P. v. Zen

Filed 11/2/07 P. v. Zen CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury found defendant Karim Zen guilty of two counts of second degree murder and one count of attempted murder, and found that he personally discharged a firearm causing death or great bodily injury. Defendant was sentenced to a determinate term of seven years and to an indeterminate term of 105 years to life.

On appeal, defendant contends that he was prejudiced by prosecutorial misconduct during closing argument. We disagree and shall affirm the judgment.

FACTS

In November 2004, defendant lived in a residence with several family members, including his brother Abdin, his sister Rofiah, his pregnant sister Rohimah (who was known as Jenny), Jennys husband Brandon, and Jennys and Brandons 10-month-old son Simeon.

On the morning of November 14, 2004, Brandon noticed cold air in the house after he put his son, Simeon, in the bathtub. Finding the front door was opened, Brandon slammed it shut and returned to the bathroom. Soon thereafter, defendant came into the bathroom and asked why Brandon had slammed the door. Brandon explained that it was cold and his son was sick. Defendant then pushed Brandon, who retaliated by hitting defendant in the nose, causing him to fall back. Brandon continued by hitting defendant in the eye, knocking him to the ground, and got on top of defendant and hit him again in the eye. Brandon later told a police officer that he believed he had knocked defendant out during their altercation because, at one point, defendant stopped fighting back.

Abdin, who was awakened by the noise, ran toward Brandon when he saw him hitting defendant, whereupon Brandon hit Abdin in the face, knocking him to the ground.

Rofiah and Jenny pulled Brandon off defendant, who had blood [a]ll over his face. Abdin testified that, after the fight, defendant said to Brandon, So you want to fight me? Rofiah and Jenny helped defendant up, and he asked them to take him to his room so he could change clothes. According to Brandon, he helped defendant into his room, although Rofiah testified that Brandon did not go into the room with defendant.

Sometime later, Brandon was in the hall with Jenny trying to fix a heater grate that had fallen off during the fight. Defendant emerged from his room with a loaded gun and began firing in their direction.^[1] Brandon ran down the hall and out the front door as shots continued to be fired. When Brandon fell to the ground and put his feet up against the screen door, defendant aimed and fired at Brandon through the screen door.

Defendant briefly returned to his room and then left in his car. He was apprehended by a police officer a short time later.

Jenny and her unborn child died from a gunshot wound to her back that pierced her lung and heart. Brandon sustained gunshot wounds to his buttocks, shoulder, back, and side.

Defendant testified that he owned a gun because his friend, who lived a couple blocks away, was shot and killed in a home invasion two months before this incident, and a neighbor was killed and left . . . in the gutter a month later.

As to the crimes for which he was charged, defendant testified as follows: Brandon was not living at the house, and defendant did not know that Brandon had slept there the previous night.^[2] On the day of the shooting, defendant started cleaning the house, then went outside to mow the lawn, leaving the door opened to allow the mopped floors to dry. He heard a loud bang and saw that the door had been closed. Thinking that a home invasion robbery was occurring because [n]obody in [his] family would slam the door, defendant went into the house. As he walked toward the hallway, he was hit and blacked out. When he regained consciousness, he was lying sideways in his bed and was bleeding, scared, and confused. His vision was blurry, his nose was broken, and his head was throbbing. Hearing loud, angry voices, he became afraid that his family and he were in danger. Thus, he grabbed his gun, which was under his pillow, went to the door, and began shooting. He was dizzy and could not see when he was shooting. He did not realize that the person he was chasing and shooting at was Brandon; only when Brandon fell down outside the front door and turned his head in his direction did defendant recognize the person was Brandon. At that point, defendant stopped shooting.

Defendant was examined at a hospital after his arrest and was diagnosed with a facial contusion and a broken nose. He told the examining doctor that he was uncertain how his injuries were caused or whether he had lost consciousness. There was no evidence that he had suffered any neurological injury; however, defendant vomited while being interviewed by a police detective at the hospital.

