P. v.
Filed 8/6/12 P. v. Martinez CA2/2
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
RANDOLPH
DAVID MARTINEZ,
Defendant and Appellant.
B233433
(Los Angeles
County
Super. Ct.
No. MA049542)
APPEAL from
a judgment of the Superior Court
of
County.
Bernie C. LaForteza, Judge.
Affirmed.
Jonathan P.
Fly, under appointment by the Court of Appeal, for Defendant and Appellant. for
Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Linda C. Johnson,
Margaret E. Maxwell and Mark Kohm, Deputy Attorneys General, for Plaintiff
and Respondent.
________________
A jury convicted defendant Randolph David Martinez of
(Pen. Code, § 666)
title="">
(count 2).
convictions for purposes of count 2 and serving custodial time for both
offenses. He admitted having suffered
one prior serious or violent felony conviction within the meaning of sections
667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d) and
having suffered eight prior convictions within the meaning of section 667.5,
subdivision (b).
After
denying defendant’s Romero motion,
the trial court sentenced defendant to seven years in
three years, doubled to six years because of the strike, plus one year pursuant
to section 667.5, subdivision (b). The
trial court exercised its discretion and struck the remaining enhancements
under section 667.5, subdivision (b).
Defendant
appeals on the grounds that: (1)
reversal is required because the prosecutor argued facts outside the record;
(2) the prosecutor committed misconduct by arguing that reasonable doubt was a
lesser standard of proof; and (3) defendant suffered cumulative prejudice.
FACTS
Prosecution Evidence
On June 26,
2010, Jonathan Henriquez worked in loss prevention at the Vallarta market in
Lancaster, California. The Vallarta
market has a north entrance door, which is close to the beer section, and a
south entrance door. Around 5:40 p.m.,
Henriquez was in the security office observing the store through the monitors
and a window. Henriquez observed
defendant select a case of beer, walk to one of the registers, and pay with his
debit card. Henriquez identified
People’s exhibit No. 2 as a receipt bearing defendant’s name for an 18-pack of
beer. Henriquez saw defendant leave the
store through the north entrance and re-enter the store within a very short
period of time. He was not carrying
anything. Defendant went directly to the
beer section and selected another case of beer.
At that point, Henriquez went downstairs to the market floor and
observed defendant as he walked through the produce area to the meat area. Henriquez never lost sight of defendant.
Defendant
placed the case of beer he was carrying on top of a beverage island. Henriquez saw defendant retrieve the receipt
from his pants pocket and slip the receipt of the first purchase under the
handle of the case of beer he had been carrying. Defendant then walked to a restaurant area
approximately 15 feet away and ordered some hot food. Henriquez walked by the beverage island to
determine whether the receipt tucked in the case of beer was for the correct
quantity of beer or whether it was for the previous purchase of an 18
pack. Henriquez testified that the
receipt was for the previous purchase.
Henriquez
saw defendant pay for and obtain his food and then walk to the island area and
pick up the case of beer, which held 30 cans of beer. Defendant then left the store through the
south exit, passing a cash register on the way.
Outside the
store, Henriquez and a uniformed security guard, Christian Lopez, confronted
defendant. Henriquez identified himself
and told defendant why he was being stopped.
Defendant was handcuffed, and Henriquez and Lopez walked defendant to
the security office. Henriquez called
the sheriff and generated a report.
Defendant did not protest being stopped or handcuffed, nor did he try to
provide an explanation. Inside the
office, defendant was breathing heavily and sweating a lot. When Henriquez asked defendant what was wrong
with him, defendant replied that he had had a few beers.
Los Angeles
County Deputy Sheriff Diego Andrade and his partner, Deputy Sherman, arrived at
the Vallarta Supermarket and spoke with Jonathan Henriquez around 7:00
p.m. Based on his training and
experience, Deputy Andrade did not believe defendant was under the influence of
alcohol. He had none of the symptoms,
such as staggering, odor, or eyes that were glassy, watery, or bloodshot. Defendant told the deputy he had consumed a
large amount of alcohol and he could not remember what he did inside the
store. Deputy Andrade did not conduct
any field sobriety tests. At the
hospital, blood was not drawn from defendant because he was not arrested for
driving under the influence.
Defense Evidence
Nora
Chaplin, defendant’s girlfriend, knew him to be gainfully employed on
June 25, 2010. Defendant had been
employed since 2007. They lived together
in defendant’s home. On the day of his
arrest, defendant had been drinking beer from the time he got up until they
left for Lancaster to visit Chaplin’s sister.
