People v. Hancock CA4/1

Filed 8/4/21 P. v. Hancock 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D077338

Plaintiff and Respondent,

v. (Super. Ct. No. SCD277179)

BRIAN ELERON HANCOCK,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County,
Joan P. Weber, Judge. Affirmed.
Joanna McKim, under appointment by the Court of Appeal, for
Defendant and Appellant.
Matthew Rodriguez, Acting Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Julie L. Garland, Assistant Attorney General,
Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff
and Respondent.

A jury convicted Brian E. Hancock of first degree murder for the brutal
slaying of a sexual partner. The trial court sentenced Hancock to 75 years in
state prison. On appeal, Hancock argues his conviction should be overturned
because the court erred by admitting into evidence statements he made to his
wife that were protected by the marital communication privilege. Hancock
also argues reversal is required because of prosecutorial misconduct.
Specifically, Hancock challenges statements made by the district attorney in
his closing rebuttal argument that Hancock asserts shifted the burden of
proof to the defense. As we shall explain, we reject these two arguments and

affirm the judgment of conviction.1
FACTUAL AND PROCEDURAL BACKGROUND
1. The Prosecution’s Case
For several months in 2017, Hancock met regularly with the victim,
Peter Bentz, for sex at Bentz’s apartment in the San Diego neighborhood of
Ocean Beach. On Friday, November 17, 2017, Hancock took his girlfriend,
Rosa H., to Bentz’s apartment. Rosa had not been to the apartment before.
All three smoked methamphetamine. Hancock and Bentz then had sex on
the couch, while Rosa looked on, then Hancock and Rosa had sex on the couch
while Bentz watched. After, when Bentz excused himself to use the restroom,
Hancock took a credit card from Bentz’s wallet.
Hancock and Rosa said goodbye, then left with Bentz’s credit card.
They stopped for dinner at Kentucky Fried Chicken, where Hancock paid
with the stolen card. After they finished eating, Hancock dropped Rosa off at
her mother’s home. Later that night, Rosa was sent a link through Facebook

1 After briefing was completed in this matter, defendant filed a notice of
abandonment of appeal and request for dismissal. Once the record has been
filed with this court, we have discretion to deny such a request for dismissal.
(Cal. Rules of Court, rule 8.316(b)(2).) The filing does not indicate the reason
for the abandonment and at this late stage of the appeal, we deny the request
for dismissal.
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Messenger. She could not open the link, but assumed it was a video of her
and Hancock having sex at Bentz’s apartment that Bentz had filmed without
her knowledge.
Rosa had a boyfriend and was with him when the message arrived.
She panicked when she saw the link because she did not want her boyfriend
to discover her affair with Hancock. Rosa forwarded the link to Hancock and
texted him about her assumption it was a video of them in a comprising
situation. Hancock was also married, to Angelina H., at the time of the
encounter. Hancock told Rosa over text that he would take care of the video.
On November 21, 2017, the Tuesday before Thanksgiving, around 2:00
p.m., Hancock sent Bentz a message on Facebook asking if he could come by.
Shortly after, Hancock and Bentz spoke on the phone and Hancock told Bentz
he was getting cleaned up to come over. Hancock’s friend and drug dealer,
Tori F., was with Hancock when he spoke with Bentz. Tori testified that on
that day, Hancock told her about the sex video and that he was angry about
it. Hancock told Tori he was “going to kill” Bentz.
Cell phone records showed Hancock in the vicinity of Bentz’s apartment
at 3:12 p.m. At some point later in the day, Hancock told Tori that he had
stabbed Bentz seven times, and that because Bentz was a “big guy” it had
been hard to take him down. Hancock also told another friend, Johnny W.,
about the video and that he put Bentz “on vacation.” Cell phone data showed
both Hancock’s and Bentz’s phones leaving the area of Bentz’s apartment
around 7:00 p.m. and traveling southbound on Interstate 5 until reaching the
vicinity of Hancock’s home in the south San Diego neighborhood of National
City.
That afternoon before returning home, Hancock called Angelina
between 5 and 10 times, “almost back-to-back.” During the calls, Hancock

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was scared and panicked. Angelina testified she had never experienced
Hancock in such an extreme emotional state in their twenty-plus year
relationship. Angelina said Hancock came home briefly around 7:00 p.m. and
appeared to be in a “full panic attack. He was breathing quickly and
heavily.” Hancock’s “eyes were wide and [he] was sweaty, stressed, [and]
scared.” After a half hour, Hancock left. The brakes on his truck were not
working, so he took Angelina’s car. Fifteen or twenty minutes later, Hancock
returned to the house and asked Angelina to drive him to Walmart. Angelina
dropped him off and Hancock did not return home that night.
Using one of Bentz’s credit cards, Hancock made several separate
purchases at Walmart in the early hours of the next morning and one
purchase at a Smart & Final store. The purchases included a new cell phone
that he registered using his middle name as his last name. Hancock asked
Tori to be a look out for him while he cleaned Bentz’s apartment. Tori
refused. Hancock also texted Rosa asking for help, but she did not respond.
The next morning, Wednesday, November 22, 2017, Angelina took their
two children to school and went to work. Just after noon, Hancock used
Bentz’s credit card again, this time to purchase cleaning supplies from
another Smart & Final store. Sometime between 10:00 a.m. and noon,
Hancock called Angelina and asked her to purchase cardboard boxes. He told
Angelina the boxes were to replace old ones storing their Christmas
ornaments. Angelina purchased boxes and met Hancock with them at their
home sometime before 6:00 p.m. Angelina handed the boxes off to Hancock,
who left and again did not return home again that night. Angelina never saw
the boxes again.
Later that day or the next morning, Hancock told Angelina over the
phone that he had used the boxes in an unsuccessful attempt to create a

