P. v. Prasad

Filed 5/13/08 P. v. Prasad CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Anmol Prasad was convicted of a felony violation of Vehicle Code section 10851, subdivision (a). In his appeal he raises claims of prosecutorial misconduct and ineffective assistance of trial counsel. As discussed below, we conclude there was no prejudicial error and affirm.

Background

During the afternoon of March 31, 2006, Robert Wilson, a salesman at an automobile dealership in Hayward, Alameda County, approached defendant, who was standing together with another male near a 2003 model blue Acura. Defendant asked to test drive the vehicle, but Wilson refused, as defendant did not have a drivers license in his possession. Defendant then told Wilson he wanted to drive the vehicle to a residence to show it to his father, the prospective purchaser. Wilson left defendant and his companion alone with the vehicle for a brief period, conferred with his manager, then returned with the ignition key and offered to drive them to the residence himself. On the way, defendant, sitting in the front passenger seat, told the salesman several times that the hood appeared to be open or unlatched. Wilson pulled over and got out, leaving the key in the ignition. After securing the hood, he saw defendant slide over behind the driving wheel. When Wilson reached the driver side door, the salesman found it locked. Defendant then drove away. Several days later, at about 1:30 a.m. on April 2, a highway patrol officer in Contra Costa County observed a speeding blue Acura. After a high-speed chase, the officer succeeded in pulling the vehicle over. He arrested the driver and three occupants. Later, in court, he identified defendant as one of the occupants. Defendant, at the time of his arrest, had identified himself falsely as his brother, Absheik Prasad. About one month later, Wilson viewed a photographic lineup and identified defendant as the one who drove off with the blue Acura.

An information dated March 6, 2007, set out three felony counts: Count One charged defendant with receiving stolen property in violation of Penal Code section 496d;^[1]Count Two charged him with unlawfully taking and driving a vehicle in violation of Vehicle Code section 10851, subdivision (a); and Count Three charged defendant with false impersonation of another in violation of section 529. Defendant pleaded not guilty on March 9. At the conclusion of defendants jury trial on March 19, the jury found him guilty of Count 2the felony violation of Vehicle Code section 10851, subdivision (a).^[2] At the sentencing hearing on April 16, 2007, the trial court granted defendant formal probation of three years, suspending imposition of sentence. This appeal followed. ( 1237, subd. (a).)

Discussion

A. Prosecutorial Misconduct

The prosecuting attorney began his closing argument with these remarks: Maybe I [have] watched too much TV, but when I was listening to this case, I couldnt help but think of the show Survivor. [] And Im sure youre all familiar with what Survivor is, a bunch of castaways put on an island, they slowly vote people out. At some point on Survivor someone, if not everyone, starts to lie. [] And someone starts to try to trick people, a little scam, a little stunt. It always breaks down to that. [] And defendant in this case would probably make an excellent candidate on Survivor because he lied to the police and hes lying to you here in court claiming that hes not the person that committed this crime. [] And he wouldnt be one of those candidates on Survivor who willingly opt out and leave the island. He would have to be voted out. And in this case, thats whats going to have to happen because he is not going to concede that hes guilty. Its going to take your vote to essentially vote him guilty. Near the conclusion of his closing argument, the prosecuting attorney added the following: Its my burden of proof. I[ve] got to prove the case, and Im not disputing that. But as a prosecutor and as a jury, you can consider who wasnt called in the case. [] Who wasnt called? An alibi. Where is he at? Who was he with? If youre not guilty, who are you with? Who wasnt here? (Italics added.)

Defendant argues that the prosecuting attorneys initial analogy to the television program Survivor improperly compared the jury deliberation process to the self-interested voting conducted by that programs contestants. In making such a comparison, defendant reasons the prosecutor denied him a fair trial, because its effect was to lower or trivialize the applicable standard of proof beyond a reasonable doubt. He urges its effect was also to inflame the jurors against him by likening him to the worst type of competitor[] appearing on the program.

