Opinion
D057335
11-17-2011
THE PEOPLE, Plaintiff and Respondent, v. ROBERT J. TAYLOR, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. SCD225020)
APPEAL from a judgment of the Superior Court of San Diego County, Gale E. Kaneshiro, Judge. Reversed in part and affirmed in part with directions.
A jury convicted Robert Taylor of robbery (Pen. Code, § 211; count 1) and making a criminal threat (§ 422; count 2). It found true allegations that Taylor personally used a dangerous and deadly weapon in the commission of both offenses (§ 12022, subd. (b)(1)), and that he had suffered a prior juvenile adjudication for a serious and violent felony (§§ 667, subds. (b)-(i), 1170.12, 668). The court sentenced Taylor to a seven-year prison term, consisting of six years (double the middle term of three years) on count 1 plus a one-year enhancement for the weapon use allegation. The court stayed under section 654 Taylor's sentence and enhancement on the count 2 criminal threat offense.
All statutory references are to the Penal Code unless otherwise stated.
Taylor contends there is insufficient evidence to support his conviction of making a criminal threat. He further contends the prosecutor committed prejudicial misconduct in closing statements by misstating the facts and law, and appealing to the jury's passions, sympathies, and prejudices. Taylor argues that to the extent we conclude the prejudice from the prosecutor's misconduct could have been cured, he was deprived of constitutionally effective assistance of counsel by his defense counsel's failure to object and request admonitions. For the reasons discussed below, we reverse the criminal threat conviction and remand the case for resentencing. In all other respects, the judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
On January 12, 2010, Josue Rivera, who was 18 years old at the time of trial, was at the 62nd and Encanto Street trolley station in San Diego County. Rivera was by himself listening to music on an iPod, with about ten other people present. While he stood there, he noticed a woman and man, who Rivera identified at trial as Taylor, also waiting for the trolley. As a train approached, Taylor started coming toward Rivera, who stepped back to get out of his way. Taylor, who was about five or six inches taller than Rivera, walked up to Rivera, pulled out a gun from the right side of his waist, pointed the barrel down against Rivera's stomach, and said, "Give me the iPod, nigga. I'm going to shoot you." Rivera believed the gun was real, but it was later found to be a BB gun. Rivera tried to step back but Taylor kept close to him, and Rivera told him to calm down. Taylor again demanded Rivera give him the iPod or he would shoot him, using the same racial remark. Rivera, who was hiding the device in his hand, reluctantly raised it up and Taylor pulled it away from him. Taylor told Rivera to keep his headphones; that he just wanted the iPod. Taylor then turned around and walked away, and he and his female companion got on the trolley. The entire interaction between Taylor and Rivera took a couple of minutes.
Afterwards, Rivera was "[s]urprised, shocked and a little mad . . . ." According to Rivera, the incident "kind of ruined his day . . . ." He told another man at the station what happened, but the man made a comment about tough living and that Rivera couldn't do much about it. Rivera decided to walk the five-minute distance home and reported the incident to his father, who called 911. San Diego Police Officer Troy Owens received a radio call, and met Rivera at his home. When the officer initially spoke with Rivera, Rivera seemed fearful or afraid, as if something had happened that was a very traumatic incident. Officer Owens took Rivera in the area of the Lemon Grove station to identify a suspect. Rivera identified the person in the police car as Taylor. The officers located Taylor's gun that day, and Rivera learned it was a BB gun while he was with Officer Owens. Rivera missed school for the rest of the week after the incident.
DISCUSSION
I. Sufficiency of the Evidence to Support Conviction for Making a Criminal Threat
Taylor contends there was insufficient evidence to support his conviction of making a criminal threat. Specifically, he maintains the evidence does not show Rivera was reasonably in sustained fear for his own safety that was more than momentary, fleeting or transitory. As we explain below, we are compelled to agree.
" 'A reviewing court faced with such a claim determines "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." [Citations.] We examine the record to determine "whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt." [Citation.] Further, "the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." [Citation.] This standard applies whether direct or circumstantial evidence is involved. "Although it is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court[,] that must be convinced of the defendant's guilt beyond a reasonable doubt. [Citation.] ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.(People v. Virgil (2011) 51 Cal.4th 1210, 1263.)
