Filed 10/31/17 P. v. Clark CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,
Plaintiff and Respondent,
v.
DIMITRI CLARK,
Defendant and Appellant.

A149051

(City and County of San Francisco
Super. Ct. No. 224963)


After a jury trial, defendant Dimitri Clark was convicted of the felony offense of second-degree robbery (Pen. Code, § 211 ) and the misdemeanor offense of receiving stolen property (§ 496, subd. (a)). The court suspended imposition of sentence and placed defendant on probation for three years, with the condition that he serve one year in county jail that had been served by the date of sentencing. Defendant contends the judgment should be reversed, alleging prosecutorial misconduct in closing argument. Having considered defendant’s contention in light of the record before us, we affirm the judgment for the reasons explained below.
FACTUAL AND PROCEDURAL BACKGROUND
The District Attorney of the City and County of San Francisco filed an amended information alleging defendant committed the following crimes on October 27, 2015: second-degree robbery (§ 211), with a related allegation of committing great bodily injury on Christopher Konovaliv (count one); and receipt of stolen property (§ 496, subd. (a)) (count two). These charges and allegations were tried before a jury in June and July of 2016.
A. Prosecution Case
The prosecution’s case included the testimony of the victim, his friend, and police officers, as well as two surveillance camera videotapes of the incident.
On October 27, 2015, at 10:00 a.m., the victim drove his car to Grant Avenue in San Francisco. As the victim parked in a metered spot on Grant Avenue, he was talking on his cell phone. As the victim got out of his car, defendant walked past him. By the time the victim reached the meter to pay for the parking spot, defendant was standing in front of the meter.
As he spoke into his cell phone, the victim tapped defendant on the shoulder and said, in a polite voice, “Excuse me, sir, I need to pay this meter.” Defendant turned, and, said, “Don’t ever fucking touch me again.” The victim was surprised and taken aback. The victim continued to talk on his cell phone as defendant had turned away. With his cell phone in one hand and his debit card in the other, the victim tried to put his debit card into the meter. He then felt defendant hit or push his shoulder from behind him. The force of the impact caused the victim to drop his cell phone. The cell phone lay on the ground for a few seconds before defendant shoved the victim a second time. Defendant stated he was going to “take [the victim’s] ‘fucking phone,’ ” and grabbed the cell phone from the ground. The victim tried to retrieve his cell phone, and defendant, with a closed fist, punched the victim in the nose. The victim felt like something cracked in his nose and then blood began pouring from his nose onto the sidewalk. Because of his injury, the victim did not go after defendant who left the scene.
The victim was scheduled to meet his friend Holly Furgason when the incident occurred. As Furgason walked toward the victim’s location, she observed a commotion between the victim and defendant. She hid between parked cars to avoid defendant who walked past her. Furgason observed the victim bleeding, and called 911. Furgason accompanied the victim to the hospital. While she was at the hospital, she located the victim’s cell phone by using an application on her cell phone. She informed the police that the victim’s cell phone was located in Jack Early Park, several blocks from the scene of the incident. A short time later, several San Francisco police officers went to Jack Early Park. Furgason was at the park when the police arrived there. The police officers observed defendant lying on the ground with his shoes on. The police officers woke defendant and handcuffed him. Before taking defendant to the police department, the officers arranged for a show-up at which Furgason positively identified the handcuffed defendant. At the police department, defendant was searched and the officers found the victim’s cell phone hidden in defendant’s left shoe.
A store merchant in the vicinity of the incident turned over a surveillance camera videotape of the incident to the police. The jury was shown two versions of the videotape. One videotape was 39 seconds in length and the other videotape was over two minutes in length; neither videotape had any audio. The shorter videotape showed defendant striking the victim on three separate occasions, twice before the victim dropped his cell phone and a third time when defendant punched the victim. The longer videotape showed the victim’s parked car and the victim getting his payment card out of his wallet before the encounter between the two men and then the actual encounter between the two men.