Defendant objects in particular to the language accusing him of lying to [the jurors] here in court [by] claiming . . . not [to be] the person that committed this crime and of refusing to concede . . . guilt[]. He asserts these remarks improperly drew upon facts not in evidence, because he did not testify and hence expressed no refusal to concede guilt nor any explicit claim not to have been one of the perpetrators. In defendants view these comments also improperly encouraged the jurors to infer guilt not only from his failure to testify but also from his reliance on the prosecutions burden to establish his guilt beyond a reasonable doubt. He suggests, in other words, that the prosecutor violated his constitutional rights by equating his exercise of the privilege against self-incrimination with lying and by portraying his demand for a jury trial as a refusal to concede . . . guilt[].

Defendant raises similar objections regarding the prosecutors comments concerning his failure to present alibi evidence, made near the end of his closing argument. He insists that the prosecutors use of personal language in these remarksthe usage of the personal pronoun you italicized abovecould only refer to defendant himself, and this language improperly gave the jurors further encouragement to infer guilt from the defendants failure to testify, in violation of his privilege against self-incrimination. (See Griffin v. California (1965) 380 U.S. 609, 615 (Griffin).)

It is defendants position that the foregoing comments were prosecutorial misconduct requiring reversal because their overall effect was to deny him a fair trial in violation of his constitutional due process rights. Defendant, however, made no objection to these comments below. 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 raised an objection and requested that the jury be admonished to disregard the impropriety. (People v. Ayala (2000) 23 Cal.4th 225, 284 (Ayala).) There are exceptions to such forfeiture: when raising an objection below would have been futile; when the effect of the prosecutors conduct could not have been cured by admonition; or when the trial courts conduct effectively precluded any objection. (See People v. Cole (2004) 33 Cal.4th 1158, 1201.) None apply here.

Defendant, citing People v. Johnson (2004) 119 Cal.App.4th 976 (Johnson), urges that we consider the merits of his claims despite his failure to object below. In that case, however, the appellate court reversed a jurys verdict not on the basis of prosecutorial misconduct but because the trial court had given the jury erroneous instructions concerning the standard of proof beyond a reasonable doubt. (Id. at pp. 978, 984, 985-986.) Hence the reviewing court considered the effect of defendants failure to object to the instructions. It noted three alternate grounds for excusing the failure to object: (1) section 1259 preserved review of the trial courts instructions despite the failure to object; (2) it was reasonable to infer any objection would have been futile, because the court had overruled an objection to prosecutorial argument that essentially paraphrased the erroneous instruction; and (3) the court of appeal retained discretion to review the issue notwithstanding forfeiture, and found it appropriate to do so because the issue of the courts instruction involved defendants fundamental due process right to a determination of guilt based on proof beyond a reasonable doubt. (Id. at pp. 984-985.)

Unlike the decision in Johnson, supra, 119 Cal.App.4th 976, there is no issue here of instructional error. The trial court gave a proper instruction on the standard of proof beyond a reasonable doubt immediately before the closing arguments of trial counsel.^[3] (See CALCRIM No. 220.) Thus the additional exception provided by section 1259 does not apply.

It is true a reviewing court retains the discretion to review a claim of prosecutorial misconduct notwithstanding a defendants failure to object below. (People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6.) But the discretion to excuse forfeiture is to be exercised rarely and only in cases presenting an important legal issue. (In re S.B. (2004) 32 Cal.4th 1287, 1293.) Defendant urges that an important legal issue is at stake here, insisting that the challenged comments infringed upon his fundamental right to have the jury base its guilty verdict only on the basis of proof beyond a reasonable doubt. If, however, we assume it is appropriate here to excuse defendants forfeiture, we nonetheless remain unconvinced that his claims of misconduct have merit.

Prosecutorial 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]. (Ayala, supra, 23 Cal.4th at pp. 283-284.) If the behavior does not rise to the level of a constitutional violation, it is nonetheless misconduct under state law if it constitutes an attempt to persuade the court or jury through the use of deceptive or reprehensible methods. (Id. at p. 284.) In the latter instance, when misconduct involves comments to the jury, we examine its prejudicial effect by considering whether there is any reasonable likelihood that the jury construed or applied the challenged remarks in an objectionable fashion. (Ibid.)