There are five elements to the offense of making a criminal threat, including, as relevant here, that the victim be insustained fear for his or her own safety or for his or her immediate family's safety.(In re George T. (2004) 33 Cal.4th 620, 630.)This element "requires proof of a mental element in the victim." (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) The threat must "be such as to cause a reasonable person to be in sustained fear for his personal safety. . . . The phrase to 'cause[ ] that person reasonably to be in sustained fear for his or her own safety' has a subjective and an objective component. A victim must actually be in sustained fear, and the sustained fear must also be reasonable under the circumstances." (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1139-1140 (Ricky T.).) "[S]ection 422 requires that the communication must be sufficient 'on its face and under the circumstances in which it is made' to constitute a criminal threat. This means that the communication and the surrounding circumstances are to be considered together." (In re Ryan D. (2002) 100 Cal.App.4th 854, 860.)
The five elements for a section 422 offense of making a criminal threat are: " '(1) that the defendant "willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person," (2) that the defendant made the threat "with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out," (3) that the threat . . . was "on its face and under the circumstances in which it [was] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat," (4) that the threat actually caused the person threatened "to be in sustained fear for his or her own safety or for his or her immediate family's safety," and (5) that the threatened person's fear was "reasonabl[e]" under the circumstances.' " (In re George T., supra, 33 Cal.4th at p. 630, fn. omitted.) Taylor's act of pointing a gun directly against Rivera's stomach and demanding the iPod in a serious manner, telling Rivera he would shoot him if he did not surrender it, was sufficiently unequivocal, immediate, and specific to have gravity of purpose and thus meets the standards for the first, second and third elements.
Though neither section 422 nor case law has identified any particular length of time for a finding of sustained fear, "sustained" as used in the statute has been described to mean "a period of time that extends beyond what is momentary, fleeting, or transitory." (People v. Allen, supra, 33 Cal.App.4th at p. 1156 & fn. 6 ["[N]o minimum time period is required, only a period 'not insubstantial' "]; Ricky T., supra, 87 Cal.App.4th at pp. 1139-1140.) Thus, not any experience of fear will suffice to meet the standard. (Id. at p. 1140 ["Clearly, if any experience of fear constitutes a 'sustained' experience, then the term is superfluous"].)
In People v. Allen, supra, 33 Cal.App.4th 1149, the Court of Appeal held that "[f]ifteen minutes of fear of a defendant who is armed, mobile, and at large, and who has threatened to kill the victim and her daughter, is more than sufficient to constitute 'sustained' fear for purposes of this element of section 422." (Id. at p. 1156.) In Allen, the defendant had previously broken into the victim's daughter's home and repeatedly stalked and assaulted the victim's daughter. (Id. at pp. 1151-1152.) The victim had filed police reports on all of the incidents. (Id. at p. 1153.) The defendant, who had a practice of looking inside the victim's home, had been going by her house on multiple occasions earlier on the day of the incident at issue. (Allen, at pp. 1155, 1156.) He approached the victim's back door and threatened to kill the victim and her daughter while brandishing a gun. The victim then called the police, who arrested the defendant within " 'about fifteen minutes or so.' " (Id. at p. 1156.) The court found the victim's knowledge of the defendant's prior conduct was relevant to establish the victim was in a state of sustained fear. (Ibid.)
In People v. Fierro (2010) 180 Cal.App.4th 1342 (Fierro), the victim and his son were at a gas station when they got into an altercation with the defendant, whom they had never previously met. (Id. at p. 1344.) The defendant appeared to drive off, but then circled back around. (Id. at p. 1345.) The victim attempted to leave the premises, but before he could, the defendant confronted him and his son in their car, displayed a weapon in his waistband to them while yelling obscenities, and threatened to kill them. (Id. at pp. 1345-1346.) This second encounter lasted about a minute, and the threat itself lasted about 40 seconds. (Id. at p. 1349 & fn. 5.) When the victim was finally able to drive away and onto the freeway, he called the police, still scared. (Id. at p. 1346.)
