Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 03NF2838, James Patrick Marion, Judge. Affirmed.
William J. Kopeny & Associates and William J. Kopeny for Defendant and Appellant Joseph Alan Fischer.
Paul R. Ward, under appointment by the Court of Appeal, for Defendant and Appellant Jason Aaron Schultz.
Edmund G. Brown, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
ARONSON, J.
A jury convicted Joseph Alan Fischer and Jason Aaron Schultz of two counts of robbery, assault with a deadly weapon, and assault with a firearm. The jury found Schultz personally used a knife in robbing Daniel Cook and Fischer personally used a firearm in robbing Benton Turner. The jury also found Schultz guilty of evading a peace officer. Defendants contend the prosecutor committed misconduct in his rebuttal by vouching for a witness, engendering sympathy for the crime victims, commenting on defendants’ failure to testify (Griffin error), referring to facts not in evidence, attempting to shift the burden of proof to the defense, disparaging defense counsel, and misstating the reasonable doubt standard. As we explain below, we conclude the prosecutor misstated the reasonable doubt standard, but because this error was an isolated one and the court properly instructed the jury on the applicable standard, there is no reasonable probability the error affected the verdict. Fischer also contends his 12-year prison sentence constitutes cruel or unusual punishment under the state Constitution. For the reasons that follow, we disagree and therefore affirm the judgment.
See Griffin v. California (1965) 380 U.S. 609 (Griffin).
I
Factual and Procedural Background
Around 4:30 p.m. on September 3, 2003, Daniel Cook and Benton Turner drove in Cook’s Suburban to the Anaheim home of Derek Feuerhelm. After parking his car, Cook exited the Suburban and began to walk across the street. Turner also exited the Suburban. Suddenly, a black Mercedes approached at a high rate of speed, pulled alongside the Suburban, and stopped by the driver’s side passenger door. A man, later identified as Fischer, exited from the passenger side of the Mercedes with a semiautomatic gun, and yelled “Freeze you mother f’ers, give me your cash.” Fischer approached Turner, who was talking on his cell phone, pointed the gun at Turner’s head and told him to “get the F down.” Turner complied. Fischer ordered Turner to give him his cell phone. When Turner said no, Fischer pulled the slide back on the gun, and stuck it in Turner’s face. Afraid for his life, Turner let Fischer take his phone.
Meanwhile, Cook began to back up towards Feuerhelm’s home. The driver of the Mercedes, later identified as Schultz, ran towards Cook and yelled at him to freeze. As he did so, Schultz had one hand behind his back. Cook fled towards Feuerhelm’s garage. Schultz chased him, pushed him against the garage door, knocked him down, pulled out a knife, and threatened to kill Cook if he did not stop. Feuerhelm, who had opened his gate to greet his friends, immediately shut the gate and called 9-1-1. Schultz then punched Cook in the chest and shoulder, demanded Cook’s cash, rifled through Cook’s pockets and vest looking for money, and threatened to kill Cook if he did not turn over his money. Cook struggled to avoid the blows, fearing Schultz would stab him. Schultz eventually took Cook’s wallet and key ring from Cook’s pants pocket. Schultz then tried to unlock the Suburban but set the alarm instead. When he was unable to deactivate the alarm, Schultz and Fischer jumped into the Mercedes, backed up around a corner and drove away. Both Schultz and Fischer had worn baseball caps over bandanas which covered their hair.
Around 4:30 p.m., Anaheim Police Officer Brian Paqua heard a radio broadcast concerning the robbery. As he neared the scene, a Mercedes matching the description given in the broadcast passed in front of him. Paqua drove up alongside the Mercedes to confirm the occupants matched the description from the broadcast and then initiated a traffic stop by turning on the light bar and emergency lights of his patrol car. When the car pulled over to the curb, Paqua told the driver to turn off the ignition and to drop the car keys out of the car. Although the driver turned off the ignition, he did not drop the car keys. When Paqua repeated his demand, the driver started the car, peeled out, and drove down the street. With Paqua in pursuit, the Mercedes drove through a stop sign and a red light. As the Mercedes tried to maneuver through heavy traffic at an intersection, it crashed into a curb and both occupants jumped out. The driver, whom Paqua later identified as Schultz, looked back at Paqua as he ran away. Paqua chased the passenger through the parking lot of a business complex and grabbed his leg as he tried to jump over a fence. The passenger, whom Paqua later identified as Fischer, looked back at Paqua before escaping his grasp and getting away.
Paqua returned to the Mercedes and inside found two driver’s licenses in the name of Jason Schultz. Paqua recognized the person in the driver’s license as the driver of the Mercedes. With the assistance of forensic specialist Lynette Ruiz, Paqua found a set of car keys, two cell phones, two bandanas, two baseball caps, a brown glove, a knife, a black BB or pellet gun, a black or gray .32 caliber semiautomatic handgun with a brown handle, and a magazine loaded with four bullets.
Around 5:00 or 5:30 p.m., Anaheim Police Detective Robert Wardle arrived at Feuerhelm’s house to interview Turner, Cook, and Feuerhelm. Cook identified the car keys recovered from the Mercedes as the keys Schultz had taken from him. Turner identified one of the cell phones recovered from the Mercedes as the cell phone Fischer had taken from him. Wardle also showed Turner and Cook the other items recovered from the Mercedes. Cook identified the knife Schultz used in the robbery, while Turner identified the smaller, semiautomatic handgun Fischer wielded at him. Turner identified a black baseball cap and a white bandana with black markings as the baseball cap and bandana worn by the gunman during the robbery, while Cook identified a black bandana with a white design and a red baseball cap with the black design as the baseball cap and bandana worn by the robber with the knife.
