Opinion
A146478
03-14-2017
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER CORONADO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51321066)
INTRODUCTION
A jury convicted defendant Christopher Coronado of robbery and simple assault. On appeal, defendant argues the prosecutor committed prejudicial misconduct. We affirm.
STATEMENT OF THE CASE
An information filed in Contra Costa County charged defendant Coronado with second degree robbery and assault by means of force likely to produce great bodily injury. (Pen. Code, §§ 211/212.5, subd. (c), 245, subd. (a)(4).) A jury found defendant guilty of robbery, not guilty of felony assault, and guilty of the lesser included offense of simple assault. (§ 241, subd. (a).) The court placed defendant on probation for three years. Defendant timely appeals.
Unless otherwise indicated, all statutory references are to the Penal Code.
STATEMENT OF FACTS
On September 24, 2013, Alcides Villarreal Perez was walking home from the Richmond BART station when he was set upon by five men. One of the men landed a hard blow on Villarreal's right cheek with his fist, causing Villarreal to fall down. Villarreal identified defendant in court as his assailant. Defendant said, "Give me your money, nigga." Another person put a knife in Villarreal's back while defendant took Villarreal's bag off his shoulder. The bag contained Villarreal's wallet. The men took Villarreal's earbuds and phone. Villarreal was very afraid, and suffered a cut on his hand when the knife was put to his back.
After taking Villarreal's belongings, the five men ran to a white van and drove off. Villarreal walked back to the BART station and made a police report. Approximately 25 minutes later, a police officer transported Villarreal to a location where five men and a white van were being detained by the police. Villarreal identified each of the men as his assailants, and described each individual's role in the attack. He also identified the van and his stolen belongings: his iPhone, his shoulder bag, his wallet, another bag, and his keys and key chain. Villarreal also identified a photograph of defendant as the person in court and "the one who hit me on my cheek, and he threw me to the ground when he hit me. And he's the one that told me to give him all of my money, 'Nigga.' "
DISCUSSION
Defendant argues the prosecutor committed prejudicial misconduct by comparing reasonable doubt to common sense and reasonable conclusions, thereby diluting the reasonable doubt standard. We disagree.
General Principles
" 'The applicable federal and state standards regarding prosecutorial misconduct are well established. " 'A prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct "so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process." ' " [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves " ' "the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury." ' " ' " (People v. Smithey (1999) 20 Cal.4th 936, 960 (Smithey); accord, People v. Lopez (2013) 56 Cal.4th 1028, 1072, overruled on another ground in People v. Rangel (2016) 62 Cal.4th 1192, 1216.) " '[W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.' " (Smithey, at p. 960; accord, People v. Dykes (2009) 46 Cal.4th 731, 772 (Dykes).) Our review of that question is deferential, insofar as "we 'do not lightly infer' that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements." (People v. Frye (1998) 18 Cal.4th 894, 970, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22, Dykes, at p. 772.)
" '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. Hill (1998) 17 Cal.4th 800, 820 (Hill); see People v. Lopez, supra, 56 Cal.4th at p. 1073, citing People v. Stanley (2006) 39 Cal.4th 913, 942.) "The foregoing, however, is only the general rule. A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile." (Hill, at p. 820, People v. Boyette (2002) 29 Cal.4th 381, 432.) In addition, forfeiture of the issue on appeal does not follow failure to request an admonition if " ' "an admonition would not have cured the harm caused by the misconduct" ' " or if " 'the court immediately overrules an objection to alleged prosecutorial misconduct [and as a consequence] the defendant has no opportunity to make such a request.' " (Hill, at pp. 820-821.)
Factual Background
Defendant specifically takes issue with the following italicized comments, which we quote in context.
"[Prosecutor]: And, finally, I'd have to look at what Defense would choose to put at issue for this case. Because candidly, I don't know. I don't get any sort of crystal ball.
"[Defense Counsel]: I'm going to object on vouching, your Honor.
"[The Court]: Move on to your response.
"Prosecutor]: So the evidence here is absolutely overwhelming for guilt. And I don't know if defendant will make a closing statement, but my guess based on what was talked about in motions in lim and their opening statement
"[Defense Counsel]: Objection.
"[The Court]: That is completely improper. That is stricken.
"[Prosecutor]: My guess would be
"[Defense Counsel]: I'm gonna object as to any guess.
"[The Court]: Why don't you just tell us what you believe would be an appropriate response.
"[Prosecutor]: So I don't know. I don't know what they're going to choose to try and put at issue here. I think that there's a possibility they're gonna ask you to throw out using your common sense. And what I talked about earlier was the idea that—well, you've got a box of things that you take back with you to deliberate, and it's the facts, the evidence, the testimony. But one thing you do not leave out of that box is your common sense. One of the reasons we use a jury and not just a judge or something like that is that so we can have several hundred years of experience and common sense that are used in determining someone's guilt or innocence. And here, I highly encourage you to look at the facts and weigh them and use that common sense in evaluating what happened here. [¶] I suspect what Defense counsel will do is attempt to pull out
"[Defense counsel]: Objection.
"[Prosecutor]: Sorry.
"[The Court]: Also, I want to make sure you know, the standard is not common sense. The standard is proof beyond a reasonable doubt with the burden on the District Attorney.
