Opinion
A149011
06-22-2018
THE PEOPLE, Plaintiff and Respondent, v. AARON TAYLOR GOODE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. Nos. 51408574, 51515543)
I. INTRODUCTION
We are presented with companion appeals filed by Aaron Goode (appellant). In case No. 51515543, appellant was convicted by a jury of assault with a deadly weapon and sentenced to a four-year prison term. In case No. 51408574, the trial court found that appellant violated the terms of his felony probation by committing the assault in case No. 51515543, and sentenced appellant to a four-year prison term, to run concurrently with his sentence in case No. 51515543.
In this court, appellant contends that the prosecutor's closing argument to the jury in case No. 51515543 was so egregious as to render his trial fundamentally unfair, resulting in a violation of the due process clause of the Fourteenth Amendment. He further contends that the error requires reversal of his assault conviction (and therefore both judgments) because it was not only prejudicial, but constituted structural error warranting automatic reversal without any consideration of prejudice. We reject these contentions and affirm both judgments.
II. FACTUAL BACKGROUND
Our factual summary is limited to the trial record in case No. 51515543 because the issues on appeal pertain exclusively to appellant's assault conviction in that case.
Appellant's conviction for assault with a deadly weapon stems from a July 23, 2015 confrontation between appellant and Simranjeet Singh, a clerk at the 7-11 convenience store on Pacheco Boulevard in Pacheco. At the time of the incident, Mr. Singh had been working in the store for several months and was familiar with appellant.
Unless otherwise specified, all references to a date are to the 2015 calendar year.
Mr. Singh testified that he had seen appellant in the store four or five times before July 23. He was certain appellant had stolen chocolate one of the times and suspected appellant had stolen something on another occasion but was not sure. Once he suspected appellant of stealing, Mr. Singh warned appellant not to come into the store. On another occasion, Mr. Singh and appellant had a confrontation outside the store. Mr. Singh was sweeping the store front and asked appellant to move a drink appellant had placed on the ground near where Mr. Singh was cleaning. Appellant did not move the drink and it spilled when Mr. Singh continued cleaning. Appellant then went to his bike and retrieved a baseball bat. Appellant asked Mr. Singh "why did you touch my stuff," as appellant held the bat by his side and made eye contact. Mr. Singh thought appellant was trying to scare him.
Mr. Singh testified that on July 23, at approximately 1:30 a.m., he was sweeping and picking up trash near the front door when appellant walked in. Mr. Singh told appellant he was not allowed in the store and tried to block his way. But appellant pushed him two or three times and spoke loudly, saying "he wanted to take ketchup." Mr. Singh grabbed appellant by the shirt collar to stop him from coming further into the store. Appellant managed to push his way into the store. After he grabbed ketchup from the display, he displayed a knife in his right hand and told Mr. Singh that he had the knife. Mr. Singh could not recall the details after appellant displayed the knife but testified that ". . . when he showed me the knife, things happened." Mr. Singh did recall appellant backing away and leaving the store. At that point, Mr. Singh realized he was bleeding and that appellant had used the knife on him.
The incident was captured on video, which was admitted into evidence. The video showed Mr. Singh attempting to block appellant from entering the store and appellant pushing his way into the store. It showed appellant picking something up from the floor and beginning to walk out of the store. Next, appellant stopped, walked back to Mr. Singh, and stabbed him in the chest, and then walked out of the store. Police photographs were entered into evidence, which showed that Mr. Singh had been stabbed in the chest, elbow, and back.
After appellant left the store, Mr. Singh called 911 and was transported to John Muir Hospital, where his wounds were stapled closed and he had exploratory surgery to make sure that he had not sustained heart damage. Officer Bullard, a deputy sheriff assigned to investigate the case, interviewed Mr. Singh at the hospital. He showed Mr. Singh a six pack of photos, which included a photo of appellant. Mr. Singh identified appellant as the person who stabbed him.
Appellant's mother, Kimberly Goto, testified that she received a call from appellant around the time of the incident. Appellant told her that a clerk chased him around the store with a broom, and that he stabbed the clerk hard enough to hit bone. She advised appellant to turn himself in.
