P. v. Lewis

Filed 5/7/18 P. v. Lewis CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JASON BRADWELL LEWIS,
Defendant and Appellant.
D071498
(Super. Ct. No. SCD264871)
APPEAL from a judgment of the Superior Court of San Diego County, Amalia
Meza, Judge. Affirmed.
Jason L. Jones, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland,
Assistant Attorneys General, Arlene A. Sevidal, Collette C. Cavalier and Alan L. Amann,
Deputy Attorneys General, for the Plaintiff and Respondent.

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A jury convicted Jason Bradwell Lewis of first degree murder of J.R. (Pen.
Code,1 §187, subd. (a).) He admitted he had two prison priors (§§ 667.5, subd. (b), 668,
667, subd. (a)(1), 1192.7, subd. (c), 667, subds. (b)-(i), 1170.12). The court sentenced
him to 56 years in prison.
Lewis contends: (1) the trial court erroneously denied his motion for judgment of
acquittal under section 1118.1 because there was insufficient evidence that he deliberated
and premeditated the murder to support a first degree murder conviction; (2) the court
abused its discretion in admitting into evidence recordings of 911 telephone calls that the
victim's mother made, and (3) his trial counsel provided ineffective assistance of counsel
by failing to object to the admission of certain statements in the 911 recordings, which
were prior consistent statements under Evidence Code section 791, and also by failing to
object to the prosecutor's alleged misconduct in playing the 911 recordings more than
once during trial. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On December 12, 2015, J.R. and her boyfriend arrived in San Diego from
Colorado. They booked a third-floor room at a downtown motel. That afternoon, the
boyfriend and J.R. got into an altercation, and police arrested him and booked him into
jail. He never had contact with J.R. again.
1 Undesignated statutory references are to the Penal Code.

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Lewis was staying on the fifth floor of the same motel. That night, motel
employees saw Lewis and J.R. in a store and, shortly afterwards, at around 9:30 or 10:00
p.m., at the motel. Video surveillance cameras at the store and the motel also captured
Lewis and J.R. together. J.R. telephoned her mother in Wisconsin several times that day.
During a late-night conversation, her mother heard a male in the background call J.R. a
"bitch" and say that "[he] didn't want to hear about how her boyfriend was in jail." This
phone conversation lasted approximately two hours. Her mother regarded that as
unusually long, and believed J.R. was deliberately keeping her on the phone, even as J.R.
was conversing with somebody else at the same time. Her mother did not hang up
because she thought she could at least monitor events on J.R.'s end.
In the last phone conversation, around midnight in San Diego, J.R. sounded upset.
J.R. asked if her mother ever had a nightmare from which she could not wake up, because
J.R. felt her life was a nightmare. Afterwards, her mother overheard J.R. twice telling
somebody in an irritated tone of voice, "Turn the fucking light on." J.R. also said, "I have
elbows," an expression that J.R. used when she felt threatened. Shortly afterwards, J.R.'s
mother heard J.R. moan and say something like, "Uh." Afterwards, her mother heard a
thud and "just a lot of moving." J.R. said, "It hurts," as if she was in pain, and in a tone
of voice that seemed "very passive, submissive almost." Her mother heard a commotion
that "just kept going and going and going and then it didn't stop" until the telephone call
was disconnected.
J.R.'s mother immediately called 911 in Wisconsin. Afterwards, she called 911 in
San Diego several times. The recordings of her calls were played for the jury. In

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describing what she had heard on the phone, J.R.'s mother told a 911 operator in one call,
"[L]iterally, someone is beating the hell out of [J.R.] and they hung up the phone."
In one 911 call, J.R.'s mother told the operator she could hear things being thrown
around and that she did not believe the call ended because her daughter's phone battery
had died or her daughter had hung up the phone.
On December 13, 2015, police went to check J.R.'s motel room, but she was not
there.
The next day, Lewis was captured by surveillance video buying a suitcase at a
store.
That same day, J.R.'s boyfriend was released from jail. He discovered that J.R.
was missing from the motel. He called 911, and a recording of his call was played for the
jury.
Just before midnight on December 14, 2015, the motel's housecleaning staff found
J.R.'s body in a second-floor bathroom. The staff member called 911, and a recording of
this call was played for the jury.
On December 15, 2015, the motel's housecleaning staff asked if Lewis wanted his
bedroom cleaned, but he declined. Before that day, the motel's house cleaning staff had
not cleaned Lewis's room because a "Do Not Disturb" sign was posted on his door.
A San Diego Police Department criminalist who did a crime scene reconstruction
and bloodstain pattern analysis in this case testified that given J.R.'s extensive injuries,
the absence of spatter stains in the bathroom indicated that J.R. was not killed there;
rather, she was beaten in Lewis's room and afterwards her body was deposited in the

