Opinion
E070351
10-03-2019
THE PEOPLE, Plaintiff and Respondent, v. MARQUISE ANTHONY ILES, Defendant and Appellant.
Lisa A. Kopelman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and A. Natasha Cortina and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1701823) OPINION APPEAL from the Superior Court of Riverside County. Thomas E. Kelly, Judge. (Retired judge of the Santa Cruz Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Lisa A. Kopelman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and A. Natasha Cortina and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
According to prosecution witnesses, defendant Marquise Anthony Iles robbed an elderly man of a gold chain and $80. When a police officer responded, he ignored her orders to stop. He ran and hid under a van; he would not come out until a police dog bit him. According to defendant, however, the elderly man attacked him when he merely tried to ask for directions. He ran from the officer because he thought she was going to shoot him. And he denied hearing any orders to come out from under the van.
In a jury trial, defendant was found guilty of second degree robbery (Pen. Code, § 211) and resisting an executive officer (Pen. Code, § 148, subd. (a)(1)). However, he was acquitted of assault on a police dog. (Pen. Code, § 600, subd. (a).) He was sentenced to five years six months in prison.
Defendant now contends:
1. His statements to the police were elicited improperly, because he had previously requested a lawyer.
2. Defense counsel rendered ineffective assistance by failing to object to a recording in which defendant repeatedly called a female police officer a "bitch."
3. Defense counsel rendered ineffective assistance by failing to object when the prosecutor committed misconduct by misstating the burden of proof in closing argument.
We do agree that the prosecutor committed misconduct in closing argument; however, defendant cannot show that the error was prejudicial, which means that defense counsel's failure to object was not constitutionally ineffective assistance. We also reject defendant's other contentions. Hence, we will affirm.
I
FACTUAL BACKGROUND
A. The Prosecution Case.
On March 26, 2017, around 5:30 p.m., victim Fausto Sanchez was walking down Sixth Street in Corona. He was headed to Walmart to pick up some prescription medication. Sanchez was 60 or 61 years old and on disability due to diabetes and kidney failure. He was "not very big and not very tall." He wore glasses.
Defendant came up behind Sanchez, "grabbed" his left shoulder, then put him in a choke hold. With his other hand, he "yanked" off a gold chain that Sanchez was wearing. He also tried to take Sanchez's wallet out of Sanchez's left rear pocket. Sanchez prevented this by putting one hand over the pocket. In the process, the pocket got ripped. Defendant reached into a different pocket and took out four $20 bills. Sanchez had them in his pocket, folded together, because his daughter had given them to him to pay for his medication. Defendant then let go of Sanchez and walked away.
Sanchez had not told police about the choke hold.
Sanchez had told police that he covered his pocket with both hands, but at trial, he testified that he covered it with one hand.
Sanchez had told police that the bills were in his left front pocket, but at trial, he testified that they were in his right front pocket.
Meanwhile, Quinton Steimle was driving by and noticed what he thought was "two guys fighting." He parked, walked up to defendant and asked, "What is going on here?" Defendant was holding a gold chain. He pointed to Sanchez and said, "That guy just hurt my hand." He started walking away, but when another person approached him, he "took off running."
Steimle talked to Sanchez to determine what had happened and whether he was okay. Just then, Officer Jody Perkins happened to be driving by in her police car. Steimle flagged her down, told her what had happened, and pointed to defendant, who could still be seen walking away.
Officer Perkins put in a call for additional units, then drove over to defendant. She hollered, "You better stop." He turned around, looked directly at her, then once again "took off running." She ran after him. She had him in sight most of the way, until he ran into an alley. She never saw him throw anything. She also never drew her gun.
Meanwhile, other officers arrived and set up a perimeter. They spotted defendant hiding under a van in the backyard of a home. They told defendant several times, by loudspeaker and by yelling, to surrender or they would send in a dog. When defendant did not respond, they sent in a police dog named Claude. A struggle ensued; defendant punched, kicked, and choked Claude and tried to gouge Claude's eyes out, while Claude bit defendant's wrist, arm, and ankle. Finally, officers managed to grab defendant's hands and to pull him out from under the van.
After the struggle, Claude had no visible injuries.
In separate field showups, Sanchez and Steimle each identified defendant.
