Filed 5/19/17 P. v. Acquah 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

KENNETH ALLAN ACQUAH III,

Defendant and Appellant.
C081642

(Super. Ct. No. 15F04005)




In this variant of what has come to be known as road rage, the victims and defendant told the jury very different accounts of what transpired on the night of June 29, 2015. The jury was confronted with a classic credibility contest; either the victims or defendant lied when testifying at trial. Defendant Kenneth Allan Acquah III contends the judgment finding him guilty of two counts of assault with a deadly weapon must be reversed because the prosecutor’s rebuttal argument improperly diluted the prosecution’s burden of proof by misrepresenting the meaning of proof beyond a reasonable doubt. We disagree and affirm.
FACTS
The Victims’ Version
Alex Lee, the driver, accompanied by her fiancé, Yee Xiong, was attempting a left turn when defendant, also turning left, passed them on their right, and then cut them off. Lee swerved to avoid a collision and honked. Defendant, who was now in front of the victims, stopped and then kept going, stopped again and “flipped off” Lee and Xiong. Afraid, Lee drove into a parking lot to get away from defendant, but he too entered the driveway and drove toward them at “full speed.” She exited the lot and defendant continued in pursuit.
Defendant swerved his vehicle toward theirs and Lee had to swerve her vehicle to avoid a collision. Defendant drove in front of Lee’s car, stopped, and told Lee to pull over. She agreed, but too afraid, she took off. Defendant again pursued her and swerved his car into their lane. Lee estimated that he swerved toward her car 10 to 15 times. Xiong felt a slight bump as the cars hit each other. Again defendant stopped in front of their car, approached them, and told Lee she had hit his car. As defendant’s passenger also approached the car, Lee told Xiong to call the police and to take pictures because she thought defendant was going to smash her windows. Again Lee told defendant she would pull over, but instead, she took the on-ramp onto the freeway.
Defendant followed. He swerved into her lane, pulled in front of her, and stopped in the middle of the freeway. Defendant again got out of his car and demanded Lee pull over because she had hit his car. Lee continued to drive slowly on the freeway until she was able to flag down a highway patrol officer. She then exited the freeway, as did defendant, but he drove away when Lee stopped and was interviewed by two highway patrol officers.
One of the officers observed damage to Lee’s right front bumper and defendant’s left rear bumper. He believed that the left rear bumper of defendant’s car made contact with the front right bumper of Lee’s car.
Three days later, defendant, together with his girlfriend, went to the South Sacramento office of the California Highway Patrol (CHP) to discuss the incidents that occurred on July 29, 2015. CHP Officer Travis Mari interviewed defendant’s girlfriend first. Defendant thereafter told him that he had been driving his girlfriend’s car and she was a passenger. He explained that his wallet had slid across the dashboard and out the window. As he stopped his car and got out to retrieve his wallet, another car came up behind him, honked, and defendant flipped them off. He further told Officer Mari he got onto southbound Highway 99 and the other vehicle followed him, flashing their high beams at him. He ultimately exited the freeway and drove to his girlfriend’s house. At trial, he denied he told the officer his wallet had fallen out the window and he had stopped to retrieve it.
Defendant’s Version
Defendant presented the jury with a totally different account of what happened. In his telling, he was accompanied by his friend, Juice, and he was driving his girlfriend’s car without a license. On his way to get gas, he made a right turn on a red light and underestimated the speed of the cars turning from the other lanes. As a result, he testified he accidentally cut off one of the cars and the two cars had a minor impact. He signaled for the driver of the other car, Lee, to pull over. When she did not, he followed her into a parking lot but, by the time he caught up with her, she was exiting the lot. He followed her, then pulled up next to her to flag her down and let her know she had hit his car.
