Opinion
C056366.
1-6-2009
THE PEOPLE, Plaintiff and Respondent, v. JOHANIS CALHOUN, Defendant and Appellant.
Not to be Published
Defendant Johanis Calhoun was convicted by a jury of two counts of second degree robbery (Pen. Code, § 211) and one count of burglary (id. § 459) in connection with the armed robbery of a convenience store. (Further undesignated section references are to the Penal Code.) The jury also found defendant personally used a firearm in connection with each of the offenses (§§ 12022.5, subd. (a)(1), 12022.53, subd. (b)). He was sentenced to an aggregate, unstayed term of 15 years in state prison.
Defendant appeals contending: (1) the trial court erred in denying his motion for mistrial based on jury tampering; (2) the jury was improperly instructed on misleading statements and flight by defendant; (3) the prosecution committed misconduct in closing argument regarding the definition of reasonable doubt; (4) defense counsel provided ineffective assistance during his closing argument; and (5) the abstract of judgment misstates the offenses on which he was convicted. We agree the abstract must be corrected but otherwise affirm the judgment.
FACTS AND PROCEEDINGS
At approximately 10:00 p.m. on February 15, 2006, four masked men robbed the Four Oaks Market in the Del Paso Heights area of Sacramento. The first of the men to enter the store walked up to a store employee, T.D., standing behind a counter, pointed a handgun at him, told him to open the cash registers, and demanded that he get down. Two of the other men followed the first to the counter and began emptying money from two cash registers into plastic bags, while the fourth man remained near the front door. The first man asked T.D. for the key to a safe located below the counter, but T.D. claimed he was not the owner and did not have the key.
Meanwhile, another employee, H.S., was in the back of the store stocking shelves. T.D. yelled to H.S. that they were being robbed. The first robber proceeded to the back of the store, pointed the handgun at H.S., and demanded his wallet. H.S. gave the man his wallet, which contained money and credit cards. The man took H.S. to a bathroom and ordered him to lie down on the floor. T.D. was also brought to the bathroom, where his wallet and cell phone were taken and he was ordered to lie down on the floor.
T.D. testified at trial that at least three of the men were armed. H.S. testified they were all armed.
The four men left the store employees in the bathroom, looted the store shelves, and departed. As they walked around the corner of the store, they encountered several police officers who were responding to a call about a robbery in progress. The officers ordered the men to stop. Instead, they dropped what they were carrying and ran in the opposite direction.
The officers gave chase and caught one of the men, who had lost one of his shoes and fallen down. A struggle ensued in which the mans shirt was torn off, but the man was able to escape and continue running away.
The police cordoned off the area and began a search of the neighborhood. A canine unit eventually located the man who had lost his shoe and shirt hiding in an abandoned car. He was later identified as Kevin Ford.
The police located two of the other men hiding in a car that the four had apparently used to drive to the area before the robbery. These two were later identified as Mike Stone and Benoise Wade.
The police located defendant standing on the front porch of a home talking with the resident. This home had a second home in the back where defendant had arrived 20 to 25 minutes earlier. The resident of the second home saw defendant at the gate and came out to investigate. Defendant appeared out-of-breath, nervous and in a hurry. Defendant said he needed to rest and the man told him to go to the front house, where there was a couch he could sit on. Defendant did so and remained at the house until the police arrived.
Kevin Ford testified for the prosecution under a plea deal in which he received four years of a potential 19-year sentence. Ford admitted committing the robbery with defendant, Stone and Wade. He testified he had been trying to sell stolen stereo equipment at a Light Rail station when defendant drove up and offered to buy the equipment. Ford got into defendants car and rode with him to defendants house. Defendant went inside the house and, when he came out, told Ford he needed another man for a job. Ford accepted.
Stone arrived shortly thereafter and defendant and Stone went inside and changed clothes. Wade then arrived in a red Suzuki automobile and they all got in and drove away. They stopped near the store and put t-shirts on their faces as masks. They went inside the store with defendant leading the way, followed in order by Wade, Stone, and Ford.
Defendant pointed a handgun at the store clerk and ordered him to get down. Ford and Stone then followed to the counter and took money from the cash registers. Defendant went after the other store employee who was near the coolers. Stone followed defendant to the back and told Ford to watch the door. Eventually, the other three came out from the back and said it was time to leave. They grabbed some items from the shelves and departed.
According to Ford, they walked outside, saw the police officers and ran. Ford testified he slipped and fell, lost one shoe, was grabbed by one of the police officers, got his shirt ripped off, got free, continued running, and found an abandoned car in which to hide. He was discovered there by the police. Ford claimed only defendant was armed at the time of the robbery.
