Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. 154974B
Jenkins, J.
Defendant Jason Darn appeals from the entry of judgment following his conviction for first degree murder and unlawful possession of a firearm. Appellant contends that he received ineffective assistance of counsel (IAC) in violation of his rights under the Sixth Amendment of the United States Constitution due to the failure of defense counsel to object to alleged prosecutorial vouching for the credibility of an accomplice testifying against him. We affirm.
PROCEDURAL BACKGROUND
On March 29, 2007, the District Attorney for Alameda County filed an information (No. 509524B) charging appellant and his codefendant, LaFonta Colvin in count one with murder (Penal Code, section 187, subd. (a)) and charging appellant in count two with unlawful possession of a firearm (§ 12021, subd. (e)). These charges stemmed from the shooting death of Hassan Mohamed Elhaj, a cashier's clerk at the Campbell Market in Oakland. With respect to count one, the information alleged that the murder was committed while appellant and Colvin were engaged in the commission of a robbery (§ 190.2, subd. (a)(17)(A)) and that appellant personally and intentionally used and discharged a firearm, which proximately caused the death of a human being (§§ 12022.5, subd. (a)(1), 12022.7, subd. (a) and 12022.53, subds. (b)-(d)).
Further statutory references are to the Penal Code unless otherwise noted.
Colvin was also initially charged with vicarious arming with a firearm (§ 12022, subd. (a)(1)) but was allowed to plead no contest to the lesser offense of voluntary manslaughter in exchange for his testimony against appellant.
A jury trial commenced on April 7, 2008. On April 24, 2008, the jury returned a verdict of guilty on all charges. The jury also found both of the special circumstances allegations related to count one to be true. On June 13, 2008, the trial court sentenced appellant to prison for a term of 25 years to life without the possibility of parole on count one, a consecutive term of 25 years to life on the firearm enhancement, and a concurrent term of three years on count two, with a presentence credit for 1,061 days served. Appellant filed a timely notice of appeal on June 13, 2008.
FACTS
A. Prosecution Case
LaFonta Colvin, an accomplice to the murder and robbery, testified against appellant pursuant to a plea agreement. Colvin testified that he committed his first juvenile offense at the age of thirteen. His juvenile offenses included participation in the robbery of another juvenile and shoplifting. At the age of eighteen, Colvin was convicted of the sale or transportation of marijuana. Under his plea agreement in this case, Colvin pleaded no contest to voluntary manslaughter in exchange for his truthful testimony against appellant.
Colvin testified that he first met appellant about a week before the shooting when Colvin's cousin, Tom Williams, and appellant visited Colvin's home at 22nd and Curtis Streets. During their first meeting, appellant told Colvin that he had recently been discharged from the California Youth Authority (CYA) in Los Angeles and suggested that they "hit a lick," street vernacular for the commission of a robbery. According to Colvin, this was the extent of their initial conversation, which concluded without any agreement between the two regarding the commission of a robbery. Colvin could not remember appellant ever telling him his name, either at this meeting or any other time.
Colvin met appellant four days later at the home of Tyeshia Mays, appellant's cousin and the mother of Tom Williams's child. Colvin and appellant again discussed "hitting a lick" but reached no agreement to do so. Colvin had no further contact with appellant until the day of the Campbell Market murder.
Colvin testified that, at around 10:00 a.m. on the day of the murder, he drove his 1994 Taurus station wagon to Mays' house to pick up Williams for a "joy ride." When he arrived, Colvin honked his horn in order to summon Williams but appellant came out of the house instead. Appellant suggested that he and Colvin "hit a lick," Colvin agreed, and the two then drove around "Lower Bottoms," an area including Campbell Street in West Oakland.
As the pair approached the Campbell Market, located at the corner of Campbell and 16th Streets, appellant said, "This look like a good one." Appellant ordered Colvin to "Stop right here," whereupon Colvin let appellant out of the car on 16th near Willow Street. Appellant was wearing a black sweatshirt and black pants when he exited Colvin's car. Colvin then drove down Willow to 15th Street, where he made a U-turn, parked on Willow near the corner of 16th Street, and waited for appellant to return with his engine running.