Defendant testified he continued to try to get her attention by honking and waving at her, but he denied trying to swerve into her car or ram it. He also denied flipping her off. Eventually, he got in front of her car and stopped, but Lee drove around him. He tried again. He got in front of her, tapped on his brakes to get her to slow down, and then stopped and got out of his car. By then, he conceded he was “agitated,” but insisted he remained courteous and did not swear at Lee or Xiong or threaten them. Lee told him she would pull over, but instead she drove onto the freeway.
Defendant admitted he was angry because he felt like Lee was trying to avoid the situation, and therefore, he continued to follow her onto the freeway. He gave various explanations as to why he had not called the police including his phone was dead, he was driving without a license, and he did not want his girlfriend’s car to be towed. But once on the freeway, he again drove in front of Lee’s car and slowed down to a stop. Lee told defendant she would pull over, but instead she drove in the slow lane until she exited at Mack Road with a CHP car behind her. He drove away because he did not want to have his car towed.
The jury found defendant guilty of two felony counts of assault with a deadly weapon (Pen. Code, § 245, (a)(1)) and he admitted he had suffered two prior serious and violent felony strikes.
Defendant filed a timely appeal.
DISCUSSION
Defendant accuses the prosecutor of egregious misconduct during his rebuttal by arguing as follows: “If you believe the victims in this case, that is proof beyond a reasonable doubt. [¶] Their version of what happened, the truth of what happened, coming in and testifying about it is enough evidence to sustain that burden. It is proof beyond a reasonable doubt. You heard it directly from their mouths.” Defendant contends that the prosecutor’s argument diluted the standard of proof beyond a reasonable doubt to a mere belief that the victims were telling the truth and thereby violated his right to due process of law. He is mistaken.
The presumption of innocence and the concomitant burden on the prosecution to prove guilt beyond a reasonable doubt represent the twin core values upon which our criminal justice system is built. Many well-meaning judges and prosecutors have tinkered with explanations of the meaning of proof beyond a reasonable doubt without success and appellate courts have admonished them to restrain their creativity and faithfully abide by the now well-accepted instruction. (See, e.g., People v. Centeno (2014) 60 Cal.4th 659, 667 (Centeno); People v. Johnson (2004) 119 Cal.App.4th 976, 985.) Defendant cites cases in which a prosecutor’s argument misrepresented the heavy burden imposed on the prosecution to prove guilt beyond a reasonable doubt. The problem for defendant is that the cases he cites are easily distinguished and the prosecutor’s argument here, unlike either the instructions or the argument in the cited cases, accurately describes the standard of proof, does not dilute the prosecution’s burden, and encapsulates the essence of the task before the jury to decide the dispositive question of credibility.
“ ‘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.’ [Citation.]” (People v. Wilson (2005) 36 Cal.4th 309, 337.) “The ‘prosecutor is entitled to comment on the credibility of witnesses based on the evidence adduced at trial.’ [Citation.]” (Id. at p. 338.) “ ‘To establish prosecutorial misconduct, it is not necessary to show the prosecutor acted in bad faith, but it is necessary to show the right to a fair trial was prejudiced. [Citation.]’ [Citation.]” (People v. Vargas (2001) 91 Cal.App.4th 506, 569.)
The sole question presented here is whether the prosecutor’s admonition to the jury that if they believed the victims’ testimony they could find defendant guilty beyond a reasonable doubt in any way lessened the exceedingly high bar needed to meet the heightened standard of proof. This case presented the quintessential credibility challenge. Either the jury believed the victims’ account that defendant pursued them by swerving into their lane toward their car multiple times or they believed defendant’s account that he never attempted to swerve into their lane or ram their car but simply followed them to get them to pull over and exchange information following a minor collision. The prosecution’s case thus depended on the credibility of the two victims’ testimony. In his view, if the jury believed his witnesses, he had proven defendant’s guilt beyond a reasonable doubt. We can find nothing inaccurate or disturbing about the prosecutor’s argument. Indeed, he succinctly summarized his case tying the credibility of the victims’ testimony to his ability to prove defendant was guilty beyond a reasonable doubt.