B. Defense Case
Defendant testified on his own behalf. He informed the jury that before he walked to Grant Avenue, he was seated on some steps off Columbus. He had a backpack that contained a tablet, two small cell phones, electrical and solar chargers, clothing, and other items. Defendant walked down Grant Avenue and stopped and placed his arm over a parking meter. He did not see anyone park at the meter. He first became aware of the victim’s presence when the victim touched him, and with a “slow push,” attempted to “guide” or move him away from the meter. Defendant turned to the victim and said, “Don’t ever f’ing put your hands on me again,” and the victim stepped away. Defendant also walked away, and stopped at the next parking meter, thinking the victim was still at the first meter. Defendant, surprised to see the victim right behind him, said, “Your meter is over there. Why are you still walking up to me? Why are you walking towards me?” The victim, while still talking on his cell phone, said something “dismissive,” when answering defendant, and turned his back on defendant. With the victim’s back toward him, defendant pushed the victim so hard that the victim dropped his cell phone on the ground. Not knowing what the victim had dropped and thinking the fallen object could be used as a weapon, defendant picked up the object. When he realized the object was a cell phone, defendant did not give it back or put it back on the ground. Instead, defendant punched the victim to keep the victim away from him. After he calmed down and felt the victim was not going to follow him, defendant kept the cell phone to get information from it and “to find a way to explain who [the victim] was and” why the victim had acted the way he did when he first encountered defendant. To avoid a confrontation with the police, defendant “devised a plan” to return the cell phone to the police department and he ultimately did so but “not in the way he wanted to.” Defendant went to Jack Early Park and laid down to calm himself, eventually falling asleep. When he awoke, there were three police officers standing over him and he was arrested without incident. Defendant admitted he had the victim’s cellphone in his possession for approximately two hours until the police discovered it hidden in defendant’s shoe. Defendant also called two witnesses to testify to his trustworthiness, honesty, integrity, and dependability.
On June 28, 2016, the presentation of evidence was concluded. A week later, the jury heard the court’s closing instructions and counsel’s closing arguments. Following two days of deliberations, the jurors returned guilty verdicts on the substantive counts. However, the jury was unable to reach a verdict on the great bodily injury allegation and the court declared a mistrial on the allegation. The court later granted the prosecution’s motion to dismiss the great bodily injury allegation.
DISCUSSION
Defendant’s sole argument on appeal is that he is entitled to a reversal of his convictions because the prosecutor committed prejudicial misconduct during closing argument. We conclude defendant’s argument is unavailing.
A. Relevant Facts
During closing argument, the prosecutor focused her argument on the element of intent in the robbery charge in the following manner:
“We know he used force. That’s not in dispute here. And intent, that is the real issue here. That’s what you heard throughout this trial, is that he didn’t intend to take the phone. [¶] . . . [¶] . . . We know he says, ‘I’m going to take your phone,’ and then he takes the phone and he leaves with it. [¶] That right there is enough to prove a robbery to you, but our case has so much more. We have intent. Let’s think about where Mr. Clark goes. . . . [¶] . . . [¶] . . . He picked a place that’s the perfect hiding location. [¶] . . . [¶] He has this phone for two hours. He makes no effort, no steps to try to return the phone. Why not? Because he wasn’t going to. He wanted to take this phone. He doesn’t investigate, he doesn’t do anything on the phone to investigate. Why? . . . He wasn’t planning on investigating anything. He wasn’t planning on returning anything. [¶] And the conduct at the time of his arrest, I think this is the most compelling fact here. When is the phone found? It’s found at the police station when they search him. [¶] You didn’t hear from Mr. Clark, ‘Oh, yeah I saw the police and they woke me up, and I said, ‘Hey, here is the phone. I have been trying to look for you. I’ve been trying to give it back.’[ ] [¶] He didn’t say that. He hid it in his shoe and waited until they physically found it. He’s not returning this phone . . . .” [¶] Even the fact that he hid it in his shoe demonstrates his consciousness of guilt.”