Defendant continued drinking at Chaplin’s sister’s house, and he drank
“stronger stuff.” Chaplin knew defendant
was intoxicated. She believed he had
consumed five to 10 beers during the day.
Chaplin and
defendant went to Vallarta market to buy beer and meat. Chaplin said she entered the store with
defendant. They got the beer, paid for
it, and left. They realized they had
forgotten the meat, and Chaplin took the beer while defendant went back inside
the market. Chaplin said she knew
defendant paid for the beer because she saw a receipt in his hand. He handed her the receipt with the beer. When defendant did not return, Chaplin
entered the store to look for him. She
left the beer and the receipt in the car.
After describing defendant to someone at the customer service desk, she
was told that he had been arrested and officers were coming to get him. Because Chaplin was “in a tizzy” when she
learned of defendant’s arrest, she left the store and went to her sister’s
house to tell her what was going on.
They called the sheriff.
Although
Chaplin testified that the receipt was in the car, when shown People’s exhibit
No. 2, the receipt for the beer, Chaplin said that she guessed she did not have
the receipt. She did not remember.
I. Prosecutorial Argument
Regarding Police Report
A. Defendant’s Argument
Defendant
contends the prosecutor committed misconduct during closing argument by
referring to stricken testimony and facts not in evidence. The trial court erred in failing to remedy
the misconduct. The error was
prejudicial and requires reversal.
Because the error impinged upon defendant’s ability to cross-examine and
violated his Sixth Amendment right of
confrontation and his federal due process rights, respondent bears the burden
of proving the error was harmless beyond a reasonable doubt.
Defense
counsel elicited on cross-examination of Henriquez that he did not write in his
report that defendant placed the receipt for 18 cans of beer inside the box
with 30 cans of beer. On redirect
examination, the prosecutor asked Henriquez if he was interviewed by some
officers that day and whether he told the officers that defendant did, in fact,
tuck the receipt into the 30-pack. The
trial court sustained defense counsel’s objection on hearsay grounds. The trial court granted the defense motion to
strike.
At the prosecution’s
request, a sidebar conference was held.
Defense counsel stated that he had never asked Henriquez whether he told
anyone about the receipt being stuffed into the box—he had only asked Henriquez
whether he had put that information in his report. Defense counsel did not believe there was an
exception to the hearsay rule for what Henriquez said to somebody else outside
of court. The trial court ruled that the
prosecutor was eliciting hearsay and again sustained the defense
objection. The prosecutor asked if he
could do research and revisit the issue, and the court granted permission. The prosecutor rested without returning to
the issue.
During
argument, the prosecutor stated that defendant took the receipt out of his
pocket and stuffed it in the top of the box where there is a breakaway
handle. The defense did not object. A little later, the prosecutor showed the
jury an illustration of the cardboard box and said “that is where the
loss-prevention officer said he struck [sic]
his receipt . . . .”
The defense objected to “facts not in evidence.” The trial court admonished the jury to rely
on their own recollection of the evidence, stating, “At this point, there is no
evidence of the 18-pack, although there may have been evidence that there is a
slit in the 18-pack.” The prosecutor
went on to say, “So when I asked the loss-prevention officer—I asked him,
‘Where did he stick it in’” He said,
“In the slot right above where there is a breakaway for the handle.”
Later, the
prosecutor argued, “Mr. Hovsepyan [defense counsel] is going to come up here
and say he stuck the receipt inside the carton, but he didn’t write that on the
report. That is true. But then I asked him, ‘Did you tell the
officer the whole story, everything that happened’ And what did he say ‘Yes, I did.’
The funny thing about the law, we have what is called
‘impeachment.’ That is something I like
to call somebody out on something.” The
prosecutor explained the term “impeachment” to the jury. He then stated, “So why didn’t Mr. Hovsepyan
impeach the loss-prevention officer with Officer Andrade” The prosecutor proceeded to argue that
defense counsel should have questioned Deputy Andrade about whether Henriquez
told him he saw defendant put a receipt in the beer carton, adding, “But when
Mr. Hovsepyan comes up here and says, ‘Don’t believe him,’ have him explain to
you why he didn’t ask the officer that.
Because defense counsel has the report.”
