People v. Daveggio & Michaud (2018) · DecisionDepot

People v. Daveggio & Michaud

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
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California Supreme Court Apr 26, 2018 No. S110294Published

Before: Kruger

Filed 4/26/18

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, ) ) Plaintiff and Respondent, ) ) S110294 v. ) ) JAMES ANTHONY DAVEGGIO and ) MICHELLE LYN MICHAUD, ) ) Alameda County Defendants and Appellants. ) Super. Ct. No. 134147 ____________________________________)

Defendants James Anthony Daveggio and Michelle Lyn Michaud were each convicted of one count of first degree murder (Pen. Code, § 187, subd. (a)), two counts of oral copulation in concert by force (id., § 288a, subd. (d)), and one count of oral copulation on a person under 18 years of age (id., § 288a, subd. (b)(1)). Daveggio pleaded guilty to the oral copulation counts before trial; the remainder of the convictions stemmed from the jury’s verdict. The jury also found true two special circumstances—kidnapping and rape by instrument (id., § 190.2, subd. (a)(17)(B), (K))—and returned verdicts of death at the close of the penalty phase. The trial court denied the automatic motions to modify the verdicts (id., § 190.4, subd. (e)) and sentenced defendants to death. This appeal is automatic. (Id., § 1239, subd. (b).) We affirm the judgment. I. BACKGROUND This case arises from the kidnapping, rape by instrument, and murder of Vanessa Lei Samson; the forcible oral copulation of Sharona Doe; and the oral

copulation of minor April Doe. At trial, the prosecutor also adduced evidence of four uncharged sexual offenses.

A. Guilt Phase

1. Prosecution case-in-chief

a. Defendants meet, move in together, and are evicted Defendants met in 1996. Within a few months of their meeting, Daveggio moved into the tri-level Sacramento home in which Michaud was residing. They lived there together until August 1997, when Michaud was evicted. Following the eviction, defendants began living out of Michaud’s green Dodge minivan. The minivan had a sliding passenger-side door with a childproof lock, as well as removable back and middle seats. At some point, defendants removed the middle seats.

b. Christina Doe incident (uncharged) Janet and Ted Williams, who were acquainted with defendants, permitted defendants to stay in their home for a few nights in September 1997. On September 11, after that stay had concluded, Janet and Ted left town for a few days. They later discovered that the screen behind their bathroom window was bent in a manner that appeared consistent with a break-in and that their shower had been used. On or after September 14, Michaud confessed to Janet that she had broken in through the bathroom window and stayed in the house with Daveggio.1 The first uncharged sexual offense occurred during this time period.

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Candlewood Inn. Around that time, April, then 16 years old, was using methamphetamine every day. Daveggio provided her with “a lot” of it. While staying at the Candlewood, April did not sleep at all. Defendants joined the Carpenter family for a Thanksgiving meal. Jamie testified that when they drove from the Candlewood to the Carpenters’ that morning, the only seats in the car were the driver’s seat and front passenger seat; the back bench had been removed. While at the house, April testified, she and Daveggio were together in her room with the door open. Daveggio had a small, automatic handgun that, according to April, he was “caressing” “like it was his baby.” April returned to the Candlewood with defendants that night “[b]ecause they were going to take me to [the] DMV on Friday to get my license.” This time, it was just the three of them. Jamie testified that she “started to go but [Daveggio] said it was better if I just stayed home.” While at the Candlewood, April testified, she and Daveggio “talked about lots of things,” including “the perfect way to rob an armored truck.” He also asked April if she “wanted to go on a ‘hunting’ with him,” which, April testified, Daveggio described as “where you stalk someone to kill.” April and Daveggio also “talked about fear in people’s eyes”; according to Daveggio, “it was an adrenaline rush.” “Looking at you,” he told April, “reminds me of me, you show no remorse.” April testified that Daveggio “explained that you can’t have feeling[s] for anyone, that if, for instance, my sister Cassie seen him do something that he would have to kill her, too. . . . He wouldn’t care. He said you can’t have feelings. . . . [Y]ou can’t care about people like that.” Daveggio also mentioned that serial killers do not show remorse; they can just “go on with their everyday life and no one would know what they had done.” Daveggio had studied serial killers’ flaws and “knew how to get away with it.” He had also given April a book called “Serial Murderers” while living at the

That morning, two men were working on a roof overlooking a street on Samson’s route to her office. Both men heard a scream—and the sound of a van door sliding shut. One testified that it was then around 7:30 a.m. Both men saw a forest green van driving away slowly. Though neither witness saw a stripe on the van, one observed that the van had a light-colored California plate whose first character was the number three. The other saw that the driver was a woman with shoulder-length brown or black hair. Later that morning, at around 9:45 a.m., Michaud was seen at a welfare office in Sacramento. A witness placed her at a nearby check-cashing facility around 20 minutes later. That same day, an employee at a recreation area between Sacramento and Lake Tahoe spotted a dark green “Dodge Caravan or Plymouth Voyager type vehicle” “parked in campsite number 9.” The vehicle had an approximately “five-inch wide silver, white-colored stripe that ran down the side of the vehicle below the windows.” The witness also saw a “slightly overweight” white male outside the van smoking cigarettes and a white female with “longish brown hair” inside of it. The witness believed the man saw him, and he testified the van left within about five minutes after that. The witness explained that the recreation area had “a self-service pay station where you fill out your information, your vehicle, people that are staying with you and various things. You put your money in the envelope pertaining to what type of service that you’re going to be doing with the facility and you place that into a metal canister.” An FBI agent later recovered torn-up pay envelopes from the hotel room in which Michaud was arrested. The envelopes provide the license plate number of Michaud’s van; indicate that the van was parked in campsite #9 at Sly Park Recreation Area on December 2, 1997; and bear the name “James Allen.” The field for “# People” is blank on one of the envelopes. The other, however, lists the number of people in the van: “3.”