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vessel to transport Bentz’s body. Angelina was concerned that the boxes she
purchased were being used for criminal purposes. Angelina testified that
during this period, Hancock was still highly stressed. Hancock also asked his
wife to help him dispose of the body, which he had trouble lifting because he
had a back injury. Angelina refused to help him.
The following day, Thanksgiving, Hancock returned home late in the
morning and spent the next few hours celebrating the holiday with
Angelina’s family. That evening, Hancock asked Angelina to help him return
a car he had borrowed from a friend. Angelina followed Hancock, who was
driving a silver SUV that Angelina had never seen before, to Logan Heights.
Hancock asked Angelina to drive around while he met the friend, and told
her he would call when he was ready to be picked up.
Angelina drove around, then grew impatient and went back to the strip
mall where she had last seen Hancock. There, Angelina saw the SUV parked
and Hancock putting items from the rear into a plastic shopping bag.
Hancock got into Angelina’s car with the bag and she started driving. After
just a block, without warning, Hancock asked Angelina to stop the car. She
complied, and Hancock jumped out and threw the plastic bag over a nearby
chain-link fence.
Hancock directed Angelina toward home on side streets, not the faster
freeway route. Angelina realized the SUV was Bentz’s and began to panic
that she was involved in covering up a murder. During the drive, Angelina
questioned Hancock about what was going on. Hancock confirmed the SUV
was Bentz’s and told Angelina the bag he had thrown contained Bentz’s
wallet.
The couple then drove to Walmart in La Mesa and purchased groceries
for the family using Bentz’s credit card. Once home, Hancock told Angelina

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he had an upcoming job stocking at a warehouse and needed a car.
Angelina’s friend had offered to let them use an SUV the weekend before
when Hancock’s truck had started acting up. Angelina texted her friend, who
agreed to lend Hancock the SUV. Angelina dropped Hancock at the friend’s
house to pick up the car and Hancock left with it. He did not return home
that night.
The following day, Friday, November 24, 2017, Hancock purchased a
10-inch table saw, a shovel, a rug, a dolly, a mattock, weatherproof gloves,
and a $50 gift card at Home Depot using one of Bentz’s credit cards. Around
3:30 p.m., Hancock drove east of San Diego to an area known as Campo. Cell
phone records showed Hancock remained in that area until about 9:00 p.m.
When Hancock returned home, Angelina saw him clean blood and matted
hair off of his leg.
Saturday afternoon, Angelina drove Hancock back to the strip mall
where he left Bentz’s SUV. Hancock moved the SUV to a parking lot in Mira
Mesa. Several hours later Angelina picked Hancock up in Mira Mesa and
they took their children to ice cream on the drive home.
During the week of Thanksgiving, Hancock brought home items that he
had stolen from Bentz’s apartment: a chess set, china dishes, and a stamp
collection. Hancock asked Angelina if she wanted to keep any of the items.
She told him no, and to get rid of the items. Hancock also told Angelina he
had buried a ring that belonged to Bentz in their backyard. Angelina told
Hancock to dig up the ring and get rid of it. Hancock later showed the ring to
Angelina. The next week, Hancock and a friend pawned several items,
including an army class ring believed to have belonged to Bentz.
On November 29, 2017, Hancock and Angelina cleaned the SUV they
had borrowed and returned it. At Hancock’s request, Angelina erased all of

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the text messages and call logs between them from November 17, 2017 to
November 24, 2017.
On December 4, 2017, Bentz’s brother called the San Diego police
department and reported Bentz missing. Bentz had not shown up for
Thanksgiving dinner, a tradition he never missed. Bentz also did not
respond to numerous phone calls and text messages. Because Bentz and his
brother shared a cell phone account, his brother’s wife accessed Bentz’s phone
records and discovered that Bentz did not have any activity on his phone
after November 21, 2017. She called numbers from Bentz’s phone records to
see if she could get any information about his whereabouts and enlisted a
friend of Bentz’s, Gilda B., to help. On December 6, 2017, Gilda called
Hancock and identified herself and her purpose. Hancock told Gilda he had
last texted with Bentz on November 20, 2017 and had not spoken with Bentz
since before Thanksgiving.
On December 7, 2017, police officers conducted a welfare check at
Bentz’s apartment. The apartment manager let the officers in. Nothing
seemed unusual or out of place, so the officers left. On December 12, 2017,
police located Bentz’s SUV in the parking lot in Mira Mesa where Hancock
had left it on November 25, 2017. The car was open, the windows were rolled
down slightly, the sunroof was open, the keys were in the ignition, and a
spare set of keys sat on the dashboard. A milky substance, which detectives
believed was a dried chemical used to clean the car, was on the inside of the
windows, the dashboard, and the door panels. There were also cleaning
wipes in the SUV.
On December 14, 2017, the police homicide team searched the area in
Logan Heights where Hancock originally left Bentz’s SUV. A license plate
reader in the area had recorded Bentz’s plate. The police discovered the

