P. v. Coronado

Filed 7/25/07 P. v. Coronado CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County,
Ruth Ann Kwan, Judge. Affirmed.

Kim Malcheski, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General,
Paul Roadarmel, Jr., and David A. Voet, Deputy Attorneys General, for Plaintiff
and Respondent.

_________________________

Appellant Jesus Enrique Coronado appeals from the judgment entered following his conviction by jury on count 1 second degree murder (Pen. Code,  187) with findings that a principal personally used a firearm (Pen. Code,  12022.53, subds. (b)
& (e)(1)), a principal personally and intentionally discharged a firearm (Pen. Code,  12022.53, subds. (c) & (e)(1)), a principal personally and intentionally discharged a firearm causing death (Pen. Code, 12022.53, subds. (d) & (e)(1)), and the offense was committed for the benefit of a criminal street gang (Pen. Code, 186.22, subd. (b)(1)(A)), and with an admission that he suffered a prior felony conviction (Pen. Code,  667, subd. (d)). The court sentenced him to prison for 55 years to life. Appellant contends various trial errors occurred. We affirm the judgment.^[1]

CONTENTIONS

Appellant contends (1) the trial court committed constitutional error by admitting in evidence appellants statement to police concerning another shooting, and he was denied effective assistance of counsel when his trial counsel failed to move to exclude the statement, (2) the trial court committed constitutional error by admitting in evidence Hilda Gutierrezs coerced statement to police, and appellant was denied effective assistance of counsel when his trial counsel failed to make a motion in limine to exclude that statement, and (3) the prosecutor committed misconduct by appealing to the jurys passions during jury argument.

FACTUAL SUMMARY

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that on November 3, 2004, appellant and his accomplices, gang members, shot Luis Valencia in the back, killing him, during a drive-by shooting in Los Angeles. We provide below additional facts pertinent to appellants contentions.

1. Mario Valencias Testimony.

Mario Valencia (Mario) testified as follows. Luis Valencia (Luis) was Marios brother and, at the time of Marios January 2006 trial testimony, Mario was 21 years old. In November 2004, Mario lived at 23rd and Maple with his family, including Luis. Marios address was 2220 and two/thirds.

Between 9:00 p.m. and 9:30 p.m. on November 3, 2004, Mario was sitting on the porch of his home, and Luis was outside on the street. Mario heard one gunshot.

After Mario heard the gunshot, he walked towards the street. He then saw a truck, described as a dark blue SUV, pass by traveling north. The SUVs passenger side was facing Mario. Mario was more or less able to see people in the SUV. Mario saw the SUVs driver and passenger, and Mario saw weapons. When Mario saw the drivers face and the persons in the SUV, he also saw a hand sticking out the SUV window. The SUV had been traveling about 15 miles per hour, and Mario had seen it for three or four seconds.

The SUVs front passenger window was open. Mario did not hear people saying anything before or after the shot was fired. Mario did not hear the SUVs doors open or close. Mario never saw anyone exit the SUV. He never saw the SUV stop, and someone exit it and fire seven shots. The distance from the porch to the SUV as it drove by was about 100 feet. The distance from Mario to the SUV when he was closest to the SUV was about 45 feet. Mario went to the street and saw Luis on the ground. Luis, 18 years old, had been shot and fatally wounded.

On January 26, 2005, police showed Mario a photographic identification folder. Mario tentatively identified one of the photographs as depicting the SUVs driver. Police also showed Mario another photographic identification folder. Mario tentatively identified one of those photographs as depicting the shooter.

2. HildaGutierrezs Taped Statement.

Los Angeles Police Detectives Richard Arciniega and Johnny Villa interviewed Hilda Gutierrez. During Gutierrezs taped interview, detectives obtained preliminary information from Gutierrez about her and her family, and about appellant and his associates.

The following later occurred: [Villa]: Theres one thing Im going to make perfectly clear with you. Okay? Its just so theres no misunderstanding here. Okay? All right? Were going to ask you some questions, pretty tough questions. I dont want you to answer our questions in the way that you think we want to hear. I dont want you to try to make us happy. Do you understand? [] [Gutierrez]: Yeah. [] [Villa]: We want to know the truth. This is . . . what this is all about. Okay? We want you to tell us the truth. Dont tell us things that you think we want to hear. Okay? I just want . . . you to tell us the truth. Okay? [] [Gutierrez]: Okay. The interview then proceeded.

