Filed 1/26/18 P. v. Lopez-Frausto CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from judgments of the Superior Court of San Diego County, David Rubin, Judge. Affirmed.

Boyce & Schaefer and Laura Schaefer, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Kristine A. Gutierrez and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.

Edgar Lopez-Frausto (Lopez) appeals from two judgments entered after separate jury trials. In the first case (the Kidnap/Murder Case), the jury convicted Lopez of kidnapping Ricardo L. (Camaron) for ransom with the infliction of great bodily harm (Pen. Code,[1] § 209, subd. (a), count 5) and murdering Camaron.[2] (§ 187, subd. (a), count 6). The jury returned true findings on the gang allegations and on the kidnapping, torture, and street gang special circumstances. The court declared a mistrial on four additional murder charges (counts 1 to 4) due to jury misconduct. The court sentenced Lopez to prison for two consecutive terms of life without the possibility of parole.

While awaiting trial in the Kidnap/Murder Case, Lopez made criminal threats against sheriff's deputies (Criminal Threats Case). A jury found Lopez guilty of two counts of making a criminal threat (§ 422, counts 1 and 4). Lopez admitted the truth of his prior conviction allegations. The court sentenced him to prison for a total term of 60 years to life. Lopez filed a consolidated notice of appeal from the judgments in both cases.

In the Kidnap/Murder Case, Lopez contends: (1) the trial court erred by not conducting an inquiry when it was advised of potential juror bias; (2) insufficient evidence corroborated the accomplice's testimony; and (3) a rebuttal witness gave an improper opinion on the veracity of the accomplice. We affirm the judgment.[3]

In the Criminal Threats case, Lopez contends the trial court erred when it removed a juror during deliberations and that the prosecutor committed misconduct during rebuttal argument by mischaracterizing the presumption of innocence and diluting the burden of proof. We reject these arguments and affirm the judgment. Lopez also asks us to independently review sealed police personnel records under Pitchess v. Superior Court (1974) 11 Ca1.3d 531 (Pitchess). We find no Pitchess error.

KIDNAP/MURDER CASE

FACTUAL BACKGROUND

A. General Background

The Arellano-Felix Organization (AFO) is a drug cartel in Tijuana, Mexico. The AFO hierarchy consists of leaders, followed by multiple lieutenants, then cells that perform different functions. The cells have their own names and work semi-independently with their own crews. A crew consists of individuals who work for a cell leader and perform functions that further the organization. Cells and their crews specialize in different functions such as kidnapping, drug distribution or paying off public officials.

AFO leaders included Javier Arellano-Felix (El Tigrillo) and his nephew, Fernando Sanchez-Arellano (El Ingeniero). Jorge Briceno Lopez (Cholo), the brother-in-law of El Tigrillo, led one crew. Victor Rojas, also known as El Palillo (Toothpick), headed another crew called Los Palillos. Lopez, also known as Tita (Monkey), was a Los Palillos member.

Cholo and Lopez got into a confrontation, resulting in Lopez pulling a gun on Cholo. Cholo demanded that El Palillo hand Lopez over to him. When El Palillo refused, the AFO had him killed, and authorized the murder of the rest of the crew. The Los Palillos group then split from the AFO around 2003 or 2004 and fled to San Diego from Tijuana. El Palillo's brother, Jorge Rojas-Lopez (Palillo), became the leader of Los Palillos. Los Palillos was motivated to avenge the death of El Palillo by hurting people associated with the AFO.

Members of Los Palillos included Lopez, his brother Ponciano Lopez-Frausto (Pelon), Palillo, Jorge Altamirano-Lopez (Chuckie), Hector Altamirano-Lopez (Teran), Jesus Gonzalez-Trujillo (Compadre), Armando Rodriguez (Chipo), Jorge Moreno (Homie), and Guillermo Moreno (Memo). The group also associated with men from the "Cuban Mafia" in another city, including Jhanmay Molina-Perez and Jose Olivera-Beritan (Chino). An expert opined that Los Palillos is a criminal street gang whose primary activities included drug trafficking, kidnapping and murder. The number of people in Los Palillos ranged from three to 15 or 20. The motivating factors behind crimes committed by Los Palillos include greed, revenge and financial gain.

B. Unsolved Murders

In August 2004 police were notified of a parked Dodge Caravan that smelled and had something red running out of the vehicle. Inside the van were three bodies. The three victims were later identified as Teodulo Andrade-Espinoza, Jaime Gomez-Coronado and Guadalupe Herrera-Becerra. Andrade-Espinosa died of a gunshot wound to his abdomen, while Gomez-Coronado and Herrera-Becerra died of asphyxiation after having a sock stuffed in their mouths and their heads wrapped in duct tape.

In early August 2005 police found a body, later identified as Francisco Javier Olguin-Verdugo dumped on the side of a road in Chula Vista. Olguin-Verdugo died from strangulation. In late August 2005 police found a body, later identified as Camaron, down the side of an embankment in Bonita. All three cases went unsolved and grew cold.

In January 2008 police arrested Memo, a friend of Lopez's. In August 2008 Memo entered into a cooperation agreement with law enforcement. Memo admitted participating in all these murders and implicated Lopez in the murders.

C. Camaron's Kidnapping and Murder

Camaron was a prominent figure in the AFO. Camaron's brother, Victor L. (El Pareja), was a lieutenant in the AFO. In 2005 Camaron and his wife Adrianna C. lived in a home in Bonita.

On August 18, 2005, Adrianna went to Tijuana to run errands. That afternoon Adrianna called Camaron from a McDonald's in Bonita and had him bring her some cash to purchase dinner. He arrived in his BMW, gave her $20, and left. Adrianna purchased the food and went home where she saw Camaron's BMW in the driveway. Camaron was not there and she was unable to reach him by telephone.

Adrianna later received a call from her brother-in-law, El Pareja, and learned that Camaron had been kidnapped. Adrianna went to Tijuana to meet El Pareja. While Adrianna and El Pareja were talking, El Pareja received a call on his radio phone. Adrianna overheard a voice tell El Pareja, in Spanish, that "they" were going to kill Camaron and to start gathering money. Adrianna heard Camaron ask El Pareja to pay the money to prevent Camaron's murder. El Pareja told Adrianna not to talk to anyone and gave her a phone to communicate with him.

Adrianna returned to the United States and reported the kidnapping to the police. The following night, El Pareja called Adrianna and told her that he had paid the ransom money. The next day, a detective told Adrianna that Camaron was dead.

The morning of August 20, 2005, Camaron's body was discovered in Bonita down the side of an embankment lying on a blue tarp. Camaron's hands were bound, he had severe facial stab wounds and burn marks on his body.

An autopsy of Camaron's body revealed numerous petechial hemorrhages in his eyes, which tend to form when strangulation is not total or complete. He had bruising and blunt force trauma to his eyes and head, consistent with direct impact. Camaron also had burn blisters on his lower neck and upper chest, likely caused by a Taser. Camaron suffered about 13 separate nonfatal impacts to his face and head. He had four broken ribs likely caused by being struck with a battering ram.

DISCUSSION

I. CORROBORATING EVIDENCE SUPPORTED THE ACCOMPLICE TESTIMONY

A. Additional Background

1. Introduction

Memo testified that he grew up with Lopez who was "like an older brother" to him. Memo initially worked for the AFO in a crew headed by El Palillo. Memo participated in criminal activities for the AFO, such as kidnapping, and acted as El Palillo's bodyguard. After the AFO murdered El Palillo in November 2002, Palillo and other members of the crew fled Tijuana to San Diego. Memo continued to socialize with Lopez. Memo and Homie rented a residence in Chula Vista (the Chula Vista house) as a place to store drugs and hide kidnapped victims for Los Palillos. Memo later moved into the house.

Police arrested Memo in January 2008. He was initially charged with three murders, kidnapping and robbery. He faced the death penalty or multiple life sentences without parole. Memo decided to have a "free talk" with law enforcement. In August 2008 Memo entered into a cooperation agreement where he agreed to provide truthful testimony regarding all crimes committed by Los Palillos. In return, he pleaded guilty to kidnapping with gun and gang enhancements, conspiracy, and accessory after the fact, with a prison sentence ranging from 25 to 34 years.

2. Accomplice testimony regarding Camaron's kidnapping and murder

Memo knew that El Pareja was a high-ranking member of the AFO and that El Pareja's brother, Camaron, was also part of the AFO. Memo learned that Camaron was living in San Diego and was planning to murder members of Los Palillos. The group learned that Camaron lived in Bonita and that he drove a BMW.

A plan was devised to kidnap Camaron by impersonating police officers. Juan Estrada-Gonzalez (Pepe), Jesus Lopez (Topo) and Pedro Corrales (Perrico) were flown in to help with the kidnapping. Memo picked them up at the airport and they went to the Chula Vista house where Palillo, Homie, and Lopez were waiting. The men were armed with guns and a Taser, had handcuffs and were wearing police jackets. They also had a Ford Windstar van outfitted with red and blue lights and Lopez's Ford F-150 truck. They had removed the middle seats from the van to make it easier to get Camaron inside the van.

On August 18, 2005, as Camaron stepped out of his house, the men pulled the two vehicles into the driveway. Three of the men then grabbed Camaron, handcuffed him and walked him to the van. When they got to the Chula Vista house they forced Camaron into the house and to a back room. They blindfolded Camaron and put duct tape over his mouth. Palillo made two ransom demands, both using Camaron's phone, one to Adrianna and the other to El Pareja. Pepe later picked up the ransom money. The day of the murder, Lopez, Memo, Topo, Pepe, Perrico and Palillo were at the Chula Vista house. Memo went outside the house during the murder and did not witness it. Memo left while the other men dumped Cameron's body.

