People v. Naposki CA4/3 ( 2014 )


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  • Filed 9/11/14 P. v. Naposki CA4/3
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS
    California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
    publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
    or ordered published for purposes of rule 8.1115.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    FOURTH APPELLATE DISTRICT
    DIVISION THREE
    THE PEOPLE,
    Plaintiff and Respondent,                                         G047282
    v.                                                  (Super. Ct. No. 09HF0844)
    ERIC ANDREW NAPOSKI,                                                   OPINION
    Defendant and Appellant.
    Appeal from a judgment of the Superior Court of Orange County, William
    R. Froeberg, Judge. Affirmed.
    Mark David Greenberg, under appointment by the Court of Appeal, for
    Defendant and Appellant.
    Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney
    General, Barry Carlton and Seth M. Friedman, Deputy Attorneys General, for Plaintiff
    and Respondent.
    *               *               *
    Defendant Eric Andrew Naposki and Nanette Ann Packard were charged
    with first degree murder, with an allegation they committed the crime for financial gain.
    The information also alleged defendant personally discharged a firearm during the
    commission of the crime. In a separate trial, Packard was found guilty as charged and the
    court sentenced her to prison for life without the possibility of parole. We affirmed her
    conviction. (People v. Packard (Jan. 30, 2014, G046934) [nonpub. opn.].) Another jury
    found defendant guilty of first degree murder and returned true findings on both the
    financial gain and discharge of a firearm allegations. The trial court sentenced him to
    prison for life without the possibility of parole, plus 4 years. On appeal, defendant
    contends the court erred by: (1) Denying his motion to dismiss the prosecution for undue
    delay in charging him with the crime; (2) refusing to discharge a juror who commented
    on his appearance during trial; (3) excluding a police officer’s description of his reaction
    when he was questioned after the murder; and (4) giving an ambiguous instruction on the
    financial gain circumstance. Finding no prejudicial error, we affirm the judgment.
    FACTS
    Shortly after 9:00 p.m. on December 15, 1994, William McLaughlin, a
    divorced multimillionaire in his mid-50’s, was shot to death inside his home located in a
    gated Newport Beach community. McLaughlin was struck with six 9 millimeter rounds,
    likely fired from a 92F series Beretta handgun. Kevin McLaughlin, the victim’s adult
    son, who lived with him since suffering permanent injuries in an accident several years
    earlier, reported the shooting in a 9-1-1 call at 9:11 p.m.
    At the time of the murder Packard, then in her 20’s, also lived at the
    McLaughlin residence. McLaughlin had appointed Packard as the trustee of a trust, made
    her the beneficiary of a $1 million life insurance policy, and in his will he left her
    $150,000, a car, and the use of a beach house for a year after his death.
    2
    The prosecution’s theory was that Packard coaxed defendant to kill
    McLaughlin for her financial benefit. Its case against defendant was based on
    circumstantial evidence.
    In early 1994, Packard surreptitiously began stealing money from
    McLaughlin by forging his name on checks. About the same time, she became
    romantically involved with defendant, a former professional football player who was now
    in the security business.
    When the police arrived at the McLaughlin home following the 9-1-1 call,
    they found a key in the residence’s front door and a second key on the mat outside the
    door. The key on the mat fit the lock of a nearby pedestrian gate. During the initial
    investigation, the police learned Packard had a key to the house, but not to the gate.
    David Vandaveer, the owner of a Tustin hardware store testified that a month or two
    before the murder he made some keys for defendant. Vandaveer also said he likely made
    the key found in the front door. At the time, he used “a nice machine that would give a
    nice cut” and described the door key as having “a pretty decent cut.”
    At that time of the murder, defendant worked at a nightclub located only
    450 feet from the pedestrian gate adjacent to the McLaughlin residence. An investigator
    testified it took him 2 minutes and 32 seconds to casually walk the distance between the
    gate and the nightclub.