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second-floor bathroom. Lewis's fingerprint was found on the bathroom wall. The
criminalist testified that in Lewis's room, "all of the legs on that bed frame were bent as
though a struggle may have occurred." The criminalist observed approximately 30 stains
on one wall of Lewis's room and approximately ten on its other wall. There was also
blood on a bed leg. Some of the blood in Lewis's room was tested and identified as
J.R.'s. Police found a bloodstained sheet, a mattress pad, a towel, and J.R.'s cell phone in
a second-floor garbage bin. J.R.'s DNA was found on the sheet.
A medical examiner performed an autopsy on J.R., who weighed approximately
104 pounds, and concluded she had received at least 16 blunt force injuries to her head
and neck: "I didn't count her arms or legs. . . . Her right ear was all, essentially bruised
and had scrapes and tear[s]. I counted that conservatively as just one impact. It could
represent more. And same thing with the left ear, one impact. The broken nose, one
impact. Each could be more. The blood under the right side of the scalp again, it could
represent multiple injuries, but I counted it as one. And each of the separate bruises and
scrapes along the left side of her jaw and neck, just the three big ones, I counted as just
one. So I made a conservative count like that." J.R. received the following blunt force
injuries while she was still alive: fractured left and right jaw, torn left and right ears, a
bruised right eye and hemorrhage to her left and right eyes, a broken nose, hemorrhage
under the right and the left sides of her scalp, hemorrhage to her brain, hemorrhage to the
neck and epiglottis or voice box, and a fractured hyoid bone like those sometimes seen in
strangulation cases. In discussing the difficulty of breaking the hyoid bone, the medical
examiner stated: "As far as how easy it is to get [a fractured hyoid bone], I can only

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compare to people that kill themselves by hanging. They have a sustained pressure to
their neck in that area, and they usually don't have fracture of their hyoid bone. That's
just a way to compare force." Lewis's DNA was found under J.R.'s left and right-hand
fingernails and on her labia and her right breast.
The medical examiner testified that based on the autopsy, J.R.'s time of death was
probably around midnight on December 12, 2015. He testified her death would not have
been immediate; rather, any strangulation could have taken between four to six minutes.
He also testified J.R.'s body was moved after it had been in one position for more than
eight hours. He testified that J.R.'s blood alcohol content was .31 milligrams per liter,
and her methamphetamine concentration was .42 milligrams per liter. The medical
examiner concluded J.R.'s cause of death was blunt force trauma of the head and neck,
including neck compression, with alcohol and methamphetamine as contributing factors.
The manner of death was homicide.
On December 17, 2015, police arrested Lewis at the motel. He had 0.12 grams of
methamphetamine on his person. Lewis had a bruise on one arm and discolored knuckles
on both hands. The suitcase Lewis had bought was in his bedroom. It had transfer blood
stains matching J.R.'s, and contained J.R.'s bloodstained clothing, on which Lewis's DNA
was found.
DISCUSSION
I.
Lewis contends the trial court erroneously denied his motion for judgment of
acquittal under section 1118.1, as the prosecution did not present sufficient evidence to

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support a first degree murder conviction. He concedes the trial evidence sufficed "to
establish intent to kill or implied malice and, therefore, a second degree murder
conviction."
A. Background
At the end of the People's case-in-chief, Lewis moved for a judgment of acquittal
on grounds the People had not presented sufficient evidence of motive, premeditation or
deliberation to sustain a first degree murder charge. The prosecutor responded: "Motive
is not required. But beyond that, what we have here in the court heard testimony of, a
significant brutal beating, at least 16 strikes to the upper body—that would have been to
her head and neck area—which would have been committed while she was alive—that
coupled with the other evidence of not only just the manner of her death or how her
death—but even his actions afterward I think support a finding of first degree murder."
The court summarily denied the motion.
B. Applicable Law
In reviewing a challenge to a court's denial of a section 1118.1 motion, "we ask
whether 'there is any substantial evidence, including all reasonable inferences to be drawn
from the evidence, of the existence of each element of the offense charged.' " (People v.
Watkins (2012) 55 Cal.4th 999, 1019 (Watkins).)
"In assessing such a claim, we review the record 'in the light most favorable to the
judgment below to determine whether it discloses substantial evidence—that is, evidence
which is reasonable, credible, and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.' [Citation.] 'The federal