Appellant testified in his own defense, giving the jury a very different account of his interactions with Mr. Singh. Appellant testified that he worked at a storage unit near the 7-11 and went there nearly every day. The first time appellant saw Mr. Singh in the store, Mr. Singh accused him of stealing chocolate and told him he could not come into the store anymore. Appellant testified that he had not stolen anything and complained to the store manager. Appellant next recalled a negative encounter with Mr. Singh when he was in front of the store. He testified that Mr. Singh knocked his Big Gulp over with a cart he was pushing. Appellant was upset and again complained to the manager. On a third occasion, appellant was outside behind the store near a trash can talking with some of his friends and had placed a drink and a hot dog on the top of the can. Mr. Singh came out of the store to empty trash. Appellant testified that Mr. Singh knocked appellant's food over without asking him to remove it first and knocked his bike over as well. Appellant said he held a bat in his hand but denied ever threatening Mr. Singh. The last negative incident appellant recalled was a time when he saw someone drive into the store parking lot at a high rate of speed. Appellant was standing in the parking lot with his bike and had to move quickly to avoid being hit. Appellant realized the driver was Mr. Singh and testified that Mr. Singh was hostile and smirked at him. These negative encounters led appellant to believe Mr. Singh was targeting him, and he felt threatened.
Appellant testified that he went to the 7-11 two or three times on July 23. At around 10 p.m., he purchased buffalo wings from the frozen food section but did not see Mr. Singh. He returned to the store later because he forgot to get ranch dressing and napkins, which were free in a display at the front of the store. When appellant walked into the store Mr. Singh told him to leave because he was not welcome. He tried to reason with Mr. Singh but the situation "spiraled." Mr. Singh blocked his path to the condiments with a broom in his hand and appellant tried to get around him. Appellant testified that during the struggle, Mr. Singh choked him, punched him, and hit him with the broom. During the encounter, Mr. Singh also broke his watch, which freaked him out.
Under direct examination, appellant was asked by counsel whether he was carrying anything in his pockets that evening and gave this response: "Yes, I had a broken Deore derailleur in my right pocket. I had a screwdriver, a multi-tool Crankbrothers tool, I had a bunch of bolts in my pocket." When asked if he had a knife, appellant responded, "Apparently I had a small pocketknife, yes." Appellant testified that when he saw Mr. Singh step towards him, stomping his feet, swearing at him, and holding a broom, he felt threatened, so he pulled something out of his pocket, the first thing he put his hands on. Then he walked up to Mr. Singh, and punched him with that thing, so that Mr. Singh would stop attacking him. After hitting Mr. Singh in the chest, appellant left the store.
Under cross-examination, appellant could not recall what object he used when he hit Mr. Singh, but doubted that he "would have taken the time to open a small little pocket knife." He said "I don't know what I grabbed in my pockets at that time. It could have been any number . . . of these objects that I used in a punching motion." There was considerable back and forth with the prosecutor on cross-examination but appellant's memory remained vague. Appellant believed the action he took was in self-defense.
The prosecutor also examined appellant about past violent behavior and past convictions. He could not recall past incidents where he was violent, citing "memory problems," and he was confused about the status of his past convictions. Appellant did recall that he called his mother and told her that he had been attacked in the store. He did not recall telling her he stabbed a man.
The prosecutor attacked appellant's credibility throughout closing argument. She cited several instances where appellant contradicted himself and contrasted appellant's version of events with Mr. Singh's testimony and the video evidence. The prosecutor argued repeatedly that there was no evidence that appellant acted in self-defense and that appellant's testimony was self-serving and untrue. The prosecutor summed up her closing argument as follows:
"[Prosecutor]: Now, some of you may be thinking, since all the reasonable conclusions point to the fact that defendant is guilty of the assault with a deadly weapon and the GBI. It's so clear that there wasn't self-defense. It's as simple as that. It's no more complicated. The elements are there. It's very clear he didn't act in self-defense. I know I said that but I want to emphasize that again. Then, why are we here? What are we doing? Why? Why go through all this? [¶] Why are we here when the uncontroverted facts show defendant['s] guilt? Why are we here when there was no legitimate defense of self-defense? It's because everyone has an absolute Constitutional right to a jury trial.