3. Uncharged incident and Lopez's arrest and conviction

On September 28, 2005, four men in a red Suburban drove to the home of Salvador Parra-Aquino. Parra was under investigation for drug trafficking and was connected to the AFO. The men wore jeans, white shirts, black caps, and black short-sleeved bulletproof vests. Parra had his wife call 911 as the men banged on the door and fired weapons. The men later got back in the Suburban and drove away.

Officer Richard Deomampo responded to the shooting and pursued the Suburban. The Suburban stopped, two men got out and fired at the patrol car. The two men got back in the Suburban and it drove away. Two men, later identified as Homie and Lopez, jumped out of the Suburban, ran away and were apprehended. In a curbside lineup, a witness identified Lopez as a man involved in the incident. The other men in the Suburban evaded capture.

Carlos Pena is Memo's half-sibling. Police arrested Pena in 2007 for holding a kidnapping victim. Pena entered into a cooperation agreement to testify against members of Los Palillos, including Lopez. Pena admitted participating in the Parra incident. Pena testified that the morning of September 28, 2005, he used a black Ford F-150 truck owned by Palillo to pick up Lopez and Palillo and bring them to the Chula Vista house where they met Memo and Homie. The group also used a red Suburban owned by Homie.

Pena was to act as the group's lookout for law enforcement during a kidnapping for ransom. At some point, Memo called Pena and told him to leave. As Pena drove toward the Chula Vista house he saw that a police patrol car had been shot up. Memo called Pena and frantically told him to "start taking things out" of the Chula Vista house. Pena later went to Tijuana to clean out the Suburban. Pena removed a Taser, some shell casings and wiped down all the surfaces with a wet rag. Pena later learned that Lopez and Homie had been arrested.

Lopez admitted shooting at the police and he pleaded guilty to shooting at an inhabited building and attempting to murder a police officer. Memo identified himself as the driver of the Suburban and Palillo as the other man involved in the incident.[4] In 2014 Lopez was charged with all the unsolved murders. He was convicted of Camaron's kidnapping and murder, but the trial court declared a mistrial on the remaining charges based on jury misconduct.

B. General Legal Principles

"A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense." (§ 1111, italics added.) "[E]ven though accomplice testimony would qualify as 'substantial evidence' to sustain a conviction . . . the Legislature has for policy reasons created an 'exception []' to the substantial evidence test and requires accomplice testimony to be corroborated." (People v. Najera (2008) 43 Cal.4th 1132, 1137.) This exception "is based on the Legislature's determination that ' "because of the reliability questions posed by" ' accomplice testimony, such testimony ' "by itself is insufficient as a matter of law to support a conviction." ' " (People v. Romero and Self (2015) 62 Cal.4th 1, 32 (Romero).) "The need for the statutory requirement has been expressed as a check against the possibility that one confessedly guilty of a crime may implicate another for the sole purpose of gaining leniency." (People v. Robinson (1964) 61 Cal.2d 373, 404, fn. 25.)

The plain language of section 1111 requires only evidence "tend[ing] to connect the defendant with the commission of the offense." Thus, corroborative evidence need not directly connect the accused with the offense but need only tend to do so. The requisite evidence " 'need not independently establish the identity of the [perpetrator]' [citation], nor corroborate every fact to which the accomplice testifies [citation]." (Romero, supra, 62 Cal.4th at p. 32.)

"[C]orroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof." (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1176.) The requisite corroboration "must, without aid from the accomplice's testimony, connect the defendant to the charged offense, but may be circumstantial, slight and entitled to little consideration when standing alone. [Citations.] Corroborating evidence need not be sufficient to establish the defendant's guilt or corroborate the accomplice to every fact to which the accomplice testified. [Citations.] It must raise more than a suspicion or conjecture of guilt, and is sufficient if it connects the defendant with the crime in such a way as to reasonably satisfy the trier of fact as to the truthfulness of the accomplice." (Id. at pp. 1177-1178.)

" 'The entire conduct of the parties, their relationship, acts, and conduct may be taken into consideration by the trier of fact in determining the sufficiency of the corroboration.' " (Romero, supra, 62 Cal.4th at p. 32.) To satisfy the corroboration requirement, the evidence must connect the defendant with the crime rather than just its perpetrators. (People v. Robinson, supra, 61 Cal.2d at p. 400.) Evidence corroborating details of the crime "may form part of a picture [from which] the jury may be satisfied that the accomplice is telling the truth" (People v. Pedroza (2014) 231 Cal.App.4th 635, 659) when viewed "in addition to other evidence tending to connect the defendant to the crime." (Id. at p. 657.)

To determine the existence of corroborating evidence " ' "we must eliminate from the case the evidence of the accomplice, and then examine the evidence of the remaining witness or witnesses with the view to ascertain if there be inculpatory evidence[—] evidence tending to connect the defendant with the offense. If there is, the accomplice is corroborated; if there is no inculpatory evidence, there is no corroboration, though the accomplice may be corroborated in regard to any number of facts sworn to by him." ' " (People v. Shaw (1941) 17 Cal.2d 778, 804, italics omitted.) Unless we determine " 'that the corroborating evidence should not have been admitted or that it could not reasonably tend to connect a defendant with the commission of a crime, the finding of the trier of fact on the issue of corroboration may not be disturbed on appeal.' " (People v. Szeto (1981) 29 Cal.3d 20, 27 (Szeto), italics omitted.)

C. Analysis

Lopez contends that Memo's testimony is the only evidence that connects him to Camaron's kidnapping and murder[5] because the evidence presented and argued by the prosecution as corroboration for Memo's testimony simply shows either (1) commission or circumstances of the offense or (2) his connection with the perpetrators of offenses on other occasions, but not during the charged crimes.[6] We conclude that sufficient evidence independent of Memo's accomplice testimony tends to connect Lopez to the charged crimes such that the jury reasonably could have been satisfied that the accomplice testimony about Lopez's participation in the charged crimes was truthful.

During closing argument the prosecutor argued that Lopez participated in a conspiracy to kidnap Camaron and is liable for Camaron's murder under a felony-murder theory because Lopez did not withdraw from the conspiracy. The trial court then instructed the jury that Lopez could be found guilty of kidnapping and murdering Camaron based on an uncharged conspiracy making him criminally responsible for the acts of coconspirators done to accomplish the goal of the conspiracy.[7] (CALCRIM No. 416.) The court also instructed on alternative murder theories, including felony-murder. (CALCRIM No. 548.) Thus, the jury learned that Lopez could be guilty of murder if he was a member of a conspiracy to commit a kidnapping, intended that a member of the conspiracy commit kidnapping, and during the kidnapping a perpetrator caused the death of another person. (CALCRIM No. 540B.) "The existence of a conspiracy may be proved by uncorroborated accomplice testimony; corroboration of accomplice testimony is needed only to connect the defendant to the conspiracy." (People v. Price (1991) 1 Cal.4th 324, 444).)

As we shall explain, the evidence sufficiently established the existence of a conspiracy to kill people associated with the AFO (such as Parra and Camaron), Lopez's connection with the conspiracy, and that the Parra incident and the charged crimes were committed in furtherance of that conspiracy. Additionally, the similarity of the charged crimes to the Parra incident and gang evidence sufficiently connected Lopez to the charged crimes.

A gang expert established that Los Palillos is a criminal street gang whose crimes included kidnapping and murder motivated by revenge and financial gain. Ample evidence established that Lopez, Memo and Homie were members of Los Palillos. Memo's accomplice testimony established that Lopez and Cholo had a confrontation that resulted in the AFO murdering El Palillo, Los Palillos splitting from the AFO, and Los Palillos seeking to kill people associated with the AFO. Based on the totality of the evidence, the jury could reasonably conclude the existence of a conspiracy among Los Palillos members to kill people associated with the AFO.

Lopez's own statements established his connection to a conspiracy to kill people associated with the AFO. Homeland Security Special Agent Moises Martinez interviewed Lopez after Lopez's convictions for the Parra incident. Lopez told Agent Martinez that Cholo was involved in the murder of two of his friends—El Palillo and El Diabolico. When Agent Martinez asked Lopez why he went to Parra's residence on September 28, 2005, Lopez stated he went because Parra was Cholo's "number one man." He explained that he was "at odds" with Cholo, so he was going to "take Parra out." Camaron was a prominent figure in the AFO and Parra was Cholo's "number one man." Accordingly, the jury could reasonably conclude that the Parra incident and the charged crimes were committed in furtherance of the conspiracy to kill people associated with the AFO.

Additionally, the similarity of the charged crimes to the Parra incident sufficiently connected Lopez to the charged crimes. It is well established that corroborative evidence under section 1111 " ' "may be circumstantial or slight and entitled to little consideration when standing alone." ' " (Romero, supra, 62 Cal.4th at p. 32.) Additionally, other crimes evidence may be offered as proof of identity under Evidence Code section 1101, subdivision (b). Evidence of similarity of method, or evidence that the crimes were committed pursuant to a common plan or scheme, is circumstantial evidence that may constitute corroborative evidence linking defendant to the offenses. (See Romero at p. 32, fn. 10 ["Similarities between the accomplice's account and the physical evidence or a victim's description of the crime logically are considered in assessing that credibility."]; People v. Blackwell (1967) 257 Cal.App.2d 313, 320-321 ["[S]imilarity in the commission of crimes in a given locality is itself a circumstance tending to corroborate the testimony of an accomplice."]; People v. Robinson (1960) 184 Cal.App.2d 69, 77 ["The similarity of the commission of crimes is another circumstance of a corroborative nature."]; People v. Comstock (1956) 147 Cal.App.2d 287, 298 (Comstock) ["Proof that a defendant committed other recent and similar offenses tending to show a consistent plan or method of misconduct" may corroborate accomplice testimony.].) Other crimes evidence is a type of circumstantial evidence that does not require corroboration.