Defendant testified at trial and denied participation in the robbery. Defendant claimed he had been riding around with Stone and Wade when they pulled over to speak with some girls in Del Paso Heights. Defendant claimed he got out of the car to speak with one of the girls and Wade and Stone later drove away with one of the girls, promising to come back in a short while to pick defendant up. However, after waiting 10 minutes, defendant got impatient and walked away to find a bus stop. After wandering for a while, defendant came upon the house where the police eventually found him. Defendant claimed he stopped there because he was tired and dehydrated due to his diabetes and could not go any further. Defendant testified Wade is his cousin but he had never met Stone before that evening and had never before seen Ford.
In a consolidated information, defendant was charged with two counts of robbery, one each for H.S. and T.D., and one count of burglary, along with firearm use enhancements on each offense. Defendant was also charged with burglary (§ 459), receiving stolen property (§ 496), and aiding and abetting a crime (§ 32) in connection with an unrelated burglary that occurred on December 11, 2006, while defendant was released on bail.
The trial court granted defendants motion to sever the offenses stemming from the Four Oaks Market from those relating to the December 11 burglary. After a trial on the Four Oaks Market offenses, defendant was convicted as charged. The trial court thereafter sentenced defendant to the upper term of five years on one robbery count, plus an enhancement of 10 years for the weapon use. An identical sentence was imposed on the other robbery count, to run concurrently. Finally, the court sentenced defendant to the upper term of three years on the burglary, plus an enhancement of 10 years, but stayed this term pursuant to section 654. The trial court granted the Peoples motion to dismiss the remaining counts.
DISCUSSION
I
Jury Tampering
Defendant contends the trial court erred in denying his motion for mistrial based on an incident that occurred outside the courtroom in which two women attempted to intimidate several jurors during a break in the proceedings. Defendant argues the incident gave rise to a presumption of prejudice that was not rebutted under the circumstances. We find no error.
"We review the denial of a motion for mistrial under the deferential abuse of discretion standard. [Citations.] `A motion for mistrial is directed to the sound discretion of the trial court. . . . "[A] mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions."" (People v. Cox (2003) 30 Cal.4th 916, 953.)
During a break in the closing argument of the defense, outside the presence of the jury, the trial court placed the following on the record:
"During the course of closing arguments this morning, two women came into the courtroom and they took a seat in the audience. I think at the time its fair to say that none of us knew who those women were. In fact, I can state for the record that both counsel were very intent on what was occurring in the courtroom with respect to closing arguments, Mr. Fiorini [the prosecutor] giving his closing argument, Mr. Hedberg [defense counsel] taking copious notes, so that all of the attention was facing forward in the courtroom and not to the rear where the women were sitting.
"During the course of Mr. Fiorinis argument, I was watching the two women. One appeared to be older than the other. The older woman was clearly very animated, and at certain points it appeared to the Court to get upset by certain things Mr. Fiorini was saying. By that, I mean there was obvious body gestures, hand gestures, speaking to the woman sitting next to her. And although I was paying attention to it, I felt that it was not of such a disruptive nature that the Court should take any action at that point in time.
"During the course of Mr. Fiorinis argument, as it proceeded, the older woman was clearly speaking at what I would say not as loud as a, quote, `stage whisper but certainly loud enough for this Court to hear that something was being said, although I couldnt completely understand what was being said; that she was upset and not happy with the course of the closing argument. However, it got to the point where Mr. Hedberg was distracted enough where Mr. Hedberg, you turned around and actually looked at the women and then looked up at the Court.
"And at that point in time, I said there needs to not be noise in this courtroom, at which the older woman indicated that she wasnt going to stay quiet. And so I indicated they needed to leave and, in fact, they got up and left the courtroom.
"I then asked Deputy Gonzales to insure that they had left the building or were no longer present outside the courtroom, and he did so. He did, I understand, walk down the hallway in an effort to locate them but could not."
Defense counsel thereafter pointed out that, although the women were African-American and defendant was the only other African-American in the courtroom, there was no reason to believe defendant had instigated the disruption.
Later that day, the court was informed of an incident that occurred in the womens restroom involving the same two women. The court clerk provided the following description of a conversation she had with one of the alternate jurors: "She said that during the break the five female jurors were in there with the two women who were earlier in the courtroom, in the back of the courtroom, and the two women started talking about white bitches and `mother F-ers and they werent sure if they were directing their comments to the jurors or to the Judge, but they all felt uncomfortable and intimidated." In response to this revelation, the court examined each of the jurors involved.