"[Defense Counsel]: Objection, improper argument.
"THE COURT: Overruled.
"[Prosecutor]: Everyone has an absolute Constitutional right to a jury trial. The defendant demanded a jury trial. He's entitled to one, and he got one. [¶] Now to hone in on an example of this. I don't know if any of you know or remember Jack Ruby. When Jack Ruby shot Lee Harvey Oswald, this was a shooting that was done in front of many police officers.
"[Defense Counsel]: Objection, improper argument, due process.
"THE COURT: Overruled.
"[Prosecutor]: In front of many police officers, in front of many reporters. And, in fact, it was broadcast on NBC. So, millions of people watched Jack Ruby shoot Lee Harvey Oswald. And Jack Ruby had a right to a jury trial.
"[Defense Counsel]: Objection, improper argument, due process.
"THE COURT: Overruled.
"[Prosecutor]: Jack Ruby had a right to a jury trial, the same as this defendant has a right to a jury trial."
The jury returned a verdict finding appellant guilty of assault with a deadly weapon, but it also found that an allegation appellant inflicted great bodily injury was not true.
III. DISCUSSION
Appellant contends that the prosecutor's comments during closing argument violated his federal constitutional right to a fair trial. He further contends that his assault conviction must be reversed because the alleged due process violation was both prejudicial and a structural error.
A. Error Analysis
" ' "The applicable federal and state standards regarding prosecutorial misconduct are 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.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ' " 'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.' " ' [Citation.]" [Citation.]' [Citation.]" (People v. Christensen (2014) 229 Cal.App.4th 781, 802.) In the present case, appellant contends the prosecutor's conduct violated his federal constitutional right to due process; he does not assert error under the state constitution.
To violate federal due process, a prosecutor's conduct " 'must be "of sufficient significance to result in the denial of the defendant's right to a fair trial." [Citation.]' " (People v. Adanandus (2007) 157 Cal.App.4th 496, 512.) "The crucial issue ' "is not the good faith vel non of the prosecutor, but the potential injury to the defendant." ' [Citation.]" (Id. at pp. 512-513.)
The prosecutorial conduct complained of need not be intentional to be considered error. In People v. Hill (1998) 17 Cal.4th 800, the Supreme Court held that " 'to the extent that cases in this jurisdiction imply that misconduct must be intentional before it constitutes reversible error, they are disapproved.' [Citation.]" (Id. at p. 822.) In general, cases addressing this issue refer to both prosecutorial error and misconduct as prosecutorial misconduct.
In order "[t]o prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citation.]" (People v. Gamache (2010) 48 Cal.4th 347, 371.) In conducting the inquiry, the court should not lightly infer that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements. (People v. Price (2017) 8 Cal.App.5th 409, 460-461.) Nor do we "view the prosecutor's remarks in isolation but rather 'in the context of the argument as a whole.' [Citation.]" (People v. Adanandus, supra, 157 Cal.App.4th at p. 513.)
"Regarding the scope of permissible prosecutorial argument, ' " 'a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] It is also clear that counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature.' [Citation.] 'A prosecutor may "vigorously argue his case and is not limited to 'Chesterfieldian politeness' " [citation], and he may "use appropriate epithets . . . ." ' " [Citation.]' [Citation.]" (People v. Stanley (2006) 39 Cal.4th 913, 951-952.)
" 'Prosecutors, however, are held to an elevated standard of conduct . . . . "A prosecutor is held to a standard higher than that imposed on other attorneys because of the unique function he or she performs in representing the interests, and in exercising the sovereign power, of the state. [Citation.] As the United States Supreme Court has explained, the prosecutor represents 'a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.' [Citation.]" ' [Citation.]" (People v. Christensen, supra, 229 Cal.App.4th at pp. 802-803.)
