had his attorney write a letter to Iman stating that he would give her $5,000 a month, less the mortgage payment, which he would pay directly. An effort at reconciliation in February 2010 failed, and on April 1, 2010, Iman filed for divorce and served defendant

. On April 7, 2010, defendant signed a stipulation to pay Iman $8 , 000 a month in spousal and child support, again less the mortgage pa yment. On May 23, 2010, Iman’s attorney hired a forensi c accountant to review their finances ; defendant signed a stipulation to pay Iman $13,000 a month in child and spousal support, less the mortgage payment. He agreed to pay his attorney $10,000 and to deposit $50,000 into the trust accounts of his and Iman’s attorneys. Two days later, defenda nt borrowed a car from one of his employees. He did not say why he was borrowing it, but he had done so before to check up on some of his employees, to make sure they were not leaving work early. He drove to the family home4

but parked at the end of the c ul

- de

- sac . He went to see if Iman was home, but her car was not there. He sat in the borr o wed car until she came home. When she arrived, he followed her into the house. Around 1: 30 p.m. , neighbor s heard screaming and saw Iman running down the

street cl utching her chest or her shoulder

. They saw defendant walking after her with a knife in his hand. Defendant stood and watched her for a fe w seconds, then got into her Honda Pilot SUV and drove after her. A house painter working in the neighborhood heard scream ing. He continued working, but heard the screams g etting closer to him. He looked out the window and saw a woman running and screaming. He saw a Honda Pilot drive up and saw defendant get out. He saw them struggling or fighting, then saw a big
k nife in defendant’s hand. He called 911. While he was on the phone, he saw defendant stabbing Iman. He stabbed her more than five times, maybe 15 to 20 times. While defendant was stabbing Iman, the witness heard him say, “I want you dead, bitch,” “This is what you get for fucking around with your three other boyfriends,” and “This is what I get for all this time being married to you .” The witness also heard him say, “This is what you get for t aking me to court and trying to t ake my kids and my money.” Another witness testified that after the attack, defendant said, “She was an f ’ing whore, and she was cheating on me with two guys.” When defendant inflicted the final stab wound, he
used both hands and “pushed [the knife] and made sure it went into the body.” When sheriff’s deputies arrived, defendant said , “I’m her husband. I did it. I stabbed that bitch. I hope she dies.” He also said, “Don’t help that bitch. Let her die. She does n’t need any help ” an d “I know I did it. Arrest me. She has been cheating on5

me with two men. I hope she is dead.” When the officer asked if defendant was okay, he said, “No, but is my b itch wife dead yet?” The deputies handcuffed defendant and put him into a patrol car and activated a recording device before transpor ting him to the sheriff’s station. While being transported, defendant said, “That’s what happe ns when someone gets too greedy, ” and talked about Iman’s fin ancial demands. After they arrived at the station, he said, “ She bleeds, I didn’t know she was huma n .” Defendant told police about Iman’s extravagant spending, about the dissolution proceedings and Iman’s monetary demands . He complained that he was a hard worker and “I get the bitch that kicked me out who’s never
held a job before in her life .” He al so said that the children would be better off without Iman because she was not ra ising them properly. When deputies were about to read him
his Miranda 1 rights, he said, “ [ O ] bviously, . . . I did murder my wife, there’s n o ifs ands or buts about that” and “Casper the friendly ghost didn’t kill h er, I did.” Deputie s recovered defendant’s wallet from a nearby golf course. At the time of his arrest, defendant had only the house key an d cash in hi s pockets. Iman suffered approximately 25 different wounds, incl uding about six superficial wounds a nd 17 stab wounds. One wound went through Iman’s chest and lung and into a vertebra. The tip of the knife broke off and was embed ded into the vertebra. The knife was removed from the body during the autopsy with the t ip broken off. Iman died of multiple stab wounds to the neck , chest and abdomen.

1 Miranda v. Arizona (1966) 384 U.S. 436.6

Defendant admitted having killed Iman but sought a conviction for heat

- of

- passion voluntary m anslaughter rather than murder. He testified that on the day of the homicide, he wanted to try one more time to reconcile, and that he had used a car Iman would not recognize because he did not want to embarrass himself if Iman was entertaining a male friend. He told her he wanted to reconcile, but she said there was nothing to talk about. She said, “I’m not your wife. T his is not your house . T hese are not your kids. It’s just a matter of time before they forg [ e ] t about you.” She also said she had found someone else who could take care of her and who could satisfy her sexually. Defendant said he became enraged, grabbed a knife off the drain board and went after h er, intending to kill her. However, when he stabbed Iman, he did not want her to die; he just wanted her to feel what he was feeling. He only realized he had killed her when he was lying on the
curb af ter the attack.
DISCUSSION
1.
NO DOYLE ERROR OCCURRED Defendant presents an argument which he has captioned , “ The prosecutor committed Doyle error by arguing that the jury should consider the many things [defendant] failed to tell police after his arrest. ” Despite the caption, however, defendant’s actual assertion is different.
In Doyle v. Ohio (1976) 42 6 U.S. 610, the United States Supreme Court held that if a defendant has been advised of his constitutional right to remai n silent, a prosecutor may not use the defendant’s subsequen t silence to impeach his exculpatory testimony at7

