Filed 8/1/17 P. v. Danford CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


THE PEOPL,

Plaintiff and Respondent,

v.

ALLEN DANFORD,

Defendant and Appellant.

F074339

(Super. Ct. No. VCF330217)


OPINION
THE COURT*
APPEAL from a judgment of the Superior Court of Tulare County. Lloyd L. Hicks, Judge. (Retired Judge of the Tulare Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Michael Sampson, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
A jury convicted appellant Allen Danford of second degree robbery, in violation of Penal Code section 211. It also was found true that he had suffered a prior strike conviction and served a prior prison term. Danford contends his conviction must be reversed because the prosecutor committed misconduct in closing argument. We disagree and affirm.
FACTUAL AND PROCEDURAL SUMMARY
Erik Gonzalez had been working for Food 4 Less as a loss prevention officer since November 2015. In the course of his job, he dressed and acted as though he was shopping, while watching the store for suspicious activity. On January 24, 2016, Gonzalez was working when he saw Danford enter the store and head in the direction of phone chargers.
Gonzalez knew that phone chargers were often stolen, so he watched as Danford browsed and then took a phone charger. Danford headed to the registers, where he grabbed a “couple packs of M&M’s and a couple pack[s] of lighters.” Gonzalez watched as Danford concealed the items inside his jacket.
At this point, Gonzalez went into the security camera room and watched as Danford browsed in another aisle of the store. Danford did not grab anything in this aisle, but went to the front of the store and exited. Gonzalez and another employee, Johnny Requejo, confronted Danford outside the store. Gonzalez stated they were loss prevention officers and requested Danford return to the store. Danford responded, “‘Fuck that’” and shoved Gonzalez twice.
After Danford shoved Gonzalez, Requejo grabbed Gonzalez from behind and “took him down.” While Danford was on the ground, Gonzalez handcuffed him and sat Danford upright. Gonzalez saw that Danford had blood on his face and, at that point, the police department was called. Firefighters were shopping in the store and they responded to the scene; they bandaged Danford’s injury.
While Gonzalez was explaining what had happened to the firefighters at the scene, Danford stated he “didn’t steal anything.” Gonzalez responded that he had and the items were in Danford’s jacket. One of the firefighters reached into Danford’s jacket and removed the items taken from the store, specifically the cell phone charger, M&M’s, and lighters.
Police officer Thomas Higgins was dispatched to the store. When Higgins arrived, he saw Danford seated with a bandage on the left side of his face; several firefighters; and Gonzalez and Requejo in the entryway of the store. Higgins was going to see that Danford was treated at the hospital for a cut above his eye prior to transporting him to the jail.
While at the hospital awaiting treatment, Higgins advised Danford of his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436. Danford agreed to speak with Higgins and claimed he “didn’t remember anything” of the events at the store. Higgins explained why Danford was in custody and Danford responded, “‘I remember why I did it.’”
Danford told Higgins he went to the store to take some items to trade for cigarettes. Danford acknowledged taking “a couple bags of M&M’s, a pack of lighters and a cell phone charger.” Danford admitted pushing Gonzalez because he “wanted to get away” and acknowledged he did not have any money with him to pay for the items taken from the store.
Danford testified in his own defense. He admitted “picking up” the phone charger, M&M’s, and lighters, but claimed he was going to put the items on a shelf before leaving the store. He claimed he did not recall putting the items in his jacket. Danford acknowledged going to the store with the intent to steal the items, but claimed he changed his mind after someone gave him some money. Somehow, the “money got lost.”
Danford testified he was approached by a man who identified himself as a loss prevention officer and who told Danford, “‘Give me my lighters.’” Danford stated, “I didn’t really know what he was talking about.” Danford acknowledged pushing Gonzalez, but claimed he did so because he felt ill and did not want to vomit on Gonzalez. Danford claimed he did not remember “being taken down” and said he “remember[ed] passing out.”
The jury found Danford guilty of second degree robbery. In a bifurcated proceeding, the trial court found true that Danford had a prior conviction for a serious or violent felony, within the meaning of section 667, subdivisions (b) through (i) and section 1170.12, subdivisions (a) through (d); and had served a prior prison term pursuant to section 667.5, subdivision (b). The trial court imposed a total term of 11 years in prison at sentencing.
Danford filed a notice of appeal.
DISCUSSION
Danford contends his conviction must be reversed because the prosecutor misstated the beyond a reasonable doubt standard in rebuttal argument to the jury. Danford’s contention lacks merit.