Juror No. 2 told the court: "The two women that were seated in the courtroom audience—upon break, five of us from the panel were in the restroom. They came in and pushed on—well, the doors—all the stalls are being occupied and two of us are waiting. Then the two ladies came in and pushed on all the doors and started saying things that were just not complimentary. They werent directed at us, like they werent looking at us saying these things, but they were very loud." According to the juror, the women said something about "white bitches" and to go back on the Mayflower and made other derogatory comments. Juror No. 2 was upset and explained this appeared to be an attempt at intimidation. However, she indicated it would not affect her ability to be fair to defendant and she could separate it from what was occurring in the courtroom.
Juror No. 8 informed the court she had later told juror No. 10 that the women were swearing a lot and one said she hated all "white-ass bitches." She also said that after she vacated a stall in the restroom, one of the women went into the stall and said there were white germs all over the seat. However, this juror said she did not feel unnerved or threatened by the conduct, and assured the court it would not affect her ability to be fair to defendant.
Juror No. 9 assured the court that what happened in the restroom would not affect her ability to be fair, although she felt slightly intimidated and believed at the time that the five jurors needed to stick together for each others safety.
Juror No. 11 told the court: "My impression of what the women were saying was that the way they were talking was in such a manner as to intimidate us." According to this juror, one of the women made a comment about the prosecutions argument and said something about needing "to take things up a notch." She said the woman was looking directly at her and was trying to be intimidating. However, the juror told the court she saw no linkage between what occurred in the restroom and what was going on in the court and the incident would not affect her ability to be fair.
Alternate juror No. 1 told the court the women were clearly trying to be intimidating but she did not feel intimidated. She acknowledged there might be a linkage between what occurred in the restroom and what was going on in the court, but assured the court it would not affect her ability to be fair in the case.
Finally, juror No. 10 (who had been informed of the incident by juror No. 8) told the court he thought there was probably a link between what occurred in the womens restroom and what was going on in the case, but he could separate the two and not let it affect his ability to be fair.
Defendant moved for a mistrial based on juror intimidation. The court denied the motion, providing the following rationale:
"I am going to deny the motion. This is the reason the Courts denying the motion, Mr. Hedberg. And I appreciate the position youre in, to request a mistrial be declared. I obviously have engaged in questioning of each and every juror that was potentially affected by the comments that were made in the restroom.
"All of them were very clear and focused in their answers to this Court and made very, very clear that not only would they not be affected at [sic] what occurred, but they would judge the case on its own merits and not allow anything that occurred outside the courtroom to affect their decision in this case.
"I reiterated and re-read to them the Courts prior admonition about not allowing anything that occurred outside the courtroom to affect their decision, and each and every juror assured me that that would not happen. I believe they were honest and forthright in their presentation to the Court. I was able to watch them as they responded.
"I would agree (REDACTED JUROR NUMBER TWO) was upset; however, she explained the nature of her upset, that she was upset, that she was upset about this and I would note that during voir dire, unlike (REDACTED JUROR NUMBER EIGHT,) who is a principal of a large school and is used to dealing with these types of incidents, (REDACTED JUROR NUMBER TWO) is a stay-at-home mother and perhaps somewhat sheltered in her lifes experience.
"So to that extent, I think she was clear this was an upsetting incident, but that being said there was not a linkage and she would not use it in any way, shape or form in her deliberations. And likewise, Im assured that each individual juror has—was affected either personally or in the case of (REDACTED JUROR NUMBER TEN) assured this Court they will not discuss this incident and it will not affect their verdicts. So for all those reasons, I am going to deny the motion."
Defendant contends the contact between the two women and the five jurors "constituted a clear case of jury tampering," giving rise to a rebuttable presumption of prejudice. Defendant further contends this presumption was not rebutted, given the extreme nature of the intimidating acts, the fact that at least one juror "was so emotionally upset she was unable to relate the full extent of the events," and the obvious suggestion that these women were acting on behalf of defendant. Finally, defendant contends the jurors assurances they would not let the incident affect their decision in the case were coerced by the court first reminding them they had been instructed not to allow anything occurring outside the courtroom to influence their decision.
