Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC054893.
Ruvolo, P. J.
I. Introduction
Appellant Sione Fakalata was convicted by jury of first degree murder (Pen. Code § 187, subd. (a)); three counts of robbery (§ 212.5, subd. (c)); and one count of attempted robbery (§ 664/212.5, subd. (c)). Appellant contends his convictions must be reversed because the prosecutor engaged in prejudicial misconduct during his cross-examination and closing argument. We affirm.
II. Facts and Procedural History
Sometime after midnight on December 22, 2002, five friends, Daniel Jesus, Miguel Martinez, Jose Martinez, Francisco Molina, and Domingo Huerta, were gathered at a cul-de-sac on Garden Street in East Palo Alto drinking liquor to celebrate Jesus’s 20th birthday. As they were in the midst of celebrating, four strangers approached them. The approaching strangers, who appeared to be of Tongan descent, were appellant, Remus Langi, Joe Ngaloafe and an unknown fourth man. Appellant and his companions had come from another party. The two groups began drinking and talking together in a friendly manner.
Although two of the victims have Martinez as their last name, they are not related. In the interest of clarity, we will refer to each of the victims by their first names. No disrespect is intended.
As the two groups continued talking, Jose asked appellant if he knew someone named Ashley, who he described as a Tongan. This seemed to offend appellant. Appellant told Jose, “I’ll knock you out, fool.” Then almost immediately after saying this, appellant punched Jose in the face, knocking him to the ground. Jose tried to get up and was hit again. As he was on the ground, he felt more than one person going through his pockets.
Around this time, appellant’s co-participant Langi punched Miguel, the 19-year-old murder victim, causing him to fall to the ground. Miguel fell onto his back, his head hit the pavement, and although he was unconscious, he continued to be beaten.
Daniel was also hit in the face, and he fell to the ground and lay on his side. He was kicked repeatedly in the back of his head, and he felt someone going through his pockets, taking his wallet and keys.
Domingo went to help Miguel, who was lying partially on the sidewalk and partially in the street. At some point, Domingo was hit on the right side of his face from behind. He staggered and then turned to see appellant. Appellant, who was joined by Langi, continued hitting Domingo in the face until he fell to the ground. He lay on his side, covering his face with both hands. They kicked him and stepped on his head with enough force that his face was cut by the concrete. At the same time, he felt his pockets being rummaged through, although nothing was taken.
Francisco was able to leave the area and call 911 emergency for police assistance. Officers responded to the scene, at which time appellant and his companions were leaving on foot. They were asked to stop and appellant and Langi complied. Ngaloafe did not initially comply, but he was stopped down the street by another officer. The fourth suspect was no longer in the area and has never been identified.
The responding officers recovered two sets of keys from Langi that belonged to the victims Jose and Miguel. Daniel’s wallet and keys were found thrown over a fence on Garden Street, close to the cul-de-sac where the crime took place.
Miguel later died from brain swelling, which was caused by blunt head trauma. The autopsy revealed eight areas of blunt trauma to the head. He never regained consciousness after the attack and was kept on life support until December 25, 2002.
Appellant testified at trial. He did not dispute that he was present, that he participated in the fight, or that he told Jose,“I will knock you out, fool.” He believed that Jose was “stereotyping towards my people” because he asked appellant if he knew his friend Ashley “the big Tongan.” He denied that he had any intent to rob anyone and claimed he was unaware that any property had been taken.
During trial, the prosecution advanced a felony-murder theory. The prosecutor argued that appellant created a dispute in order to advance the commission of the robbery, which the evidence showed had been planned from the beginning, because without discussion “they all knew what to do and they all did it effectively and efficiently and violently and brutally . . . .” In contrast, the defense asserted that Miguel died during a drunken brawl, triggered by a seemingly trivial slight, in which both sets of young men participated; and there was no advance plan to rob anyone.
As noted, the jury convicted appellant of first degree murder (§ 187, subd. (a)); three counts of robbery (§ 212.5, subd. (c)); and one count of attempted robbery (§ 664/212.5, subd. (c)). The court sentenced appellant to an aggregate term of 29 years 8 months to life in prison. Appellant filed a timely notice of appeal.