The Parra incident includes a "characteristic technique or modus operandi" (Comstock, supra, 147 Cal.App.2d at p. 298, italics omitted) that tends to connect Lopez to Camaron's kidnapping and murder. The charged crimes occurred about six weeks before the Parra incident. For the charged crimes, Los Palillos members and others associated with Los Palillos used a van with the middle seats removed and outfitted with red and blue lights to kidnap Camaron from his home. The kidnappers impersonated police officers and used guns and a Taser.

Lopez testified that he participated in the Parra incident with Homie and Memo, who were members of Los Palillos. He planned the Parra incident with Homie, claiming that he wanted to steal from Parra. This testimony conflicted with Lopez's earlier statement to Agent Martinez that he was going to "take Parra out." Lopez armed himself with a .45-caliber gun, wore a police jacket and admitted impersonating a police officer. Lopez stated that seats had been removed from the Suburban. The morning after the Parra incident the police located the Suburban at a strip mall in Tijuana. Police impounded it, brought it back to the United States, and searched it. The middle row of seats was missing from the Suburban. Homie was the registered owner of the Suburban, which led police to the Chula Vista home. Police obtained a warrant to search the home. The Suburban's two vehicle seats were in the front living room. Pena, an accomplice, testified that he removed a Taser from the Suburban after the Parra incident.

The modus operandi employed in the Parra incident, where Lopez provided details and admitted his participation, and the charged crimes, was sufficient evidence tending to connect defendant to the charged crimes. As we have noted, corroborative evidence under section 1111 " ' "may be circumstantial or slight and entitled to little consideration when standing alone." ' " (Romero, supra, 62 Cal.4th at p. 32.)

Additionally, gang evidence undisputedly created a motive for Camaron's kidnapping and murder. (Szeto, supra, 29 Cal.3d at p. 28 [gang evidence can establish motive].) Lopez was best friends with El Palillo. Lopez admitted that he was angry at the AFO because the AFO killed El Palillo. Camaron and Parra were both prominent figures in the AFO. A gang expert testified that Camaron and his family were very well known as being "high-level" drug traffickers for the AFO. The gang expert also opined that killing Camaron after collecting a ransom would enhance the reputation of Los Palillos.

While the circumstantial evidence might not, standing alone, support Lopez's convictions, it tended to connect him to Camaron's kidnapping and murder without aid or interpretation from accomplice testimony, and therefore was sufficient to establish Lopez's participation in a conspiracy to kill AFO members, such as Camaron, that Camaron's kidnapping was committed in furtherance of that conspiracy, and to establish Lopez's criminal liability for Camaron's murder under a felony-murder theory.

II. THE TRIAL COURT HAD NO SUA SPONTE DUTY TO INQUIRE REGARDING ALLEGED JUROR MISCONDUCT

A. Additional Background

The jury reached a verdict on counts 5 and 6 and the special circumstance allegations attached to those counts. The court polled the jury and recorded the verdicts. Thereafter, the jury indicated that it was deadlocked on counts 1 through 4. After inquiry, 10 of the 12 jurors stated they did not believe further deliberations on the remaining counts would be helpful. The court went into chambers with the lawyers and then returned to the courtroom. The jury, who had remained in the courtroom in the presence of Lopez, the bailiff, and members of the public, gave the court a note indicating that they requested clarification on certain testimony. The jury admitted they discussed in open court what could help them if they were sent back for additional deliberations.

The defense moved for a mistrial based on the jury's misconduct in deliberating in open court. The court took the motion under submission and recessed for the day. The following day, while the court and counsel discussed the mistrial motion, the bailiff told the court that Juror 8 was on the telephone, and he had a note. The court instructed the bailiff to tell the juror that the court would call him back.

Out of the jury's presence, the court granted the defense motion for a mistrial, ruling that the jury engaged in misconduct by deliberating in open court regarding counts 1 through 4, but concluded this misconduct did not affect the verdicts reached by the jury on counts 5 and 6. The court recessed until noon, when the jury was to arrive. At noon, the court informed the parties that Juror 8 submitted a note that read as follows:

"We as a jury came to a very hard decision yesterday. When juror #2, the forem[a]n, after our collective judgement, I felt betrayed. [Sic.] I was very upset yesterday, so much so that I question my own partiality. This is not the only time court decorum has been broken. We have been given updates of 'chipo' by juror #4 and other members of 'Los Palios [sic]." After we returned to the jury room, after yesterday's decision, juror #4 stated the[y] were a baby sitter for the Areliano [sic] Felix family in TJ. [J]uror #4 qualified it by saying that El Engeniero (Ajustador) [sic], and El Tigrillo were to[o] old for the juror to sit, so the juror never saw them. Juror #4 also stated that their Macro Biology professor [sic] was the mother or aunt of the Areliano [sic] Felix brothers. Juror #4 states that they put this in their 'jury form' during the selection process. I'm not saying juror #4 sympathizes with the AFO, but knowing this about juror #4's background makes me very uncomfortable serving with this jury, to the point that it may impair my partiality.

"I'm not trying to get out of this for personal reasons, and my job will support me financialy [sic] for however long this trial takes. I just don't know if I can be partial with such an unprofessional jury, or comfortable with my judgment given that I am sitting on a jury with a person associated with the AFO.

"To be clear I have stated on my own jury f[or]m that I had two cousins who were traffickers. Jose & Hugo Hernandez have served their time & been deported, and I think their sentence was fair. I was a child when I lived with them, since they stayed with my mother while I attended elementary school in the 80's/90's. Juror #4 was a baby sitter for the Areliano [sic] Felix family as an adult, in their own words.

"P.S. I have a nephrology appointment today at 3:50, I tried rescheduling but the next one is in Feb. I have 20% kidney function. So I should not miss any appointment. #8"

Juror 8 submitted a second note indicating he mistakenly referenced Juror 4, and the offending juror was Juror 6, the "newest juror."

The court stated that Juror 8 reported that another juror had been sharing information about Los Palillos from outside the record, but that the note talked about it happening "yesterday afternoon only." The court stated that since there was "nothing in this note that suggests anything happened other than yesterday afternoon" the court would "wait for posttrial motions." The trial court proposed that it thank Juror 8 for the note and discharge the jury, asking counsel if anyone wanted to be heard. The prosecutor submitted on the court's ruling and defense counsel asked for a copy of the note without commenting on the court's proposal. After talking to the jury, the court thanked Juror 8 for his note and discharged the jury.

B. Analysis

Lopez asserts the trial court committed prejudicial error by failing to conduct an inquiry into Juror 6's concealment of her ties to the AFO during jury selection, her personal knowledge of AFO members and her obvious bias. He claims the trial court incorrectly understood the note as referring only to the counts which were the subject of the mistrial motion when, in fact, it related to conduct which might have occurred before any verdicts were reached. Lopez argues that Juror 6's concealment of her personal knowledge and affiliation with the AFO prevented the defense from exercising a peremptory challenge and challenge for cause and deprived defendant of his state and federal constitutional rights to a fair trial and an impartial jury. The People respond that it is unnecessary to decide whether the court properly construed the note because when the court received it, there was nothing more the court could do because the jury had already rendered its verdict.

"A criminal defendant has a constitutional right to an impartial jury." (People v. Wilson (2008) 44 Cal.4th 758, 822 (Wilson).) " 'A juror who conceals relevant facts or gives false answers during the voir dire examination . . . undermines the jury selection process and commits misconduct.' " (Id. at pp. 822-823.) Intentional concealment of material information creates a presumption of prejudice which is rebutted if the trial court's examination of the entire record shows no reasonable probability of actual harm to the defendant from the misconduct. (People v. Carter (2005) 36 Cal.4th 1114, 1208.)

Consistent with the constitutional right to an impartial jury, section 1089 authorizes a trial court to discharge a sworn juror "if, among other reasons, 'good cause' is shown that the juror is 'unable to perform [her] duty.' " (People v. Farnam (2002) 28 Cal.4th 107, 140-141.) "The duty to conduct an investigation when the court possesses information that might constitute good cause to remove a juror rests with the trial court whether or not the defense requests an inquiry, and indeed exists even if the defendant objects to such an inquiry." (People v. Cowan (2010) 50 Cal.4th 401, 506.) "[O]nce the court is put on notice of the possibility a juror is subject to improper influences it is the court's duty to make whatever inquiry is reasonably necessary to determine if the juror should be discharged and failure to make this inquiry must be regarded as error." (People v. Burgener (1986) 41 Cal.3d 505, 520, disapproved on another ground in People v. Reyes (1998) 19 Cal.4th 743, 753.) A defendant, however, is not entitled to a hearing as a matter of right. (People v. Davis (2009) 46 Cal.4th 539, 625.) An evidentiary hearing is warranted only when the defense adduces evidence demonstrating a strong possibility that prejudicial misconduct has occurred, and the court concludes a hearing is necessary to resolve material, disputed issues of fact. (Ibid.)

Section 1163 provides: "When a verdict is rendered, and before it is recorded, the jury may be polled, at the request of either party, in which case they must be severally asked whether it is their verdict, and if any one answer in the negative, the jury must be sent out for further deliberation." The procedures for receiving a verdict and discharging the jury are set forth in section 1164, which provides: "(a) When the verdict given is receivable by the court, the clerk shall record it in full upon the minutes, and if requested by any party shall read it to the jury, and inquire of them whether it is their verdict. If any juror disagrees, the fact shall be entered upon the minutes and the jury again sent out; but if no disagreement is expressed, the verdict is complete, and the jury shall, subject to subdivision (b), be discharged from the case. [¶] (b) No jury shall be discharged until the court has verified on the record that the jury has either reached a verdict or has formally declared its inability to reach a verdict on all issues before it, including, but not limited to, the degree of the crime or crimes charged, and the truth of any alleged prior conviction whether in the same proceeding or in a bifurcated proceeding." (Italics added.)