that Daveggio controlled her and was the instigator of their joint crimes. The contention that the nature of these defenses compelled severance relies largely on a Ninth Circuit case applying rule 14 of the Federal Rules of Criminal Procedure, U.S. v. Tootick (9th Cir. 1991) 952 F.2d 1078. But as this court has previously explained, the United States Supreme Court has since clarified, in Zafiro v. United States (1993) 506 U.S. 534, that “ ‘[m]utually antagonistic defenses are not prejudicial per se.’ ” (People v. Thompson (2016) 1 Cal.5th 1043, 1081; see Zafiro, at pp. 538–539.) Rather, antagonistic defenses require severance only when “ ‘ “the conflict is so prejudicial that [the] defenses are irreconcilable, and the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty.” ’ ” (Coffman and Marlow, supra, 34 Cal.4th at p. 41.) “If the moving party’s guilt can be established by sufficient independent evidence, ‘it is not the conflict alone that demonstrates . . . guilt,’ and severance is not required.” (People v. Winbush (2017) 2 Cal.5th 402, 456, quoting Coffman and Marlow, at p. 41.) Here, although Daveggio and Michaud each may have sought to cast blame on the other, it was undisputed that both had been involved in some manner in each of the incidents. The mere fact that defendants “ ‘may attempt to shift responsibility to each other does not compel severance of their trials[.]’ ” (People v. Jackson (1996) 13 Cal.4th 1164, 1208.) In any event, there was overwhelming independent evidence against each defendant, dispelling any notion that the conflict alone might have established guilt. With respect to the murder charge, witnesses testified that both defendants discussed “hunting” for victims; witnesses placed defendants in Lake Tahoe shortly after Samson was kidnapped; and witnesses connected defendants to the green van. Moreover, forensic evidence from the van independently linked both defendants to the victim—Michaud’s fingerprints and Samson’s DNA were found on the curling iron that was used to sodomize Samson and Samson’s and defendants’ fingerprints were on an ampm

Pepsi cup. With respect to the sexual offenses, Sharona Doe and April Doe testified to the sexual assaults, providing sufficient independent evidence against each defendant. The trial court did not abuse its discretion in denying defendants’ pretrial severance motions. Nor did the trial court abuse its discretion in denying Daveggio’s renewed motion for severance after he pleaded guilty to the sexual offenses. The argument stresses that, despite Daveggio’s guilty plea, the trial court admitted the testimony of the victims of the charged and uncharged sexual offenses. There was thus, it is argued, a “strategic conflict” between defendants: While Daveggio wanted to inform the jury of his plea early on, Michaud opposed it. The implicit assumption underlying the argument is that if Daveggio had a separate trial, the evidence of the sexual offenses could not have been used against him. The assumption is incorrect. Evidence of the sexual offenses would have been admissible even if the trial court severed his trial from Michaud’s; as we discuss below, the charged and uncharged sexual acts were admissible under Evidence Code sections 1101 and 1108 for their bearing on the remaining charge against Daveggio. We also reject the argument that Daveggio was prejudiced at the penalty phase because the “juxtaposition of [Daveggio’s] mitigation next to Michaud’s mitigation evidence prevented the jury from determining the appropriate sentence for [Daveggio].” As we have noted, to accept this sort of argument “would eviscerate the statutory preference for joint trials in all capital cases.” (People v. Winbush, supra, 2 Cal.5th at p. 457.) There is nothing in the record that suggests that the jury compared Michaud’s mitigation evidence to Daveggio’s, as defendants suggest, in direct contradiction of the trial court’s instruction to consider the penalty for each defendant separately. We presume that jurors follow the instructions provided by the court in the absence of a showing to the contrary. (See, e.g., People v. Shazier (2014) 60 Cal.4th 109, 150.)

Christina, Aleda, Rachel, and Amy Doe. The court ruled that the evidence of these incidents was admissible both under Evidence Code section 1108, which permits admission of evidence of other sex offenses in a sex crime prosecution, and under Evidence Code section 1101, subdivision (b), to show defendants’ intent, motive, and common plan. The court further noted that the Aleda Doe incident was also admissible to prove defendants’ identity as to the Vanessa Samson charge and appurtenant special circumstances. (See generally People v. Balcom (1994) 7 Cal.4th 414; People v. Ewoldt (1994) 7 Cal.4th 380 (Ewoldt).) In admitting the evidence, the trial court conducted a separate analysis under section 352. The court explained: “The court has evaluated the uncharged acts pursuant to Evidence Code section 352, the weighing of the probative value of the proffered evidence against the prejudicial effect of such evidence. Included in the criteria used by the court in this weighing process is the following: [¶] Whether the source of the evidence for the uncharged acts is independent from the source of the evidence for the charged acts; [¶] whether there is a close proximity in time from the uncharged acts and the charged acts; [¶] whether there are distinct similarities between the uncharged acts and the charged acts; [¶] whether the evidence of the uncharged acts would be cumulative; [¶] whether the evidence focused on the material facts of the case; [¶] whether the existence of other damaging information, i.e., the charged acts, minimizes the prejudicial effects; [¶] whether the uncharged acts are more inflammatory than the charged acts; [and] [¶] whether the defendants have been convicted of the uncharged acts in another proceeding.” b. Discussion Evidence must be relevant to be admissible (Evid. Code, § 350); that is, it must have some “tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action” (id., § 210). A plea of “not

guilty” “place[s] all material issues in dispute” (People v. Bivert (2011) 52 Cal.4th 96, 117), including a defendant’s intent (People v. Scott (2011) 52 Cal.4th 452, 471). The evidence concerning the uncharged incidents shed light on whether Daveggio and Michaud had a propensity to commit acts of sexual misconduct (cf. People v. Reliford (2003) 29 Cal.4th 1007, 1012 (Reliford); People v. Falsetta (1999) 21 Cal.4th 903, 915 (Falsetta))—a propensity relevant to whether defendants kidnapped Samson solely to murder her, the rape by instrument special circumstance, and the charges of oral copulation against Michaud. The question is whether this evidence was inadmissible on other grounds. Section 1101 of the Evidence Code limits the admissibility of so-called “propensity” or “disposition” evidence offered to prove a person’s conduct on a particular occasion. (See Evid. Code, § 1101, subd. (a) (section 1101(a)).) Specifically, section 1101(a) instructs that “evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.” Subdivision (b) clarifies that subdivision (a) does not prohibit the admission of evidence relevant “to prove some fact . . . other than [the person’s] disposition to commit such an act,” such as the person’s “motive, opportunity, intent, preparation, plan, knowledge, [or] identity.” (Evid. Code, § 1101, subd. (b) (section 1101(b)); see also id., § 1101, subd. (c) [discussing witness credibility]; People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 406 (Bryant).) Evidence Code section 1108 (section 1108) carves out an exception to section 1101. It provides that “[i]n a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.” (§ 1108, subd. (a); see also