III. Discussion
On appeal, appellant contends the prosecutor engaged in misconduct at various times during cross-examination and closing argument and that the cumulative effect of this misconduct deprived him of a fair trial. The first instance of prosecutorial misconduct cited by appellant consists of the prosecutor’s alleged effort during cross-examination to elicit testimony that would indicate prior criminal activity by Langi, who was tried separately from appellant. One of the reasons appellant’s case had been severed from Langi’s case was to prevent the spillover prejudicial effect of Langi’s prior juvenile record, in which he was found to have committed a robbery. Appellant claims that the prosecution tried “to inject Langi’s prior record into appellant’s case” in an attempt to persuade the jury “that Langi was a known robber and thug, and that the jury could assume that appellant, by associating with Langi, was showing himself to be a robber as well.”
Appellant’s argument refers to the following exchange during the prosecution’s cross-examination of appellant:
“[Prosecutor]: [D]o you remember any other time where [Langi] sort of disappeared for a while?
“[Appellant]: No.
“[Prosecutor]: Did you know of anything that happened to him when he was at Menlo-Atherton, at the high school?
“[Appellant]: No.
“[Prosecutor]: Were you aware that he had gone away from the high school for about nine months?
“[Appellant]: No, I wasn’t aware.
“[Prosecutor]: Remember him being out of circulation for nine months, let me give you the dates.
“[Defense Counsel]: For the record, I am objecting to the form of the question.
“The Court: Sustained as to the form.
“[Prosecutor]: At the end of the year 2000, the beginning of 2001, do you remember Mr. Langi disappeared again for about nine months?
“[Appellant]: I don’t know nothing about that.
“[Prosecutor]: Do you remember, did you know that he had some trouble up in the juvenile court?
“[Defense Counsel]: Objection. Irrelevant.
“[Prosecutor]: Just for his knowledge.
“The Court: Sustained.”
At that point, the prosecutor asked to approach the bench and the court dismissed the jury. The prosecutor then questioned appellant about Langi’s absence, and appellant denied any knowledge of the absence or the reasons causing it. The court ruled, “This is not an area of questioning that will be dealt with here.”
Later that day, counsel moved for a mistrial because the prosecutor’s questions implied that the jury could find appellant guilty “by association” with Langi. The court denied the motion but offered to admonish the jury that questions by counsel should not be considered as evidence. At appellant’s request, the jury was instructed: “Nothing that the attorneys say is evidence. In their opening statements and closing arguments the attorneys will discuss the case, but their remarks are not evidence. Their questions are not evidence. Only the witness’s answers are evidence. The attorney[s’] questions are significant only if they help you to understand the witness’s answers. [¶] Do not assume that something is true just because [an] attorney[] asks a question that suggests it is true.”
Next, appellant claims the prejudicial effect of the prior instance of prosecutorial misconduct was compounded during closing argument when the prosecutor repeatedly implied that he possessed information, not disclosed to the jury, that the suspects had previously robbed and beaten people. The prosecutor argued: “[T]hey’re on the ground, the beating goes on and on and on, and property was taken from them. [¶] How does that happen? It’s not just a random occurrence in the universe. There’s a plan and an intention from these guys. This is what they do. They beat people to the ground, and they take stuff from them while they’re doing it.” (Emphasis added.)
Later in the argument, the prosecutor stated “Now, what’s—I put here is modus operandi. There’s nothing in the instructions that you have about—it’s a phrase in the law that talks about it’s a plan. It’s—it’s in shorthand, there’s an MO, how someone does something. They do it over and over again. It can apply to a lot of things, serial killers, killing the same way, people rob banks in certain ways. It becomes a pattern. [¶] I put that up there to, again, talk about the idea there were no instructions given here, but they all knew what to do because they all did it together over and over and over again. It suggests a modus operandi, a way that they do things.” (Italics added.)
Next, the prosecutor stated, “There’s no real fight or battle or animosity with Danny Jesus or Miguel Martinez or Domingo Huerta except that it’s a crime of opportunity that these three thugs took to beat and rob these guys for fun because they were angry because this is what they do,” followed by, “So now it shifts and changes into something other than what it was, was the signal, the punch to start the beating and robbery because that’s what these guys do. That’s what they do over and over again like they practiced it a thousand times.” (Italics added.)
After the last statement, defense counsel objected, “There’s no evidence that says it’s a conspiracy.” The court instructed the jury, “Ladies and gentlemen, this is argument by counsel. The evidence that’s been introduced is dealing with what occurred on this night. That’s what the focus is here, that night.”