The prosecutor then asked the jury to consider “ten objective reasons that are consistent with guilt here,” in the following manner (italics added): “The conduct on the video shows robbery. His own statement, ‘I’m going to take your f’ing phone,’ that shows us this was a robbery. [¶] . . . [¶] He takes the phone. [¶] He fled the scene. . . . [I]f someone runs from the scene, you can infer that they were aware of their guilt. He left. [¶] He kept the phone, he turns it off, he doesn’t return it, he goes to a secluded place and he hides it in his shoe. When you take these ten reasons together, this is a robbery. It’s not anything less. [¶] So what is the defense telling you? This is a fabricated defense. It’s convenient. [¶] [Defense Counsel]: Objection, Your Honor. PMC [sic]. [ ] [¶] The Court: I’m going to overrule that. [¶] Ladies and gentlemen, I did read the instructions to you. I told you that comments of counsel are not evidence, and the attorneys are allowed to argue what the evidence shows to you. And so remember that is not evidence, what [the prosecutor] says is not evidence, what [defense counsel] will be telling you. They’re commenting on the evidence from their viewpoint. [¶] [Trial Prosecutor]: . . . This is a fabricated defense that Mr. Clark thought up. [¶] [Defense Counsel]: Objection, Your Honor. Objection. [¶] The Court: Overruled. [¶] . . . [¶] [Trial Prosecutor]: Mr. Clark’s own words. We have the court reporter here who took down everything he said. . . . [¶] Exact quote[,] ‘I was replaying the situation in my head over and over and trying to calm down. Well, while I was up there I kind of devised this plan.’ [¶] Mr. Clark fled the scene and he had two hours to try to think of what exactly he was going to say to explain himself out of this very sticky situation. And now he’s had almost eight, nine months to think about what he was going to tell you to try to make you believe him. . . . [¶] He got up there under oath and he told you a story that really just didn’t make sense. First, he says he thought there was a possible weapon; that when this object fell to the ground maybe it was a weapon, so he went for it. [¶] Okay, that actually might make sense, but then he realizes when it’s in his hand that it’s not a weapon. But he doesn’t give it back at that point and he didn’t say, ‘. . . I thought it was a knife. I’m sorry, this is not mine.’ No. [¶] Then he knows that the police are being contacted because Ms. Furgason yells, ‘I’m calling the police.’ [¶] And so he says at that point, he decides that he’s not going to investigate this phone because he knows the police are called and he doesn’t want any trouble. [¶] Then he says something about his interaction with Holly, but he doesn’t give her the phone. He doesn’t say, ‘Hey, please, don’t call the police. This is all a misunderstanding. Here is the phone.’ He doesn’t do that. He kept the phone. [¶] He never returns it, and he had two hours to think about this convenient excuse that he was going to give to the police and that he was going to give to you. He intended to investigate. Well, guess what? Even if that’s true, the second Mr. Clark picks up the phone, realizes it’s a phone, realizes it’s the phone that [the victim] has just been on, the phone that he felt so angry about that [the victim] was not paying attention to him, that he was more concerned with his conversation, he knew it was a phone the second it fell onto the ground and he grabs it and he takes it, and even if you think maybe he took it to investigate, that’s still a robbery. But he didn’t take it to investigate. He took it to keep it, and that’s why this is a fabricated defense.”