The People counter that this matter involves an incident of spectator misconduct rather than jury tampering. However, the People acknowledge the analysis is the same and that spectator misconduct creates a presumption of prejudice. The People assert the link between the misconduct and the trial was weak, because "[t]he jurors knew nothing about the women other than that they entered a public courtroom during closing arguments, became mildly disruptive, and continued being disruptive in the restroom." According to the People: "The women made no reference to [defendant]. Other than sharing the same race, nothing tied them to [defendant], and nothing about their behavior placed [defendant] in a negative light, or was inherently prejudicial to him." The People further argue only one of the jurors was "a bit shaken," most seemed to take it in stride, none of the jurors said they were intimidated, all the jurors stated they could be fair, and defendant did not ask to have any juror dismissed.
Both parties overstate their cases. Juror No. 2 was not "so emotionally upset she was unable to relate the full extent of the events," as defendant asserts. Juror No. 2 said she was not "comfortable" repeating the words used by the women because of their crassness. She instead related the "essence" of what was said. On the other hand, juror No. 2 was more than just "a bit shaken," as the People suggest. According to the court, she was clearly upset by the incident and characterized it as unnecessary and disturbing. And juror No. 2 was not the only one affected by the disturbance. Juror No. 9 said she felt slightly intimidated by the incident and felt the jurors needed to stick together for their own safety. Juror No. 11 said one of the women looked at her and said they needed to take it up a notch. In response, the juror washed up quickly and departed. However, she remained outside the restroom, because the other jurors were still inside and she believed she should wait to "make sure there wasnt a problem."
Defendants assertion of an "inference, if not actual belief," that these women were acting on his behalf is contradicted by the representation of his counsel after the disruption in the courtroom that, notwithstanding the race of defendant and the women, there was no reason to believe defendant had instigated the matter. On the other hand, in light of the race of defendant and the women, the fact that the women expressed negative views about the prosecutors argument, and the women went out of their way to try and intimidate the jurors in defendants case, the link between the women and this matter can hardly be characterized as "weak," as the People suggest.
As for defendants claim that the jurors assurances they would not let the incident affect their decision in the case were coerced by the court, this is not supported by the record. Defendant asserts that, before asking if the jurors would be able to keep the incident from affecting their decision, the court first reminded them they had been so instructed. This is true only as to juror No. 2. All the other jurors were first asked if the incident would affect their ability to be fair before being reminded of the courts instruction.
Finally, the People are wrong that defendant did not ask to have any juror dismissed. Defendant specifically asked that juror No. 2 be replaced by an alternate.
Nevertheless, the trial court properly concluded any presumption of prejudice was rebutted in this instance. Defendant appears to base his claim of prejudice on whether and to what extent any of the jurors may have been intimidated by the improper conduct of the two women. This line of attack is misguided. To the extent the jurors were intimidated, this could only inure to defendants benefit by coercing those jurors into deciding in his favor to avoid further confrontation with the women. This matter must be distinguished from those cases where jurors may have been intimidated by outbursts from relatives of the victim. (See, e.g., People v. Chatman (2006) 38 Cal.4th 344, 369; People v. Lucero (1988) 44 Cal.3d 1006, 1022.) In the latter cases, the jurors might be intimidated to decide against the defendant to appease the victims relatives.
Defendants real concern here is not that certain jurors were intimidated but that certain jurors were not intimidated but were instead angered by the conduct and took that anger out on him. Here, none of the jurors answers to the courts questions suggested they might have been angered by the incident or might hold what had occurred against defendant. A jurors concern for safety from a defendants relatives or supporters does not necessarily translate into bias against the defendant. (See People v. Panah (2005) 35 Cal.4th 395, 480.) Here, the trial court satisfied itself that the jurors would continue to be fair and impartial. Thus, there was no abuse of discretion in denying defendants motion for mistrial.
II
CALCRIM No. 362
The jury was instructed on consciousness of guilt pursuant to CALCRIM No. 362 as follows: "If the defendant made a false or misleading statement relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt. [¶] If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself."
Defendant contends there was no evidence presented at trial to warrant this instruction. Defendant argues the only discrepancy claimed by the prosecution was his assertion in a pretrial statement to police that he had been at a house with the girls in Del Paso Heights when Wade drove off and left him, while his trial testimony was that he was in the street with the girls. Defendant argues there was in fact no inconsistency or discrepancy. According to defendant, he did not testify he was in the street the entire time with the girls, and, in any event, saying he was at a house on the one hand and he was in the street on the other is not inconsistent, because people often refer to the area surrounding a house as part of the house.
The People counter that there was an inconsistency between defendants pretrial and trial descriptions of where he was when Wade and Stone left to commit the robbery. The People further argue such inconsistency is, in any event, unnecessary, because defendants trial testimony was inconsistent with other prosecution evidence, to wit, the testimony of Kevin Ford.