A neuropsychologist testified that a traumatic brain injury results from a blow to the head and is generally accompanied by memory loss and other detriment to mental functioning, as well as blurred vision, nausea, dizziness, and balance problems. A traumatic brain injury can cause post-traumatic amnesia, in which the injured person is unable to recall how his injury happened or what occurred for a period of time afterward. Such injuries may also result in disorganized, confused thinking rather than loss of consciousness. When posed a hypothetical situation similar to defendants in terms of the nature of the assault and the injuries and symptoms claimed by defendant, the neuropsychologist opined that this would constitute a classic case of mild traumatic brain injury. He testified that a return to normal functioning after two hours would not be inconsistent with this finding.

DISCUSSION

Defendant contends the prosecutor committed misconduct during closing argument by (1) shifting the burden of proof to defendant to prove the reasonableness of his actions in order to reduce the offense to manslaughter, (2) misstating the law of manslaughter, (3) disparaging the role of defense counsel, and (4) asking the jury to send a message to society by convicting defendant.

A

During closing argument, the prosecutor argued that to drop [the charge] to manslaughter because of [defendants] actions, [defendant] has to prove that he was acting as a reasonable person. We agree with defendant that this statement erroneously suggested the burden of proof was on defendant to establish the mitigation required to reduce the offense to manslaughter.

Nevertheless, defendant was not prejudiced by the statement for three reasons: (1) immediately after it was made, the trial court sustained defense counsels objection, thereby signall[ing] that the prosecutors remarks were improper (People v. Montiel (1993) 5 Cal.4th 877, 915); (2) the prosecutor then confirmed to the jury that defendant did not have to prove anything; and (3) the court repeatedly instructed the jury that the People carried the burden of proving defendants guilt beyond a reasonable doubt, including proof that circumstances did not exist which would reduce defendants culpability to manslaughter, that the jury must apply the law as stated by the court, and that [i]f anything concerning the law said by the attorneys in their arguments or at any [other] time during the trial conflicts with [the courts] instructions on the law, [the jury] must follow [the courts] instructions.

For these reasons, it is not reasonably likely that the jury was misled by the prosecutors brief misstatement regarding the burden of proof. (People v. Carter (2005) 36 Cal.4th 1215, 1263.) In other words, defendant was not prejudiced by the misstatement.

B

Defendant asserts that, when discussing manslaughter, the prosecutor wrongly encouraged the jurors to gauge defendants conduct by what the jurors would do in the same situation. Again, we find no prejudicial error.

Manslaughter based on heat of passion has an objective component, which is satisfied by proof that the passion giving rise to the killing was such as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances. (People v. Steele (2002) 27 Cal.4th 1230, 1252-1253.) The prosecutor explained numerous times during his closing argument that when deciding whether the offense should be reduced to manslaughter, the jury must measure the conduct objectively, i.e., against that of an ordinarily reasonable person. In describing the objective standard, the prosecutor told the jurors at one point: You have to ask yourself this: If I were in a similar situation, is this how I would act? A short time later, the prosecutor again stated: Its an objective standard where you, again, have to say to yourself: I would have reacted just as [defendant] did because Im a reasonable, objective, ordinary person. During his rebuttal argument, the prosecutor stated: Would you have done that? You are all reasonable people, are you going to grab a gun and just start firing wildly?

In defendants view, the prosecutor incorrectly advised the jurors to judge defendants conduct based on what the jurors would have done under the same circumstances. This is so, defendant says, because such reasoning merely substitutes one subjective standard (that of the defendant) for another (that of the individual juror).

We must consider the prosecutors statements in the context of his entire argument (People v. Dennis (1998) 17 Cal.4th 468, 522) and may not lightly infer that the jury drew the most damaging rather than the least damaging meaning from the prosecutors statements. (People v. Frye (1998) 18 Cal.4th 894, 970.)