trial . ( Id. at p. 619

. ) The court’s ruling that doing so would violate the defendant’s due process rights was based in part on the recognition t hat it would be unfair to allow the defendan t to be impeached by his silence after having received an implicit assurance that a refusal to speak to police coul d not be held against him

. ( Id

. at pp. 614

- 618.) In Fletcher v. Weir (1982) 455 U.S. 603, the c ourt held that a defendant’s testimony may, however, be impeached with post

- arrest, pre

- Miranda silence: “In the absence of the sort
of affirmative assurances embodied in the Miranda warnings, we do not believe that it violates due process of law for a St ate to permit cross - examination a s to post

- arrest silence when a defendant chooses to take the stand

. ” ( Fletcher v. Weir , at p. 607.) Although California courts at one time forbade cross

- examination or comment on a defendant’s post

- arrest silence whether Miranda warnings were given or not, after the passage of Proposition 8 in 1982, California law conformed to federal law in that respect. ( People v. Delgado (1992) 10 Cal.App.4th 1837, 1841

- 1842 [Fourth Dist., Div. Two].) Accordingly, it is “clear that w here Miranda warnings have not been given, the federal rule, as announced in Fletcher v. Weir , governs, and Doyle error is not committed by questions or commentary concerning a defendant ’ s post

- arrest silence.” ( Id. at p. 1842.) In this case, defense coun sel objected during oral argument to the prosecutor’s comments on things defendant failed to say to law enforcement after the attack on
Iman

— statements which might have been expected if defendant had not premeditated murdering her but instead reacted in th e heat of passion when she rejected his reconciliation overtures, as defendant testified. However, defendant’s objection was not that the prosecutor was improperly arguing that defendant’s testimony was impeached by8

his failure to explain his conduct to l aw enforcement , but rather that the prosecutor was using defendant’s failure to make statements to law enforcement which were consistent with his manslaughter defense as affirmative evidence o f defendant’s guilt of
p remeditated murder. I t wa s undisputed , moreover, that both the statements and the silences the prosecutor referred to in his argument as supporting guilt of premeditated murder occurred before defendant was given a Miranda warning. Accordingly, it is clear that no Doyle error occurred. ( Peopl e v. Delgado , supra , 10 Cal.App.4th at pp. 1841

- 1842 .) In any event, despite the caption, defendant does not assert that Doyle error

occur red

. Rather, consistent with his objection below, defendant argues that the prosecutor improperly used defendant’s po st

- arrest, non

- Mirandized silence a s affirmative evidence of guilt

. 2 However, the trial court ruled in defendant’s favor on that issue

. After the trial court ruled that a non - Mirandized defendant’s failure to offer exculpatory statements may be used only to impeach the defendant’s trial testimony, defendant reiterated his objection that rather than impeaching defendant’s testimony, the prosecutor had used it as affirmative evidence of defendant’s guilt when he asserted that “because the defendant while in custody and un

- Mirandized didn’t say, this, this, this, and this, he theref

ore must be guilty.” The court agreed that such an argument is improper and admonished the prosecutor to limit his comments to the impeachment effect

2 Whether a defendant’s post

- arrest, pre

- Miranda silence may be used as affirmative evidence of guilt in the prosecution’s case

- in

- chief is currently on review in People v. Tom ( 2012) 204 Cal.App.4th 480, review gr anted June 20, 2012, S202107.9

of defendant’s silence on the points the prosecutor asserted he should have told to law enforcement. Because the court ruled in defendant’s favor, the contention is moot. Defendant also asserts that statements he did make, such as his repeated assertions that Iman was trying to tak e his money, “which were such a large part of the prosecutor’s closing argument, did not impeach the things [defendant] discussed in his testimony.” However, defendant did not object below to the prosecutor’s comments on statements defendant did make; he objected only to the prosecutor’s comments on defendant’s
fail ure to make ce rtain statements. Errors not asserted in the trial court may generally not be raised on appeal. ( In re Aaron B. (1996) 46 Cal.App.4th 843, 846.) Because defendant did not object below, he has not p reserved the issue for appeal.
2.
NO PREJUDICE RESULTED FROM ANY PROSECUTORIAL MISCONDUCT Defendant contends the prosecutor committed misconduct by invading the attorney