Danford also takes issue with the prosecutor’s statement, “So again, you guys have common sense. It means are you, you know, sure.” Danford raised no objection to this remark in the trial court. Therefore, any claim of prosecutorial misconduct based on this remark has been forfeited. (People v. Covarrubias (2016) 1 Cal.5th 838, 894.)
Factual Summary
During rebuttal argument, the prosecutor made the following comments to the jury:
“[Prosecutor]: And you do, you have to find him guilty beyond a reasonable doubt. And beyond a reasonable doubt is an abiding conviction that the charge is true. And again, there’s always going to be imaginary or possible doubt but that’s not to be considered. It’s reasonable doubt.
“For example, every Monday morning before I go to work I put my trash can out on the curb. It’s trash day. And when I get home from work, trash is gone. Now is it possible that there’s a secret trash hoarder in my neighborhood that is collecting all the trash, all the recycling, everything out of my bins and storing it somewhere? Yeah. That’s possible but is it reasonable. No.
“[Defense counsel]: Your honor, I’m going to object. I think that’s misstating the standard of a proof.
“[Trial court]: Overruled.”
Legal Standard
The Fourteenth Amendment to the United States Constitution is violated when a prosecutor’s misconduct infects the trial with such unfairness as to deny due process. (People v. Tully (2012) 54 Cal.4th 952, 1009.) The misconduct must be significant enough to deny a fair trial. (Ibid.) Before a federal constitutional error can be deemed harmless, a reviewing court must declare it was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
Even if the prosecutor’s misconduct does not result in a fundamentally unfair trial, California law is violated if the prosecutor used deceptive or reprehensible methods in attempting to persuade the jury or the court. (People v. Tully, supra, 54 Cal.4th at pp. 1009–1010.) Prosecutorial misconduct under state law will not result in reversal of a defendant’s conviction unless it is reasonably probable the defendant would have obtained a result more favorable without the misconduct. (Id. at p. 1010.)
“‘[I]t is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements. [Citation.]’” (People v. Hill (1998) 17 Cal.4th 800, 829–830.) A defendant may not make an appellate assertion of prosecutorial misconduct in the trial court 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.’” (People v. Stanley (2006) 39 Cal.4th 913, 952.) An objection may be excused if it would have been futile or if an admonition would not have cured the harm. (People v. Dykes (2009) 46 Cal.4th 731, 760.)
Analysis
It is prosecutorial misconduct to misstate the applicable law during argument to the jury. (People v. Huggins (2006) 38 Cal.4th 175, 253–254, fn. 21; People v. Otero (2012) 210 Cal.App.4th 865, 870.) The prosecutor in Danford’s case, however, did not misstate the law.
The instruction defining reasonable doubt for the jury read as follows, “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.” The example offered by the prosecutor of trash collection and a “secret trash hoarder” is no more than an example of possible or imaginary doubt, as set forth in the instruction. A prosecutor permissibly may argue that the jury “may reject impossible or unreasonable interpretations of the evidence.” (People v. Centeno (2014) 60 Cal.4th 659, 672.)
It is an untenable leap of reasoning for Danford to argue the burden of proof was somehow altered by the prosecutor’s remark with regard to reasonable doubt. Regardless of how the evidence was characterized, the instructions conveyed the need to establish each element beyond a reasonable doubt. The trial court defined the proper standard of proof, and the jury was instructed regarding that standard. The trial court also provided the jurors with two copies of the jury instructions to take into the jury room. The jury was told to follow the court’s instructions if the attorneys’ comments on the law were in conflict. We presume the jury followed the court’s instructions. (People v. Boyette (2002) 29 Cal.4th 381, 436.)
More specifically, the Supreme Court held in People v. Sanchez (1995) 12 Cal.4th 1, 70, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, footnote 22: “[W]e 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.” Given the state of this record, we disagree with Danford that “‘there is a reasonable likelihood’” the jurors would have relied upon the prosecutor’s statement and ignored the proper standard.
We need not address the issue further because a reversal is unwarranted unless the alleged prosecutorial misconduct was prejudicial, i.e., unless it is reasonably probable the jury would have reached a result more favorable to Danford if the alleged misconduct had not occurred. (People v. Partida (2005) 37 Cal.4th 428, 439.) Such is not the case.
The prosecutor’s disputed comment was brief and not emphasized. Gonzalez observed Danford taking items from the store, hiding them in his jacket, and leaving the store. The firefighter found the items taken from the store in Danford’s jacket. Danford admitted taking items from the store when questioned by Higgins. The jury received a legally correct instruction on reasonable doubt. It is beyond a reasonable doubt the prosecutor’s comment was not prejudicial. Accordingly, this claim fails.
DISPOSITION
The judgment is affirmed.