Filed 4/26/18 P. v. Gould CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO


THE PEOPLE,
Plaintiff and Respondent,
v.
DEREK GOULD,
Defendant and Appellant.

No. A148090

(San Francisco County Super.
Ct. No. 223356)


Defendant Derek Gould appeals from a judgment of conviction of two counts of misdemeanor receiving stolen property and three felony firearm offenses, entered after a jury trial. He contends he should have been convicted of only one count of receiving stolen property and that the prosecutor committed prejudicial misconduct in closing argument. We agree that defendant should have been convicted of only one count of receiving stolen property and otherwise affirm the judgment.
BACKGROUND
In an April 2015 first amended information, the San Francisco District Attorney charged defendant with ten criminal counts for acts he allegedly committed against Christian Seeney and Troy Konaris on December 31, 2013: felony second degree robbery against each victim while armed with a firearm (counts one and two); assault with a semiautomatic firearm on Christian Seeney (count three); grand theft regarding each victim (counts four and five); misdemeanor receiving stolen property belonging to each victim (counts six and seven); felony possession of a firearm by a felon (count 11); felony possession of a concealed firearm in a vehicle (count 12); and felony carrying a loaded firearm by a convicted person (count 13). The last two counts were accompanied by special allegations, and it was also alleged defendant had two prior felony convictions under Penal Code section 667.5. The same or similar counts and allegations were made regarding codefendants Dishon Irving and Terrence Singleton.
Neither Seeney nor Konaris testified at trial. Evidence indicates that sometime after 4:00 p.m. on December 31, 2013, they called the police to report that five minutes before, while customers at a San Francisco gas station, they were robbed at gunpoint by three possibly Latin male adults who fled in a silver car. San Francisco police officers Peter Larsen and Nicholas Cuevas heard the resulting dispatch and arrived at the gas station at 4:26 p.m. Seeney and Konaris, who were with a woman, waved them down and said they had called. Larsen testified that “Konaris was visibly upset. He was . . . shaking, his hands, he was clenching his jaw, he was essentially ranting a little bit; upset.” Seeney was “a little quieter” and “seemed . . . shocked.” Cuevas testified that “Konaris appeared extremely upset.” Seeney “was much more calm” but “still appeared fearful,” “in shock,” “depressed and upset.” Konaris said he did not want to make a report because he lived in a “small town” environment in the Sunnydale area, and “feared that he would . . . run into the suspects again and that [the police] wouldn’t be able to protect him.” He “feared for his life and Mr. Seeney’s life.”
The gas station’s cashier testified that at about 4:00 p.m. that day, a man told her “a car was being stolen outside.” He pointed outside the window, where the cashier could see three or four African American people around a gray car but no signs of criminal activity. The man gave her a license plate number and left, and there is no indication in the record that the police located him. The cashier was aware that something was going on outside, but did not call the police or push the “panic button” at her station for fear that she would raise a false alarm. She wrote down the number and “gray car” on a piece of paper and later gave a copy of the paper to the police.
Larsen viewed the gas station’s surveillance videos from the period of time around the incident, some of which were shown to the jury, but which are not in the record. The cashier identified the man who told her about the car being stolen outside in one of the videos. The gas station manager identified men, who turned out to be Seeney and Konaris, in another video exiting the station’s store shortly before the incident. Video also showed a silver car move behind a black car, outside of which Seeney stood and inside of which Konaris sat in the driver’s seat. The video, too grainy to allow faces to be identified, depicted two passengers get out of the silver car, have some sort of encounter with one, possibly two people by the black car, and return to the silver car, and the two cars then left the area. There was further evidence that Seeney and Konaris, with their woman companion, returned to the gas station some minutes later, asked to see the station’s videos, called the police, and calmly waited in the store for the police arrive. Larsen broadcast the silver car’s license number and color.
Testimony indicates surveillance videos from a Richmond gas station/convenience mart recorded about an hour and a half after the incident, also not in the record, were shown to the jury as well. The prosecutor described the videos as showing Irving and Singleton walk over to an ATM and Irving turn to the ATM for a few minutes.