"[¶] . . . [¶]
"[Prosecutor]: And I encourage you to hold me to my burden, proof beyond a reasonable doubt, but, of course, use your common sense in attempting to do that." (Italics added.)
Defendant also points out that in conclusion, the prosecutor stated: "But what I ask you to do is look at the evidence and make sure that all conclusions that you make are based in the evidence, based in the facts, and not in made-up or speculative ideas. You need to base all of your verdicts in what actually came out via testimony and via the photos and via the evidence. And at the end of the day, I encourage you to look at the evidence taken as a whole, not to forget to use that common sense, and find defendant guilty of both counts." Review of this argument is waived for failure to object or request a curative admonition, neither of which would have been futile. (Hill, supra, 17 Cal.4th at p. 820.) --------
Defendant did not state the basis of his objection to the prosecutor's argument referencing common sense. However, the prosecutor's statement about common sense was the only arguable basis for objection, and the trial court clearly understood defendant's objection that way, since it immediately admonished the jury not to equate common sense with reasonable doubt. Under these circumstances, appellate review of the objection was preserved.
Nevertheless, under federal law "inviting the jury to use its common sense and experience in making its determination" is not misconduct. (United States v. Diabate (9th Cir. 2008) 317 Fed.Appx. 638, 639.) "Indeed, the jury could not have drawn reasonable inferences from the evidence without applying its common sense, general knowledge, and life experience." (Ibid.; accord, United States v. Bonventre (2d Cir. 2016) 646 Fed.Appx. 73, 89 ["comments were permissible appeals to jurors' common sense"]; United States v. LaFontaine (8th Cir. 2017) 847 F.3d 974 ["an appeal to the jury's common sense [was] not improper"]; see United States v. Chenomusa N-Jie (4th Circ. 2008) 276 Fed. Appx. 325, 329-330; Smith v. Jones (6th Cir. 2009) 326 Fed.Appx. 324, 329; United States v. Franklin-El (10th Cir. 2009) 555 F.3d 1115, 1125.)
Nor has any California case been brought to our attention which suggests it is improper for jurors to use their common sense under state law. On the contrary, the opposite is true. (See People v. Venegas (1998) 18 Cal.4th 47, 80 ["jurors are permitted to rely on their own common sense and good judgment in evaluating the weight of the evidence presented to them"]; CALCRIM No. 226 ["In deciding whether testimony is true and accurate, use your common sense and experience."]. In People v. Boyette, supra, 29 Cal.4th at page 437, the court approved a prosecutor's argument that "the evidence of guilt was so strong that if any juror had doubts, they should step back and use their common sense." (See People v. Rich (1988) 45 Cal.3d 1036, 1091 [prosecutor's argument that the jury should " 'use [its] own common sense' " approved].)
Here, the jury was properly instructed on the prosecution's burden of proving defendant guilty beyond a reasonable doubt and the presumption of innocence (CALCRIM Nos. 103, 220); that defendant was entitled to an acquittal unless the evidence proved him guilty beyond a reasonable doubt (ibid.); and that the jury must follow the law as explained by the court, even if the jurors believed the attorneys' comments conflicted with the court's instructions. (CALCRIM No. 200.) " ' "Jurors are presumed to be intelligent, capable of understanding instructions and applying them to the facts of the case." ' " (People v. Carey (2007) 41 Cal.4th 109, 130.) In light of the instructions as a whole, and especially the trial court's immediate and strong admonition with respect to the "common sense" comment, we conclude there is no reasonable likelihood the jury would have interpreted the prosecutor's above-quoted argument as equating common sense and proof beyond a reasonable doubt. No misconduct appears.
Defendant also argues the following italicized comment conflated reasonable conclusions with reasonable doubt. In his rebuttal to defense counsel's final argument, the prosecutor stated: "And then I sort of want to touch on the idea that—I'm actually not gonna go too far into the idea that maybe defendant bullied the guy, punched him, and then everybody else did their own thing because I think that that's—well, that seems to be a rather far-flung argument. And again, we're here to make reasonable conclusions based on the evidence and not unreasonable conclusions that he decided to bully and punch somebody and then everybody else decided to rob him, particularly understanding that he also, and everyone, made the statement, Give us your money."
Defendant did not object to this argument or ask for an admonition. Given the court's prior admonition, there is no basis to conclude that an objection would have been futile, or that an admonition would not have cured any possible harm. We therefore find review of defendant's argument concerning the above-quoted statement forfeited. (People v. Centeno (2014) 60 Cal.4th 659, 674.) In any event, we see no basis on this record to conclude the jury would have understood the comment to mean that "a 'reasonable' account of the evidence satisfies the prosecutor's burden of proof." (Id. at p. 672.) At most, the prosecutor's comment urged the jury to " ' "accept the reasonable and reject the unreasonable" ' " in evaluating the evidence before it, which is proper. (Ibid., quoting People v. Romero (2008) 44 Cal.4th 386, 416.) In short, we find no prosecutorial misconduct occurred here.
DISPOSITION
The judgment is affirmed.
/s/_________
Dondero, J. We concur: /s/_________
Margulies, Acting P. J. /s/_________
Banke, J.