The acknowledgment requirement and the defendant's right to request individual polling are founded on the constitutional right to a unanimous jury verdict. (People v. Thornton (1984) 155 Cal.App.3d 845, 858-859.) During the acknowledgment and polling, any juror is entitled to dissent from the verdict. (Id. at p. 859.) The process is designed to reveal mistakes in the signing of a particular form or "that one or more jurors acceded to a verdict in the jury room, but was unwilling to stand by it in open court." (Ibid.)

"Generally, a verdict is complete under section 1164 if it has been read and received by the clerk, acknowledged by the jury, and recorded. [Citation.] However, a verdict is not complete if a juror dissents during polling [citation], it does not resolve a count charged [citation], or it does not make a required finding [citation]." (People v. Bento (1998) 65 Cal.App.4th 179, 188 (Bento).) In Bento, defendants Bento and Johnson were charged with various crimes arising out of a shooting. (Id. at p. 182.) The jury announced that it had reached a verdict on each count against Johnson, but only on counts 3 through 5 against Bento. (Id. at pp. 182-183.) The jury's verdicts concerning Johnson were read in court. (Id. at p. 187.) The jurors were polled and unanimously affirmed that the verdicts read were his or her own. (Ibid.) The same was done for the verdicts on counts 3 through 5 against Bento. (Ibid.) Minutes later, a juror requested a conference with the trial court and disclosed that she was not sure beyond a reasonable doubt on counts 1 and 2 against Johnson. (Ibid.) The juror stated she had been " 'going back and forth' " during polling and that she had thought the polling was on the verdicts against Bento. (Ibid.) The trial court declined to reconvene the jury. (Id. at p. 188.)

The issue on appeal was whether the verdicts as to Johnson were complete under the meaning of section 1164. (Bento, supra, 65 Cal.App.4th at p. 188.) The court found that "[h]ere, the verdicts resolved all requisite matters concerning Johnson, the jurors collectively and individually affirmed the verdicts in open court, and the trial court verified the verdicts and directed the clerk to record them. Throughout this sequence of events, the requirements of [] sections 1163 and 1164 were followed in every detail, and the verdicts were free from procedural irregularities when recorded. The verdicts were therefore complete under section 1164." (Ibid.)

Noting that the trial court retained jurisdiction of the jury because it had not been discharged, the Bento court concluded that the trial court had the authority to reconvene the jury if it had chosen to do so. (Bento, supra, 65 Cal.App.4th at p. 189.) The question remained as to whether the trial court was required to reconvene the jury. (Ibid.) This depended on whether the " 'last moment' for a juror to express dissent expires when the verdict is complete, rather than when the trial court discharges the jury or otherwise loses its ability to shield the jury from outside influences." (Id. at pp. 189-190.) Relying on federal cases and cases from other states, as well as the express language of sections 1163 and 1164, the court concluded that "when, as here, the verdicts have been collectively and individually confirmed in open court pursuant to these sections and are complete in every detail, jurors are no longer empowered to dissent from the verdicts, and the trial court may not reconvene the jury for further deliberations on the basis of such dissent. . . . In this respect, sections 1163 and 1164 define the final moment of the jury's deliberative process." (Bento, at p. 191.)

Here, the court read the guilty verdicts on counts 5 and 6 and the special circumstance allegations attached to those counts in open court. The court polled the jury and recorded the verdicts. Accordingly, the guilty verdicts on counts 5 and 6 were complete pursuant to sections 1163 and 1164. Juror 8's note amounted to an attempt to impeach his verdict, something he could no longer do. As the People point out, even if an inquiry into possible juror misconduct was possible and such an inquiry revealed bias or misconduct on the part of Juror 6, the court would have to set aside the verdicts, discharge Juror 6, replace Juror 6 with an alternate, and ask the jurors to deliberate on counts 5 and 6—actions the trial court could no longer take. Under these circumstances, Lopez's remedy was a new trial motion.[8] (§ 1181, subd. (3) [court may grant a new trial when jury is guilty of misconduct].) Based on this conclusion, we need not address Lopez's alternative argument that if defense counsel were required to request a hearing, the failure to do so constituted ineffective assistance of counsel.

III. ALLEGED EVIDENTIARY ERROR

A. Additional Background

Gloria Collins, a criminal defense attorney and former prosecutor, testified for the defense regarding the use of cooperating individuals. Prior to her testimony, the prosecutor asked that the trial court admonish Collins to not opine regarding the credibility of Memo and Pena, the two cooperating witnesses. Defense counsel indicated he would not ask her to give opinions on credibility, but might ask a hypothetical regarding if a cooperating witness were to lie. The court stated, "[T]hat's fine."

When Collins finished testifying, the prosecutor called Elizabeth Missakian, Memo's criminal defense attorney, as a rebuttal witness. Lopez complains about two portions of Missakian's testimony regarding corroboration and truthfulness. Missakian testified regarding the need for corroboration before entering into a cooperation agreement as follows:

"Q [The prosecutor] What was your understanding as to what needed to occur after the free talk but prior to entering into a cooperation agreement?

"A [Ms. Missakian] I think the primary thing that needed to occur was that the prosecution needed to corroborate my client's statements.

"Q What's your—how can you explain corroboration? What did you understand that to require?

"A It requires finding evidence in addition to or to confirm or corroborate what the client says. [¶] If I say, 'I killed John and I dumped his body'—John—John and—'Me and Jane killed John. And we dumped his body at x location,' one bit of corroboration might be to go to that location to find out if the body is there. Another might be to talk to Jane. So you—the prosecution tries to find other evidence to see if, in this case, [Memo's] statements could be confirmed or corroborated.

"Q And—

"A It's a test to see if he's telling the truth.

"Q Could that and, in fact, did that include obtaining airline records?

"A Yes.

"Q Utility records?

"A Yes.

"[Defense counsel]: Your Honor, I'm going to object to this as outside the province of an expert and is the province—

"The Court: I think we're outside of rebuttal.

[Defense counsel]: —of the jury. Corroboration is a question for the jury.

"The Court: Correct. [¶] I'll sustain. Also, I think—I think it's also outside of what I thought the rebuttal would be. [¶] But keep going.

"Q [The prosecutor] The existence of corroboration, without going into the details of what it may have consisted of, was that then an important consideration in your mind as to whether or not there would ultimately be a cooperation agreement with your client and the district attorney's office?

"A Yes.

"[Defense counsel]: Once again, that's argumentative.

"The Court: Yeah. Sustained.

"Q Did you take into consideration the existence of corroboration in exploring future cooperation?

"[Defense counsel]: Arg—that's outside the province of an expert. It's the province of the jury.

"The Court: Okay. I'm going to sustain."

Missakian then testified regarding Memo's commitments under his cooperation agreement with the prosecution as follows:

"Q What are his commitments?

"A That he would cooperate fully with law enforcement in their investigation of crimes committed by members of Los Palillos. That he would provide truthful and complete information to all crimes known to him that had been committed by Los Palillos members. [¶] His most important obligation was to tell the truth at all times while he was testifying and while the case was being investigated. And he understood that any intentional deviation from the truth would void the agreement and cause him to lose all of the benefits. He also agreed and understood that if he should lie under oath and commit perjury, that he could be charged with perjury.

"Q This obligation to tell the truth, is that something that you discussed with him privately even before meeting—sitting down on August 20th, 2008?

"A Oh yes.

"Q Was that—did that have a certain level of importance to you in entering into an agreement with him?

"A It's of primary importance.

"Q Why?

"A When you enter into a cooperation agreement, if you—what is the point if you're not going to tell the truth? You have to tell the truth during the cooperation agreement. That's the way you get the benefit. If you don't tell the truth, and it's found out—and it generally can be found out. If you don't tell the truth, you could lose the benefit of the plea agreement. So there is no point to entering into a plea agreement unless you're going to tell the truth.

"Q And are there, in fact, dangers associated with not telling the truth, consequences, potential consequences—

"A Of course.

"Q —if you entered into a cooperation agreement, give information, and then intentionally lie?

"A Yes. The plea agreement will be void. Then you're facing all the charges that you were facing before and potentially additional charges.

"Q Was there ever a—oh, and before I move on from that. It's clear you understood that then; correct?

"A Yes.

"Q Did you make sure that [Memo] understood it as well?

"A Yes.

"Q How did you make sure he understood that obligation to tell the truth?

"A I talked to him about it when I met with him privately at the jail. I talked to him about it when I met with privately at the district attorney's office. I emphasized it. I always emphasize it. There's no point to doing this unless you're going to tell the truth.

"Q And similarly given his reactions to you, did you form an opinion as to whether or not [Memo] understood that obligation?

"A I believe he understood it.

"Q Was there—is there any requirement in this agreement that [Memo] implicate any particular individual in the organization?

"A No.

"Q Other than his name, are there any names in that cooperation agreement that he needs to provide information on?

"A No. Just—the only information is that he's going to cooperate with law enforcement in the prosecution of crimes committed by members of Los Palillos but no names are mentioned.

"Q Is there any requirement that [Memo] implicate a certain number of individuals in crimes?

"A No.

"Q Is there any obligation that [Memo] give information about a certain number of crimes themselves?

"A No.

"Q Is there any obligation for [Memo] to give information about a certain number of murders?

"A No.

"Q In your discussions with your client, did he ever express to you information that led you to believe that [Memo] felt he had to implicate certain individuals in crimes?

"A No.

"[Defense counsel]: I'm going to object.

"THE COURT: Yeah. This is [Evidence Code section] 352."