San Francisco police officer Mike Ellis heard a dispatch about the silver car, checked its license number and determined defendant was registered as its owner. Ellis knew defendant and was familiar with his car, which had distinctive rims. At 9:33 p.m. that night, Ellis was with other officers, sitting in an unmarked police car in a San Francisco parking lot, when he saw what looked like the car. The officers followed the car out of the parking lot as they checked its license plate. The car accelerated to a high rate of speed, then stopped abruptly, the front passenger side door “flew open” and a person, later identified as Singleton, got out and ran away. Ellis and another officer gave chase and detained him. When Ellis returned, defendant and Irving were detained and sitting on the curb outside defendant’s car.
Ellis did a sweep of defendant’s car for weapons. He found two semiautomatic handguns concealed inside the center console, from which no fingerprints were obtained, and a plastic bag containing a white substance that he thought was base rock cocaine. Ellis searched Irving’s person and found an ATM receipt in a pants pocket. The receipt was later determined to be from the Richmond ATM used by Irving. It refers to an attempt to withdraw $200 and states, “invalid pin.” Ellis searched defendant’s jacket for weapons and found Seeney’s driver’s license and debit card in it. Police also seized five cell phones and an iPad that were in the car, and other items.
That evening, police drove Seeney and Konaris to a San Francisco location to show them defendant, Singleton and Irving. Konaris was nervous and scared, Seeney was quiet and “a little reluctant” to be there, and both slouched down in their car seats. Seeney’s driver’s license and debit card were returned to him. Konaris was able to unlock the iPad with a four-digit passcode and identified two of the cell phones seized by police as belonging to him. These items, as well as a necklace that police also seized, were returned to him.
Police interviewed defendant on January 1, 2014. He said he owned the silver car, spent the night of December 30 in Antioch and drove back to San Francisco the next day, picking up Irving and Singleton near where they were detained. Told the police had proof his car was in San Francisco earlier in the day, he said he was in San Francisco with “a girl,” left and came back. He denied being involved in a robbery or knowing that any guns, drugs or stolen property were in his car, and said he had driven his car “all day.”
The prosecution also played recordings of two phone calls by defendant from jail, one to his sister and one to “Felicia.” He told his sister he expected to be out of jail soon because a codefendant said someone had contacted the people who were supposedly robbed and they were not going to press charges or come to court. He told Felicia he thought the case would be dropped because “[s]omebody in here hollered” at the complaining witnesses and they were “not going to participate.”
An investigator for the district attorney’s office testified that Seeney called him after attempts were made to serve a subpoena on him. Seeney said he did not want to see the defendants and he had already spoken to several other police officers and an assistant district attorney. He was “quite adamant that he did not want to come to court and participate in the case.”
The court dismissed the assault charge for lack of evidence. The jury acquitted defendant of robbery and grand theft, found him guilty of the two counts of misdemeanor receiving stolen property and of the three firearm counts, and found the special allegations before it to be true. Defendant admitted having two prior felony convictions, and the court found these allegations to be true. The court sentenced him to a total of four years in state prison for his felony convictions and the related allegations, and awarded him 1,528 days of credits. It sentenced him to two six-month terms in county jail for his misdemeanor receiving stolen property convictions, to run concurrent with his other sentences. Defendant filed a timely notice of appeal.
DISCUSSION
I.
Defendant Should Have Been Convicted of Only One Count
of Receiving Stolen Property.
Defendant argues he should have been convicted of only one count, not two, of misdemeanor receiving stolen property because the evidence was that he received all of the property at once, even if some of it belonged to Seeney and some to Konaris. The People agree. We conclude defendant is correct.
Defendant was charged in count six with misdemeanor receiving stolen property, i.e., an iPhone, debit card, belt and United States currency, belonging to Seeney, and in count seven with misdemeanor receiving stolen property, i.e., an iPad, gold chain, cell phone, belt and United States currency, belonging to Konaris. As we have discussed, some of these and other items belonging to Seeney or Konaris were found in defendant’s car and jacket the night of December 31, 2013. The prosecution’s contention, uncontested by defendant here, was that defendant drove his car up behind Seeney and Konaris’s black car at the San Francisco gas station, Irving and Singleton got out, went over to the black car and stole items from Seeney and Konaris, Irving and Singleton got back in defendant’s car with the items and the three drove away, only to be found together by police several hours later with the stolen property. Defendant was convicted of counts six and seven. He contends he cannot be convicted of both counts under these undisputed circumstances. We review this issue de novo. (See Pasadena Police Officers Assn. v. Superior Court (2015) 240 Cal.App.4th 268, 284 [“trial court’s construction and ‘interpretation of the [law] and its application to undisputed facts present questions of law subject to de novo . . . review’ ”].)