Defendant was taken to a hospital. In his backpack, the police found two $20 bills. He was also wearing a gold chain. When an officer took it off his neck, he said, "That's the wrong chain." He added that he did not rob anyone. Officer Perkins Mirandized defendant, then asked, "[W]here is the other chain?" Defendant replied, "[T]he other chain [i]s on the ground." At that point, he stopped talking.
The police showed Sanchez the chain that defendant had been wearing, but it was not his.
Officers searched defendant's path of travel, but they did not find any chain or any money. However, this was more than an hour after the chase, the area was full of people, and they did not search adjacent backyards.
B. The Defense Case.
Defendant testified that, on the date of the alleged robbery, he was wearing two gold chains.
He had come by public transportation from Lancaster to Corona. There, he met up with a girlfriend to get some money from her. He then got on a bus to go from Corona to San Bernardino.
At some point, he realized he was on the wrong bus, so he got off. He wanted to ask for directions, and the only person nearby was Sanchez. He called out to Sanchez two or three times, but Sanchez did not respond. Thus, he tapped Sanchez on the shoulder. Sanchez "tripped out" and went into "panic mode." First, he put his hands on his wallet. Then, he turned around and put his arms out as if trying to push or hit defendant. He "accidental[ly]" pulled off one of defendant's chains. He also hurt defendant's hand. Defendant picked up his own chain and walked away. He denied ripping Sanchez's pocket.
Defendant testified that he knew he was lost because he did not see any "streets or anything" that he was familiar with. However, he also testified that he had never been to Corona before.
Then Steimle came up, and he, too, "tripped out." Defendant asked him for a ride, but he refused, so defendant just kept walking. He put his chain back on, but it was broken and he "had a feeling it would fall off . . . ."
Finally, Officer Perkins arrived. She told defendant to stop, then pulled out her gun and "charg[ed]" up to him "aggressive[ly]." Defendant had "bad experience" with the police and thought she was going to shoot him. He ran, hopped a fence, and hid under the van.
The officers did not make any announcements. The police dog simply showed up and bit him. He pushed the dog away, held his head and hands out from under the van, and looked up at the officers. He expected them to call off the dog, but they did not. Instead, they let it keep biting him for 30 to 60 seconds before they finally pulled him out. They handcuffed him, then started punching him, even though he was not resisting.
At the hospital, defendant told an officer that one of his chains was missing. That was why, when another officer removed his remaining chain, defendant said it was the wrong one, and why, when Officer Perkins asked where the other chain was, he said it was on the ground. When he realized that she thought he meant Sanchez's chain, he said, "[Y]ou're mixing my words up. I don't want to talk to you no more." The officers kept defendant's remaining chain and never booked it into evidence.
II
THE ADMISSION OF DEFENDANT'S STATEMENTS
AFTER HE REQUESTED A LAWYER
Defendant contends that his statements that the chain he was wearing was the "wrong chain" and that "the other chain" was "on the ground" were inadmissible under Miranda v. Arizona (1966) 384 U.S. 436, 478-479 (Miranda).
A. Additional Factual and Procedural Background.
There was some off-the-record discussion of the application of Miranda to defendant's statements. Once the discussion went on the record, the prosecutor conceded that "the defendant, at the scene, sa[id], I want a lawyer."
This statement had been captured on a recording, along with background noise. Defense counsel agreed that there was no evidence that any of the officers actually heard the statement "amongst all the commotion going on."
The trial court tentatively indicated that, because defendant had previously asked for a lawyer, his Mirandized statements were inadmissible.
The prosecutor disagreed. He argued that defendant initiated a discussion with the police by spontaneously stating, "That's the wrong chain," and therefore Officer Perkins could properly Mirandize him and question him.
The trial court reserved ruling pending an Evidence Code section 402 hearing.
At that hearing, the only witness was Officer Perkins. She testified that, when defendant was at the hospital, he was angry and calling her names. She wanted to determine whether the chain he was wearing belonged to the victim, so another officer removed it. As it was being removed, defendant said "it was the wrong chain." She took that as "a peace offering," and as indicating that he wanted to talk, so she Mirandized him. He then said again that "it was the wrong chain." She asked "where the other chain was," and he said, "[I]t's on the ground."
The trial court ruled that defendant's statements were admissible because defendant had "initiated a discussion."
B. Discussion.
"[W]hen an individual is taken into custody . . . [h]e must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires." (Miranda v. Arizona, supra, 384 U.S. at pp. 478-479.)
"If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. . . . If the individual states that he wants an attorney, the interrogation must cease until an attorney is present." (Miranda v. Arizona, supra, 384 U.S. at pp. 473-474, fn. omitted.)
