P. v. Flores

Filed 2/5/08 P. v. Flores CA2/2

Opinion following remand by U.S. Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Richard R. Romero, Judge. Convictions affirmed; sentences vacated and remanded for resentencing.

Matthew G. Kaestner for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Assistant Attorney General, Michael C. Keller, Chung L. Mar and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.

______________

A jury convicted appellant Adrian Flores of one count of assault with a firearm (Pen. Code, 245, subd. (a)(2))[1](count 1) and one count of possession of a controlled substance with a firearm (Health & Saf. Code, 11370.1, subd. (a)) (count 2). The jury found true the allegation that appellant personally used a firearm in the commission of count 1. ( 12022.5.)

The trial court sentenced appellant to state prison for a total of 15 years. The court imposed the upper term of four years on count 1 and the upper term of 10 years for the personal use enhancement. The court imposed one year (one-third the midterm of three years) in count 2.

Appellant appeals on the grounds that: (1) Because the court erred under Blakely v. Washington (2004) 542 U.S. 296 (Blakely), the upper term sentence must be reversed and remanded for a jury trial regarding the facts purportedly justifying the sentence; (2) appellant did not forfeit his claim of Blakely error by failing to object on that ground at the time of sentencing; and (3) the improper argument of the prosecutor warrants reversal.

In our original opinion, filed on July 11, 2006, we affirmed the judgments. (People v. Adrian Flores, B185911 [nonpub. opn.].) Appellants petition for review was denied by the California Supreme Court on September 20, 2006 (S145882). The United States Supreme Court granted appellants petition for writ of certiorari and, on June 4, 2007, the high court vacated the judgment and remanded the matter to this court for further consideration in light of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham).

We requested and received supplemental briefing from the parties regarding the effect, if any, of Cunningham and of the California Supreme Courts recent opinions in People v. Black (2007) 41 Cal.4th 799 (Black) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval) on appellants issue regarding the imposition of the upper term.[2]

FACTS

I. Prosecution Evidence

Edward Rivera (Rivera) was the father of Rachel, who was 19 years old at the time of trial. He was her primary caregiver until she turned 18. On February 24, 2005, Lorraine Sanchez (Sanchez), a vice-president at a bank where Rachel worked, joined Rivera at his sons basketball practice. Sanchez told Rivera that, not for the first time, Rachel had missed work and had not called in. Sanchez wanted to find Rachel to give her a last chance to keep her job. Sanchez asked Rivera to accompany her to the home of Rachels boyfriend, who was appellant. Rivera agreed to go with her, although he was reluctant because of appellants history.

When they arrived at appellants house, Sanchez approached the door while Rivera waited across the street in the car. There were two persons standing at the front gate, and they appeared to become nervous at Sanchezs approach. When Sanchez was admitted to the house, the two persons got in their car and left.

Appellants brother, Alex, let Sanchez into the house. When Sanchez asked for Rachel, appellant said she was not there. Appellant stormed out of the house and appeared to be angry. Sanchez saw Rachel approaching from another room.

Rivera saw appellant come out of the house, and he believed appellant was looking for the two people who had been waiting outside. As appellant walked toward the corner, Rivera got out of the car and approached him. Appellant turned and appeared shocked to see Rivera. Rivera asked appellant if he was upset because Rivera had messed up appellants drug deal. Rivera then asked where Rachel was.

Appellant seemed very scared, and he reached for his waist. Rivera saw the grip of a gun in appellants waistband. Appellant pointed the gun at Rivera. As appellant tried to pull the trigger, Rivera grabbed the barrel of the gun and pushed it away. The two men began to wrestle for the gun, and appellant said he was going to shoot Rivera. They slipped and fell to the ground as the gun discharged. Appellants finger was on the trigger. During the scuffle, an object fell out of appellants pockets.

Sanchez came outside upon hearing a commotion and saw the struggle. Rivera yelled to her to get out of the way because appellant had a gun and was going to shoot somebody. Appellant began chewing on Riveras hand to gain control of the gun. Rivera was in fear for his life and was hitting appellant to get the gun away from appellant.

Rachel and appellants parents came out of the house and began kicking and hitting Rivera and pulling his hair. Appellant yelled at Rivera that he was going to kill him and that he should have killed him. Appellants parents got hold of the gun, and Rivera released it to them. Appellants parents took appellant and the gun into the house.