Later that day, Wardle searched the Mercedes at a tow yard. Inside the trunk, Wardle found photographs of Fischer with Schultz, and Fischer with Schultz and his girlfriend, Caylin Lampasona. Wardle also found inside the trunk the Mercedes’s front license plate. Department of Motor Vehicles records showed the Mercedes was registered to Schultz and his mother.
About an hour or two after the robbery, Cook and Feuerhelm reviewed a photographic lineup and identified Schultz as the driver of the Mercedes who had robbed Cook.
On the night of the robbery, Schultz called Lampasona and told her “something” had happened, but would not provide more information. The next day, Wardle called Lampasona, whose telephone number he had found in the directory of the second cell phone recovered from the Mercedes. Lampasona revealed Schultz had called her the night before and told her to expect a visit from the police because he had gotten into trouble. He would not tell her his location and did not say his car had been stolen.
Wardle also questioned Lampasona about the photographs of Schultz and Fischer found inside the Mercedes’s trunk. Wardle then composed another photographic lineup containing Fischer’s photograph. On September 5, 2003, Cook and Turner looked at that lineup and identified Fischer as the passenger from the Mercedes who had robbed Turner.
On September 9, 2003, about 8:45 p.m., while patrolling the 57 Freeway, California Highway Patrol Motorcycle Officer Eric Sumner saw a blue motorcycle without license plates. Sumner activated his rear emergency lights and motioned the driver to pull over. Sumner made eye contact with the driver who moved over to the right shoulder. When Sumner ordered the driver to exit the freeway, the motorcyclist rapidly accelerated, reaching speeds of 120 to 130 miles per hour. Sumner activated his siren and front lights and pursued the motorcycle. When the motorcycle entered the transition road to the 60 Freeway, the driver turned off his lights, slowed down rapidly, jumped off the motorcycle, and ran down a steep dirt embankment. The driver ignored Sumner’s order to stop.
After he lost sight of the driver, Sumner and other responding officers unsuccessfully searched the area. About an hour and a half later, officers returned to the scene based on information received from a citizen. While in the area, officers stopped a car for a mechanical violation. Sumner responded to the location of the traffic stop and recognized the driver of the car as the driver of the motorcycle whom he had pursued.
II
Discussion
A. Prosecutorial Misconduct
Defendants contend the prosecutor committed misconduct in his rebuttal by vouching for a witness, engendering sympathy for the crime victims, commenting on defendants’ failure to testify (Griffin error), referring to facts not in evidence, attempting to shift the burden of proof to the defense, disparaging defense counsel, and misstating the reasonable doubt standard. As we explain below, we conclude the prosecutor misstated the reasonable doubt standard, but because this error was an isolated one and the court correctly instructed the jury on the law it was to apply, a more favorable result is not reasonably probable had defense counsel objected and secured a restatement of the standard by the trial court.
The law governing our analysis of defendants’ misconduct claims is well established. “‘A prosecutor’s . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so “egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.” [Citations.] . . .’” (People v. Gionis (1995) 9 Cal.4th 1196, 1214-1215 (Gionis).) Such pervasive misconduct requires reversal unless it is harmless beyond a reasonable doubt. (People v. Hill (1998) 17 Cal.4th 800, 819, 844 (Hill).) As a matter of state law, prosecutorial misconduct involves “‘“the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.”’” (People v. Espinoza (1992) 3 Cal.4th 806, 820.) State law misconduct necessitates reversal where it is reasonably probable the prosecutor’s intemperate behavior affected the verdict. (Id. at p. 821.)
The principles concerning ineffectiveness of counsel in failing to object to the prosecutor’s remarks are similarly well settled. To obtain relief under either the California Constitution or the Sixth Amendment to the United States Constitution, a defendant must show that “(1) counsel’s representation was deficient in falling below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient representation subjected the petitioner to prejudice, i.e., there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the petitioner. [Citations.]” (In re Wilson (1992) 3 Cal.4th 945, 950 (Wilson), citing Strickland v. Washington (1984) 466 U.S. 668, 687-688.) The prejudice prong of the test “‘is not solely one of outcome determination. Instead, the question is “whether counsel’s deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.”’” (In re Hardy (2007) 41 Cal.4th 977, 1018, citations omitted.) With these principles in mind, we turn to defendants’ specific claims of misconduct.
1. Vouching for a Witness
Defendants claim the prosecutor committed misconduct by vouching for Paqua’s credibility. (See People v. Frye (1998) 18 Cal.4th 894, 971 (Frye).) Because defendants failed to object and provide the trial court an opportunity to intervene, as it did on numerous other occasions, the claim is waived. (People v. Brown (2003) 31 Cal.4th 518, 554.) Moreover, the claim fails on the merits because the record discloses no vouching. After defense counsel argued Paqua’s opportunity to view the suspects was too brief to identify anyone and that discovering Schultz’s driver’s license tainted Paqua’s identification, the prosecutor responded by emphasizing the officer’s training and skills, but did not personally assure the officer’s credibility or attempt to bolster it with facts outside the record. Instead, he asked: “What do officers do for a living? They make observations. . . . They apprehend criminals. That’s what they do. . . . He’s not going to be wrong in observations. He’s not going to [be] unduly influenced by a C.D.L. of somebody who just fled from him.” We discern no misconduct in these remarks, which were based on the evidence, i.e., Paqua’s profession and training, and left the jury free to weigh the evidence supporting the identification with defense counsel’s attempt to undermine Paqua’s identification.
