Filed 5/4/17 P. v. Tatum CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
TYRELL TATUM,
Defendant and Appellant.
B268692
(Los Angeles County
Super. Ct. No. LA081378)
APPEAL from a judgment of the Superior Court of Los
Angeles County, Michael V. Jesic, Judge. Judgment affirmed.
Randall Conner, under appointment by the Court of Appeal,
for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant Attorney
General, Paul M. Roadarmel, Jr., and Tita Nguyen, Deputy
Attorneys General, for Plaintiff and Respondent.
* * * * * *
2
In this appeal, we affirm defendant Tyrell Tatum’s judgment
of conviction. After review, we reject defendant’s challenges based
on alleged prosecutorial misconduct and alleged ineffective
assistance of counsel.
BACKGROUND
On July 13, 2015, defendant was involved in a motor vehicle
collision on Ventura Boulevard. Defendant was charged with
driving under the influence of alcohol with three prior similar
offenses, refusal to take a chemical test, and misdemeanor
vandalism of a jail door. A prior serious and/or violent felony and
two prior prison terms also were alleged. The hotly contested issue
during the jury trial was whether defendant was under the
influence of alcohol at the time of the collision.
During trial, defendant’s theory was that the police officer
who administered field sobriety tests was inexperienced, and
therefore the officer’s conclusion that defendant was intoxicated
should not be credited. On appeal, defendant argues that the
prosecutor committed misconduct and that his counsel was
ineffective for failing to object to the misconduct or request an
admonition.
1. Opening Statements
In her opening statement, the prosecutor stated that it was a
“miracle” no one was injured in the motor vehicle collision caused by
defendant. The prosecutor stated: “[W]hat could have been a
tragedy turned out to be a miracle. And that miracle meaning that
nobody was killed.” “[T]he other miracle” was that one of the cars,
which was hit, crashed into a store that was closed rather than
“into the coffee shop filled with people.” “[A]nother miracle” was
that no person involved in the collision was hurt. The prosecutor
3
stated: “It’s a miracle that the defendant is alive and that all of the
people on Ventura Boulevard is [sic] alive.”
Defense counsel did not object to the prosecutor’s opening
statement describing the “miracles.” The court overruled defense
counsel’s objection to the display of a photograph of the coffee shop
near the collision. The photograph showed people sitting outside
the coffee shop, located on Ventura Boulevard. However, the court
later sustained an objection and excluded the photograph from
evidence.
In her opening statement, defense counsel countered the
prosecutor’s “miracle” theory, stating: “This is not a case about a
miracle. This is not a case about avoiding death. That’s lots of
drama. This case is about whether or not someone was under the
influence.” Defense counsel told jurors: “[B]e sure as you listen to
every part of the evidence to remind yourself what you’re here to
decide, not about a miracle. You’re here to decide if someone was
under the influence and to decide if the People in this case . . . have
given you enough evidence to determine beyond a reasonable doubt
that that is true.”
Defense counsel further presented her theory: “The evidence
will show that everything you get is in the form of what’s called the
FST’s, field sobriety tests. Those are subjective. Those are 1
person, in this case an officer, giving tests and determining what
that officer thinks about a level of impairment.” “When you listen
to the evidence put forth by the People, ask yourselves if these are
objective factors to determine if someone is under the influence.
You will find that they are not.”
2. Prosecution Evidence
It was undisputed that defendant caused a motor vehicle
accident on July 13, 2015. Christine Naegle, a passenger in a
4
vehicle struck by defendant, noticed that defendant smelled of
alcohol. She observed defendant try to leave the scene, but he was
unable to flee because his car was inoperable. Naegle concluded
that defendant was trying to flee because he pressed on the gas and
turned the steering wheel. When Naegle started to call 911,
defendant asked her to stop. Naegle described defendant as
“belligerent and obnoxious” towards the police officers who arrived
at the scene. Specifically, defendant told an officer, “That badge
doesn’t fucking scare me. I have friends.”
Vincent DiPersio also was involved in the collision. After
being hit by defendant, DiPersio’s car ended up inside a store, next
to a populated coffee shop (the one in the picture shown to jurors).
DiPersio testified that patrons of the coffee shop “came to [his]
rescue.” The court sustained an objection when the prosecutor
asked DiPersio if he was lucky to be alive. As noted, at the request
of defense counsel, the court also excluded the picture of the coffee
shop.
Alonzo Campos was riding his motorcycle when he saw
defendant, who was speeding, pass him. Campos estimated that
defendant was driving about 75 miles per hour just before the
collision.
Scott Eyer, a firefighter paramedic who responded to the
scene after the collision, testified that defendant appeared to be
under the influence of alcohol. Defendant’s eyes were bloodshot,
and he was acting irrationally.