The police were called, and they used bullhorns to order appellant out of the house with his hands up. Only appellants parents, brother, and sister left the house. A SWAT team shot tear gas into the house. When police entered, they found no one.

Police recovered the items that had fallen from appellants pockets, which included a green container, a baggie containing residue, and a small baggie containing a substance that appeared to be methamphetamine. Subsequent analysis showed that one baggie contained .23 grams of methamphetamine. According to expert testimony, this was a usable quantity. Police also searched appellants house and found a large quantity of ammunition for handguns and a large gun safe in his room.

Several days after the shooting, police located Rachel and followed her to a mobile home park in Carson where she met appellant. Appellant was arrested.

II. Defense Evidence

Officer Guillermo Arias of the Long Beach Police Department testified at appellants trial that Rivera told him on the night of the assault that appellant had been outside and that appellant had approached Rivera in an aggressive manner. Rivera told Officer Arias that he lunged at appellant to prevent him from reaching the gun in his waistband. Rivera said appellant looked surprised when the gun went off.

Appellants brother Alex thought Rivera was beating up appellant. Rivera was on top of appellant, and appellant was screaming for help. Alex recounted that, in the past, Rivera had gone approximately five times to the Flores home late at night. He would ring the doorbell and yell things to appellant. Alex acknowledged that Rachel was
17 years old when she started living at the Flores home. Rivera did not want Rachel to live there and tried to get his daughter to come home. Sometimes appellants parents had called Rivera and told him to come and take Rachel home.

Rachels mother, Dawn McKinley, testified that Rivera had slapped her and used abusive language to her during their relationship. She acknowledged that she was angry because she had to pay Rivera child support, and she was engaged in a custody battle with him. She stated that she was a member of the Neighborhood Watch in the neighborhood where appellant lived, and the neighbors were afraid of appellant.

Appellant testified that he was getting out of the shower when someone called to him from outside. When appellant went outside, Rivera yelled at him and stormed towards him. Rivera had previously threatened both appellant and his father and had acted very violent at odd hours of the night. On the night of the incident, Rivera hit appellant on the head when appellant tried to walk away. Then Rivera hit appellant with his fists many times and began to choke appellant. Appellant saw a gun in Riveras waistband and grabbed it. The gun went off during the struggle. Appellant barely had his hands on the bottom of the grip when the gun went off. Rivera kept saying he was going to kill appellant. Appellant bit Riveras hand because he was in fear for his life. Appellant left the house and the area because he feared for his life.

Appellant acknowledged on cross-examination that he had stolen a rare rifle piece from a gun show. He said that he did not know the combination for the gun safe in his bedroom. He admitted that police found methamphetamine paraphernalia in his bedroom on the night of the assault, but he denied that the methamphetamine found outside the house was his. Appellant conceded that police had found two knives on him when he was stopped in February 2004. Appellant said that the 142 rounds of ammunition found in his dresser must have been left by an uncle who had since died, and appellant had not known they were in the dresser.

When the prosecutor questioned appellant about a July 24, 2003 incident, appellant admitted that police found 36 guns in the gun safe in his room on that day. Appellant denied trying to stab his uncle on that occasion. Appellant stated that his uncle and grandfather were in appellants room when he entered. They were angry that appellant had shoved his mother, and they started yelling at him. His grandfather tried to choke him, and his uncle hit him in the head with a flashlight. Appellant fell, and his uncle pinned down appellants legs and continued to beat him.

III. Rebuttal Evidence

Xavier Martinez (Martinez), appellants maternal uncle, testified that on July 24, 2003, he went to appellants home after being told that appellant had hit his mother. He found appellant fighting with his 72-year-old grandfather. When Martinez tried to pull appellant away from his grandfather, appellant drew a knife and tried to stab Martinez. Martinez hit appellant to make him drop the knife. When he was unsuccessful, Martinez grabbed a flashlight and hit appellant with it. Appellant finally dropped the knife. A police officer went to appellants home that night. He saw a knife sheath on appellants waistband and found the knife in appellants room. The officer saw numerous weapons in a gun safe in appellants room.