The Fierro court summarized the victim's testimony of his fear: "Mr. Ibarra testified clearly and more than once that he was horribly scared, and his fright was not fleeting. Regardless of who was at fault during the first confrontation, it had ended. Appellant had driven away. But then appellant circled and returned with the obvious intent of confronting Ibarra again and, this time, frightening him. In light of the (albeit recent) history between these people, appellant amply succeeded. Facing what he thought was a gun and hearing words to the effect that he and his son were about to be killed, Mr. Ibarra was in sustained fear for his and his son's life. The fear lasted not only through the minute or so that appellant stood there exposing his weapon, but for up to fifteen minutes after Ibarra drove away. It is entirely reasonable that he would react as he did for as long as he did. That is exactly what appellant wanted to accomplish." (Fierro, supra, 180 Cal.App.4th at p. 1349.) The Fierro court concluded that, under those circumstances, the victim's fear was not momentary, and thus there was substantial evidence to support the section 422 offense. (Ibid.)
Fierro contrasted its situation with that of Ricky T., supra, 87 Cal.App.4th 1132, in which the Court of Appeal concluded a teacher's fear was fleeting and insufficient to support a section 422 offense. (Fierro, supra, 180 Cal.App.4th at p. 1349, citing Ricky T., at pp. 1135-1136.) In Ricky T., a 16-year-old student left a classroom to use the bathroom and found the classroom door locked upon his return. He pounded on the door and when the teacher opened it, the door accidentally hit the student. The student became angry, cursed the teacher and threatened to "get" him (stating "I'm going to kick your ass"), but made no physical movements or gestures. The teacher felt threatened and responded by sending the student to the school office. (Id. at pp. 1135-1136.) The Court of Appeal held the teacher's fear insufficient in the absence of evidence showing he felt fear beyond the moment of the angry utterances. (Id. at p. 1140.) It observed the police were not called until the next day, there was no history of disagreements between the student and the teacher, and there was no accompanying show of force or violence. (Id. at pp. 1138, 1140.) Indeed, the student complied with the teacher's demand by leaving the scene and going to the school office. The Court of Appeal in Ricky T. concluded that the student's "statement was an emotional response to an accident rather than a death threat that induced sustained fear." (Id. at p. 1141.)
Taylor compares the present circumstances to Ricky T., supra, 87 Cal.App.4th 1132, and argues that unlike other cases such as People v. Allen, supra, 33 Cal.App.4th 1149, in which the victim had prior knowledge of the defendant or the defendant's past conduct, there was no prior relationship or knowledge between him and Rivera. Consequently, Taylor argues we should conclude Rivera's fear was only fleeting or momentary, and did not exist beyond the moments of the encounter, as was the teacher's fear in Ricky T.
We are compelled to conclude that the evidence in this case is insufficient to convict Taylor of uttering a criminal threat. Concededly, Taylor's words, accompanied by exposure of his weapon, were plainly intended to instill fear, had gravity of purpose, and, at least from Rivera's perspective, constituted a threat that was capable of immediately being carried out. However, it would not be objectively reasonable for a person in Rivera's situation to be in fear for his or her own personal safety both during and after the incident, more than for a period that is merely fleeting or limited to the moments of their encounter. This case does not present the circumstances in either People v. Allen, supra, 33 Cal.App.4th 1149 or Fierro, supra, 180 Cal.App.4th 1342, in which the victim had some history of animosity with the defendant, albeit brief in Fierro. In these cases, the victims experienced sustained fear — for more than a couple of minutes — that the defendant's threat would be carried out. There was no such history between Rivera and Taylor. Further, Rivera observed Taylor and his companion leave the scene on the trolley immediately after the incident, and there is no evidence that Taylor could have carried out his threats beyond the immediate moments of his confrontation. Under these circumstances, we cannot say a reasonable jury could find Rivera reasonably suffered the kind of sustained fear sufficient to convict Taylor of a criminal threat within the meaning of section 422.
In our view, were we to reach a different conclusion, there would be no way to distinguish this case from any armed robbery that is accompanied by an oral threat of violence. Certainly a person involved in such an armed robbery would reasonably experience fear from the trauma resulting from the incident, but it would be a general fear as opposed to the sort of sustained fear that the defendant will carry out his threat, which is contemplated by section 422. As the court in Ricky T. stated, "if any experience of fear constitutes a 'sustained' experience, then the term is superfluous." (Ricky T., supra, 87 Cal.App.4th at p. 1140.) We acknowledge that the Fierro court observed: "When one believes he is about to die, a minute is longer than 'momentary, fleeting, or transitory.' " (Fierro, supra, 180 Cal.App.4th at p. 1349.) But the Fierro court's comment was unnecessary to its decision and thus dictum, as the court otherwise held the victim's fear lasted up to fifteen minutes while the defendant was at large, and thus was sufficiently sustained for purposes of section 422. We decline to apply Fierro's dictum in this case. Accordingly, we reverse Taylor's count 2 criminal threat conviction under section 422.