Prosecutorial comments are to be reviewed in their overall context. (See People v. Gonzalez (1990) 51 Cal.3d 1179, 1224, fn. 21, superseded by statute on other grounds in In re Steele (2004) 32 Cal.4th 682, 691 (Gonzalez).) Here we note that defense counsel, in her opening argument, cautioned the jurors to look for basic evidence presented by the prosecution, and warned them that the prosecution might be unable to submit any evidenceother than Wilsons eyewitness identificationto prove that defendant was one of the two individuals who initially absconded with the Acura.^[4] During the trial, defense counsel sought to elicit testimony from the only defense witness, an expert in eyewitness identification, in order to undermine the reliability of Wilsons eyewitness identification. Thus, as defense counsel made clear during closing argument, the gist of the defense in this case turned on the proposition that Wilsons identification, by itself, was insufficient to prove that defendant was one of the perpetrators. It is apparent, in turn, that when the prosecuting attorney compared defendant to a Survivor contestant and accused him of lying . . . here in court because he had claim[ed] [he was] not the person that committed this crime, counsel was not trying to argue facts not in evidence nor making some indirect criticism of defendants failure to testify. He was rather attempting, however inaptly, to provide a figurative criticism of defendants trial strategy. As a reviewing court, we do not lightly supply the most damaging meaning to ambiguous language addressed to the jury, nor do we assume that the jurors would draw the most damaging meaning rather than one equally plausible but less damaging. (See Gonzalez, supra, at p. 1224, fn. 21.) Here, in the context of defense counsels opening argument and her presentation of evidence during trial, it is reasonable to assume the jurors grasped the figurative sense of the Survivor analogy.

The principle we apply to ambiguous comments applies in other respects as well. Specifically, the analogy to Survivor was not in our view a clear misstatement of law encouraging the jurors to vote in disregard of the applicable standard of proof. The prosecuting attorney, after concluding his comparison with the comment that [i]ts going to take your vote to essentially vote [defendant] guilty, went on to explain that the jurors should do so [b]ecause [defendant] is the person that . . . committed this offense, and afterwards commenced his analysis of the evidence. In other words, the prosecutor followed his analogy with an immediate reminder of the jurors true roleto decide the issue of defendants guilt on the basis of the evidence presenteda role quite distinct from that of a bunch of castaways put on an island [to] vote people out.

Similarly, we do not agree that the prosecutors concluding remarks, concerning defendants failure to offer alibi evidence, referred necessarily to defendants failure to testify, simply because counsel stated, If youre not guilty, who are you with? (Italics added.) The ambiguity of that rhetorical usage is patent, and it is reasonable to assume the jurors understood the comment to refer to defendants failure to presentalibi evidence consistent with his trial strategythat is, testimony from other witnesses who were with the defendant or where he was when the perpetrators committed the crime. Such a reference is proper, as distinguished from a reference to defendants failure to testify. (See People v. Brown (2003)31 Cal.4th 518, 554.)

We conclude the challenged comments did not trivialize the applicable standard of proof beyond a reasonable doubt. Nor did they clearly misstate the law so as to encourage the jurors to infer guilt from defendants failure to testify in violation of Griffin, supra, 380 U.S. 609. That is not to say the prosecutors Survivor illustration was entirely unobjectionable. In particular, we view the reference to defendants failure to willingly opt out in that he had refused to concede . . . guilt[] to be an improper criticism of defendants exercise of his right to a jury trial by entering a plea of not guilty and requiring the prosecution thereby to test by proof the presumption of innocence. (See 1096.) The criticism, however, impugned defendants constitutional right to a jury trial only in the most indirect manner, and we see in that criticism no encouragement to the jurors to draw an inference of guilt on the basis of defendants refusal to concede that issue. As we have noted, the prosecuting attorney followed his Survivor analogy immediately with language analyzing defendants guilt on the basis of the evidence presented. The court, moreover, had immediately beforehand given proper instruction to the jury concerning defendants presumption of innocence, in addition to its instruction regarding the prosecutions corresponding burden of proof beyond a reasonable doubt. (CALCRIM No. 220.) To show a violation of constitutional due process, it is not enough for a prosecutors remarks to be undesirable or even universally condemned. (Darden v. Wainwright (1986) 477 U.S. 168, 181.) We conclude the objectionable language included in the Survivor analogy did not in itself rise to such a violation. It by no means demonstrated an egregious pattern of conduct so unfair as to render defendants conviction a denial of due process. (See Ayala, supra, 23 Cal.4th at pp. 283-284.)