Gutierrez told the following to detectives. Jessy Coronado (hereafter, appellant) was a member of the Ghetto Boys gang, as was his homeboy Little Lefty. Little Lefty was appellants sidekick or road dog. Gutierrez had seen appellant in a little brown Nissan. She also had seen appellant in a black four-door car belonging to a person named Pelone. Gutierrez had heard something about a kid or boy who was shot on Maple. Memorial candles had been placed at 22nd and Maple. Appellant told her what had happened.

Gutierrez also stated the following. Gutierrez thought the kid had been shot in the daytime. A friend of Gutierrez told her that they had shot and killed someone. Later that night, about 10:00 p.m. or 11:00 p.m., appellant told her that appellant and Little Lefty had done something stupid. Appellant did not then tell her what they had done. A couple of days later, Gutierrez saw the kids photograph in a corner store and first learned that he was the person who had been killed. That night, Gutierrez asked appellant Did you guys do that . . . did you guys shoot . . . . She asked appellant if you guys shot that little Guerrito[.] Appellant laughed and replied yes. Gutierrez asked, You guys shot him for no reason? and appellant replied, For no reason.

Appellant said that appellant and Little Lefty had argued with the kid, and appellant and Little Lefty went back and shot the kid in the back. Appellant told Gutierrez that he shot the kid in the back. Gutierrez told appellant that she had known the kid. Gutierrez had known him because he had lived on 28th.

During the interview, the following occurred: [Villa]: My partners going to show you some photos -- [] [Arciniega]: Just want to see if were talking about the right Guerrito. [Sic.] Okay? [] [Gutierrez]: Yeah, thats him. [] [Villa]: Okay. [] [Arciniega]: That looks like him? [] [Gutierrez]: Yeah. The tape of Gutierrezs statements was admitted in evidence.

3. Gutierrezs Testimony.

At trial, Gutierrez testified as follows. Gutierrez had suffered a prior conviction for selling drugs. She was arrested in December 2004 with other people for a new offense of selling drugs and, at the time of her January 2006 trial testimony in the present case, she was in custody for the new offense. Before being arrested for the new offense, Gutierrez had been a Ghetto Boyz gang member. Appellant was also a member and his moniker was Bandit. Gutierrez was the mother of two of appellants children.

The prosecutor indicated to Gutierrez that she had been called as a witness at trial because the prosecutor wanted to ask her questions about an incident that happened in November 2004, and the prosecutor asked if she knew why she was present. Gutierrez replied yes.

Gutierrez denied that on November 3, 2004, she had a conversation with appellant about a shooting. She denied that on the night of November 3, 2004, appellant told her that he did something stupid. Appellant had never spoken to Gutierrez about Lil Lefty. Appellant never told Gutierrez that he had shot Guerito in the back. According to Gutierrez, a gang member who testified against another gang member was a snitch.

The prosecutor showed Peoples exhibit No. 1 to Gutierrez and asked if she had seen the young man depicted there. Gutierrez replied yes and testified she had seen him around. The person used to live on 28th Street. Gutierrez testified that Lil Guerito meant light-skinned. Gutierrez denied ever conversing with anyone about the young man depicted in Peoples exhibit No. 1, but she had heard that he was dead. In around October 2004, she had seen a collection box in a store with his photograph on the box. Gutierrez talked to police about the person.

Gutierrezs testimony was interrupted and, when it resumed, the prosecutor asked her if she remembered that the prosecutor had been asking Gutierrez questions about a shooting of a young boy who you referred to as Guerito. Gutierrez replied yes. The prosecutor asked if he was a little young guy, and Gutierrez replied yes. The prosecutor later asked Gutierrez when did she first hear about Luis Valencias shooting, and she indicated she became aware of it by something she had seen in a store.

Gutierrez also testified as follows. Police arrested Gutierrez on December 2, 2004, for selling drugs. The police asked everyone in the room if they knew anything about a shooting on 22nd and Maple. After police brought Gutierrez to the police station, Villa and another detective interviewed her about the killing of Luis. The prosecutor asked if Gutierrez told detectives that she knew Luis Valencia from the neighborhood, and she replied that she had seen him around. The prosecutor asked if Gutierrez told detectives that her boyfriend, Bandit, came home one night and said that he had done something stupid. Gutierrez replied that she had agreed with what detectives had told her. The prosecutor subsequently asked Gutierrez a series of questions about whether she had made various statements to detectives. Gutierrez replied to each question that she did not remember.