The issue defendant raises is well-settled. He was convicted of counts six and seven under Penal Code section 496. It provides in relevant part, “Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished . . . .” (Pen. Code, § 496, subd. (a).) Decades ago, in a case involving convictions under Penal Code section 496 for receiving stolen property belonging to two different owners, our Supreme Court stated, “Defendant meritoriously contends that the receipt by him of the two items of property . . . constituted only one criminal transaction and that therefore he should not have been sentenced on two counts. The evidence of the accomplices shows that defendant originally received the watch and the fur coat on a single occasion. Therefore, but one offense of receiving stolen property is shown, although the goods were stolen from different sources, and the duality of the sentences, even though they are ordered to run concurrently, cannot be permitted to stand.” (People v. Lyons (1958) 50 Cal.2d 245, 275 (Lyons), disapproved on other grounds in People v. Green (1980) 27 Cal.3d 1, 27–34; see also People v. Morelos (2008) 168 Cal.App.4th 758, 763 [citing Lyons for the proposition that “ ‘if the evidence shows that goods stolen from different sources were received on a single occasion, there is but one offense of receiving stolen property’ ”].) The Lyons court concluded it was appropriate under the circumstances, and of no prejudice to Lyons, to affirm one count and reverse the other (Lyons, at pp. 275–276), as defendant requests we do here. We shall follow Lyons by affirming count six and reversing count seven.
II.
Defendant’s Prosecutorial Misconduct Claim Lacks Merit.
Defendant next argues the prosecutor violated defendant’s federal due process rights and California law by misstating the reasonable doubt standard in closing argument. The People respond that this misconduct claim lacks merit and, further, that defendant has forfeited much of his claim by his trial counsel’s failure to object to many of the statements he now claims were improper. Defendant contends further objections would have been futile and, in the alternative, that he received ineffective assistance of counsel. We assume for the sake of argument that there was no forfeiture, conclude defendant’s argument lacks merit and have no need to address defendant’s ineffective assistance of counsel claim.
A. The Relevant Proceedings Below
Defendant did not present any affirmative evidence in his defense. In closing argument, the prosecutor summarized the circumstantial evidence against him and his codefendants, much of which we have already discussed. In doing so, he said, without defense objection, “You can only consider what’s actually been admitted. I think we had a lot of questions and discussion about what has been admitted at trial. You can’t consider anything that hasn’t been admitted, you can’t consider anything else, and you cannot speculate.”
Defense counsel subsequently contended in three separate closing arguments that the prosecution had not proven guilt beyond a reasonable doubt by emphasizing what evidence was missing, including but not limited to testimony by Seeney and Konaris and evidence of defendant’s presence at the San Francisco gas station and the site of the Richmond ATM, and by pointing out gaps in what was presented. In particular, Singleton’s trial counsel contended the incident, rather than being a robbery, was a drug deal gone bad, claiming defendants gave Seeney and Konaris some “bunk” in exchange for collateral, which bunk Seeney and Konaris soon discovered, causing them to return to the gas station in anger and make a false report to police, from which they subsequently walked away. He also asked if it was possible that some witnesses refused to testify because “officers mistreat [members of communities of color] and some of them are racist?” After referring to racial incidents in Ferguson, Missouri and the case of Rodney King, he said that “sometimes [law enforcement officers] don’t do the right thing,” which was “sad” because we all want to “be safe” and “we would like to believe,” but “[u]nfortunately, that’s not the case. And so you have to measure that when you measure the officers in this case.” He concluded by telling the jury to “hold the prosecution accountable for what it doesn’t present you. Its duty is to prove, not Terry Singleton. And so you must hold them accountable for that.”
Further, defendant’s counsel raised numerous questions about the evidence that was and was not presented including: “Why was the Malibu [the silver car] waiting in the gas station? Did . . . those men in the Malibu and those men in the Regal [the black car] . . . know each other? What was the nature of their interaction? What was said? Who was driving the Chevy Malibu? Why did Seeney and Konaris leave the scene? Why didn’t they immediately call the police? Where did they go? Why did they return? Why did they want to see the video? . . . Why were they unwilling to cooperative with the police? . . . Why wasn’t Officer Larson able to locate a single witness to the event? How did Singleton and Irving get to Richmond? . . . Where was [defendant] at 4:00 p.m. on December 31st, 2013? Who is his girlfriend?”