Here, the prosecutor repeatedly told the jurors they had to apply an objective standard to their determination regarding provocation. Likewise, defense counsel explained to the jury that the provocation has to be such that most reasonable people would be provoked. And the trial court told the jury the same thing, instructing that [t]he heat of passion which will reduce homicide to manslaughter must be such passion as naturally would be aroused in the mind of the ordinarily reasonable person in the same circumstances. The court also told the jurors that [i]f anything concerning the law said by the attorneys in their arguments or at any . . . time during the trial conflicts with my instructions on the law, you must follow [the courts] instructions.

In light of the repeated exhortations to the jury to apply an objective standard to the issue of provocation, it is not reasonably likely that the prosecutors comments caused the jurors to abandon this standard in judging defendants conduct. Rather, they would have understood that in deciding whether an ordinarily reasonable person would have been provoked under the circumstances, they must apply their understanding of what would be objectively reasonable. This was consistent with the law.

Defendant also claims the prosecutors comments misadvised the jurors that, in order to reach a verdict of manslaughter, they had to find that defendants response to the provocation was reasonable, rather than simply find that a reasonable person would have been provoked under the circumstances.

Defendant is correct that, in considering manslaughter based on a theory of heat of passion, the issue is whether the provocation was sufficient to provoke an ordinarily reasonable person, not whether defendants conduct in response to the provocation was reasonable. (See People v. Johnston (2003) 113 Cal.App.4th 1299, 1311 [[t]he essence of the sudden quarrel/heat of passion voluntary manslaughter is that the killer is so provoked by acts of the victim that he strikes out in the heat of passion, an emotion that obliterates reason that would prevail in the mind of a reasonable person].)

Thus, the prosecutors comments were improper to the extent they suggested that, following provocation sufficient to arouse heat of passion in a reasonable person, a defendants conduct must be reasonable. However, defendants trial counsel objected to this formulation of the law by the prosecutor, and the trial court reminded the jury to follow the courts instructions rather than the statements of the attorneys if the two were in conflict. Later, the court instructed the jury at length on voluntary manslaughter, informing them in part that [t]he question to be answered is whether or not, at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act . . . without deliberation and reflection, and from passion rather than from judgment. And in her argument, defense counsel told the jury the reasonable person standard applied to the provocation, not the response to the provocation, explaining: [T]he provocation has to be such that most reasonable people would be provoked. [] . . . Its not required that every[]one would kill, just that everyone would be provoked. Using the example of a man who discovers his wife committing adultery, defendants attorney explained that the issue would be whether the man was reasonably provoked, not whether it was reasonable under such circumstances to kill.

We presume that jurors treat the courts instructions as a statement of the law by a judge, and the prosecutors comments as words spoken by an advocate in an attempt to persuade. (People v. Clair (1992) 2 Cal.4th 629, 663, fn. 8; see also People v. Smith (2005) 35 Cal.4th 334, 372.) Absent any contrary indication, we presume the jury followed [the] instruction to apply the law as provided by the court when in conflict with the law as stated by the attorneys. (People v. Gray (2005) 37 Cal.4th 168, 217.)

In light of the instructions given by the trial court, and the argument of defendants counsel, we conclude that there is no reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. (People v. Carter, supra, 36 Cal.4th at p. 1263.)

C

Defendant contends that the prosecutor committed misconduct during rebuttal argument by disparaging the role of defense counsel. We disagree.

A prosecutor commits misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel. (People v. Hill (1998) 17 Cal.4th 800, 832.) It is generally improper for the prosecutor to accuse defense counsel of fabricating a defense [citations], or to imply that counsel is free to deceive the jury [citation]. Such attacks on counsels credibility risk focusing the jurys attention on irrelevant matters and diverting the prosecution from its proper role of commenting on the evidence and drawing reasonable inferences therefrom. (People v. Bemore (2000) 22 Cal.4th 809, 846.)