With these principles in mind, we turn to appellant's arguments on appeal. He contends that the prosecutor's closing argument deprived him of a fair trial because the prosecutor (1) disparaged him for exercising his right to a jury trial; and (2) compared him to a notorious killer, who committed murder on national television.
First, we conclude that the prosecutor's comments can reasonably be described as provocative and cynical, but it is not likely the jury interpreted them as disparaging appellant for exercising his constitutional right to a jury trial. The prosecutor made the point that the evidence against appellant was so overwhelming that he should be found guilty, but she did not indict appellant for exercising his right to a jury trial or tell the jurors that appellant was wasting their time. Instead, the prosecutor expressly affirmed that appellant was entitled to a jury trial.
Appellant cites State v. Killings (Kan. 2015) 340 P.3d 1186 (Killings), a capital murder case, distinguishable on the facts and law. In that case, the prosecutor told the jury that the only reason they were present at the trial was because the defendant did not take responsibility for his actions and plead guilty. The Kansas Supreme Court found these comments were outside the bounds of permissible argument under state law (although they were not prejudicial) because the prosecutor referred to a matter outside the evidence and because the jurors were told that the defendant should not have exercised his right to a jury trial and that his doing so placed a burden on them. (Id. at pp. 1200-1201, 1205.) This was an express attack on the defendant's decision to exercise his constitutional right. By contrast, in the present case, while the prosecutor alluded to the fact that appellant had exercised his jury trial right despite the overwhelming evidence of guilt, she did not criticize that decision or suggest that appellant had behaved irresponsibly. To the contrary, the prosecutor expressly acknowledged that appellant was entitled to his day in court.
The prosecutor argued " 'The evidence is overwhelming that the defendant murdered Mr. Jackson . . . . So why are we here with this kind of evidence, this kind of physical evidence and testimonial evidence, why are we here? [¶] 'We are here because the defendant was given an opportunity, he failed to accept responsibility for his homicidal act; and now that responsibility is passed along to you. Your responsibility now is to hold him accountable for something of which he would not accept responsibility for.' " (Killings, supra, 340 P.3d at pp. 1199-1200, italics omitted.)
Turning to appellant's second theory of error, we are not persuaded that the prosecutor's reference to Jack Ruby rendered the trial fundamentally unfair. Appellant states that once the prosecutor mentioned Ruby, the jurors must have associated appellant with Ruby's crimes and concluded that "voting to acquit [appellant] would be akin to voting to acquit a cold-blooded murderer who committed his crime in the physical presence of police officers and while a national television audience watched." This argument assumes too much. We will not lightly infer that the jury drew the most damaging meaning from the prosecutor's comments. (See People v. Price, supra, 8 Cal.App.5th at pp. 460-461.) The murder of Lee Harvey Oswald by Jack Ruby occurred more than 50 years ago, and there is no way to know if the jurors knew who Jack Ruby was, or considered Ruby a notorious killer, or that the reference to the incident registered at all. Furthermore, even if Ruby remains a notorious figure in American culture, his crime was not the focus or purpose of the prosecutor's reference to him. Rather, she used Ruby as an example because appellant's assault of Mr. Singh was also captured on camera and thus the jury saw it first-hand. Despite the undeniable impact of that evidence, the prosecutor acknowledged that appellant was entitled to the jury's reasoned decisionmaking.
Under all these circumstances, we find that the comments by counsel in this case were not so offensive that they infected the trial with unfairness. Prosecutors are permitted some latitude in the comments they make to the jury and the brief comments of counsel at issue here fall within the bounds of permissible argument. (See, e.g., People v. Stanley, supra, 39 Cal.4th at p. 951.)
B. Prejudice Analysis
Even when prosecutorial misconduct has occurred, reversal is not required unless the appellant demonstrates prejudice. (People v. Fernandez (2013) 216 Cal.App.4th 540, 564 (Fernandez).) When the error affects an appellant's federal constitutional rights, prejudice is measured under the harmless-beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18. (Fernandez, at p. 564; People v. Adanandus, supra, 157 Cal.App.4th at p. 514 [and cases]; see e.g., People v. Hill, supra, 17 Cal.4th 800, 844-848.) Applying this standard here, we conclude any error emanating from the prosecutor's closing argument was harmless.