"It is an elementary principle of law that before a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference." (People v. Hannon (1977) 19 Cal.3d 588, 597.) CALCRIM No. 362 permits an inference that the defendant was aware of his guilt based on evidence of false or misleading statements by him. Thus, the instruction is proper only where there is evidence of such false or misleading statements.
We agree with defendant the inconsequential detail of whether he spoke with the girls on the street or at a house on the street does not make his pretrial statements to police false or misleading. One might reasonably say he is at a house when in fact he is not inside the house but is in the general area of it. So the question becomes whether inconsistency between defendants testimony and other evidence presented at trial required that the instruction be given.
In People v. Rubio (1977) 71 Cal.App.3d 757 (Rubio), disapproved on other grounds in People v. Freeman (1978) 22 Cal.3d 434, 438-439, the Court of Appeal said: "The giving of CALJIC No. 2.03 [the predecessor of CALCRIM No. 362] is justified only if there exists evidence that defendant prefabricated a story to explain his conduct. This instruction is not applicable in the situation where a defendant makes an explanation of behavior to the police which is consistent with his self-serving testimony at trial that conflicts with the prosecutions evidence before the jury. In such a case, the instruction of necessity casts specific doubt on a defendants credibility as a witness and singles out defendants testimony as subject to more particular scrutiny than that attached to prosecution witnesses." (Rubio, at p. 769.) In other words, the instruction should only be given if the defendants trial testimony is inconsistent with his pretrial statements, not when his trial testimony is inconsistent with other evidence presented at trial.
However, there is some doubt about the continued viability of Rubio. In People v. Kimble (1988) 44 Cal.3d 480 (Kimble), the defendant claimed the trial court erred in admitting a tape recording of a statement he gave after his arrest. In that statement, the defendant denied burglary and murder charges, asserting he had obtained certain stereo equipment months earlier and had never been in the house where the victims resided. However, by the time the defendants pretrial statement was offered, evidence had already been presented that the stereo equipment had been taken on the night of the burglary and the defendants fingerprints had been found at the victims residence. (Id. at pp. 495-496.)
In Kimble, the Supreme Court rejected the defendants argument the pretrial statement could only come in if inconsistent with his trial testimony and, since he did not testify at trial, the evidence should have been excluded. The court explained: "[A]lthough the fact that a defendant has—on the witness stand—contradicted a prior statement that he made relating to the crime provides one basis for the jury to determine that the earlier statement was false, it simply does not follow that the jury would necessarily be engaging in `rank speculation if it relied on other evidence to determine that the prior statement was false. In many cases, such other evidence—which may consist of physical evidence like fingerprints, or the testimony of trustworthy witnesses—will be equally, if not more, reliable than defendants own in-court testimony. Of course, the jury need not believe the prosecutions evidence suggesting that the statement was false, and even if it finds that the statement was false, it need not conclude that defendant deliberately lied to hide his complicity in the crime. In brief, the question is one of weight, not admissibility." (Kimble, supra, 44 Cal.3d at p. 498.)
Although the issue in Kimble was whether the defendants pretrial statements were admissible, rather than whether the consciousness of guilt instruction should be given, the fact remains that once the evidence comes in, the instruction is required. (People v. Edwards (1992) 8 Cal.App.4th 1092, 1104.) CALCRIM No. 362 refers to false or misleading statements by the defendant, not just false or misleading testimony. In Edwards, the Court of Appeal relied on Kimble to conclude the consciousness of guilt instruction is proper whenever the defendants pretrial statements admitted in evidence are inconsistent with other trial evidence. (Edwards, at pp. 1103-1104.) According to the Edwards court: "If the jury here believed the testimony of other witnesses, it could reasonably have found defendants pretrial statements were willfully false and deliberately misleading. From this, the jury could have inferred a consciousness of guilt." (Id. at p. 1104; accord People v. Williams (1995) 33 Cal.App.4th 467, 478-479.)
In this matter, Kevin Ford testified he met defendant at a Light Rail station and defendant offered to buy stereo equipment from him. Defendant and Ford went back to defendants home, where defendant asked Ford to do a "job" with him. Ford testified that Stone and Wade arrived shortly thereafter and they all got into Wades car, drove to the area of the Four Oaks Market, and robbed the place. Defendant, on the other hand, testified that he had never met Ford before his arrest and did not participate in the robbery. Defendant claimed he had been riding around with Stone and Wade but was dropped off before the robbery, and he just happened to wander into the area where he was discovered by police.