During a sidebar conference, Lopez objected that the prosecution was making Missakian a "human lie detector." The court disagreed, noting that the prosecutor never asked Missakian whether she thought Memo was telling the truth. After additional discussion, the court noted that the prosecutor asked a number of questions without objection.

B. Analysis

Relying on People v. Fauber (1992) 2 Cal.4th 792 (Fauber) and People v. Bonilla (2007) 41 Cal.4th 313 (Bonilla), Lopez argues Missakian's testimony that the prosecution had to corroborate Memo's free talk statements to determine if he was telling the truth before they would offer him a cooperation agreement was improper. Lopez reasons that since the prosecution entered into an agreement with Memo after the free talk, the jury could readily infer that Memo's statements had been corroborated and that Memo had passed the prosecution "test" for truthfulness.

"[T]he existence of a plea agreement is relevant impeachment evidence that must be disclosed to the defense because it bears on the witness's credibility. [Citation.] Indeed, we have held that 'when an accomplice testifies for the prosecution, full disclosure of any agreement affecting the witness is required to ensure that the jury has a complete picture of the factors affecting the witness's credibility.' " (Fauber, supra, 2 Cal.4th at p. 821.) In Fauber, an accomplice testified for the prosecution under the terms of a plea agreement. (Id. at p. 814.) The agreement provided that if the accomplice testified truthfully against the defendant, the accomplice's charges would be reduced, but provided that before the agreement could become effective, the accomplice's credibility would be assessed by the district attorney's office and that if a dispute arose regarding the accomplice's truthfulness, it would be resolved by the trial judge. (Id. at p. 820, fn. 4.) The prosecutor read the entire agreement to the jury without objection. (Ibid.) On appeal, the defendant argued that the portions of the agreement permitting the prosecution and the trial judge to assess the accomplice's credibility invaded the province of the jury and amounted to improper vouching. (Id. at p. 822.)

The Supreme Court opined that "the plea agreement's reference to the district attorney's preliminary determination of [the accomplice's] credibility had little or no relevancy to [the accomplice's] veracity at trial, other than to suggest that the prosecutor found him credible. Thus, the reference should have been excised on a timely objection on the ground of irrelevancy." (Fauber, supra, 2 Cal.4th at p. 822.) The court also held that the portion of the agreement "detailing the judge's determination of [the accomplice's] credibility in the event of any dispute arguably carried some slight potential for jury confusion, in that it did not explicitly state . . . that the need for such a determination would arise, if at all, in connection with [the accomplice's] sentencing, not in the process of trying [the] defendant's guilt or innocence." (Id. at p. 823, italics omitted.) Thus, the court concluded, that had an objection been made, this part of the agreement also should not have been placed before the jury. (Ibid.) Nonetheless, the court held that any errors in connection with the disclosure of the plea agreement to the jury were harmless, noting "[t]he jury could not reasonably have understood [the accomplice's] plea agreement to relieve it of the duty to decide, in the course of reaching its verdict, whether [the accomplice's] testimony was truthful. (Ibid.)

In Bonilla, the prosecutor read an accomplice's entire plea agreement to the jury. (Bonilla, supra, 41 Cal.4th at p. 337.) The Supreme Court found no error and distinguished Fauber, supra, 2 Cal.4th 792 on the basis that the plea agreement at issue did not contain any provision indicating that the prosecution "had made or would make any preliminary determination that [the accomplice] was being truthful." (Bonilla, supra, 41 Cal.4th at p. 338, fn. 9.) The court rejected a contention that admission of the agreement was error because the provision making the agreement contingent on the accomplice's truthfulness at trial would lead the jury to conclude that the prosecutor believed the accomplice was truthful. (Ibid.) The court reasoned, "The jury might believe the prosecutor thought [the accomplice] was being truthful, but there is no reason to think it would have concluded the prosecutor had special information outside the record on which to base that belief, nor is there any reason to think this inference would have led the jury to conclude it no longer needed to evaluate [the accomplice's] credibility for itself." (Ibid., italics omitted.)

Here, the prosecutor asked Missakian regarding her understanding of what needed to occur before the prosecution entered into a cooperation agreement. Missakian opined that the prosecution needed to corroborate her client's statements and she provided examples of what might constitute corroboration. From this testimony the jury could believe that the prosecutor and Missakian thought corroboration existed for Memo's testimony, but, as in Bonilla, nothing suggested that the prosecutor or Missakian based this belief on information outside the record. (Bonilla, supra, 41 Cal.4th at p. 337, fn. 9.) Nor did Missakian's testimony suggest that the jury was relieved of its need to evaluate the existence of corroborating evidence. Rather, the trial court instructed the jury that Memo was an accomplice to the charged crimes and it could convict Lopez only if "accomplice[] testimony is supported by other evidence that you believe" and "[y]ou should give [the accomplice] testimony the weight you think it deserves after examining it with care and caution and in the light of all the other evidence." (CALCRIM No. 335.) "In the absence of evidence to the contrary, we presume the jury understood and followed the court's instructions." (People v. Williams (2009) 170 Cal.App.4th 587, 635.)

Lopez next contends that Missakian improperly vouched for Memo's truthfulness when she testified that she satisfied herself that Memo understood his obligation to tell the truth and she would not have a client enter into a cooperation agreement unless they were going to tell the truth. Should we determine that defense counsel's objections were inadequate to preserve these issues, Lopez alternatively argues that defense counsel was ineffective in failing to properly object.

"The general rule is that an expert may not give an opinion whether a witness is telling the truth, for the determination of credibility is not a subject sufficiently beyond common experience that the expert's opinion would assist the trier of fact; in other words, the jury generally is as well equipped as the expert to discern whether a witness is being truthful." (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 82.)

Missakian testified that under the cooperation agreement Memo made a commitment to tell the truth, that she discussed this obligation with him, and opined that Memo understood the obligation to tell the truth by discussing it with him. At no point did Missakian opine that Memo gave truthful testimony. Moreover, Collins, Lopez's defense witness, testified at length regarding cooperating individuals, including that "their role is to come in and tell the truth in the case and that's all they have to do." Memo also testified regarding the cooperation agreement and stated that the most important part of the agreement would be to tell the truth. The prosecutor reviewed the cooperation agreement with Memo, including Memo's agreement to " 'provide complete and truthful information,' " Memo's understanding that his " 'most important obligation [was] to tell the truth and to tell only the truth' " and that " 'any intentional deviation from the truth' " would void the agreement and subject him to prosecution for perjury. The court instructed the jury that they "alone must judge the credibility or believability of the witnesses" taking into consideration numerous factors including whether there was" a promise of leniency in exchange for the witness' testimony." (CALCRIM No. 105.) Finally, as our high court noted in Fauber, "common sense suggests that the jury will usually assume—without being told—that the prosecutor has at some point interviewed the principal witness and found his testimony believable, else he would not be testifying." (Fauber, supra, 2 Cal.4th at p. 822.) Common sense would similarly suggest to the jury that Missakian would emphasize the need for a client to tell the truth.

In summary, when the entirety of the evidence is considered in conjunction with the jury instructions, it is clear that Missakian did not improperly vouch for Memo's veracity. Thus, defense counsel's failure to object did not constitute ineffective assistance of counsel. It was not unreasonable for counsel to refrain from making a meritless objection. (People v. Thomas (1992) 2 Cal.4th 489, 531.)

CRIMINAL THREATS CASE

While awaiting trial in the Kidnap/Murder Case, Lopez made criminal threats against three sheriff's deputies. The jury found Lopez not guilty on one count of making a criminal threat, but was split 11-1 on the remaining two counts. After conducting an inquiry into alleged misconduct by Juror 10, the holdout juror, the court excused Juror 10 and seated an alternate. The reconstituted jury found Lopez guilty on the remaining two counts of making a criminal threat.

Lopez contends the trial court erred when it removed Juror 10 during deliberations. Despite some disagreement among the jurors, the court's inquiry revealed that Juror 10 committed misconduct. As we shall explain, the trial court's investigation furnished an adequate basis to dismiss Juror 10, rather than admonishing or reinstructing the jury panel. We reject Lopez's remaining argument that the prosecutor committed misconduct during rebuttal argument by mischaracterizing the presumption of innocence and diluting the burden of proof. Lopez also asks us to independently review sealed police personnel records. We have done so and find no error.

FACTUAL BACKGROUND

Sheriff's Deputy Matthew Buford (Count 1)

On March 25, 2014, Buford was conducting a security check at the San Diego Central Jail. When Buford got to Lopez's cell, Lopez told Buford about a grievance he had with a lieutenant, handed Buford a written grievance form, and asked Buford to deliver the grievance. Lopez was holding a cup and slurring his words.! (36RT 9012:22-9013:5)! Buford asked to see what was in the cup, suspecting Lopez had "pruno," an unpermitted jail-made alcohol. Pruno averages 6 to 7 percent alcohol, unless it is redistilled, which could increase the alcohol to 15 to 25 percent. Alcohol slows down the brain, causing slurred speech and loss of balance. Alcohol also slows critical thinking and affects mental capacity.

Buford told Lopez that his day room privileges would be revoked if he was still intoxicated when his time to go to the day room arrived. Lopez took a fighting stance, stating "I'm going to kill you, and it would only take a phone call. You're fucking dead. I'm doing life, so I don't give a fuck."

Buford reported the threat to the jail's threat assessment group. Buford knew that Lopez was a Los Palillos member and had murder and kidnapping charges. Buford believed Lopez had the ability to carry out his threat and feared for his safety and the safety of his family. Buford started carrying his weapon more often and varied his routes home as a result of the threat. The jail started monitoring Lopez's calls and mail. The sheriff offered to have a patrol car placed in front of Buford's house, but Buford declined believing that would be "too hard" on his son.