§ 1101(a) [“Except as provided in . . . Section[] . . . 1108, . . . .”].) Section 352, in turn, sets out the general rule that “[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (See also People v. Villatoro (2012) 54 Cal.4th 1152, 1163 (Villatoro) [section 1108’s reference to section 352 clarifies that “section 1108 does not supersede section 352 or other provisions of the Evidence Code”] (italics omitted).) It follows that if evidence satisfies the requirements of section 1108, including that it is not inadmissible under section 352, then the admission of that evidence does not violate section 1101. (See People v. Merriman, supra, 60 Cal.4th at p. 59, fn. 9; People v. Avila (2014) 59 Cal.4th 496, 517–518 (Avila); People v. Jones (2012) 54 Cal.4th 1, 50; People v. Loy (2011) 52 Cal.4th 46, 63 (Loy); People v. Story (2009) 45 Cal.4th 1282, 1295 (Story).) To determine whether section 1108 evidence is admissible, trial courts must engage in a “careful weighing process” under section 352. (Falsetta, supra, 21 Cal.4th at p. 917.) “Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.]” (Ibid.)

A trial court’s rulings admitting evidence under Evidence Code sections 1101 and 1108 are reviewed for abuse of discretion. (People v. Cordova (2015) 62 Cal.4th 104, 132 (Cordova); Story, supra, 45 Cal.4th at p. 1295 [“Like any ruling under section 352, the trial court’s ruling admitting evidence under section 1108 is subject to review for abuse of discretion.”].) “ ‘ “ ‘Evidence is not prejudicial, as that term is used in a section 352 context, merely because it undermines the opponent’s position or shores up that of the proponent. The ability to do so is what makes evidence relevant. The code speaks in terms of undue prejudice. Unless the dangers of undue prejudice, confusion, or time consumption “ ‘substantially outweigh’ ” the probative value of relevant evidence, a section 352 objection should fail. [Citation.] “ ‘The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. . . .’ ” The prejudice that section 352 “ ‘is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.’ [Citations.] ‘Rather, the statute uses the word in its etymological sense of “prejudging” a person or cause on the basis of extraneous factors.’ ” ’ ” ’ ” (Bryant, supra, 60 Cal.4th at p. 408.) Defendants do not dispute that section 1108 applies, and for good reason: This case is “a criminal action.” (§ 1108, subd. (a) (section 1108(a)).) Both defendants were “accused of a sexual offense.” (Ibid.; see id., § 1108, subd. (d)(1)(A); Pen. Code, § 289; cf. Story, supra, 45 Cal.4th at p. 1285.) And neither defendant contests that evidence of the four incidents in question was “evidence of the defendant’s commission of another sexual offense or offenses.” (§ 1108(a).) Defendants do argue, however, that the trial court abused its discretion in refusing to exclude the evidence under section 352 (although much of their argument focuses specifically on the trial court’s admission of evidence for the

limited purposes outlined in section 1101(b), rather than for purposes of section 1108(a)). In evaluating defendants’ argument, we begin by noting several considerations that form the backdrop for our inquiry. We have noted that, given section 1108’s purpose of facilitating the adjudication of sex crimes—which typically occur outside the presence of potential witnesses and often leave no corroborating evidence—the case for admission of propensity evidence “is especially compelling” where, as here, “the sexual assault victim was killed and cannot testify.” (Avila, supra, 59 Cal.4th at p. 515; see also Loy, supra, 52 Cal.4th at p. 62.) Additionally, it is apparent that the trial court carefully considered several of the factors our cases have identified in describing the “careful weighing process under section 352.” (Falsetta, supra, 21 Cal.4th at p. 917.) The trial court whittled the 15 acts of misconduct offered by the prosecution down to four. (See ibid. [discussing admission of “some but not all of the defendant’s other sex offenses”].) Finally, each of the uncharged incidents occurred no earlier than September 1997, close in time to the charged offenses, and each involved both defendants acting together. (Cf. ibid. [discussing “similarity to the charged offense”].) With these considerations in mind, we address each uncharged incident of sexual misconduct. Aleda Doe: We conclude the trial court acted within its discretion when it admitted evidence of the Aleda Doe incident. Among other things, that evidence tended to show that defendants had previously abducted a young woman from the side of the road for purposes of sexual assault, as the prosecution alleged defendants had done in the case of Vanessa Samson. Further, the fact that defendants had been convicted in federal court of various kidnapping-related crimes weighed heavily in favor of admission. (See Loy, supra, 52 Cal.4th at p. 61 [conviction implies enhanced certainty that offense occurred; “no new burden of defending against the charges”; no temptation for jurors “to convict . . . of the

charged crime to punish . . . for the earlier crimes”; and “little danger of confusing the issues”].) Perhaps for these reasons, trial counsel for one of the defendants “acknowledege[d] that the Aleda Doe incident is sufficiently similar and sufficiently probative to the charge in Count 4 that I am not straining my credibility by arguing against that.” Amy Doe: Evidence of the Amy Doe incident was also admissible. The evidence tended to show that, roughly one month before the Samson abduction, defendants, acting together, used force to subdue and sexually assault their victim. True, in this instance, the force was used to restrain a resisting victim who had been lured into a hotel room, rather than (as in Samson’s case) pulled from the side of the road. But the probative value of defendants’ conduct remains substantial. Further, relatively little trial time was devoted to this incident; evidence of even extremely dissimilar offenses may be admitted under section 1108 (Loy, supra, 52 Cal.4th at p. 63); and the evidence at issue here was “less inflammatory than the evidence about the” Samson murder (People v. McCurdy (2014) 59 Cal.4th 1063, 1099 (McCurdy)). Christina Doe: The trial court also properly admitted the evidence concerning Christina Doe. The evidence tended to show that defendants previously sexually assaulted someone together. At 13 years old, Christina was meaningfully younger than the victims of the charged offenses, and certainly younger than Samson, then 22. But the age difference is not dispositive. We have held, for example, that a court permissibly admitted evidence that a defendant had raped a six year old in a trial concerning the rape and murder of a 14-year-old victim. (People v. Williams (2016) 1 Cal.5th 1166, 1197.) Further, the evidence concerning the Christina Doe incident, in addition to consuming a relatively small portion of the trial (and not being seriously disputed), did not involve the violence at issue in the Samson murder. That difference limits the evidence’s prejudicial