In addition to the foregoing, J.O. testified that, when defendant arrived outside his house behind the one where defendant was found by police, defendant was out of breath and it appeared he had been running because steam was coming off his body. Defendant said he wanted to rest but appeared to be in a hurry. Defendant testified to the contrary that he had not been running and told the man he was diabetic, was feeling dehydrated and needed some water.
Finally, T.D. testified that the man who pointed a gun at him at the counter was wearing pants with a patch of some kind above the knee. When defendant was discovered by police, he was wearing pants with a patch around the knee. T.D. was taken to a field showup of the suspects and recognized the pants with the patch worn by defendant.
In the event the jury believed the testimony of Ford, J.O. and T.D., it could reasonably conclude defendants testimony, as well as his pretrial statements to police, were willfully false and deliberately misleading, from which the jury could infer a consciousness of guilt. Hence, CALCRIM No. 362 was required.
At any rate, any error in giving the instruction under the circumstances was harmless. An error in giving an instruction that correctly states a principle of law but has no application to the facts of the case is one of state law subject to the traditional test of People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Guiton (1993) 4 Cal.4th 1116, 1129-1130.)
Defendant acknowledged being with Wade and Stone shortly before the robbery. He testified they left him on some unnamed street with some girls and drove off with another girl, promising to come back for him. Shortly thereafter, Wade and Stone pulled off the robbery with Ford and some unnamed fourth man wearing pants with a patch similar to those worn by defendant. There is no explanation of what happened to the girl Wade and Stone had driven off with or how Stone and Wade hooked up with the other two robbers in the short period between when they left defendant and when they committed the robbery.
Defendant claimed he got impatient waiting after only 10 minutes and struck out on his own to find a bus stop. He ended up on a residential street within a block of the robbery scene, out of breath, with steam coming off his body, as if he had been running. Although Ford may not have been the most credible witness, given his obvious self-interest, he nevertheless gave a coherent description of the events of that evening that contrasted markedly from defendants implausible account. Based on the totality of the circumstances and the evidence, it is not reasonably probable the outcome would have been more favorable to defendant had the instruction not been given.
III
CALCRIM No. 372
The jury was instructed on flight pursuant to CALCRIM No. 372 as follows: "If the defendant fled or tried to flee immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself."
Defendant contends the foregoing instruction was improper because, while there was clearly evidence the perpetrators of the robbery fled from the scene, there is no evidence that defendant fled from the scene. In other words, the only way it can be determined that defendant fled from the scene is if it is first determined that defendant was one of the perpetrators. However, to use his flight to prove he was one of the perpetrators would be circular logic.
An instruction in substantially the form of CALCRIM No. 372 must be given whenever the prosecution relies on evidence of flight to show a consciousness of guilt. (§ 1127c.) "[A] flight instruction is correctly given `where there is substantial evidence of flight by the defendant apart from his identification as the perpetrator, from which the jury could reasonably infer a consciousness of guilt." (People v. Pensinger (1991) 52 Cal.3d 1210, 1245.) "If there is evidence identifying the person who fled as the defendant, and if such evidence `is relied upon as tending to show guilt, then it is proper to instruct on flight." (People v. Mason (1991) 52 Cal.3d 909, 943.)
In the present matter, there is evidence that the four men who robbed the Four Oaks Market ran from the scene while being pursued by police. However, this alone would not warrant the flight instruction. But, here, there is more. J.O., the resident of the house behind the one at which defendant was discovered by police, testified that when he encountered defendant outside the gate to his property, there was steam coming off defendants body and he appeared out of breath and in a hurry. This evidence suggests that defendant had very recently been running, despite his testimony to the contrary. This testimony suggested defendant was one of the people who ran from the Four Oaks Market and required the court to give the flight instruction.
IV
Prosecutorial Misconduct
Near the beginning of his opening argument to the jury, the prosecutor elaborated on a few of the courts instructions, including the following explanation of the reasonable doubt instruction:
"The first instruction has to do with reasonable doubt, and I want to touch on this one first because thats the burden the People must satisfy. Its the level that we must prove the evidence beyond a reasonable doubt. And you may have heard this several times, and youve heard it all the time on TV, books, radio, on the news. You know, the prosecution has to prove the case beyond a reasonable doubt.
"But what does that really mean? You havent had jury duty before. You havent sat as a juror, and this is probably going to be the first time that you actually hear the legal definition of what beyond a reasonable doubt means. And I want to start with that because it gives us a framework to work with.