According to Gutierrez, the detectives asked Gutierrez if she knew anything about a shooting on 22nd and Maple. She initially indicated she did not, but the detectives kept pressuring her. Villa and another detective promised Gutierrez leniency by promising her she would be able to go home. Gutierrez was intimidated and went along with the story provided by the detectives. The detectives intimidated her by threatening her that she would not see her children again, and by telling her what had happened and that they were going to release her. The detectives had said the boy was shot on 22nd and Maple, and Gutierrez merely had agreed. Gutierrez testified that the tape of her statement to the detectives was accurate.

During about the first 30 minutes of the interview, the detectives were mean to Gutierrez and fed her a story. At the conclusion of that period, they were nice to her and taped her statement. An officer ultimately told her that they did not like her story. The detectives double-crossed her and she went to prison. Her taped statements were lies.

Gutierrez was represented by counsel in her new case and had met with him several times before she was convicted in that case. However, the first time she documented her claims that detectives in the present case intimidated her was when a defense investigator in the present case spoke to her while she was in prison on the new case. This occurred about two months before her trial testimony in the present case. Gutierrez never told her attorney in her new case that police had promised her that she would not serve time in the new case if she gave information pertaining to the present one.

4. Appellants Taped Statement.

Arciniega and another detective interviewed appellant after he waived his Miranda rights. Appellant, during the taped interview, told the detectives the following. Appellant knew what night the detectives were talking about. It was turning night when it happened. Appellant and the detectives were talking [a]bout that little kid that passed away. Years ago, the little kid used to stay on 27th and 28th between Maple and Main.

Appellant also said the following. A friend gave him a ride to Pelones house on 27th between Maple and Main. A party was taking place at Pelones house. About an hour later, appellant was smoking dope there. Probably around 8:30 p.m. or 9:00 p.m., Pelone gave appellant the keys to a black Expedition and asked him to drive Pelone and two other persons to a place called Wallys. Appellant indicated he was still affected by the dope but eventually complied. Pelone was the front seat passenger and the other two persons sat in the back. Appellant drove to 27th and San Pedro, then drove straight to Wallys. Appellant and the other four persons entered Wallys and bought items. Appellant thought Pelone and the other two persons might rob the store, but they all reentered the Expedition.

Appellant drove through the parking lot through Wallys and hit San Pedro. The other occupants then told him to hit on 22nd. Appellant balked and said he wanted to return the same way he had come. However, appellant later said all right, were going to pass through there. A back seat passenger said Theres some Flappers right there. Lets go back on them, so appellant hit on 22nd. Appellant said [he] kept on going all the way to Maple. So, . . . we stop. Like, close to Maple, they see somebody. They opened the door. And I stopped. The other occupants exited and were saying Man, fuck Flapper, . . . Appellant told one of the occupants to get in the car, and Pelone started shooting a black gun. Appellant testified [t]hey shot, like, seven rounds. The three others reentered the car and appellant drove away. Appellant testified I hit from 22nd, Maple, and I got into Maple to 27.

At one point, appellant said, we got to Maple, but before that, thats when all that happened, right next to that liquor store. Appellant claimed the shooting occurred on 22nd and if not, it was 23rd, by the liquor store. Appellant did not see the kid that the three occupants were assaulting and did not see the kid fall.

Appellant parked the Expedition where it originally had been parked, then went home. Appellant had not been aware before the shooting that the shooting was going to occur. Before he left for home, he complained to Pelone about what had happened. Appellant did not speak with anyone else later that day or the next day.

After the shooting, appellant left town for work and returned a week later. He then learned that the kid, the one who used to live on 28th, was the person who had been killed. Appellant learned this when he went to a store on 28th Street and saw a paper. Referring to the kid, appellant stated, I think he . . . had a twin brother or something like that. Appellant had known the little kid. When appellant had seen the kids photograph on the wall at the store, appellant did not immediately recognize him. However, appellants homeboy later told appellant you dont remember that little kid? He had a twin brother. Arciniega, apparently showing appellant a photograph of a truck, asked if that was the truck appellant had been driving, and appellant replied yes. Appellant saw Little Lefty at the party at Pelones house, but denied knowing Little Lefty.