The second objection, concerning the trial court’s instructions that the evidence could be considered for the purposes identified in section 1101(b), is likewise without merit. At a minimum, the evidence was admissible to shed light on defendants’ motive and intent. We have explained that “[t]he least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent.” (Ewoldt, supra, 7 Cal.4th at p. 402.) Evidence is admissible for these purposes if there is “sufficient evidence for the jury to find defendant committed both sets of acts, and sufficient similarities to demonstrate that in each instance the perpetrator acted with the same intent or motive.” (McCurdy, supra, 59 Cal.4th at p. 1097.) Here, defendants lured or kidnapped each of their victims to a designated location, where they sexually assaulted them by threat or use of force. Despite the substantial age difference between some of the victims, the similarity between the uncharged and charged offenses provided a sufficient basis for the jury to conclude that defendants acted with the same criminal intent or motive, rather than by “ ‘accident or inadvertence or self-defense or good faith or other innocent mental state.’ ” (Ewoldt, supra, at p. 402.) The evidence of the uncharged acts against Aleda Doe was also admissible under section 1101(b) to prove identity with regard to the Samson incident. This court has established that “[t]he greatest degree of similarity is required for evidence of uncharged misconduct to be relevant to prove identity . . . . [T]he uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. [Citation.] ‘The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.’ [Citation.]” (Ewoldt, supra, 7 Cal.4th at p. 403.) This high level of similarity is present here—both Aleda Doe and Samson were kidnapped by defendants from the side of the road and were placed in a van, where defendants sexually assaulted them.

pertaining to charged offenses”—specifically, the offenses involving Sharona Doe and April Doe—“that had not been subjected to the trial court’s exercise of discretion under Evidence Code section 352 as required by Evidence Code section 1108.” As we explained in a decision issued while this appeal was pending, evidence of charged sex offenses, like evidence of uncharged sex offenses, may give rise to an inference of propensity to commit similar crimes, but the trial court’s decision to permit the jury to consider the evidence for that purpose is properly guided by a section 352 weighing analysis. (See Villatoro, supra, 54 Cal.4th at pp. 1161–1164.) Here, although defendants argue otherwise, we conclude the trial court did exercise its discretion under section 352. In the trial court, Daveggio moved to bifurcate, urging that the counts to which he had pleaded guilty (counts 1–3) should be tried separately from the murder (count 4). Michaud appears to have joined the motion, pursuant to the trial court’s ruling that “cocounsel will join in motions unless otherwise stated.” Although Daveggio acknowledged that evidence of the Aleda Doe incident might be admissible in a trial concerning only count 4, he urged that “everything else is textbook 352.” The trial court denied the motion to bifurcate. In so doing, it expressly rejected defendants’ section 352 argument. In the same statement of decision that described the court’s “exercise[] [of] discretion pursuant to Evidence Code [section] 352” regarding the uncharged acts, the court explained that “[i]f the events charged in counts one, two, and three were uncharged acts, they would be admissible in the trial concerning count four under the analysis used by the court regarding the [uncharged] events . . . . The facts relating to the events involving Sharona Doe and April Doe are similar to the facts involving the other uncharged Does and would thus be admissible under Evidence Code [section] 1101(b) on the issue of intent, motive and common plan and design or under Evidence Code

section 352, describing the evidence as “ammunition . . . found in the van.” The prosecutor responded: “There was testimony that a .25 auto was used in several of the crimes and the .38 was shot off as a threat to Christina and Rachel to keep quiet. And these are .25’s and .38’s. And the .25 auto was recovered in the hotel room.” Counsel for Daveggio objected that “[t]here is no showing a firearm was used with the homicide case that remains against Mr. Daveggio.” The court admitted the evidence. b. Discussion Defendants contend that the trial court abused its discretion by admitting evidence concerning the crossbow found in the van. The contention lacks merit. The crossbow was relevant to whether the sexual penetration of Samson was accomplished by force or fear, and it shed light on how defendants were able to control her during the incident. That was particularly probative given defendants’ assertion that lack of visible external trauma indicated that Samson was not penetrated at all. Testimony indicated, for example, that the curling iron had “a good likelihood” of causing trauma “unless some care was taken,” and evidence whether defendants were controlling Samson, or whether she was resisting, was relevant to shed light on the nature of the attack. The probative value of this evidence was not outweighed by a risk of undue prejudice. Given the misconduct of which defendants were accused, having a crossbow (or bolts for that crossbow) was hardly inflammatory. True, as defendants emphasize, the victim was not killed with a crossbow. But just because evidence may not be admissible as proof of the murder weapon does not mean it is not admissible at all. (See, e.g., People v. Prince (2007) 40 Cal.4th 1179, 1248–1249; cf. People v. Riser (1956) 47 Cal.2d 566, 577 [“It was error therefore to admit the Colt, two of the holsters, the belts, and the box of .22 shells. The P38 was admissible on other grounds that appear below.” (Italics added.)].) Further, while defendants do not appear to have

preserved an objection that the crossbow was merely evidence of the act of crossbow possession, admitted to show propensity (§ 1101(a)), that objection lacks merit in any event; the “fact” of crossbow possession was relevant to prove something beyond defendants’ “disposition to commit” misconduct (§ 1101(b)). Defendants further object to evidence that “guns were seized from Michaud’s van and from the motel room occupied by [defendants] at the time of their arrest.” We assume arguendo that this objection is preserved, notwithstanding the fact that defendants’ objections focused on the crossbow and the ammunition. Like the crossbow, this evidence was relevant to issues regarding whether defendants accomplished the charged crimes by force or fear, and it was not, in context, unduly prejudicial. Additionally, while the ammunition found with or near defendants at the time of their arrest is less probative than the guns themselves, the fact that the guns were loaded (or that ammunition was available for loading) is relevant and not unduly prejudicial. The gun evidence was also, more specifically, relevant to the incident involving Sharona Doe. Among other things, Sharona testified that: At some point during her abduction, both defendants threatened to kill her; she had previously seen both defendants with a gun; and, when defendants were dropping her off at the end of the assault, Daveggio retrieved a gun from a pocket behind the passenger seat and flashed it “in [a] way that made me know that if I told that he was going to kill me.” Defendants argue that the gun evidence was not relevant to whether the oral copulation of Sharona Doe was accomplished by force or fear, since the oral copulation was complete when Daveggio flashed the gun. But even accepting this argument, the incident involving the gun was, in any event, relevant to explain why Sharona initially lied to police about the incident. Defendants also argue that the court should not have admitted certain evidence recovered from the Carpenters’ home. In particular, they complain that a