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same type of cleaning wipes found in the SUV and a cleaning product on the
sidewalk. A block away, the police discovered the plastic bag that Hancock
had thrown over the fence. The bag contained Bentz’s wallet, rent payment
receipts, Veteran’s Affair card, and insurance cards. Near the bag was
Bentz’s cell phone and some blood-stained paper towels.
After these discoveries, the police returned to Bentz’s apartment.
Investigators determined the apartment had been cleaned to cover up a
crime. Rugs and furniture were moved to hide bloodstains, including a large,
concentrated bloodstain in the living room known as a “saturation stain,”
which develops when a person bleeds out. A criminalist concluded Bentz
suffered a “significant bleeding injury” at the location of the saturation stain.
While the top of the carpets appeared clean, the underside of the carpet was
bloodstained. Bloodstains were also discovered on the deadbolt of the front
door and around the kitchen sink. Chemical residue like that discovered in
Bentz’s SUV was also found throughout the apartment and bottles of
cleaning products were left on the kitchen floor.
Several items were missing from the apartment, including a cedar hope
chest (measuring about four or five feet by two feet), Bentz’s army class ring
(believed to have been pawned), two gold chains, a computer, and camera
equipment.
Hancock quickly became a suspect based on phone records and
information recovered from Facebook showing communications about the
alleged sex video and the relationship between Hancock and Bentz. The
Facebook data revealed Hancock had planned to be at Bentz’s apartment on
November 21, 2017.
DNA testing also revealed information about Bentz’s death. An expert
concluded Bentz’s DNA matched that found on blood samples taken from the

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carpets, door lock, and kitchen. DNA from Bentz and Hancock was found on
a knife in the kitchen, and Hancock’s DNA could not be excluded from a
sample taken from the cleaning products in the apartment. Hancock’s DNA
also matched samples from the door lock and the kitchen sink.
Cell phone records also provided significant information about the case.
They showed Hancock’s phone at Bentz’s apartment on November 21, 2017,
and Hancock’s and Bentz’s phones traveling simultaneously from Bentz’s
apartment to Hancock’s home. Bentz’s phone stopped working at 7:14 p.m.
on November 21, 2017.
Hancock’s phone records showed his route to Campo on November 24,
2017. In that area police also discovered a path leading to a hole measuring
two feet by four feet. They also found a hatchet, a product tag for a mattock,

and a plastic spray bottle. Police also noticed a foul smell in the area.2
Search canines were brought to the area, but did not alert to their handlers.
The dogs did alert to the tailgate of Bentz’s car and two spots in the backyard
of Hancock’s home.
On January 23, 2018, Hancock was arrested. On a recorded telephone
call from jail with Angelina, after learning she had spoken with police,
Hancock accused Angelina of betraying him and told her his “fate ha[d] been
sealed.” Hancock berated Angelina by repeatedly telling her that all she had
needed to do to protect him was ask for an attorney. On the call, he asked
Angelina, “Did you tell them where? Did you tell them where?”

2 After the fourth day of the trial, the prosecutor received notification
from the federal Department of Justice that Bentz’s dental records had been
matched to a skull that was recovered in Campo in May 2018. Hancock’s
counsel objected to the introduction of the new evidence and the court
sustained the objection, ruling it would be highly prejudicial to the defense to
allow the evidence at that stage of the litigation.
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2. Defense Case
Hancock testified in his own defense. He told the jury that after he was
laid off in 2017 as a result of a back injury, he began using
methamphetamine on a daily basis. Hancock testified that he met Bentz
when he hired Hancock to fix a ceiling fan in his apartment. Bentz contacted
him shortly after for another electrical job, and after that second meeting
their relationship became sexual. Hancock stated that he visited Bentz’s
apartment regularly, approximately once per week or week and a half,
throughout the fall of 2017. During these meetings the men would have sex
and use marijuana and methamphetamine. During one encounter they used
heroin together.
Hancock admitted that he was also having an affair with Rosa during
this time period, and that Angelina had discovered that relationship. He
stated that his marriage was in trouble during the second half of 2017
because of his unemployment and drug use. Hancock also admitted that he
had taken Rosa to Bentz’s home on Friday, November 17, 2017 and that the
sexual encounters described by Rosa during her testimony had occurred. He
said that he asked Bentz if he could borrow some money to buy Rosa dinner.
According to Hancock, Bentz had given him his credit card to use and it was
not taken without Bentz’s permission.
On November 21, 2017, Hancock returned to Bentz’s apartment. He
testified he intended to ask Bentz about the video Rosa said she received, but
he was not angry. Rather, he just wanted to understand if Bentz had filmed
them without their knowledge. Hancock said when he got to Bentz’s
apartment there were three other men there, Tom, Raul, and a third man
whose name he could not remember. Hancock testified he asked Bentz if
they could speak in private. Bentz agreed and Hancock returned the credit

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card he had borrowed and asked about the video. Hancock said Bentz denied
filming them and Hancock believed Bentz.
According to Hancock, after their conversation, they rejoined the others
who were drinking beer and smoking marijuana. Hancock said Bentz then
asked Hancock if he was willing to participate in a group sex video in
exchange for $3,000. According to Hancock, he agreed to participate but left
around 7:00 p.m., before the video was completed, because Angelina and their
children were expecting him. Hancock explained that he returned to Bentz’s
apartment later that evening to complete the video, and that Bentz gave him
$600 in cash and permission to use his credit cards for the rest of the
payment. He explained the cell phone data showing the simultaneous
movements of his and Bentz’s phones by stating that he found Bentz’s phone
in his car on his way home, then returned it to Bentz’s apartment when he
went back.
Hancock testified that after completing the pornographic filming, Bentz
let him borrow his SUV and he left Bentz’s apartment around 2:00 a.m. on
November 22, 2017. Hancock then met up with Tori at the homeless
encampment where she lived. He explained the various credit card
purchases over the following days were with Bentz’s permission and payment
for the pornographic film. He denied telling Angelina, Rosa, or Tori that he
had killed Bentz, or that he needed help moving the body or cleaning the
crime scene. Hancock claimed he had seen Bentz on November 22, 24, and
26, 2017, and that he had given Bentz receipts for each purchase and
returned the credit cards to him on the 26th. He explained many of his
movements around town as being related to his work as an electrician.
Hancock claimed that Bentz decided not to go to his brother’s home for
Thanksgiving because he did not want his family to see he had returned to