II. Claims of Prosecutor Misconduct
Taylor contends the prosecutor engaged in "pervasive" misconduct during his closing argument by appealing to the jury's passions and prejudices, and also by misstating the law and facts. A. Legal Principles
" 'The standards governing review of misconduct claims are settled. "A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such ' "unfairness as to make the resulting conviction a denial of due process." ' [Citations.] Under state law, a prosecutor who uses such methods commits misconduct even when those actions do not result in a fundamentally unfair trial." [Citation.] "In order to preserve a claim of misconduct, a defendant must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the claim of misconduct preserved for review." [Citation.] When a claim of misconduct is based on the prosecutor's comments 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. Gonzales (2011) 51 Cal.4th 894, 920, quoting People v. Friend (2009) 47 Cal.4th 1, 29.) In assessing prejudice, we " 'do not lightly infer' " the jury drew the most damaging meaning from the prosecutor's statements. (People v. Frye (1998) 18 Cal.4th 894, 970, disapproved on a different point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) B. Claims of Prosecutor's Appeals to Passion and Prejudice
1. Alleged Appeal to Jury's Civic Duties
Taylor contends the prosecutor improperly appealed to the jury's passions by the following comments during closing arguments: "I submit to you these cases are tough. This is our form of dispute resolution. You 12 jurors are going to have to go back and make a combined decision and speak as a unified voice. You are the voice of the community. Both sides in this case want a resolution. I submit my resolution is going to be different than their resolution, but closure is what we're seeking. Not only are we seeking justice and the truth, we are seeking resolution and accountability. There's a time to send a message. Enough is enough."
Following an unsuccessful defense objection on grounds of "passion and prejudice," the prosecutor continued: "Mr. Taylor has exercised his constitutional right to a jury trial, and now when this case is done, you'll have a right to hold him accountable and tell him as members of the community, members of society, that his actions are unspeakable and that this is outrageous what he has done, and he needs to be held accountable, and for those reasons, he should be found guilty of both charges with the allegations."
Taylor compares this to the circumstances in United States v. Weatherspoon (9th Cir. 2005) 410 F.3d 1142, 1149 (Weatherspoon), and argues it was misconduct to make the jury the "voice of the community." He suggests the prosecutor by these comments urged the jury to protect community values, preserve civil order, or deter future law breaking, and thus diverted the jury from its role of objectively evaluating the facts and evidence akin to the misconduct criticized in People v. Redd (2010) 48 Cal.4th 691.
We disagree that the prosecutor's comments in this regard were calculated to arouse the jury's passions and prejudices. In Weatherspoon, the prosecutor repeatedly, in the face of the court's admonitions, urged the jury to convict the defendant in order to protect other individuals in the community, stating for example, " '[F]inding this man guilty is gonna protect other individuals in this community.' " (Weatherspoon, supra, 410 F.3d at pp. 1149-1150.) Here, unlike Weatherspoon, the prosecutor directed his comments at holding Taylor accountable, and did not ask the jury to assist in the solution of some pressing social problem or make a statement of the sort found improper in Weatherspoon. (Id. at p. 1149.)
We also fail to see how People v. Redd, supra, 48 Cal.4th 691 requires us to find prejudicial misconduct in the prosecutor's comments in this case. The California Supreme Court in Redd did not hold the challenged remarks in that case — including comments to the jurors' common sense and stating "we are in sad shape" if they could not reach a decision — constituted an appeal to passion or prejudice. (Id. at pp. 742-744.) It held the comments either did not invite an irrational or emotional response, or the defendant had waived his challenge. (Ibid.)
