P. v. Henderson CA4/1

Filed 8/9/13 P. v. Henderson CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D061481

Plaintiff and Respondent,

v. (Super. Ct. No. SCN286323)

DONTAYE HENDERSON,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Robert J.

Kearney, Judge. Affirmed.

Martha L. McGill, under appointment by the Court of Appeal, for Defendant and

Appellant.

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

General, Julie L. Garland, Assistant Attorney General, Kristine Gutierrez and Lynne G.

McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
 This case arose when Dontaye Henderson shot his wife Tamara Henderson

(Tamara)1 to death. A jury convicted Henderson of first degree murder (count 1: Pen.

Code, § 187, subd. (a)) and possession of a firearm by a felon (count 2: Pen. Code,

§ 12021, subd. (a)(1)). The jury found true allegations that, in committing the murder,

Henderson intentionally and personally discharged a firearm (a handgun), proximately

causing Tamara's death within the meaning of Penal Code section 12022.53, subdivision

(d), and that he personally used the handgun within the meaning of Penal Code section

12022.5, subdivision (a). In a bifurcated proceeding, the court found true allegations that

Henderson previously served a prison term for a violent felony (Pen. Code, § 667.5,

subd. (a)), he had one prior serious felony conviction (Pen. Code, § 667, subd. (a)(l)), and

he had one prior "strike"2 conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12,

subds. (a)-(d)). The court sentenced Henderson to a total prison term of 80 years to life.

Henderson appeals, contending (1) the court abused its discretion under Evidence

Code section 352 by admitting evidence that he committed prior acts of domestic

violence against his former wife, J.H.; (2) the court's application of Evidence Code

section 1109 to admit evidence of prior acts of domestic violence rendered his trial

fundamentally unfair, thereby depriving him of his federal constitutional right to due

process; (3) the court's instructions to the jury under CALCRIM No. 852 violated his

1 As Henderson and his deceased wife shared the same last name, we refer to her as
Tamara. We intend no disrespect.

2 "We use the term 'strike' to describe a prior felony conviction that qualifies a
defendant for the increased punishment specified in the Three Strikes law." (People v.
Fuhrman (1997) 16 Cal.4th 930, 932, fn. 2.)
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federal constitutional right to due process by allowing the jury to find by only a

preponderance of the evidence that he committed uncharged prior acts of domestic

violence, and then to infer his guilt of the currently charged offense from the commission

of the prior acts; (4) the prosecutor committed misconduct during his cross-examination

of Henderson by asking questions implying defense counsel had attempted to conceal

information from the jury and fabricated Henderson's defense of accident; and (5) the

cumulative effect of the errors deprived Henderson of a fair trial, thereby requiring

reversal of the judgment. We affirm the judgment.

FACTUAL BACKGROUND

A. The People's Case

1. The murder

In late 2008, Tamara, who was then 25 years of age, began dating Henderson.

Tamara had a five-year-old daughter, Niya.

Tamara and Henderson married in early January 2009, less than three months after

they met. Their son, Nehemiah, was born in late September 2009. The family lived in an

apartment on Paseo de Laura in Oceanside.

On January 1, 2011,3 Henderson and Tamara had plans to meet Tamara's mother,

Elsie, and Tamara's younger sister, Tara, at around 11:00 a.m. for church services in San

Diego. However, Henderson and Tamara did not show up. Instead, about 10:44 a.m., a

text message was sent to Elsie from Tamara's cell phone stating, "Mom, if you haven't

3 All further date references will be to calendar year 2011.
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already left yet, can we catch a ride with you to church?" The message seemed unusual

to Elsie because it takes almost an hour to get to San Diego from Oceanside. Elsie

telephoned Tamara's cell phone, but there was no answer.

At Elsie's request, Tara sent Tamara a text message asking where she was. Tara

got a text back from Tamara's phone stating, "We not coming. Call me when you can."

Tara suspected the message was not from Tamara because Tamara's grammar would have

been correct, and she would have said, "We're not coming." Tara dialed Tamara's

number and Henderson answered. He said Tamara was in the shower and would call

Tara back. Henderson then hung up.

At 11:09 a.m., Henderson dialed 911 using Tamara's cell phone. He told the

dispatcher his wife (Tamara) "hurt herself real bad." Henderson said Tamara had an

asthma attack, fell, and hit her head. Answering questions from the 911 dispatcher,

Henderson indicated Tamara was still conscious but was barely breathing, and she was

turning purple, having cold sweats, and not moving. The dispatcher gave Henderson

instructions to put her on the ground, check her airway, and listen for any breathing.

Henderson urged the dispatcher to hurry up and send an ambulance. He then said, "She's

hurt really bad." "It was all an accident. I swear. She didn't mean to do all the other

stuff." He added that the paramedics were taking too long, said "God bless," asked the

dispatcher to have him picked up at a nearby hotel, and hung up.

Henderson again called 911 back at 11:22 a.m. He asked whether the paramedics

had helped his wife, and stated, "I was just wondering if they um was [sic] able to um

resuscitate and help her." The dispatcher told Henderson the paramedics were on the

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scene and asked him to stay on the line. Henderson hung up. Henderson called back a

minute later, and the dispatcher asked him where he was. Henderson responded, "I was

wondering . . . what happened?" The dispatcher asked him two more times where he

was. Henderson said, "Well I need to just have some time to breathe right quick," and

said he was "just making sure that she's okay." When the dispatcher again asked where

he was, Henderson asked, "Did they help her? That's what I need to know." When the

dispatcher made a fourth request for Henderson's location, he said he was outside

apartment 5. Henderson hung up.

Firefighter-paramedics David Overton and Brian Tucker responded to the 911 call.

Niya and Nehemiah came to the door. Niya was crying, and Overton asked her where

Tamara was. Niya pointed to the master bedroom. Tamara was face up on the bed. A

wedding photo was on her waist and a smaller photo of Henderson was face down on her

chest. When Tucker lifted up the smaller photo, he saw that Tamara's blouse was

unbuttoned and there was a hole in the center of her chest. Overton called for police

backup and asked Niya what happened. Niya replied that Tamara was dead, and

Henderson had shot her. Overton asked Niya where Henderson was, and Niya said he

went to a friend's apartment. When asked whether Henderson had a gun, Niya said he

took it with him.

Tamara was airlifted to a hospital, where she was pronounced dead on arrival.

Bethann Schaber, M.D., a deputy medical examiner with the San Diego County

Coroner's office, performed an autopsy on Tamara's body. Tamara had a penetrating

gunshot wound to her torso. The shot traveled front to back, slightly downward, hitting

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several vital organs. Death occurred within a matter of minutes. There was no soot or

stippling, meaning the shooter was standing more than a few inches away. The cause of

death was a gunshot wound, and the manner of death was homicide.