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heavy drug use. Hancock also claimed that Bentz was planning to leave on
November 27 or 28, 2017 for Ixtapa, Mexico with Raul. Hancock assumed
when he could not contact Bentz after November 26th that Bentz had left for
his vacation. Hancock also stated that on November 24, 2017, he gambled at
the Golden Acorn Casino for four or five hours, explaining the cell phone data
showing him near Campo. He said the statements he made to Angelina on
the phone from jail were related to a large quantity of methamphetamine he
had stashed at their house that he feared the police would find.
Hancock also presented the testimony of a DNA expert who questioned
the prosecution’s expert’s conclusions and methodologies.
3. Verdict & Sentencing
After the conclusion of the evidence, closing arguments, and almost
three days of deliberations, the jury returned a guilty verdict on the charge of
first degree murder. Thereafter, Hancock admitted the truth of his prior
felony convictions. The trial court sentenced Hancock to an aggregate term of
75 years to life in prison, consisting of 25 years to life for first degree murder,
tripled for the prior strike convictions. Hancock timely appealed the
judgment of conviction.
DISCUSSION
I
Marital Communication Privilege
Hancock first argues reversal is required because the court erroneously
admitted privileged communications between him and Angelina. The
Attorney General responds that the court’s evidentiary determinations were

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appropriate and, alternatively, even if privileged communications were
improperly admitted the error was not prejudicial.
A
Additional Background
Angelina divorced Hancock after his arrest. She testified against him
at trial after entering an immunity agreement in which the district attorney
agreed not to prosecute Angelina for her involvement in the cover-up of the
murder. Before trial, Hancock moved in limine to preclude Angelina from
testifying to statements he made that were protected by the marital

communication privilege set forth in Evidence Code section 980.3
The prosecution opposed the motion and filed a separate motion in
limine seeking to admit Angelina’s statements. The prosecution’s motion set
forth five categories of expected testimony: (1) statements made by Hancock
to Angelina about the murder that were made in confidence; (2) statements
made by Hancock that were overheard by Angelina; (3) statements made by
Hancock to involve Angelina in the crime or cover-up of the murder;
(4) observations of Hancock’s actions by Angelina; and (5) statements
Hancock made to Angelina in jail calls, visits, and mail. Only the first
category, the district attorney asserted, was protected by the marital
communication privilege. The second and fifth categories were not protected
because the statements were not confidential, the third category was subject
to the crime-fraud exception to the privilege under section 981, and the fourth
category were not “statements” and thus not protected.
At the hearing on the motions, the court ruled that statements in
categories two, four and five were not protected by the privilege. The parties

3 Subsequent undesignated statutory references are to the Evidence
Code.
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and court then examined Angelina’s testimony at the preliminary hearing
and debated which statements fell into category one, which the court agreed
was protected by the privilege, and which fell into category three, which was
subject to the crime-fraud exception. The prosecutor asserted that all of the
statements Hancock made to Angelina after his initial disclosure that he
killed Bentz were subject to the crime-fraud exception because Hancock was
attempting to bring Angelina into his criminal efforts to cover up the murder.
Hancock’s counsel argued that his statements to Angelina the night of the
murder remained protected because he was not specifically asking for help
with his efforts to dispose of the body and clean the apartment, but only for a
ride or because he was just “trying to figure out what to do.”
The court found that statements by Hancock made in furtherance of
the crime (specifically to get rid of the body or clean the apartment),
regardless of Angelina’s awareness of the purpose, were admissible under the
crime-fraud exception. The court explained, “I don’t allow in, [‘]He’s talking
to her and panicking about the murder and that’s to groom her to help him.[’]
… I think that is still covered by his marital communication privilege. But I
do – anytime he has a conversation where he’s asking her to do anything –
boxes, drive me to the movie, drive me to the Walmart, drive me to meet
Eddie – all of these things, I believe he is desperate to get help to get that
body out of there and get it cleaned up. And so those are all crime-fraud
exceptions.”
After argument, the court ruled that Hancock’s statements to Angelina
involving her driving him to various places and helping with boxes and
cleaning supplies were admissible under the crime-fraud exception. With
respect to any other statements, the court ordered the district attorney to
create a chart outlining Angelina’s expected testimony and the basis for its

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admission to be considered at a further hearing. At that next hearing, after
indicating it had examined the information submitted by the district attorney
and the relevant case law, the court stated its view that the “crime-fraud
exception provided by section 981 is quite limited. It does not permit
disclosure of communications that merely reveal a plan to commit a crime or
fraud. [¶] It permits disclosure only of communications made to enable or aid
anyone to commit or plan to commit a crime or fraud.”

The court then made specific rulings about particular areas of inquiry.4
The court ruled several categories of statements Hancock made to Angelina
were admissible under the crime-fraud exception to the marital
communication privilege: statements concerning needing help to move the
body and contacting Tori and her boyfriend for that help; statements that
Hancock wanted Angelina to help check on the location of the body in Campo
to ensure it was sufficiently buried; statements related to cleaning the car
Hancock borrowed to ensure there were no traces of the body; asking
Angelina for garbage bags and boxes; Hancock’s statements about various
items of stolen property, which the court viewed as an effort to enlist
Angelina in the destruction of evidence; and Hancock’s statements to
Angelina on November 22, 2017, when Hancock drove Bentz’s SUV and left it
in Logan Heights.
The court ruled other areas remained protected by the privilege and
were not proper areas of inquiry by the district attorney: statements about
moving the body using Bentz’s hope chest; statements by Hancock expressing
fear about whether he would be able to move the body; statements Hancock
made about purchasing a new cell phone, the knife he used to stab Bentz,

