P. v. Thigpen

Filed 12/30/09 P. v. Thigpen CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury found defendant Clyde William Thigpen guilty of assault with a deadly weapon and assault by means of force likely to produce great bodily injury (Pen. Code,  245, subd. (a)(1)).[1] The trial court found defendant had two prior strikes and sentenced him to an aggregate term of 35 years to life in state prison. On appeal, defendant contends the prosecutor committed misconduct while discussing the reasonable doubt standard during closing argument. We affirm.

BACKGROUND

The facts underlying this case are irrelevant to the sole issue on appeal. The following is a recitation of the portion of the closing argument to which defendant now objects.

The prosecutor argued:

The standard of proof in a criminal case, you heard it multiple times already, is beyond a reasonable doubt. Okay? And I know you all heard that on television and other places as well. Thats the standard in every criminal case across this county. Okay? And so any time you hear that someone has been convicted of a crime in the United States, that was the standard of proof that was required to convict him of that crime.

Its the highest standard in the law. Theres no doubt about that, but it is not beyond all possible doubt, beyond an imaginary doubt or beyond a shadow of a doubt. Okay? It is not the type of thing where the jury, after hearing the evidence thats presented in court, which is the only evidence the jury is supposed to consider, goes back and starts wondering, Well, what if this? It could have been that, or maybe this. Okay. No. The question is whether or not the evidence meets the burden of proof. Okay?

Thats based on a reasonable--and that word, you will hear throughout--or you have already heard--throughout the jury instruction, over and over, the word, reasonable. What does that mean? How do you define reasonable? I suppose it could be different to every person, to some extent. But, certainly, it is the basis for which the jury system was formed. The only way to get to reasonable decisions in an agreeable fashion is to get 12 people and ask them to agree because, at least, collectively, between 12 people from the community, we get to a reasonable decision.

So it is a reasonable comparison based on an entire comparison and consideration of all the evidence, okay?

Sometimes, if you take one piece of evidence, isolate it and say, Okay, well, based on that, I have some doubt; okay, now I am going to move on to another piece of evidence and look at that by itself; okay, well, now Im not too sure about that, then you move on to another piece, you can never get a complete picture. And thats why you have to compare each piece of evidence, each piece of testimony, everything that you have heard, not just looking at it individually, but as it relates to the rest of the evidence. Okay?

It leaves you not having an abiding conviction of the truth of that charge. Again, that is legal terminology. Youre here as jurors, you take your responsibilities seriously. If the evidence in this case meets the burden of proof, then you need to have an abiding conviction. That means you need to believe that thats the right decision for you to make as a juror.

No objection to this argument was made at trial.

DISCUSSION

Defendant now contends that the prosecutor committed misconduct in making the above argument to the jury.

First, [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.] [Citation.] (People v. Hill (1998) 17 Cal.4th 800, 820.) Defendant did not lodge an objection or seek to have the jury admonished regarding the statements to which he now objects. Thus, he has forfeited this claim on appeal.

Defendant initially makes a cursory argument that he was excused from the requirement to object because any objection and admonition would not have cured the harm caused by the alleged misconduct. (See People v. Hill, supra, 17 Cal.4th at p. 820.) He later states, however, that there was a reasonable probability that, [h]ad there been an objection and had the court been able to frame a workable remedial admonition, the jury would have been warned off the prosecutors diluted version of these essential (reasonable doubt and abiding conviction) concepts but that it was not so warned due to counsels failure to object. Thus, he raises the specter of ineffective assistance of counsel.

To determine whether trial counsels failure to raise the issue constituted ineffective assistance, we must first examine whether defendants argument would have succeeded if it had been presented to the trial court. (Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693] [To demonstrate ineffective assistance of counsel, defendant must show counsels action was, objectively considered, both deficient under prevailing professional norms and prejudicial].) Thus, even if the argument was forfeited, we must still address it in determining defendants ineffective assistance claim. (See People v. Marlow (2004) 34 Cal.4th 131, 150 [Even where an issue has been forfeited, if defendant asserts his counsel thereby rendered ineffective assistance . . . we turn to the merits of the claim].)

Here, the jury was provided with CALCRIM No. 220, which stated, in pertinent part:

[A] defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt unless I should specifically tell you otherwise.

Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt.

In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant is guilty beyond a reasonable doubt, he is entitled to an acquittal, which is a finding of not guilty.

Defendant argues that the prosecutors argument somehow enlarged on the reasonable doubt standard. He claims that [t]he clear import of the prosecutors statements was to convey the message that the jury system itself served as a guarantor that whatever they decided would be reasonable and that the requirement that the jurors be left with an abiding conviction of guilt was met simply because, as jurors, they necessarily took their duties seriously.

While we cannot say that the prosecutors argument actually clarified the standard of proof to the jury, we do not agree that it in any way diluted it. Reasonable jurors would not have construed or applied the remarks in an improper fashion or understood the jury could convict based on proof of less than beyond a reasonable doubt. (See Victor v. Nebraska (1994) 511 U.S. 1, 6 [127 L.Ed.2d 583, 591].)

Having rejected the defendants argument on its merits, we reject his ineffective assistance claim as well. Counsel is not ineffective for failing to make futile or unmeritorious objections. (People v. Memro (1995) 11 Cal.4th 786, 834; accord, People v. Price (1991) 1 Cal.4th 324, 387; In re Wright (2005) 128 Cal.App.4th 663, 674.)

DISPOSITION

The judgment is affirmed.

CANTIL-SAKAUYE , J.

We concur:

SCOTLAND , P. J.

SIMS , J.

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[1] Hereafter, undesignated statutory references are to the Penal Code.