Nevertheless, the prosecutor has wide latitude in describing the deficiencies in opposing counsels tactics and factual account. (People v. Bemore, supra, 22 Cal.4th at p. 846.) Although the prosecution may not attack defense counsels integrity, it may . . . vigorously attack the defense case and argument if that attack is based on the evidence. (People v. Hillhouse (2002) 27 Cal.4th 469, 502.) An argument which does no more than point out that the defense is attempting to confuse the issues and urges the jury to focus on what the prosecution believes is the relevant evidence is not improper. (People v. Cummings (1993) 4 Cal.4th 1233, 1302, fn. 47.) Similarly, remarks [that] simply point[] out that attorneys are schooled in the art of persuasion . . . [do] not improperly imply that defense counsel [i]s lying. (People v. Gionis (1995) 9 Cal.4th 1196, 1216.) 

Here, the prosecutor began his rebuttal by stating that he was going to respond to a few comments made by defense counsel. He said that if he ever g[o]t in trouble, he was going to hire defendants attorney. An objection to this comment was sustained. The prosecutor then stated: As you heard, shes an excellent lawyer, shes doing her job. [] And you have to keep in mind what her job is as a [d]efense [a]ttorney. Her job is not to clarify the facts. Defendants objection to this comment was overruled.

The prosecutor continued in this vein: You have to keep in mind whats going on here. Take a step back and realize whats happening. [] Its not the defense attorneys job to clarify the facts that implicate her client. Its just not her job. You are not going to hear [the] defense attorney highlight the evidence of guilt. [] Its, in part, to direct your attention away from the evidence that points to guilt. Her job is to try to get him off. Defense counsels objection again was overruled.

The prosecutor then stated: So when you hear that the DA is mischaracterizing evidence and . . . misstating facts, and all that--you heard the facts, you decide what the facts are. The prosecutor then addressed various points raised in defense counsels argument.

We disagree with defendant that the prosecutors statements reasonably could be understood to imply that defense counsel was intent on misleading the jury in order to obtain an undeserved acquittal. The remarks were principally a response to defense suggestions that the DA [wa]s mischaracterizing evidence during his closing argument. Following those brief remarks, the prosecutor went on to discuss the evidence and the law from the perspective of the prosecution. The comments could not reasonably be understood as accusing defense counsel of lying or fabricating a defense. In context, they merely served to remind the jury that there was evidence before it supporting a finding of guilt despite the defense attorneys arguments to the contrary, i.e., that it should not be distracted from the relevant evidence and inferences that might properly and logically be drawn therefrom. (People v. Bell (1989) 49 Cal.3d 502, 538.)

Reviewing courts have found that comments like those made by the prosecutor here d[o] not exceed the bounds of permissible vigor. (People v. Gionis, supra, 9 Cal.4th at pp. 1217-1218 [[defense attorney]s just doing his job; [h]is job is to . . . get him off]; People v. Breaux (1991) 1 Cal.4th 281, 305-306 [referring to defense argument, [i]f you dont have [the law or the facts] on your side, try to create some sort of a confusion]; People v. Goldberg (1984) 161 Cal.App.3d 170, 190 [defense counsels job to confuse the jury about the issues]; People v. Meneley (1972) 29 Cal.App.3d 41, 60, fn. 6, overruling recognized on another ground in People v. Hill, supra, 17 Cal.4th at p. 822 [telling jurors that defense counsel was trying to throw dust in your eyes].)

Simply stated, the challenged remarks of the prosecutor in this case were within the wide latitude [allowed to counsel] in describing the deficiencies in opposing counsels tactics and factual account. (People v. Bemore, supra, 22 Cal.4th at p. 846.) Thus, they did not constitute misconduct.

D

Lastly, defendant claims the prosecutor improperly asked the jury to send a message to society with its verdict. There was no such impropriety.