4 During the second hearing, the parties and the court referred to a chart
prepared by the district attorney that does not appear in the appellate record.
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cleaning efforts he made in Bentz’s apartment, and shovels used to bury the
body; statements Hancock made to Angelina about sending texts to Bentz to
make it look like he was not involved in the murder; and statements Hancock
made to Angelina on the phone the night he buried the body, including about
the depth of the grave, that coyotes were all around the area where he was in
Campo, and Hancock’s anxiousness about being in a car with Bentz’s body.
The trial date was continued after this second hearing and the
prosecution filed an additional motion in limine concerning the marital
communication privilege that was opposed by Hancock. As a result, another
hearing on the privilege issues took place before trial. At this third hearing,
the court again carefully considered specific statements made by Angelina to
investigators and at Hancock’s preliminary hearing. The court made
additional evidentiary determinations in line with its earlier rulings. The
court ruled Hancock’s statements to Angelina about driving Hancock home
from dropping Bentz’s car in Logan Heights, leaving Bentz’s car in the Mira
Mesa parking lot, and burying Bentz’s ring in their backyard were admissible
under the crime-fraud exception to the privilege.
The court excluded testimony about the couple spending Angelina’s
Christmas bonus and Hancock asking Angelina where to find tape the day
after the murder, which the prosecutor argued was an attempt to involve
Angelina in the disposal of the body. The court ruled that conversations
about Hancock purchasing a new phone were protected. Likewise,
statements Hancock made to Angelina about how he would move the body
were not subject to the crime-fraud exception to the privilege, but his request
for a ride to Walmart on November 21st was subject to the exception.
At trial, Angelina testified as expected by the parties. She told the jury
that on November 22, 2017, the day before Thanksgiving, Hancock asked her

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for assistance after the murder by telling her to purchase cardboard boxes.
Hancock told her that some of the Christmas ornament boxes located in
storage had broken and needed to be replaced. Angelina bought the boxes
and some packing tape and gave them to Hancock that day. She never saw
the boxes again. When Hancock eventually brought the ornaments home for
Christmas, they were not in the new boxes. Angelina testified that Hancock
told her he used the boxes to try and make one giant box “[t]o transport
[Bentz’s] body.”
Angelina also testified about Hancock’s requests for numerous rides in
the days following the murder. On November 21, 2017, Hancock asked her
for a ride to Walmart. Thanksgiving night, November 23, 2017, Hancock
asked for a ride to drop off his friend’s SUV in Logan Heights, and she gave
him one. After dropping off the SUV, he got into Angelina’s car with a plastic
bag, abruptly demanded Angelina stop the car and then tossed the bag over a
fence. Hancock then told Angelina that the SUV was Bentz’s and the plastic
bag contained his wallet. That night, Angelina drove Hancock to Walmart
and they purchased groceries using Bentz’s credit card. After that, Angelina
drove Hancock to borrow her friend’s SUV, which he used to move Bentz’s
body. On November 25, 2017, Hancock asked Angelina to drive him to Logan
Heights, and then to meet him in Mira Mesa and drive him home from where
he left Bentz’s SUV for the second time.
Angelina also testified that Hancock asked her to help him move
Bentz’s body; she said that Hancock had difficultly moving it because he had
a bad back. Angelina testified further about borrowing their friends’ car on
Thanksgiving evening. According to Angelina, Hancock told her that he had
a job stocking a warehouse and needed a vehicle to get there. Angelina drove
Hancock to pick up the friend’s vehicle, she saw it at their house in the

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following days and Hancock told her not to look in the vehicle because he had
Christmas packages in it. Angelina also testified she helped Hancock detail
the vehicle before returning it.
Angelina also testified that Hancock told her he brought certain items
home from Bentz’s apartment. When Hancock offered the items to her, she
told him to get rid of them. Hancock also told Angelina he buried Bentz’s
ring in their backyard and Angelina told Hancock to dig it up and dispose of
it.
B
Legal Standards
“California recognizes two marital privileges. First, a spouse may
refuse to testify against the other spouse (spousal testimony privilege).
(Evid. Code, § 970.) Second, a spouse may refuse to disclose or may prevent
the other spouse from disclosing confidential communications between them
during their marriage (marital communications privilege). (Evid. Code,
§ 980.)” (People v. Sinohui (2002) 28 Cal.4th 205, 208.) Section 980 states:
“Subject to Section 912 and except as otherwise provided in this article, a
spouse …, whether or not a party, has a privilege during the marital or
domestic partnership relationship and afterwards to refuse to disclose, and to
prevent another from disclosing, a communication if he or she claims the
privilege and the communication was made in confidence between him or her
and the other spouse while they were spouses.”
As a general matter, the claimant of the confidential marital
communication privilege has the burden to prove, by a preponderance of the
evidence, the facts necessary to sustain the claim. (People v. Von Villas
(1992) 11 Cal.App.4th 175, 221 (Von Villas).) “To make a marital
communication ‘ “in confidence,” one must intend nondisclosure [citations]

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and have a reasonable expectation of privacy.’ [Citation.] Both factors must
be shown before invocation of the marital privilege will be honored.” (Id. at
pp. 220‒221.) In addition, “ ‘the privilege applies only to oral or written
verbal expression from one spouse to the other, and acts of the spouses
committed in each other’s presence do not constitute communications
between them, within the meaning of the privilege for confidential marital
communications.’ ” (People v. Cleveland (2004) 32 Cal.4th 704, 743.)
Critically here, under section 981, the marital communication privilege
does not apply “if the communication was made, in whole or in part, to enable
or aid anyone to commit or plan to commit a crime or a fraud.” (§ 981.) The
exception “does not permit disclosure of communications that merely reveal a
plan to commit a crime or fraud[.]” (People v. Dorsey (1975) 46 Cal.App.3d
706, 718 (Dorsey).) Rather, disclosure is allowed only if “the communication
is for the purpose of obtaining assistance in the commission of the crime or
fraud or in furtherance thereof[.]” (Ibid.) As with the application of the
crime-fraud exception to other privileges, a communication can be in
furtherance of the criminal conduct even if one spouse is not aware of the
planned illegal activity. (See State Farm Fire & Casualty Co. v. Superior
Court (1997) 54 Cal.App.4th 625, 645 [Discussing application of the crime-
fraud exception to the attorney-client privilege] (State Farm).)
“A communication between married persons is ‘presumed to have been
made in confidence and the opponent of the claim of privilege has the burden
to establish that the communication was not confidential.’ ” (Von Villas,
supra, 11 Cal.App.4th at p. 220; § 917.) However, the marital communication
privilege is waived if the holders of the privilege, without coercion, have
“disclosed a significant part of the communication” or have “consented to
disclosure made by anyone.” (§ 912, subd. (a); see Von Villas, at p. 223