Under Edwards v. Arizona (1981) 451 U.S. 477, "when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. . . . [He] is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." (Id. at pp. 484-485, fn. omitted.)
"The Edwards rule is 'designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights,' [citation]. It does this by presuming his postassertion statements to be involuntary, 'even where the suspect executes a waiver and his statements would be considered voluntary under traditional standards.' [Citation.]" (Montejo v. Louisiana (2009) 556 U.S. 778, 787.)
"'An accused "initiates"' further communication[] when his words or conduct 'can be "fairly said to represent a desire" on his part "to open up a more generalized discussion relating directly or indirectly to the investigation."' [Citations.]" (People v. Molano (2019) 7 Cal.5th 620, 656; see also Oregon v. Bradshaw (1983) 462 U.S. 1039, 1045 [plur. opn.].)
"'In the event he does in fact "initiate"' such further communication, exchanges, or conversations, 'the police may commence interrogation if he validly waives his [Miranda] rights.' [Citations.]" (People v. Waidla (2000) 22 Cal.4th 690, 727-728.) "If instead the police reinitiate discussion without a break in custody, any further statements by the defendant are presumed involuntary and rendered inadmissible. [Citations.]" (People v. Gamache (2010) 48 Cal.4th 347, 384-385.)
"When reviewing a Miranda ruling, 'we accept the trial court's determination of disputed facts if supported by substantial evidence, but we independently decide whether the challenged statements were obtained in violation of Miranda.' [Citations.]" (People v. Molano, supra, 7 Cal.5th at p. 633.) "The finding of 'initiation' in and of itself is 'reviewed for substantial evidence' as the resolution of a 'mixed question' of law and fact that is 'predominantly factual.' [Citation.]" (People v. Waidla, supra, 22 Cal.4th at p. 731.)
It seems clear that defendant initiated further communication. He was the first to speak. Defendant argues, however, that removing the chain was the equivalent of interrogation.
"[T]he term 'interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." (Rhode Island v. Innis (1980) 446 U.S. 291, 301.) Defendant argues that the removal of the chain implicitly accused him of a crime, and therefore it was reasonably likely to provoke an incriminating response. We think this proves too much. Under this reasoning, any number of the incidents of arrest would be deemed to be interrogation — e.g., handcuffing a suspect, patting a suspect down, or placing a suspect in a patrol car. So would appropriate investigative steps, such as fingerprinting a suspect or swabbing his or her hands for firearm residue. From the suspect's point of view, however, these procedures are no more accusatory than the fact of arrest itself. For this reason, Innis carved out "words or actions normally attendant to arrest and custody" from its definition of interrogation.
"A number of courts have held that, if the police confront a suspect with incriminating evidence against him for the purpose of eliciting an incriminating response, the conduct constitutes an interrogation under Miranda and Innis. A number of courts also have held that, if the police inform a suspect of the evidence against him as an ordinary incident of arrest and custody, the conduct does not constitute interrogation. Several courts have expressed doubts as to whether the latter rule is consistent with Innis. We are persuaded, however, that a per se rule that confronting a suspect with incriminating evidence constitutes interrogation is not required under Innis. Rather, whether such conduct constituted an interrogation depends on whether it was a normal incident of arrest and custody or, instead, was [likely] to elicit an incriminating response. [Citations.]" (State v. Grant (2008) 286 Conn. 499, 525-527 [944 A.2d 947, 966]; accord, People v. Celestine (1992) 9 Cal.App.4th 1370, 1374 ["'words or actions normally attendant to arrest'" are "outside the definition of 'interrogation.'"].)
Grant actually used the word "intended." We have replaced this with the word "likely," because it appears to be a slip of the pen. Elsewhere, Grant recognized that Innis focuses on whether the conduct was likely to elicit an incriminating response, regardless of the officer's intent. (State v. Grant, supra, 286 Conn. at pp. 525-526.)
Defendant relies on People v. Ferro (1984) 63 N.Y.2d 316 . There, a woman was murdered and furs were stolen from her home. The defendant was given Miranda warnings but invoked his right to remain silent. He was placed in a holding cell. Officers then silently placed the stolen furs (which they had recovered from a coperpetrator) immediately outside the cell. The defendant responded by saying, "'Hey, I got to talk to you." (Id. at p. 320.) The court held that "there [was] no other inference that could be drawn from the undisputed facts than that the police should have known that defendant was reasonably likely to respond to the placing of the furs before him by making a statement . . . ." (Id. at p. 321; see also id. at pp. 322-324.)