    When Packard arrived home the night of the murder, she told the police she
    had attended her son’s soccer game in Walnut and then went shopping. She showed the
    police a sales receipt for a purchase made at a store in a nearby mall around 9:30 p.m.
    The next day, Packard telephoned Ross Johnston, her ex-husband, informing him the
    police might contact him to verify her “alibi” that she attended their son’s soccer game.
    Claiming “he’s not involved,” Packard urged Johnston not to mention that defendant
    attended the soccer game with her. Johnston did inform the police that defendant was at
    3
    the game. But the police did not learn that Packard asked Johnston not to mention
    defendant until a cold case investigator re-interviewed Johnston in 2010.
    Shortly after the murder, the police began surveillance of both Packard and
    defendant. Discovering defendant had an outstanding traffic warrant, the police stopped
    his vehicle and arrested him. Defendant was carrying a notebook that contained the
    license plate number for McLaughlin’s car.
    The police also conducted a recorded interview of defendant. He
    acknowledged attending the soccer game with Packard, but claimed she dropped him off
    at his Tustin apartment where he changed clothes and drove to work, arriving at the
    nightclub between 9:30 and 9:45 p.m. Defendant admitted buying a .380 caliber
    handgun, but said he gave it to his father. Then, without prompting, defendant mentioned
    recently acquiring a nine millimeter Beretta 92F handgun. Defendant claimed he loaned
    this gun to a man named Jimenez for a security job and Jimenez lost the weapon.
    The police contacted Jimenez. According to Jimenez, defendant provided
    him with a .380 caliber handgun for the job. When defendant failed to pay him, Jimenez
    kept the weapon and later sold it to a third person. Jimenez recovered the gun and gave it
    to the police. In a second interview, the police confronted defendant with the discrepancy
    over the type of gun he loaned to Jimenez. Defendant admitted he “misled” the police
    because he “felt scared . . . .” He now claimed the nine millimeter weapon was taken
    from his vehicle but he “ha[d] no idea” when or what happened to it.
    During the second interview, defendant also claimed that while driving to
    work on the night of the murder, he received a page from Mike Tuomisto, the nightclub’s
    alcohol manager. He stopped at a Tustin restaurant and called Tuomisto from a pay
    telephone using a calling card. The defense was allowed to present evidence the phone
    call was purportedly made at 8:52 p.m.
    The parties presented conflicting evidence on the length of time it would
    take to drive to the McLaughlin residence from (a) Walnut, (b) defendant’s Tustin
    4
    apartment, and (c) the Tustin restaurant. The prosecution’s evidence reflected that under
    any of these individual scenarios, there was enough time to arrive and commit the murder
    before 9:11 p.m.
    The prosecution presented other circumstantial evidence supporting its
    theory of the case. In mid-1994, Packard and defendant met with an agent selling homes
    for a residential developer. The prices of homes in the development ranged between
    $800,000 and $2 million. The agent testified Packard and defendant gave her the
    impression they were married, telling her they had children. While expressing interest in
    purchasing a home, Packard and defendant said they would not be able to do so until
    early 1995.
    Robert Cottrill worked as a personal trainer at an athletic club frequented
    by Packard and defendant in 1994. He testified the two were physically affectionate with
    each other at the club, holding hands and kissing. In the latter part of the year Cottrill and
    Packard discussed the possibility of her investing in a software program Cottrill was
    promoting. Packard said she wanted to put $100,000 into the venture, but needed time to
    obtain the funds from an off-shore account. After McLaughlin’s murder, Cottrill and his
    fiancée made an anonymous telephone call to the police department providing the
    foregoing information. It was not until 2007 that a cold case investigator was able to
    identify Cottrill and obtain his cooperation in the case.
    Suzanne Cogar lived in the same Tustin apartment complex as defendant in
    the latter part of 1994. She often saw Packard with defendant at the complex. During a
    November conversation, defendant complained to Cogar that Packard was living with a
    man who was making unwanted sexual advances towards her, coming into her bedroom
    and trying to sleep with her. Defendant said the man owned a private plane and he was
    going to blow it up.