- client privilege, by informing jurors the punishment for voluntary manslaughter was less than that for murder, and by “testifying” during cross

- examination that defend ant murdered his wife. Background. During cross

- examination, the prosecutor asked defendant why he changed his testimony and insisted he did not intend to kill his wife despite having said only moments before that he did intend to kill her. Defendant responded that he changed his testimony because the prosecutor put pressure on him. The prosecutor responded, “ I hope you feel a lot of pressure. You murdere d your wife.” Defense counsel objected that the question10

was argumentative. The court said, “ Okay. Ask another question.” Defense counsel did not request an admonition to the jury to disregard the prosecutor’s assertion that the crime
was murder rather than manslaughter. Later, on recross

- examination, the prosecutor asked defendant what he did to prepare for his testimony. Defense counsel asked to address the court at side bar. The court said this was a typical question on cross - examination, but advis ed defendant that

“ you’ re not to in any way reveal any conversations you have had with your lawyers or any documents you might have gone over with your lawyers. Other than that, due to the privilege, I ’ ll let you go a head and answer the question.”
Defenda nt asked the prosecution to repeat the question

. The prosecutor asked,

“ Other than any interaction you had with your lawyers or any documents your att orneys may have shown you, what did you do to prepare for your testimony in this case?” Defendant replie d, “Nothing.” The prosecutor then asked defendant if he realized that his testimony was important. He asked defendant whether he realized that, if the jury found him guilty of voluntary manslaughter, his punishment would be si gnificantly reduced. The co u rt told the prosecutor to stop and informed the jury it w as not to consider punishment. The prosecutor then asked defendant if he knew that if the jury believed him, it co uld signi ficantly benefit him. The court raised its own objec tion, and told the jur ors that “ [i]n your deliberations, you are not to consider punishme nt in an y way, shape or form.” At the end of defendant’s testimony , defense counsel made a motion for a mistrial, claiming that the prosecutor’ s questions about his knowledge of the law of manslaughter11

had compromised defendant ’s due process right s. The prosecutor informed the court that his intention was not to have the jurors consider defendant ’ s punishment, but instead to encourage them to consider his credibility and his state of mind. The prosecutor explained, “ I certainly wasn’ t trying to violate his Constitutional rights. I wasn ’ t trying to commit malpractice. I was trying to get to the defendant’ s motives to lie.” According to the prosecutor, defendant could have discovered that he would receive a lighter sentence for voluntary manslaughter than for murder by speaking with lawyers in his family or by accessing books while in prison and prepared his testimony accordingly. With respect to the prosecutor’ s alleged invasion of the att orney - client privilege, the c ourt said there was no concern because d efendant did not reveal anything that “could have been a problem,” as he merely stated that he did nothing to prepare for giv ing his testimony. The court was troubled by the prosecutor’ s asking defendant if he knew he could get a reduced punishment for voluntary manslaughter. However, the court noted that the prosecutor’ s intent in asking the question

— to evaluate defendant ’ s credibility

—
was not inappropriate or impermissible as “ [ i ] t’s t he jury’ s job to decide whether yo u’re telling the truth or not.” The court noted that it had admonished the jurors not to consider penalty or punishment, and stated that defense counsel had already asked the jurors to reject first degree murder and the s pecial circumstances and find defendant gu ilty of voluntary manslaughter

. Thus, the prosecutor did not ask any questions or provide any
inf ormation that might “surprise” the jury. The court concluded that, looking a t the totality of the alleged misconduc t, “ I do not believe that [ defendant ’ s] due process rights have been violated after the admonition and the new questions were asked .

. . . [¶] I do12

have to say I’ m disappointed, but I don’ t think these rise to the level of declaring a mistrial in this c ase. Accordingly, the court denied defendant ’ s motion for a mistrial. Applicable Law. The applicable federal and state standards regarding prosecutorial mis conduct are well established: “‘ A prosecutor’ s . . . intemperate behavior violates the federal
Con stitution when it comprises a pattern of conduct so “ egregious that it infects the trial with such unfairness as to make the conv iction a denial of due process.” [Citations.]’” ( People v. Gionis (1995) 9 Cal.4th 1196, 1214

- 1215.) In such a case, the cou rt applies the Chapman har mless beyond a reasonable doubt standard. ( People v. Bordelon (2008) 162 Cal.App.4th 1311, 1323 , citing Chapman v. California (1967) 386 U.S. 18 .)