Colvin testified that, after a few minutes, he saw appellant running toward him on 16th Street waving his arm and screaming "Come on." After appellant got in the car, he told Colvin, "I shot somebody." Appellant showed Colvin a pistol in his waistband. Colvin noticed the pistol was warm to the touch, which indicated to him that it had recently been fired. Colvin, fearful of being stopped by police, slowly drove away from the scene and returned appellant to Mays’ house.
After dropping appellant off at Mays’ house, Colvin drove back towards Campbell Market in order to check out appellant's story that he had "shot somebody." Before he arrived at the market, Colvin was pulled over by the Oakland police and taken into custody. Colvin testified that he initially lied to police during questioning but eventually told police that his accomplice was Tyeshia Mays’ cousin, who had recently been released from the CYA in Los Angeles. Colvin further testified that he was being truthful in his testimony. In addition to Colvin, the prosecution called a number of other witnesses, including several eyewitnesses who testified to portions of the events that occurred between the time that Colvin dropped appellant off on 16th Street and then saw him running back towards the car on Willow Street a few minutes later.
Vanessa Madrigal worked at the deli located within the Campbell Market and operated by her mother, Bertha Mejia. Madrigal was on duty at the time of the shooting. Madrigal testified that on the morning of May 26, 2005, Hassan Mohamed Elhaj was working the cash register inside the Campbell Market. Madrigal's boyfriend, Daniel Lobos, and her mother, Bertha Mejia, were also working at the Campbell Market at this time. Just prior to the robbery, Madrigal was standing outside of the market with Lobos, who was drawing "fliers" announcing the delicatessen's menu for that day. While outside, she noticed a black man approaching the market on 16th Street. She described this man as "about five-seven," with "caramel" skin, and wearing a black hooded sweatshirt with the hood down. Madrigal, who is nearsighted, was not wearing her glasses at this time. Thinking that the man might be a deli customer, Madrigal went inside to translate for Mejia, who speaks little English.
As Madrigal approached Mejia, her mother told her that the market was being robbed. Madrigal then heard a loud gunshot. Upon hearing the gunshot, Madrigal grabbed her mother by the arm and ran to the backdoor of the market. Madrigal opened the door and saw a masked man in a black hooded sweatshirt running away from the market on 16th Street. Madrigal believed that this masked man was the same man that she had seen approaching the store a few moments earlier.
Bertha Mejia, operated a deli within the Campbell Market and was at work at the time of the shooting. Mejia testified that she rented a kitchen area, located directly opposite from the cash register, in the Campbell Market. Shortly before the robbery, she went outside to where Lobos and Madrigal were working on the fliers. As she stood with the pair, Mejia saw a black man wearing a black hooded sweatshirt approaching the market on 16th from the direction of Willow Street. Mejia did not get a good look at the man's face but she did notice that he wore the hood on his head and walked with both his hands in the waist-level pocket of his sweatshirt.
Mejia and Madrigal went back inside of the market. Moments later, as Mejia stood near a pillar located at the front of the kitchen, she saw the hooded man enter the store. The man pointed a gun at the cashier, quickly pulled a "ski-mask-type mask" down over his face, and yelled, "Give me the fuckin' money, asshole." Mejia testified that the robber was the same man she had noticed outside a few moments earlier. Mejia watched as the robber fired the gun and Hassan Mohamed Elhaj dropped to the ground. The robber then ran out of the front door and Mejia followed behind him.
Mejia testified that she then saw the robber run away from the store on 16th Street towards the intersection of 16th and Willow Streets. Mejia was shown surveillance footage depicting the outside of the market shortly after the shooting and indicated that the man shown running down 16th Street away from the market was the same hooded man that she had seen kill Elhaj on May 26, 2005.
Thieu Nguyen, a roofer, testified that, at the time of the robbery, he was working on the roof of a house located on 16th Street. The prosecutor showed Nguyen several photographs. Nguyen testified that the photographs accurately depicted the house on which he was working and its location on the opposite side of 16th Street from the market, midway between Campbell and Willow Streets. Nyguen could clearly see the market from his position on the roof. While he was working, Nguyen heard a gunshot coming from the market and then saw a woman, who was yelling, run out of the market's backdoor. Just after he saw the woman run out of the back of the market, Nguyen saw a man "covered all in black" come from the direction of the front door and run along the side of the market on 16th heading towards Willow Street.