Ferro is obviously distinguishable. There, confronting the defendant with the stolen furs had no legitimate investigative purpose other than to provoke a confession. (See also People v. Sims (1993) 5 Cal.4th 405, 443 ["confronting defendant with the evidence linking him to the crimes[] was nonresponsive to []his inquiry and served no legitimate purpose incident to defendant's arrest or custody"].) Here, by contrast, removing the chain had a legitimate investigative purpose, and the police could reasonably assume that defendant would see it as such. Indeed, defendant concedes that the police could have removed the chain when he was booked, and that this would not constitute interrogation. But we see no meaningful difference.
In his reply brief, defendant argues that what is critical is that Officer Perkins went to the hospital to talk to him — "She wanted to question him, even though he'd already asserted his right to counsel." The definition of "interrogation," however, "focuses primarily upon the perceptions of the suspect, rather than the intent of the police." (Rhode Island v. Innis, supra, 446 U.S. at p. 301.) In other words, "the test is objective . . . . [Citation.]" (People v. Elizalde (2015) 61 Cal.4th 523, 537.) And nothing about the circumstances indicates that, objectively, the police should have known their conduct was reasonably likely to elicit an incriminating response from defendant.
We repeat, however, that there is no evidence that she knew he had asserted his right to counsel. (See fn. 6, ante.)
Defendant does not dispute that "That's the wrong chain" could be fairly said to represent a desire for a discussion relating to the investigation. We therefore conclude that the trial court did not err by admitting that statement, as well as defendant's additional statements after he was Mirandized.
III
EVIDENCE THAT DEFENDANT PROFANELY INSULTED A FEMALE OFFICER
Defendant contends that defense counsel rendered ineffective assistance by failing to object to a recording in which he called Officer Perkins a "bitch."
A. Additional Factual and Procedural Background.
On direct, defendant testified: "I kept trying to talk to the police, but they just would not talk to me . . . . They was, like, nodding me off, like, you know, shut up, you know."
On cross, defendant testified again that he tried to talk to the police. The prosecutor then played a recording of the following conversation between defendant and Officer Perkins:
"DEFENDANT: Everything is gonna get reported, extra handcuffs[.]
"PERKINS: Oh, [s]hush, just stop[.]
"DEFENDANT: All[ ]right, [b]itch, watch[.]
"PERKINS: You don't wanna get dog bit, don't steal from people, don't rob people, (un[inte]lligible)[.]
"DEFENDANT: Shut up, [b]itch, [b]itch, [b]itch, [b]itch[.]
"PERKINS: I take that[.]
"DEFENDANT: Yeah, [b]itch[.]"
Defense counsel did not object.
In closing, the prosecutor argued: "[T]he defendant you saw on the stand, that's not really him. . . . That was an act to gain your sympathy. And I think it was obvious when I played that [conversation] because that's the real defendant. That's the type of person who assaults, who preys on a person who can't really defend himself, and then tries to get away with it." Once again, defense counsel did not object.
B. Discussion.
Defendant argues that defense counsel should have objected to the conversation as improper character evidence, irrelevant, and more prejudicial than probative.
"'"To establish ineffective assistance of counsel, a defendant must show that (1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the defendant. [Citation.] 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citation.]"' [Citation.]" (People v. Rices (2017) 4 Cal.5th 49, 80.)
"[Whether or not to object to evidence at trial is largely a tactical question for counsel, and a case in which the mere failure to object would rise to such a level as to implicate one's state and federal constitutional right to the effective assistance of counsel would be an unusual one. [Citation.] An attorney may well have a reasonable tactical reason for declining to object, and '"[i]f the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation."' [Citation.]" (People v. Seumanu (2015) 61 Cal.4th 1293, 1312-1313.)
The People argue, among other things, that the evidence was relevant to show defendant's "combative nature," which in turn was relevant to corroborate the evidence that he had earlier resisted arrest. If offered for that purpose, however, it was improper character evidence. (Evid. Code, § 1101, subd. (a).)