2. Alleged Appeal to Jury's Natural Sympathy for the Victim
Taylor argues the prosecutor appealed to the jury's sympathies for Rivera and had the jurors put themselves in Rivera's place when he said, "Think about what had to occur for him to be standing next to his female friend and for him to decide, 'You know what I'm going to do? I'm going to go over there and I'm going to pick on that defenseless boy who is standing over there, unarmed, minding his own business.' Why did he do it? Who knows? He was a bully." Taylor also points to the prosecutor's statement in rebuttal: "Imagine waking up every morning for 70 days and not being able to take the trolley without being horrified by this event."
"It has long been settled that appeals to the sympathy or passions of the jury are inappropriate at the guilt phase of a criminal trial." (People v. Fields (1983) 35 Cal.3d 329, 362.) But this principle is not implicated by the prosecutor's first comment, because the prosecutor was referring to Taylor, not Rivera. The remark did not ask the jury to place themselves in Rivera's position. Further, the claim is forfeited, as defendant did not object to the comment or ask the trial court to admonish the jury, which in our view would have cured any error. (People v. Morales (2001) 25 Cal.4th 34, 43-44.)
As for the second comment in rebuttal, the prosecutor was addressing the sustained fear aspect of the criminal threat offense. He first stated a fact: that Rivera "still can't go to that trolley station without remembering getting robbed and thinking about what would happen to his family if he were dead." He continued, "Imagine waking up every morning for 70 days and not being able to take the trolley without being horrified by this event."
Assuming, without deciding, the latter remark was an appeal to sympathy for the victim or improperly asked the jury to place themselves in Rivera's position (see People v. Vance (2010) 188 Cal.App.4th 1182, 1192, 1198-1199 [discussing the "Golden Rule" in depth]; People v. Arias (1996) 13 Cal.4th 92, 160), it was so brief in the entire context of the prosecutor's argument that it does not amount to prejudicial misconduct. (See People v. Martinez (2010) 47 Cal.4th 911, 957; compare, Vance, 188 Cal.App.4th at pp. 1193-1195, 1202-1203, 1206-1207 [prejudicial error occurred when prosecutor repeatedly told the jury for it to do its job, it had to feel what the victim experienced, including his pain and suffering, the night he was murdered].) Further, the jury was instructed to not let bias, sympathy or prejudice influence their decision, and we presume absent some indication otherwise they followed that instruction. (Martinez, at p. 957.) We are unable to perceive any reasonable probability that this fleeting appeal to sympathy affected the jury's verdicts. (Ibid.; People v. Crew (2003) 31 Cal.4th 822, 839; People v. Watson (1956) 46 Cal.2d 818, 836.)
3. Claimed Appeal to Racial Prejudice
Asserting that the prosecutor referred to the statement, "Give me the iPod, nigga," in his closing argument, Taylor contends the prosecutor's comments concerning the racial remark, as well as the prosecutor's reference to the victim as being a "young Hispanic boy," constituted prejudicial misconduct. As we explain, we again disagree.
The prosecutor was summarizing the incident when he stated: "Now, all of us — I mean every time I see this gun I'm like, 'Oh my gosh. That's a real gun.' Puts the gun right into the person's stomach and makes this threat, 'Give me the iPod or I will shoot you.' I believe at one time he made a racial slur, which I omitted from the Power Point, not to misrepresent the evidence, just because I didn't feel it was appropriate to discuss in open court, but there was a racial slur. I submit to you that that sort of increases the level of violence that he was prepared to take, but it definitely expresses his seriousness and how brazen and violent he's prepared to take — escalate this robbery to."
Later, the prosecutor addressed Taylor's identification as the perpetrator, explaining that Rivera had identified him, and Lenoir, Taylor's companion, corroborated that identification. The prosecutor summarized Lenoir's testimony, saying in part: "She [Lenoir] woke up with [Taylor], she went to the trolley, they were running the streets or hanging out, and then they went to the trolley, and lo and behold, Mr. Taylor goes up and confronts a young Hispanic boy. That's our victim. Okay."