At the conclusion of the prosecutor’s initial closing argument and outside the presence of the jury, the court held a hearing to address defense counsel’s objection to the trial prosecutor’s comment of a fabricated defense. After hearing argument from counsel, the trial court denied the defense request for either an admonition to the trial prosecutor or a curative instruction to the jury to remedy the purportedly improper comment. In so ruling, the court found no prosecutorial misconduct or error and noted the jury had been told that counsel’s arguments were not evidence. During deliberations, defense counsel renewed her objection, requesting either a mistrial or a curative jury instruction relative to the trial prosecutor’s comment of a fabricated defense. The trial prosecutor opposed defense counsel’s requested relief. The court denied the requested relief for a mistrial or curative jury instruction without further comment.
B. Analysis
The law governing our consideration of the prosecutor’s closing comment of a fabricated defense is well settled. “Improper comments by a prosecutor require reversal of a resulting conviction when those comments so infect a trial with unfairness that they create a denial of due process. [Citations.] Conduct by a prosecutor that does not reach that level nevertheless constitutes misconduct under state law, but only if it involves the use of deceptive or reprehensible methods to persuade the court or jury. [Citation.]” (People v. Watkins (2012) 55 Cal.4th 999, 1031.) Based on these legal principles, it has been held that “ ‘harsh and colorful attacks on the credibility of opposing witnesses . . . are permissible[, and thus,] counsel is . . . allowed to argue, from the evidence, that a witness’s testimony is unbelievable, unsound, or even a patent “lie” ’ . . .” (People v. Pearson (2013) 56 Cal.4th 393, 442), and, “on the basis of inference from the evidence[,] that a defense is fabricated . . . .” (People v. Earp (1999) 20 Cal.4th 826, 863). However, it is also well settled that “[i]t is error for a prosecutor to argue that defense counsel knew his client was guilty but proceeded with a sham defense. (People v. Seumanu (2015) 61 Cal.4th 1293, 1337-1338 . . . [improper for prosecutor to assert defense ‘counsel presented a sham defense’]; see People v. Hill (1998) 17 Cal.4th 800, 824-825 . . . [finding prosecutorial misconduct when prosecutor misstated or mischaracterized evidence and attacked defense counsel’s integrity]; People v. Bain (1971) 5 Cal.3d 839, 847 . . . [prosecutor’s unsupported implication that defense counsel fabricated defense is misconduct].)” (People v. Williams (2016) 1 Cal.5th 1166, 1188 (Williams).)
We conclude the trial prosecutor’s reference to a fabricated defense was neither error nor misconduct. The major issue for the jury’s resolution was whether or not defendant had taken the cell phone with the intent to permanently keep it. Thus, the prosecutor properly focused entirely on the defendant’s testimony and the reasonable inferences that could be drawn from that testimony as well as other evidence, not the integrity of defense counsel. (See United States v. Birges (9th Cir. 1984) 723 F.2d 666, 671-672 & fn. 1 [“prosecutor’s closing comments that Birges’ testimony contained numerous lies and his duress defense was replete with fabrication and imagination” did not constitute misconduct].) Defendant may not complain the trial prosecutor’s reasoning was faulty or her conclusions were illogical because such matters were for the jury’s determination. (People v. Thomas (1992) 2 Cal.4th 489, 526.) Fairly construed, the trial prosecutor’s comment of a fabricated defense cannot be read, or even interpreted, as attacking the integrity of defense counsel by implying defense counsel was complicit in presenting perjured testimony, as defendant suggests. “Indeed, [in this case,] the [trial] prosecutor’s comments did not even reference defense counsel, but instead focused on defendant’s changing story.” (Williams, supra, 1 Cal.5th at p. 1189; but cf. People v. Seumanu, supra, 61 Cal.4th at pp. 1337-1338 [prosecutor’s closing comments improperly implied defense counsel was personally dishonest where prosecutor “did not simply argue the defense was unsupported by facts and thus a sham, but that defense counsel ‘put forward’ a sham”].) In all events, the trial prosecutor’s comment of a fabricated defense neither “ ‘ “ ‘infect[ed] the trial with such unfairness as to make the conviction[s] a denial of due process,’ ” ’ ” nor constituted a “ ‘ “ ‘deceptive or reprehensible’ ” ’ ” statement reasonably likely to be “construed or applied” by the jury “in an objectionable fashion.” (People v. Samayoa (1997) 15 Cal.4th 795, 841.)
DISPOSITION
The judgment is affirmed.


_________________________
Jenkins, J.


We concur:


_________________________
McGuiness, P. J.


_________________________
Pollak, J.