2. Attempt to Engender Sympathy for the Victims
Defendants argue the prosecutor improperly attempted to engender sympathy for Cook and Turner. (See People v. Sanders (1995) 11 Cal.4th 475, 527 [“‘an appeal for sympathy for the victim is out of place during an objective determination of guilt’”].) Defendants did not preserve this argument with an objection but, even assuming they had, it fails. Answering defense counsels’ repeated reference to defendants as “boys” and “kids” whose “lives” it would be shameful to waste with a “mistake[n]” conviction, the prosecutor reminded the jury punishment should not factor into their determination. He added, “So save your sympathy for the people who truly deserve it, who are in dire strai[]ts . . . through no fault of their own.” The prosecutor made no reference to Cook or Turner. There was no evidence either was “in dire strai[]ts” and, in the context of the remarks, we presume the jury interpreted them properly as an exhortation to avoid sympathy and instead assess “fault.” Defendants’ misconduct claim therefore misses its mark.
3. Griffin Error
Defendants concede their claim the prosecutor improperly commented on the defendants’ decision not to testify is foreclosed by binding California Supreme Court precedent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Here, the prosecutor argued rhetorically to the jury, “If [defendants] weren’t at the scene, what does that mean? They were somewhere else. Where are the alibi witnesses?” The prosecutor prefaced these rhetorical questions by stating, “Let me be clear, the burden is on the People of the State of California to produce witnesses to convince you beyond a reasonable doubt [of defendants’ guilt]. That’s our burden. However, I am allowed to comment on the failure to call logical witnesses.” Defense counsel objected and, outside the jury’s presence, sought a mistrial on grounds the prosecutor’s comments violated defendants’ Fifth Amendment right to remain silent. The trial court overruled the mistrial motion, concluding the prosecutor’s argument tread close to improper argument but had not crossed the line. The court ordered the prosecutor to refrain from arguing the alibi issue further.
In People v. Brown (2003) 31 Cal.4th 518, our Supreme Court rejected a claim of indirect Griffin error, explaining: “By directing the jury’s attention to the fact defendant never presented evidence that he was somewhere else when the crime was committed, the prosecutor did no more than emphasize defendant’s failure to present material evidence. He did not capitalize on the fact that defendant failed to testify. Accordingly, there was no Griffin error.” (Brown, at p. 554; see also People v. Bradford (1997) 15 Cal.4th 1229, 1340 (Bradford) [no constitutional violation where prosecutor confines remarks to absence of alibi evidence, “which might have been presented in the form of physical evidence or testimony other than that of defendant”]; People v. Morris (1988) 46 Cal.3d 1, 36, disapproved on another ground in In re Sassounian (1995) 9 Cal.4th 535, 543-545, fns. 5 & 6; accord, People v. Ratliff (1986) 41 Cal.3d 675, 691.) Recognizing the controlling nature of this authority, Fischer merely preserves his claim for a petition for review or subsequent federal proceedings, and we therefore do not address it further. We note simply that the trial court’s prudence in ordering the prosecutor to shelve the alibi issue forestalled any direct comment on the defendants’ silence, which would have constituted Griffin error. Such proactive steps are, of course, well within the trial court’s sound discretion (People v. Holloway (2004) 33 Cal.4th 96, 137 (Holloway)), and here may have prevented a mistrial.
4. References to Facts Not in Evidence
Defendants contend the prosecutor committed misconduct in explaining the absence of DNA evidence in this case by claiming defense attorneys raise the issue “in every case” and flatly proclaimed DNA evidence “is a rarity.” Defendants contend these assertions strayed outside the facts in evidence. True, no statistical or other evidence established the nature of defense tactics in other cases, but the context of the prosecutor’s comments reveals his purpose was not to slip in such evidence via argument. (See Frye, supra, 18 Cal.4th at p. 976 [misconduct to introduce new facts in argument].)
Instead, the prosecutor sought to focus the jury’s attention on determining whether the evidence introduced at trial established guilt, rather than on the defense claim that better, more thorough investigation might have disclosed compelling DNA or fingerprint evidence that would conclusively confirm or negate the eyewitness identifications. Based on the trial court’s instruction neither side was required to produce all possible supporting evidence (CALJIC No. 2.11), the prosecutor was entitled to argue the defense presented a red herring by emphasizing the so-called “missing” DNA evidence. We conclude the prosecutor’s description of this approach as a tactic deployed “in every case” was a permissible rhetorical flourish. (People v. Bemore (2000) 22 Cal.4th 809, 846 [noting prosecutor “has wide latitude in describing the deficiencies in opposing counsel’s tactics”]; see People v. Breaux (1991) 1 Cal.4th 281, 305-306 [not misconduct to argue attorneys are taught to try to create confusion].) As for the prosecutor’s comment that DNA evidence is “a rarity,” jurors of common experience in modern society would understand the assault here would generally not leave the requisite biological traces for DNA testing. (People v. Bradford (1997) 14 Cal.4th 1005, 1063-1064 [prosecutor may refer to matters of common knowledge].) Consequently, the prosecutor did not commit misconduct in commenting on defense counsel’s tactics.
The prosecutor’s other remarks concerning DNA evidence constituted error, however. In suggesting the prosecution only used or could only use DNA evidence when it did not have eyewitnesses or in circumstances where, for instance, the perpetrator left a mask behind, the prosecutor not only referred to prosecution tactics in cases outside the record, but misstated the law. The trial court, however, intervened immediately. The court sustained defense counsel’s objection and correctly instructed the jury and the prosecutor concerning DNA evidence: “It can be used all the time . . . . It doesn’t really matter if you have eye[]witnesses or not, Mr. Pino.” Given the court’s intervention, there is no “reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.” (People v. Samayoa (1997) 15 Cal.4th 795, 841 (Samayoa).) In other words, the jury remained free to agree with the defense that the prosecution’s identity evidence suffered by comparison with cases where the prosecutor presented DNA evidence and its absence therefore raised a reasonable doubt. By correcting the prosecutor’s erroneous remarks concerning when DNA evidence may be used, the trial court ameliorated any potential harm to defendants. We therefore conclude the prosecutor’s corrected remarks furnish no basis for reversal.