2. Statements by Tamara's daughter, Niya

Several members of law enforcement responded to the scene. Officer Johann

Stenn asked Niya if any adults were at home, and Niya replied, "Just my mom, but she's

dead." Officer Steen asked, "Where's your daddy?" Niya said, "He left and he had a

gun."

Lieutenant Michael Goldsmith took Niya and Nehemiah to a nearby apartment,

where the Thorpes, who were friends of the family, lived. Lieutenant Goldsmith asked

Niya where her father was, and she said he left. When Lieutenant Goldsmith asked what

happened, Niya indicated Tamara unplugged Henderson's razor, he got upset, and Tamara

hit or pushed him. Niya then said, "He got a gun and shot my mom and now she's dead."

Niya testified she heard an argument between Henderson and Tamara. The

argument was about Henderson cheating on Tamara. Both were standing on the same

side of the bed and during the argument Henderson got a gun from underneath the bed

and shot Tamara.

3. Henderson's contact with female friends

Jessica Sutton testified she dated Henderson when she was in high school. He had

already graduated. In November 2010, Sutton contacted Henderson through Facebook,

and the two exchanged phone calls and text messages. Henderson told her he was

married but separated, and his wife did nothing but fuss, which got on his nerves. He

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asked Sutton for pictures of herself and she sent some to him, including a photo of herself

naked. On January 1, when Sutton still lived in Alabama, Henderson sent her a text

message stating he was getting ready to fly out to visit her. Hours later she texted him

and asked whether he had arrived yet. She did not get a response.

Wendy Thompson became friends with Henderson before he married Tamara.

Henderson later told her he knew somebody, just out of prison, who needed a gun, and he

asked her to help him find one. On another occasion, Henderson called Thompson and

said he was having problems with his wife. He visited her at her home in December

2010. He was upset and said his wife wanted to leave him for a former boyfriend and

take their child. On January 1, he sent Thompson a text message stating, "I left my wife

for good." Thompson texted back, "Why?" Henderson did not respond and she never

heard from him again.

4. Henderson's flight

After taking the children over to the Thorpe's residence, Lieutenant Goldsmith

asked Ayorinde Thorpe to telephone Henderson's cell phone number. Henderson

answered the phone and told Thorpe he was up the road. Lieutenant Goldsmith and

Thorpe walked up Paseo de Laura, and Lieutenant Goldsmith had Thorpe call Henderson

again. Henderson said he was at the end of the cul-de-sac, he had a gun, and he was

going to kill himself. Henderson was not in his stated location, and, when Thorpe called

him again, Henderson said he was on the top floor of the Extended Stay Motel on Vista

Way and would meet Thorpe in the lobby. Henderson again said he had a gun and was

thinking of killing himself.

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 Lieutenant Goldsmith drove Thorpe to the motel and had Thorpe call Henderson.

Henderson said he was on the second floor at the west end of the motel, and hung up.

Lieutenant Goldsmith drove Thorpe home, then set up a command post around the motel.

Lieutenant Goldsmith then telephoned Henderson, who said he was going to kill himself

so that he did not have to be involved in the court system. Lieutenant Goldsmith asked

Henderson what room he was in but he refused to answer. Lieutenant Goldsmith started

evacuating the motel and summoned a crisis negotiation team. Once the motel was fully

evacuated, it was discovered Henderson was no longer there.

Henderson was on parole at the time of the shooting in this case. As conditions of

his parole, he was prohibited from possessing firearms and was required to wear a GPS

monitoring bracelet on his ankle at all times. At 11:20 a.m. on January 1, Henderson's

parole agent, Mike Shanahan, received notice by alarm that there was interference with

Henderson's ankle bracelet. A few minutes later, Shanahan received a call from

Henderson, who told Shanahan he and Tamara had a big argument and she was shot.

Henderson added he was sorry and he wanted to turn himself in. Shanahan asked

Henderson where he was, and he responded, I'm at a hotel in Oceanside." Henderson

hung up and did not turn himself in. Using the GPS monitoring system, Shanahan

tracked the ankle bracelet to the Extended Stay Motel. The ankle bracelet had been cut

off and was in a trash can inside the motel.

5. Testimony of Consuelo Ramirez

Consuelo Ramirez testified under a grant of immunity. She testified that she and

Henderson worked together and she did not know him very well. In the morning on

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January 1, she took her son Abraham to work with her, and there she received a call from

Henderson. Henderson told her he needed a ride to work and would wait for her outside

the Extended Stay Motel. When Ramirez picked·him up, he asked her to stop at an ATM.

Henderson withdrew money from three separate ATM machines.

When they arrived at work, Henderson asked Ramirez for a ride to his mother's

house because she was sick and he was worried about her. Henderson directed Ramirez

to take the State Route 78 freeway to Interstate 15 southbound. They stopped at a gas

station and Henderson took Ramirez's keys. When they got back on the freeway, he told

Ramirez to stay in the slow lane and not exceed 65 miles per hour. Ramirez asked

Henderson what was going on, and he said he missed his mother; she was very sick and

he needed to see her.

Ramirez told Henderson that under her child custody agreement, she could not

leave San Diego. Henderson asked her to stop at a casino. He then told her there was an

"incident" at his house, and that a man came over with a gun and demanded Henderson's

personal property. Henderson said he got his own gun and shot the man.

Ramirez also testified that after driving for a couple of hours they ended up in

El Centro. They stopped at various hotels until Henderson found one that accepted cash.

Ramirez asked him if she could go home, but Henderson insisted she stay. Henderson

registered at the hotel using a fake name and address. Henderson wanted Ramirez to stay

and, as it was getting dark, they spent the night at the hotel.

The next morning, Ramirez begged Henderson to let her go, explaining that she

needed to return Abraham to his father. They drove to a taxi stop, where he obtained

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directions to the Greyhound bus station. Henderson took Ramirez's cell phone from her,

and when they arrived at the Greyhound station, it was closed. He directed Ramirez to a

large hotel, said he would stay there, and she could go. Henderson returned Ramirez's

cell phone to her.

6. Henderson's arrest

After Henderson disappeared, investigators obtained his cell phone records and

discovered he had made several calls to Ramirez. A "be on the lookout" bulletin was

issued describing Henderson, Ramirez and Ramirez's vehicle. Ramirez turned herself in

the next day at the San Marcos sheriff's substation. Officers followed the route Ramirez

and Henderson had taken. They learned from surveillance footage at various locations

that Henderson had gone to the Acorn Casino near Interstate 8, a K-Mart, the Super Star

Hotel, a restaurant, and the Premier Inn in El Centro. He checked into the Premier Inn

using the name "James Wilson" with an address on Fairlane Avenue in Lexington,

Kentucky.