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standard of review is to the same effect: Under principles of federal due process, review
for sufficiency of evidence entails not the determination whether the reviewing court
itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but,
instead, whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.' " (Watkins, supra, 55 Cal.4th at pp. 1019-1020.)
" 'The standard of review is the same in cases in which the prosecution relies
mainly on circumstantial evidence. [Citation.] " 'Although it is the duty of the jury to
acquit a defendant if it finds that circumstantial evidence is susceptible of two
interpretations, one of which suggests guilt and the other innocence [citations], it is the
jury, not the appellate court[,] which must be convinced of the defendant's guilt beyond a
reasonable doubt. " 'If the circumstances reasonably justify the trier of fact's findings, the
opinion of the reviewing court that the circumstances might also reasonably be reconciled
with a contrary finding does not warrant a reversal of the judgment.' " ' " ' " (Watkins,
supra, 55 Cal.4th at p. 1020, italics omitted.)
"Murder is the unlawful killing of a human being with malice aforethought.
[Citation.] Malice may be either express or implied. Express malice exists when there is
a deliberate intention unlawfully to take away the life of a fellow creature. [Citation.] It
is implied when no considerable provocation appears or when the circumstances
attending the killing show an abandoned and malignant heart." (People v. Boatman
(2013) 221 Cal.App.4th 1253, 1263.)

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In order for a killing with malice aforethought to be first rather than second degree
murder, the intent to kill must be formed on a preexisting reflection and must have been
the subject of actual deliberation or forethought. (People v. Anderson (1968) 70 Cal.2d
15, 26-27 (Anderson).) A verdict of first degree murder on a theory of willful, deliberate
and premeditated killing is proper only if the defendant killed as a result of careful
thought and weighing of considerations; as a deliberate judgment or plan, carried
on coolly and steadily, especially according to a preconceived design. (Ibid.)
" 'Deliberation' refers to careful weighing of considerations in forming a course of action;
'premeditation' means thought over in advance. [Citations.] 'The process of
premeditation and deliberation does not require any extended period of time. "The true
test is not the duration of time as much as it is the extent of the reflection. Thoughts may
follow each other with great rapidity and cold, calculated judgment may be arrived at
quickly." ' " (People v. Koontz (2002) 27 Cal.4th 1041, 1080.)
"Whether a defendant possessed the requisite intent to kill is, of course, a question
for the trier of fact. While reasonable minds may differ on the resolution of that issue,
our sole function is to determine if any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt." (People v. Lashley (1991) 1
Cal.App.4th 938, 946.)
" ' "Generally, there are three categories of evidence that are sufficient to sustain a
premeditated and deliberate murder: evidence of planning, motive, and method.
[Citations.] When evidence of all three categories is not present, 'we require either very
strong evidence of planning, or some evidence of motive in conjunction with planning or

