P. v. Avila

Filed 9/10/07 P. v. Avila CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Following a jury trial, appellant was convicted of two counts of making a criminal threat and one count of assault with a deadly weapon. (Pen. Code,  422, 245, subd. (a).) The jury found true an allegation that appellant used a deadly weapon in the commission of one of the criminal threats. (Pen. Code,  12022, subd. (b)(1).) The jury acquitted appellant of one count of robbery. (Pen. Code,  211.) Appellant pleaded no contest to seven misdemeanor counts. In a separate proceeding, the jury found true allegations that appellant had six prior strike convictions and two prison prior convictions. (Pen. Code,  667, subds. (b)-(i), 1170.12, subd. (a), 667.5, subd. (b).) The trial court sentenced appellant to a state prison term of 53 years to life. Appellant contends that the prosecutor committed misconduct in closing argument. We affirm.

Background

Regina Partida had a relationship with appellant for about six years and had lived with him "off and on" since 2002.[1] Before that, appellant had had a relationship with Regina's sister Veronica Partida. In August 2005, Regina obtained a restraining order against appellant. In October 2005, appellant walked in front of a van in which Regina and Veronica were riding and said that he wanted to talk to Regina. Veronica put the van in reverse and drove away. Regina and Veronica went to a friend's house to call the police. Veronica asked the police to check her property to be sure that appellant was not there and they did so. Later that morning, Veronica received a phone call from appellant. He said, "Ha ha. You thought you guys were going to catch me. . . . Now your whole fucking family is going to be dead."

On December 20, 2005, Regina, driving Veronica's Kia, drove to the parking lot of Alladin Bail Bonds looking for appellant. Appellant approached the car and opened the driver's side door. Regina and appellant talked for a while and then Regina told appellant that she wanted to leave. Appellant said that he wanted to come along and became angry when Regina said that she did not want to leave with him. He got into the driver's seat and Regina moved over. They struggled over the ignition key until it broke and Regina's arms were bruised as a result. Regina told a police officer that during the struggle over the key appellant took out a black knife with a four inch blade and threatened her, saying that he was going to kill her. Regina got out of the car and walked off. Appellant told her to get in the car. Regina testified that she did not get in the car. She said, "I was just pissed off, flipping him off, and yelling at him." As appellant drove off, Regina told him to come back, yelling, "Where are you going . . . . My car, my car." The next day, a police officer spotted appellant in the Kia. Appellant pulled over but then ran off on foot until he was apprehended. Appellant was in possession of a black pocket knife four inches long with a two-inch blade.

The prosecutor argued that Regina's demeanor on the stand showed that she was credible and that any inconsistency between her trial testimony and her statements to the police was because she still loved appellant and "she doesn't want to get him in any trouble." Defense counsel argued that the criminal threat to Veronica did not put Veronica in a state of fear, but that, instead, "she was in a state of anger." Counsel argued that the knife appellant possessed at the time of his arrest could not have been the knife Regina described from the day before and that, because appellant had taken the car and returned it in the past, there was no evidence that he intended to permanently deprive Regina of the car.

The jury found appellant not guilty of robbery. The jury convicted appellant of the assault with a deadly weapon charge and the two criminal threats charges, finding true the allegation as to one of them that appellant used a deadly weapon in the commission of it. After a short recess, evidence was presented concerning the prior conviction allegations and the jury found true those allegations. The trial court denied appellant's motion to strike some or all of the prior conviction allegations and sentenced appellant to an aggregate term of 53 years to life.

Discussion

Appellant contends, "The prosecutor committed misconduct requiring reversal of appellant's conviction because the prosecutor impermissibly altered the proof beyond a reasonable doubt standard, and the court overruled the defense attorney's objection, thereby compounding the error." He contends that this was a violation of his state and federal constitutional rights to a fair trial.

The prosecutor argued, "Now, my burden of proof, what I have to do is I have to prove that these crimes happened beyond a reasonable doubt. The reasonable doubt instruction at first sounds like it's a real heavy burden, and it should be because of the consequences, but when you look at the instruction, it says not every doubt, because there always could be doubt in life, it's what's reasonable. [] And the example I'd like to give on that is, you know the signal up here on San Benito and Fourth? It's a light, correct? Okay. Imagine you are driving up to the light; the light's green. Right? The light's green and you drive through it. Well, couldn't you have some imaginary doubt that maybe the light's malfunctioning and all sides are green? Okay? But is that reasonable? When your light is green, your traffic is flowing, the other traffic on the cross traffic is stopped, doesn't it make that doubt unreasonable? It's reasonable to believe that the cross traffic has a red light, because you have got the green and everybody is stopped, and that you have got the green light and that's why you are proceeding?"

Defense counsel objected, "Excuse me, Your Honor, I'm going to object to counsel equating the burden of reasonable doubt in a criminal case to a traffic stop sign." The court overruled the objection and the prosecutor continued, "So, for me, that's how I look at reasonable doubt, what is reasonable and what is an imaginary doubt."