    Cogar testified she had a second conversation with defendant in January
    1995. He asked if she had heard the man Packard was living with was shot to death.
    5
    Cogar responded, “‘I don’t even want to know if you did it or not.’” Defendant said,
    “‘Maybe I did and maybe I didn’t, and maybe I had someone do it.’” Although the type
    of weapon used to kill McLaughlin had not yet been publicly disclosed, defendant told
    Cogar he had “‘the same kind of gun . . ., but they won’t find that gun on me because I
    loaned it to a buddy . . . .’” Defendant also told Cogar that a key left in the door to the
    McLaughlin residence had been made at a Tustin store near the apartment complex. He
    urged Cogar not to speak with the police.
    In early 1995, Cogar telephoned the police department, but when asked to
    call back and give a statement, she failed to do so. Three years later, she again called the
    police. This time she gave a statement over the telephone, but identified herself only by
    her first name and said she wanted to remain anonymous. It was not until she was
    contacted by the cold case investigator in 2008 that Cogar agreed to cooperate with the
    investigation. During the latter contact the police also first learned defendant told Cogar
    about the key found in the front door of the McLaughlin residence.
    DISCUSSION
    1. Denial of the Motion to Dismiss
    The prosecution formally charged Packard and defendant with
    McLaughlin’s murder in May 2009. Defendant’s first argument is that the delay in filing
    this case resulted in a denial of right to due process.
    a. Background
    Both defendant and Packard moved to dismiss the prosecution because of
    the delay in charging them. Defendant argued the police dropped the ball during the
    initial murder investigation by failing to obtain copies of the records of his 8:52 p.m.
    telephone call in response to Tuomisto’s page, and not interviewing witnesses or
    6
    obtaining documentation about when he and Packard left Walnut or when he arrived at
    the nightclub that evening. He claimed if this “evidence were available,” it would have
    been “impossible for [him] to have arrived at McLaughlin’s residence prior to 9:08 p.m.”
    and thus, “the passage of time, the loss of records, and the failure of law enforcement to
    interview percipient witnesses or obtain records prevent[ed him] from presenting an
    independently corroborated alibi defense at trial.” In supplemental briefings defendant
    named four other possible suspects and argued the delay compromised his ability to also
    establish a third party culpability defense. The prosecution opposed defendant’s motion,
    arguing he failed to make the requisite showing of prejudice from the delay and that
    significant additional evidence discovered through its continuing investigation of the
    murder justified the delay.
    The trial court issued a six-page order denying both motions without
    prejudice to refiling them in the event of a conviction. It noted the case against each
    defendant “was entirely circumstantial.” On the issue of prejudice, the court found that,
    except for the documentation of defendant’s phone call to Tuomisto, the assertions of lost
    or missing evidence “are at best speculative.” As for the missing pay phone record, the
    court concluded its value was limited to “corroborating” defendant’s claim he made the
    call. Further, its “loss . . . [wa]s as much, if not more attributable to [the defense] as it
    [wa]s the prosecution” because a defense investigator claimed he had a copy of a credit
    card receipt for the call “in early 1995” and thus “[defendant] w[as] in better position
    than the Newport Beach Police Department to secure” it. In addition, while there was
    evidence Tuomisto “no longer has any memory of the page,” the court noted that when
    located in 2009, he gave a “statement” that “casts doubt on . . . [defendant’s] alibi.”
    The court also concluded the 15-year lag in filing the murder charge
    resulted from “only investigative delay.” There was no showing the prosecution either
    purposefully delayed filing the case or did so for a tactical purpose. In support of its
    ruling, the court noted it was not until after the cold case investigator was assigned to the
    7
    case that the prosecution discovered the identity of Cottrill and Cogar and first learned of
    Packard’s effort to suppress knowledge of her association with defendant and his
    knowledge of where the front door key had been made.
    During defendant’s trial, the court allowed the defense to introduce
    evidence supporting defendant’s alibi theory even though he did not take the stand and
    testify. Julian Bailey, an attorney defendant retained shortly after McLaughlin’s murder,
    and James Box, Bailey’s investigator, testified they saw the bill for defendant’s
    December 15, 1994 pay phone call.