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a deliberate manner of killing.' [Citation.] But these categories of evidence, borrowed
from [Anderson, supra,] 70 Cal.2d [at pp.] 26-27, 'are descriptive, not normative.'
[Citation.] They are simply an 'aid [for] reviewing courts in assessing whether the
evidence is supportive of an inference that the killing was the result of preexisting
reflection and weighing of considerations rather than mere unconsidered or rash
impulse.' " ' " (People v. Prince (2007) 40 Cal.4th 1179, 1253.) If the Anderson factors
are not present, a finding of premeditation and deliberation can still be upheld based on
substantial evidence from which rational jurors could have found that the killing was the
result of preexisting thought and the careful weighing of considerations. (People v.
Boatman, supra, 221 Cal.App.4th at p. 1270.)
Even if the evidence regarding some of the Anderson factors is weak, we note that
"[i]n reviewing sufficiency of evidence claims, each case of necessity must turn on its
own particular facts." (People v. Smith (2005) 37 Cal.4th 733, 745.) Further, "[e]vidence
of all three elements is not essential . . . to sustain a conviction." (People v. Edwards
(1991) 54 Cal.3d 787, 813.) Rather, "[t]hese three categories are merely a framework for
appellate review; they need not be present in some special combination or afforded
special weight, nor are they exhaustive." (People v. Booker (2011) 51 Cal.4th 141, 173.)
C. Analysis
We conclude the prosecution presented sufficient evidence that Lewis acted with
the intent necessary to sustain a first degree murder charge. Based on J.R.'s mother's
account of the start of Lewis's fatal attack, J.R. did not provoke the attack. Rather, the
jury could reasonably infer Lewis used the element of surprise and turned off the light in

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the room. J.R. told him to turn the light on and made a remark, "I have elbows,"
indicating she felt threatened. But Lewis proceeded, and J.R.'s mother heard a thud as
well as J.R.'s moan and protest that "it hurts." Undeterred, Lewis continued attacking
J.R. for some time longer, prompting J.R.'s mother to tell a 911 operator that someone
was "[l]iterally beating the life out of [J.R.]" A jury also may infer that Lewis
disconnected J.R.'s last phone call with her mother in order for him to proceed with his
attack without being interrupted, thus evincing that he premeditated her murder.
The approximately 16 blunt force injuries that Lewis inflicted to the vulnerable
parts of J.R.'s body, her face and neck, show that he had a premeditated intention to kill
her, as he did not stop until he had accomplished that goal. He broke her hyoid bone,
which the medical examiner testified was not easy to accomplish. The jury could infer
based on the autopsy that Lewis strangled her, and that he would have spent at least four
to six minutes choking her before she died. Lewis had ample time and opportunity to
stop the planned murder and change course but instead, according to the forensic
evidence, a struggle ensued. Lewis proceeded to break J.R.'s jaw in two places, and her
nose, tear both ears, and cause hemorrhages to her scalp and brain.
Considering the amount of time Lewis had spent with J.R. before the murder and
the fact that he had methamphetamine on his person when arrested, it is reasonable to
infer he knew J.R. was intoxicated and under the influence of drugs. The jury could
reasonably infer he took advantage of that, and her small size, when considering killing
her. At no point did Lewis seek medical attention for her or inform the police of her
injuries. Instead, Lewis evinced a consciousness of guilt by concealing evidence of his

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attack. Specifically, he selected a sufficiently large suitcase to accommodate J.R.'s body,
which he took to a bathroom on a different floor. He also disposed of sheets and clothes
in the garbage bin on that floor. We conclude the above evidence sufficed to show that
Lewis acted with the intent necessary to commit first degree murder.
The California Supreme Court reached a similar conclusion in People v. Raley
(1992) 2 Cal.4th 870, where the defendant stabbed the victims numerous times, then
drove them around, beat them, and dumped their bodies in a ravine, after which one
victim died. The court found sufficient evidence to support the jury's finding of
premeditation and deliberation, explaining, "Even if we were to agree that it could only
be concluded that the many stab wounds defendant inflicted on each woman were part of
an unreflective explosion of violence, his calculated decision to let them bleed for the
next 18 hours, to refuse medical attention, to beat them about the head and to dump them
on a winter night into an isolated ravine supports the conclusion that he premeditated the
death of [the murder victim]." (Id. at p. 888.) Here, a jury could reasonably conclude
that after Lewis inflicted at least 16 major impact blows on J.R, he left her to bleed and
die. That calculated decision supports a finding of premeditation.
In People v. Daya (1994) 29 Cal.App.4th 697, the court stated: "[I]n this case the
deficiency is not in the evidence of culpability but rather the deficiency of any plausible
explanation for the abundance of evidence pointing to the defendant's postmurder
consciousness of guilt." Likewise, here, as noted, there was overwhelming evidence of
Lewis's consciousness of guilt.