Sheriff's Deputy Alexandru Galiu (Count 3)

On April 16, 2014, Galiu was working at the San Diego Central Jail when Lopez refused to return to his cell after his dayroom time expired. Lopez started punching and kicking the door, stated "he was part of Los Palillos and that he could kill [Galiu and the other deputies] for fun." Galiu had been briefed about Los Palillos and believed that Lopez could possibly kill him.

Sheriff's Deputy Rudy Peraza (Count 4)

On July 1, 2014, Peraza was conducting a routine security check at the San Diego Central Jail when he noticed that Lopez was agitated, yelling and banging on his cell door. When Lopez did not respond to Pedraza's inquiry about what was wrong, Pedraza moved on and completed his security check. When he finished, he stopped by Lopez's cell again. Lopez yelled and cursed and said, "I'll kill you and your family. Do you know who I am?" This did not concern Peraza because inmates made threats all the time. Pedraza was fairly new; he had not received information about Los Palillos. Pedraza ignored Lopez and left.

Peraza returned to Lopez's cell for the afternoon security check. Lopez was still agitated, yelling and banging on his cell door. Lopez yelled, "You are dead. You've been green-lit," and "I'm going to get you where it hurts. I'm going to come after your family." The term "green-lit" means that you are targeted to be killed by a gang member. This caused Peraza to be concerned for his and his family's safety as he was aware inmates could enlist others who are out of custody to carry out the threat. Peraza believed Lopez was intoxicated because he had red glassy eyes and appeared unsteady on his feet. When Peraza asked Lopez whether he was drunk, Lopez responded, "Yeah, man, I'm drunk."

Peraza reported this incident to a sergeant and there was a follow-up investigation. Peraza looked in the computer system to investigate Lopez's charges and learned from another deputy about Los Palillos. He discovered that Los Palillos gang members were responsible for murders and kidnappings for ransom and that the group was affiliated with the Arellano Felix cartel. This caused Peraza to become more concerned. Peraza began carrying his weapon every day and talked with his family about what had occurred, cautioning them to be aware of their surroundings.

DISCUSSION

I. THE TRIAL COURT DID NOT ERR IN REMOVING A HOLDOUT JUROR DURING DELIBERATIONS

A. Additional Background

On the second day of deliberations, the court, with the concurrence of counsel, answered two jury notes. As the bailiff delivered the court's response to the second note, the jury foreperson delivered a note, stating, "We have a juror who was in jail and will not listen to the facts. He is not willing to listen to the facts of this case. We will be deadlocked as long as he is here." With the concurrence of all counsel, the court declared a break in the deliberations, spoke to the foreperson and learned that the involved juror was Juror 10.

After advising the foreperson not to repeat what had been said in the jury room, the court asked a series of questions, instructing the foreperson to answer them "yes" or "no." The court learned that Juror 10 said he had been in jail for a DUI, facts he had disclosed during voir dire. The foreperson stated that the jurors had "been talking with [Juror 10] all morning" and Juror 10 was responding. After speaking with counsel, the court concluded that cause did not exist to excuse Juror 10 and that it would order the jury to continue deliberations.

About 80 minutes later, the court received another note stating, "[W]e are locked 11-1 without a chance of a verdict on Count 1. We did reach a verdict on Count 3. Would you need that?" The court took a "not guilty" verdict on count 3, related to Deputy Galiu. The court spoke with the foreperson, confirmed there was an 11-1 split after several ballots and then asked all the jurors whether they wanted to continue deliberating the following morning. Some felt a recess would help, while others did not. Juror 10 indicated that he liked the proposal. The court ordered the jurors to return at 9:00 a.m. the following morning.

The next morning, at 9:28 a.m., the court received an unsigned note from a juror stating that one juror was "entrenched in unreasonableness," "[c]annot accept the basic facts of the case even though those were not in dispute between the defense and prosecutor," "is unwilling to accept the evidence presented because they were not present when the incident occurred," "[a]ppears to have brought bias into deliberations," and "is not following instructions given." The court indicated it was required to conduct an inquiry as to the latter two categories of complaint and brought in the note's author, Juror 2, for questioning.

Juror 2 stated that Juror 10 had brought bias into deliberations and was considering things that were not in evidence. Juror 2 admitted that Juror 10 had not explicitly stated that he would not follow the instructions, but she complained that Juror 10's "statement is in direct opposition to an instruction even when that instruction is read back. So the response by the other jurors would be you cannot consider that because of this instruction. He still makes the statement." As to bias, Juror 2 indicated that Juror 10 would make statements such as "[y]ou just don't know what goes on."

After conferring with counsel, outside the presence of Juror 2, the court believed Juror 10 was properly relying on his life experience. The court brought in Juror 2 to inquire about what impermissible "category" Juror 10 was considering, suggesting as an example punishment or penalty. Juror 2 stated that would be "one instance." The court again inquired about bias, with Juror 2 stating that Juror 10 did not believe certain individuals in a particular profession, but that Juror 10 was not extreme and did not claim that everyone in that profession could not be trusted.

After Juror 2 left, the court concluded that Juror 10 was not biased, but the claim that Juror 10 was considering improper things required further inquiry. Defense counsel suggested that the court admonish the jury not to consider penalty or punishment; the prosecutor requested the court inquire as to each juror. The court decided to question all the jurors individually, instructing them to answer only the question asked and to try to answer with a "yes" or "no."

Juror 8 said that Juror 10 "may have said something about [penalty or punishment]," but that he was not "a hundred percent" sure." Juror 8 indicated that Juror 10 was evaluating the case based on his personal experience and that Juror 10 may have said something about penalty or punishment related to other charges, but he was not sure, stating: "I'm very frustrated with him, and there's some times when I try not to listen to him. There are things I have not heard [what] he said. Sorry." Juror 8 stated that he enjoyed being on the jury "but we have one person we can't—again, we've hit the same facts time and again, time and again."

Juror 1 stated that no one had brought up penalty or punishment as a basis for their decision, but that Juror 10 was considering "relationships between people." The court gave an example about using personal experience, which is acceptable and using specialized knowledge, which is not. Juror 1 indicated that it was not specialized, but a generalized reaction. After Juror 1 exited, the prosecutor asked whether the court would inquire as to whether any juror had "specifically referenced what could happen as an outcome of the case." The trial court agreed and recalled Juror 1. The court asked whether "anybody or Juror 10" made statements about the "potential outcome of the case and its consequences." Juror 1 responded affirmatively.

Juror 3 replied "[y]es" to the court's question whether a juror "is considering information in the jury room that [the court] said could not be considered." The juror responded "[y]es" to the court's question of whether the information had "to do with the consequences of a conviction." The juror said "[y]es" to the court's query "[l]ike penalty or punishment?" Juror 3 then said "[s]ome," and there were "other things." Those other things were not specified, nor did the court ask any follow-up questions regarding the topic of punishment. Juror 3 identified Juror 10 as the one who had considered the prohibited topic.

Juror 4 replied "[y]es" to the court's question whether a juror was considering "the consequences a conviction would have." The juror said "[y]es" to the court's query "like, penalty or punishment? Things like that?" When asked whether this was "clearly part of the equation for this person reaching a decision," the juror said "no." Juror 4 stated "that specifically is not the issue that I have," indicating that part of the equation was irrational disagreements. Juror 4 identified Juror 10 as the one who had considered the prohibited topic.

Juror 5 replied "[y]es" to the court's question whether a juror was considering "the consequences of a guilty or not guilty." The juror said "[y]es" to the court's query "[l]ike penalty and punishment, things along those lines?" Juror 5 identified Juror 10 as the one who had considered the prohibited topic.

Juror 6 replied "[y]es" to the court's question whether a juror was considering "[p]enalty or punishment." Juror 6 believed this person was considering this topic in arriving at a decision. Juror 6 identified Juror 10 as the one who had considered the prohibited topic.

Juror 7 replied "[y]es" to the court's question of whether a juror was considering "the consequence of a verdict," "either guilty or not guilty." Juror 7 believed this person was considering penalty or punishment in arriving at a decision. Juror 7 identified Juror 10 as the one who had considered the prohibited topic.

Juror 9 replied "[y]es" to the court's question of whether a juror was considering "the consequence of a verdict." The juror said "[y]es" to the court's question, "when I say 'consequence,' you understand I'm talking about penalty and punishment, things like that?" When the court asked whether it appeared to be "part of the decision-making for him," the juror indicated that he wanted to respond beyond "yes" or "no." Juror 9 stated "the juror does talk about things that are not related we're supposed to discuss in the case, the other outcomes of the case." The court asked for an example, and the juror responded "[p]otential harm to someone on the case" based on their decision. When asked for an example of the "someone" this applied to, the juror responded "the prosecution." Juror 9 identified Juror 10 as the one who had considered the prohibited topic.

Out of the presence of the juror, the court remarked that this was "getting more egregious than I thought," and stated Juror 10 was "not only talking about penalty or punishment, he's talking about the effect on [the prosecutor's] career." The prosecutor said the statement could mean "personal harm" not harm to his career and that they did not know what the statement implied.

Juror 11 responded affirmatively when asked whether a juror was talking about "what the consequences might be to the defendant or one of the parties to the outcome of the case" and when the court says "consequence," the court was referring to "like, penalty and punishment, things like that." The court asked the juror, "Is it your assessment of this juror and the way the juror has talked about it is using that as one of the factors in coming to a conclusion about the case?" Juror 11 responded "[y]es," and identified the errant juror as Juror 10.