Second, after closing arguments were concluded in May 2002, the trial court again instructed the jury on reasonable doubt in accordance with CALJIC No. 2.90—once with the accompanying discussion of the presumption of innocence, and once without. The court also provided a written copy of the full instruction to the jury. b. Discussion The federal Constitution’s due process guarantee “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” (In re Winship (1970) 397 U.S. 358, 364.) The Constitution “does not require that any particular form of words be used in advising the jury of the government’s burden of proof,” but it does require that, “ ‘taken as a whole, the instructions . . . correctly conve[y] the concept of reasonable doubt to the jury.’ ” (Victor v. Nebraska (1994) 511 U.S. 1, 5 (Victor).) What matters, for federal constitutional purposes, is “whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on” insufficient proof. (Id. at p. 6.) Defendants do not object to the giving of CALJIC No. 2.90, an instruction we have repeatedly upheld against constitutional challenge. (See People v. Romero and Self (2015) 62 Cal.4th 1, 42 & fn. 15; see also People v. Brown (2004) 33 Cal.4th 382, 391–392 & fn. 2; Victor, supra, 511 U.S. at pp. 7–17; People v. Freeman (1994) 8 Cal.4th 450, 504 & fn. 9 (Freeman); People v. Hearon (1999) 72 Cal.App.4th 1285, 1286–1287 [collecting cases].) Defendants argue, however, that the trial court’s comments about reasonable doubt during jury selection improperly diluted the reasonable-doubt standard in four respects. Defendants acknowledge that they did not object to the trial court’s statements at the time they were made, but they contend that no objection was required because the asserted errors affected their substantial rights. (Pen. Code, § 1259.) The

Attorney General concedes that evaluating the merits of that argument requires us to consider the merits of defendants’ asserted claims of error. We thus proceed to consider the merits of defendants’ claims. First, defendants complain that the trial court failed to explain that jurors must have an “abiding conviction” of the defendants’ guilt to convict. Defendants do not contend that the omission of the “abiding conviction” standard rendered the comments misleading, but instead contend that the trial court should have elaborated further on the “nature and depth of certitude necessary for conviction.” But while the court omitted mention of the phrase “abiding conviction” during its discussion with prospective jurors, the court later advised the selected jurors— multiple times—that they could not convict absent “an abiding conviction of the truth of the charge.” The trial court’s earlier omission of that language posed no risk of diluting the prosecution’s burden of proof. Second, defendants argue that the court should not have advised prospective jurors that, if selected, they could rely “upon common sense and reason” in reaching a verdict. This statement diluted the prosecution’s burden of proof, defendants claim, because it permitted each potential juror to “apply his or her own common sense in addition to reason in evaluating the evidence.” The argument is unpersuasive. Common sense may provide the premise upon which reason operates; indeed, it is hard to see how jurors could perform tasks such as evaluating witness credibility without keeping common sense in mind. (Cf. People v. Centeno (2014) 60 Cal.4th 659, 669 (Centeno) [“jurors may rely on common knowledge and experience in evaluating the evidence”]; Venegas, supra, 18 Cal.4th at p. 80 [jurors may often “rely on their own common sense and good judgment in evaluating the weight of the evidence presented to them”].) It is not reasonably likely that prospective jurors believed that, if selected, they could rely on common sense that exceeded the bounds of reason in reaching a verdict.

everything relating to human affairs is open to some possible or imaginary doubt.” (Accord, Pen. Code, § 1096.) We discern no error in the statement. (See People v. Romero and Self, supra, 62 Cal.4th at p. 42 & fn. 15.) Fourth, and finally, defendants claim that the trial court should not have analogized to the scales of justice in explaining the meaning of “reasonable doubt.” As they put it, “[T]he combination of the use of the imagery of movement of the scales of the Lady of Justice and the trial court’s definition of the reasonable doubt standard as ‘tipped’ and ‘substantially tipped’ conveyed the impression of a lesser standard of proof than the constitutionally required standard of proof beyond a reasonable doubt.” In considering this argument, we must keep in mind that the challenged comments were made before the jury had even been selected and several months before the trial began. Once the trial was underway, the jury was repeatedly instructed on the meaning of reasonable doubt in accordance with CALJIC No. 2.90. We consider it unlikely that the trial court’s description of the reasonable doubt standard was the sort that “create[s] such an indelible impression on prospective jurors that they are unable to follow specific instructions given at the time the case is submitted to the jurors for decision.” (People v. Holt (1997) 15 Cal.4th 619, 662; accord, People v. Myles (2012) 53 Cal.4th 1181, 1219; cf. People v. Avila (2009) 46 Cal.4th 680, 716 [trial instructions made jury “fully aware” of “what evidence could be considered mitigating,” notwithstanding voir dire comments].) Indeed, even instructions during trial that misdescribe the burden of proof may, in light of other instructions, leave no reasonable likelihood that the jury misunderstood the proof required. (See People v. Espinoza (1992) 3 Cal.4th 806, 823 [court’s brief misstatement suggesting “that a verdict of not guilty had to be proven beyond a reasonable doubt” was immaterial in light of other instructions, including CALJIC No. 2.90].)