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II.
No Prejudicial Error in Admitting into Evidence Recordings of J.R.'s Mother's 911 Calls
Lewis contends the court prejudicially erred by admitting into evidence recordings
of J.R.'s mother's 911 calls. He concedes the statements in the 911 calls were nonhearsay
and spontaneous; however, he argues they were prejudicial under Evidence Code section
352, as he "did not deny being the perpetrator or deny liability for second degree murder
charge; the sole defense was that the prosecutor had failed to prove premeditation or
torture." He argues, "There was no evidence of intent to torture [J.R.] The prosecutor's
only argument for first degree murder was to convince the jury that the attack was so
brutal and so vicious that it equated to torture. Under these circumstances, evidence
tending to cause an emotional response of sympathy for the victim and her mother was
likely to cause the jury to give too much weight to the violence of the crime and to
convict [him] of first degree murder despite the weakness of the prosecutor's case."
Pointing out the prosecutor played the recordings during opening and closing arguments
and during J.R.'s mother's testimony, he concludes: "The tapes were used to cause a
visceral reaction based on the panic [J.R.'s mother] felt the evening of the murder and her
frustration at her inability to prevent the crime from occurring. By playing the tapes to
the jury specifically to highlight [the mother's] fear for an emotional reaction, the
prosecutor sought the undue prejudice defense counsel tried to avoid in moving to
exclude the tapes."

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A. Background
Before trial, the People moved in limine to admit into evidence four recordings of
J.R.'s mother's 911 calls "both for the nonhearsay purpose of circumstantial evidence
regarding the timing and circumstances of [J.R.'s] death, including the identity of her
killer, but also to show the victim's state of mind."
Lewis objected to J.R.'s mother's first 911 call, the one made to the operator in
Wisconsin, on grounds that it lacked probative value and unfairly prejudiced the defense
because the operator did not properly assist J.R.'s mother. Lewis did not object to the
third 911 call.
The court ruled the recordings were admissible: "So I think that would come in
because that qualifies as something that the declarant is hearing, right? It's action that's
happening, so she's hearing it. Her daughter's statement, it comes in as an exception to
the hearsay rule and that it is a contemporaneous statement. So I think both the victim's
statement and mom's statement comes in[.]" But the court agreed to redact some of the
911 calls.
B. Applicable Law
As Lewis concedes that J.R.'s mother's statements in the 911 calls qualified as
nonhearsay and spontaneous, the criteria for their admission under Evidence Code section

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1240 are met.2 Lewis argues that under Evidence Code section 352, he was prejudiced
by the admission of the 911 recordings. He specifically argues the calls conveyed the
mother's panic as she tried to obtain help for her daughter, and "[t]his panic was not
relevant to a determination of guilt or to a determination of the degree of the crime; but it
was likely to emotionally, and improperly, impact the jury's deliberations."
We reiterate what the concept of "undue prejudice" means in the context of
Evidence Code section 352. " 'Prejudice' as contemplated by [Evidence Code] section
352 is not so sweeping as to include any evidence the opponent finds inconvenient.
Evidence is not prejudicial, as that term is used in [an Evidence Code] section 352
context, merely because it undermines the opponent's position or shores up that of the
proponent. The ability to do so is what makes evidence relevant. The code speaks in
terms of undue prejudice. . . . ' "The 'prejudice' referred to in Evidence Code section 352
2 Evidence Code section 1240 provides: "Evidence of a statement is not made
inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or
explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made
spontaneously while the declarant was under the stress of excitement caused by such
perception." The admission of evidence under Evidence Code section 1240 does not
implicate an accused's federal constitutional rights to due process and confrontation of
witnesses. (People v. Merriman (2014) 60 Cal.4th 1, 67.) Thus, ordinarily the admission
of evidence not authorized by Evidence Code section 1240 is subject to review only for
state law error. (Id. at p. 70; People v. Partida (2005) 37 Cal.4th 428, 439.) "Whether an
out-of-court statement meets the statutory requirements for admission as a spontaneous
statement is generally a question of fact for the trial court, the determination of which
involves an exercise of the court's discretion. [Citation.] We will uphold the trial court's
determination of facts when they are supported by substantial evidence and review for
abuse of discretion its decision to admit evidence under the spontaneous statement
exception." (People v. Merriman, supra, at p. 65.)