During the interview with appellant, the detectives discussed Gutierrez. Arciniega asked appellant if he told Gutierrez that you guys just did something stupid, and appellant replied no. Appellant, five days after the shooting, might have told that to someone else while Gutierrez was present. Appellant later admitted associating with Little Lefty. Appellant said he and Little Lefty were smoke dogs, but appellant denied that Little Lefty had been in the Expedition. After the detectives left the interview room, a device recorded appellant saying, Fucking [Gutierrez], man. The tape of appellants statements was played to the jury and later admitted in evidence.

5. Detective Arciniegas Testimony.

Arciniega testified as follows. Arciniega and Villa interviewed Gutierrez on December 2, 2004. The interview occurred after Los Angeles Police Officer Julius Resnick, assigned to a narcotics unit, advised the detectives that Resnick had Gutierrez in custody and she was talking about one of the murders the detectives were investigating. The shooting occurred on November 3, 2004, and Gutierrez had been the first person to advise detectives that appellant had been involved in the shooting.

The detectives introduced themselves to Gutierrez and tried to make her feel comfortable. They told Gutierrez that Resnick had told them that Gutierrez wanted to talk to someone about the homicide. They also told Gutierrez that they were investigating it and wanted to hear what she had to say.

Arciniega testified that after the introductory part of the interview, [Gutierrez] starts talking about it, and we realize this is the murder that were investigating. Arciniega also testified that Gutierrez was asked what homicide she knew about, she began telling the detectives a story, and during that story, it came out that we were discussing the same homicide.

During cross-examination, Arciniega testified as follows. The detectives interviewed Gutierrez at 9:00 p.m. She was in custody for a narcotics matter. Resnick told detectives that Gutierrez wanted to speak with them about a homicide, but he did not mention appellants name or refer to a murder on 22nd and Maple. The detectives did not know what murder Gutierrez was going to talk about before she spoke with them. Neither Arciniega nor Resnick told Gutierrez that if she cooperated in the present case, it might help her in the new case. Neither the detectives nor the officers made any promises to Gutierrez.

Arciniega denied telling Gutierrez that if she did not cooperate with him, he would take her children from her or they would be put in foster care. Arciniega denied telling Gutierrez to tell the detective about appellant and that it was either going to be appellant, or Gutierrez and her children. Arciniega spent about 20 to 30 minutes establishing a friendly rapport with Gutierrez. The detectives subsequently taped her statement. The detectives clarified things she said, but were not putting things in her head. Arciniega denied that during the taped portion of the interview, he was reminding Gutierrez of what he wanted her to say.

Arciniega did not believe appellant was involved in a shooting at 23rd and Wall, but that appellant was involved in a shooting in that area. According to Arciniega, appellant in his statement to the detectives described the killing of Luis, who was shot in the back. Arciniega testified, [appellant drove] up in a black vehicle, truck, SUV type of vehicle, and he puts people getting out of the car, which again witnesses dont describe. But again this persons shot in the back. [] Theres a lot of consistencies in that. And again he puts himself in that area, that immediate area.

6. DetectiveVillas Testimony.

Villa testified as follows. Villa went to the crime scene at 2220 Maple. During appellants interview at the police station, appellant said the shooting occurred on 22nd and Maple, or 22nd and Wall. The prosecutor later asked Villa where appellant said the shooting occurred, and Villa testified, It was a little confusing, but I want to say he says the shooting takes place on 23rd Street between Main, I believe, Main and/or Maple and Wall, I believe.

At the end of appellants interview, Villa thought appellant was talking about the shooting of the kid, and appellant gave information that admitted his involvement, but Villa thought appellant was also giving information that would distance himself from the shooting. Appellant was not describing 2220 South Maple to Villa, but describing something around the corner. Appellant said he saw Pelone fire a gun five to seven times on 23rd Street between Maple and Wall. The shooting actually took place just south of 22nd and Maple and was around the corner and not far from where appellant said he saw Pelone fire the gun.

Villa showed Pelones photograph to Mario, and Mario denied that Pelone was the person whom Mario saw in the vehicle that night. Villa showed appellant a photograph of a black truck located at 23rd and Wall. A video camera took the photograph. Appellant admitted he had been in the vehicle.^[2]

DISCUSSION

1. Appellants Statement Was Properly Admitted in Evidence, and He Was Not Denied Effective Assistance of Counsel.

a. Pertinent Facts.

