Opinion
G031503.
10-9-2003
THE PEOPLE, Plaintiff and Respondent, v. OMAR PARRA ALVARADO, Defendant and Appellant.
Michele A. Douglass, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Robert M. Foster and William M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Omar Parra Alvarado was convicted of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)); the jury also found true the allegation that defendant personally inflicted great bodily injury on the victim (Pen. Code, § 12022.7, subd. (a).) Defendant contends his attorney rendered ineffective assistance by failing to object to prosecutorial misconduct during closing arguments. The Attorney General argues that the trial court remedied any potential prejudice arising from defense counsels failure to object to the improper statements when it admonished the jury that arguments by counsel are not evidence. We agree, based on the record supplied, and affirm the conviction.
FACTS
Defendant, his brother Javier, and Ricardo Pachuca had been drinking for a few hours in defendants apartment when Pachuca borrowed defendants cell phone. After he used it, Pachuca left the apartment with the cell phone in his pocket. When defendant discovered that his cell phone was missing, Javier dialed the cell phones number and Pachuca answered it. Javier told him to bring the phone back. After a heated conversation, Pachuca, who was in the neighborhood, headed back to defendant and Javiers apartment.
The three men met on the street and fought. The testimony is contradictory as to who was the aggressor, who participated in the fight, and what happened during the confrontation. Pachuca testified that after he returned the phone, defendant and Javier started punching him. Pachuca further testified defendant grabbed him from the back and Javier proceeded to punch him wherever he could. Pachuca felt a cut on his neck and saw that he was bleeding. At trial, Pachuca claimed he did not see a weapon or other instrument in either assailants hand. But he was sure that it was defendant who had cut him because defendant was standing behind him when he felt the blood gushing from his neck. Pachuca managed to get away from defendants grip, but then tripped and fell. Defendant and his brother caught up with Pachuca and proceeded to kick him all over his body. Later at the hospital, however, Pachuca was treated only for his neck injury; he had no other visible injuries on his body.
Officer Perry testified that she found Pachuca in a blood-soaked shirt and with a gaping four-inch long laceration to his throat area. Pachuca told the officer Javier had cut his throat with a knife and described the knife as "approximately six to eight inches in length." At the same time the officer was attempting to interview Pachuca, paramedics were attending to him, also trying to communicate with him as he was slipping in and out of consciousness.
A bystander, who saw Pachuca before the fight, testified Pachuca had gone to return a cell phone to his cousin and returned 10 minutes later bleeding from a cut to his neck. Another bystander confirmed Pachuca had left and then returned with a cut to his neck. Photographs taken at the hospital showed the laceration to Pachucas neck. When the police arrested defendant at his home, they found him hiding in his backyard.
The defense argued that Pachuca, who was very drunk that night, initiated the fight and possibly cut his own neck when he stumbled and fell on the concrete. Javier testified that after returning the phone, Pachuca became hostile, raised his fists, and came up to Javier to hit him. Defendant got between his brother and Pachuca and "hugged" Pachuca to prevent him from using his arms. Both men were twisting side to side and fell to the ground, but there was no punching or hitting at this point. Seconds later, Pachuca got up and ran; defendant ran after Pachuca, caught up with him, and they started fighting. Javier further testified that he did not participate in the fight, but walked over to the other two men and stopped the fight before it escalated. Javier saw no blood or cut on Pachucas neck at the end of the fight and claimed that neither he nor defendant brought any kind of weapon with them.
DISCUSSION
Defendant contends his attorneys performance was prejudicially deficient because he failed to object to improper statements made by the prosecutor during closing arguments. During cross-examination, the prosecutor established that Javier, who worked together with Pachucas brother, Hector, called Hector twice on the night of the fight. The prosecutor asked Javier whether he told Hector, "We already fucked [Pachuca] up; he is not worth shit." Javier said, "No," testifying he merely told Hector that defendant and Pachuca ". . . fought because of the telephone." But during closing argument, the prosecutor told the jury Javier made the first quoted statement to Hector and repeated the assertion in rebuttal. Defense counsel did not object. Even though the prosecutor misstated the facts, we are not persuaded defendant was prejudiced by the lack of objection.
To demonstrate ineffective assistance of counsel, defendant must show counsels representation fell below an objective standard of reasonableness and that defendant was prejudiced as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 [104 S.Ct. 2052, 80 L.Ed.2d 674]; People v. Ledesma (1987) 43 Cal.3d 171, 216.) Even where an attorneys performance is found to be substandard, prejudice arises only if there is a reasonable probability of a more favorable result, i.e., a probability sufficient to undermine confidence in the outcome. (People v. Ledesma, supra, 43 Cal.3d at pp. 217-218.) Consequently, to prevail, defendant must show that it is reasonably probable he would have obtained a more favorable result at trial absent the alleged errors.
Defendant argues he was prejudiced by the prosecutors misstatement of the facts and cites People v. Hill (1998) 17 Cal.4th 800 for the proposition that the statements were improper. In People v. Hill, the court held that a prosecutors reference to facts not in evidence is "`clearly . . . misconduct . . . ." (Id. at p. 828). The court reasoned that such statements can lead to circumvention of the law because of the jurys high regard for the prosecutor. (Ibid .) While the Attorney General concedes the prosecutors arguments were improper, he contends the issue was waived, and, in any event, the courts admonishment to the jury cured any potential prejudice.
"`To preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request admonition; otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct. [Citations.]" (People v. Gionis (1995) 9 Cal.4th 1198, 1215.) To demonstrate incurable harm, defendant must show there is a reasonable possibility the prosecutors misconduct influenced the verdict. (People v. Cunningham (2001)
The record shows the prosecutors comments did not influence the jury in an objectionable manner because, before reaching a verdict, the jury submitted a written request specifically asking if there was evidentiary support for the prosecutors statements regarding Javiers call to Pachucas brother, and whether the prosecutors statements were in fact evidence. The court responded by telling the jury that its decision had to be based on evidence presented during the trial and the arguments by counsel were not evidence. Javiers testimony regarding the phone calls to Hector was also reread at the jurys request. These facts support a conclusion the jury based its verdict on the evidence presented during trial and was not swayed by the prosecutors remarks.
Defendants contention that the jurys "struggle" over Javiers verdict established a probability defendant could have obtained a more favorable result at trial is unpersuasive. While the prosecutors statement that Javier told Pachucas brother, "We already fucked him up. He isnt worth shit," could have prejudiced Javier as an admission that he participated in the fight, the same cannot be said of defendant. It was essentially undisputed there was a physical altercation between defendant and Pachuca and that Pachuca suffered a cut to his neck. It was less clear whether Javier participated in the fight. Thus, based on the overwhelming evidence of defendants guilt, coupled with the courts admonishment to the jury that counsels statements are not evidence and the jurys request to have Javiers testimony reread, we conclude there is no reasonable possibility the prosecutors improper argument influenced the guilty verdict. In the absence of such prejudice, defendants ineffective assistance of counsel claim fails.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BEDSWORTH, J. and ARONSON, J.