The prosecutor stated that defense counsel knew there was nothing
different between Henriquez’s story in court and what was reported that
day. Defense counsel made no objections.
In his
closing argument, defense counsel said that Henriquez wrote a report about the
case, and counsel asked him about his report.
Henriquez apparently omitted in his report the fact that there was a
receipt stuck under the handle. Without
that fact, the jury would likely have thought that defendant merely put the
beer down, paid for his food, and walked out with the beer, negligently
forgetting to pay for it. Defense
counsel asserted that the latter scenario was a stronger argument. Counsel stated, “Mr.
Henriquez . . . sat down and, in his own handwriting, wrote
this report. You’re not going to have
this because it’s not in evidence. He
wrote this report.” He derided
Henriquez’s explanation that he ran out of space. Later he argued, “All I know is that the
man—the only man who says all of this happened did not place it in his own
report; an important fact, very important fact.
Doesn’t have it in his report.”
In his
closing argument, the prosecutor again posed the question as to why defense
counsel did not ask the officer about Henriquez seeing a receipt in the
carton. He asserted that counsel did not
ask because he knew the answer, stating, “because if—if Mr. Henriquez did not
tell Officer Andrade that, that would have been the first question he would
have asked. He has the police
report.” Defense counsel objected, stating
“I object as prosecutorial error in this situation, facts not in evidence.” The trial court called a sidebar, where
defense counsel stated, “The court had initially ruled that Mr. Montalban [the
prosecutor] cannot ask the witness whether he told the deputy these—that
specific information about the—the receipt being placed in the box. And now Mr. Montalban is arguing that. Basically, he’s going around the court’s
order and arguing to the jury that he did tell the deputy that.” According to counsel, the prosecutor had
violated the court’s ruling. The
prosecutor replied that he did not believe that was the court’s ruling. He stated that the court’s ruling was based
on hearsay, but his argument was under the rubric of calling all logical
witnesses.
The trial
court did not remember its ruling—only that it limited the People in
examination of the witness in this subject area. The court stated, “What the court is
concerned with, I understand People are trying to argue that the defense can
call logical witnesses. It is on the
verge of almost shifting the burden of proof on the defense. That is what the court is concerned about at
this point. Whether or not Mr. Montalban
can call witnesses or cross-examine in a certain way, it depends on what Mr.
Hovsepyan wants to do. The court is
concerned about that shifting of the burden.
What I’ll do is I’m going to overrule the objection, but I’m going to
give a limiting instruction that the defense has no burden of proof. Any comment on that, Mr. Hovsepyan” Counsel had no comment.
The trial
court told the jury, “Ladies and Gentlemen, before we begin, I want to remind
all of you that the burden of proof lies solely with the prosecution. The defense has no burden of proof. So the burden of proof to prove the defendant
is guilty on both counts, counts 1 and 2, lies solely with the prosecution.”
The
prosecutor did not refer to the police report again. He merely stated that Henriquez “totally told
the officer the story. That is what he
said.” The prosecutor did comment that,
“Mr. Hovsepyan, tells you, ‘don’t believe Mr. Henriquez because he didn’t write
it in the report.’ All right. We’re talking about a person who works at the
Vallarta as a loss-prevention officer.
He’s not trained as an officer, not trained to write reports.”
C. Relevant Authority
“The
applicable federal and state standards regarding prosecutorial misconduct are
well established. ‘“A
prosecutor’s . . . intemperate behavior violates the
federal Constitution when it comprises a pattern of conduct ‘so egregious that
it infects the trial with such unfairness as to make the conviction a denial of
due process.’”’ [Citations.] Conduct by a prosecutor that does not render
a criminal trial fundamentally unfair
is prosecutorial misconduct under state law only if it involves ‘“‘the use of
deceptive or reprehensible methods to attempt to persuade either the court or
the jury.’”’ [Citation.] As a general rule a defendant may not
complain on appeal of prosecutorial misconduct unless in a timely fashion—and
on the same ground—the defendant made an assignment of misconduct and requested
that the jury be admonished to disregard the impropriety. [Citation.]
Additionally, when the claim focuses upon comments made by the
prosecutor before the jury, the question is whether there is a reasonable
likelihood that the jury construed or applied any of the complained-of remarks
in an objectionable fashion.
[Citation.]” (
841.) Even if a defendant shows that
prosecutorial misconduct occurred, reversal is not required unless the
defendant can demonstrate that a result more favorable to him would have
occurred absent the misconduct or with a curative admonition. (People
v. Arias (1996) 13 Cal.4th 92, 161.)