It is arguable that, for the same reason, the prosecutor's argument that the evidence showed "the real defendant" was misconduct. (See People v. Lucero (2000) 23 Cal.4th 692, 718-719; see also People v. Trinh (2014) 59 Cal.4th 216, 248 ["'"It is, of course, misconduct for a prosecutor to 'intentionally elicit inadmissible testimony.' [Citations.]" [Citation.]"].) If so, however, defense counsel forfeited the error by failing to object; defendant has not argued that this was ineffective assistance.
Nevertheless, the evidence was relevant for another purpose: to impeach defendant by contradicting his testimony that he tried to talk to the police. Once a defendant chooses to testify, his or her credibility is at issue and subject to impeachment. (People v. Hall (2018) 23 Cal.App.5th 576, 592.) Indeed, the prosecutor evidently had impeachment in mind, because he played the recording immediately after getting defendant to reaffirm his direct testimony that he tried to talk to the police.
Defense counsel could still have objected to the evidence under Evidence Code section 352, but we cannot say there could be no satisfactory explanation for her failure to do so. Defendant's testimony was calculated to appeal to passion and prejudice surrounding interactions between black men and the police. He claimed he ran because Officer Perkins charged at him aggressively, with gun drawn, leading him to believe she was going to shoot him. He claimed the police sent in a dog without any warning. He claimed he tried to surrender, but they let the dog go on biting him. He claimed that, when he was handcuffed and unresisting, the officers punched him out. He also claimed they stole his remaining chain. Against this background, evidence showing that defendant was lying about his encounter with the police was significantly probative. Thus, defense counsel could have concluded that the trial court was unlikely to sustain an objection under Evidence Code section 352. For the same reason, defendant cannot show prejudice — i.e., that the trial court would in fact have done so.
IV
PROSECUTORIAL MISSTATEMENT OF THE REASONABLE DOUBT
STANDARD
Defendant contends that the prosecutor committed misconduct by misstating the reasonable doubt standard in closing argument. Alternatively, he contends that his counsel rendered ineffective assistance by failing to object to this misconduct.
A. Additional Factual and Procedural Background.
In his rebuttal closing argument, the prosecutor said: "Reasonable doubt is not an insurmountable standard. It's a standard used in criminal trials every day in this state, across the nation. It's the same standard for driving without a license as it is for capital murder, and people are convicted under this standard every day. . . ."
He also said: "[D]efense [counsel] doesn't distinguish between what is possible versus reasonable. Anything is possible, . . . but use your common sense. What does it mean? It means that the prosecution's interpretation is reasonable, and the defendant's interpretation is unreasonable.
"So, in order to find the defendant not guilty on Count 1, you must believe that the defendant did not rob Fausto of his necklace and cash, or you must believe that he politely tapped Fausto on the shoulder to ask him for directions, or you must believe that Fausto's property wasn't taken by force or fear, that, actually, he said, 'Here it is. Go ahead. Take it. It's yours.' Or you must believe that . . . Fausto tripped out . . . . You must believe that the 61- or 62-year-old handicapped individual who suffers kidney failure . . . turned around, faced the defendant, . . . and wanted to get physical with him. Or you must believe that Fausto's property wasn't taken against his will, or that defendant didn't intend to deprive him of his chain and his cash, that . . . he meant to give it back. Or you must believe that the defendant tossed his own necklace away . . . .
"In order to find him not guilty on Count 2, you have to believe that he did not attempt to choke, kick, or gouge the eyes of Claud[e]. . . .
"And in order to find him not guilty on Count 3, you must believe that he didn't run from Corporal Perkins when she ordered him to stop. You must believe that he did not flee the scene. You must believe that defendant did not hide in the backyard of a house, or you must believe that he complied with orders to surrender . . . .
"Is this possible? Defense theory is yes. Is any of that reasonable? Absolutely not.
"What is reasonable is that the defendant robbed Fausto of his necklace and his cash. The defendant then fled the scene when Corporal Perkins attempted to contact him. They'd like you to believe that she came out full throttle, gun drawn. . . .
"What reasonable is, is that the defendant assaulted Claud[e] when he attempted to contact him. . . .
" . . . [W]hat reasonable is, is that defendant did not comply with orders from the police to stop and surrender . . . .
"What reasonable is, is that the defendant admitted to the crime of the robbery when he said that Perkins had the wrong chain, that the right one . . . was on the ground . . . .
"What reasonable is, is that defendant ran from Corporal Perkins in order to toss Fausto's property, in order to deny the robbery, and that defendant then ran and hid in a backyard, hoping to avoid detection . . . ."