"First of all, it is proof beyond a reasonable doubt. Its proof that leaves you with an abiding conviction that the charge is true. . . . The prosecution does not need to eliminate all possible doubt. Its reasonable doubt. If you have a doubt as to the defendants guilt, that doubt must be based in reason. Doesnt have to prove, the People dont have to prove beyond all possible doubt. Its not imaginary doubt, and its not speculation.
"I submit to you if you find yourself in the back going, you know what, Im not sure. I have a feeling. I dont know. I have a doubt whether he is guilty or not. But submit to you to do is share that doubt with your fellow jurors. Share what that doubt is. Is it possibly—we put on a lot of witnesses in a short period of time. Maybe you missed something that your fellow jurors were able to catch, so I invite you to engage in that process. I also submit to you that if you are not able to articulate what your doubt is, if you say, Oh, I got a doubt. I just dont know what it is. Im not sure. If you cant articulate it in words, then its not a doubt thats based in reason, and it must be a reasonable doubt." (Italics added.)
Defendant contends the italicized portion of the foregoing discussion misstated the appropriate burden of proof and, therefore, amounted to prosecutorial misconduct. He argues the discussion effectively lowered the prosecutions burden of proof, thereby violating state law and depriving him of due process. Defendant further argues the misconduct was prejudicial, "[g]iven the overall weakness of the Peoples case."
The People contend defendant forfeited this claim of error by failing to object or request an admonition. We agree.
"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. Samayoa (1997) 15 Cal.4th 795, 841.) Defendant did neither here.
"A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile. [Citations.] In addition, failure to request the jury be admonished does not forfeit the issue for appeal if `"an admonition would not have cured the harm caused by the misconduct." [Citations.] Finally, the absence of a request for a curative admonition does not forfeit the issue for appeal 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. [Citations.]" (People v. Hill (1998) 17 Cal.4th 800, 820-821.)
None of the foregoing exceptions to the general rule applies here. There is no reason to believe an objection and request for admonition would have been futile or would not have cured any possible harm. To the extent the prosecutor misstated the applicable burden of proof, the trial court could easily have corrected any confusion by reiterating the appropriate standard from the instructions.
Defendant contends his claim is nevertheless cognizable on appeal, because the misconduct "implicated the most fundamental and constitutional right—of a criminal defendant to not be convicted absent proof beyond a reasonable doubt . . . ." Defendant cites as support People v. Johnson (2004) 119 Cal.App.4th 976, at pages 984-985, where the Court of Appeal concluded it had discretion to consider the defendants claim that the court erroneously instructed the jury on reasonable doubt. However, it is one thing to say the court may review an erroneous instruction despite the lack of an objection and quite another to say the court may review a prosecutors erroneous elaboration of an instruction. Section 1259 specifically authorizes a reviewing court to review "any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby." (§ 1259.)
But even though this court may be authorized to consider defendants claim, "`"[w]hether or not it should do so is entrusted to its discretion."" (People v. Johnson, supra, 119 Cal.App.4th at p. 984.) In this instance, the jury was instructed: "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." "The courts instructions are determinative in their statements of law, and we presume the jury treated the courts instructions as statements of law, and the prosecutors comments as words spoken by an advocate in an attempt to persuade." (People v. Sanchez (1995) 12 Cal.4th 1, 70.) Given how easy it would have been for the trial court to clarify any confusion engendered by the prosecutors comments had an objection been made, we decline to consider defendants claim of misconduct.
V
Ineffective Assistance
Defendant contends that, to the extent we deem his prosecutorial misconduct claim forfeited, his counsels failure to object amounted to ineffective assistance.
Under both the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution, a criminal defendant has a right to the assistance of counsel. (See Strickland v. Washington (1984) 466 U.S. 668, 684-685 [80 L.Ed.2d 674, 691-692]; People v. Pope (1979) 23 Cal.3d 412, 422.) This right "entitles the defendant not to some bare assistance but rather to effective assistance." (People v. Ledesma (1987) 43 Cal.3d 171, 215.) "To establish entitlement to relief for ineffective assistance of counsel the burden is on the defendant to show (1) trial counsel failed to act in the manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) it is reasonably probable that a more favorable determination would have resulted in the absence of counsels failings." (People v. Lewis (1990) 50 Cal.3d 262, 288.)