Oceanside police eventually learned Henderson was traveling by bus to Lexington,

Kentucky, using the name Dwayne Anderson, and had a layover in St. Louis. Henderson

was arrested in St. Louis on January 4. When he was arrested, Henderson had a gun in a

camera case, along with two magazines and a partial box of ammunition. He also had a

woman's wallet containing credit cards and identification in his wife's name. These

items, along with other property in Henderson's possession when he was arrested, were

turned over to the Oceanside Police Department.

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 Henderson told the St. Louis police he and his wife got into an argument while

getting ready for church. He said he got the gun and pointed it at her to intimidate her

and, as they both became more angry, he pulled the trigger but the gun did not fire. As

she yelled obscenities at him and pushed him, he became enraged. He said he racked the

gun, pointed it at her chest, and shot her. He did not tell the St. Louis police the shooting

was an accident. There is no video or audio recording of Henderson's statements. On the

way back to San Diego from St. Louis, Henderson told a district attorney's investigator he

was planning to flee to Honduras.

The gun found in Henderson's possession was a .40 caliber semiautomatic pistol.

7. Forensic evidence

Pamela Armijo, a field evidence technician with the Oceanside Police Department,

went to Henderson's apartment about three hours after the murder. There was a yellow

cloth towel on top of the bed with blood on it. An electric razor was on the right side of

the bed, along with a .40 caliber cartridge.

Scott Hoopes, a criminalist and firearms expert, performed an analysis on the gun

Henderson had when he was arrested, a Taurus PT940 semiautomatic pistol. In order to

fire the gun, the shooter would have to manually pull back the slide to get one round from

the magazine into the chamber. There were two safety mechanisms, one external and the

other internal, designed to prevent accidental discharge. A person must disengage the

safeties and exert pressure on the trigger for the gun to fire. In single-action mode, it

takes 5.75 pounds of pressure; in double-action mode, it takes 9.25 pounds of pressure.

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Hoopes test-fired the gun. It worked properly. A bullet recovered from Tamara's body at

the autopsy was fired from that weapon.

8. Evidence of Henderson's prior acts of physical domestic violence (Evid. Code,
§ 1109 propensity evidence)

J.H. testified that in May 2002 she was living in Atlanta, where she was looking

for work as a singer and actress. She met Henderson during an audition, they dated for a

couple of months, and then got married. Henderson became very controlling. He

isolated J.H. from her friends and family and destroyed her address books. When she

told Henderson she wanted to end the relationship, he threw her against a wall, grabbed a

cable cord from the television, and wrapped it around her neck until she could not

breathe.

J.H. testified that Henderson stopped going to work so he could be with her 24

hours a day. She could not even go to the restroom by herself; Henderson would follow

her in while she was using it. When she asked Henderson why he was following her, he

replied, "Because I don't want you to go anywhere." Henderson did not allow her to

make any phone calls.

J.H. also testified Henderson was violent with her every day. He told her several

times, "If you ever leave, I will kill you." When she tried to walk out of the apartment,

Henderson became violent and said, "If you're trying to leave, I wouldn't do that because

I will hurt you." He showed J.H. a black handgun, which he kept in a closet. Henderson

played around with the gun as if to say, "If I ever need to use this, I'm just letting you

know it's here."

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 J.H. testified she started to slowly pack items so she could escape. At the end of

January 2003, she went to the home of one of her mother's friends. From there, she took

a bus to Houston and moved in with one of her sisters. Henderson constantly called and

e-mailed her, begging her to take him back and saying he could not live without her. He

told J.H. he would kill himself if she did not return to him and promised to change.

J.H. decided to give Henderson another chance and allowed him to live with her in

Houston. A week later, he became violent again. He choked her, hit her, threatened to

kill her, kicked her, slapped her, pushed her, ripped her clothes, and cursed at her.

Henderson told her, "If I can't have you, then no one else can." The violence occurred on

a daily basis. J.H. called the police on two occasions, but after they arrived she was

afraid to file a report.

After two weeks of abuse, J.H. contacted her brother-in-law and she went to live

with him and her sister in Camp Pendleton. Although she had not told Henderson where

she was going, he found out where she was. He called her, promised to get counseling,

begged her to come back, and threatened to kill himself if she did not. J.H. got a job at a

mall, Henderson somehow found out where she was working, and he called her

employer. He told J.H.'s employer she was a prostitute and sold crack cocaine. As a

result, she was fired.

Henderson called J.H. and said he was coming to California and he knew she had

a sister living there. He showed up and confronted J.H. while she was at a mall shopping,

and told her, "I'm coming to get you so we can be together. We're meant to be, so I've

come to get you." J.H. accompanied him because she was afraid. Henderson hailed a

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cab and took her to a hotel. In the hotel room he told J.H. he loved her and would never

let her go. When she told him she did not want to be with him, he grabbed her and said,

"You're not going anywhere." J.H. broke free and ran from the room into the lobby,

where she asked the clerk to call the police. Henderson grabbed her again and dragged

her along the lobby floor back into the room. J.H. later escaped and went back to the

lobby where the police were waiting for Henderson. J.H. eventually divorced him.

B. The Defense

Henderson testified in his own defense. He testified that on the morning of

January 1, he was at home with Tamara, Niya, and Nehemiah, getting ready for church.

At some point, he and Tamara began to argue. She made some hurtful statements and

told him she might leave him.

Henderson testified he had acquired a handgun for home protection about a month

earlier after someone tried to break into their apartment late at night. He knew he was not

permitted to have a gun, because he had been convicted of a felony and was on parole.

The gun was kept in the bedroom, on his wife's side of the bed, because she had served in

the military and was more familiar with firearms than he was.

At some point during the argument, Tamara got the gun, threw it on the bed, and

told Henderson he was always talking about killing himself, but she knew he was not

going to do it. Henderson picked up the gun, which was loaded. The safety was off, but

he did not think there was a round in the chamber. He picked up the gun to intimidate

Tamara and to get her attention by threatening suicide. To prove he was serious, he

pulled back the slide, clicked off the safety, and caused a round to come out of the gun.

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He then pointed the gun at his head. Initially, Tamara did not react, which led Henderson

to believe she did not think he was going to go through with committing suicide. He told

her that if she let him die, she did not love their children. He admitted to her that he

enjoyed the pictures of Sutton that Tamara had found on his cell phone, and this

infuriated Tamara and caused her to become more hostile. While this was going on, he

was waving the gun around, trying to get Tamara's attention. He had his finger on the

trigger, and Tamara tried to get the gun out of his hand. She slapped him on the chest

and face, causing his glasses to fall off. When she slapped him, he moved the gun away

from his head, and he waved it around to try to make her stop hitting him. The gun

discharged when she pulled or jerked his hand as she was trying to get the gun away from

him.