When Nguyen first saw the man running down 16th Street, the man had both hands in his pocket. As the man ran past Nguyen, he used one of his hands to remove his mask. Nguyen did not get a good look at the man's face but was able to tell that he was black. Nguyen stated that the man kept one of his hands in his pocket as he ran the rest of the way down 16th, turned onto Willow Street, and disappeared from sight.
Marcus Johnson, a homeowner, testified that, on the morning of the robbery and murder, he was on the raised front porch of his home located in the middle of the 1500 block of Willow Street. Due to the fact that an open house was scheduled for a neighboring property that day, Johnson paid close attention to the cars driving by in the hope of seeing any potential buyers. Johnson is nearsighted but was wearing his glasses on May 26, 2005. In particular, Johnson noticed a "clean" gray Taurus station wagon with tinted rear windows. The Taurus caught his attention because the driver was much younger than the usual driver of that type of car and also because it drove down Willow towards 15th Street very slowly. Johnson, who is African American, described the driver of the Taurus as a brown-skinned, African American male, darker in complexion than Johnson, with short or no hair and wearing a white tee-shirt. Johnson watched the Taurus proceed past him to the intersection of Willow and 15th Streets, where it made a U-turn and headed back towards 16th. As he watched the Taurus approach, Johnson heard dogs barking from the corner of Willow and 16th Streets.
The sound of the dogs barking caused Johnson to look toward the corner of Willow and 16th Streets. Johnson then saw a man run from 16th and pivot "Keystone Kops" style onto Willow Street. Johnson, who is five-foot nine-inches tall, described the man as a light-skinned African-American, between five-foot five and five-foot six-inches tall, wearing a black hooded sweatshirt with the hood up on his head. Because the man's hood was so tight on his head, Johnson believed the man had braids or "very low hair."
Johnson testified that the man ran towards him on the sidewalk closest to his home. Johnson had a clear view of the man as the man approached him. The man was shouting "over here," or "hurry up," waving his right arm, and jumping up and down as he ran down the sidewalk. The man kept his left hand tucked into the waistband of his pants during this time. As he watched the man run towards him, Johnson alternated his gaze between the man and the Taurus until they became close enough to each other that both remained in his view. The man entered the car and Johnson heard him yell, "Don't stop, don't stop," as the driver of the Taurus slowly drove away.
Johnson testified that he first saw the man running onto Willow from 16th Street at a distance of between 90 and 100 feet and estimated that the man came as close to him as 40 or 50 feet. Johnson said that he clearly saw the man's face for between 30 and 60 seconds and believed that the two made eye contact. Johnson identified appellant in court as the man he saw running down Willow Street and entering the Taurus on May 26, 2005.
Johnson testified that, as he watched the man run towards the Taurus, he wrote one letter and three numbers of its license plate number on a "post-it." He did this because he thought that he had witnessed a drug-related crime. Shortly after that, Johnson was interviewed by Oakland police officers and gave them the "post-it" on which he had written the partial license plate of the Taurus. Subsequently, at approximately 12:30 p.m., Johnson was driven to 9th Street in West Oakland where he made an on-site identification of Colvin as the driver of the Taurus he had seen earlier that morning. In court, Johnson identified that Taurus in a photograph shown him by the prosecution.
Johnson further testified that he met with Oakland Police Department Sergeants Andreotti and Green on May 31, 2005 and gave them his statement regarding the events he had witnessed on May 26, 2005. On July 17, 2005, he went to the Oakland Police Department homicide section, where the same two sergeants showed him a photographic line-up. Johnson testified that his first impression of the photographs were that they "showed too much," because the pictures depicted the hair and faces of the subjects. The hood worn by the man he had seen only allowed Johnson to see the front part of the man's face. Johnson simulated a hood by rolling up a tissue and bending it over the photographs so that only the front part of each face was visible.
While on the stand, Johnson was handed a tissue and demonstrated this for the jury.
Starting with photograph number one, Johnson used the tissue to cover all but the front of each of the six faces shown in the line-up. After viewing each photograph in this manner, Johnson identified the person in photograph number four as the man he had seen running down Willow Street on the day of the murder. Johnson stated that he was "99.9" percent certain that appellant was the man he had seen running toward him on Willow Street and that only the fact that Johnson had heard the man's voice on May 26, 2005 but had not heard appellant speak throughout the proceedings prevented Johnson from being 100% certain. Without seeing the line-up card prior to his testimony, Johnson identified appellant as the man he saw running down Willow Street on the day of the murder at the preliminary hearing held on February 2, 2007.