Respondent
argues (in addition to forfeiture) that the prosecutor was entitled to comment
on the failure to question a witness on a particular point and that the
prosecutor argued reasonable inferences from facts in the record. In his reply brief, defendant rejects
respondent’s arguments regarding the “failure to [call] logical witnesses” and
“reasonable inferences” justifications and asserts that the real issue is the
“prosecutor’s disregard for the court’s ruling on the admissibility of hearsay
evidence.” Defendant argues that the prosecutor
referred to excluded hearsay statements allegedly contained in an inadmissible
police report.
The record
shows that the prosecutor asked Henriquez on redirect if he, the testifying
witness, told the responding officers that the defendant tucked the receipt
into the 30-pack of beer. The trial
court ruled that Henriquez’s own statement was hearsay, preventing Henriquez
from testifying that he told the officers this.
The question was stricken. In the
subsequent sidebar, the prosecutor stated, “Your Honor, clearly the reason that
the defense counsel brought [Henriquez’s report] up is to establish that he
never really witnessed this. He didn’t
write in the report. He did, in fact,
make a report of it.” The trial court
stated, “Well, you can inquire into that area.”
Later, the trial court stated, “You can ask him why he didn’t.” When he continued questioning, the prosecutor
asked Henriquez if he spoke with the officers.
Henriquez said he did. The
prosecutor asked, “And you reported what happened to the officers” Henriquez responded, “Correct.”
As we see
from the record, the prosecutor at first said in his opening argument that
Henriquez testified that he did tell
the officer the whole story—everything that happened. This was not in defiance
of the court order. The prosecutor then
went into the lack of defense impeachment of Henriquez, referring to the
specific issue of the tucked-in receipt.
The first time that the prosecutor stated that defense counsel should
explain why he did not try to impeach Henriquez by means of asking the officer
about the receipt “because defense counsel has the report,” there was no
objection. Therefore, defendant has
forfeited his objection to this report reference on appeal. Moreover, the prosecutor continued on this
theme without objection, as follows: “If
you think anything of the loss-prevention officer’s story here in court was
different than anything reported that day, you don’t think Mr. Hovsepyan
wouldn’t ask it Because Mr. Hovsepyan
knows there is nothing different.
[¶] He told the officer that
story. He put the receipt in the
carton. That is the way it is. That is the reason he didn’t. [¶]
The reason I called the officer, he can call out the loss-prevention
officer. ‘He told you. You wrote the report. Did he ever tell you that’ [¶]
‘No.’ [¶] That is all you have to do. That is what Mr. Hovsepyan has to do when he
come up here, ask you not to believe the loss-prevention officer.” Any objection to any of this argument in the prosecutor’s
opening argument was forfeited. (
In the
prosecutor’s rebuttal argument, defense counsel objected when the prosecutor
stated, “[defense counsel] didn’t [question Deputy Andrade about the police
report] because he knows the answer.
Because if—if Mr. Henriquez did not tell Officer Andrade that, that
would have been the first question he would have asked. He has the police report.” At this point defense counsel objected on the
ground of “facts not in evidence.” At
sidebar, defense counsel argued that the prosecutor was “going around the
court’s order.” The trial court,
however, did not remember its ruling.
Its only concern was that this argument tended toward shifting the
burden of proof to the defense. The
trial court stated it would overrule the objection but instruct the jury
immediately that the prosecution had the burden of proof. When asked if he had a comment, defense
counsel responded, “No, your Honor.”
Defense
counsel objected to the police report reference but failed to request a
curative admonition on the grounds upon which he made his objection. We do not consider the issue forfeited,
however, since the trial court told counsel it was going to overrule the
objection. “‘[T]he absence of a request
for a curative admonition does not forfeit the issue for appeal 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.” [Citations.]’” (People
v. Redd (2010) 48 Cal.4th 691, 745.)
Although
the prosecutor committed misconduct by alluding in his argument to the contents
of the police report, which was not in evidence, we conclude that any such
misconduct was harmless under any standard.
(Chapman v. California (1967)
386 U.S. 18 (Chapman) [harmless
beyond a reasonable doubt]; People v.
Watson (1956) 46 Cal.2d 818, 836 (Watson)
[reasonable probability the error did not affect the outcome].) We disagree with defendant’s assertion that
it is reasonably likely the jury considered the probable contents of the
inadmissible police report when reaching its verdict.