On the night of the shooting, appellants sister Lauren heard Rivera yell, He tried to kill me. He tried to kill me. Lauren had seen appellant push their mother at least twice. She had seen her mother with bruises.

DISCUSSION

I. Imposition of Upper Term

A. Proceedings Below

In sentencing appellant to the high term, the trial court stated, . . . I do believe the circumstances in aggravation greatly outweigh those in mitigation. So far as the appropriate term on the main counts, 1 and 2, the defendant has a prior record of significance, although misdemeanors, and the juvenile matters, increasing in serious [sic]. The victim here I find was appropriately especially vulnerable. He did not expect any confrontation, was unarmed, was merely trying to safeguard his daughter who he believed was in some danger, from his perspective. In mitigation, we have the defendants mental condition.[3] I believe the high term is appropriate on count 1, therefore. So far as the allegations of the use of the gun, high term is appropriate there. There are no circumstances in mitigation. The defendant has demonstrated he is a grave danger to others, as demonstrated by the statement that he was going to kill the victim. The weapon was fired, obviously. His finger was on the trigger or was in a position for the weapon to be fired and used in such a manner as it can be fired. The defendant was told not to possess any weapons and was in violation of that provision. There was no reason for the defendant to be armed at that time.

B. Appellants Argument

In his initial opening brief, appellant argued that the trial court violated the dictates of Blakely by making factual findings in order to impose the aggravated term. In his supplemental brief, appellant argues that Black is flawed in ways that violate the Sixth and Fourteenth Amendments. He states that when the trial court employs numerous factorsboth recidivist and non-recidivistin imposing the upper term, the trial court has made a cumulative decision. The trial court cannot employ a two-stage process as set forth in Black. He also contends that Blacks expansionist construction of factors that fall under the recidivist exception is flawed. He notes that neither Black nor Sandoval dealt with the issue of juvenile priors, which the trial court here used as a basis for its decision. Appellant also contends that the victim-vulnerability factor found by the trial court was one of the factors disapproved of in Sandoval and found not to come within the exceptions set forth in Blakely.

Finally, appellant contends the harmless error analysis of Sandoval would not support upholding the high term here. The victim was not particularly vulnerable and appellants prior record is not overwhelming. As the trial court stated, it consists of juvenile matters and misdemeanors.

With respect to the high term on the firearm-use enhancement, appellant states that the trial courts finding that appellant was a grave danger to others was premised on factors that were not submitted to the jury or necessarily found true by the jury. Most importantly, appellant argues, no factor relied upon by the trial court to impose the high term on the enhancement was related to recidivism, and the error cannot be deemed harmless under Sandoval.

C. Remand for Resentencing Required

In Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi), the United States Supreme Court held that [o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. The Supreme Court subsequently held that the statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. (Blakely, supra, 542 U.S. at p. 303.) The high court recently made it clear that, [i]n accord with Blakely, . . . the middle term prescribed in Californias statues, not the upper term, is the relevant statutory maximum. (Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 868].) The Cunningham court concluded that Californias determinate sentencing law (DSL) was unconstitutional to the extent it authorized the trial court to impose an upper term sentence based on facts that were found by the court rather than by a jury beyond a reasonable doubt. (Cunningham, supra, 549 U.S. at p. ____ [127 S.Ct. at p. 871].)

After the decision in Cunningham, the California Supreme Court held that as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendants right to jury trial. (Black, supra, 41 Cal.4th at p. 812.) Black and its companion case, Sandoval, reiterated that the right to a jury trial does not apply to the fact of a prior conviction. (Black, supra, at p. 818; Sandoval, supra, 41 Cal.4th at pp. 836-837.) Black emphasized that the prior conviction exception must not be read too narrowly; it includes not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions. (Black, supra, at p. 819.)

In the instant case, the trial courts finding that the upper term was justified in count 1 because of appellants recidivism arguably falls within the recidivist exception to the rule of Apprendi, Blakely, and Cunningham. We need not determine whether this is the case, however, because, with respect to the firearm enhancement, the trial court gave no reason for imposing the upper term other than the fact that appellant demonstrated he is a grave danger to others. Therefore, we must remand for resentencing in any event.

