P. v. Espinoza

Filed 6/16/08 P. v. Espinoza CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Jose J. Espinoza appeals the judgment following his conviction for assault with a deadly weapon, an automobile. (Pen. Code,  245, subd. (a)(1).)[1] Espinoza claims he received ineffective assistance of counsel when defense counsel failed to object to misconduct by the prosecutor when the prosecutor misstated the reasonable doubt burden of proof during closing argument. We affirm.

FACTS AND PROCEDURAL HISTORY

Pedro Polanco was sitting with Marilly Perez in his car across from Perez's home. Espinoza drove by, intentionally side-swiped Polanco's car, and drove on. Perez recognized Espinoza as the driver because they had had a three-year prior romantic relationship and Espinoza was the father of her son. Polanco started to drive after Espinoza, but returned to Perez's home to drop her off after driving around the block. When Polanco returned to Perez's home, Espinoza was still in the area, and parked his car close to Polanco's driver's door, preventing Polanco from opening it. Espinoza got out of his car and began fighting with Polanco through the open sun roof on Polanco's car. When Polanco was able to get out of his car through the passenger side door, Espinoza and Polanco continued fighting.

At trial, Polanco testified that Espinoza stabbed him with a screwdriver through the open sun roof, continued stabbing him after he got out of his car, and threatened to kill him. Polanco testified that Perez's father, Benito Perez, came out of the house and tried to separate the two men, and that Espinoza threatened to kill the father as well as Polanco. Polanco testified that Espinoza fled the scene after Marilly Perez stated that she had called the police.

A deputy sheriff arriving at the scene after the fight testified that Polanco had several puncture wounds in his head, and blood running down the side of his head. The deputy testified that Benito Perez told him that Espinoza was attempting to stab Polanco with a screwdriver. Another deputy who interviewed Marilly Perez after the incident testified that she told him Espinoza stabbed Polanco with a screwdriver.

Espinoza testified that he punched Polanco through the sun roof of Polanco's car because he thought Polanco was going to pull a gun on him. Espinoza testified that he did not have a screwdriver or use any other weapon. He testified that he and Polanco exchanged more blows after Polanco got out of his car, and that Polanco hit him in the head with a flower pot.

Marilly Perez testified at trial that she saw Espinoza and Polanco fighting but did not see how the fight started, did not see any weapons, did not hear any threats being made by Espinoza, and did not see Polanco bleeding except from his nose. Benito Perez testified that he saw Espinoza and Polanco fighting, but did not see any weapons or hear any threats.

Espinoza was charged with attempted murder ( 664/187), assault with a deadly weapon (an automobile) ( 245, subd. (a)(1)), criminal threats to Polanco and Perez's father ( 422), and misdemeanor hit and run (Veh. Code,  20002, subd. (a)). It was alleged that Espinoza used a deadly weapon, a screwdriver, in the attempted murder and criminal threat offenses, and that he had suffered a prior strike conviction.

After a jury trial, Espinoza was convicted of assault with a deadly weapon, his automobile, but acquitted of attempted murder and the lesser included offense of attempted voluntary manslaughter. The jury was unable to reach a verdict on the criminal threats and hit and run offenses, and those charges were dismissed. The prior strike allegation was stricken on the request of the prosecution. Espinoza was sentenced to state prison for three years.

DISCUSSION

Espinoza contends that the prosecutor committed prosecutorial misconduct by misstating the reasonable doubt standard of guilt during closing argument. He concedes the misconduct claim has been waived due to defense counsel's failure to object at trial (People v. Hill (1998) 17 Cal.4th 800, 820), but argues that he received ineffective assistance of counsel due to the failure to object. We disagree.

Claims of prosecutorial misconduct may be based on an erroneous statement of the law in argument. (People v. Hill, supra, 17 Cal.4th at pp. 829-832.) "[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." (People v. Marshall (1996) 13 Cal.4th 799, 831.)