19
[marital communications privilege waived by couple “speaking very loudly to
one another” in prison visiting area because they knew or should have known
third parties were present].) Because privileges “prevent the admission of
relevant and otherwise admissible evidence,” they “should be narrowly
construed.” (People v. McGraw (1983) 141 Cal.App.3d 618, 622.)
We review the trial court’s ruling on the admissibility of evidence when
the marital communications privilege has been asserted under an abuse of
discretion standard. (People v. Mickey (1991) 54 Cal.3d 612, 654.) “The
underlying determinations, of course, are scrutinized in accordance with their
character as purely legal, purely factual, or mixed.” (Ibid.) In reviewing a
factual finding to support the crime-fraud exception, this court “ ‘may not
weigh the evidence, resolve conflicts in the evidence, or resolve conflicts in
the inferences that can be drawn from the evidence. If there is substantial
evidence in favor of the finding, no matter how slight it may appear in
comparison with the contradictory evidence, the finding must be affirmed.’ ”
(State Farm, supra, 54 Cal.App.4th at p. 645, bolding omitted.)
C
Analysis
Hancock asserts the court erred by “admitting [his] statements to
Angelina, i.e. about the boxes, asking for rides, needing help with the body,
using the [friends’] car, that he was moving [Bentz’s] car, the items missing
from [Bentz]’s and the bags, because they did not come within the crime-
fraud exception of Evidence Code section 981.” Hancock relies on Dorsey,
supra, 46 Cal.App.3d 706 to argue that his statements remained privileged
because they were not made for the purpose of obtaining assistance in the
commission of a crime, but rather merely revealed his plans to commit crimes
or crimes he had already committed.

20
 In Dorsey, the defendant committed a series of burglaries and arsons
over the course of three months. (Dorsey, supra, 46 Cal.App.3d at pp. 709–
712.) As he went along, he told his wife about his crimes and showed her the
locations where they had occurred. (Ibid.) At trial, the prosecutor elicited
testimony from the wife about her husband’s disclosures. (Id. at pp. 712–
715.) The defense attorney did not assert a claim of marital communication
privilege, and on appeal the defendant argued his counsel was ineffective for
failing to raise an objection to the testimony on the grounds of privilege. (Id.
at p. 715.) The Court of Appeal agreed and reversed the convictions on this
basis. (Id. at p. 720.)
Unlike Dorsey, the testimony that Hancock complains was improperly
admitted was not merely disclosure of the murder or intended crimes of
destroying and concealing evidence. Rather, it concerned Hancock’s efforts,
many successful, to enlist Angelina in assisting him in the cover-up of the
murder. In addition, some of the testimony Hancock challenges concerned
Angelina’s own observations of Hancock’s behavior (like driving him to
various locations and seeing him toss a plastic bag over a fence) or
statements that were not made in confidence. As discussed, neither of these
categories of testimony are protected by section 980.
Hancock argues his statement to Angelina that he was going to use the
boxes she purchased to make one large box to transport Bentz’s body “had
nothing to do with enlisting Angelina in a crime[.]” This assertion is belied
by Angelina’s testimony and other circumstantial evidence, including the
facts that Angelina never saw the boxes she purchased again and the family’s
Christmas ornaments were never put in them. Angelina stated that Hancock
asked her to purchase the boxes, that she did, and that he later told her “that
same night or the very next morning” he had intended “to use them to make

21
one giant box … to transport [Bentz]’s body.” Although Angelina also stated
that Hancock told her initially the boxes were for Christmas ornaments in
their storage unit, the evidence sufficiently supported the trial court’s
determination that Hancock’s purpose for requesting the boxes was to use
them to transport the body.
This finding brought the statements Hancock made to Angelina about
that purpose within section 981’s crime-fraud exception to the marital
communication privilege. (See People v. Santos (1972) 26 Cal.App.3d 397,
402–403 [“the privilege does not cover communications made to enable the
other to commit a crime …, destruction or concealment of evidence being a
crime”].) We also agree with the Attorney General that the fact that
Angelina may have been unaware at first of the purpose for the boxes does
not save the statements from disclosure. As the parties acknowledged in the
trial court, the application of the crime-fraud exception turns on Hancock’s
intent and knowledge—not Angelina’s. (See State Farm, supra, 54
Cal.App.4th at p. 645 [in determining if the crime-fraud exception is
applicable, “it is the intent of the client upon which attention must be focused
and not that of the lawyers”].)
Hancock next argues that Angelina’s testimony concerning borrowing
the car of her friends was protected by the marital communication privilege
because “[a]sking to borrow the GMC did not mean he was asking for help to
commit a crime.” This assertion too is belied by the record before this court.
The trial court reasonably concluded that Hancock asked Angelina to help
him borrow the SUV in order to carry out his efforts to dispose of the body.
This determination was supported by the timing of when the car was
borrowed (the friends had offered to lend the vehicle the weekend before, but
Hancock turned them down), when the car was returned, and the evidence