The United States Supreme Court has recognized two exceptions to a defendants Sixth Amendment right to a jury trial on an aggravating fact that renders him or her eligible for a sentence above the statutory maximum. First, a fact admitted by the defendant may be used to increase his or her sentence beyond the maximum authorized by the jurys verdict. [Citation.] Second, the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction. [Citations.] (Sandoval, supra, 41 Cal.4th at pp. 836-837.) Given that the factor named by the trial court here does not fall within the two exceptions recognized by the United States Supreme Court, defendants Sixth Amendment rights were violated by imposition of the upper term for the firearm enhancement. We believe that the error cannot be deemed harmless in this case.

Sandoval articulated a harmless error test for Cunningham error, stating that if a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless. (Sandoval, supra, 41 Cal.4th at p. 839.) The reviewing court must take into consideration the fact that the factual record might not have been the same if the aggravating factors had been charged and tried to a jury. (Id. at p. 840.) The reviewing court must also consider whether the wording of the enumerated aggravating factor creates a vague or subjective standard to the degree that it would be difficult to determine how the jury would resolve the dispute. (Id. at pp. 839-840.)

In the instant case, we conclude that the aggravating factor that appellant was a danger to others is a vague and subjective standard. It is true that California Rules of Court, rule 4.421(b)(1) lists as an aggravating factor that [t]he defendant has engaged in violent conduct that indicates a serious danger to society. We cannot say, however, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true this aggravating circumstance. (Sandoval, supra, 41 Cal.4th at p. 839.) As Sandoval noted, many of the aggravating circumstances require an imprecise quantitative or comparative evaluation of the facts, such as finding that the victim was particularly vulnerable. (Id. at p. 840.) In this instance, the pertinent factor requires the defendants conduct to pose a serious danger to society.

Moreover, we cannot be confident that the factual record would have been the same had this aggravating circumstance been charged and tried to a jury. (Sandoval, supra, 41 Cal.4th at p. 840.) Although appellant possessed many guns, he had only one prior offense involving a firearmcarrying a loaded firearm in publicand he received probation for that offense. And although appellant displayed violent behavior within his family and with Rivera, the defense may have succeeded in creating reasonable doubt that appellant presented a danger to society at large had it been given the opportunity to do so.

Therefore, we remand the matter for resentencing in accordance with the guidelines of Sandoval. (Sandoval, supra, 41 Cal.4th at pp. 846-848.) Sandoval directed that sentencing proceedings to be held in cases that are remanded because the sentence imposed was determined to be erroneous under Cunningham . . . are to be conducted in a manner consistent with the amendments to the DSL adopted by the Legislature.[4] (Sandoval, supra, at p. 846.)

II. Alleged Prosecutorial Misconduct

A. Appellants Argument

Appellant accuses the prosecutor of employing epithets and inflammatory language throughout her argument, some of which were not supported by the evidence. Appellant asserts that because of conflicting evidence and the resulting importance of the jurys view of appellants character and credibility, the misconduct could not have been cured by an admonition, and it resulted in appellant being denied a fair trial. Appellant requests that a new trial be ordered.

B. Relevant Authority

The applicable federal and state standards regarding prosecutorial misconduct are well established. A prosecutors . . . 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 fashionand on the same groundthe 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.] (People v. Samayoa (1997) 15 Cal.4th 795, 841.) [W]e do not lightly infer that the jury drew the most damaging rather than the least damaging meaning from the prosecutors statements. [Citation.] (People v. Frye (1998) 18 Cal.4th 894, 970.)

The general rule requiring assignment of misconduct and a request for jury admonishment does not apply if a defendants objection or request for admonition would have been futile or would not have cured the harm. (People v. McDermott (2002) 28 Cal.4th 946, 1001.) It also does not apply when the trial court promptly overrules an objection, resulting in the defendant having no opportunity to request an admonition. (Ibid.)

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.)

C. Forfeiture

The record clearly shows that appellant made no objections to the remarks he sets out in his opening brief as grounds for a finding of prosecutorial misconduct. No admonishments to the jury were requested by the defense. Given the litany of instances that appellant characterizes as objectionable, it cannot be said that a timely admonishment early on would not have cured the harm appellant perceives resulted from the prosecutors remarks. Therefore appellant cannot raise this claim on appeal. (People v. Fierro (1991) 1 Cal.4th 173, 212.) In any event, appellants claims are without merit.