The prosecutor in fact did not repeat or use Taylor's racial remark during argument, and it is plainly not misconduct for the prosecutor to summarize the evidence in the case. Further, it is well settled that a prosecutor is "allowed 'a wide range of descriptive comment' and their ' " 'argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom.(People v. Martinez, supra, 47 Cal.4th at p. 957.) The jury was instructed that the prosecutor's arguments were not evidence (part II(c)(3), post), and the suggestion that the racial remark "sort of increas[ed] the level of violence" and expressed the seriousness of Taylor's threat is far less descriptive than other comments found to be proper argument. (See People v. Harrison (2005) 35 Cal.4th 208, 244-246 [no impermissible closing argument in prosecutor's reference to defendant, who shot two people point blank in the head, as someone who enjoyed killing like " 'a little kid opening his toys at Christmas,' " a " 'denizen of the night, the executioner, the terminator of precious life, a head hunter' " and as " 'the complete and total essence of evil' " with "a cold unyielding heart' "]; Martinez, at p. 957 [prosecutor's description of victim as having suffered a " 'savage beating' " and comment about how it reflected the defendant's "violent capabilities" were fair comments on the evidence].) We cannot conclude, and there is no indication, the jury construed the prosecutor's comments on the evidence recited above as an attempt to imply that the crime was racially motivated. C. Claims of Prosecutor's Misstatement of the Law and Facts
1. Elements of Section 422 Offense
Taylor contends the prosecutor committed misconduct by omitting the element of sustained fear from his slide presentation to the jury, and also by misstating the law when he did not discuss the element of sustained fear from the list of required elements of a criminal threat.
Having reviewed the transcript, we agree the prosecutor's summary of the elements of the section 422 threat omitted the element of sustained fear, and thus gave the jury an incomplete statement of the law. It is misconduct for a prosecutor to misstate the applicable law during closing argument. (People v. Gray (2005) 37 Cal.4th 168, 217.)
There is no indication, however, the prosecutor's misstatement prejudiced the jury. The court properly instructed the jurors on the elements of the section 422 offense, including that the "threat actually caused Josue Rivera to be in sustained fear for his own safety. . . ." The court more specifically instructed that "[s]ustained fear means fear for a period of time that is more than momentary, fleeting or transitory." Additionally, the court instructed the jury with CALCRIM No. 200: "You must follow the law as I explain it to you, even if you disagree with it. If you believe that the attorneys' comments on the law conflict with my instructions, you must follow my instructions." Absent any contrary indication, we presume the jury followed these instructions. (People v. Gray, supra, 37 Cal.4th at p. 217.) These correct instructions tend to negate any possibility that the jury misunderstood the law. (See People v. Dykes (2009) 46 Cal.4th 731, 773.)
Moreover, in response to the prosecutor's closing argument, defense counsel reminded the jury that the law — as given to them by the court's instructions — required the element of sustained fear. He explained that the instruction defined that element, read the definition to the jury, and argued that sustained fear was not proven, even though Rivera was traumatized and shaken up. Other than to say that the question of sustained fear was a close one, Taylor points to nothing indicating the jury misunderstood the law, nor does he show that had the prosecutor stated the law correctly, it is reasonably probable the jurors would have reached a different outcome. Under the circumstances, we cannot say there is a reasonable likelihood the jury would have misunderstood the applicable law. There is no basis to reverse the verdict based on the prosecutor's misstatement of the law.
2. Reasonable Doubt
During closing arguments, the defense counsel addressed reasonable doubt and the concept in the law of an "abiding conviction that the charges are true," saying: "What does that mean, an abiding conviction that each and every element and each and every charge is true? It means that once you've made a decision for yourself and as a group, tomorrow when you wake up you feel that you made the right decision. A week from now you wake up and you think about this case and you go about your daily life, and maybe a thought comes into your head about this case, and you know you made the right decision, and the same thing, a year from now, ten years from now, you still have an abiding conviction that you made the right decision . . . ."
In rebuttal, the prosecutor told the jury that reasonable doubt was "a doubt based on reason. It's a doubt based on common sense." He remarked: "In the jury instruction it does not say anything about a day, a week, a month, ten years. That has nothing to do with reasonable doubt. It is right here, right now, when the 12 of you go back and deliberate, do you have a reasonable doubt? Basically it's the absence of reasonable doubt, if you want to think about it in another way."
Taylor contends the prosecutor misstated the law of reasonable doubt in his rebuttal argument; that the prosecutor's references to reason and common sense lowered the burden of proof by "impermissibly likening the reasonable doubt standard to a standard a juror would utilize in making every day decisions" as in People v. Nguyen (1995) 40 Cal.App.4th 28. Anticipating an argument that a similar challenge was rejected in People v. Pierce (2009) 172 Cal.App.4th 567, Taylor points out that in Pierce, unlike this case, the prosecutor read the actual instruction, and the comments in Pierce were brief and did not indicate that the jurors' decision must be permanent, lasting, settled and fixed.