After Mario, Gutierrez, and Arciniega testified, appellant moved to exclude appellants statement to detectives. Appellant suggested the shooting to which he had referred in his statement to detectives was not the Luis shooting. In particular, appellant argued that the shooting to which he had referred occurred on an unknown date, and the place and circumstances of the Luis shooting were different from those of the shooting to which appellant had referred. At the preliminary hearing, Villa had testified that the shooting to which appellant had referred occurred sometime in 2004, and that Villa felt it was sometime around November 2004. Appellant conceded that 22nd and Maple was close to the Luis shooting scene.

The prosecutor argued that appellant had admitted involvement in the Luis shooting, but changed facts to minimize appellants involvement. The prosecutor did not believe the detectives had shown a photograph of Luis to appellant during his interview.

Following argument, the court stated . . . its an issue for the jury to decide, quite frankly. [] Its enough similarity. The truck, the location, half a block difference, and also the description of the victim all matched really, particularly where the victim used to live [sic] and also the fact that the victims photograph was all over the local little stores in the neighborhood, and he identified it, yeah, thats the little kid that was killed, . . . The court indicated there was sufficient evidence to permit the prosecutor to argue appellant admitted killing Luis. The court denied appellants motion to exclude the tape of appellants interview with detectives.

b. Analysis.

Appellant claims the trial court erred by admitting in evidence appellants statement to detectives, because it was irrelevant and excludable under Evidence Code sections 352 and 1101, and admitting the statement in evidence violated his rights to a fair trial, due process, and a jury trial under the Fifth, Sixth, and Fourteenth Amendments. He also claims he was denied effective assistance of counsel to the extent his trial counsel failed to object below on these grounds.

Appellant waived the issues pertaining to Evidence Code sections 352 and 1101, and pertaining to the Fifth, Sixth, and Fourteenth Amendments, by failing to object on those grounds below. (Cf. People v. Clark (1992) 3 Cal.4th 41, 125-126; People v. Benson (1990) 52 Cal.3d 754, 786-787, fn. 7; People v. Rogers (1978) 21 Cal.3d 542, 548.)

On the merits, the dispositive issue in this case is whether the trial court correctly ruled, in effect, that appellants statement was relevant as an admission of his involvement in the shooting of Luis. On the other hand, the premise of appellants claims is that appellants statement referred to the shooting of someone else and, therefore, was other crimes evidence.

An appellate court applies the abuse of discretion standard of review to any

ruling by a trial court on the admissibility of evidence, including a ruling on relevance. (People v. Waidla (2000) 22 Cal. 4th 690, 717-718.) Admittedly, the present issue might never had arisen if, during the detectives interview of appellant, they simply had shown a photograph of Luis to appellant. Nonetheless, we conclude for the reasons discussed below that the trial court did not abuse its discretion by ruling that appellants statement to detectives was relevant as an admission of his involvement in the killing of Luis and was not other crimes evidence.

We have set forth the pertinent facts in our Factual Summary. There was substantial evidence as follows. Mario testified that the vehicle he saw (at night) was a dark blue SUV. Appellant told detectives that he was driving a black Expedition. Mario indicated he was able to see people in the vehicle, and there were a driver and passenger. Appellant told detectives that there were three passengers in the Expedition. Mario testified Luis was shot between 9:00 p.m. and 9:30 p.m.Appellant told detectives that probably around 8:30 p.m. or 9:30 p.m., Pelone gave appellant the keys to the Expedition; appellant later drove in the area of the shooting of Luis.

Luis was shot in front of or very near his home at 2220 2/3 Maple. Although appellant did not clearly identify the location of the shooting to which he referred, it was close to Luiss home. Arciniega and Villa believed appellant admitted involvement in the shooting of Luis but provided false information to minimize appellants involvement.

During Gutierrezs interview, she identified a photograph of Luis as the shooting victim to which she had referred during her interview, and she indicated that Luis was the shooting victim whom she and appellant were discussing when appellant admitted involvement in a shooting. Moreover, Gutierrez testified a little young guy had been killed. Appellant told detectives that (1) appellant and the detectives were talking about that little kid that passed away and (2) the kid was a male. Gutierrez testified the young man used to live on 28th Street. Appellant told detectives that the kid used to live on 28th. Gutierrez testified Luis had been shot. Appellant told detectives that Pelone shot a gun, and denied seeing the kid whom the occupants of appellants vehicle were assaulting.

Gutierrez told detectives that appellant told her that appellant and Little Lefty argued with the kid, and appellant and Little Lefty went back. Appellant told detectives that one of the occupants in his vehicle said Lets go back on them. Gutierrez told detectives that appellant said that he and Little Lefty shot the kid in the back. Luiss autopsy revealed he was shot in the back.