D. No Prosecutorial Misconduct

We conclude that the prosecutors questions and her remarks to the jury did not constitute misconduct. With respect to the latter, it is well established that a prosecutor enjoys wide latitude during argument to describe the deficiencies in defense counsels tactics and in counsels version of the facts. (People v. Bemore (2000) 22 Cal.4th 809, 846; People v. Sassounian (1986) 182 Cal.App.3d 361, 396.)

Appellant complains that the prosecutor began her misconduct during presentation of the evidence when she attempted to suggest that appellant began having sex with the victims daughter, Rachel, when she was under the age of consent. The record shows that when the prosecutor asked appellants brother if Rachel was 16 when she began living with appellant, Alex said he did not think so. When Alex agreed that Rachel was 19 at the time of trial, the prosecutor asked What is 19 minus three? The court sustained the defense objection on the grounds that the prosecutor was stating facts not in evidence and the answer was stricken. We find no misconduct in this attempt by the prosecutor to justify Riveras frequent visits to the Flores home, which were made in an effort to get his daughter back. The same holds true for the prosecutors question to appellant regarding Rachels age at the beginning of their relationship. The defense had attempted to portray Rivera as a nuisance and an overly controlling parent who constantly harassed the Flores family. Furthermore, as noted, Alexs answer to the prosecutors question was stricken.

Appellant claims that the prosecutor also tried to suggest that appellant had possessed illegal firearm magazines. During cross-examination, as the prosecutor questioned appellant regarding the guns and ammunition stored in his room, appellant attempted to show that his whole family used the gun safe, and he claimed he did not have the combination. The prosecutor elicited that appellant recognized the magazines that had been in his room for three years and that he knew they were aftermarket. The court overruled a defense relevance objection to the latter comment. The prosecutor then asked, Being aftermarket, they are aftermarket because they are illegal, are they not? The court sustained the defense objection. This brief reference to the illegality of the ammunition did not rise to the level of prosecutorial misconduct, and appellant was not prejudiced, since the defense objection was sustained. Clearly, these two instances do not represent an egregious pattern of conduct or the use of reprehensible methods.

The same holds true for the prosecutors closing argument, regarding which appellant makes various complaints. Appellant first complains that the prosecutor called him a drug-using thief who lies. . . .  [] He carries a knife. He tries to stab his uncle. He beats his mother, et cetera. Appellant also takes issue with the prosecutor suggesting that appellant was selling drugs when making the following argument regarding the two people waiting outside the Flores home: We know why they are there now. Hes got the meth on him. For whatever reason, whether it is buying or selling, they are looking sleazy. The prosecutor also stated, in referring to appellants surprise at seeing Rivera, [he] may have been busted in this drug deal or whatever is going on.

Appellant also posits that the prosecutor suggested to the jury that appellant created a defense to fit the facts, and the prosecutor implied that appellant did so with the help of his defense attorney. After reviewing the facts of the encounter between Rivera and appellant, the prosecutor stated, So what does the defendant do with these facts? [T]he defendant has police reports, which are not admissible for you, but the defendant has police reports. Common sense.

Appellant further complains that the prosecutor called him a violent and selfish man, as shown by the evidence, that he allows his girlfriend around all these weapons and the bullets and his drugs. The prosecutor stated that she has lost her job while staying with him. He hits his own mother. He tries to stab his concerned uncle, attacks his
72-year-old grandfather. Appellant contends that these statements were not supported by the evidence.

The improper argument continued in rebuttal, according to appellant, when the prosecutor suggested that appellant came out of his house with a gun because of the fishy business involving drugs. She called appellant a methamphetamine gun-toting thief. She said that the jury would have to believe Rivera took that gun on his body in order to find appellant not guilty, since common sense indicated it was not in Sanchezs car. The prosecutor also reiterated that appellant hits his mother and was angry at Rivera because he made appellants drug deal . . . [go] awry.