Sergeant Richard Andreotti of the Oakland Police Department was the lead investigator in the Campbell Market murder. Andreotti testified that he had measured a raised platform, which was located directly behind the cash register at the Campbell Market and found it to be eight inches high. During his initial investigation at the market, Andreotti received word that Oakland patrol officers had stopped a suspect who was later identified as LaFonta Colvin. Subsequently, police obtained a search warrant for Colvin's place of residence at 864 22nd Street and detained four individuals including Tom Williams, Melvin Spruell, and Chase Yancy.
Andreotti further testified that, when his partner, Sergeant Green, interviewed Colvin, Green learned that Williams was Colvin's cousin; that Williams had a child with Tyeshia Mays; and that the shooter in the Campbell Market homicide was Mays’ cousin. During this interview, Colvin told Green that the shooter was new to the area and had served seven years in the CYA. Colvin described the shooter to Green as a black male, with a light complexion, in his twenties, and with neck-length braided hair and a goatee.
Using the information that Colvin had provided to Green, Andreotti obtained the phone numbers of Mays and Chase Yancy. Andreotti arranged for any calls to those numbers to be monitored from Santa Rita jail, where Colvin and his cousin Tom Williams were separately housed. Several calls made by Williams were recorded on tape. In reviewing these calls, Andreotti learned that Mays’ cousin's name was Jason; that Jason had "just got done doing seven" years; that Jason had recently been cited by BART police; and that Jason was unfamiliar with the Bay Area. This information corroborated what Colvin had told Green and led Andreotti, after reviewing BART Police records, to conclude that appellant was the unnamed person described by Colvin as the shooter in this case. Andreotti further testified that Green compiled a photographic line-up card, which included appellant and five other persons of similar appearance. The person pictured in photograph number four was appellant, Jason Darn.
Ali Elhaj, son of the slain cashier, testified that the man pictured in the autopsy photo of the cashier shot during the robbery of the Campbell Market on May 26, 2005 was his father, Hassan Mohmed Elhaj. Dr. David Levine performed the autopsy of the body identified to him as that of Hassan Mohamed Elhaj on May 27, 2005. Dr. Levine testified that he had determined that the cause of Elhaj's death was a gunshot wound to the head. While Levine did not personally measure Elhaj's body, the coroner's investigator's information listed Elhaj as sixty-five inches tall.
A. Defense Case
Appellant testified on his own behalf. The defense called no other witnesses.
Appellant testified that he is six feet tall. Appellant lived in Pomona in 1999 when a court made a finding as a juvenile of a robbery (§211) and appellant was committed to the CYA until his release on January 11, 2005. At approximately 10:00 a.m. on the day of the Campbell Market murder, appellant arrived at a family gathering in Oakland held in his grandmother's memory, whose funeral in San Francisco he had attended the previous day. Shortly after arriving for the gathering, appellant went to 22nd Street, having received word that his girlfriend's brother, Melvin Spruell, was being arrested there. In addition to Melvin, appellant also saw Tom Williams and Chase Yancy being arrested at 22nd Street at this time. Appellant eventually walked back to the gathering where he stayed until the late evening.
Appellant testified that about a month after the Campbell Market homicide, he was interviewed by police while receiving treatment for a gunshot wound unrelated to the events of May 26, 2005. Because of the pain medication he was receiving in the hospital, appellant had only a vague memory of the interview and could neither remember what he said during the interview nor whether or not he had answered all of the questions asked of him by police. During his hospitalization, appellant was transferred to Highland Hospital in Oakland and was, at some point, arrested for the Campbell Market homicide.
Appellant testified that he didn't know Colvin but that he knew "of" him. Appellant was an acquaintance of Tom Williams and it was through Williams that he came to know of Colvin. Prior to May 26, 2005, appellant had only seen LaFonta Colvin twice, once at appellant's aunt's house and once at a liquor store. Appellant had never conversed at any length with Colvin but the two had exchanged greetings. Appellant had never had any fights or problems with LaFonta Colvin before May 26, 2005.