Defense counsel did not object.
B. Discussion.
"As a general rule, '"[a] defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion, and on the same ground, the defendant objected to the action and also requested that the jury be admonished to disregard the perceived impropriety."' [Citation.]" (People v. Centeno (2014) 60 Cal.4th 659, 674.) Here, defense counsel forfeited the asserted misconduct by not objecting and not requesting an admonition.
We turn, then to whether the failure to object constituted ineffective assistance of counsel.
"'"[I]t is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements [citation]." [Citation.]'" (People v. Bell (2019) 7 Cal.5th 70, 111.)
"For a prosecutor's remarks to constitute misconduct, it must appear reasonably likely in the context of the whole argument and instructions that '"the jury understood or applied the complained-of comments in an improper or erroneous manner."' [Citation.]" (People v. Winbush (2017) 2 Cal.5th 402, 480.)
First, defendant argues that "people are convicted under [the beyond a reasonable doubt] standard every day" trivialized that standard. He relies on People v. Nguyen (1995) 40 Cal.App.4th 28. There, the prosecutor argued:
"'The standard is reasonable doubt. That is the standard in every single criminal case. And the jails and prisons are full, ladies and gentlemen. [¶] It's a very reachable standard that you use every day in your lives when you make important decisions, decisions about whether you want to get married, decisions that take your life at stake when you change lanes as you're driving. If you have reasonable doubt that you're going to get in a car accident, you don't change lanes.
"'So it's a standard that you apply in your life. It's a very high standard. And read that instruction, too. I won't paraphrase it because it's a very difficult instruction, but it's not an unattainable standard. It's the standard in every single criminal case.'" (People v. Nguyen, supra, 40 Cal.App.4th at p. 35.)
The appellate court held that this was misconduct because it "trivialize[d] the reasonable doubt standard." (People v. Nguyen, supra, 40 Cal.App.4th at p. 36.) It explained: "It is clear the almost reflexive decision to change lanes while driving is quite different from the reasonable doubt standard in a criminal case. The marriage example is also misleading since the decision to marry is often based on a standard far less than reasonable doubt . . . [Citations.]" (Ibid.) It concluded: "We strongly disapprove of arguments suggesting the reasonable doubt standard is used in daily life to decide such questions as whether to change lanes or marry." (Ibid.)
In other words, the problem in Nguyen was not that the prosecutor said the reasonable doubt standard was "very reachable" or that "the jails and prisons are full." Rather, it was that he equated the reasonable doubt standard to the standard for deciding to change lanes or to marry. Here, the prosecutor made only the former argument — that the reasonable doubt standard is "not . . . insurmountable" and often results in convictions. This is true, and we see nothing wrong with saying it. The prosecutor said that the reasonable doubt standard also applies in a prosecution for driving without a license, but that, too, is true; it does not water down the standard in any way. The prosecutor did not equate the reasonable doubt standard to any lower decision-making standard.
Defendant asserts that it "invite[d] the jurors to base their verdict on facts that are not in evidence." However, "'[c]ounsel may argue facts not in evidence that are common knowledge or drawn from common experiences.' [Citation.]" (People v. Mendoza (2016) 62 Cal.4th 856, 908.) That is all the prosecutor did here.
Defendant also complains that there was "no evidence about how many people are convicted every day in this country," "how many defendants are acquitted under this standard every day," or "about how many criminal convictions resulted . . . from some type of plea bargain." Nevertheless, the prosecutor's argument was valid regardless of these exact numbers. All that mattered was that many, many people are convicted at trial.
Next, defendant argues that the prosecutor's argument about "what is reasonable" erroneously suggested that the prosecution should prevail as long as its view of the facts was reasonable. This time, defendant relies on People v. Centeno, supra, 60 Cal.4th 659 and People v. Ellison (2011) 196 Cal.App.4th 1342.
In Centeno, the prosecutor argued that the jury should find the defendant guilty because the prosecution's view of the evidence was "reasonable," while the defense view was "not reasonable." (People v. Centeno, supra, 60 Cal.4th at pp. 671-672.)
The Supreme Court acknowledged: "It is permissible to argue that the jury may reject impossible or unreasonable interpretations of the evidence and to so characterize a defense theory. [Citations.] It is permissible to urge that a jury may be convinced beyond a reasonable doubt even in the face of conflicting, incomplete, or partially inaccurate accounts. [Citations.]" (People v. Centeno, supra, 60 Cal.4th at p. 672.) Nevertheless, it held that the prosecutor's argument was misconduct, for two reasons.