In rebuttal, the prosecutor told the jury, he would respond to what defense counsel said, particularly Singleton’s counsel, by reframing the concept about reasonable doubt and abiding conviction. He said, “The burden of proof . . . is based on reasonable doubt. That’s true. I think that’s something we’re heard a lot about, it’s fairly commonsensical. [¶] The important part is that it’s based only on the evidence that was admitted at the trial. Despite the last three hours of argument by the defense about speculative things that weren’t admitted at the trial, you can’t consider any of that. And that’s the essential fallacy of all three of the arguments. You can only consider the evidence that was admitted at trial.” Defendant’s counsel objected that this was “an inaccurate statement of the law. We can certainly comment on failures of proof.” The court stated that this objection was “noted” and instructed the prosecutor to continue with his rebuttal.
The prosecutor continued, without further defense objection: “I put up here the section that you look at from the CALCRIM. In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. [¶] Not speculative things that the defense would like to talk about. [¶] The burden of proof, clearly, is not, as [Singleton’s counsel] put it, about holding the prosecution accountable for what he does not prove. You will see that nowhere in the jury instructions. Both concepts are important. [¶] The key is that reasonable doubt is tied to rational thought and evidence. It’s not about any sort of moral issue or gut reaction. You will see no language about that in the jury instructions of the law, and there’s no place for it. [¶] You are only allowed to consider conclusions from evidence, not feelings about the process, not what you would like to see, not sympathy from anyone.”
The prosecutor closed his rebuttal by saying, again without defense objection: “You are bound to an idea of justice that has rules that everyone in our society has to live by. This was a violent crime that was committed. It was committed by three individuals, with firearms involved, obviously very dangerous, and it is important, but you are allowed—you have to look at the facts rationally. You have to make your decision based on the conclusions that can be joined exclusively from what you’ve been presented. When you do that, when you look only at the evidence, when you consider only what you've been given, you find that there is no other rational conclusion than the three defendants committed a robbery, they did it with a firearm, they were armed, and [defendant] and Mr. Irving illegally possessed those firearms. And I’m asking you to vote guilty as to all of the charges.”
B. Analysis
If a prosecutor’s conduct “ ‘ “infects the trial with such unfairness as to make the conviction a denial of due process,” ’ ” a federal constitutional violation occurs, and if a prosecutor’s conduct “ ‘ “involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury,” ’ ” a state law violation occurs. (People v. Hinton (2006) 37 Cal.4th 839, 862–863, citing Donnelly v. DeChristophoro (1974) 416 U.S. 637.) In evaluating a claim of misconduct based on a prosecutor’s comments to a jury, “ ‘ “the question is whether there is a reasonable likelihood that the jury construed or applied [the prosecutor’s misstatement] in an objectionable fashion.” ’ ” (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 305.) In answering this question, we “view the statements in the context of the argument as a whole.” (People v. Dennis (1998) 17 Cal.4th 468, 522.) We “ ‘ “do not lightly infer” that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements.’ ” (People v. Brown (2003) 31 Cal.4th 518, 553–554.)
Defendant argues the statements of the prosecutor that we have just reviewed were prejudicial misconduct under both federal and state law because they included misstatements of the reasonable doubt standard. He argues there was a reasonable likelihood the jury would interpret the prosecutor’s remarks to mean it should not consider the prosecutor’s failure to call a logical witness or to present material evidence and, further, would interpret his remarks as indicating that reasonable doubt must be tied to specific evidence presented at trial.
“ ‘ “[I]t is improper for the prosecutor to misstate the law generally [citation], and particularly in an attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements.” ’ ” (People v. Lloyd (2015) 236 Cal.App.4th 49, 62.) However, the prosecutor did not misstate the law here. He began his closing argument by merely telling the jury it could “only consider what’s actually been admitted,” could not consider “anything that hasn’t been admitted, you can’t consider anything else, and you cannot speculate.” This was a correct statement of law, consistent with the court’s subsequent instruction to the jury that it was to decide what happened “based only on the evidence that has been presented to you in this trial.” The prosecutor neither said nor implied anything about the jury’s right to consider the failure of the prosecution to present any logical witnesses or material evidence, to the extent this had a bearing on whether or not the prosecutor proved guilt beyond a reasonable doubt. (See, e.g., People v. Bell (1989) 49 Cal.3d 502, 539 [counsel’s “[c]omment on the failure to call a logical witness is proper”].)