DISCUSSION
Appellant's sole contention on appeal is that he was provided ineffective assistance of counsel (IAC) in violation of his rights under the Sixth Amendment as the result of defense counsel's failure to object to alleged repeated vouching for the credibility of LaFonta Colvin by the prosecutor at trial. This improper prosecutorial vouching allegedly took the form of the prosecutor's propoundment, in the course of explaining the terms of Colvin's plea agreement to the jury and in questioning Colvin regarding his understanding of those terms, that the trial judge, rather than the jury, was the ultimate arbiter of the credibility of Colvin's testimony.
Appellant relies upon People v. Fauber (1992) 2 Cal.4th 792 (Fauber), in which the Supreme Court addressed a vouching claim brought on the basis of references to the terms of a testifying co-defendant's plea agreement made by the prosecutor to the jury. Accordingly, we first discuss Fauber before addressing whether trial counsel’s failure to object on the basis of Fauber amounted to IAC under the familiar two-part test set forth in Strickland v. Washington (1984) 466 U.S. 668, 688, 693 (Strickland) [to establish IAC defendant must show that (1) counsel’s performance “fell below an objective standard of reasonableness” and (2) “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different”].)
A. Fauber
In Fauber, defendant and an accomplice were each charged with special circumstances murder but the accomplice was allowed to plead guilty to the lesser charge of second degree murder in exchange for his truthful testimony against defendant. (Fauber, supra, 2 Cal.4th at pp. 814-815.) During defendant's trial, the prosecutor read the accomplice's plea agreement including a term providing that any dispute regarding the truthfulness of the accomplice's testimony would be determined by the trial judges before whom he testified. (Id. at p. 820, fn. 4.)
On appeal to the Supreme Court, defendant contended that the disclosure to the jury of this provision of the plea agreement improperly placed the prestige of the court behind the accomplice's testimony, which caused the jury to feel lessened responsibility to conduct an independent evaluation of the truthfulness of the testimony. (Fauber, supra, 2 Cal.4th at p. 822.) Addressing this contention, the Supreme Court first noted that, under its prior case law, the prosecution must make a "full disclosure to the jury of any agreement bearing on the witness's credibility, including the consequences to the witness of failure to testify truthfully." (Id. at p. 823.) However, the court also noted that "[f]ull disclosure is not synonymous with verbatim recitation." (Ibid.) In this regard, the court stated: "Portions of an agreement irrelevant to the credibility determination or potentially misleading to the jury should, on timely and specific request, be excluded. Here, it was crucial that the jury learn what would happen to Brian Buckley [defendant's accomplice] in the event he failed to testify truthfully in defendant's trial. But the precise mechanism whereby his truthfulness would be determined was not a matter for its concern. The provision detailing the judge's determination of Buckley's credibility in the event of any dispute arguably carried some slight potential for jury confusion in that it did not explicitly state what is implicit within it: that the need for such a determination would arise, if at all, in connection with Buckley's sentencing, not in the process of trying defendant's guilt or innocence. For these reasons, had defendant objected to its admission, the trial court would have acted properly in excluding it on a relevancy objection." (Fauber, supra, 2 Cal.4th at p. 823.)
The Supreme Court concluded that the prosecutor's reference to the trial judge's role in the accomplice's plea agreement carried with it the "slight potential for jury confusion" but found "no possibility that defendant was prejudiced by its admission." (Fauber, supra, 2 Cal.4th at p. 823.) The court determined the absence of prejudice to appellant on the basis of two factors. First, the court evaluated the reference to the plea agreement provision within the context of the prosecutor's remarks and concluded that the context of these remarks made clear that any evaluation of the accomplice's truthfulness would arise only if the prosecution sought to revoke the agreement. As such, the court found that "[t]he jury could not reasonably have understood the plea agreement to relieve it of its duty to decide, in the course of reaching its verdict, whether [the accomplice's] testimony was truthful." (Ibid.) Second, the court found that, even if the jury had been under such a misapprehension, it was corrected by the trial court, which instructed the jury that they were the sole judges of witness credibility and that, under its prior case law, "[w]e presume, in the absence of any contrary indication in the record, that the jury understood and followed this instruction." (Ibid.) In sum, the court concluded that the context of the prosecutor's remarks, in light of the jury instructions given, "did not constitute reversible error." (Id. at. p. 824.)