Gutierrez told detectives that appellant told her that appellant and Little Lefty shot the kid (Luis). Appellant gave conflicting statements as to whether he knew Little Lefty, evidencing consciousness of guilt in the shooting of Luis.

Gutierrez testified she had seen a young mans photograph on a collection box in a store. In her taped statement, she said she had seen the kids photograph in a corner store. Appellant told detectives that he had seen a photograph of the kid on the wall at a store, and that, when appellant went to a store on 28th Street and saw a paper, appellant learned the kid had been killed.

Luis was 18 years old when he was killed. His brother Mario was 21 years old when he testified at trial in January 2006; therefore, Mario could have been 18 years old at the time Luis was killed. Appellant, referring to the kid, told detectives, I think he . . . had a twin brother or something like that.

During her interview, Gutierrez told detectives that she heard something about a boy or kid who was shot on Maple. Mario testified his address was at 2220 and two/thirds, apparently referring to 2220 and 2/3 Maple, and Luis was outside on the street.

Arciniega testified that the shooting he was investigating (the shooting of Luis) occurred on November 3, 2004. Resnick told Arciniega and Villa that Gutierrez was talking about one of the murders they were investigating. Gutierrez was the first person to tell the detectives that appellant had been involved in the shooting. When Gutierrez began talking to the detectives about the matter, they realized she was talking about the murder the detectives were investigating. Arciniega testified that as Gutierrez presented a story of what had happened, it came out that we were discussing the same homicide. We conclude, after consideration of all the evidence, that the trial court properly ruled that appellants statement was relevant as an admission of his involvement in the shooting of Luis. Accordingly, there is no need to address appellants Evidence Code section 352, Evidence Code section 1101, and constitutional claims, which are premised on the erroneous assumption that the statement was inadmissible other crimes evidence. Moreover, in light of the above, appellant was not denied effective assistance of counsel by his trial counsels failure to object on the above grounds, since any constitutionally deficient representation was not prejudicial. (See People v. Ledesma (1987) 43 Cal.3d 171, 216.)

2. Gutierrezs Statement Was Properly Admitted in Evidence, and Appellant Was Not Denied Effective Assistance of Counsel.

Appellant claims Gutierrezs statement to detectives was coerced; therefore, the trial court erred by admitting it in evidence. He also claims he was denied effective assistance of counsel to the extent his trial counsel failed to object below to the statement on the ground it was coerced.

Appellant waived the admissibility issue by failing to object to the introduction of Gutierrezs statement on the ground it was coerced. (Cf. People v. Mayfield (1993) 5 Cal.4th 142, 172; People v. Benson,supra, 52 Cal.3d at pp. 786-787, fn. 7; People v. Rogers,supra, 21 Cal.3d at pp.547-548.)

On the merits, we assume a defendant may object at trial on due process grounds to the admission in evidence of a third partys extrajudicial coerced statement. (Cf. People v. Badgett (1995) 10 Cal.4th 330, 344; People v. Lee (2002) 95 Cal.App.4th 772, 786-788.) Moreover, The statement of a . . . witness is coerced if it is the product of police conduct which overcomes the persons free will. [Fn. omitted.] [T]he primary purpose of excluding coerced testimony of third parties is to assure the reliability of the trial proceedings. . . . [Fn. omitted.] (People v. Lee, supra, 95 Cal.App.4th at p. 782.) We review the record de novo to determine whether, based on the totality of the circumstances, the statement was voluntary. (Cf. People v. Badgett, supra, 10 Cal.4th at p. 352; People v. Lee, supra, 95 Cal.App.4th at p. 781.)

We have recited the pertinent facts. Arciniega admonished Gutierrez during her taped statement that he wanted her to tell the truth. He testified to the effect that the detectives put Gutierrez at ease during the interview, did nothing to compel her to make a statement or state certain things, and did not provide her information to parrot as her own. We are not obligated to believe any self-serving testimony by Gutierrez to the contrary. Appellant has failed to demonstrate that Gutierrezs taped statement to the detectives was coerced, or that the trial court erred by admitting it in evidence. It follows appellant has failed to demonstrate he was denied effective assistance of counsel. (See People v. Ledesma, supra, 43 Cal.3d at p. 216.)

3. No Prejudicial Prosecutorial Misconduct Occurred.

a. Pertinent Facts.