The trial occurred from March 22 to March 30. The jury heard testimony from six witnesses for the prosecution and testimony from appellant in his defense. There was video evidence of the stabbing incident and other documentary evidence submitted to the jury for their consideration. The video largely corroborated Mr. Singh's version of events surrounding the stabbing. At trial, Mr. Singh could not recall specifically what happened when he was stabbed but the video showed appellant leaving the store, turning back, stabbing Mr. Singh and immediately walking out of the store. At the hospital, Mr. Singh identified appellant as the person who stabbed him. Appellant's mother testified that appellant called her the night of the incident and told her that he stabbed "a clerk" hard enough to hit bone. Defendant exercised his right to testify and present evidence on his behalf. His testimony was at times inconsistent and vague, and the other evidence in the record did not support his version of events.
The prosecutor spent most of closing argument attacking appellant's credibility and his claim of self-defense. The theme was that there was too much evidence of guilt to believe appellant's story and the comments at issue appear to be the grand finale. The comments were dramatic but given the timing, they are more reasonably interpreted as hyperbole than criticism of appellant's decision to go to trial.
In addition to the fact that the remarks were open to interpretation, the jurors were not left to deliberate without guidance. The court instructed the jurors on the way in which they were to consider the evidence and arguments of counsel. They were instructed that they, alone, were to decide what the facts were based only on the evidence. They were also cautioned not to let bias, sympathy, or prejudice influence their decision. The court was clear that they must follow the law as explained by the court whether or not they disagreed with it. This included the admonition that "[i]n their opening statements and closing arguments, the attorneys discuss the case, but their remarks are not evidence." Given these instructions, "We must . . . assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given. [Citation.]" (People v. Yoder (1979) 100 Cal.App.3d 333, 338.)
The court instructed the jury that "You must decide what the facts are. It is up to all of you, and you alone, to decide what happened based only on the evidence that has been presented to you in this trial. [¶] Do not let bias, sympathy, prejudice, or public opinion influence your decision . . . . [¶] You must follow the law as I explain it to you, even if you disagree with it."
The court stated "Evidence is the sworn testimony of witnesses . . . . Nothing that the attorneys say is evidence. [¶] In their opening statements and closing arguments, the attorneys discuss the case, but their remarks are not evidence."
Whether considering the comments at issue in isolation or in the context of the full trial record, there is no basis for finding that they altered the course of the trial in a fundamental way or had any discernable impact. That part of the prosecutor's closing argument was a brief moment in a trial with an otherwise complete evidentiary record; a record about which appellant cites no other errors. The jurors were instructed to not let bias affect their verdict and not to consider the comments of counsel as evidence. Thus, we conclude that if the prosecutor's comments were improper, the error was harmless.
C. Appellant's Structural Error Theory
Appellant contends that the prosecutor's closing argument constituted such a serious violation of due process that reversal is required without any harmless-error analysis. We have already rejected appellant's premise that misconduct occurred. Nevertheless, we briefly address this secondary argument, which is also erroneous.
A federal constitutional violation requiring automatic reversal of a judgment has been described as structural error. In People v. Mil (2012) 53 Cal.4th 400 (Mil), the California Supreme Court defined structural error as follows: "An error is ' "structural," and thus subject to automatic reversal, only in a "very limited class of cases," ' such as the complete denial of counsel, a biased decision maker, racial discrimination in jury selection, denial of self-representation at trial, denial of a public trial, and a defective reasonable-doubt instruction. [Citation.] What unites this class of errors is 'a "defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself." . . . Put another way, these errors deprive defendants of "basic protections" without which "a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence . . . and no criminal punishment may be regarded as fundamentally fair." ' [Citation.]" (Id. at p. 410.)