Defendant completed field sobriety tests administered by
Officer Trevor Sankey. Sankey had not previously administered
such tests but had been trained to administer them. Based on
defendant’s performance on these tests, Sankey opined that
defendant was under the influence of alcohol.
5
Sankey’s opinion that defendant performed poorly was based
on the following. On the horizontal gaze nystagmus test, which
requires the subject observe a pen and tests involuntary eye
jerking, Sankey observed defendant twitching his eyes.1 The eye
twitching was a sign of impairment resulting from alcohol. When
he administered the Rhomberg balance test, Sankey observed
defendant sway. Nevertheless, Sankey concluded he performed
“okay” on that test. Defendant fell off a line when he was asked to
take nine steps on a line. Defendant was not able to stand on one
foot, but started to sway and hop. When asked to touch his nose
with his finger, defendant was able to do so three out of six times.
Sankey also observed that defendant’s eyes were bloodshot and
watery.
Defendant refused to submit to a blood or breath test. He
said: “I refuse. Fuck you. I refuse. I’m a real fucking criminal.”
Defendant was read an admonition that his refusal could be used
against him.2

1 “ ‘Nystagmus is an involuntary rapid movement of the
eyeball, which may be horizontal, vertical, or rotatory. [Citation.]
An inability of the eyes to maintain visual fixation as they are
turned from side to side (in other words jerking or bouncing) is
known as horizontal gaze nystagmus, or HGN. [Citation.]’
[Citation.] The theory supporting HGN testing is that intoxicated
persons exhibit HGN and that a field test conducted by a police
officer can identify the condition.” (People v. Joehnk (1995) 35
Cal.App.4th 1488, 1493.)
2 The admonition provided: “You are required by state law to
submit to a chemical test to determine the alcohol content of your
blood. Number 2, you have the choice of taking a blood or breath
test when applicable. Since you need medical treatment your choice
is limited to the test, which is a breath test or blood test. These
tests are available at Van Nuys station. If you take a breath test a
6
During cross-examination, Officer Sankey acknowledged that
the result of field sobriety tests was subjective. He testified that
fatigue and stress can affect a person’s performance. He also
acknowledged that he did not recall the specific parameters for the
distance of the pen from the subject’s face and may not have
correctly positioned the pen when administering the horizontal gaze
nystagmus test. Sankey did not recall reviewing standards issued
by the National Highway Traffic Safety Administration for all of the
tests, but did for at least one of them. Sankey did not recall if there
was a baseline for the Rhomberg balance test. Sankey was not
aware of a standard of deviation for the test that required
defendant to walk in a line.
3. Defense Evidence
When defendant’s fiancée arrived at the scene shortly after
the collision, she did not smell alcohol on defendant’s breath. The
passenger in defendant’s vehicle also did not smell alcohol on
defendant. Neither saw defendant stumble or slur his speech.
Defendant did not testify. He did not claim that he was
unconscious at the time of the accident (as he states on appeal).

sample will not be saved and you . . . or your attorney will not have
a breath sample to test for blood alcohol content. If you want any
remaining sample saved for your use you must choose to take a
blood test, which will be saved at no cost to you and may be tested
by any party in any criminal prosecution. If you refuse to submit to
or fail to complete a test your driving privilege will be suspended for
1 year or revoked for 2 or 3 years. . . . Refusal or failure to complete
a test may be used against you in court. In addition, if you refuse to
submit to a test or fail to complete a test and you are convicted of
driving under the influence of any alcoholic beverage or drugs or
any combination of these your refusal will result in a fine and
mandatory imprisonment.”
7
4. Vandalism
Defendant damaged the door of the jail where he was held
after having been arrested. He damaged it by kicking it multiple
times.
5. Instructions
Jury instructions included the following: “A person is under
the influence if as a result of drinking or consuming an alcoholic
beverage his or her mental or physical abilities are so impaired that
he or she is no longer able to drive a vehicle with the caution of a
sober person using ordinary care under similar circumstances. The
manner in which the person drives is not enough by itself to
establish whether the person is or is not under the influence of an
alcoholic beverage. However, it is a factor to be considered in light
of all the surrounding circumstances in deciding whether the person
was under the influence.”
“If the defendant refused to submit to [a chemical] test after a
peace officer asked him to do so and explain[ed] the test’s nature to
the defendant then the defendant’s conduct may show that he was
aware of his guilt. . . . However, evidence that the defendant
refused to submit to such a test cannot prove guilt by itself.”
“Evidence is the sworn testimony of witnesses, the exhibits
admitted into evidence, and anything else I told you to consider as
evidence. Nothing that the attorneys say is evidence. In their
opening statements and closing arguments the attorneys discussed
the case, but their remarks are not evidence. Their questions are
not evidence. Only the witnesses’ answers are evidence.”