Apparently perceiving a sign of disrespect from the prosecutor, the trial court added, in front of the jury: “You can look behind you, it’s not going to help you. Listen to me. Yes.” The court rejected the prosecutor’s request for a sidebar, stating, “Just continue, Mr. Pino.” The record is not clear so we pass no judgment on the matter but observe that a lawyer who deliberately turns his or her back to the court while the court is addressing that lawyer commits contempt.
Defendants next contend the prosecutor improperly stated facts not in evidence when he argued the defense could have tested a drinking cup or other evidence found in the Mercedes for DNA, or subpoenaed cell phone records to undercut the prosecution’s eyewitness evidence of identity. The danger of the prosecutor’s argument concerning what defendants might have done was not that it placed facts outside the evidence before the jury. It did not. To the contrary, an officer explained the evidence collected in the case remained stored for two years pending trial, arguably giving the defense ample opportunity to conduct whatever tests it wished, or subpoena any records. As the trial court recognized, the real danger of the prosecution’s argument was that, taken further, it could suggest to the jury that the defense bore some burden to present evidence to establish innocence.
The trial court closely monitored the prosecutor on this score and prevented any improper argument. When the prosecutor sallied forward with “If they wanted to have these tests — ” and “If they believed — [¶] . . . [¶] DNA —” and similar predicate remarks concerning DNA testing and subpoena powers, the trial court sustained defense counsel’s objections and ordered the prosecutor to proceed to his next point, “[n]ot that one.” (See People v. Pensinger (1991) 52 Cal.3d 1210, 1251 (Pensinger) [instructing prosecutor to move to another subject serves as “telling indication to the jury” to disregard preceding argument].) The prosecutor finally concluded, “[T]he bottom line is science neither exonerates [n]or implicates these defendants,” a fair comment on the state of the evidence, which included no scientific evidence of any kind, inculpating or exculpating. (See People v. Mincey (1992) 2 Cal.4th 408, 446 [prosecutor is permitted to “comment on the state of the evidence, including the failure of the defense to introduce material evidence or to call witnesses”]; accord, People v. Lewis (2001) 25 Cal.4th 610, 670.)
Indeed, the trial court may have kept the prosecutor on too short a leash for, as our Supreme Court has observed, “A distinction clearly exists between the permissible comment that a defendant has not produced any [exculpatory] evidence, and on the other hand an improper statement that a defendant has a duty or burden to produce evidence, or a duty or burden to prove his or her innocence.” (Bradford, supra,15 Cal.4th at p. 1340; see also People v. Miranda (1987) 44 Cal.3d 57, 109 [statement that defendant had power to subpoena witnesses “was clearly proper”], overruled on another ground in People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4.)
But the trial court has wide discretion to control the proceedings and, in any event, defendants have no cause to complain of the muzzle placed on the prosecutor. Here, none of the prosecutor’s remarks suggested defendants had a burden of proof they failed to carry, and the trial court’s directive to the prosecutor to “move on” disabused the jury of any notion the defense had a burden of production. (Pensinger, supra, 52 Cal.3d at p. 1251.) The prosecutor himself expressly acknowledged: “Let me be clear, the burden is on the People . . . to produce witnesses to convince you beyond a reasonable doubt. That’s our burden.” The trial court instructed the jury that the prosecution bore the burden of proving guilt, and that the defense had no duty or burden to produce any evidence. (CALJIC Nos. 2.60, 2.61, 2.90 & 2.91.) In sum, we discern no error in the prosecutor’s comments or the trial court’s preemptive response to prevent any suggestion defendants had the burden of proof to produce exculpatory evidence. Even assuming some conceivable error occurred, in light of the court’s prompt admonitions and correct instructions, we discern no likelihood the jury interpreted or applied the prosecutor’s remarks in an objectionable fashion. (Samayoa, supra, 15 Cal.4th at p. 841.)
Defendants also claim misconduct in the prosecutor’s suggestion they could have sought a live lineup if they believed the photographic lineup or in-court identifications were too suggestive to be credible. Defendants claim “[t]his was totally improper . . . because there was no evidence whether the defense asked for a live line up,” and the prosecutor thus “smuggled” in the implication they had not. The implication was a fair one, however, because the absence of lineup results suggested neither side requested one. The prosecutor correctly stated the law. (See People v. Green (1979) 95 Cal.App.3d 991, 1004 [defendant concerned about suggestiveness of in-court identification has “readily available remedy” of demanding live lineup first].) People v. Lewis (2004) 117 Cal.App.4th 246 (Lewis) considered and rejected the argument defendants now make. There, “alleged deficiencies in the police lineups” constituted the “centerpiece of the defense case,” and the reviewing court concluded “the prosecution could properly respond to those criticisms by showing that appellant did not pursue a potential remedy: he could have requested a live lineup that might have eliminated his professed concerns.” (Id. at p. 257.) We see no reason to part company with Lewis.
Disagreeing, defendants argue the prosecutor’s reference to the absence of a request for a live lineup violated fundamental fairness by impugning defense counsel in two ways. First, it suggested the defense attorneys may have avoided a live lineup because they believed their clients were guilty and, by implication, the jury should too. Second, even without implying a live lineup would establish defendants’ guilt, the prosecutor’s argument suggested the defense attorneys were at least disingenuous when they attacked identity at trial but failed to do so earlier when they had the opportunity to request a lineup. Defendants imply they paid — with guilty verdicts — the price the jury imposed for purported defense gamesmanship in not requesting a lineup. We are not persuaded by these arguments.