Defendant insists that the prosecutor’s rebuttal misstated the law by allowing the jurors to equate their mere “belief” in the victims’ testimony with proof beyond a reasonable doubt. He cites the 1873 case of People v. Brannon (1873) 47 Cal. 96 (Brannon) as support for the principle that to believe something is true simply means to be convinced of its truth by a preponderance of the evidence. But in Brannon, the jurors were not instructed on the role of credibility in determining proof beyond a reasonable doubt but instead they were admonished that they should “ ‘be satisfied of the guilt of the defendant to such a moral certainty as would influence the minds of the jury in the important affairs of life.’ ” (Id. at p. 97.) The Supreme Court recognized that in making decisions in “the important affairs of life” the jurors could be influenced and controlled by a preponderance of the evidence, a standard of proof far less onerous than proof beyond a reasonable doubt requiring “an abiding conviction, to a moral certainty, of the truth of the charge.” (Ibid.)
We see no parallel between the instructional error in Brannon and the prosecutor’s argument in the case before us. The jurors’ assessment of credibility bears no resemblance to making decisions in “the important affairs of life.” Indeed, the factual decisions a jury must make about who is telling the truth or who is lying; who is an accurate historian or who is a fabricator or exaggerator; and who is motivated to tell the unvarnished truth or who is motivated to prevaricate goes to the heart of the sacred trust jurors assume when they sit in judgment of their fellow citizens. In a case such as this one, the jurors were faced with a stark choice—to believe the victims or to believe the defendant. As the prosecutor argued, “[i]t either happened the way the victims described it happened, or it happened the way the defendant described it happened.” This choice was not merely an “important affair of life” but was the very essence of the jurors’ responsibility to determine whether the prosecution has proved its case beyond a reasonable doubt. We thus reject defendant’s analogy that a determination of who to believe in a criminal case is the equivalent of making an important decision, which, as the Supreme Court pointed out in Brannon, is generally based on a mere preponderance of the evidence.
Similarly, and much more recently, in People v. Lloyd (2015) 236 Cal.App.4th 49 (Lloyd), the prosecutor argued, “ ‘If you find there is self-defense, you are saying his actions, the defendant’s conduct was absolutely acceptable,’ ” and, in rebuttal, “ ‘Well, what does not guilty mean? It means you didn’t commit a crime.’ ” (Id. at p. 52.) Both arguments misstate the law and diminish the prosecution’s burden of proof. “By equating a not guilty verdict based on self-defense or defense of others as meaning the defendant must establish the defense to the point the jury considers his actions ‘absolutely acceptable’ and by arguing not guilty means the defendant is innocent, the prosecutor misstated the law, reducing the prosecution’s burden of proof.” (Id. at p. 63.) “A not guilty verdict is not the equivalent of finding the defendant innocent. [Citation.] A not guilty verdict simply means the prosecution did not prove the defendant’s guilty beyond a reasonable doubt.” (Id. at p. 62.) And a criminal defendant does not have the burden to prove that self-defense is true; rather he is entitled to an acquittal if the evidence is sufficient to raise a reasonable doubt whether the defendant was justified. (Ibid.)
Unlike the prosecutor in Lloyd, the prosecutor here did not misstate the law. Rather, he correctly recognized that the credibility of the two victims was essential to a conviction and, if the jurors believed their version of the events that transpired on June 29, 2015, they could find defendant guilty beyond a reasonable doubt. He specifically pointed to CALCRIM No. 226, which instructs the jurors in part that they must “judge the credibility or believability of the witnesses.” The jurors were properly instructed on the prosecution’s burden of proof beyond a reasonable doubt as well as on their role in assessing the credibility of the witnesses. There is nothing in this record to suggest that they misunderstood their task and there is no reasonable likelihood that they “ ‘applied the complained-of comments in an improper or erroneous manner.’ ” (People v. Wilson, supra, 36 Cal.4th at p. 337.)