[I]t is improper for a prosecutor to appeal to the passion or prejudice of the jury. (People v. Cornwell (2005) 37 Cal.4th 50, 92.) A prosecutor may not urge jurors to convict a criminal defendant in order to protect community values, preserve civil order, or deter future lawbreaking. The evil lurking in such prosecutorial appeals is that the defendant will be convicted for reasons wholly irrelevant to his own guilt or innocence. Jurors may be persuaded by such appeals to believe that, by convicting a defendant, they will assist in the solution of some pressing social problem. The amelioration of societys woes is far too heavy a burden for the individual criminal defendant to bear. (United States v. Weatherspoon (9th Cir. 2005) 410 F.3d 1142, 1149.) 

Here, the prosecutor began closing argument by discussing an item that had appeared in the news about a fight that occurred in the stands at a high school football game, in which one of the kids got beat up pretty bad. The prosecutor explained that the friends of this individual helped him up and that was the end of that. The prosecutor continued: What would have happened if that kid decided to reach in his backpack, grab a gun, and then chase the person that beat him up in the bleachers and shoot him down five times? [] Are we going to say thats somehow justifiable or mitigated? Is that what we have come to? Because thats essentially what [defendant] is asking [you to] do here today. [] Those arent the standards that we have in this community, and thats not what the law says.

Defendant did not object to these comments, thus forfeiting any claim of propriety. (People v. Sapp (2003) 31 Cal.4th 240, 279.)  In any event, in context, the comments simply made the point that, under ordinary circumstances, the law does not permit people to respond to a fist fight by using a gun.

In rebuttal, after discussing the defense claim that defendant acted in self-defense, the prosecutor argued a not guilty verdict on the murder charge would be tantamount to saying to all kids on the playgrounds: You get in a fight with Johnny, and you get your butt kicked, and youre--knocked down by your little buddy, you go ahead, get your gun and take care of business. Defense counsel objected that it was improper to ask the jury to try to fix problems of society. Overruling the objection, the trial court stated it was not sure counsel was trying to do that. The prosecutor confirmed this, explaining he was just . . . drawing an analogy as to what [defendant] is really asking you to do. The prosecutor continued: What about all the bar fights that happen across this land everyday. People get nailed. People get knocked down. People get hurt bad. [] Are we going to say its okay to go out to your car, grab a gun, and come in and take care of business? [] No. We do not live in a society like that. We dont. We have laws, and they have to [be] followed.

Contrary to defendants contention, these remarks did not improperly appeal[] to the jurors fears and ask[] them to render a verdict . . . to protect society in a broader sense from perceived social ills. And the remarks did not direct the jury to convict defendant in order to deter unrelated criminal conduct in the community. The first of the prosecutors statements--that an acquittal would be tantamount to authorizing children who get beat up on the playground to respond by getting a gun and tak[ing] care of business--merely served to analogize the circumstances in this case to another scenario to illustrate why defendants conduct should not be viewed as self-defense. The prosecutor stated as much in response to defense counsels objection. He then suggested another analogy, that of the common bar fight, again in an effort to illustrate that the law does not sanction responding to a fist fight with a gun.

Taken in context, it is not reasonably likely that the jury understood the comments as anything other than illustrating why defendants conduct should not be deemed self-defense.  They did not suggest a verdict of guilty would deter future lawbreaking or assist in solving societys ills. They merely provided the jury with examples of common situations to compare to defendants conduct. There was no misconduct.

DISPOSITION

The judgment is affirmed.

SCOTLAND, P.J.

We concur:

MORRISON , J.

CANTIL-SAKAUYE , J.

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^[1] Witnesses testimony varied as to how much time transpired after defendant went into his room before the shooting began. Brandon estimated five seconds, Rofiah and Abdin estimated two or three minutes, and Rofiahs boyfriend estimated 10 to 15 minutes.

^[2] Approximately a week before the incident, Brandon moved out of the house at Jennys request. But he testified that he returned to the residence the next day.