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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.' "
[Citation.]' [¶] The prejudice that [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." [Citations.] "Rather, the statute uses the word in its etymological
sense of 'prejudging' a person or cause on the basis of extraneous factors. [Citation.]"
[Citation.]' . . . In other words, evidence should be excluded as unduly prejudicial when
it is of such nature as to inflame the emotions of the jury, motivating them to use the
information[ ] not to logically evaluate the point upon which it is relevant, but to reward
or punish one side because of the jurors' emotional reaction. In such a circumstance, the
evidence is unduly prejudicial because of the substantial likelihood the jury will use it for
an illegitimate purpose." (Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1008-1009.) We
review the admissibility of evidence under Evidence Code section 352 for abuse of
discretion. (People v. Karis (1988) 46 Cal.3d 612, 638.)
We conclude that under Evidence Code section 352, the probative value of J.R.'s
mother's 911 recordings outweighed any prejudice. The recordings allowed the jury to
understand the circumstances surrounding the start of the fatal attack based on what the
mother heard over the phone while speaking with J.R. (Accord, People v. Boyce (2014)
59 Cal.4th 672, 687-688 [" 'As a rule, the prosecution in a criminal case involving
charges of murder or other violent crimes is entitled to present evidence of the
circumstances attending them even if it is grim' [citation], and even if it 'duplicate[s]

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testimony, depict[s] uncontested facts, or trigger[s] an offer to stipulate' "].) In People v.
Roybal (1998) 19 Cal.4th 481, the California Supreme Court upheld admission of
spontaneous statements of the victim's husband to a 911 dispatcher and to an officer
describing the crime scene and his wife's body. In the 911 call he reported that his wife
was covered in blood and not breathing, and that it looked as if she had been murdered.
During an interview, he described finding his dead wife lying in the hallway, and
explained how he entered the house. (Id. at p. 515.) The court observed that the tapes
were "relevant to show [the husband's] initial reaction to the discovery of his wife's body
and dispel any suggestion that he was involved in the murder; they also described the
scene of the crime." (Id. at p. 519.)
Even if we agreed with Lewis that some portions of the first 911 recording should
have been redacted to avoid distracting the jury regarding the Wisconsin dispatcher's
inability to help the mother, any error was harmless in light of the evidence of
premeditation. Specifically, the nature and length of Lewis's attack on J.R. as set forth
above, the fact Lewis turned off the lights, and the likelihood that he disconnected the
phone call all point overwhelmingly to the inference Lewis deliberated before murdering
J.R.
As for whether the prosecutor's playing of J.R.'s mother's 911 call three times
became cumulative and prejudicial, as Lewis concedes, trial counsel did not object to the
prosecutor playing the recordings during closing arguments. We therefore deem the
claim forfeited. In any event, as the evidence was properly admitted, the prosecutor did
not err by emphasizing certain parts of it for the jury. Further, the jury was instructed

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with CALCRIM No. 200: "You must decide what the facts are. It is up to all of you, and
you alone, to decide what happened, based only on the evidence that has been presented
to you in this trial. [¶] Do not let bias, sympathy, prejudice, or public opinion influence
your decision." We presume the jury followed this instruction. (See People v. Sanchez
(2001) 26 Cal.4th 834, 852 [jurors are presumed to be able to understand and correlate
instructions and are presumed to follow the court's instructions].)
III.
No Ineffective Assistance of Counsel
Lewis contends he received ineffective assistance of counsel, who failed to object
to the admission of 911 recordings of J.R.'s mother, her boyfriend and the motel
housecleaner who found J.R.'s body on grounds they were irrelevant and inadmissible as
prior consistent statements under Evidence Code section 791.
Evidence Code section 791 provides: "Evidence of a statement previously made
by a witness that is consistent with his testimony at the hearing is inadmissible to support
his credibility unless it is offered after: (a) Evidence of a statement made by him that is
inconsistent with any part of his testimony at the hearing has been admitted for the
purpose of attacking his credibility, and the statement was made before the alleged
inconsistent statement; or (b) An express or implied charge has been made that his
testimony at the hearing is recently fabricated or is influenced by bias or other improper
motive, and the statement was made before the bias, motive for fabrication, or other
improper motive is alleged to have arisen."