As our
Supreme Court has explained, a claim of prejudice “‘is substantially
undercut . . . by similar evidence in the record which is not
challenged.’” (People v. Blacksher (2011) 52 Cal.4th 769, 829.) The jury had clearly heard properly admitted
evidence that Henriquez told the police the whole story. That story necessarily included, according to
Henriquez’s own testimony, the fact that he saw the receipt for the 18-pack
inside the handle of the 30-pack. To
prevail on a claim of prosecutorial misconduct based on remarks to the jury,
the defendant must show a reasonable likelihood the jury understood or applied
the complained-of comments in an improper or erroneous manner. (People
v. Dykes (2009) 46 Cal.4th 731, 771-772.)
Here, there was nothing erroneous to infer, and “[s]imilar, unchallenged
evidence necessarily relegated the challenged statement to a minor, cumulative
role, if any, in the jury’s deliberations.”
(See People v. Dennis (1998)
17 Cal.4th 468, 531; People v. Noguera
(1992) 4 Cal.4th 599, 627.)
Furthermore,
the prosecution’s remarks must be considered in the context of the argument as
a whole; words and phrases should not be singled out and analyzed without
reference to the entirety of the prosecution’s argument. (People
v. Dennis, supra, 17 Cal.4th at
p. 522; see also Darden v. Wainwright
(1986) 477 U.S. 168, 182 [a response invited by the defense argument, although not
an excuse for prosecutorial misconduct, helps place the prosecutor’s remarks in
the context of the entire trial].) We
will not lightly infer that the jury drew the most damaging meaning from the
prosecution’s statements. (
1153, disapproved on another point in People
v. Rundle (2008) 43 Cal.4th 76, 151.)
Even
assuming the reference to the police report somehow constituted a denial of the
right to confrontation and to cross-examine, we do not believe the reference
influenced the verdict. In
by a prosecutor was found not to affect the verdict, even if the misconduct
were treated as a denial of the defendant’s right of confrontation and
cross-examination. (Id. at p. 534.) In
robbery-murder, the parties stipulated that the prosecution would not call a
witness who had seen the defendant with a gun before the crimes. (Id.
at p. 531.) Yet, in cross-examining the
defense expert, the prosecutor read the informant’s statement from the police
report and continued reading even after the defense objected. (Id.
at pp. 531-532.) The
deliberately attempted to put inadmissible and prejudicial evidence before the
jury. (Id. at p. 532.) But the
court was satisfied beyond a reasonable doubt that, under the circumstances,
reversal was not required. (
circumstances—including other evidence of the same fact and adequate
admonishment by the trial court—lead to the same conclusion.
The
prosecutor in Bell returned to the
police report in argument, stating that defense counsel deliberately did not
ask a detective questions about his police report in order to prevent the
prosecutor from bringing out certain things the reports contained. (Bell,
supra, 49 Cal.3d at p. 536.) The Bell
court was “satisfied that the trial court’s admonitions and instructions were
sufficient to offset any impact that conduct might otherwise have had on the
verdicts.” (Id. at pp. 540-541.) In
addition, the court found no prejudicial cumulative effect from the instances
of misconduct it addressed as well as those that were forfeited. (Id.
at p. 542.)
In the
instant case, as well, the jury was properly instructed that the statements of
attorneys were not evidence, and that it must decide the facts based upon the
evidence adduced at trial, and from no other source. (CALCRIM No. 222.) We assume the jurors followed the court’s
instructions. (People v. Leonard (2007) 40 Cal.4th 1370, 1413.) In addition, the trial court promptly
admonished the jury that the defense was not required to ask the questions the
prosecutor said were lacking, since the prosecution had the burden of
proof. We believe that the trial court’s
admonitions and instructions were sufficient to offset any impact the
prosecutor’s argument might otherwise have had on the verdicts. It is very unlikely that the jury disregarded
both the court’s admonition and its instructions, and speculated that there was
additional evidence of defendant’s guilt in the police report.
Finally,
the evidence of defendant’s guilt of petty theft, at a minimum, was
substantial. The jury was instructed
that, in order to prove defendant guilty of petty theft, the People had to show
that he took possession of property owned by someone else; that he took the
property without the owner’s consent; and that, when he took the property, he
intended to deprive the owner of it permanently. (CALCRIM No. 1800.) Defendant appeared nervous and was looking
around as he paid for the 18-pack of beer.