    Box was also allowed to testify that in early 1995 he interviewed Tuomisto.
    According to Box, Tuomisto said he called defendant shortly before 9:00 p.m. on
    December 15 to recommend he leave early for work because there was heavy traffic due
    to the annual Newport Bay boat parade. Tuomisto also told Box that he saw defendant at
    the nightclub around 9:30 p.m.
    Although Kevin died in 1999, the court allowed the defense to introduce a
    statement he made to the police the night of the murder. According to an investigator,
    Kevin initially told the police that it took him three minutes to call 9-1-1 after hearing the
    gunshots.
    In addition, Box testified to statements he obtained from Rosemary Luxton,
    one of McLaughlin’s neighbors at the time of the murder. By the time of trial, Luxton
    had also died. Luxton told Box that after hearing unusual popping sounds shortly after
    9:00 p.m., she went out on her patio and looked in the direction of the walking path, but
    did not see any activity. Luxton claimed she was able to view that area because of the
    nearby holiday lights and the fact that it was a clear night with a full moon.
    Finally Vandaveer, the locksmith who identified the key found in the
    McLaughlin front door as one he had made, admitted on cross-examination that he sold
    the key making machine he used to make the keys for defendant and lost track of it.
    8
    After trial, defendant renewed his motion to dismiss for precharging delay.
    The court denied it, declaring, “[n]othing at trial convince[d]” it “that the defendant was
    denied due process because of the delay in prosecution.”
    b. Analysis
    The principles governing a claim of precharging delay are well settled.
    “The due process clauses of the Fifth and Fourteenth Amendments to the United States
    Constitution and article I, section 15 of the California Constitution protect a defendant
    from the prejudicial effects of lengthy, unjustified delay between the commission of a
    crime and the defendant’s arrest and charging.” (People v. Cowan (2010) 
    50 Cal.4th 401
    ,
    430; see United States v. Lovasco (1977) 
    431 U.S. 783
    , 789 [
    97 S.Ct. 2044
    , 
    52 L.Ed.2d 752
    ].)
    To justify dismissal for precharging delay, a defendant must show
    prejudice, i.e., the “‘“loss of material witnesses due to lapse of time [citation] or loss of
    evidence because of fading memory attributable to the delay.”’” (People v. Cowan,
    supra, 50 Cal.4th at p. 430.) “‘Prejudice . . . from precharging delay is not presumed.’”
    (People v. Jones (2013) 
    57 Cal.4th 899
    , 921.)
    If a defendant satisfies this burden, the prosecution must show justification
    for the delay. “‘[A]lthough “under California law, negligent, as well as purposeful, delay
    in bringing charges may, when accompanied by a showing of prejudice, violate due
    process,”’” where “‘“the delay was merely negligent, a greater showing of prejudice [is]
    required to establish a due process violation.” . . . But if the defendant fails to meet his or
    her burden of showing prejudice, there is no need to determine whether the delay was
    justified.’” (People v. Jones, supra, 57 Cal.4th at p. 921.)
    “We review for abuse of discretion a trial court’s ruling on a motion to
    dismiss for prejudicial prearrest delay [citation], and defer to any underlying factual
    findings if substantial evidence supports them [citation].” (People v. Cowan, supra, 50
    9
    Cal.4th at p. 431.) “In evaluating the correctness of a trial court’s denial of a defendant’s
    speedy trial motion, we consider all evidence that was before the court at the time the
    trial court ruled on the motion.” (People v. Jones, supra, 57 Cal.4th at p. 922.)
    There was no abuse of discretion here. As noted above, the trial court
    eliminated much of the alleged prejudice claimed by defendant when it allowed the
    defense to introduce otherwise inadmissible evidence; testimony from Bailey and Box on
    their belief they saw the phone bill for defendant’s purported pay phone call, the
    statement Toumisto gave the defense investigator shortly after McLaughlin’s murder,
    Kevin’s initial estimate of the time it took for him to make the 9-1-1 call, and Luxton’s
    statement she did not see any activity along the walking path just after hearing gunshots
    on the night McLaughlin was murdered.