The Mil court went on to say, "If, on the other hand, ' "the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other [constitutional] errors that may have occurred are subject to harmless-error analysis." ' [Citation.]" (Mil, supra, 53 Cal. 4th at p. 410.) An error that is not structural and is subject to review for harmless error is referred to as trial error. (Id. at pp. 413-414.) In People v. Anzalone (2013) 56 Cal.4th 545, the Supreme Court described trial error as follows: " 'Error that occurs during the presentation of the case to the jury is generally trial error; an error that erroneously adds to or subtracts from the record before the jury can "be quantitively assessed in the context of the other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt." [Citations.]' " (Id. at pp. at 553-554.) The court went on to say that " 'A court in such circumstances can meaningfully ask "whether the guilty verdict actually rendered in this trial was surely unattributable to the error." [Citation.]' " (Id. at p. 554.)
The principles outlined in these cases are inconsistent with appellant's characterization of prosecutor misconduct as structural error. This type of error, when it does occur, is quintessential trial error, which occurs during the presentation of the case to the jury and can be quantitatively assessed in the context of other evidence in order evaluate its effect. Appellant fails to cite a single California case characterizing prosecutor misconduct as structural error.
In his reply brief, appellant cites People v. Reese (2017) 2 Cal.5th 660 (Reese), urging this court not to assume that a prosecutor's improper comments are not structural error simply because they are part of the trial process. The issue in Reese was whether the trial court erred by refusing to give an indigent defendant transcripts of opening statements and closing arguments from a prior mistrial. The Supreme Court found that the court erred by conditioning the provision of these statements on a showing of need, but found the error was harmless beyond a reasonable doubt. (Id. at p. 663.) The second part of this holding required some explanation because the court had previously held that the erroneous denial of an indigent defendant's request for a transcript of a prior trial constitutes structural error in People v. Hosner (1975) 15 Cal.3d 60, 70. (Reese, at p. 668.)
The Reese court observed that "[a]lthough the question whether a constitutional violation is structural or trial error is generally thought to be categorical, the harmless error status of certain constitutional violations is neither binary nor fixed." (Reese, supra, 2 Cal.5th at p. 669.) The court emphasized that "what matters in determining whether certain violations of law in the adjudicatory process are fully structural or subject to appropriate harmless error review is not only the fact an error occurred, but the nature and extent of it." (Ibid.) Applying this reasoning, the court concluded that while the total or all-but-total denial of the right to a previous transcript affects the entire conduct of the trial from beginning to end and thus is not amenable to harmless error review on appeal, "where a defendant is wrongly denied only portions of the previous trial transcript, the error is amenable to harmless error review." (Id. at pp. 670-671.)
Appellant intimates that Reese authorizes a flexible approach for considering whether alleged constitutional violations are structural error, which is consistent with treating the specific type of prosecutor misconduct that allegedly occurred here as structural error. Factually, this argument fails because the prosecutor did not commit misconduct for the reasons outlined above. Furthermore, we disagree with appellant's legal analysis. Reese stands for the proposition that a constitutional error that is categorized generally as a structural error may nevertheless be susceptible to harmless error analysis when the facts show that the defendant suffered only a partial deprivation of his or her right. It does support appellant's converse theory that a trial error like prosecutorial misconduct, which is by nature susceptible to harmless-error review, may now be deemed structural and reversible per se.
Conceivably, there may be a case in which a reviewing court determines that a prosecutor's comments are so blatantly prejudicial that no further inquiry is needed before finding that the comments undermined the trial in a fundamental way. However, it seems more likely that closing argument is always going to be only one element of a trial. As in the case here, a review of every other element of the trial will be necessary before the impact of that single element can be assessed.
Appellant had the benefit of counsel and an unbiased judge. He was able to fully participate in the proceedings. With the exception of the comments made during closing argument, appellant can cite no errors in the way in which the trial was conducted. Furthermore, even if the prosecutor's brief comments were improper, they posed no threat to the framework within which the trial proceeded and thus would not compel automatic reversal of the assault conviction.
IV. DISPOSITION
The judgments are affirmed.
/s/_________
SMITH, J. We concur: /s/_________
STREETER, Acting P. J. /s/_________
REARDON, J.
Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.