22
that it was thoroughly detailed with Angelina’s assistance before it was
returned. The fact that Hancock testified he borrowed the vehicle only so he
could get to a warehouse job did not negate the evidence supporting the
court’s contrary finding. (See State Farm, supra, 54 Cal.App.4th at p. 645.)
Likewise, the statements Hancock made to Angelina requesting rides
throughout the week of the murder were properly admitted under the crime-
fraud exception to the marital communication privilege. The testimony in the
trial court supported the court’s finding that each time Hancock asked his
wife to drive him—to Walmart the evening he killed Bentz to get a ride from
Tori’s boyfriend to Bentz’s apartment, home from Logan Heights where
Hancock first left Bentz’s SUV on Thanksgiving, back to Logan Heights, and
to Mira Mesa to leave Bentz’s SUV unattended in a parking lot—was in
service of his efforts to hide or destroy evidence of the murder. The
statements he made to facilitate these rides were for “the purpose of
obtaining assistance in the commission of the crime or fraud or in furtherance
thereof.” (Cal. Law Revision Com. com., 29B pt. 3A West’s Ann. Evid. Code
(2009 ed.) foll. § 981, p. 439.)
Finally, the evidence supported the trial court’s determination that the
statements Hancock made to Angelina concerning items that he took from
Bentz’s apartment were made in an effort to hide or destroy that evidence.
Angelina testified that Hancock asked her if she wanted a chess set and
china set that Hancock took from Bentz’s apartment. He also asked her if
her father would want a stamp collection he took from Bentz’s apartment.
These statements were not mere confessions, as in Dorsey, that he had stolen
from Bentz. Rather, the statements were reasonably construed by the trial
court as attempts by Hancock to obtain Angelina’s assistance in hiding this
evidence. Similarly, Angelina testified that when Hancock told her he had

23
buried Bentz’s ring in their yard, she told him to dig it up and dispose of it
elsewhere. This statement showed Angelina’s involvement in covering up the
crime and attempting to avoid her own liability, bringing the testimony into
the crime-fraud exception to the marital communication privilege.
Further, we agree with the Attorney General that even if the court did
err in allowing Angelina’s testimony concerning the various statements made
by Hancock, the error was not prejudicial. We review error in receiving
evidence in violation of a privilege under the harmless error standard of
People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Canfield (1974) 12
Cal.3d 699, 707‒708.) Under this standard, reversal is required only if it is
reasonably probable a result more favorable to the appealing party would
have been reached in absence of the error. (Watson, at p. 836.)
Here, the evidence supporting the jury’s verdict of guilt, outside of the
challenged statements made by Angelina, was overwhelming. Unlike Dorsey,
where “the People’s case was based almost entirely on the testimony of an
accomplice and the testimony of Mrs. Dorsey,” the statements Hancock
challenges made up only a fraction of Angelina’s total damning testimony.
(Dorsey, supra, 46 Cal.App.3d at pp. 719–720.) The unchallenged testimony
included her observations of Hancock’s movements in the days after the
murder, Hancock’s panicked state the evening of November 21, 2017 and the
next day, Hancock’s incriminating statements to her on the telephone from
jail, her observation of Hancock throwing a bag later found containing
Bentz’s wallet that Hancock removed from Bentz’s car, and her observations
of Hancock taking cleaning and other supplies from their home and wiping
blood and hair from his leg. Further, the testimony of the other witnesses
and the physical evidence gathered in the case, particularly the cell phone

24
and Facebook data, the purchases made by Hancock using Bentz’s credit
cards, and the DNA evidence, directly tied Hancock to the murder.
The trial court carefully and thoroughly examined the marital
communication privilege with respect to each statement Hancock now
challenges on appeal. In each case, sufficient evidence supported the court’s
determination that the crime-fraud exception to the privilege applied.
Accordingly, we conclude there was no error. Further, even if we assume
error, in this case it was harmless.
II
Prosecutorial Misconduct
Hancock next argues that the district attorney committed prosecutorial
misconduct in violation of Hancock’s right to a fair trial. Specifically,
Hancock asserts the prosecutor’s statements in his closing rebuttal argument
about the defense’s inability to provide evidence to support his testimony
improperly shifted the burden of proof to him. Recognizing his trial counsel
did not object to the challenged statements, Hancock also argues that this
failure constituted ineffective assistance of counsel.
The Attorney General responds that Hancock forfeited this argument
by his counsel’s failure to object and, further, failing to object was not
ineffective assistance because the prosecutor’s statements were permissible.
Alternatively, the Attorney General asserts that if the prosecutor’s
statements were improper, the record does not show defense counsel’s failure
to object was unreasonable. Finally, the Attorney General argues that if the
statements were improper and Hancock’s counsel was ineffective for failing to
object, the errors were harmless.

25
 A
Additional Background
Before closing arguments, the court instructed the jury that the
prosecutor had to prove Hancock’s guilt beyond a reasonable doubt. During
his closing, Hancock’s counsel emphasized to the jury that “the prosecutor
has to convince you of each and every single ... word[ ] [in the murder jury
instruction] beyond a reasonable doubt.” Defense counsel then concluded his
closing presentation by focusing heavily on the prosecution’s burden of proof.
The prosecutor then began his rebuttal by explaining that if the
circumstantial evidence pointed to two or more reasonable conclusions, the
jury was duty bound to select the conclusion that pointed to innocence. The
prosecutor then discussed what conclusions were reasonable in this case,
telling the jury to reject conclusions drawn from circumstantial evidence that
were unreasonable. He continued:
“It is unreasonable to think that [Bentz’s body] is anywhere but
somewhere in Campo. You have no evidence. You have no credit
card charges in Ixtapa. You have no Uber trip rides from
somewhere. You don’t have baggage claims. You don’t have
Campo receipts at Acorn Casino. You don’t have Raul’s
testimony. You don’t have DNA of someone else at [Bentz]’s
apartment. You don’t have anyone else’s identification wrapped
up in with [Bentz’s] identification.”