We recognize the risk a juror might possibly infer a defense attorney did not ask for a live lineup because the lawyer believed witnesses would positively identify his client. But the trial court eliminated with a forceful instruction any danger the jury would infer defense counsel thought their clients were guilty. Immediately following the prosecutor’s remark about the possibility of a live lineup, the trial court admonished the jury: “Ladies and gentlemen, you decide this case based on the evidence that you hear, not what-if’s or what-could-have-happeneds. All right. I’ll leave that up to you. You decide this case based on the evidence. Only.” As defendants acknowledge, this admonition “told the jury not to speculate about what would have happened if the defense had obtained a live line up.” In other words, the court expressly forbade the jury from speculating whether defendants would have been identified in a live lineup. The admonition also potently reminded the jury to decide “this case based on the evidence” and that, consequently, whatever the defense attorneys, or the prosecutor for that matter, believed was irrelevant. (See CALJIC Nos. 1.0 [“you must determine what facts have been proved from the evidence received in the trial and not from any other source”], 1.02 [lawyers’ statements and insinuations are not evidence].) In sum, we conclude the court’s intervention prevented the jury from making any untoward guilt inference from the fact the defense did not seek a lineup.
The reality is this is a highly speculative inference because the decision to request a lineup must be made in the brief window of time before the preliminary hearing (Evans v. Superior Court (1974) 11 Cal.3d 617, 625-626) and myriad tactical reasons justify declining a lineup, including the decision to put the prosecution to the test on its evidence alone.
The trial court’s pattern instructions also informed the jury defense counsel committed no misconduct or gamesmanship by standing pat and not requesting a live lineup. Specifically, the court instructed the jury concerning the prosecutor’s obligation to present evidence sufficient to overcome the reasonable doubt standard, the defense’s right to rely on the state of the evidence, and the fact that neither side need undertake to present all potentially available evidence — such as a lineup. (CALJIC Nos. 2.11, 2.61, 2.90 & 2.91.) In light of these instructions, plus the instruction that arguments by the attorneys — including the prosecutor — are not evidence, we discern no likelihood the jury interpreted the prosecutor’s comment about the absence of a live lineup as defense gamesmanship or otherwise as a reason to punish the defendants. The instructions prevented the prosecutor’s comment from compromising defendants’ right to a fair trial. Accordingly, the comment furnishes no basis for reversal.
5. Prosecutorial Error in Describing Reasonable Doubt Standard
Defendants contend the prosecutor committed misconduct in describing the reasonable doubt standard. As our Supreme Court has observed, “[T]he term prosecutorial ‘misconduct’ is somewhat of a misnomer to the extent that it suggests a prosecutor must act with a culpable state of mind. A more apt description of the transgression is prosecutorial error.” (Hill, supra, 17 Cal.4th at p. 823, fn. 1.) “Because we consider the effect of the prosecutor’s action on the defendant, a determination of bad faith or wrongful intent by the prosecutor is not required for a finding of prosecutorial misconduct.” (People v. Crew (2003) 31 Cal.4th 822, 836.) Whether considered under the rubric of error or misconduct, we agree with defendants that the prosecutor misstated the reasonable doubt standard.
In his rebuttal, the prosecutor characterized defense counsels’ arguments as the “officer should have done more, or you should have more evidence than you have, you should have DNA evidence.” He then argued, “That’s not your job. Your job is to take what you have, take the law that the court gives you, put them together.” He added, “You don’t look at what you don’t have. . . . You do what you can with what you have.” (Italics added.) The prosecutor continued: “The law defines reasonable doubt for you. But the truth is it’s hard to understand. The key word in reasonable doubt is ‘reasonable.’ Do you have doubts based on reason. Not based on arguments, but based on the evidence. Do you have doubts rooted in reason. Key word is ‘reasonable.’” (Italics added.)
These comments reproduce almost exactly the argument condemned by the Supreme Court in Hill. There, the prosecutor addressed the concept of reasonable doubt, arguing: “‘[Y]ou have to have a reason for this doubt. There has to be some evidence on which to base a doubt.’ . . . ‘There must be some evidence from which there is a reason for a doubt. You can’t say, well, one of the attorneys said so.’ . . .” (Hill, supra, 17 Cal.4th at p. 831, original italics.)
The Supreme Court observed the prosecutor there, Rosalie Morton, “committed misconduct insofar as her statements could reasonably be interpreted as suggesting to the jury she did not have the burden of proving every element of the crimes charged beyond a reasonable doubt. [Citations.] Further, to the extent Morton was claiming there must be some affirmative evidence demonstrating a reasonable doubt, she was mistaken as to the law, for the jury may simply not be persuaded by the prosecution’s evidence.” (Hill, supra, 17 Cal.4th at p. 831, italics added.) On the record there, the court determined: “[I]t is reasonably likely Morton’s comments, taken in context, were understood by the jury to mean defendant had the burden of producing evidence to demonstrate a reasonable doubt of his guilt. Accordingly, we conclude Morton committed misconduct by misstating the law.” (Id. at p. 832.)
Here, the prosecutor repeated the “some evidence on which to base doubt” error in Hill, supra, 17 Cal.4th at p. 831 by insisting doubt must be “based on the evidence.” The prosecutor here compounded this error by arguing “You don’t look at what you don’t have.” This was error because, under the reasonable doubt standard, gaps in the prosecution’s case — i.e., evidence the prosecution lacks — may well be a reason the jury is “simply not . . . persuaded by the prosecution’s evidence.” (Hill, supra, 17 Cal.4th at p. 831.) The prosecutor also misstated the law with his penultimate statement to the jury that “[i]f you believe they did it based on the evidence, and it’s a reasonable decision, then reasonable is not a barrier to your decision.” This statement was patent error because it entirely dispensed with the jury’s self-examination for doubt, instead counseling the jurors they could reach any “reasonable” decision — doubt or no doubt.