Henderson testified that when the gun went off, he did not know Tamara had been

hit. She said, "I'm so sorry," took two steps toward him, and fell into his arms. He said

he did not mean for the gun to do that, it was not supposed to do that. He then laid her

down on the floor in the hallway. Later, he picked her up and put her on the bed. When

he saw she had been shot in the chest, he realized it was a severe injury and she needed

medical care. Immediately after the shooting, he called 911 to get help, but he did not

say anything because Tamara protested and pulled his hand away from the phone as he

was calling. She told him she was worried the children would be taken away. When

Henderson told her he was calling for medical assistance, she told him to get the car keys

and take her to the hospital. He looked for the car keys in the apartment and in and

around their car, but did not find them. He messed up the living room and bedroom

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looking for the keys. He then went outside and called 911, but did not say he shot his

wife, because he was scared. He went back inside and told his wife he had called 911.

She told him she would tell the police the shooting was an accident. At Tamara's request,

he gave her two family pictures to hold. Henderson testified he put the gun and

ammunition in the camera bag to keep them away from the children, kissed his wife,

apologized, told her he loved her, and left. He did not take the children because he did

not want people to think they had been harmed or kidnapped. Tamara was still breathing

and talking during the second 911 call, but she was pale. When he left, she was still

speaking, but barely.

After he left the apartment, Henderson went to a nearby hotel, where he cut off his

GPS bracelet and threw it in the trash. When he talked to the police on the phone, he lied

to them about where he was. He eventually made contact with Ramirez and ended up in

El Centro. He withdrew money from three ATM's, because he had promised to pay

Ramirez for her time. He testified he did not take Ramirez's cell phone or keys. He

planned to visit his father and his children in various parts of the country and then turn

himself in. He was not trying to leave the country and did not turn himself in

immediately because he wanted his wife to be able to tell the police the shooting was

accidental.

Henderson also testified that he went to St. Louis, where he was arrested. He did

not intentionally take Tamara's identification when he left. She had put her wallet in his

camera bag, and at first he did not know the wallet was there. He took the gun and the

bullets so that he could eventually turn them over to the police.

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 Henderson denied that his intent was to kill his wife so that he could leave her for

another woman. The shooting was not on purpose. He did not intentionally shoot his

wife; it was an accident. He did not tell the police in St. Louis he shot his wife because

he was angry at her. He did not tell them he and his wife argued or that he got a gun and

pointed it at her. He told them the shooting was an accident.

C. The People's Rebuttal Evidence

Ayorinde Thorpe testified that he telephoned Henderson on January 1 at a police

officer's request. Thorpe asked what happened, and Henderson responded, "I'm not going

to tolerate cheating."

Detective David Rudolph of the St. Louis Metropolitan Police Department

testified that he detained Henderson on January 4 at a bus station in St. Louis. As

Detective Rudolph was getting ready to explain the charge, Henderson said, "I know why

I'm under arrest. I'm under arrest for shooting my wife." As they were walking out of the

bus terminal to Detective Rudolph's police car, Henderson asked, "Is my wife dead? Did

I kill her?" When Henderson kept asking that question, Detective Rudolph told him they

should not be talking, and he should wait for police to arrive from Oceanside, California.

However, Henderson insisted on making a statement.

Detective Rudolph testified he then advised Henderson of his Miranda4 rights.

Henderson said he understood those rights and wanted to talk. Henderson told Rudolph

he and Tamara had an argument, that he got his gun during the course of the argument,

4 Miranda v. Arizona (1966) 384 U.S. 436.
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and began pointing it at Tamara because he wanted to intimidate her. Henderson said

Tamara made him angrier, he pulled the trigger, and the gun made a clicking sound.

Henderson also told Detective Rudolph that he told Tamara, "Bitch, if that would

have went 'bang,' you wouldn't be talking all this shit." Henderson said he and Tamara

continued to yell obscenities at each other, he racked the gun and pointed it at her again,

and Tamara screamed and pushed him. Defendant also told Detective Rudolph that

Tamara made him so mad, he pointed the gun at her and shot her in the chest. Henderson

added he should have killed himself. Henderson also said he had another plan, and he

never would have been caught if he had gone through with that plan.

District attorney investigator Ted Henson testified he went to St. Louis with

another investigator to extradite Henderson back to San Diego County. While they were

waiting for their flight at the St. Louis airport, Henderson made unsolicited statements

about where he was going when he was caught. Henderson said he was on his way to

Lexington, Kentucky, to visit a child, from there he would go to Atlanta and then to

Alabama to visit his mother and a couple of other children. Henderson also told Henson

he planned to then flee to Honduras with a clean passport and he would stay there until

his money ran out.

D. Defense Surrebuttal

Henderson testified that when he spoke to Detective Randolph, he told the

detective he and Tamara argued, he wielded a gun during the argument, and he shot her.

He denied telling Detective Randolph why he shot her. He never told the detective he

shot her because he was angry with her. He told Detective Randolph it was an accident.

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 DISCUSSION

I. ADMISSION OF EVIDENCE OF PRIOR DOMESTIC VIOLENCE
(EVID. CODE, §§ 352, 1109)

A. Abuse of Discretion Claim

Henderson first contends the court abused its discretion under Evidence Code

section 352 by admitting evidence that he committed prior acts of domestic violence

against his former wife, J.H. We reject this contention.

1. Background

The prosecutor filed a motion in limine seeking to introduce evidence of acts of

domestic violence the prosecution claimed Henderson committed against two other

women: J.H. and A.C.5 The prosecutor argued the evidence was admissible under

Evidence Code section 1109 and should not be excluded under Evidence Code section

352.

At the hearing on the motion, at the court's request, the prosecutor made a record

of the evidence he sought to admit regarding Henderson's prior conduct toward J.H.

Following arguments by the prosecutor and defense counsel, the court found that

remoteness was not an issue because the relationship between Henderson and J.H.

occurred "in 2002 through 2003," within the prior 10 years. Noting the proffered

evidence showed there were multiple acts of physical violence, the court found none was

more inflammatory than the acts charged in the present case. The court also found the

5 A.C. did not testify at trial, and none of the issues raised in this appeal involves
her.
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jury would not be confused by the proffered evidence, and the evidence was "probative to

show that [Henderson] was willing to use and had a propensity to use physical violence

on the date [Tamara] was shot."