Appellant argues, "To imply that the jurors should compare the standard of proof beyond a reasonable doubt to whether a traffic light is green or red opened a Pandora's Box of possible scenarios for the jurors. . . . [C]learly under certain circumstances, such as during a power outage, or an emergency situation involving an oncoming vehicle with a siren, or when police are signaling traffic, or there is an accident, a prudent driver could quite reasonably find that the traffic signal at 'San Benito and Fourth' was not to be relied upon, even if '[their] traffic is flowing.' "

Appellant argues that "the prosecutor's comments implied that the jurors have some personal knowledge of the reliability of a specific traffic signal . . . . [f]or all anyone knew, the signal at San Benito and Fourth was not a controlled intersection at all, but was rather, a four-way stop sign with a blinking red light." Respondent argues that appellant "extrapolates on the prosecutor's use of a traffic light to extreme situations which are inconsistent with the actual example posed by the prosecutor. Moreover, he fails to explain how the prosecutor's example, as actually given, was inaccurate. . . .The prosecutor accurately and properly argued that it would be unreasonable for a motorist to believe that a traffic signal was malfunctioning when all of the evidence suggested that the signal was working properly."

When a defendant makes a timely objection to prosecutorial argument, the reviewing court must determine first whether misconduct has occurred. Second, if misconduct has occurred, we determine whether it is reasonably probable that a result more favorable to the defendant would have occurred absent the misconduct. (People v. Welch (1999) 20 Cal.4th 701, 752-753; People v. Zambrano (2004) 124 Cal.App.4th 228, 243.) 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. (People v. Samayoa (1997) 15 Cal.4th 795, 841.)

Appellant relies on People v. Nguyen (1995) 40 Cal.App.4th 28 and People v. Johnson (2004) 115 Cal.App.4th 1169. In Nguyen, the prosecutor made the following statements to the jury during summation: " 'The standard is reasonable doubt. That is the standard in every single criminal case. And the jails and prisons are full, ladies and gentlemen. [] It's a very reachable standard that you use every day in your lives when you make important decisions, decisions about whether you want to get married, decisions that take your life at stake when you change lanes as you're driving. If you have reasonable doubt that you're going to get in a car accident, you don't change lanes. [] So it's a standard that you apply in your life. It's a very high standard. And read that instruction, too. I won't paraphrase it because it's a very difficult instruction, but it's not an unattainable standard. It's the standard in every single criminal case.' " (Nguyen, supra, 40 Cal.App.4th at p. 35.)

The Nguyen court held that the prosecutor's argument was improper and "strongly disapprove[d] of arguments suggesting the reasonable doubt standard is used in daily life to decide such questions as whether to change lanes or marry." (Nguyen, supra, 40 Cal.App.4th at p. 36.) The court further held that the improper argument was harmless because the prosecutor directed the jury to read the reasonable doubt instruction and the jury was correctly instructed on the standard. (Id. at pp. 36-37.) For the same reasons, the failure of defense counsel to object to the prosecutor's statements did not constitute ineffective assistance of counsel. (Id. at p. 37.)

In Johnson, the trial court, during jury selection, elaborated on the concept of reasonable doubt as follows: " 'The burden is proof beyond a reasonable doubt. A doubt that has reason to it, not a ridiculous doubt, not a mere possible doubt. Because we all have a possible doubt whether we will be here tomorrow. That's certainly a possibility. We could be run over tonight. God, that would be a horrible thing, but it's a possibility. It's not reasonable for us to think that we will because we plan our lives around the prospect of being alive. We take vacations; we get on airplanes. We do all these things because we have a belief beyond a reasonable doubt that we will be here tomorrow or we will be here in June, in my case, to go to Hawaii on a vacation. But we wouldn't plan our lives ahead if we had a reasonable doubt that we would, in fact, be alive.' " (115 Cal.App.4th at p. 1171.)

On appeal, after determining that the defendant had not waived his claim by failing to object to the trial court's comments, the Court of Appeal quoted People v. Brannon (1873) 47 Cal. 96, which states, "The judgment of a reasonable man in the ordinary affairs of life, however important, is influenced and controlled by the preponderance of evidence. Juries are permitted and instructed to apply the same rule to the determination of civil actions involving rights of property only. But in the decision of a criminal case involving life or liberty, something further is required." (Id. at p. 97.) The Johnson court rejected the notion "that people planning vacations or scheduling flights engage in a deliberative process to the depth required of jurors," or "finalize their plans only after persuading themselves that they have an abiding conviction of the wisdom of the endeavor," and "make such decisions while aware of the concept of 'beyond a reasonable doubt.' " (Johnson, supra, 115 Cal.App.4th at p. 1172.) Thus, the judgment was reversed because the trial court's attempt to explain reasonable doubt had the effect of lowering the prosecution's burden of proof.

Here, the prosecutor's argument did not misstate or trivialize the standard of proof by suggesting that the reasonable doubt standard is the same as one uses in making ordinary decisions. The prosecutor's argument did not equate the level of certainty one has before proceeding through an intersection with the level of certainty equivalent to proof beyond a reasonable doubt. Rather, the prosecutor was giving an example of a doubt that is not based on an assessment of the evidence presented. Areasonable juror would have understood the prosecutor to be drawing a distinction, through the use of this example, between a reasonable doubt and a doubt that is possible, imaginary or speculative. A juror would not have to be familiar with that particular intersection to understand that the prosecutor was talking about a standard traffic signal. Taken in context, the prosecutor did not commit misconduct in argument.

Furthermore, if the jury had been prejudiced in the manner claimed by appellant, one would have expected the jury to have convicted appellant of all the charges. Here, the jury acquitted appellant of the robbery charged in count 1. Had the jury been misled in the way appellant suggests, they would have convicted him on all counts.

Disposition

The judgment is affirmed.

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ELIA, J.

WE CONCUR:

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RUSHING, P. J.

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PREMO, J.

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[1] Although there was a considerable amount of testimony at trial concerning the charged misdemeanors, because appellant pleaded no contest to those offenses after the evidentiary portion of the trial was concluded, this summary is of the evidence concerning the felony charges.