    Defendant’s argument focuses on the fact the prosecution was allowed to
    blunt the force of the foregoing evidence through cross-examination and impeachment of
    the witnesses, and by even employing Luxton’s statement to introduce damaging rebuttal
    testimony. For example, the prosecutor cross-examined Bailey and Box at length on
    whether they actually saw or only thought they saw the phone bill listing a call on
    December 15, 1994. But testing the knowledge, recollection, and credibility of a witness
    is one of the essential purposes of cross-examination. (Evid. Code, § 780, subds., (c), (d)
    & (i); People v. Guthreau (1980) 
    102 Cal.App.3d 436
    , 445.)
    In response to Tuomisto’s statement, the prosecution presented evidence
    the boat parade did not begin until two days after McLaughlin’s murder and thus, if
    Tuomisto did page defendant, it was on a later date. Also the parties stipulated that if
    Tuomisto was called as a witness he would testify he currently has no recollection of ever
    calling or speaking with defendant and, due to the differences in their responsibilities at
    the nightclub, cannot think of any reason why he would have paged defendant. As for the
    delay in Kevin’s 9-1-1 call after hearing the gunshots, the prosecution introduced the
    testimony of his sisters, who later timed their brother walking from his bedroom to the
    10
    kitchen where the murder occurred. They testified he reached the kitchen in 52 seconds.
    Although defendant suggests Kevin’s disabilities may have made it difficult for him to
    make a telephone call, one sister testified her brother “called people regularly and had no
    problem dialing the phone.” And as for the statements Box obtained from Luxton,
    defendant complains the prosecution used her description of the sequence of shots to
    introduce rebuttal evidence that defendant had received training on the double-tap
    method of shooting a firearm. But all of this was proper rebuttal evidence. (People v.
    Clark (2011) 
    52 Cal.4th 856
    , 936 [“Rebuttal evidence is relevant and . . . admissible if it
    ‘tend[s] to disprove a fact of consequence on which the defendant has introduced
    evidence’”].) Further none of defendant’s complaints about the foregoing evidence is
    relevant to whether he suffered prejudice from the 15-year delay in charging him with
    McLaughlin’s murder.
    Defendant also complains about how the differences in traffic patterns
    between 1994 and the present might have affected the police investigators’ time trials,
    and Vandaveer’s sale of the key making machine. This argument amounts to only
    speculation which is not a basis for showing prejudice. (Shleffar v. Superior Court
    (1986) 
    178 Cal.App.3d 937
    , 947.)
    Further, the prosecution presented evidence explaining the justification for
    the delay in filing charges against Packard and defendant; the recent discovery of the
    identities of Cottrill and Cogar, defendant’s statement about the key left in the front door,
    and Packard’s attempt to suppress the fact that defendant was with her on the night of the
    murder. “A court may not find negligence by second-guessing how the state allocates its
    resources or how law enforcement agencies could have investigated a given case. ‘[T]he
    necessity of allocating prosecutorial resources may cause delays . . . . Thus, the difficulty
    in allocating scarce prosecutorial resources (as opposed to clearly intentional or negligent
    conduct) [is] a valid justification for delay . . . .’ [Citation.] It is not enough for a
    defendant to argue that if the prosecutorial agencies had made his or her case a higher
    11
    priority or had done things a bit differently they would have solved the case sooner.”
    (People v. Nelson (2008) 
    43 Cal.4th 1242
    , 1256-1257.)
    Defendant’s reliance on People v. Mirenda (2009) 
    174 Cal.App.4th 1313
    and People v. Boysen (2007) 
    165 Cal.App.4th 761
     is unavailing. Each case involved the
    affirmance of a pretrial dismissal for precharging delay where the trial court found the
    defendant suffered prejudice and the prosecution failed to show adequate justification for
    not filing the case sooner. Here, the trial court applied the same balancing test as that
    used in Mirenda and Boysen, but found the evidence failed to establish the 15-year delay
    in this case resulted in a violation of defendant’s right to due process. Based on the
    record we conclude the court did not abuse its discretion in so ruling.