To prevail on a claim of misconduct during argument, the defendant must show a reasonable likelihood the jury construed or applied the remarks in an improper manner. (People v. Ayala (2000) 23 Cal.4th 225, 284; People v. Frye (1998) 18 Cal.4th 894, 970.) We examine the prosecutor's conduct in the context of the whole argument and the instructions to the jury given by the trial court. (People v. Dennis (1998) 17 Cal.4th 468, 522; Chalmers v. Mitchell (2d Cir. 1996) 73 F.3d 1262, 1267.) Moreover, the "court's instructions are determinative in their statement of law, and we 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." (People v. Sanchez (1995) 12 Cal.4th 1, 70; Boyde v. California (1990) 494 U.S. 370, 384.)

Espinoza claims the prosecutor mischaracterized the reasonable doubt standard in a portion of his closing argument. After accurately defining the standard, the prosecutor stated: "What does that mean? Do you believe that Mr. Espinoza attempted to kill Pedro Polanco? It is not some mysterious theoretical idea of beyond a reasonable doubt. What [defense counsel] said . . . you might think he is guilty, but you don't think he is guilty beyond a reasonable doubt. What does that mean? If you think he is guilty and you believe he is guilty, then he is guilty. [] It is your system. You are the jury. If you believe he is guilty, there is not a separate analysis that you need to do to decide yes, but is he guilty beyond a reasonable doubt. If you believe that Mr. Espinoza stabbed or attempted to kill Pedro Polanco, he is guilty, and there is nothing more that needs to be said about it."

Some of these remarks by the prosecutor are ambiguous and difficult to understand. In isolation, the statement to the jury that it is "your system" and "[i]f you think he is guilty and you believe he is guilty, then he is guilty" may suggest that a finding of guilt is subjective rather than a determination that must be made beyond a reasonable doubt. Such a suggestion would be a gross misstatement of the law. In addition, Espinoza focuses on the prosecutor's ambiguous assertion that a "separate analysis" is not required to show guilt beyond a reasonable doubt, and claims that this statement conveys to the jury the impression that no level of certainty is required before it can find a defendant guilty of a crime.

Although certain isolated phrases may be troubling, and sentences taken out of context, the prosecutor's closing argument must be considered as a whole. As a whole, the prosecutor's closing argument made it clear that a guilty verdict required the jury to find Espinoza guilty only if it found that the People had proven the elements of the offense beyond a reasonable doubt. We conclude that there was no reasonable likelihood that the jury would interpret the statements of the prosecutor as lessening the burden of proof or otherwise apply the statements in an objectionable fashion.

Moreover, the effect of any improper argument by the prosecutor was dispelled by the trial court's instructions on the concept of reasonable doubt, and the instruction that attorney argument is not evidence and that, in case of conflicts, the jury must follow the law as given by the court. It is presumed that the jury followed these instructions. (People v. Frank (1990) 51 Cal.3d 718, 728; People v. Bryden (1998) 63 Cal.App.4th 159, 184.) It is also significant that the challenged argument was specifically directed at the attempted murder charge, and Espinoza was acquitted of that offense. We cannot conclude that it is reasonably probable the jury was misled by the prosecutor's statements. (See People v. Nguyen (1995) 40 Cal.App.4th 28, 36-37.)

Our conclusion that there was no prosecutorial misconduct defeats Espinoza's argument that he received ineffective assistance of counsel. "Accordingly, defendant fails to establish either misconduct or, it follows, ineffective assistance of counsel." (See People v. Marshall, supra, 13 Cal.4th at pp. 831-832.)

The judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

YEGAN, Acting P.J.

COFFEE, J.

Yvonne T. Sanchez, Judge

Superior Court County of Los Angeles

______________________________

Alan Mason, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon, Supervising Deputy Attorney General, Sharlene A. Honnaka, Deputy Attorney General, for Plaintiff and Respondent.

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[1]^{All statutory references are to the Penal Code unless otherwise stated.}