Defendants also complain the prosecutor opened his rebuttal by disparaging defense counsel in a manner that aggravated his later misstatements of the reasonable doubt standard. We address these opening remarks in conjunction with the prosecutor’s aforementioned closing misstatements to determine whether the prosecutor’s errors or misconduct concerning the reasonable doubt standard were so pervasive as to constitute a pattern infecting the trial with such unfairness as to violate due process. (Gionis, supra, 9 Cal.4th at pp. 1214-1215; Hill, supra, 17 Cal.4th at pp. 819, 844.)
The prosecutor began his rebuttal this way: “Ladies and gentlemen of the jury, the first thing I want to do is remind you what we said earlier, ‘What the attorneys say is not evidence.’ The second thing I want to do is . . . to leave [behind] the scare tactics you heard before lunch and move back in[to] the evidence because that is the basis of your decision. [¶] Your decision is to be based on the evidence and not scare tactics. I’m not going to go through everything again. I just want . . . to remind you to make decisions based on the evidence.” (Italics added.)
The prosecutor never specified what defense arguments were “scare tactics.” We observe counsel for Fischer opened his remarks with a vivid description of the purported reasonable doubt standard in Iraq under Saddam Hussein, who allegedly executed two brothers based upon a doubt as to which one was involved in an assassination attempt. Counsel contrasted this injustice with the reasonable doubt standard “[u]nder our system,” where “[i]nstead of killing both to make sure you get the guilty guy, we do exactly the opposite. . . . [¶] [W]e won’t tolerate the wrongful conviction of an innocent boy. We won’t do it. We’ll go to whatever lengths necessary to prevent that. That’s why there’s proof beyond a reasonable doubt. That’s why there’s the presumption of innocence.”
Both defense counsel urged the jury to “follow the law and to have the defendants’[] guilt satisfactorily shown to you,” as if “you were over here or somebody you loved was over here” at the defense table. Counsel warned that under the reasonable doubt standard “you have to have an abiding conviction” of guilt; “that means that 10 years from now you don’t want to wake up and say to yourself . . . I hope . . . I didn’t make a mistake and these kids are paying the price for that mistake.”
Both counsel attacked the eyewitnesses’ identifications and emphasized the lack of DNA evidence. Both mentioned, as articulated by Fischer’s counsel: “[T]he gates [of prison] flying open and people getting released [because of] the scientific evidence [that] shows . . . the identification was honest but mistaken. But that’s like 20 years later. And folks, that’s too late. It’s not enough to say, well, we got it right now. . . . 20 years later, I’m sorry, Jason, your whole life is over, but now we’ve got it.”
We conclude the prosecutor’s reference to so-called defense “scare tactics” was not misconduct. Counsel for both sides are afforded wide leeway in closing argument (People v. Farnam (2002) 28 Cal.4th 107, 200; People v. Pigage (2003) 112 Cal.App.4th 1359, 1370 (Pigage)) and are not limited to Chesterfieldian politeness with each other (People v. Williams (1997) 16 Cal.4th 153, 221). Defense counsel properly emphasized the possibility of a mistaken conviction as adding great weight to the jury’s deliberations under the reasonable doubt standard, but the prosecutor was equally entitled to focus the jury’s attention on the evidence pointing towards guilt. The nature of the adversarial system is that each side will emphasize what is favorable for it, and attack the other side’s presentation.
Viewing the arguments as a whole, we do not believe the jury would construe the prosecutor’s ambiguous references to “scare tactics” as a personal attack on defense counsel or, worse, as undercutting the reasonable doubt standard. Rather, in the context of the prosecutor’s correct statements that “‘What attorneys say is not evidence’” and “Your decision is to be based on the evidence,” the jury more likely understood the comments as a bid to refocus attention onto the prosecution’s eyewitness evidence and away from the defense arguments concerning the lack of DNA or fingerprint evidence or the specter of a mistaken conviction. We see no likelihood the prosecutor’s stray remarks would cause the jury to disregard the trial court’s multiple instructions concerning the reasonable doubt standard (see CALJIC Nos. 1.00, 2.90 & 2.91), including a pinpoint instruction highlighting the prosecution’s burden to prove the perpetrator’s identity beyond a reasonable doubt. Simply put, “[w]e presume that jurors treat the court’s instructions as a statement of the law by a judge, and the prosecutor’s comments as words spoken by an advocate in an attempt to persuade.” (People v. Clair (1992) 2 Cal.4th 629, 663, fn. 8 (Clair).) Because we conclude the prosecutor’s opening comments do not constitute misconduct, there is no error to cumulate with the prosecutor’s closing misstatements of the reasonable doubt standard.
As given to the jury, CALJIC No. 2.91, entitled “Burden of Proving Identity Based Solely on Eyewitnesses,” provides: “The burden is on the People to prove beyond a reasonable doubt that the defendant is the person who committed the crime with which he is charged. [¶] If, after considering the circumstances of the identification [and any other evidence in this case], you have a reasonable doubt whether defendant was the person who committed the crime, you must give the defendant the benefit of that doubt and find him not guilty.”