The instructions at issue in this case differ from those at issue in People v. Garcia (1975) 54 Cal.App.3d 61, on which defendants rely. In that case, the Court of Appeal held that a trial court erred when it provided a then-standard reasonable-doubt instruction but added: “ ‘In other words, reasonable doubt means just what the term implies, doubt based upon reason, doubt that presents itself in the minds of reasonable people who are weighing the evidence in the scales, one side against the other, in a logical manner in an effort to determine wherein lies the truth.’ ” (Garcia, supra, at p. 68, fn. omitted.) The Court of Appeal reasoned that the instruction impermissibly watered down the prosecutor’s burden of proof. It explained that the instruction was “strikingly comparable” to the civil preponderance-of-the-evidence standard, adding, “[t]his ‘weighing’ process, where a tipping of the scales determines the ‘truth,’ is wholly foreign to the concept of proof beyond a reasonable doubt.” (Id. at p. 69.) Other courts have also criticized use of a scales-of-justice analogy. (Cf. State v. Smith (1981) 183 Conn. 17, 28 [438 A.2d 1165, 1170] [“Under the charge, the jury could have found the defendant guilty if they believed beyond a reasonable doubt that the ‘scale’ had been tipped in favor of conviction. This is not the same as the constitutionally mandated standard of proof beyond a reasonable doubt.”]; Commonwealth v. New (1946) 354 Pa. 188, 215 [47 A.2d 450, 465] [“[T]he Commonwealth cannot obtain a conviction on evidence which ‘just tips the scales’ . . . .”].) In this case, although the trial court invoked a scales-of-justice analogy, it also stressed that the prosecutor’s burden of proof was “the highest burden [or “standard” or “level”] of proof provided for in the law.” It further noted that, in a criminal case, the scales of justice begin weighted in favor of the defendant (due to the presumption of innocence), and must not only be returned to equipoise, but “substantially tipped” in favor of the prosecution, to sustain a conviction. The

court’s use of the scales-of-justice metaphor thus did not evoke a simple preponderance inquiry. (Cf. State v. Moss (1983) 189 Conn. 364, 369–370 [456 A.2d 274, 276] [“The use of a balance scale analogy, while undesirable, is not inherently misleading. [¶] . . . [¶] The charge makes it clear that the level of proof must shift substantially out of equipoise in order to support a finding of guilt beyond a reasonable doubt.”].) To be clear, we do not encourage the use of the metaphor. But the court’s comments are far afield from the instruction at issue in Garcia. Nor is this case like People v. Katzenberger (2009) 178 Cal.App.4th 1260, on which defendants also rely. The prosecutor there showed jurors six pieces of an eight-piece puzzle representing the Statue of Liberty, urging the jurors that they “ ‘know [what] this picture is beyond a reasonable doubt without looking at all the pieces of that picture. We know that that’s a picture of the Statue of Liberty, we don’t need all the pieces of . . . it.’ ” (Id. at p. 1265.) The Court of Appeal found that the prosecutor had misrepresented the reasonable doubt standard, explaining that “[t]he presentation, with the prosecutor’s accompanying argument, leaves the distinct impression that the reasonable doubt standard may be met by a few pieces of evidence. It invites the jury to guess or jump to a conclusion, a process completely at odds with the jury’s serious task of assessing whether the prosecution has submitted proof beyond a reasonable doubt.” (Id. at p. 1267.) Additionally, the “prosecutor’s puzzle analogy” contained a “quantitative component,” in that it suggested that six of eight pieces (that is, 75 percent of the pieces) were enough to overcome the reasonable doubt standard. (Id. at pp. 1267– 1268.) In this case, by contrast, the trial court’s scales-of-justice analogy did not invite the jury “to guess or jump to a conclusion.” (People v. Katzenberger, supra, 178 Cal.App.4th at p. 1267; cf. Centeno, supra, 60 Cal.4th at p. 669 [criticizing

b. Discussion Defendants contend that it was error for the trial court to instruct with the “equally guilty” language in the former version of CALJIC No. 3.00. They contend that the instruction incorrectly permitted the jury to convict them on the basis of the culpability of the direct perpetrator of the charged crimes, without considering whether they shared the perpetrator’s wrongful intent. As the Attorney General notes, defendants did not raise this objection at trial, although counsel for Michaud did raise a different objection to the “equally guilty” language (namely, that it created tension with the special circumstance instructions, which informed the jury that to find the special circumstances true, it had to find that Michaud was a major participant in the kidnapping or rape by instrument). As we have in prior cases, we will assume, without deciding, that “defendants’ challenge to the ‘ “equally guilty” ’ language in [former CALJIC No. 3.00] was not forfeited for lack of objection and reach[] the merits of their claim, as permitted under section 1259.” (People v. Johnson (2016) 62 Cal.4th 600, 639 (Johnson).) Defendants’ argument departs from the premise that “an aider and abettor’s criminal liability may sometimes be greater than, or lesser than, that of the perpetrator.” (Johnson, supra, 62 Cal.4th at p. 638.) As we have explained, aiding and abetting liability “is based on a combination of the direct perpetrator’s acts and the aider and abettor’s own acts and own mental state.” (People v. McCoy (2001) 25 Cal.4th 1111, 1117 (McCoy), italics omitted; see also People v. Prettyman (1996) 14 Cal.4th 248, 259.) It is therefore possible for a direct perpetrator and an aider and abettor to be guilty of different degrees of the same offense, depending on whether they harbored different mental states. For example, we held in McCoy that a defendant who aided and abetted a fatal shooting could be convicted of first degree murder, even if the shooter himself,

knew of the perpetrator’s unlawful purpose and acted with the intent or purpose of committing, encouraging, or facilitating the crime. (Cf. Johnson, supra, 62 Cal.4th at pp. 640–641.) But while intent to kill establishes express malice (Pen. Code, § 188), it does not itself establish deliberation and premeditation (see, e.g., People v. Koontz (2002) 27 Cal.4th 1041, 1080). That said, “[i]t would be virtually impossible for a person to know of another’s intent to murder and decide to aid in accomplishing the crime without at least a brief period of deliberation and premeditation, which is all that is required.” (Samaniego, supra, 172 Cal.App.4th at p. 1166.) And under the circumstances of the case, it is exceedingly unlikely that a jury convinced that one of the defendants was an aider and abettor, but not provided with the “equally guilty” language, would have reached a different result regarding premeditation. As noted, Daveggio conceded that the jury could find him guilty of first degree murder; his theory of defense was that jury could not return a true finding as to the special circumstances because he and Michaud kidnapped Samson for the sole purpose of killing her. Michaud, for her part, adopted Daveggio’s argument that the kidnapping was incidental to the murder. Her primary defense was that she was controlled by Daveggio and did not voluntarily act in concert with him. But even had the jury credited her theory, Daveggio’s control over her would not have negated the conclusion that she aided in the crime after “at least a brief period of deliberation and premeditation”—which, again, “is all that is required.” (Ibid.) And here, it bears noting, the evidence of deliberation and premeditation was unusually direct: April Doe testified that she discussed going on a “hunting” with both Daveggio and Michaud. April testified that Michaud, in particular, not only asked her if she wanted to join in the “hunting,” but became angry when April declined.