During the prosecutors summation of his lengthy opening argument, the prosecutor commented on Luis, and the following occurred: [The Prosecutor]: Now, this young guy [Luis] has been reduced to a photograph. This youth used to be a vibrant 18-year-old kid who lived and breathed and smiled and laughed and cried just like you. Now he is a photograph. He is a two-dimensional object. He is a name in a transcript. Hes a memory. He was violently ripped from this world by two people for the dumbest of reasons, in the most cowardly of fashion. And one of them is sitting in this courtroom right now. This young guy was taken out of this world at 18, and I want you to appreciate the loss in that, to lose your life at 18. [] Now, you are all various ages. Some of you are closer to 18 than others; but if I were to ask you to think back to 18 - [] [Defense Counsel]: Objection, your Honor. Hes appealing to the passions. [] [The Court]: Overruled. (Italics added.)

The prosecutor then stated, And think of all the things that life has brought you since that age, and what I mean by that I mean birthdays, holidays, happy hours, children, weddings, books, movies, skiing, jury service, good times and bad times; theres a lot of life that we lived since 18. And then I ask you to erase it all. [] Thats what the defendant and Lil Lefty did to Luis Valencia. They erased it all because they want to run around the community pounding on their chest calling themselves gangbangers. Okay. Well, theyve done that. And now its time for them to be held accountable. Its time for him to be held accountable for what he did. The prosecutor later indicated he believed the jury would be fair and intelligent and dispassionate as [the jury went] through the evidence and put the pieces together.

b. Analysis.

Appellant claims the prosecutors previously italicized argument constituted misconduct by improperly appealing to the passions of the jury. Appellant waived
the issue by failing to object and request that the trial court admonish the jury. (Cf. People v. Gionis (1995) 9 Cal.4th 1196, 1215; People v. Clark (1993) 5 Cal.4th 950, 1016; People v. Mincey (1992) 2 Cal.4th 408, 471.)

On the merits, in People v. Hill (1998) 17 Cal.4th 800, our Supreme Court stated, The applicable federal and state standards regarding prosecutorial misconduct are well established. A prosecutors . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. [Citation.] [Citation.]

Regarding the scope of permissible prosecutorial argument, we recently noted a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] It is also clear that counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, . . . [Citation.] A prosecutor may vigorously argue his case and is not limited to Chesterfieldian politeness [citation], . . . . [Citation.] [Citation.] (People v. Hill, supra, 17 Cal.4th at p. 819.)

Finally, to prevail on a claim of prosecutorial misconduct based on remarks made to the jury, the defendant must show a reasonable likelihood that the jury understood or applied the challenged comments in an improper or erroneous manner. (People v. Frye (1998) 18 Cal.4th 894, 970; People v. Samayoa (1997) 15 Cal.4th 795, 841.)

In the present case, the prosecutor did little more than elaborate on the fact that Luis Valencia was dead. Notwithstanding appellants arguments to the contrary, this is not a case such as People v. Fields (1983) 35 Cal.3d 329, 361-362, or People v. Simington (1993) 19 Cal.App.4th 1374, 1378-1379, in which the prosecutor impermissibly invited the jury to view the commission of a crime(s) with its unique facts through the eyes of a victim. Here, the prosecutor, inviting the jury to consider things that Luis Valencia would never see, relied upon the common knowledge of the jury and provided illustrations based on the jurys common experience to comment on the significance of the unlawful taking of human life. Appellant has failed to demonstrate a reasonable likelihood that the jury understood or applied the challenged comments in an improper or erroneous manner. Nothing the prosecutor did violated due process, or was so reprehensible or deceptive as to constitute prosecutorial misconduct. (Cf. People v. Gionis, supra, 9 Cal.4th at pp. 1214-1215.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

We concur:

KLEIN, P. J. ALDRICH, J.

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^[1] On September 14, 2006, appellant filed a petition for a writ of habeas corpus (B193660) and, on September 20, 2006, this court ordered that his appeal and the petition be concurrently considered. The petition will be the subject of a separate order.

^[2] After the court denied appellants later motion for judgment of acquittal, appellant objected to the exhibits of the vehicle, the black truck[.] The court overruled the objection, stating The key here is the fact that your client identified -- in his interview with the police, identified that photograph of that black SUV as the one that he drove. . . . And . . . showing . . . the SUV moving in a direction . . . contrary to what your client told the police officer, thats relevant in terms of the truthfulness of his statement to the police officer.