The court asked Juror 12 whether a juror was talking about "the consequence of the outcome of this case." The juror asked, "What might happen if some—depending on our verdict?" The court responded, "Right," and the juror replied, "No. I haven't heard that." The juror responded "[n]o" to the court's question regarding whether penalty or punishment had been mentioned. Juror 12 indicated that there may have been discussion about "what the defendant was in jail for." Juror 12 indicated that someone had once mentioned that the defendant was in "for life" with another person responding "that's not true."

The court asked Juror 10 whether he or any other juror "brought up the consequences that would follow in this case depending on a verdict." The following colloquy took place:

"JUROR NO. 10: I'm not sure I understand what you mean by 'consequences.'

"THE COURT: Like the consequences to one of the litigants or one of the attorneys or penalty or punishment or something like that?

"JUROR NO. 10: I may have done that—

"THE COURT: Okay.

"JUROR NO. 10: —this morning.

"THE COURT: Okay. And what might you have said?

"JUROR NO. 10: It was along the lines of if this threat was a real threat, it hasn't gone away. It may still be in effect, and who knows whether it would be carried out or not.

"THE COURT: Uh-huh. Okay. Might you have said more?

"JUROR NO. 10: I suppose I probably did, but that's the essence.

"THE COURT: All right. That's what you intended to communicate.

"JUROR NO. 10: There may have been more words involved.

"THE COURT: All right. Is it possible you might have said something about a consequence or penalty or punishment yesterday?

"JUROR NO. 10: I don't believe so, no.

"THE COURT: You don't believe so or you didn't?

"JUROR NO. 10: It doesn't seem that was a topic of discussion yesterday.

"THE COURT: Okay.

"JUROR NO. 10: As I recollect.

"THE COURT: Okay. Might penalty or punishment been part of your conversation this morning in terms of something you might have said?

"JUROR NO. 10: No. I—I don't recollect anything about penalty or punishment.

"THE COURT: All right. Might you have said something about consequences about, like, how it might have affected, like, one of the lawyers?

"JUROR NO. 10: No."

The court went back on the record and gave the following tentative ruling:

"THE COURT: I spoke to all 12 jurors including Juror No. 10. I believe that there is a demonstrable reality that there has been misconduct in this case. I believe that Juror No. 10, despite his denial, has spoken of consequences in terms of penalty and punishment and also in terms of the impact this case would have on at least the prosecutor. These are forbidden topics. Everyone understood they will be forbidden to mention. I believe misconduct has occurred. I believe the only thing that I can do is to substitute another juror in."

The prosecutor agreed with the court's ruling. Defense counsel agreed that misconduct had occurred, but wondered if an admonition would be appropriate. The court ruled:

"THE COURT: I think this is good cause for removal of the juror. I don't think admonishment will help in that at least one of the other jurors, if not more, has said they have told him not to discuss it, but at least it's happened. And that I did ask if it was their assessment that was informing his opinion. They've all said it. So I don't think admonishment is going to help at this point. I'm just—I can't worry about myself about outcome. I just have to worry about what has happened. [¶] I believe there has been misconduct. I don't believe I can cure him with an admonishment. Therefore, I'm thinking removal is the only alternative left of the Court. I'm going to remove him, and I'm going to draw another juror at random."

The court discharged Juror 10, replaced him with an alternate, and within an hour the newly constituted jury reached guilty verdicts on the remaining two counts.

B. Legal Principles and Standard of Review

"Great caution is required in deciding to excuse a sitting juror. A court's intervention may upset the delicate balance of deliberations. The requirement of a unanimous criminal verdict is an important safeguard, long recognized in American jurisprudence. This safeguard rests on the premise that each individual juror must exercise his or her own judgment in evaluating the case. The fact that other jurors may disagree with a panel member's conclusions, or find disagreement frustrating, does not necessarily establish misconduct." (People v. Allen and Johnson (2011) 53 Cal.4th 60, 71 (Allen).)

A trial court may discharge a juror for "good cause" if the court finds that the juror is "unable to perform his or her duty." (§ 1089.) Removal of a juror under section 1089 is committed to the discretion of the trial court, and we review whether the grounds for such removal appear in the record as a "demonstrable reality." (People v. Thompson (2010) 49 Cal.4th 79, 137.) The demonstrable reality test " 'involves "a more comprehensive and less deferential review" than simply determining whether any substantial evidence' supports the court's decision. [Citation.] The reviewing court does not reweigh the evidence but looks to see whether the court's ' "conclusion is manifestly supported by evidence on which the court actually relied." [Citation.]' [Citation.] This heightened standard is used by reviewing courts to protect a defendant's fundamental rights to due process and a fair trial, based on the individual votes of an unbiased jury [citation], which are also hallmarks in American jurisprudence." (Allen, supra, 53 Cal.4th at p. 71, italics added.)

"Whether and how to investigate an allegation of juror misconduct falls within the court's discretion." (Allen, supra, 53 Cal.4th at p. 70.) In People v. Cleveland (2001) 25 Cal.4th 466 (Cleveland) our high court discussed the trial court's inquiry into possible grounds for discharge of a juror. The Court noted that "[d]etermining whether to discharge a juror because of the juror's conduct during deliberations is a delicate matter, especially when the alleged misconduct consists of statements made during deliberations." (Id. at p. 484.) Evidence Code section 1150 prohibits admission of evidence of jurors' mental processes when there is a postjudgment inquiry into possible juror misconduct. (Ibid.) It permits introduction of evidence of statements made within the jury room when " 'the very making of the statement sought to be admitted would itself constitute misconduct.' " (Ibid.) But "because '[s]tatements have a greater tendency than nonverbal acts to implicate the reasoning processes of jurors,' " caution must be used in admitting evidence of such statements. (Ibid.) Although Evidence Code section 1150 does not govern the removal of a juror during deliberations "its underlying policy provides guidance: In deciding whether to discharge a juror for misconduct, a court should focus on its own consideration of a juror's conduct. The court cannot substitute the opinions of jurors for its own findings of fact." (Allen, supra, 53 Cal.4th at p. 75.)

In making its findings a trial court may rely on the jurors' recitation of what a challenged juror said, and we defer "to the factual determinations the trial court makes when assessing the credibility of the jurors, who may offer conflicting accounts." (Allen, supra, 53 Cal.4th at p. 75.) However, the opinions of other jurors regarding a challenged juror's comments "should not [] play[] a role in the court's ruling." (Ibid.)

"In appropriate circumstances a trial judge may conclude, based on a juror's willful failure to follow an instruction, that the juror will not follow other instructions and is therefore unable to perform his or her duty as a juror." (People v. Ledesma (2006) 39 Cal.4th 641, 738.) Circumstances showing "a juror disagrees with the majority of the jury as to what the evidence shows, or how the law should be applied to the facts, or the manner in which deliberations should be conducted . . . is not a ground for discharge." (Cleveland, supra, 25 Cal.4th at p. 485.) "Although misconduct can constitute grounds to believe that a juror will be unable to fulfill his or her function as a juror, such misconduct must be 'serious and willful.' " (People v. Bowers (2001) 87 Cal.App.4th 722, 729 (Bowers).) Accordingly, a trial court's discretion to remove a juror "is 'bridled to the extent' the juror's inability to perform his or her functions must appear in the record as a 'demonstrable reality,' and 'court[s] must not presume the worst' of a juror." (Ibid.)

If it is determined that a trial court erred in discharging a juror and replacing the juror with an alternate, "prejudice to the defendant will not be presumed." (People v. Johnson (1993) 6 Cal.4th 1, 20.) Rather, the "error requires reversal only if it is reasonably probable that a result more favorable to the defendant would have been reached but for the error." (Bowers, supra, 87 Cal.App.4th at p. 735.)

C. Analysis

The trial court discharged Juror 10 concluding that Juror 10 considered and spoke "of consequences in terms of penalty and punishment" and the impact the case might have on the prosecutor. Lopez contends the record does not show to a demonstrable reality that Juror 10 was unable to follow the court's instructions or perform his duties as a juror because the court posed questions that were too vague to elicit any objective evidence. He asserts the trial court then improperly relied on the majority jurors' conclusions regarding the things Juror 10 considered, rather than objective facts or statements. Applying the above rules to the instant circumstances, we conclude that while the trial court may have been overly cautious in mostly asking questions calling for only a yes or no answer, the facts the court elicited from the jurors revealed that Juror 10's misconduct was serious and willful and established as a demonstrable reality Juror 10's inability to properly serve as a juror.

Juror 2 stated that Juror 10 was "not following [the] instructions" and complained that Juror 10 would make statements "in direct opposition to an instruction even when that instruction is read back" and that Juror 10 persisted in this conduct even when other jurors informed him that "you cannot consider that because of this instruction." Juror 2 indicated that the impermissible "category" Juror 10 was considering was penalty or punishment.

Based on Juror 2's statements the trial court decided to question all the jurors individually, instructing them to answer only the question asked and to try to answer with a "yes" or "no." In limiting its inquiry to questions calling for yes or no answers, the trial court hampered its ability to evaluate Juror 10's conduct.[9] Nonetheless, court's questioning educed sufficient facts from which it could reasonably conclude that Juror 10 had engaged in serious and willful misconduct.

While two jurors stated that Juror 10 had not considered penalty or punishment, and one juror was not sure, eight jurors stated that Juror 10 had discussed penalty or punishment. Juror 10 admitted that he "may have" discussed penalty or punishment, but later claimed he did not discuss this topic. The trial judge is in the best position to evaluate the credibility of these conflicting assertions. (Allen, supra, 53 Cal.4th at p. 75 [we defer to the trial court's factual determinations when assessing the credibility of the jurors].) Thus, substantial evidence supported the court's conclusion that Juror 10 was willfully failing to follow the instructions by discussing penalty and punishment. (CALCRIM No. 3550; People v. Williams (2001) 25 Cal.4th 441, 448 ["A juror who refuses to follow the court's instructions is 'unable to perform his duty' within the meaning of . . . section 1089]; People v. Hill (1992) 3 Cal.App.4th 16, 34 ["[D]isregard[ing] the trial court's instruction not to discuss penalty or punishment . . . constitute[s] juror misconduct."], overruled on other grounds in People v. Nesler (1997) 16 Cal.4th 561, 582, fn. 5.) The record also supports the trial court's conclusion that an admonition or reinstruction would have been insufficient based on Juror 2's statements that Juror 10's misconduct persisted despite other jurors pointing out to Juror 10 that he was not following the court's instructions.