The People argue the arguments are forfeited by counsel's failure to contemporaneously object and request a jury admonition. We agree. (People v. Clark (2011) 52 Cal.4th 856, 960; People v. Bonilla (2007) 41 Cal.4th 313, 336.) A timely and appropriate admonition would have cured any harm caused by the misstatement. (People v. Cole (2004) 33 Cal.4th 1158, 1201.) Though Taylor maintains an objection and request for admonition would have been futile based on the court's overruling other objections, we disagree. The futility exception applies only in narrow and extreme circumstances, where for example, the court repeatedly dismissed and expressed distain for defense cousnel's objections to "a constant barrage" of unethical conduct before the jury. (E.g., People v. Hill (1998) 17 Cal.4th 800, 820-822; People v. Redd, supra, 48 Cal.4th at p. 730, fn. 18.) Here, the prosecutor's comments concerning reasonable doubt occurred during rebuttal, well after the court overruled defense counsel's two other unrelated objections, and this is not a situation where the court overruled in a blanket fashion frequent or repeated objections by Taylor's counsel. Indeed, the trial court admonished the jury in response to one of counsel's objections. The record shows no indication the court would have been disinclined to take appropriate action on a claim of misconduct, had it been timely made.
Because Taylor advances an ineffective assistance claim, we address the merits of his contention to decide whether his trial counsel's representation was objectively deficient, and whether but for counsel's errors, Taylor would have received a more favorable result. (People v. Waidla (2000) 22 Cal.4th 690, 718.) Of course, " 'it is improper for the prosecutor to misstate the law generally . . . and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements.' " (People v. Hill, supra, 17 Cal.4th at pp. 829-830.) The prosecutor's rebuttal comments concerning the language of the instruction and the fact that reasonable doubt "is right here, right now, when the 12 of you go back and deliberate . . . " are comparable to those comments made in People v. Pierce, supra, 172 Cal.App.4th 567, in which the court found no prejudicial error in part given the trial court's correct jury instructions on the principle. (Id. at pp. 572-574.) Here, as in Pierce, there is no claim that the trial court misinstructed the jury, and the Pierce court observed, in line with the prosecutor's comments in this case, that "[t]he possibility that after the conclusion of the case one or more jurors might change their minds after learning something new is irrelevant." (Id. at p. 573.)
In People v. Pierce, supra, 172 Cal.App.4th 567, the prosecutor argued: " 'Listen for anything [in the reasonable doubt instruction] about tomorrow, the future, next week, or even ten minutes after your verdict in this instruction, because you're not going to hear it' " and, " 'It doesn't say tomorrow, next week, next hour, you know, when you're deliberating, when you've made your decision, that's when it counts.' " (Id. at p. 572.)
Nor are the prosecutor's remarks in this case like those in People v. Nguyen, supra, 40 Cal.App.4th at pages 35-36, in which the prosecutor told the jury the concept of reasonable doubt was akin to the standard one used in making "important decisions" used "every day" in life and this court found the argument trivialized the reasonable doubt standard. We are troubled, however, by the prosecutor's remark that reasonable doubt is a "doubt based on common sense." His use of the phrase "common sense" invokes an application of the jurors' life experiences as opposed to specialized knowledge. (See Merriam-Webster's Collegiate Dict. (11th ed. 2006) p. 251, col. 1 [defining common sense as "sound and prudent judgment based on a simple perception of the situation or facts"].)
The relevant portion of the prosecutor's closing argument in People v. Nguyen is as follows: " 'The standard is reasonable doubt. That is the standard in every single criminal case. And the jails and prisons are full, ladies and gentlemen. [¶] It's a very reachable standard that you use every day in your lives when you make important decisions, decisions about whether you want to get married, decisions that take your life at stake when you change lanes as you're driving. If you have reasonable doubt that you're going to get in a car accident, you don't change lanes.' " (People v. Nguyen, supra, 40 Cal.App.4th at p. 35; see also People v. Johnson (2004) 115 Cal.App.4th 1169, 1171 [trial court trivialized reasonable doubt concept by equating it with everyday decisionmaking].)