According to appellant, the “the prosecutor’s repeated argument that appellant and his two companions attacked and robbed the assault victims in this case ‘because this is what they do, over and over and over again’ was to imply to the jury that the prosecutor had information that they had attacked and robbed other people in the past.” Appellant argues that his conviction must be reversed because of the cumulative prejudicial effect of the prosecutor’s misconduct during cross-examination, when he obliquely referred to Langi’s prior juvenile record, and his misconduct during closing argument, where he inferred that appellant and his cohorts had committed similar crimes in the past. We disagree.
In the first claimed instance of misconduct, when the prosecutor attempted to ask appellant whether he knew Langi “had some trouble up in the juvenile court,” defense counsel made a timely objection on grounds of relevance and the objection was sustained. After a brief off-the-record conference, the court admonished the jury that arguments and questions by counsel are not to be considered by the jury for any purpose; and specifically, that questions by attorneys are not evidence.
We presume, absent a contrary showing, that the jurors understood and followed the trial court’s instruction. (People v. Welch (1999) 20 Cal.4th 701, 773.) We must presume, therefore, that the trial court’s admonition ameliorated whatever small prejudicial effect the prosecutor’s questioning may have had. As a result of the trial court promptly sustaining defense counsel’s objection, the prosecutor never had an opportunity to develop this line of questioning, so neither the prosecutor’s questions nor appellant’s responses conveyed any damaging information about Langi’s criminal past to the jury. The first claim of prejudicial prosecutorial misconduct is therefore without merit.
Appellant also contends the prosecutor improperly inferred that appellant and his cohorts had committed similar crimes in the past because during closing argument, the prosecutor asserted that appellant and his companions attacked and robbed the victims because “[t]his is what they do” “over and over and over again.” When the claim of prosecutorial misconduct 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. (People v. Brown (2003) 31 Cal.4th 518, 553-554.) When conducting this inquiry, the court “ ‘do[es] not lightly infer’ that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements. [Citation.]” (Ibid.)
Moreover, a prosecutor is given wide latitude during argument. Prosecutorial argument may be vigorous, as long as it amounts to fair comment on the evidence, including reasonable inferences or deductions that may be drawn from that evidence. (People v. Guerra (2006) 37 Cal.4th 1067, 1153; People v. Hill (1998) 17 Cal.4th 800, 819.) Here, we conclude the prosecutor’s comments were properly based on the evidence and, in any event, were nonprejudicial.
When prejudicial prosecutorial misconduct in closing argument was raised as a ground for appellant’s motion for a new trial, the prosecutor explained that the objected-to comments referred to the repetitive nature of the conduct as suggesting a preexisting plan or tacit agreement to beat and rob the victims. His remarks “clearly referred to the fact that after beating Jose Martinez they did the same thing over and over again accounting for all four of the victims who were beaten and robbed.”
The trial court denied counsel’s motion for a new trial after finding the prosecutor’s arguments properly related to the circumstances of the crime. The court ruled, “words spoken by [the prosecutor] in that context certainly could have been as it relates to the comment over and over again relating to the multiple victims in this case . . . in terms of the lack of any speaking, the actions that were taken, the beatings, going through the pockets, and the like, I certainly don’t believe that it rose to any level of prosecutorial misconduct. [¶] In addition to that, I would note that when [defense counsel] made his objection the Court in an abundance of caution instructed and advised the jury at that point in time that they were only to be focused on and concerned with the events of the night in question as it relates to their fact finding purpose here.”
We agree with the trial court’s analysis of this issue. In viewing the prosecutor’s comments in the context of the argument as a whole, it is not reasonably likely that the jury construed or applied the complained-of remarks in an objectionable manner. (People v. Samayoa (1997) 15 Cal.4th 795, 841.) The state of evidence in this case was that all four of the victims who were attacked by appellant and his cohorts had property taken from them or attempted to be taken from them while they were on the ground being beaten and kicked. During each of the robberies, the victims did not hear any of the suspects communicating with each other or giving each other instructions on what course of action to take next, as they went from one victim to the next in a continuous pattern of beating and robbing. The prosecutor was entitled to argue the evidentiary significance of the repetitive and methodical manner in which the robberies and assaults were carried out to support his theory that there was a preexisting intent to rob the victims. Furthermore, the court’s admonition that the jury was to focus only on the night in question ensured that the prosecutor’s comments were not interpreted in an improper or erroneous manner.
On this record, we find appellant’s claim that cumulative instances of prosecutorial misconduct deprived him of a fair trial is totally without merit.
IV. Disposition
The judgment is affirmed.
We concur: Sepulveda, J., Rivera, J.