    2. Refusal to Discharge Juror
    Defendant argues the trial court erred by not discharging a juror because of
    her comment on his courtroom demeanor, claiming it likely influenced her deliberation
    on his guilt.
    a. Background
    During trial, the court received information from Juror No. 6 that he
    overheard Juror No. 1 tell an alternate juror that defendant “creeps her out.” In counsel’s
    presence, the court questioned all three jurors about the incident. Juror No. 6 repeated
    what he had heard. The alternate juror denied hearing Juror No. 1’s statement. However,
    Juror No. 1 acknowledged she “said, ‘I can’t see [defendant] very clearly and maybe
    that’s good because sometimes he looks creepy[,]’” and that she “was glad that he smiled
    occasionally, it brought him back to normal.” Juror No. 1 explained, “I think maybe just
    because he looked so serious. It is a serious thing that he’s going through. Like I said, I
    felt more comfortable when he smiled . . . .” Juror No. 1 also acknowledged “I shouldn’t
    12
    have said that,” and denied she was biased against defendant or had made up her mind
    about the case.
    The court denied the defense’s request to have Juror No. 1 discharged.
    “One thing the record doesn’t reflect is her demeanor. She was very apologetic. I got the
    sense from her that she was genuine in her responses, especially her comments that
    ‘seeing him smile helped a lot. He seemed to be so serious.’” After trial, the defense
    renewed the objection in a new trial motion, but the court again denied relief, finding
    Juror No. 1 “was competent to sit” on the case, noting its belief her comment only “meant
    that [defendant] was too serious and [he] should smile more.”
    b. Analysis
    Penal Code section 1089 authorizes a court to discharge a sitting juror “[i]f
    at any time, whether before or after the final submission of the case . . . , a juror . . . upon
    other good cause shown . . . is found to be unable to perform his or her duty . . . .” Juror
    No. 1’s comment on defendant’s looks was inappropriate. She had been told not to
    discuss the case and her comment on his appearance could be viewed as an indication she
    was biased. Further, “‘[i]t is misconduct for a juror to consider material [citation]
    extraneous to the record.’” (People v. Williams (2006) 
    40 Cal.4th 287
    , 333; see People v.
    Harris (2013) 
    57 Cal.4th 804
    , 856.) And, in a trial on the issue of guilt, “a defendant’s
    nontestimonial conduct in the courtroom does not fall within the definition of ‘relevant
    evidence’ as that which ‘tends logically, naturally, [or] by reasonable inference to prove
    or disprove a material issue’ at trial.” (People v. Garcia (1984) 
    160 Cal.App.3d 82
    , 91,
    fn. omitted.)
    But Juror No. 1 readily admitted what she had said and acknowledged it
    was wrong. She insisted she had not yet formed an opinion on defendant’s guilt. And,
    immediately after questioning the three jurors about the incident, the court addressed the
    entire panel and repeated the admonition to not “have any discussions about the case, any
    13
    aspect of it.” We presume the jurors follow this instruction. (People v. Homick (2012)
    
    55 Cal.4th 816
    , 867; People v. Yeoman (2003) 
    31 Cal.4th 93
    , 138-139.)
    Also, “‘[b]efore an appellate court will find error in failing to excuse a
    seated juror, the juror’s inability to perform a juror’s functions must be shown by the
    record to be a “demonstrable reality.” The court will not presume bias, and will uphold
    the trial court’s exercise of discretion on whether a seated juror should be discharged
    for good cause . . . if supported by substantial evidence. [Citation.]’” (People v.