All of these comments by the prosecutor were based on the evidence presented at trial and were therefore no more than vivid phrases giving life to the evidence. Drugs fell out of appellants pocket during the struggle, and he appeared upset that the two persons waiting outside his home had left when he exited his house. He was clearly trying to see where they had gone when Rivera spoke to him. It was a reasonable inference that a drug transaction was planned. The same is true for the comment that there was some fishy business involving drugs. Describing appellant as a methamphetamine gun-toting thief is a colorful epithet, but it is not inaccurate, since appellant carried methamphetamine and a gun and admitted to stealing. Argument . . . may include opprobrious epithets reasonably warranted by the evidence. (People v. Edelbacher (1989) 47 Cal.3d 983, 1030.)

As for appellant being a liar, the prosecutors position that appellant was armed and pulled a gun on Rivera led to her making a reasonable inference that appellant was lying when he said Rivera was carrying the gun. Calling appellant a liar is not misconduct. (People v. Edelbacher, supra, 47 Cal.3d at p. 1030 [prosecutors remarks in which he called defendant, among other things, a pathological liar and one of the greatest liars in the history of Fresno County were not misconduct].) Also, appellant admitted he had stolen a rifle part from a gun show; hence the epithet thief.

The evidence also supported the prosecutors comment that appellant was violent and selfish. His uncle testified that he was told appellant hit his own mother, and appellant was attacking his elderly grandfather when the uncle arrived at the Flores home to investigate. Appellant tried to stab his uncle. Such behavior is clearly violent, and appellants willfulness with his mother and elder family members can properly be characterized as selfish.

As for any implications that appellants defense was born out of a reading of the police reports, the prosecutor was clearly attacking appellants defense rather than the integrity of defense counsel.[5] Defense counsel argued that the case boiled down to [w]ho had the gun and who attacked who? Defense counsel herself noted the parallel facts put forth by the defense and the prosecution. It was reasonable for the prosecutor to explain how the similarities may have arisen.

As stated previously, argument is traditionally vigorous and therefore accorded wide latitude. [Citation.] (People v. Fierro, supra, 1 Cal.4th at p. 212.) It is not misconduct for a prosecutor to be a passionate advocate. He or she may make even hyperbolic and tendentious remarks if the inferences reasonably are drawn from the evidence and there is no substantial misstatement of the facts. (See People v. Rowland (1992) 4 Cal.4th 238, 277.) In this case, any misstatement of facts by the prosecutor was not substantial. Here, there was no egregious pattern of conduct that infected the trial with fundamental unfairness, nor was there use of deceptive methods.

Moreover, appellant suffered no prejudice from the prosecutors remarks. The fact that defense counsel raised no objection based on misconduct to the prosecutors purportedly improper comments signifies that the remarks were not as offensive or damaging as appellant now claims. The jury was duly instructed that statements of counsel are not evidence. (CALJIC No. 1.02.) Furthermore, appellants testimony lacked credibility not because the prosecutor called him a liar, but rather because his version of events was inherently incredible. There was no evidence that Rivera habitually carried a gun. Since Riveras visit to the Flores home was not planned, it would not be reasonable to infer he brought a gun with him for the purpose of assaulting appellant. There was evidence, however, that appellant possessed numerous weapons and had been found carrying weapons in the past. Appellant cannot show that it is reasonably probable he would have obtained a more favorable result in the absence of the alleged misconduct. (People v. Barnett (1998) 17 Cal.4th 1044, 1133, 1134; People v. Clark (1993) 5 Cal.4th 950, 1014.)

DISPOSITION

The convictions are affirmed. The sentence is vacated and the matter is remanded for resentencing in accordance with this opinion.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

__________________, Acting P. J.

DOI TODD

We concur:

_____________________, J.

ASHMANN-GERST

_____________________, J.

CHAVEZ

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line attorney.

[1] All further references are to the Penal Code unless stated otherwise.

[2] Except for the discussion of the Cunningham issue, this opinion is substantially the same as the previously-filed opinion.

[3] The defense offered in mitigation that appellant suffered from chronic depression for over 10 years.

[4] Given the remand by the United States Supreme Court on the Cunningham issue, we need not address the issue of whether appellant forfeited his claim of Blakely error for failure to object at trial.

[5] When defense counsel objected to the prosecutors remark that defendant had the police reports, the trial court sustained the objection as to defendant on the ground that the prosecutor had stated facts not in evidence.