P. v. Wight

Filed 8/20/07 P. v. Wight 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Defendant Timothy Wight was convicted by a jury of one count each of possession of a firearm by a felon and misdemeanor possession of a smoking device. He contends the prosecutor committed prejudicial misconduct by misstating the definition of reasonable doubt during closing argument. We affirm.

BACKGROUND

At approximately 12:35 a.m. on January 2, 2005, Pleasant Hill Police Officer Jeff Hahn conducted a traffic stop on a Chevrolet with expired registration tags. Defendant was the driver.

As Officer Hahn approached the drivers side of the car he heard a metal on metal sound coming from the drivers door. As he drew nearer he saw that defendant had both of his hands below the window level of the door and appeared to be trying to manipulate the window. Defendant said, Im sorry about that. The window does not work.

Officer Hahn asked defendant to step out of the car. As defendant opened the drivers door, Officer Hahn noticed that the car was missing the panel that usually covers the metal interior of the door.

Defendant consented to a search of the car. Inside the speaker well of the drivers side door, Officer Hahn found a loaded .38 caliber handgun and a glass pipe of the type used to smoke methamphetamine. Defendant said he had never seen the gun before and denied owning the pipe. He explained that he bought the car from a tow yard for $200 and had only been driving it for two or three days, but he could not explain why he did not see the gun. A Styrofoam brick in the door prevented the gun from sliding out of sight behind the speaker well.

When Officer Hahn asked defendant about the metal on metal sound he heard as he approached the car, defendant said the window was supported by the Styrofoam brick and a piece of two-by-four inside the door. He surmised that the metallic sound must have been the two-by-four clinging against the metal of the car. Defendant also said he last used methamphetamine two days before his encounter with Officer Hahn.

Defendant was charged by information with possession of a firearm by a felon and misdemeanor possession of a smoking device. The information also alleged enhancements for four prior prison terms pursuant to Penal Code section 667.5, subdivision (b). The jury found defendant guilty on both counts. The court found the four enhancement allegations to be true and sentenced defendant to four years in prison.

DISCUSSION

I. The Alleged Prosecutorial Misconduct

Defendant asserts the prosecutor committed misconduct by misstating the definition of reasonable doubt as a fleeting conviction that need not last even for five minutes. We find no basis for reversal.

The court instructed the jury on reasonable doubt as provided in CALJIC No. 2.90that [i]t is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.

During closing argument, the prosecutor explained the reasonable doubt instruction as follows: What is it? Its a reasonable doubt. And as only attorneys and judges can do, we define a definition with yet another definition: An abiding conviction of the truth of the charge.

Well, some people say that means 20 years from now, when youre sitting at the Thanksgiving table with all your friends and relatives, and families and the nephews and nieces, and the children are grown up, and they tell their war story about they were on a jury, you 20 years from now have to say, no, I voted guilty or not guilty 20 years ago and I still stand by that.

Well, thats not the law.

This is a portion of the law that the judge already read to you.

 It is not a mere possible doubt, because everything related to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, you take everything and you take a totality of view, a totality of circumstances, global view. You take everything that was presented to you and you put it together, and you look at it like that.

 The entire comparison of all the evidence leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.

No 20-year rule. No three-month rule. No five-minutes after your conviction. So you only have to believe it is beyond a reasonable doubt that you have an abiding conviction of the charge until the judge releases you. Because, ladies and gentlemen, we all learn things, laws change, people change, you read the paper, thats why the judge says you cant. Because you have to limit yourself to what you know now. Thats why the judge says you cant go to outside people, you cant go to outside resources, you cant go to your brother who was a cop, your ex-father-in-law who was a criminal defense attorney in Texas, whatever you have, whatever resources you have, you cant go to the internet. So thats the law. (Italics added.)

II. Analysis

Defendant claims the prosecutors exhortation that jurors need only have an abiding conviction of the defendants guilt until they were released by the court constituted prejudicial misconduct because it trivialized and lowered the requisite standard of proof. This contention was waived by defendants failure to object to the alleged misconduct at trial, when the trial court could have admonished the jury and cured any arguable harm. Generally, a reviewing court will not review a claim of misconduct in the absence of an objection and request for admonishment at trial. To preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct.  (People v. Gionis (1995) 9 Cal.4th 1196, 1215.)

Defendant also argues that his lawyers failure to object to the challenged argument was ineffective assistance of counsel. To establish constitutionally defective assistance of counsel a defendant must show that trial counsels performance fell below an objective standard of reasonableness and that the deficient performance was prejudicial. Prejudice generally requires an affirmative showing that, absent counsels errors, there is a reasonable probability of a more favorable outcome. [Citation.] A reasonable probability is not a showing that counsels conduct more likely than not altered the outcome in the case, but simply a probability sufficient to undermine confidence in the outcome.  ( In re Cordero (1988) 46 Cal.3d 161, 180; Strickland v. Washington (1984) 466 U.S. 668, 693-694.)

We are not convinced that the prosecutors characterization of the jurors requisite abiding conviction of defendants guilt was misconduct, but even if it were, it was harmless. Taken out of the specific context of the prosecutors argument, the comment that the jurors need only have an abiding conviction until the judge released them could theoretically undermine the meaning of the term abiding as it is used in the reasonable doubt instruction. But the comment was not made in a vacuum; to the contrary, the prosecutor immediately qualified his comment by saying: Because, ladies and gentlemen, we all learn things, laws change, people change, you read the paper, thats why the judge says you cant. Because you have to limit yourself to what you know now. (Italics added.) The clear thrust of the prosecutors argument, taken as a whole, was that information the jurors might acquire after the judge released them was irrelevant to whether evidence introduced at trial convinced them of defendants guilt beyond a reasonable doubt. In context, while perhaps not artful, the challenged argument was highly unlikely to have misled the jury to believe that abiding merely meant fleeting. (See People v. Howard (1992) 1 Cal.4th 1132, 1192 [we do not lightly infer that the prosecutor intended his remarks to have their most damaging meaning or that the jury drew that meaning rather than the less damaging one].) Moreover, defense counsel underscored the nature of an abiding conviction when she argued that: Abiding means lasting. It doesnt mean you make one decision today and maybe youd make another decision tomorrow. Finally, this was not a particularly close case; the evidence on the disputed issue of defendants knowledge that the contraband items were in the car was quite strong. There is no reasonable likelihood that defendant was prejudiced by the lack of an objection to the challenged portion of the prosecutors argument.^[1]

DISPOSITION

The judgment is affirmed.

_________________________

Siggins, J.

We concur:

_________________________

McGuiness, P.J.

_________________________

Horner, J.^*

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^[1] We therefore need not and do not address whether defense counsels performance fell below accepted standards.

^*Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.