Separately addressing the proffered evidence that Henderson had committed a

sexual assault of J.H., the court indicated that sexual assault is a very serious crime, and

evidence showing Henderson sexually assaulted J.H. would likely draw an emotional

reaction from jurors. The court noted that although prior acts evidence under Evidence

Code section 1109 did not have to be identical or even similar, there were substantial

differences between the facts surrounding the sexual assault and those involving the

shooting in this case. Noting that the proffered evidence showed Henderson was telling

J.H. she did not have the power to leave him, the court found that this "seems to be the

opposite of . . . the instant case" in which Henderson "was indicating the relationship was

over and he was done with her." The court added: "So it wasn't that he was trying to

keep [Tamara] or continuing to control her. He was terminating the relationship, per the

People's theory, and did so by shooting her." Finding that "the probativeness of the

actual sexual assault [of J.H.] is low [and] the potential prejudice is high," the court ruled

the evidence of Henderson's sexual assault of J.H. was not admissible under Evidence

Code section 1109.

At trial, J.H. gave the testimony summarized, ante, regarding Henderson's acts of

physical violence against her.

20
 2. Applicable Legal Principles

"Evidence Code section 1109 allows the introduction of evidence of [a]

defendant's commission of prior acts of domestic violence in a criminal action charging

[the] defendant with an offense involving domestic violence." (People v. Poplar (1999)

70 Cal.App.4th 1129, 1138.) Specifically, subdivision (a)(1) of Evidence Code section

1109 provides in part (with exceptions not applicable here): "[I]n a criminal action in

which the defendant is accused of an offense involving domestic violence, evidence of

the defendant's commission of other domestic violence is not made inadmissible by

[Evidence Code] Section 1101 if the evidence is not inadmissible pursuant to [Evidence

Code] Section 352."

Evidence Code section 1109 creates an exception to the general rule codified in

Evidence Code section 1101, subdivision (a) that precludes admission of uncharged

misconduct to show the defendant had a propensity to commit crimes. (Evid. Code,

§ 1109, subd. (a)(1); see also People v. Johnson (2000) 77 Cal.App.4th 410, 417.)

Under Evidence Code section 352, evidence is properly excluded if its probative

value is "substantially outweighed" by the probability that its admission will necessitate

undue consumption of time or create a substantial danger of undue prejudice, of

confusing the issues, or of misleading the jury. (People v. Cudjo (1993) 6 Cal.4th 585,

609.) Thus, the trial court has discretion to exclude evidence of prior acts of domestic

violence if the probative value is substantially outweighed by the probability its

admission would necessitate undue consumption of time or create a substantial danger of

21
undue prejudice, of confusing the issues, or of misleading the jury. (Evid. Code,

§§ 1109, subd. (a)(1), 352; Cudjo, at p. 609.)

"The prejudice which exclusion of evidence under Evidence Code section 352 is

designed to avoid is not the prejudice or damage to a defense that naturally flows from

relevant, highly probative evidence. '[All] evidence which tends to prove guilt is

prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is

"prejudicial." 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. In applying [Evidence Code]

section 352, "prejudicial" is not synonymous with "damaging." ' " (People v. Karis (1988)

46 Cal.3d 612, 638.) Thus, in cases involving the proffering of evidence of prior acts of

domestic violence under Evidence Code section 1109, one of the issues to be decided is

whether there is a likelihood the evidence will inflame the jurors so that they will base

their verdict not on the evidence presented as to the charged offenses, but rather on their

emotional response to the defendant's commission of the uncharged prior acts or crimes.

A trial court's decision to admit evidence of prior acts of domestic violence as

propensity evidence under Evidence Code sections 1109 and 352 is reviewed for an

abuse of discretion. (People v. Poplar, supra, 70 Cal.App.4th at p. 1138.) "[T]he court's

exercise of discretion will not be disturbed on appeal except upon a showing that it was

exercised in an arbitrary, capricious or patently absurd manner that resulted in a manifest

miscarriage of justice." (People v. Brown (2011) 192 Cal.App.4th 1222, 1233.)

22
 3. Analysis

Henderson has failed to meet his burden on appeal of establishing that in

permitting Henderson's former wife, J.H., to testify about his uncharged acts of physical

domestic violence against her the court exercised its discretion under Evidence Code

section 352 in an arbitrary, capricious or patently absurd manner resulting in a manifest

miscarriage of justice. J.H.'s testimony showed that in 2002 and 2003, before she

divorced him, Henderson committed numerous acts of violence against her, such as

throwing her against a wall, choking her by wrapping a television cable cord around her

neck until she could not breathe, hitting and slapping her, threatening to kill her, and

kicking her. The court properly found that, although the evidence showed there were

multiple acts of physical violence, court found none was more inflammatory than the acts

charged in the present murder case. The court also properly found the jury would not be

confused by J.H.'s testimony, and the proffered evidence was probative to show

Henderson had a propensity to use physical violence against an intimate partner on the

date he admittedly shot Tamara.

Even if we were to assume for the purpose of analysis that the court had abused its

discretion under Evidence Code section 352, we would conclude Henderson has failed to

show the assumed error was prejudicial. Henderson's defense was that he shot Tamara

accidentally. However, Detective Rudolph testified that after Henderson waived his

Miranda rights following his arrest, Henderson told him Tamara had made him so mad

during their argument, he pointed the gun at her and shot her in the chest. Although

Henderson gave surrebuttal testimony denying he told the detective he shot Tamara

23
because he was angry, a reasonable jury could find beyond a reasonable doubt that his

denial was not believable. Ayorinde Thorpe testified that when he telephoned Henderson

on January 1 after the shooting and asked what happened, Henderson replied, "I'm not

going to tolerate cheating." The prosecution's evidence showing Henderson fled the

jurisdiction after he shot Tamara supports a finding of consciousness of guilt.

In sum, Henderson has failed to demonstrate the court prejudicially abused its

discretion under Evidence Code section 352.

B. Violation of Due Process Claim

Henderson also contends that, "even if Evidence Code section 1109 is not invalid

on its face," the court's application of that section to admit J.H.'s testimony regarding

prior acts of domestic violence rendered his trial fundamentally unfair, thereby depriving

him of his federal constitutional right to due process. We reject this contention.

In People v. Falsetta (1999) 21 Cal.4th 903, as Henderson acknowledges, our

Supreme Court rejected a similar attack on analogous provisions of Evidence Code

section 1108, subdivision (a), which permit evidence of prior sex offenses to be admitted

when a defendant is charged with a sexual offense. The high court upheld Evidence

Code section 1108 against a due process challenge in part because its provisions allow

trial courts to exclude evidence that is unduly prejudicial under Evidence Code section

352. (Falsetta, at pp. 917-918.) It is the discretion given to trial courts to exclude

evidence of prior acts under Evidence Code section 352 that satisfies the requirements of

due process. (Falsetta, at p. 918.) We are bound by the Supreme Court's decision in

Falsetta. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

24
 Evidence Code sections 1108 and 1109 are virtually identical, except that the

former addresses the admissibility of evidence of sexual offenses while the latter

addresses evidence of acts of domestic violence.6 Although the California Supreme

Court has not addressed the issue, the intermediate appellate courts have consistently

applied the reasoning in Falsetta to reject facial federal and state constitutional due

process challenges regarding the admission of propensity evidence under Evidence Code

section 1109. (See People v. Cabrera (2007) 152 Cal.App.4th 695, 703-704; People v.