Michaud suggests in passing that she was acting under duress, but, as she acknowledges, duress is not a defense to a capital crime. (See People v. Vieira (2005) 35 Cal.4th 264, 290.) She argues that duress may nevertheless negate the deliberation or premeditation required for first degree murder. This is true only in a limited sense. This court has previously acknowledged that “a killing under duress, like any killing, may or may not be premeditated, depending on the circumstances.” (People v. Anderson (2002) 28 Cal.4th 767, 784.) For example, “[i]f a person obeys an order to kill without reflection, the jury might find no premeditation and thus convict of second degree murder.” (Ibid.) But this case involves no comparable circumstances. Even if, as Michaud argues, she was “submissive to Daveggio,” she points to no evidence suggesting that she acted without reflection. Finally, even if the jury could have somehow found that an accomplice to Samson’s murder had not premeditated the killing, the jury was also told that it could find defendants guilty of first degree murder based on the felony-murder doctrine. “Felony-murder liability does not require an intent to kill, or even implied malice . . . .” (Gonzalez, supra, 54 Cal.4th at p. 654.) Instead, under that doctrine, “when the defendant or an accomplice kills someone during the commission, or attempted commission, of an inherently dangerous felony, the defendant is liable for either first or second degree murder, depending on the felony committed. If the felony is listed in [Penal Code] section 189, the murder is of the first degree . . . .” (Ibid.) Rape and kidnapping are listed felonies. (See Pen. Code, § 189.) The jury found true, with respect to each defendant, the special circumstance that Samson’s killing “was committed while the defendant . . . was engaged in and an accomplice in the commission, the attempted commission and the flight thereafter of a felony, to wit: KIDNAPPING, a violation of section 207 of the Penal Code . . . .” This alone establishes defendants’ guilt of first degree

purpose.” (People v. Thompson (1980) 27 Cal.3d 303, 324; see also Pen. Code, § 190.2, subd. (a)(17)(M) [change in law]; People v. Brooks (2017) 2 Cal.4th 674, 734–736 & fn. 8.) Such a purpose existed so long as defendants had “a concurrent purpose to commit both the murder” and the kidnapping. (People v. Brents (2012) 53 Cal.4th 599, 609 (Brents); see also People v. Castaneda (2011) 51 Cal.4th 1292, 1326–1327.) If, by contrast, the kidnapping was “merely incidental to the murder,” then the kidnapping special circumstance allegation was false. (People v. Green (1980) 27 Cal.3d 1, 61.) Defendants contend that the trial court erred by denying their request for a pinpoint instruction advising the jury that it could not find the kidnapping special circumstance true if it found “the kidnapping was for the purpose of murder.” This claim is unavailing. It is generally true that “[a] criminal defendant is entitled, on request, to a[n] instruction ‘pinpointing’ the theory of his defense.” (People v. Wharton (1991) 53 Cal.3d 522, 570.) But a request for a particular instruction may be denied if the instruction is argumentative (id. at pp. 570–571), misstates the law (People v. Gutierrez (2002) 28 Cal.4th 1083, 1142), or duplicates other instructions (id. at p. 1144). Here, defendants’ proposed instruction misstated the law insofar as it suggested that the jury could not render a true finding if it found that the “kidnapping was for the purpose of murder”; as the court correctly instructed the jury, “a concurrent purpose to commit” both murder and kidnapping would support a true finding (Brents, supra, 53 Cal.4th at p. 609). In any event, to the extent the purpose of the pinpoint instruction was to inform the jury of the “independent felonious purpose” requirement, the point was adequately conveyed by the instruction the court gave: “Either one or both of the felony murder special circumstances may be found to be true only if the evidence demonstrates that the felony was for some independent purpose other than merely to facilitate the crime of murder. If the kidnapping or the rape by instrument was

A claim of prosecutorial misconduct is ordinarily preserved for appeal only if the defendant made “a timely and specific objection at trial” and requested an admonition. (People v. Seumanu (2015) 61 Cal.4th 1293, 1328 (Seumanu); see also People v. Gonzales (2012) 54 Cal.4th 1234, 1275 [claim of error forfeited where objection was made and sustained, but no admonition was requested]; People v. Maciel (2013) 57 Cal.4th 482, 528 [rule applies to challenge to playing of videotape].) “ ‘The primary purpose of the requirement that a defendant object at trial to argument constituting prosecutorial misconduct is to give the trial court an opportunity, through admonition of the jury, to correct any error and mitigate any prejudice.’ [Citation.]” (Seumanu, at p. 1328.) Consistent with that purpose, “[a] court will excuse a defendant’s failure to object only if an objection would have been futile” (People v. Jackson (2016) 1 Cal.5th 269, 349), or if an admonition would not have mitigated the harm caused by the misconduct (ibid.; see People v. Valdez (2004) 32 Cal.4th 73, 125, 133). “ ‘[T]he absence of a request for a curative admonition’ ” may likewise be excused if “ ‘ “the court immediately overrules an objection to alleged prosecutorial misconduct [and as a consequence] the defendant has no opportunity to make such a request.” ’ ” (Seumanu, at pp. 1328–1329.) “A defendant claiming that one of these exceptions applies must find support for his or her claim in the record. [Citation.] The ritual incantation that an exception applies is not enough.” (People v. Panah (2005) 35 Cal.4th 395, 462.) As we have previously explained, “the term prosecutorial ‘misconduct’ is somewhat of a misnomer to the extent that it suggests a prosecutor must act with a culpable state of mind. A more apt description of the transgression is prosecutorial error.” (People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1 (Hill).) Such error occurs, as a matter of state law, when a prosecutor “engage[s] in deceptive or reprehensible tactics in order to persuade the trier of fact to convict.”