A. Ineffective Assistance of Counsel
Appellant contends that, had defense counsel objected on relevancy grounds to the prosecutor's references to the role of the trial judge in assessing Colvin's credibility for the purposes of the plea agreement, the objections would have been properly sustained pursuant to Fauber, supra, thereby eliminating any "slight potential for jury confusion." (See Fauber, supra, 2 Cal.4th at p. 823.) Appellant contends that his trial counsel’s failure to object to the repeated prosecution references to the trial judge's role in Colvin's plea agreement amounted to IAC.
Although, pursuant to Fauber, supra, we conclude that the prosecutor's references to the trial judge as the arbiter of Colvin's credibility under the plea agreement could be deemed irrelevant to the jury's determination of his credibility, we do not agree with appellant's contention that any potential for jury confusion caused by the prosecutor's remarks in this case was greater than that in Fauber. Indeed, the opposite is true here. In Fauber, the jury was told that the accomplice was vetted twice for credibility – once by the prosecutor's office and once by the trial judge. (Fauber, supra, 2 Cal.4th at p. 822.) By contrast, in appellant's case, there was no reference to the prosecution having determined that Colvin was credible at all. The jury here was only told about the plea agreement provision regarding the trial judge's role in determining Colvin's compliance with the truthfulness requirement of his plea agreement.
When considering a claim of IAC under Strickland's two-pronged standard (see ante), a court should proceed directly to the issue of prejudice if it is easier to dispose of an ineffectiveness claim on that basis. (See People v. Fairbank (1997) 16 Cal.4th 1223, 1241 (Fairbank).) In this case, appellant's claim fails for a lack of prejudice. Here, as in Fauber, any slight potential for jury confusion pertaining to its duty to determine witness credibility was negated by the context of the prosecutor's remarks and by the curative effect of the jury instructions. (See Fauber, supra, 2 Cal.4th at p. 823.) Furthermore, on the record before us we conclude that there is no reasonable possibility that the jury could have found appellant's uncorroborated alibi testimony to have been more credible than the testimony of Colvin, which was thoroughly corroborated by independent eyewitness testimony and other evidence.
We do not address the potential tactical reasons for counsel’s failure to object as we deny appellant's claim of IAC on the basis of lack of prejudice, see post. Nevertheless, we cannot concur with respondent's assertion that counsel had no basis to object to the contested references to the trial judge nor with the characterization of those references as having explicitly, rather than implicitly, informed the jury that the trial judge would assess Colvin's testimony only for the purpose of a future sentencing hearing.
In the course of her opening statement, the prosecutor remarked that if the judge concluded Colvin did not testify truthfully at trial, "all bets are off. And next trial, he'll be right here." However, this reference to the trial judge as the arbiter of the truthfulness of Colvin’s testimony was made within the context of illustrating Colvin’s understanding of his plea agreement and not as part of some larger discussion of the methods by which appellant’s trial would be conducted.
During Colvin's direct examination, the prosecutor elicited testimony from Colvin regarding the trial judge's role in assessing his credibility. However, this testimony was prefaced and followed by questions, which demonstrated that Colvin had not yet been sentenced; that Colvin's reduced sentence was dependent on his truthfulness; and that the agreement could be rescinded if Colvin failed to testify truthfully. Thus, appellant was not prejudiced by the prosecutor's references to the trial judge in opening statement and during Colvin's direct examination, because the context within which the references were made demonstrates that the jury was not misled into believing that the trial court was the arbiter of Colvin's credibility for the purposes of determining appellant's guilt. (See Fauber, supra, 2 Cal.4th at p. 823.)
Regarding the prosecutor's contested reference to the trial judge's role in Colvin's plea agreement made during her closing argument, we note that prosecutors are given wide latitude during argument so long as the argument “amounts to fair comment on the evidence.” (See People v. Bonilla (2007) 41 Cal.4th 313, 336-337 (Bonilla).) Here, Colvin testified about the terms and conditions of his plea agreement, including the condition that he was required to testify truthfully in order to receive the promised reduced sentence and the fact that the trial judge would determine whether or not Colvin had complied with that requirement. Thus, the prosecutor's synopsis of Colvin's testimony in closing argument was based on the record and not on any personal belief of the prosecutor, placing it well within the wide latitude prescribed by Bonilla. (See Bonilla, supra, 41 Cal.4th at pp. 336-337.) Moreover, the prosecutor's reference to the trial judge during argument focused on the application of jury instruction CALCRIM No. 226 to Colvin's testimony. As such, the prosecutor's comment on the conditional nature of Colvin's plea agreement was prefaced by her statement that the jury and not the trial judge would be charged with determining the credibility of Colvin's testimony for the purposes of appellant's trial.