    Jablonski (2006) 
    37 Cal.4th 774
    , 807.) This “test ‘requires a showing that the court
    as trier of fact did rely on evidence that, in light of the entire record, supports its
    conclusion . . . .’ [Citation.] To determine whether the trial court’s conclusion is
    ‘manifestly supported by evidence on which the court actually relied,’ we consider not
    just the evidence itself, but also the record of reasons the court provided. [Citation.] In
    doing so, we will not reweigh the evidence.” (People v. Wilson (2008) 
    43 Cal.4th 1
    , 26.)
    This case involves a single statement by a juror, apparently heard by only
    one other juror, commenting on how defendant appeared when he did not smile. Juror
    No. 1 readily acknowledged her comment was inappropriate, and stated she had not made
    up her mind on defendant’s guilt and was not biased against him.
    Defendant argues the record does not support the trial judge’s finding Juror
    No. 1 was apologetic, citing her request for an adjustment of the seating to obtain a better
    view of defendant. Under the applicable standard of review, we do not reweigh the
    evidence on this issue. (People v. Williams (2013) 
    58 Cal.4th 197
    , 292.) In addition, his
    interpretation of Juror No. 1’s comments defies common sense. If defendant’s
    appearance “creeped [her] out,” we can discern no reason why Juror No. 1 would ask that
    counsel be reseated so she could better view defendant.
    Defendant also claims the trial court never told the jury that his courtroom
    demeanor could not be considered by them. This assertion is incorrect. When trial
    began, the court explained to the jury the forms of evidence included testimony,
    14
    documentary and physical evidence, and stipulations. Again, after the evidentiary phase,
    the court instructed the jury to “decide what the facts are,” “us[ing] only the evidence that
    was presented in this courtroom,” i.e., “sworn testimony of witnesses, the exhibits
    admitted into evidence, and anything else I told you to consider as evidence.”
    Finally, defendant argues the failure to discharge Juror No. 1 violated his
    federal constitutional right to a fair and impartial jury. But Penal Code “section 1089
    ‘does not offend constitutional proscriptions[,]’” and “‘our conclusion that the trial court
    did not violate that statute necessarily disposes of [defendant’s] constitutional claim[].’”
    (People v. Williams, supra, 58 Cal.4th at p. 293.)
    We conclude the trial court properly exercised its discretion in denying the
    request to remove Juror No. 1.
    3. Exclusion of Evidence
    During cross-examination of one of the officers who questioned
    defendant in January 1995, defense counsel asked “is it fair to say that [defendant]
    appear[ed] surprised by the revelations that you’re all telling him about [Packard]
    and . . . McLaughlin’s relationship.” The prosecutor objected on the ground of
    speculation, but the court sustained the objection finding the question “overbroad.”
    Defense counsel then asked, “in your observations of [defendant] when you were talking,
    did he appear to be surprised,” but the court issued the same ruling. On a third try,
    defense counsel asked if defendant “appeared to be learning something for the first time.”
    Again, the court sustained an objection for the same reason.
    Defendant claims the trial court’s evidentiary rulings were error because the
    questions sought a proper lay opinion on whether he “appeared surprised at the revelation
    of Packard’s romantic relationship with McLaughlin.” But as the Attorney General
    notes, defense counsel’s questions failed to clarify that he was seeking defendant’s
    15
    response to the officers’ comments concerning the sexual nature of Packard’s relationship
    with McLaughlin.
    Also, as the Attorney General argues the testimony excluded by the court’s
    rulings was cumulative at best. We agree. The jury heard a tape recording of the January
    1995 interview and, even on a cold appellate record, it is clear defendant was surprised
    by what the officers were telling him.
    For example, when the officers questioned defendant about his relationship
    with Packard, he responded, “I don’t understand why my relationship with [her] would be
    scrutinized . . . . See this is where I’m baffled. [¶] . . . [¶] This is where you need maybe
    to fill me in.” The officers told defendant Packard and McLaughlin “didn’t have a
    platonic relationship,” and he replied, “And you know this for a fact?” One officer then
    told him “they had a sexual relationship,” defendant asked, “You sure?” and “Absolutely
    positive?” He admitted Packard “has never ever” told him about her sexual relationship
    with McLaughlin and the officers were the first “to tell me that there was a relationship
    between [Packard] and [McLaughlin].” Defendant also acknowledged “if . . . what
    you’re telling me is true then she is pretty, pretty good at . . . [¶] . . . [¶] . . . hiding
    something.”