Despite the trial court's "yes" or "no" questioning, Juror 12 revealed there may have been discussion about "what the defendant was in jail for" and whether Lopez was in jail "for life." Juror 1 relayed that Juror 10 made statements about the "potential outcome of the case and its consequences." Juror 9 volunteered that Juror 10 discussed improper subjects "other outcomes of the case" and "[p]otential harm" to individuals, such as the prosecution, after the jury rendered its verdict. Although Juror 10 denied discussing the possible consequences of the case on one of the lawyers, he admitted discussing whether the threats in this case were still in effect and whether they might be carried out.

The revelations by Jurors 1 and 9 that Juror 10 discussed possible consequences of the case, followed by Juror 10's admission that he discussed the possibility that Lopez's threats might be carried out, are particularly disturbing given the case involves a violent criminal gang. The jury heard evidence that Lopez made death threats against multiple deputies, was a Los Palillos gang member, this gang was affiliated with the Arellano Felix cartel, and members of this gang were responsible for murders and kidnappings for ransom. Juror 10's discussion of continuing threats and the consequences of, presumably, a guilty verdict on the prosecution and others raises a broader concern that Juror 10 may have been attempting to frighten other jurors into rendering a not guilty verdict. This was likely the trial court's concern when it remarked that the misconduct was "getting more egregious than I thought" after hearing from Jurors 1 and 9.

In summary, the court's inquiry elicited sufficient facts from which it could render an informed decision that Juror 10 had willfully failed to adhere to his oath as a juror to follow the court's instructions.[10] Accordingly, the basis for discharging Juror 10 appeared on the record as a demonstrable reality, and the court's conclusion is manifestly supported by the evidence on which it relied. (Allen, 53 Cal.4th at p. 71.)

II. ALLEGED PROSECUTORIAL ERROR[11]

A. Additional Background

At the end of his closing argument, defense counsel reminded the jury about the presumption of innocence, that the prosecution has the burden and "Lopez walks into this courtroom every single day and sits here throughout the trial an innocent man. And it's only if [the prosecutor] meets his burden that that changes."

The prosecutor then commenced his rebuttal argument, by stating: "Ladies and gentlemen, at the outset of this trial I would agree with defense counsel that this defendant enjoyed the presumption of innocence. Now that the evidence has been received, now that you've been instructed on the law, now that you're going to have the opportunity to deliberate, this defendant is not innocent of these charges. This defendant is guilty of [the charged crimes]." Defense counsel did not object.

B. Analysis

Citing People v. Cowan (2017) 8 Cal.App.5th 1152, Lopez contends the prosecutor's argument misstated the law and constituted misconduct. He concedes that defense counsel failed to object to the argument below, but asserts we can review the issue on appeal as a claim of ineffective assistance of counsel. (Centeno, supra, 60 Cal.4th at p. 674 [" 'A defendant whose counsel did not object at trial to alleged prosecutorial misconduct can argue on appeal that counsel's inaction violated the defendant's constitutional right to the effective assistance of counsel.' "].) He contends that defense counsel had no sound tactical reason for failing to request that the court correct the prosecutor's misstatement of the law regarding the presumption of innocence and that the prosecutor's argument misstating the presumption of innocence and shifting the burden of proof was prejudicial, requiring reversal of his convictions.

" 'As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.' " (People v. Winbush (2017) 2 Cal.5th 402, 481 [by failing to object, the defendant forfeited his claim that the prosecutor committed misconduct in closing argument].) The People contend, and we agree, that Lopez forfeited his claim of prosecutorial error by failing to make a timely objection. There is nothing in the record to indicate that an objection would have been futile or that the prosecutor's argument was "so extreme or pervasive that a prompt objection and admonition would not have cured the harm." (Centeno, supra, 60 Cal.4th at p. 674.) Accordingly, we analyze Lopez's alternative argument that defense that counsel's failure to object constituted ineffective assistance of counsel.

To prevail on a claim of ineffective assistance of counsel, a defendant must show (1) deficient performance by his counsel and (2) resulting prejudice. (Centeno, supra, 60 Cal.4th at p. 674.) While we presume counsel's performance fell within a wide range of professional competence and sound trial strategy, counsel is deficient if there is no conceivable tactical purpose for the failure to object. (Id. at pp. 674-675.) Prejudice is shown if there is no " 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' " (Id. at p. 676.) Because the decision whether to object to a prosecutor's comments during closing argument is highly tactical, " 'a mere failure to object to evidence or argument seldom establishes counsel's incompetence.' " (Id. at p. 675.)

Lopez has not established ineffective assistance of counsel because the prosecutor did not misrepresent the law. (People v. Price (1991) 1 Cal.4th 324, 387 ["Counsel does not render ineffective assistance by failing to make . . . [objections] that counsel reasonably determines would be futile."].) The prosecutor's argument is similar to the argument in People v. Goldberg (1984) 161 Cal.App.3d 170 where the appellate court rejected defendant's claim of misconduct after the prosecutor stated, " 'And before this trial started, you were told there is a presumption of innocence, and that is true, but once the evidence is complete, once you've heard this case, once the case has been proven to you—and that's the stage we're at now—the case has been proved to you beyond any reasonable doubt. I mean, it's overwhelming. There is no more presumption of innocence. Defendant Goldberg has been proven guilty by the evidence. ' " (Id. at p. 189.) The Goldberg court concluded this comment reflected the principles articulated in section 1096 and CALJIC No. 2.90, and a restatement of the rule that a defendant is presumed innocent " 'until the contrary is proved . . . .' "[12] (Goldberg, at p. 189; People v. Booker (2011) 51 Cal.4th 141, 185 [citing Goldberg with approval].)

Similarly here, the prosecutor told the jury that Lopez enjoyed the presumption of innocence at the outset of trial, but now that they heard the evidence and the instructions, that after deliberations Lopez is not innocent, rather he is guilty of the charged crimes. We are to presume that a jury will treat a prosecutor's comments as words spoken by an advocate attempting to persuade while the court's instructions are viewed as binding statements of law. (Centeno, supra, 60 Cal.4th at p. 676.)

The prosecutor's argument is not comparable to the argument found to be improper in People v. Cowan: " 'Let me tell you that presumption [of innocence] is over. Because that presumption is in place only when the charges are read. But you have now heard all the evidence. That presumption is gone. ' " (People v. Cowan, supra, 8 Cal.App.5th at p. 1154, italics added.) The appellate court held this was a "grossly inaccurate explanation of reasonable doubt" (ibid.) because "the prosecutor did not simply argue that the presumption of innocence had been overcome by the evidence. Instead, she told the jury the presumption ends with the reading of the charges. To put it another way, even before the evidence is received, the presumption of innocence disappears. This is an unfair attempt to lighten the prosecution's burden of proof and constitutes misconduct." (Id. at p. 1160.)

Here, there is no reasonable likelihood the jury understood or applied the prosecutor's argument in an improper manner. Before closing argument, the trial court instructed the jury on the presumption of innocence and that the presumption requires that the People prove a defendant guilty beyond a reasonable doubt. (CALCRIM No. 220.) The court also instructed the jury that if an attorney's statement conflicted with the law as stated by the court, the jury must follow the court's instructions. (CALCRIM No. 200.) We presume the jury followed those instructions. (People v. Boyette (2002) 29 Cal.4th 381, 453.) Defense counsel also reminded the jurors that it was up to the prosecutor to prove beyond a reasonable doubt that Lopez committed the alleged criminal threats.

III. PITCHESS REVIEW

A. Additional Background

Before trial, defense counsel filed a Pitchess motion requesting discovery of any evidence or complaints of racist remarks, false arrests, false statements in reports, false claims of probable cause, false statements in curriculum vitae and employment applications, false testimony, and other complaints of dishonesty, involving Deputies Matthew Buford, Alexandru Galiu, James Fukushima, Rudy Peraza, and Sergeants Amy Poirier and Jose Martinez. After reviewing the papers, the court tentatively ruled that its review would be limited to the truthfulness of Deputies Buford and Galiu, the individuals who wrote the reports. Both parties submitted on this ruling. The trial court then recessed the matter to conduct its in camera review. After conducting its review, the trial court found no discoverable materials.

B. Analysis

Lopez asks us to independently review the materials the trial court reviewed during its in camera hearing to determine if additional material should have been provided to his trial counsel. The People agree that such review is appropriate in the interests of finality and in accordance with People v. Mooc (2001) 26 Cal.4th 1216 (Mooc). This issue is not moot as it has potential impact should the People decide to retry Lopez on counts 1 and 4.

On appeal, we are required to review the record of the documents examined by the trial court and determine whether the trial court abused its discretion in refusing to disclose the contents of the officer's personnel records pursuant to Pitchess. (People v. Hughes (2002) 27 Cal.4th 287, 330.) The transcript of the trial court's confidential in camera hearing and the confidential materials reviewed by the court have been transmitted to this court under seal. We have reviewed the entirety of the record under seal and independently conclude the trial court did not abuse its discretion when it denied Lopez's Pitchess motion.

DISPOSITION

The judgments are affirmed.

NARES, J.

WE CONCUR:

BENKE, Acting P. J.

IRION, J.