One more example will suffice. In Centeno, supra, 60 Cal.4th 659, the prosecutor offered a visual display attempting to illustrate the standard of proof. (Id. at pp. 665-666.) She began with an outline of the State of California. She did not base the outline on any evidence that had been presented to the jury, but asked the jurors the question, “ ‘[W]hat state is this[?]’ ” (Id. at p. 665.) She hypothesized that several witnesses testify to having been in this state. “ ‘What you have is you have incomplete information, accurate information, wrong information, San Diego in the north of the state, and missing information, San Bernardino has not even been talked about, but is there a reasonable doubt that this is California? No. You can have missing evidence, you can have questions, you can have inaccurate information and still reach a decision beyond a reasonable doubt. What you are looking at when you are looking at reasonable doubt is you are looking at a world of possibilities.’ ” (Ibid.)
The Supreme Court found the prosecutor’s argument objectionable. “The use of an iconic image like the shape of California or the Statue of Liberty, unrelated to the facts of the case, is a flawed way to demonstrate the process of proving guilt beyond a reasonable doubt. These types of images necessarily draw on the jurors’ own knowledge rather than evidence presented at trial. They are immediately recognizable and irrefutable. Additionally, such demonstrations trivialize the deliberative process, essentially turning it into a game that encourages the jurors to guess or jump to a conclusion.” (Centeno, supra, 60 Cal.4th at p. 669.)
The court further explained: “What occurred here was not the legitimate marshaling of evidence with charts outlining the facts or relating them to the legal concepts explained in the jury instructions. Instead the prosecutor offered a theoretical analogue, unrelated to the evidence, purporting to relate the exacting process of evaluating the case to answering a simple trivia question. As noted, judges and advocates have been repeatedly admonished that tinkering with the explanation of reasonable doubt is a voyage to be embarked upon with great care. [¶] Counsel trying to clarify the jury’s task by relating it to a more common experience must not imply that the task is less rigorous than the law requires. By presenting a hypothetical whose answer involves a single empirical fact, the prosecutor risked misleading the jury by oversimplifying and trivializing the deliberative process.” (Centeno, supra, 60 Cal.4th at p. 671.)
The prosecutor compounded her dilution of the burden of proof by implying “that so long as her interpretation of the evidence was reasonable, the People had met their burden” and that a reasonable explanation of the events was that the defendant was “ ‘good for it.’ ” (Centeno, supra, 60 Cal.4th at p. 672.) The court concluded “it is error for the prosecutor to suggest that a ‘reasonable’ account of the evidence satisfies the prosecutor’s burden of proof.” (Id. at p. 673.)
Despite the huge chasm between the closing remarks made by the prosecutor here and the egregious misrepresentation of the burden of proof in Centeno, defendant argues there is no meaningful difference between the argument that the defendant is “good for it” and the argument that the case has been proven if you think the victims were telling the truth. Not so. There is indeed a world of difference between encouraging a jury to accept a reasonable explanation as proof beyond a reasonable doubt and directing a jury to focus on the credibility of the percipient witnesses to the crime. The prosecutor here did nothing to suggest a relaxation of the prosecution’s burden of proof but offered only the true statement that credibility was going to be the determining factor in this case and, if the jurors found that the victims were credible and were telling the truth, their testimony could constitute proof beyond a reasonable doubt. Again the mortal sin in Centeno, that the prosecutor diminished the burden of proof, simply did not occur here. There was no misconduct.
The Attorney General urges us not to consider the argument on its merits because defendant failed to object to the prosecutor’s rebuttal at trial. Defendant argues that if we find he forfeited his objection, we must then assess the constitutional adequacy of his lawyer. Because we have determined that the prosecutor’s rebuttal argument did not infringe on defendant’s right to due process by improperly diluting the burden of proof, the inadequacy of counsel claim has no merit.
DISPOSITION
The judgment is affirmed.




RAYE , P. J.



We concur:



BLEASE , J.



MURRAY , J.