He re-entered the store immediately after exiting with the 18-pack and
handing it over to Chaplin, but with the receipt for the 18-pack on his
person. He picked up a 30-pack and took
it over to another part of the store.
Whether or not he put the receipt in the handle, he then walked right
out of the store with 30 cans of beer.
He claimed afterwards that he simply forgot to pay for that heavy case
of beer. He did not protest or question
his detention outside the store or his handcuffing. Deputy Andrade saw no signs that defendant
was intoxicated, especially to the degree he would have been had he been
drinking beer all day in addition to hard liquor, as claimed by Chaplin. The jury clearly did not believe defendant’s
story.
We conclude
defendant suffered no prejudice from the prosecutor’s mention of the police
report, and the prosecutor’s comments did not result in the denial of
defendant’s right to a fair trial.
II. Prosecutorial Argument Regarding Reasonable
Doubt
Defendant
contends that the prosecutor, in arguing to the jury, misrepresented the
reasonable doubt standard and directed the jury to use a standard other than
reasonable doubt in reaching its verdict.
Because there is a reasonable likelihood that the jury applied a reduced
standard of proof, he maintains, the proceedings violated the Fifth and
Fourteenth Amendments of the federal
Constitution.
B. Proceedings Below
At the
beginning of opening argument, in discussing circumstantial evidence to show
specific intent, the prosecutor stated, “Specific intent crimes, you actually
have to figure out the specific intent of the defendant. What was he trying to do Unfortunately, we’re not to the age where we
have the machines where we can hook up to his brain and figure out what he was
doing. The way you’re allowed to do it
is circumstantial evidence.
‘Yeah, he probably did it’ or ‘No, he didn’t.’ You have to use the circumstances. That is where we tell you you have to use
your common sense. We can’t determine what is actually 100 percent in the defendant’s
mind. You have to use the totality of
the circumstances.”
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remarks.
Later, the
prosecutor argued extensively about what he anticipated defense counsel would
present on burdens of proof, stating, “Defense
counsel is going to come up here, and he’s going to say, ‘A reasonable doubt is
the highest standard of law,’ which it is not.
The highest is beyond all doubt. There
is no way we can prove all doubt. We
can’t put a machine to the defendant’s head and figure out all doubt. He’s going to come here and say, ‘More than civil, more than when they’re trying
to take your kids away.’ But I’m not
even sure why he would raise that if beyond a reasonable doubt is the same
standard throughout all crimes. Every
law has different types of protections.
If we’re talking about family law court, those are different
protections, different proceedings. You
go through different functions. If
somebody is going to take actions to take your kids away, those are different
proceedings. Assign a caseworker on it,
hearings, interviews, investigations.
That has nothing to do with the criminal law. This is beyond a reasonable doubt. You know that this standard applies if
somebody jaywalks or if somebody commits murder. It is the same for everyone. If he raises all these other types of
different burdens of proof, let him explain to you why that is relevant. We’re here on a criminal trial. The same—the same reasonable doubt applies to
petty theft as it does to murder. If we
were here for murder, it is the same.
Same standard. That doesn’t
change.” (Italics added.) Defense counsel did not object to these
comments.
In rebuttal
argument, in response to the defense discussion of the different burdens of
proof, the prosecutor stated, “Now, [defense counsel] did indicate that I was
incorrect, that reasonable doubt is the highest standard. Well,
I’ll actually show you that the law does provide for a higher standard. And that is something that [defense counsel]
did not read to you in the same instruction. He did read to you the top part of the
instruction here. He read all of this
(indicating). But kind of conveniently,
he stops. “Proof beyond a reasonable
doubt is proof that leaves you with an abiding conviction that the charge is
true.” However, it stops right
there. “The evidence need not eliminate
all possible doubt—” that is a higher standard.
It goes on. “—because everything
in life is open to some possible or imaginary doubt. That is the highest standard. It’s right in the jury instruction. I’m not making this up. When
[defense counsel] says there is no higher standard, it is. It is all possible doubt. It is doubt here [sic] to reasonable doubt. That is what the standard is.” Defense counsel did not object to these
remarks.
As stated
previously, “[a]s a general rule a defendant may not complain on appeal of
prosecutorial misconduct unless in a timely fashion—and on the same ground—the
defendant made an assignment of misconduct and requested that the jury be
admonished to disregard the impropriety.