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Yet Taylor has not demonstrated that this single comment in rebuttal resulted in prejudice; he has not shown there was a reasonable possibility the jury construed or applied the prosecutor's comments in an objectionable manner. Even if the prosecutor misstated the reasonable doubt standard, the trial court's instructions on the reasonable doubt standard, the prosecution's burden of proof based on it, and the specific instruction to ignore any contrary argument, would have cured any error. (See People v. Nguyen, supra, 40 Cal.App.4th at pp. 36-37.) As Taylor cannot establish prejudice, he cannot establish ineffective assistance of counsel. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1126.)
3. Claim of Misstated Facts
A prosecutor commits misconduct by stating or implying the existence of facts not in evidence, or injecting his personal views into his arguments. (In re Brian J. (2007) 150 Cal.App.4th 97, 123.) But courts accord counsel wide latitude at argument to urge whatever conclusions counsel believes can properly be drawn from the evidence. (People v. Bordelon (2008) 162 Cal.App.4th 1311, 1323, quoting People v. Cash (2002) 28 Cal.4th 703, 732.)
Taylor contends the prosecutor made a factually inaccurate statement, and thus committed misconduct during closing arguments, when he said, "[I]t's been 70 days since Mr. Rivera was robbed. He still can't go to that trolley station without remembering getting robbed and thinking about what would happen to his family if he were dead. I would call that sustained fear" Taylor also points to the prosecutor's rebuttal comment: "Imagine waking up every morning for 70 days without being horrified by this event."
Again, Taylor has forfeited any error by failing to make a timely objection and request for admonition on grounds of misconduct. (In re Brian J., supra, 150 Cal.App.4th at p. 123; People v. Bell (1989) 49 Cal.3d 502, 539.) But on the merits, the prosecutor's remark was not akin to that in Bell, 49 Cal.3d 502, in which the prosecutor made a speculative comment that purported to be a scientific fact, and thus were "improper since they were neither based on the evidence nor related to a matter of common knowledge." (Id. at p. 539.) To the contrary, the prosecutor based his argument on evidence, namely, Rivera's response to the prosecutor's question concerning whether the fear still affected him at the time of trial: "Now that it's happened, it's hard to say whether someone walking past me is just walking past or not." It is neither speculative nor wholly unrelated to the evidence to argue that Rivera remained fearful and on guard while waiting at the trolley station as a result of the incident.
The prosecutor's, "Imagine waking up. . . " rebuttal remark, in our view, is not a misstatement of the facts, but a plea to the jury that does not amount to prejudicial misconduct, as we have stated above. To the extent the prosecutor's arguments went beyond a fair comment on the evidence, we conclude there is no reasonable probability that the jury was influenced by the prosecutor's statement to Taylor's detriment in view of the court's instructions that "[n]othing that the attorneys say is evidence" and that the jury must — based only on "the evidence that was presented in the courtroom" — "decide what the facts are in this case." "[A]rguments of counsel 'generally carry less weight with a jury than do instructions from the court. The former are usually billed in advance to the jury as matters of argument, not evidence [citation], and are likely viewed as the statements of advocates; the latter, we have often recognized, are viewed as definitive and binding statements of the law.' " (People v. Mendoza (2007) 42 Cal.4th 686, 703.) Here, the trial court gave correct standards and the jury understood that the prosecutor's statements merely constituted argument. There was no reversible misconduct. (Ibid.; People v. Frye, supra, 18 Cal.4th at p. 976; People v. Medina (1995) 11 Cal.4th 694, 758.)
Having reviewed the entirety of the record, we cannot say the prosecutor's closing argument constituted a pervasive pattern of cumulative misconduct denying Taylor due process or a fair trial. Each alleged instance was brief, unconnected to other misconduct that might form a pattern, and lacked the potential to cause the jury to disregard the trial court's proper jury instructions.
DISPOSITION
The count 2 conviction for making a criminal threat is reversed. The judgment is otherwise affirmed. The matter is remanded with directions that the court resentence Taylor accordingly.
O'ROURKE, J.
WE CONCUR:
McINTYRE, Acting P. J.
AARON, J.