Defendants contend the trial court had a sua sponte duty to correct the prosecutor’s misstatements concerning the reasonable doubt standard and that the uncorrected comments so infected the trial with unfairness as to violate due process, requiring application of the Chapman standard of review. (Chapman v. California (1967) 386 U.S. 18.) Defendants do not go far enough. The logic of their position is, in essence, that by failing to rectify the prosecutor’s misstatements, the trial court ratified them and thereby misinstructed the jury. Constitutionally defective reasonable doubt instructions require reversal per se. (Sullivan v. Louisiana (1993) 508 U.S. 275, 278-280; 5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial § 663, pp. 952-953.) We are not persuaded, however, that the trial court committed any error.
The trial court did not ratify the prosecutor’s misstatements. Rather, the trial court provided the jury with correct reasonable doubt instructions before argument began and, after argument, furnished them in written form for deliberations. These instructions included the admonition: “If anything concerning the law said by the attorneys in their arguments or at any other time during the trial conflicts with my instructions on the law, you must follow my instructions.” (CALJIC No. 1.00.) We presume the jury followed the court’s instructions. (Clair, supra, 2 Cal.4th at p. 663, fn. 8.) Defendants argue this presumption should not apply because the prosecutor craftily undercut the court’s instructions by acknowledging, “The law defines reasonable doubt for you,” but added, “the truth is it’s hard to understand.” Defendants contend the prosecutor thus induced the jury to adopt his substitute, more easily understood formulation dispensing with doubt altogether: “if you believe they did it based on the evidence, and it’s a reasonable decision, then reasonable is not a barrier to your decision.”
We see no reason, however, to suppose the jurors followed the prosecutor in striking doubt out of the instructions. Such a reading flies in the face of the words of the instructions, which are replete with references to “reasonable doubt” (italics added) and specify the jury should not, as advocated by the prosecutor, ignore doubt to reach any reasonable conclusion, but rather: “you must give the defendant the benefit of that doubt and find him not guilty.” (E.g., CALJIC No. 2.91.) We presume the jury read and understood the court’s instructions. (Pigage, supra, 112 Cal.App.4th at pp. 1369-1370; see also People v. Martin (1983) 150 Cal.App.3d 148, 158 [“We assume jurors are intelligent persons capable of understanding and correlating jury instructions”].) In sum, the prosecutor’s attempt to dilute the reasonable doubt standard to one of mere reasonableness was so obviously wrong in light of the court’s correct instructions that we perceive no likelihood the jury was misled.
Defendants stress that the prosecutor’s misstatement suggesting the jury need only reach a reasonable conclusion without regard to whether they harbored any doubt was virtually the last thing the jury heard before retiring, exacerbating the harmful effect of the prosecutor’s misstatement. But as noted, the jury had the written instructions to refer to, and “we presume that the jury ‘meticulously followed the instructions given.’” (People v. Cruz (2001) 93 Cal.App.4th 69, 73.)
In support of their claim the trial court neglected a duty to correct the prosecutor even though defense counsel failed to object, defendants cite a case affirming a trial court’s decision to intervene sua sponte when defense counsel read the jury only portions of an instruction concerning the presumption of innocence and the standard of proof. (Holloway, supra, 33 Cal.4th at p. 137.) The reviewing court rejected the defendant’s contention the trial court’s action infringed his Sixth Amendment right to valid argument by counsel. Patently, Holloway did not establish that the trial court must intervene sua sponte in every case but rather only that the decision to do so in the particular circumstances there was not error. Here, where the trial court twice gave correct instructions that directly contradicted the prosecutor’s claim only a “reasonable decision” was required, we conclude the trial court had no sua sponte obligation to repeat the instructions a third time.
Absent error by the trial court, we remain convinced the applicable standard of review is the one governing claims of ineffectiveness of counsel, rather than the federal Chapman or reversible per se standards. The question therefore is whether counsel’s failure to object to the prosecutor’s misstatements “subjected the petitioner to prejudice, i.e., [whether] there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the petitioner. [Citations.]” (Wilson, supra,3 Cal.4th at p. 950.) Put another way, “[a] reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland, supra, 466 U.S. at p. 694.) We examine the proceedings not only for whether the outcome would have been different, but for whether defendants’ trial was fundamentally fair and reliable. (In re Hardy, supra, 41 Cal.4th at p. 1018.)
We conclude defendants fail to meet their burden for reversal. Notably, we do not believe the gaps defense counsel stressed in their closing argument concerning the lack of DNA and fingerprint evidence would have been any more persuasive had the prosecutor not misstated the reasonable doubt standard. The purported “gaps” consisted of DNA that perhaps could have been recovered from a drinking cup in the Mercedes, fingerprints that might possibly have been lifted from interior door panels, plus the phone records that could have been subpoenaed to show who owned a cell phone found in the car. Such evidence, even if tied to persons other than defendants, would not have the exonerating force of biological material recovered at the crime scene, since it would be consistent simply with someone else riding in the Mercedes at some point, a not unlikely scenario.
In any event, the eyewitness identification by both victims and the officer who nearly apprehended defendants was overwhelming evidence of guilt. Officer Paqua had spotted Fischer and Schultz minutes after the assault in a vehicle matching the description of the perpetrators’ Mercedes, and defendants fled when Paqua attempted to pull them over. Unable to elude Paqua’s patrol car, defendants abandoned the Mercedes to flee on foot and Paqua gave chase, grabbing Fischer’s foot as a he scaled a fence and looked back at Paqua. When Fischer escaped Paqua’s grasp, he returned to the Mercedes and found Schultz’s driver’s license in the vehicle, plus bandanas, baseball caps, and a gun matching descriptions given by the victims. Based on this evidence and the eyewitness identifications, together with defendants’ consciousness of guilt shown in multiple ways by their flight, Schultz’s admission to his girlfriend he was “in trouble” with police, his evasion of police by staying at a motel rather than at home, and Fischer’s later flight on a motorcycle, we have no difficulty concluding it was not reasonably probable the error here contributed to the verdict.