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All defendants in criminal proceedings have a constitutional right to effective
assistance of counsel. (Gideon v. Wainwright (1963) 372 U.S. 335.) To establish
ineffective assistance of counsel, a defendant must demonstrate that counsel's
performance was deficient such that it "fell below an objective standard of
reasonableness" and that the deficient performance resulted in prejudice. (Strickland v.
Washington (1984) 466 U.S. 668, 687-688, 691-692.) To show prejudice, a defendant
must establish by a reasonable probability that if counsel's performance was not deficient,
he would have received a more favorable result. (Id. at p. 694.) In considering a claim of
ineffective assistance of counsel, it is not necessary to determine " 'whether counsel's
performance was deficient before examining the prejudice suffered by the defendant as a
result of the alleged deficiencies . . . . If it is easier to dispose of an ineffectiveness claim
on the ground of lack of sufficient prejudice, which we expect will often be so, that
course should be followed.' " (In re Fields (1990) 51 Cal.3d 1063, 1079, quoting
Strickland, at p. 697.)
Assuming without deciding that Lewis's trial counsel erred by failing to object
under Evidence Code section 791, any error was harmless. (People v. Watson (1956) 46
Cal.2d 818, 836.) Lewis could not show prejudice because the witnesses' calls were
merely cumulative. (See People v. Arias (1996) 13 Cal.4th 92, 153 ["it is not reasonably
probable that such erroneous admission affected the verdict"].) It is not reasonably
probable the jury would have reached a result more favorable to Lewis if the 911
recordings had not been admitted. This case did not turn on the 911 calls or the
recordings of them. Rather, it turned on the extensive blunt trauma Lewis inflicted on

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J.R., and Lewis's postmurder conduct of concealing the evidence of his attacks on J.R.,
thus evincing consciousness of guilt. (Accord, People v. Kopatz (2015) 61 Cal.4th 62,
87.)
IV.
No Prosecutorial Misconduct
Lewis contends his trial counsel improperly failed to object to what amounted to
prosecutorial misconduct when the prosecutor "used the [911] calls to improperly inflame
the emotions of the jury to increase the likelihood of a first degree murder conviction" by
playing the recordings during the People's opening and closing arguments, in addition to
during the witnesses' testimony.
A prosecutor's misconduct violates the federal Constitution and requires reversal
when it infects the trial with such unfairness as to deny due process. (People v. Tully
(2012) 54 Cal.4th 952, 1009.) Under state law, a prosecutor's conduct that does not
render a criminal trial fundamentally unfair is still error if it involves the use of deceptive
or reprehensible methods in attempting to persuade the trier of fact. (Id. at pp. 1009-
1010.) "Although prosecutors have wide latitude to draw inferences from the evidence
presented at trial, mischaracterizing the evidence is misconduct. [Citations.] A
prosecutor's 'vigorous' presentation of facts favorable to his or her side 'does not excuse
either deliberate or mistaken misstatements of fact.' " (People v. Hill (1998) 17 Cal.4th
800, 823.) Generally, a claim of prosecutorial misconduct is preserved for appeal only if
the defense makes a timely objection and requests an admonition to cure any harm.

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(People v. Centeno (2014) 60 Cal.4th 659, 674 [claim is not misconduct, it is failure to
object to 911 calls].)
Lewis's focus on the prosecutor's closing arguments is premised on his assertion
that the 911 recordings were erroneously admitted into evidence. We have already
rejected his challenges to the admission of the 911 recordings. Because Lewis has not
established any error in the admission of the 911 recordings, we conclude the prosecutor
did not engage in prejudicial misconduct by referring to them during closing arguments.
The prosecutor's argument referred the jury to the recordings in evidence along with
J.R.'s mother's testimony. This was not misconduct.
Moreover, a prosecutor may comment on the evidence admitted during trial and
suggest inferences that may be drawn from the evidence. (People v. Medina (1995) 11
Cal.4th 694, 757.) In response to defense counsel's argument that the evidence was
insufficient, the prosecutor is entitled to emphasize admitted evidence and testimony that
tended to show Lewis's guilt. Consequently, Lewis did not receive ineffective assistance
of counsel when his trial attorney did not object to the prosecutor's use of the recordings
during closing arguments.

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DISPOSITION
The judgment is affirmed.
O'ROURKE, J.
WE CONCUR:
HUFFMAN, Acting P. J.
DATO, J.

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