Rucker (2005) 126 Cal.App.4th 1107, 1120; see also People v. Williams (2008) 159

Cal.App.4th 141, 147; People v. Price (2004) 120 Cal.App.4th 224, 240; People v.

Escobar (2000) 82 Cal.App.4th 1085, 1095-1096; People v. Jennings (2000) 81

Cal.App.4th 1301, 1309-1310 (Jennings); People v. Brown (2000) 77 Cal.App.4th 1324,

1331-1334; People v. Hoover (2000) 77 Cal.App.4th 1020, 1026-1027; People v.

Johnson, supra, 77 Cal.App.4th at p. 417.) We agree with the reasoning and results in

these cases and reaffirm our holding in People v. Cabrera, supra, 152 Cal.App.4th 695.

We also agree with the Jennings court's observation that "the constitutionality of

6 Evidence Code section 1108, subdivision (a) provides: "In 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 [Evidence
Code] Section 1101, if the evidence is not inadmissible pursuant to [Evidence Code]
Section 352." (Italics added.) By way of comparison, we again note that Evidence Code
section 1109, subdivision (a)(1) provides in part: "[I]n a criminal action in which the
defendant is accused of an offense involving domestic violence, evidence of the
defendant's commission of other domestic violence is not made inadmissible by
[Evidence Code] Section 1101 if the evidence is not inadmissible pursuant to [Evidence
Code] Section 352." (Italics added.)

25
[Evidence Code] section 1109 under the due process clauses of the federal and state

constitutions has now been settled." (Jennings, supra, 81 Cal.App.4th at p. 1310.)

We reject Henderson's claim that the application of Evidence Code section 1109 in

this case rendered his trial fundamentally unfair. Henderson asserts "[t]he admission of

[J.H.'s] testimony rendered [his] trial fundamentally unfair" because "[t]he record

contains evidence of only a single incident of violence by [him] against Tamara─the

incident which resulted in her death"; the People "presented no evidence of ongoing

abusive and controlling behavior, such as that described by [J.H.], in [his] relationship

with Tamara"; and, thus, "[b]ecause of the lack of such evidence, [J.H.'s] testimony about

[his] behavior toward her did not reasonably support an inference that [he] had acted in

the same way toward Tamara." He also asserts J.H.'s testimony "created a substantial

risk the jury would view [him] as a 'serial abuser' and convict him on that basis alone."

These assertions are unavailing. Ample evidence apart from J.H.'s Evidence Code

section 1109 propensity testimony supports the jury's guilty verdict, including

Henderson's self-incriminating statements to Detective Rudolph and Ayorinde Thorpe

(discussed, ante).

II. CLAIM OF INSTRUCTIONAL ERROR (CALCRIM NO. 852)

Henderson next contends the court's instructions to the jury under CALCRIM

No. 852 violated his federal constitutional right to due process by allowing the jury to

find by only a preponderance of the evidence that he committed uncharged prior acts of

26
domestic violence, and then to infer his guilt of the currently charged offense from the

commission of the prior acts.7 This contention is unavailing.

A. Background

The court gave the following modified version of CALCRIM No. 852, which

instructed the jury regarding its consideration of the propensity evidence of Henderson's

prior acts of domestic violence that the prosecution presented under Evidence Code

section 1109:

"The People presented evidence that the defendant committed
domestic violence that was not charged in this case, specifically:
domestic violence against [J.H.].

" 'Domestic violence' means abuse committed against an adult who is
a spouse or former spouse.

" 'Abuse' means intentionally or recklessly causing or attempting to
cause bodily injury, or placing another person in reasonable fear of
imminent serious bodily injury to himself or herself or to someone
else.

"You may consider this evidence only if the People have proved by a
preponderance of the evidence that the defendant in fact committed
the uncharged domestic violence. Proof by a preponderance of the
evidence is a different burden of proof from proof beyond a
reasonable doubt. A fact is proved by a preponderance of the
evidence if you conclude that it is more likely than not that the fact
is true.

"If the People have not met this burden of proof, you must disregard
this evidence entirely.

7 Henderson acknowledges the California Supreme Court approved a
substantially similar instruction, CALJIC No. 2.50.01, in People v. Reliford (2003) 29
Cal.4th 1007, 1016, and that this court is required to follow Reliford. Henderson asserts
he "raises the issue here to preserve it for possible federal review."
27
 "If you decide that the defendant committed the uncharged domestic
violence, you may, but are not required to, conclude from that
evidence that the defendant was disposed or inclined to commit
domestic violence and, based on that decision, also conclude that the
defendant was likely to commit domestic violence as charged in
Count [1] or a lesser included offense of Count [1]. If you conclude
that the defendant committed the uncharged domestic violence, that
conclusion is only one factor to consider along with all the other
evidence. It is not sufficient by itself to prove that the defendant is
guilty of Count [1] or a lesser included offense of Count [1]. The
People must still prove each charge and allegation beyond a
reasonable doubt."

B. Analysis

In People v. Reyes (2008) 160 Cal.App.4th 246 (Reyes), the Court of Appeal

considered and rejected the same contention Henderson raises here. In Reyes, the

defendant claimed CALCRIM No. 852 violated his right to due process because it

allowed the jury to find him guilty of the charged offenses (misdemeanor spousal battery

and making a criminal threat) based solely upon finding uncharged offenses true by a

preponderance of the evidence. (Reyes, at p. 250.)

In rejecting that claim, the Reyes court explained that the California Supreme

Court held in Falsetta, supra, 21 Cal.4th at page 915, that Evidence Code section 1108

(discussed, ante) conforms with the requirements of due process and that the high court

also held in People v. Reliford, supra, 29 Cal.4th 1007, that CALJIC No. 2.50.01, an

"instruction explaining the application of Evidence Code section 1108, is proper."

(Reyes, supra, 160 Cal.App.4th at p. 251.)

The Reyes court also explained that "[t]he analysis in Falsetta has been used to

uphold the constitutionality of Evidence Code section 1109 [citations] and the analysis in

28
Reliford has been used to uphold the constitutionality of the corresponding CALJIC

instruction, CALJIC No. 2.50.02." (Reyes, supra, 160 Cal.App.4th at p. 251.) Noting the

courts have concluded there is no material difference between CALJIC No. 2.50.01 and

CALJIC No. 2.50.02, the Reyes court held:

"Similarly, there is no material difference between the language
found constitutional in CALJIC No. 2.50.02 and that in CALCRIM
No. 852. In fact, CALCRIM No. 852 is expressed in clearer
language and makes more certain the manner in which such
evidence may or may not be used by the jury. The reasoning of the
cases analyzing CALJIC No. 2.50.02 is equally applicable to the
validity and propriety of CALCRIM No. 852." (Reyes, supra, at
pp. 251-252, fns. omitted.)