evidence was admitted “because it is a similar for identity,” and that there was no evidence Samson had suffered any similar mistreatment. In essence, counsel reasoned that the evidence was admitted as proof of identity, but was presented in a way that exceeded the justification for its admission. But as previously explained, the Aleda Doe evidence was also properly admitted under section 1108 to show propensity. Describing evidence relevant for that purpose was not misconduct. Although defendants were not quite as explicit on the point, we will assume they also preserved an objection to the descriptions that Ms. Backers used (as opposed to the evidence she described)—such as “little Salvadorian woman” and “beautiful young 21-year-old Salvadorian woman” and “a little four-foot-ten girl.” Appeals to sympathy for the victim fall outside the range of permissible argument. (People v. Kipp (2001) 26 Cal.4th 1100, 1130.) The descriptions in question were, however, “mild and fleeting,” (People v. Winbush, supra, 2 Cal.5th at p. 480), and before the case was submitted, the court charged that the jury “must not be influenced by sentiment, conjecture, sympathy, passion, prejudice, public opinion, or public feeling. Both the People and the defendant have a right to expect that you will conscientiously consider and weigh the evidence, apply the law, and reach a just verdict regardless of the consequences.” We presume the jury followed that instruction (see People v. Martinez (2010) 47 Cal.4th 911, 957 (Martinez)), and see no reasonable likelihood that Ms. Backers’s descriptions of Aleda improperly inflamed the jury. Defendants attempt to leverage this colloquy (and related instances of the court objecting to Ms. Backers arguing during opening statement) to excuse all of their failures to object and request admonitions. Defendants contend that objecting to other alleged misconduct would have been futile, because the “record . . . is replete with the trial court’s repeated efforts to rein in the prosecutor’s

multiple attempts at arguing the case in opening statement.” We will assume for the sake of argument that the trial court was unable to restrict the prosecutor’s argument, and we further assume that an inability to prevent argument during opening statement excuses a defendant’s failure to object to all forms of misconduct. (But cf. People v. Bain (1971) 5 Cal.3d 839, 849 [evaluating effect of “the misconduct of the prosecutor objected to by defense counsel” even where court had “allowed the trial to be conducted at an emotional pitch” (italics added)].) This argument nevertheless fails. Defendants’ reasoning confuses two concepts: (1) whether the trial court could stop the prosecutor from committing misconduct, and (2) whether the trial court could cure or mitigate the prejudice caused by any misconduct. If improper argument was inevitable, but any harm inflicted by that argument could have been cured, then a failure to object still generally works a forfeiture. (Cf. Seumanu, supra, 61 Cal.4th at p. 1328 [objection requirement exists primarily so court has an opportunity “ ‘through admonition of the jury, to correct any error and mitigate any prejudice’ ”].) Of course, there may be cases in which an objection and request for admonition would have been futile, or even affirmatively harmful, such as when a trial court appears disposed to overrule additional objections, and perhaps even to criticize defense counsel in front of the jury. (See Hill, supra, 17 Cal.4th at pp. 820–822.) But defendants fail to show that this is such a case. And as a practical matter, if a prosecutor’s conduct draws frequent objections and admonitions, the prosecutor might change that conduct going forward. Perhaps not coincidentally, the record reveals a long stretch of opening statement following this colloquy in which no objection was raised by the court or the four defense counsel (and in which, even on appeal, no prosecutorial misconduct is alleged to have occurred).

Defendants could have argued that the grounds on which the trial court objected sua sponte were grounds defendants were free to raise on appeal, notwithstanding their failures to request admonitions. (See People v. Collins (2010) 49 Cal.4th 175, 226–227; see also People v. Peoples (2016) 62 Cal.4th 718, 801 (Peoples); but see People v. Harris (2013) 57 Cal.4th 804, 858 [trial court interjected, objection nevertheless forfeited because no admonition requested].) Defendants do not appear to have done so. In any event, the remaining asserted errors are harmless beyond a reasonable doubt. Particularly given the strong evidence of defendants’ guilt, the trial court’s apparent concern that the prosecutor was arguing the case too early was not of consequence. Likewise, the trial court’s briefly stated concern that Ms. Backers was “kind of testifying” (when Ms. Backers explained how she had an expert review certain findings) was immaterial. Finally, we agree with defendants that after the initial colloquy reprinted above, Ms. Backers continued to make statements designed to appeal to the jury’s emotions, sympathy, and sentiment, such as describing the scene when Vanessa Samson’s brother appeared at the police station and “could see that everyone was staring at him.” (See, e.g., People v. Fields (1983) 35 Cal.3d 329, 362 [misconduct to appeal to sympathy for victim in guilt phase]; People v. Pensinger (1991) 52 Cal.3d 1210, 1250 [misconduct to ask jury to suppose the crime was committed against their children].) As we have repeatedly made clear, a prosecutor may not “ ‘make arguments to the jury that give it the impression that “emotion may reign over reason,” [or] present “irrelevant information or inflammatory rhetoric that diverts the jury’s attention from its proper role, or invites an irrational, purely subjective response.” ’ ” (People v. Linton (2013) 56 Cal.4th 1146, 1210.) But once again, the jury was instructed that it “must not be influenced by sentiment, conjecture, sympathy, passion, prejudice, public opinion,

we have to speculate points in favor of a finding of forfeiture. (Cf. Bryant, supra, 60 Cal.4th at p. 371 [“Bryant’s failure to secure a ruling on his motion forfeits any appellate claim of error.”].) Ultimately, since the record does not support the contention that the prosecutor actually cried, we must reject defendants’ claim of prosecutorial misconduct. Further, if defendants mean to argue that the trial court’s decision not to ask the prosecutor whether she was crying excuses all of their failures to object or request admonitions, their argument is not colorable. For one thing, claims of futility must generally be tied to the type of objection that would have been futile. (See Peoples, supra, 62 Cal.4th at p. 797 [rejecting futility argument based on “generalized accusation of unfairness” made without “greater specificity as to why this particular objection would have fallen upon deaf ears”]; People v. Thomas (2012) 54 Cal.4th 908, 939 [“There is no support for defendant’s assertion on appeal that the trial court necessarily would have overruled objections based on the specific grounds he now raises on appeal . . . .” (Italics added.)].) In any event, this version of the argument rests on a belief that because the court did not follow up regarding this claim of misconduct (which, again, would not have been necessary if the court saw that the prosecutor was not crying), then the court must have been hostile to further defense objections and requests, rendering those objections and requests futile. Yet defendants’ prior theory of futility was based on the fact that the trial court objected on its own to what it perceived to be misconduct. There is no reason to think the court would not have seriously considered further objections. (Cf. Fuiava, supra, 53 Cal.4th at p. 680 [rejecting claim of futility where “the trial court at times interposed its own objections to what it perceived as improprieties by the prosecutor”].) Indeed, the claim of error discussed below (regarding rope-related evidence) concerns an incident that

People v. Daveggio & Michaud

IN THE SUPREME COURT OF CALIFORNIA

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II. DISCUSSION

III. CONCLUSION We affirm the judgment.