The court instructed jurors: “Do not let bias, sympathy,
prejudice, or public opinion influence your decision.” The court
further instructed: “If the defendant fled or tried to flee
immediately after the crime was committed, that conduct may show
8
that he was aware of his guilt. If you conclude that the defendant
fled or tried to flee it is up to you to decide the meaning and
importance of that conduct.”
6. Closing Argument
Prior to closing argument, the court warned counsel that
neither was permitted to appeal to the passions of jurors. The court
stated that referencing “victims on the side of the street is strictly
[appealing] to the passions of the jury that all these people could
have been killed that day.” The prosecutor did not mention her
“miracle” theory during closing argument. She emphasized the
testimony of defendant’s poor driving, his poor performance on the
field sobriety tests, the smell of alcohol, his attempt to escape, and
his refusal to submit to a chemical test.
Defense counsel emphasized Officer’s Sankey’s lack of
experience in administering field sobriety tests. Defense counsel
also argued that both defense witnesses testified that defendant
was upset but was not drunk.
7. Verdict and Sentence
Defendant was convicted as charged. The priors were found
true following a court trial. The trial court denied defendant’s
motion for a new trial based on prosecutorial misconduct relating to
the “miracle” theory. The court found: “The objections were made
during the trial, not during opening statements, but when the
evidence portion came on. The defense did make objections and I
ruled on the objections. And I did find it to be irrelevant. And I
admonished the jury to disregard. And they are presumed to follow
my instructions. And I believe they did follow my instructions in
this case. And so the motion for new trial is denied based on that.”
Defendant was sentenced to five years for driving under the
influence and a concurrent one-year sentence for the vandalism.
9
DISCUSSION
Defendant argues that the trial court erred in denying his
motion for a new trial based on prosecutorial misconduct. He also
argues that he received the ineffective assistance of counsel. As we
shall explain, defendant fails to show that reversal of his conviction
is warranted.
1. Defendant Forfeited His Claim of Prosecutorial
Misconduct by Not Objecting or Requesting an
Admonition
Under state law, prosecutorial misconduct includes “ ‘ “ ‘the
use of deceptive or reprehensible methods to attempt to persuade
either the court or the jury.’ ” ’ ” (People v. Earp (1999) 20 Cal.4th
826, 858.) A defendant’s federal due process rights are violated
when a prosecutor’s improper remarks “ ‘ “ ‘ “so infect[] the trial
with unfairness as to make the resulting conviction a denial of due
process.” ’ ” ’ ” (People v. Huggins (2006) 38 Cal.4th 175, 206.) An
appeal to the passions of the jurors or for sympathy of the victim is
improper. (People v. Seumanu (2015) 61 Cal.4th 1293, 1342, 1344.)
However, “ ‘[t]o preserve for appeal a claim of prosecutorial
misconduct, the defense must make a timely objection at trial and
request an admonition . . . .’ ” (People v. Earp, supra, at p. 858.)
Only, if an objection would have been futile, defendant is excused
from objecting. (People v. Hill (1998) 17 Cal.4th 800, 820.)
Here defendant’s claim of prosecutorial misconduct was
forfeited. The record demonstrates that an objection to the
prosecutor’s “miracle” theory would not have been futile. The court
sustained defense counsel’s objections, found the prosecutor’s
proposed evidence that people seated at the nearby coffee shop were
not injured was irrelevant, and instructed the prosecutor to refrain
from repeating her “miracle” theory or suggesting bystanders could
10
have been killed during closing argument. Moreover, in rejecting
defendant’s motion for a new trial on the ground of prosecutorial
misconduct, the court made clear that “[t]he objections were made
during the trial, not during the opening statements . . . . The
defense did make objections and I ruled on the objections. And I did
find it to be irrelevant.” There is no merit to defendant’s claim that
an objection would have been futile.
Defendant’s purported analogy to People v. Bandhauer (1967)
66 Cal.2d 524, 530, is inapt. “. . . Brandhauer’s rationale is that,
due to the incremental nature of the improper argument, by the
time the basis of an objection was apparent it would have been
ineffective to counteract the prejudice flowing from the misconduct.
In other words, an objection would have been futile . . . .” (People v.
Seumanu, supra, 61 Cal.4th 1293, 1341.) Here, the prosecutor
started her opening statement by claiming that “what could have
been a tragedy turned out to be a miracle. And that miracle
meaning that nobody was killed.” Her argument was not
incremental in nature; the basis for an objection was clear from the
outset.
Finally, raising a claim of prosecutorial misconduct in a
motion for new trial is insufficient to preserve the issue because it
does not afford the trial court the opportunity to admonish the jury
and mitigate any prejudice. (People v. Williams (1997) 16 Cal.4th
153, 191.) In short, defendant fails to show he preserved his claim
of prosecutorial misconduct.