In rejecting the due process challenge to CALCRIM No. 852, the Court of Appeal

reasoned in Reyes that this instruction makes clear the evidence of uncharged acts of

domestic violence may only be considered if it has been established by a preponderance

of the evidence, the instruction explains what is meant by that burden of proof, and the

evidence must be disregarded entirely if that burden is not met. (Reyes, supra, 160

Cal.App.4th at p. 251.)

The Reyes court also reasoned that, like CALJIC No. 2.50.02, CALCRIM No. 852

(1) explains that if the jury finds the defendant committed the uncharged acts of domestic

violence, "it may but is not required to conclude the defendant was disposed or inclined

to commit domestic violence and may also conclude that the defendant was likely to

commit and did commit the crimes charged in the case" (Reyes, supra, 160 Cal.App.4th

at p. 252, italics omitted); and (2) clarifies that even if the jury concludes the defendant

committed the uncharged acts, this conclusion is only one factor to consider along with

29
all the other evidence, and it is not sufficient by itself to prove the defendant is guilty of

the charged offenses. (Ibid.) Noting that CALCRIM No. 852 then goes on to state that

the People must still prove each element of every charge beyond a reasonable doubt, the

Reyes court approvingly stated that "CALCRIM No. 852 goes further than CALJIC

No. 2.50.02 with a clarification which inures to the defendant's benefit." (Reyes, supra,

at p. 252.) We agree with the reasoning and results in Reyes. Accordingly, we adopt its

analysis as our own.

III. PROSECUTORIAL MISCONDUCT

Henderson next contends the prosecutor committed misconduct and deprived him

of a fair trial during the prosecutor's cross-examination of Henderson by asking questions

implying defense counsel had attempted to conceal information from the jury and had

fabricated Henderson's defense that he accidentally shot Tamara. He asserts "there is at

least a reasonable likelihood the jurors understood the prosecutor's questions as

impugning the integrity of defense counsel, by suggesting he had attempted to conceal

the truth from them and had fabricated the defense of accident." We conclude Henderson

has failed to demonstrate a reasonable likelihood the jury understood the prosecutor's

questions as impugning the integrity of defense counsel, and, thus, he has failed to

establish he was denied a fair trial.

A. Background

The following exchange occurred during the prosecutor's cross-examination of

Henderson:

30
 "[Prosecutor]: When we went through your account on direct
examination of what happened on January 1, 2011, is there a reason
why you went through the story so quickly?

"[Henderson]: Can you --

"[Defense counsel]: Objection. Assumes facts not in evidence. I
asked the questions.

"[Court]: Sustained.

"[Prosecutor]: Is there a reason you didn't give us more detail about
the incident surrounding the shooting?

"[Defense counsel]: Same objection.

"[Court]: Sustained." (Italics added.)

Shortly thereafter, the following exchange took place:

"[Prosecutor]: When is it that you decided that this was going to be
your defense, the defense of accident?

"[Defense counsel]: Objection. Argumentative.

"[Court]: Sustained." (Italics added.)

Defense counsel later moved for a mistrial, arguing the prosecutor's questions

amounted to "egregious misconduct." At the hearing on the motion, which was held

before court instructed the jury, defense counsel asserted that the thrust of the

prosecutor's closing argument was going to be that Henderson was lying and the shooting

was not an accident. Defense counsel also claimed that although the court had sustained

the defense objections to the prosecutor's questions, there was a "severe danger" the jury

would think he (defense counsel) and Henderson "cooked up a defense because there was

nothing else that could be done."

31
 The prosecutor responded that, throughout the trial, he had done nothing to cast

aspersions on defense counsel or to suggest that counsel fabricated a defense; rather, his

questions were directed at Henderson and were focused on his conduct. The prosecutor

argued that, "when people lie . . . [t]hey give a very vague story, and then when they're

asked pointed questions about it, then all of a sudden they feel the need to give more

detail . . . ."

Noting that the prosecutor was "entitled to argue [Henderson] was lying," the court

admonished the prosecutor that his questions were "inartful at best." Noting that it had

immediately sustained the defense objections to the prosecutor's questions, the court

found there was no basis for granting Henderson's mistrial motion. The court explained:

"I think it was clear . . . that [the prosecutor] felt that [Henderson]
was being less than truthful. I did not get a sense from the
questioning or from his mannerisms─but more importantly, the
questioning─that it was by implication directed towards [defense
counsel] . . . ."

Henderson's counsel suggested that, if the court denied the mistrial motion, in the

alternative it should give the following limiting instruction to the jury: "The prosecutor

asked questions that implied [Henderson] or his lawyer had orchestrated [Henderson's]

testimony or concocted the defense of accident. This was improper and misconduct.

You may, but are not required to, regard this as evidence the prosecutor thinks the case is

weak." The prosecutor objected that such an instruction was improper.

Following further discussion, the court stated that, by sustaining the defense

objections to the prosecutor's three questions, it had indicated to the jury that the

questions were "inappropriate." The court reiterated that it "didn't get the impression"

32
that the prosecutor, in asking the three questions, "was saying that he thought [defense

counsel] was lying or concocting a defense in this case." The court added, "I think it was

clear [the prosecutor], by implication, was making that assertion against Mr. Henderson.

And . . . in indicating that [Henderson] didn't previously relate these details, that is an

appropriate vehicle to get that information in front of the jury." (Italics added.)

The court indicated it was not inclined to give a limiting instruction, stating,

"[F]rankly, I don't think there was that much attention drawn to this, and I think the

limiting instruction would do no more [than] draw attention to it. They're going to be

told if an objection was sustained, they're not to speculate as to what the reason is or what

the answer should have been and to disregard it. [¶] . . . I think it would tend to make

any problem that did exist worse by drawing attention to it." Consistent with its ruling,

the court later instructed the jury under CALCRIM No. 222 to ignore any questions to

which objections had been sustained.8

B. Applicable Legal Principles

A prosecutor in a criminal case can commit misconduct under either federal or

state law. "A prosecutor's conduct violates the Fourteenth Amendment to the federal

Constitution when it infects the trial with such unfairness as to make the conviction a

8 The court's instruction under CALCRIM No. 222 told the jury in part: "During the
trial, the attorneys may have objected to questions or moved to strike answers given by
the witnesses. I ruled on the objections according to the law. If I sustained an objection,
you must ignore the question. If the witness was not permitted to answer, do not guess
what the answer might have been or why I ruled as I did. If I ordered testimony stricken
from the record you must disregard it and must not consider that testimony for any
purpose."
33
denial of due process. Conduct by a prosecutor that does not render a criminal trial

fundamentally unfair is prosecutorial misconduct under state law only if it involves the

use of deceptive or reprehensible methods to attempt to persuade either the trial court or

the jury." (People v. Morales (2001) 25 Cal.4th 34, 44.)