    Even assuming the court erred in sustaining the prosecution’s objections,
    the error was clearly harmless. “Absent fundamental unfairness, state law error in
    admitting evidence is subject to the traditional . . . test” of “whether it is reasonably
    probable the verdict would have been more favorable to the defendant absent the error.”
    (People v. Partida (2005) 
    37 Cal.4th 428
    , 439.) Defendant argues the error is of federal
    constitutional dimension because it denied him the opportunity to present a defense. Not
    so. The prospect that Packard had misled him about her relationship with McLaughlin
    was supported by Cogar’s testimony that defendant wanted to blow up McLaughlin’s
    plane because he was making unwanted sexual advances on Packard. Further, as just
    noted, the jury heard defendant’s own voice expressing surprise at what he was told about
    16
    Packard’s relationship with McLaughlin. Thus, it was not reasonably probable the
    admission of the officer’s opinion testimony on this subject would lead to a more
    favorable verdict, nor did the exclusion of this evidence preclude defendant from
    presenting a defense.
    4. The Financial Gain Jury Instruction
    The court read to the jury the following instruction on the financial gain
    special circumstance allegation. “The defendant is charged with the special circumstance
    of murder for financial gain . . . . [¶] To prove that this special circumstance is true, the
    People must prove that: [¶] One, the defendant intended to kill. [¶] And, two, the killing
    was carried out for financial gain. [¶] Either the defendant or a third party may be the
    direct recipient of the financial gain. Financial gain can be either the primary or
    secondary purpose of the killing.” This instruction was taken verbatim from CALCRIM
    No. 720 except for the last paragraph which was based on People v. Michaels (2002) 
    28 Cal.4th 486
    , 519-520 [financial gain special circumstance applies even if the murderer’s
    primary purpose is to protect a third person and it was the third party who would receive
    the financial gain].
    Defendant argues “the evidence” at trial “was . . . susceptible to an
    interpretation that [he] was not aware of Packard’s [financial] motives,” and, as given, the
    instruction was ambiguous because it failed to inform the jury of the subjective
    requirement he must be consciously aware that he was committing the murder at least in
    part for Packard’s financial gain.
    First, “[a] trial court has no sua sponte duty to revise or improve upon an
    accurate statement of law without a request . . . , and failure to request clarification of an
    otherwise correct instruction forfeits the claim of error for purposes of appeal.” (People
    v. Lee (2011) 
    51 Cal.4th 620
    , 638; see People v. Whalen (2013) 
    56 Cal.4th 1
    , 81-82.)
    Defendant failed to ask the court to clarify the standard instruction.
    17
    Second, the last paragraph of the instruction, as given, answers defendant’s
    complaint. “‘“In reviewing [a] purportedly erroneous instruction[], ‘we inquire “whether
    there is a reasonable likelihood that the jury has applied the challenged instruction in a
    way” that violates the Constitution.’ . . . “Additionally, we must assume that jurors are
    intelligent persons and capable of understanding and correlating all jury instructions
    which are given.” [Citation.]’” (People v. Castaneda (2011) 
    51 Cal.4th 1292
    , 1320-
    1321.) Here, the final paragraph informed the jury that financial gain must be a
    motivation for the murder, even if someone other than defendant was the beneficiary.
    Thus, even if defendant’s primary reason for killing McLaughlin was to avenge what he
    believed were the victim’s purported unwanted sexual advances, to find the special
    circumstance allegation true, the jury necessarily had to find he also knew Packard stood
    to financially benefit from the murder.
    DISPOSITION
    The judgment is affirmed.
    RYLAARSDAM, ACTING P. J.
    WE CONCUR:
    IKOLA, J.
    THOMPSON, J.
    18