The prosecutor’s initial remarks proved relevant in light of the subsequent defense arguments. In particular, Singleton’s counsel made the highly speculative assertions that the police handling the case may have been racially prejudiced against his client and that defendants, Seeney and Konaris engaged in a drug deal, not a robbery. Given the assertions by this counsel, to whom the prosecutor specifically referred in the beginning of his rebuttal, it is apparent the prosecutor’s rebuttal remarks were made to remind the jury it was to rationally consider evidence, not speculation or their personal sympathies, in determining whether the prosecution had proved its case beyond a reasonable doubt and, further, that the jury was not charged with holding the prosecution “accountable” for not presenting all possible evidence. He underlined this point by explaining the difference between his and the defense arguments was “the difference between deductive reasoning, which is inferences based on facts that you have, evidence that you have, versus speculation, which is just coming up with whatever you want, imagining other possibilities about what is not known, what might potentially be possible.”
Defendant contends the prosecutor’s remark to the jury that it must decide whether he had proven his case based solely on the evidence presented at trial was “precisely the type of argument” that was found to be improper in People v. Hill (1998) 17 Cal.4th 800. In Hill, the prosecutor told the jury in rebuttal regarding reasonable doubt that “ ‘you have a reason for this doubt. There has to be some evidence on which to base a doubt.’ . . . ‘There must be some evidence from which there is a reason for a doubt.’ ” (Id. at p. 831.) The Hill court concluded that, “[a]lthough the question arguably is close, . . . it is reasonably likely [the prosecutor’s] comments, taken in context, were understood by the jury to mean defendant had the burden of producing evidence to demonstrate a reasonable doubt of his guilt. Accordingly, . . . [the prosecutor] committed misconduct by misstating the law.” (Id. at p. 832.) Hill is easily distinguished from the circumstances before us because the prosecutor here did not assert that there had to be any evidence to support reasonable doubt. He merely emphasized to the jury in response to speculative contentions that the jury should consider the evidence, not speculation or personal sentiments, in determining whether he had proven guilt beyond a reasonable doubt. This argument did not touch on the jury’s right to consider not only what was presented, but what was not presented by the prosecution, as emphasized by the defense. And indeed, defendant’s contention that the prosecutor intended that the jury not consider the prosecutor’s failure to present certain logical witnesses and material evidence is contradicted by other arguments the prosecutor made in rebuttal. For example, he addressed the absence of Seeney and Konaris at trial and why the police did not find the man who originally reported the robbery to the cashier.
We also are mindful that the trial court subsequently instructed the jury, “You must follow the law as I explain it to you even if you disagree with it. If you believe that the attorneys’ comments on the law conflict with my instructions, you must follow my instructions.” It further instructed that defendant was “presumed to be innocent,” which “presumption requires that the People prove a defendant guilty beyond a reasonable doubt. . . . [¶] . . . [¶] Unless the evidence proves the defendants guilty beyond a reasonable doubt, they are entitled to an acquittal and you must find them not guilty.” The court also told the jury it was required to accept reasonable conclusions consistent with innocence over reasonable conclusions consistent with guilt, and that neither side was required to call all witnesses who might have information about the case or to produce all physical evidence that was relevant. Jurors are presumed able to understand, correlate and follow the court’s instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.) Nothing here rebuts this presumption. Whatever the implications of the prosecutor’s remarks—which, again, we conclude was proper argument—the court’s instructions made clear to the jury its obligation to convict defendant only if the prosecution presented evidence proving he was guilty beyond a reasonable doubt. That the jury followed these instructions is further confirmed by its acquittal of defendant of the robbery and grand theft charges. There was no reasonable likelihood the jury applied the prosecutor’s remarks in an objectionable fashion.
DISPOSITION
Defendant’s conviction for count seven, misdemeanor receiving stolen property belonging to Konaris, is reversed. In all other respects, the judgment is affirmed.
 




STEWART, J.



We concur.




KLINE, P.J.




RICHMAN, J.






















People v. Gould (A148090)