" 'A prosecutor commits misconduct if he or she attacks the integrity of defense

counsel, or casts aspersions on defense counsel.' " (People v. Turner (2004) 34 Cal.4th

406, 429, quoting People v. Hill (1998) 17 Cal.4th 800, 832; see also People v.

Cummings (1993) 4 Cal.4th 1233, 1302 [prosecutor commits "misconduct . . . by

impugning the honesty and integrity of defense counsel"].) Thus, "it [is] improper for the

prosecutor to imply that defense counsel has fabricated evidence or otherwise to portray

defense counsel as the villain in the case." (People v. Thompson (1988) 45 Cal.3d 86,

112; see also People v. Bain (1971) 5 Cal.3d 839, 847 ["The unsupported implication by

the prosecutor that defense counsel fabricated a defense constitutes misconduct."].)

"Casting uncalled for aspersions on defense counsel directs attention to largely irrelevant

matters and does not constitute comment on the evidence or argument as to inferences to

be drawn therefrom." (People v. Thompson, supra, at p. 112.)

When a claim of prosecutorial misconduct focuses on the prosecutor's questions or

comments before the jury, " 'the question is whether there is a reasonable likelihood that

the jury construed or applied any of the complained-of remarks in an objectionable

fashion.' " (People v. Cole (2004) 33 Cal.4th 1158, 1202-1203, italics added, quoting

People v. Berryman (1993) 6 Cal.4th 1048, 1072, overruled on another point in People v.

Hill, supra, 17 Cal.4th at pp. 822-823; see also People v. Cummings, supra, 4 Cal.4th at

34
p. 1302 ["If there is a reasonable likelihood that the jury would understand the

prosecutor's statements as an assertion that defense counsel sought to deceive the jury,

misconduct would be established."].)

"When a defendant chooses to testify concerning the charged crimes, the

prosecutor can probe the testimony in detail and the scope of cross-examination is very

broad." (People v. Dykes (2009) 46 Cal.4th 764, 731; see also People v. Cole, supra, 33

Cal.4th at p. 1203 ["prosecutors 'have wide latitude to discuss and draw inferences from

the evidence at trial,' and whether 'the inferences the prosecutor draws are reasonable is

for the jury to decide' "].)

C. Analysis

As noted, Henderson claims the prosecutor committed misconduct by asking him

the following three questions during cross-examination: (1) "When we went through

your account on direct examination of what happened on January 1, 2011, is there a

reason why you went through the story so quickly?"; (2) "Is there a reason you didn't give

us more detail about the incident surrounding the shooting?"; and (3) "When is it that you

decided that this was going to be your defense, the defense of accident?"

The record does not support Henderson's claim there is a reasonable likelihood the

jurors understood the prosecutor's three questions as impugning the integrity of defense

counsel by suggesting that he (defense counsel) had attempted to conceal the truth from

them during his direct examination of Henderson, and that he had also fabricated

Henderson's defense of accident. None of the questions mentions or in any way alludes

to Henderson's counsel. The court expressly found it was "clear" the prosecutor, by

35
implication, was asserting that Henderson─not his counsel─was lying and had concocted

his accident defense. In making this finding, the court stated, "I did not get a sense from

the questioning or from his mannerisms . . . that it was by implication directed towards

[defense counsel.]" The court was able to observe the prosecutor's mannerisms when the

prosecutor asked Henderson the three questions, and, thus, was able to assess whether the

prosecutor, by implication, was also accusing defense counsel of concealing facts or

fabricating a defense. We note the court's finding that the prosecutor was "entitled to

argue [Henderson] was lying" finds support in California case law. The California

Supreme Court has explained that " '[w]hen a defendant's testimony contradicts the strong

evidence of his guilt, it is not improper to call him a liar.' " (People v. Friend (2009) 47

Cal.4th 1, 32.) Here, the evidence of Henderson's guilt (discussed, ante) was strong.

In light of our conclusion that Henderson has failed to meet his burden of

demonstrating a reasonable likelihood the jury understood the prosecutor's questions as

impugning the integrity of defense counsel, we also conclude he has failed to establish he

was denied a fair trial as a result of prosecutorial misconduct. Even if we were to assume

Henderson had met his burden, on this record we could not conclude such misconduct

"infect[ed] the trial with such unfairness as to make the conviction a denial of due

process." (People v. Morales, supra, 25 Cal.4th at p. 44.) When a trial court sustains

objections to the prosecutor's questioning, we assume any prejudice was abated. (People

v. Dykes, supra, 46 Cal.4th at p. 764.) Here, defense counsel immediately objected to

each of the prosecutor's three questions, and the court immediately sustained each

objection. Also, as noted, the court gave a curative instruction under CALCRIM No. 222

36
instructing the jury to ignore any questions to which objections had been sustained. "We

presume the jury followed the court's instructions." (People v. Avila (2006) 38 Cal.4th

491, 574.)

Even if we were to assume the prosecutor committed error under state law by

asking the three questions at issue here, we would conclude reversal of the judgment is

not required. Because Henderson's federal constitutional right to a fair trial was not

violated, we do not apply the federal harmless error standard set forth in Chapman v.

California (1967) 386 U.S. 18. Rather, we apply the California standard for harmless

error, that is, whether, based on the totality of the evidence, it is reasonably probable

Henderson would have obtained a more favorable result absent the claimed prosecutorial

misconduct. (People v. Castillo (2008) 168 Cal.App.4th 364, 386; People v. Watson

(1956) 46 Cal.2d 818, 836.) Given the strong evidence of Henderson's guilt, we conclude

he has failed to meet his burden of demonstrating a reasonable probability he would have

obtained a more favorable result absent the assumed prosecutorial misconduct.

IV. CUMULATIVE ERROR CLAIM

Last, Henderson claims the cumulative effect of the claimed errors requires

reversal of the judgment. We reject this claim.

"If none of the claimed errors were individual errors, they cannot constitute

cumulative errors that somehow affected the . . . verdict." (People v. Beeler (1995) 9

Cal.4th 953, 994, abrogation on other grounds recognized by People v. Pearson (2013)

56 Cal.4th 393, 462.) Here, we have rejected all of Henderson's other claims of error.

Accordingly, we also reject his claim of cumulative error.

37
 DISPOSITION

The judgment is affirmed.

NARES, J.

WE CONCUR:

HUFFMAN, Acting P. J.

AARON, J.

38