“ ‘[ C ] onduct by a prosecutor that does not render a criminal trial funda mentally un fair is prosecutorial misconduct under state law only if it involves “ ‘ the use of deceptive or reprehensible methods to attempt to persuade either the court or j ury. ’” ’” ( People v.
Gionis , at p. 1215.) Under state law, a defendant’ s conviction will not b e reversed for prosecutorial misconduct absent a showing that it is reasonably probable that the jury would have reached a result more favorable to the defendant had the misconduct not occurred. ( People v. Zambrano (2004) 124 Cal.App.4th 228, 243 [Fourth Dist., Div. Two] ; People v. Watson (1956) 46 Cal.2 d 818, 836.) Even where the prosecutor acts improperly, a timely admonition from the court generally cures any harm. ( People v. Pigage (2003) 112 Cal.App.4th 1359, 1375.)13

Analysis. We agree with the t rial court’s analysis. First, with respect to the contention that the prosecutor violated defendant’s attorney

- client privilege , the court correctly held that the privilege had not been breached because defendant did not reveal any confidential
communicat ions. The mere fact that communications took place between an attorney and client is not privileged. ( State Farm Fire & Casualty Co. v. Superior Court (1997) 54 Cal.App .4th 625, 640.) The prosecutor ’s questions did not go further, and defendant did

not reveal any privileged communications. Consequently, even if the prosecutor’s question was an attempt to violate defendant’s attorney

- client privilege, h e did not succeed in doing so. Next, even if it was misconduct for the prosecu tor to ask questions con cerning defendant’s knowledge that manslaughter carries a lesser penalty than first degree murder, any error was harmless under either the Chapman standard or the Watson standard. First, it is common knowledge that manslaughter is a less serious offense t han murder. Second, defense counsel, in his opening statement, had apparently asked the jury to find defendant guilty of manslaughter rather than first degree murder. That request would have made it obvious to an y person of normal intelligence who did no t already know that manslaughter is a less serious offense than murder that a manslaughter conviction was a more desirable outcome from defendant’s point of view. Finally, the court instructed the jury that it could not consider punishment “in any way, sh ape or form” in its deli berations.14

Jurors are presumed to have followed the court’s instructions. ( People v. Sanchez (2001) 26 Cal.4th 834, 852.) Defendant has not pointed to anything in the record which would overcome that presumption. The case s he rel ies upon are inapposite. In People v. Shazier (2012) 212 Cal.App.4th 520, for example, the prosecutor engaged in a “pervasive pattern of inappropriate questions, comments and argument,” and the trial court did not sustain any of the defendant’s well

- taken objections. ( Id . at 537.) The court noted that egregious misconduct is generally reversible when it is not corrected by the trial court. ( Ibid ., citing People v. Hill (1998) 17 Cal.4th 800, 853 ( conc. opn. of George, C

. J .).) Here, in contrast, the co urt acted promptly, without waiting for an objection by the
defense , and t ook appropriate remedial action. 3 Finally, with respect to defendant’s contention that the prosecutor improperly “testified” when he asserted, in response to defendant’s answer to a question, that defendan t had murdered his wife, the court sustained defendant’s objection that the comment was argu mentative. Defense counsel did not ask for any additional curative action, such as an admonition to the jury that it was their function, not the prosecutor’s, to
determine what crime had been committed. A defendant who fails to request curative action in response to prosecutorial misconduct waives a claim of prosecutorial misconduct on appeal unless an admonition would not have cured the harm caused by the misconduct . ( People v. Hill , supra , 17

3 Review was granted in People v. Shazier , supra , 212 Cal.App.4th 520, after defendant’s opening brief was filed, and it is no longer citable as authority. ( P eople v. Shazier , review granted Apr. 17, 2013, S208398.) We discuss it only to illustrate the fallacy in defendant’s argument.15

Cal.4th at p. 820 .) Defendant does not contend that an admonition would not have cured any harm in this instance. In any event, the omission of an admonition was not prejudicial. I t could hardly have come as a surprise to the jury that the prosecutor believed defendant was guilty of murder rather than manslaughter. Opening arguments are not part of the record on appeal. However, we assume that the prosecutor made it clear in his opening statement th at he was seeking a conviction of murder with special circumstances. Even if the prosecutor did not make that clear in his opening statement , however, the record reflects that defense counsel did tell the jury in his opening statement that he believed def

endant was guilty of voluntary manslaughter rather than murder. Moreover, the jury was instructed at the beginning of the trial that the attorneys’ questions and comments are not evidence and that it was their function to determine the facts. That instru ction was repeated at the close of evidence. We have no reason to believe that the jury did no t follow that instruction. ( People v. Sanchez , supra , 26 Cal.4th at p. 852.)
DISPOSITION The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKIN STER J. We concur: HOLLENHORST

Acting P. J.
MILLER J.