The prosecutor then briefly argued the evidence led to just one reasonable
conclusion and ended his presentation by discussing the reasonable doubt
standard. Hancock’s counsel raised no objections.
B
Legal Standards
“ ‘[T]he term prosecutorial “misconduct” is somewhat of a misnomer to
the extent that it suggests a prosecutor must act with a culpable state of

26
mind. A more apt description of the transgression is prosecutorial error.”
[Citation.] 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.’ [Citation.] Federal constitutional error occurs only when
the prosecutor’s actions ‘comprise a pattern of conduct that is serious and
egregious, such that the trial is rendered so unfair that the resulting
conviction violates the defendant’s right to due process of law.’ [Citation.] ‘In
order to be entitled to relief under state law, defendant must show that the
challenged conduct raised a reasonable likelihood of a more favorable verdict.’
[Citation.] Under federal law, relief is not available if ‘the challenged conduct
was ... harmless beyond a reasonable doubt.’ ” (People v. Daveggio and
Michaud (2018) 4 Cal.5th 790, 853–854 (Daveggio).)
“Advocates are given significant leeway in discussing the legal and
factual merits of a case during argument. [Citation.] However, ‘it is
improper for the prosecutor to misstate the law generally [citation], and
particularly to attempt to absolve the prosecution from its ... obligation to
overcome reasonable doubt on all elements [citation].’ [Citations.] To
establish such error, bad faith on the prosecutor’s part is not required.”
(People v. Centeno (2014) 60 Cal.4th 659, 666–667 (Centeno).)
“When attacking the prosecutor’s remarks to the jury, the defendant
must show that, ‘[i]n the context of the whole argument and the instructions’
[citation], there was ‘a reasonable likelihood the jury understood or applied
the complained-of comments in an improper or erroneous manner.
[Citations.] In conducting this inquiry, we “do not lightly infer” that the jury
drew the most damaging rather than the least damaging meaning from the
prosecutor’s statements.’ ” (Centeno, supra, 60 Cal.4th at p. 667.)

27
 In addition, “[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. [Citations.] ‘ “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.]’ [Citation.] Consistent with that purpose, ‘[a] court
will excuse a defendant’s failure to object only if an objection would have been
futile’ [citation], or if an admonition would not have mitigated the harm
caused by the misconduct [citations]. ‘ “[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.’ ” ’
[Citation.] ‘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.’ ” (Daveggio, supra, 4
Cal.5th at p. 853.)
C
Analysis
As stated, Hancock’s trial counsel did not object to the statements that
he now claims constituted prosecutorial misconduct. He argues there was no
forfeiture of the issue because such an objection would have called more
attention to the prosecutor’s statement, making the prejudice worse.
However, Hancock does not explain why the objection could not have been
raised outside the presence of the jury, which could have allowed the court to
provide an admonishment to the jury to disregard the prosecutor’s alleged
misstatements before they began their deliberations. Accordingly, because

28
Hancock’s counsel did not object to the statements that Hancock now asserts
constituted prosecutorial misconduct, the issue is forfeited.
Even if the issue had been preserved for our review, however, we would

conclude the prosecutor’s comments did not constitute error.5 As Hancock’s
brief states, a prosecutor “may comment on the defendant’s failure to call
logical and material witnesses.” That is exactly what the prosecutor was
doing by the statements in the rebuttal that Hancock challenges. (See People
v. Vargas (1973) 9 Cal.3d 470, 475 [“It is now well established that although
Griffin[ v. California (1965) 380 U.S. 609] prohibits reference to a defendant’s
failure to take the stand in his own defense, that rule ‘does not extend to
comments on the state of the evidence or on the failure of the defense to
introduce material evidence or to call logical witnesses.’ ”]; and People v.
Woods (2006) 146 Cal.App.4th 106, 112 [“Comments on the state of the
evidence or on the defense’s failure to call logical witnesses, introduce
material evidence, or rebut the People’s case are generally permissible.”].)
The prosecutor did not suggest that Hancock had the burden to prove
his innocence. Rather he argued the theory of the case presented by the
defense was not a reasonable one because there was no physical evidence—
“no credit card charges [by Bentz] in Ixtapa;” “no Uber trip rides” or “baggage
claims” by Bentz; no receipts from the Acorn Casino; no evidence of Raul; no
DNA of another perpetrator; and no evidence identifying anyone else
“wrapped up with [Bentz]” —to support it. This was not prosecutorial error.
(See People v. Young (2005) 34 Cal.4th 1149, 1195–1196 [Holding prosecutor’s
argument that there was no evidence to support innocence did not “cross the
critical line” between permissible “comment[s] that a defendant has not

5 For this reason, we need not reach Hancock’s claim of ineffective
assistance of counsel.
29
produced any evidence” and the impermissible suggestion “that ‘a defendant
has a duty or burden to produce evidence, or a duty or burden to prove his or
her innocence.’ ”].) Further, directly after the challenged statements, the
prosecutor referred back to the burden of proof, correctly explaining to the
members of the jury that to convict “you have to have an abiding conviction in
the proof that the defendant is guilty of murder.” Put simply, the
prosecutor’s comments on the lack of evidence to support Hancock’s assertion
of innocence did not constitute prosecutorial misconduct.
DISPOSITION
The judgment of conviction is affirmed.

McCONNELL, P. J.

WE CONCUR:

IRION, J.

GUERRERO, J.

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