In sum, given the context within which the prosecutor made each of the contested references, the jury could not reasonably have concluded that it had been relieved of its duty to determine the credibility of Colvin's testimony for the purposes of appellant's trial. (See Fauber, supra, 2 Cal.4th at p. 823.) We conclude, therefore, that the submission of these references to the jury, even if irrelevant to the jury's determination of Colvin's credibility, was not prejudicial to appellant.
In addition, the jury instructions cured any possibility that the prosecutor's references to the trial judge's role in assessing Colvin's credibility for the purposes of the plea agreement caused even "slight confusion" regarding the jury's role as the sole judge of Colvin's credibility for the purposes of appellant's trial. (See Fauber, supra, 2 Cal.4th at p. 823.) The jury received multiple instructions related to the evaluation of witness testimony, including CALCRIM Nos. 226, 316, 318, and 335. Each of these instructions placed the duty to determine witness credibility or weigh evidence relevant to such credibility solely upon the jury. In particular, the jury was instructed that "You alone must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience." (CALCRIM No. 226.) We presume that the jurors both understood and followed these instructions. (See People v. Yeoman (2003) 31 Cal.4th 93, 139.) Moreover, one of the last instructions given to appellant's jury was CALCRIM No. 3550 in which the trial judge specifically told the jury "do not take anything I [the trial judge] said or did during the trialas an indication of what I think about the facts, the witnesses, or what your verdict should be." (Italics added.) A fortiori, were we to believe that the jury, after the previous aforementioned instructions, still labored under the misconception that it need only look to the trial judge's actions in order to determine Colvin's truthfulness, this explicit instruction to the contrary clarified to the jury that it bore the sole duty of determining Colvin's credibility. Therefore, any slight potential for jury confusion on the issue of determining witness credibility, arising from the prosecutor's references to the role of the trial judge in Colvin's plea agreement, caused no prejudice to appellant.
Furthermore, appellant suffered no prejudice on this issue as there is no reasonable possibility that, had the objections been made, the jury would have believed appellant's uncorroborated alibi testimony over the corroborated testimony of Colvin. Unlike the accomplice testimony in Fauber, which was the only direct evidence linking the defendant to his crimes (see Fauber, supra, 2 Cal.4th at p. 812), Colvin was merely one of the "pieces of the puzzle" proving appellant's guilt. The prosecution produced five independent eyewitnesses, each of whom testified to some portion of appellant's crimes, including Marcus Johnson who identified appellant through the use of a photographic line-up and again in court. Johnson's testimony corroborated Colvin's testimony in substantial part by identifying Colvin as the driver of the Taurus and thereby placing him at the scene. Likewise, Johnson's identification of appellant as the man he saw running toward him on the day of the murder further corroborated Colvin's testimony that appellant was the other man in the Taurus on that day.
Moreover, the commission of the crime was captured on videotape and was viewed by the jury several times. This videotape, when coupled with police and medical testimony, overcame the discrepancy among the eyewitnesses regarding appellant's height. The prosecutor noted that, should the jury completely disregard Colvin's testimony, there was still sufficient independent corroborating eyewitness testimony and other evidence identifying appellant as the perpetrator of the murder before the jury for it to find appellant guilty. In sum, given the context within which the references to the trial judge were made by the prosecutor, the curative effect of the jury instructions given subsequent to the references, and the fact that Colvin's testimony was corroborated by eyewitness testimony and other evidence, there is no reasonable probability that, had defense counsel objected to the contested references, the outcome of appellant's trial would have been different. (See Fairbank, supra, 16 Cal.4th at p. 1241; see also Fauber, supra, 2 Cal.4th at p. 823.) Therefore, we conclude that appellant suffered no prejudice as a result of counsel's failure to object and his claim of ineffective assistance of counsel must fail. (See ibid.; see also Fauber, supra, 2 Cal.4th at p. 823.)
DISPOSITION
The judgment is affirmed.
We concur: McGuiness, P. J., Pollak, J.