2. Defendant’s Ineffective Assistance of Counsel Claim
Lacks Merit
Based on his counsel’s failure to object to the alleged
prosecutorial misconduct, defendant argues that he received the
ineffective assistance of counsel. As defendant recognizes, he bears
11
the burden to show that (1) his counsel’s performance was deficient
because it fell below an objective standard of reasonableness and
that (2) counsel’s deficiencies resulted in prejudice. (People v.
Centeno (2014) 60 Cal.4th 659, 674.) “ ‘The object of an
ineffectiveness claim is not to grade counsel’s performance. If it is
easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, . . . that course should be followed.’ ” (In re Cox
(2003) 30 Cal.4th 974, 1019-1020.)
With respect to the “miracle” theory repeated in the
prosecutor’s opening statement, jurors were instructed that the
opening statement was not evidence. They were instructed that
“[u]nless the evidence proves the defendant guilty beyond a
reasonable doubt . . . he is entitled to an acquittal and you must
find him not guilty.” Thus jurors were instructed that they could
not rely on the prosecutor’s opening statement to convict defendant.
Defendant therefore cannot show a reasonable probability that
absent the claimed prosecutorial misconduct during opening
statement he would have received a more favorable verdict.
The only challenged evidence was DiPersio’s testimony that
his car ended up next to a coffee shop with a bunch of people sitting
outside. A picture was shown to jurors but not admitted into
evidence. DiPersio testified that persons at the coffee shop came to
his rescue. Evidence of a crowded coffee shop next to the collision is
not inflammatory and is not probative of whether defendant was
intoxicated at the time of the collision. Even if the evidence was
irrelevant, it was not prejudicial to defendant.
Although defendant emphasizes the weaknesses in Officer
Sankey’s testimony regarding the field sobriety tests—defendant’s
intoxication was supported by other evidence. There was evidence
defendant had bloodshot eyes and acted belligerently. He tried to
12
flee the scene and refused to submit to a breath or blood test. Not
only did the victim Naegle smell alcohol but the trained firefighter
concluded that defendant was under the influence of alcohol. In
light of this evidence, there was no reasonable probability that the
brief introduction of evidence that a nearby coffee shop was
populated and that other bystanders could have been injured
affected the verdict. Although defendant argues that none of this
evidence conclusively shows that his blood alcohol was 0.08 percent
or higher, the evidence including defendant’s refusal to submit to a
test to measure his blood alcohol supported that inference.
Defendant also emphasizes that the court sustained an
objection to the prosecutor’s questions to DiPersio regarding
whether he was lucky to be alive and to Campos regarding why he
held on to the handlebars on his motorcycle. No evidence was
elicited in response to these questions and defendant was not
prejudiced by them. Moreover, to the extent that the prosecutor
was attempting to imply that DiPersio and Campos could have been
injured, that inference is not prejudicial. Almost any motor vehicle
collision can result in injury regardless of whether a driver is
intoxicated at the time of the collision.3 The challenged evidence

3 Defendant’s reliance on People v. Centeno, supra, 60 Cal.4th
659 is misplaced. In Centeno, the court held that a diagram
showing the boundaries of California to explain reasonable doubt
was prejudicial. The court further found that the prosecutor’s
argument served to lower the prosecution’s burden of proof. (Id. at
p. 673.) Here, in contrast, the challenged opening argument and
evidence did not serve to lower the prosecutor’s burden of proof. In
contrast to Centeno, here no claim could be made that the
prosecutor “misled the jury about the applicable standard of proof
and how the jury should approach its task.” (Id. at p. 674.)
13
did not bear on the credibility of any key witness or undermine
defendant’s principal argument that Sankey was inexperienced.
Notwithstanding the prosecutor’s opening statement and the
evidence of persons at the coffee shop, during their closing
arguments, the parties focused on the key issue—whether
defendant was under the influence at the time of the collision.
Jurors were instructed to rely only on the evidence in reaching the
verdict, and nothing in the record suggests that they failed to follow
this instruction. Defendant has not met his burden of
demonstrating that absent the alleged ineffective assistance, a
reasonable probability of a more favorable outcome. Therefore, he
cannot show he received the ineffective assistance of counsel.
(People v. Mesa (2006) 144 Cal.App.4th 1000, 1008 [“It is not
sufficient to show the alleged errors may have had some conceivable
effect on the trial’s outcome; the defendant must demonstrate a
‘reasonable probability’ that absent the errors the result would have
been different.”].)
DISPOSITION
The judgment is affirmed.
FLIER, J.
WE CONCUR:
RUBIN, Acting P. J. SORTINO, J.*

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