Defendants attack the reliability of eyewitness identifications generally and contend specifically that the heat of Paqua’s chase and the victims’ fear compromised their close-range view of the perpetrators. In light of the trial court’s correct instruction concerning the reasonable doubt standard, we do not find it reasonably probable the prosecutor’s misstatement of the standard caused the jury to credit eyewitness testimony it otherwise would have rejected. The trial court’s correct instructions assured that defendants’ trial was fair and the result reliable. Where, as here, the circumstances surrounding the identification and its weight have been exhaustively investigated at trial, the trier of fact’s evaluation of that evidence — as reflected in the verdict — is binding on the reviewing court. (In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1497; People v. Hughes (1969) 271 Cal.App.2d 288, 291.) Defendants’ arguments for reversal of their convictions therefore fail.
B. Cruel or Unusual Punishment
Fischer contends his 12-year prison sentence violates fundamental fairness and, more specifically, the state constitutional proscription against cruel or unusual punishment. (Cal. Const., art. I, § 17.) The test under the state Constitution is whether the punishment is “so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424.) The defendant must demonstrate the punishment is disproportionate in light of (1) the offense and defendant’s background, (2) more serious offenses, or (3) similar offenses in other jurisdictions. (Id. at pp. 429-437.) The punishment imposed on other participants in the crime may also factor in the analysis, as Fischer contends. (See People v. Smith (1986) 187 Cal.App.3d 666, 682, abrogated on another ground in People v. Carter (2003) 30 Cal.4th 1166.) The defendant must overcome a “considerable burden” to show the sentence is disproportionate to her level of culpability. (People v. Wingo (1975) 14 Cal.3d 169, 174.) As a result, “[f]indings of disproportionality have occurred with exquisite rarity in the case law.” (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196.)
Fischer bases his claim only on the first prong.
Defendant premises his argument principally on the harshness of his sentence compared to Schultz’s, who received a year in jail and five years’ formal probation. Although the disparity is wide, Fischer’s use of a loaded gun, his prior criminal history, poor performance on probation and parole, and mitigating factors unique to Schultz explain the distinction.
Fischer used a gun; Schultz did not. Fischer argues Schultz’s use of a deadly weapon made him equally culpable, but he overlooks the deterrent effect the Legislature intended with substantially longer prison sentences for personal use of a firearm. (People v. Martinez (1999) 76 Cal.App.4th 489, 497-498 (Martinez); cf. People v. Cole (1982) 31 Cal.3d 568, 572-573 [noting deterrent effect of enhancement for personal infliction of great bodily injury, since “each member of a criminal undertaking will know that, regardless of the urgings of his confederates, if he actually inflicts the injury he alone will pay the increased penalty”].) Deterrence is a legitimate penal objective and we would overstep constitutional bounds to simply void the 10-year enhancement as Fischer requests, which would destroy the Legislature’s chosen means to combat the scourge of criminal gun violence. (See Martinez, supra, 76 Cal.App.4th at pp. 497-498; People v. Zepeda (2001) 87 Cal.App.4th 1183, 1215.)
According to Fischer, the circumstances of his offense do not warrant the enhancement because he used an unloaded gun. (But see Pen. Code, § 12022.53 [enhancement expressly applies though firearm is inoperable or unloaded].) Fischer relies on the fact police found no bullets in the gun after the offense, but investigating officers also retrieved a clip of four bullets near the vehicle, and we must view the evidence in the light most favorable to the sentence imposed. (Martinez, supra, 76 Cal.App.4th at p. 496.) Moreover, the manner in which Fischer used the gun displays a shocking callousness warranting a severe sentence. He pointed a loaded weapon at Turner’s head at close range and, when Turner failed to comply immediately with Fischer’s demand for his cell phone, Fischer pulled the slide back to chamber a round, terrifying his victim.
Other factors besides gun use distinguish Fischer’s case from Schultz’s. Fischer had a criminal record; Schultz did not. The Attorney General concedes Fischer’s criminal history was not particularly significant, consisting of recent adult convictions for repeated driving offenses, including reckless driving causing great bodily injury and street racing. But besides the poor judgment inherent in these offenses — which should not be minimized since Fischer posed a demonstrable danger to the public — more troubling still is that he continued to reoffend and accumulated five probation violations, factors in aggravation supporting greater punishment. (Cal. Rules of Court, rule 4.421(b)(2), (4) & (5).)
In contrast, Schultz had no criminal history and the trial court could reasonably conclude his involvement in the present incident with Fischer was an aberration. In particular, the court could conclude it was unlikely Schultz would reoffend because of his clean record and the costs to his business, mitigating factors inapplicable to Fischer. The court also could conclude that the contributions Schultz made to society at his young age, employing more than 20 people in a computer-related field, warranted mitigation. In sum, Fischer overlooks that the disparity in his codefendant’s sentence had much to do not only with the circumstances of the crime and legitimate public policy concerning gun use, but mitigating factors particular to Schultz for which Fischer has no basis to complain.
Fischer requests that we reduce his sentence in some fashion, relying on the Supreme Court’s decision in People v. Dillon (1983) 34 Cal.3d 441, which reduced the conviction of a minor charged as an adult from first degree felony-murder to second degree murder. Unlike the defendant in Dillon, however, Fischer is not a minor, he had a criminal record, no evidence showed he was “unusually immature and childlike,” nor did he frankly admit his offense with a compelling explanation of self-defense. We therefore decline Fischer’s invitation.
III
Disposition
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., IKOLA, J.