As the basis for defendants ineffective assistance claim, he asserts: "[B]ecause the claim [of prosecutorial misconduct] is meritorious, and the substantial potential for prejudice to [defendants] chance at a fair trial is apparent, deficiency and prejudice are both fairly shown. [Citation.] Accordingly, if objection were in fact required to preserve the significant claim in this case, then there was no legitimate tactical reason for not offering it to the judge. [Citations.]"
As we explained recently in People v. Mitchell (2008) 164 Cal.App.4th 442 at page 467: "`[T]he mere failure to object rarely rises to a level implicating ones constitutional right to effective legal counsel. [Citation.] If, as here, the record fails to show why counsel failed to object, the claim of ineffective assistance must be rejected on appeal unless counsel was asked for an explanation and failed to provide one or there can be no satisfactory explanation. [Citation.] `A reviewing court will not second-guess trial counsels reasonable tactical decisions. [Citation.]"
Defendants ineffective assistance argument does not even begin to explain how counsels failure to object fell below the standard of a reasonably competent attorney or how it resulted in prejudice. Even if defendants prosecutorial misconduct claim was meritorious, defendant makes no attempt to explain how counsel could not possibly have made a tactical decision not to emphasize the matter to the jury by objection. Merely saying that deficiency and prejudice are both "fairly shown" does not make it so. "We will not address a claim that defendant has failed to develop." (People v. Mitchell, supra, 164 Cal.App.4th at p. 467.)
Defendant claims further ineffective assistance with respect to the arguments to the jury of his own counsel. He contends that, in three instances, his counsel suggested his guilt to the jury. In particular, defendant cites the following comments:
(1) "Im going to sing the blues here for a second. In the sense I have an impossible job."
(2) Regarding the lack of DNA evidence on the clothes found at the scene, counsel said, "[i]ts important because if it matched Mr. Calhoun, we wouldnt be here, or if we be here, I would be dancing a lot faster than I am right now."
(3) "Im just doing my job, but the final decision in this case is going to rest in your hands."
Defendant argues the foregoing statements suggested counsel had an impossible job defending him, his defense amounted to dancing around the truth, and counsel does not believe in defendants innocence but is just doing his job.
Defendant reads the foregoing statements out of context. The first comment about counsel having an impossible job was not a suggestion that the job was impossible because of defendants guilt. Rather, counsel followed up by explaining that the impossible job was trying to convince the jurors to put aside their natural fear that a robbery had occurred in their community and to judge the case on the facts and to judge defendant fairly despite the fact he is different from them. Counsel also argued his job was difficult, because he was only permitted to speak to them once, whereas the prosecutor gets two chances to convince them.
As for the dancing comment, this was made in the midst of argument regarding an important theme of the defense—that there was no DNA evidence presented despite the fact there might have been DNA testing of the discarded clothing found in the neighborhood after the robbery. Counsel was attempting to emphasize that, because the presence of DNA evidence would have made the Peoples case much stronger, it may be inferred any DNA evidence obtained did not match defendant. Perhaps defense counsel made a poor choice of words, but the import of his argument was favorable to defendant.
Lastly, the comment that counsel was just doing his job was clearly not intended to denigrate the strength of defendants case. The comment came in the midst of an argument that the police had not done a thorough job in investigating this matter but instead rushed to judgment based on self-serving statements by Ford. According to defense counsel: "[I]t was a rush to judgment. It was theater orchestrated by Ford, and law enforcement has bought into it hook, line and sinker, and Im here to tell you, ladies and gentlemen, that they are just doing their jobs. Im just doing my job, but the final decision in this case is going to rest in your hands." In effect, counsel was saying that when the police locked onto defendant as a suspect based on statements made by Ford, they were just doing their job, and defense counsel is just doing his job in attempting to refute Fords representations and prove the police wrong. There can be no harm to defendant in this.
We find no ineffective assistance in defense counsels argument, considered as a whole.
VI
Cumulative Error
Defendant contends the cumulative impact of the errors in his trial so infected the matter as to deny him a fair trial. However, the only possible error identified by defendant is the giving of CALCRIM No. 362, which we have already concluded was harmless under the circumstances. Thus, there can be no cumulative impact.
VII
Abstract of Judgment
Defendant contends the abstract of judgment incorrectly identifies his conviction on count three to be for the offense of robbery (§ 211), when in fact he was convicted of burglary (§ 459). The People fail to address this issue.
We agree with defendant the abstract of judgment incorrectly identifies the offense on count three. We shall direct that the abstract of judgment be amended accordingly.
DISPOSITION
The judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect that defendant was convicted of burglary on count three and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur:
ROBIE, J.
BUTZ, J.