[Citation.]” (
The record shows that defendant failed to raise any objection to the
remarks of which he complains on appeal and failed to request a curative
admonition, if he indeed believed the prosecutor was committing
misconduct. Defendant has not
established that an objection would have been futile or that an admonition
would not have cured the misconduct. (
462.) Since an admonition could have
cured the harm, if any, he forfeited his right to appellate review by failing
to make a contemporaneous objection.
Once again,
we examine the prosecutor’s statements in the context of the whole
argument. In addition, we consider all
of the instructions in order to determine whether there is a reasonable
likelihood the jury construed or applied the statement in an objectionable
way. (People v. Morales (2001) 25 Cal.4th 34, 44.) With respect to the argument regarding the
reasonable doubt standard in particular, “we cannot focus exclusively on a few
erroneous words . . . and then reverse the conviction
unless it is ‘reasonably likely’ that the jury applied the erroneous standard
described or implied by those few words.”
(Chalmers v. Mitchell (2d Cir.
1996) F.3d 1262, 1267.) In this case,
both parties devoted a considerable amount of time to the reasonable doubt
standard. The prosecutor seems to have
anticipated the defense argument and
wished to make a preemptive strike in order to avoid any confusion the defense
argument might engender. Read in the
context of the entire argument, we find no reasonable likelihood that the jury
understood the prosecutor’s unnecessary explanation that reasonable doubt did
not mean the elimination of all possible doubt resulted in lessening the
People’s burden of proof. In addition,
defense counsel gave the jury a clear explanation of the reasonable doubt
standard of proof.
Moreover,
it is the court’s instructions that “are determinative in their statement of
law, and we presume the jury treated the court’s instructions as statements of
law, and the prosecutor’s comments as words spoken by an advocate in an attempt
to persuade.” (People v. Sanchez (1995) 12 Cal.4th 1, 70, disapproved on another
point in People v. Doolin (2009) 45
Cal.4th 390, 421; Boyde v. California
(1990) 494 U.S. 370, 384-385.) “Juries
are warned in advance that counsel’s remarks are mere argument, missteps can be
challenged when they occur, and juries generally understand that counsel’s
assertions are the ‘statements of advocates.’
Thus, argument should ‘not be judged as having the same force as an
instruction from the court. . . .’” (People
v. Gonzalez (1990) 51 Cal.3d 1179, 1224, fn. 21; Boyde v. California, at pp. 384-385.) Any improper argument here was dispelled by
the court’s proper instructions on the concept of reasonable doubt. In addition, the court informed the jury that
what the attorneys said was not evidence and that, in case of conflicts, the
jury must follow the law as given by the court.
(CALCRIM Nos. 200, 220.) Despite
defendant’s claim that the prosecutor’s argument obfuscated the trial court’s
instruction, it is presumed the jury followed the trial court’s reasonable
doubt instruction, which was the only standard of proof on which it was
instructed. (People v. Leonard, supra,
40 Cal.4th at p. 1413.) The jury was not
misled.
Even were
we to assume, therefore, that the prosecutor committed misconduct, prejudice is
lacking under either the state law (see Watson,
supra, 46 Cal.2d at p. 836) or the
federal constitutional standard of review (see Chapman, supra, 386 U.S.
at p. 24). The jury was properly
informed about the prosecutor’s burden.
As previously noted, moreover, the evidence was strong that defendant
committed, at minimum, a petty theft.
III. Cumulative Prejudice
Defendant argues that,
considered together, the two instances of prosecutorial misconduct created a
“negative synergistic” effect, citing People
v. Hill (1998) 17 Cal.4th 800, 847.
He contends that a new trial is warranted. We have concluded that defendant suffered no
prejudice from the prosecutor’s arguments.
The two arguments put together do not signify that a negative dynamic
affected the jury’s verdict, and reversal is therefore not required. (People
v. Cook (2006) 39 Cal.4th 566, 608.)
We believe defendant received a fair trial. He was not entitled to a perfect one. (People
v. Cain (1995) 10 Cal.4th 1, 82.)
The judgment is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
__________________,
P. J.
BOREN
We concur:
________________,
J.
DOI TODD
________________,
J.
CHAVEZ
title="">
All further statutory references
are to the Penal Code unless otherwise indicated.
name="_ftn2" title="">[2]
acquitted defendant of burglary as charged in count 1.