Moreover, the trial court properly instructed the jurors to follow its instructions on the law, and not the argument of counsel, in the event of any conflict between the two. (CALCRIM No. 200.) It also gave proper instruction to the effect that the jurors were required to decide the facts only on the basis of the evidence presented, and that the arguments of counsel were not evidence. (CALCRIM No. 222.) Arguments of counsel generally carry less weight with the jury than do court instructions. The former are usually billed in advance as matters of argument, not evidence, whereas the latter are viewed as definitive and binding statements of the law. (Boyde v. California (1990) 494 U.S. 370, 384; see Gonzalez, supra, 51 Cal.3d at p. 1224, fn. 21.) We presume the jurors in this case relied on the instructions, not the arguments, in convicting defendant. (People v. Morales (2001) 25 Cal.4th 34, 47.) Our examination of the record discloses nothing to indicate otherwise. There was, in short, no reasonable likelihood that the jury construed or applied the prosecuting attorneys improper comments in an objectionable fashion. (See Ayala, supra, 23 Cal.4th at p. 284.)

In sum, we conclude defendant, by failing to object and request admonition below, forfeited his right to object on appeal to the challenged comments of the prosecuting attorney. Alternately, assuming this is a proper case to exercise our discretion to excuse his forfeiture, we conclude the challenged comments neither constitute a violation of constitutional due process nor misconduct requiring reversal under state law.

B. Ineffective Assistance of Counsel

Anticipating our conclusion that he forfeited his claims of prosecutorial misconduct for failure to object below, defendant contends alternately that he had ineffective assistance of trial counsel on this ground. His burden to establish this claim is twofold: he must first show that the performance of his trial counsel was deficient and, second, that he was prejudiced in that there is a reasonable probability that the outcome would have been different had the deficient act or omission not occurred. (Strickland v. Washington (1984) 466 U.S. 668, 687, 694; People v. Ledesma (1987) 43 Cal. 3d 171, 216, 217-218.)

We have, in the alternative, considered the merits of defendants claims of prosecutorial misconduct, and as discussed above concluded there was no misconduct in violation of constitutional due process and no prejudicial misconduct under state law. Underlying the latter ruling was our conclusion that there was no reasonable likelihood the jury construed or applied the improper prosecutorial comments in an objectionable fashion. (See Ayala, supra, 23 Cal.4th at p. 284.) We conclude for the same reasons that defendant has not, and cannot, show that he was prejudiced by his trial counsels failure to object to the improper portions of the prosecutors comments. There is no reasonable probability that the outcome would have been different had she done so.

Disposition

The judgment is affirmed.

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STEIN, Acting P. J.

We concur:

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SWAGER, J.

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MARGULIES, J.

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^[1]Further statutory references are to the Penal Code unless otherwise specified.

^[2]After the prosecution completed its case-in-chief, on March 16, 2007, the trial court granted a motion by defendant to dismiss Count Threethe alleged violation of section 529pursuant to section 1118.1. The jury did not return a verdict with respect to Count Onethe alleged violation of section 496dand the court dismissed that count after excusing the jury.

^[3]Other authorities cited by defendant are similarly distinguishable as they, too, turned on instructional error on the standard of proof beyond a reasonable doubt. (See People v. Brannon (1873) 47 Cal. 96, 97; People v. Johnson (2004) 115 Cal.App.4th 1169, 1172.)

^[4]Although the opening arguments are not included in the record on appeal, defense counsel alluded to her earlier statement in the course of her closing argument.