First, "it is error for the prosecutor to suggest that a 'reasonable' account of the evidence satisfies the prosecutor's burden of proof." (People v. Centeno, supra, 60 Cal.4th at p. 672.) "The standard of proof is a measure of the jury's level of confidence. It is not sufficient that the jury simply believe[s] that a conclusion is reasonable. It must be convinced that all necessary facts have been proven beyond a reasonable doubt. [Citation.]" (Id. at p. 672.)
Second, "[i]t is likewise error to state that 'a defendant has a duty or burden to produce evidence, or a duty or burden to prove his or her innocence.' [Citations.] . . . If the defense chooses to produce evidence, the jury must, of course, consider it as part of the complete record before it. To that end, the prosecution can surely point out that interpretations proffered by the defense are neither reasonable nor credible. Nevertheless, even if the jury rejects the defense evidence as unreasonable or unbelievable, that conclusion does not relieve or mitigate the prosecutorial burden. The prosecution cannot suggest that deficiencies in the defense case can make up for shortcomings in its own." (People v. Centeno, supra, 60 Cal.4th at p. 673.)
In Ellison, the prosecutor argued, "[Y]ou have to look at whether or not it's reasonable or unreasonable for the defendant to be innocent." (People v. Ellison, supra, 196 Cal.App.4th at p. 1351.) Referring to the reasonable doubt standard, she said: "'It's not this unattainable standard. You've got to look at what's reasonable and what's unreasonable, when you look at all the evidence.'" (Id. at p. 1352.) "'Reasonable doubt is with the evidence that you're given. . . . Is it reasonable that the defendant's innocent[?]'" (Ibid.) We held that this was prosecutorial misconduct: "[T]he prosecutor improperly attempted to lessen the People's burden of proof by arguing to the jury that the beyond-reasonable-doubt standard required the jury to determine whether defendant's innocence was reasonable." (Id. at p. 1353.)
Here, the prosecutor's argument fell afoul of these principles. He said the prosecution had met its burden of proof as long as its interpretation of the facts was reasonable: "It means that the prosecution's interpretation is reasonable, and the defendant's interpretation is unreasonable." Moreover, he said that defendant had a burden to prove his innocence: "[I]n order to find the defendant not guilty . . . , you must believe" defendant's testimony.
The People argue that "[t]he [prosecutor's] argument was directly responsive to the comments of defense counsel." Defense counsel had argued that the prosecution's theory was "not reasonable. That's just not a reasonable explanation of what happened at the time," and that defendant's testimony was "a more reasonable explanation of what happened." She had also said, "[Y]our job as jurors is to take a look and determine what's reasonable." However, the prosecutor could argue that the prosecution's theory was reasonable, as long as he did not take the next step and claim that all he had to do was show that that theory was reasonable. Even assuming defense counsel erroneously suggested that she had the burden of showing that the defense theory was reasonable, the prosecutor was not allowed to adopt that error and to capitalize on it.
The People also cite People v. Romero (2008) 44 Cal.4th 386. There, the issue was whether several instructions — each stating that if one interpretation of circumstantial evidence appeared reasonable and another interpretation unreasonable, the jury must accept the reasonable one — were erroneous. (Id. at pp. 415-416.) After upholding these instructions, the Supreme Court added: "Nor did the prosecutor's closing argument misuse the language of the instruction to lessen the prosecution's burden of proof beyond a reasonable doubt. In closing argument the prosecutor explained that the reasonable doubt standard asks jurors to 'decide what is reasonable to believe versus unreasonable to believe' and to 'accept the reasonable and reject the unreasonable.' Nothing in the prosecutor's explanation lessened the prosecution's burden of proof. The prosecution must prove the case beyond a reasonable doubt, not beyond an unreasonable doubt." (Id. at p. 416.)
In Romero, however, unlike here, the prosecutor did not suggest that all the prosecution had to do was prove that its theory was reasonable. Nor did he suggest that the defense had the burden of proving that its theory was reasonable; he merely explained that an unreasonable view of the totality of the evidence, by definition, could not raise a reasonable doubt. In any event, to the extent that Romero conflicts with Centeno, we must conclude that Romero has been implicitly overruled.
We also note that the circumstantial evidence rule stated in the instructions in Romero (see CALCRIM No. 224) is not particularly pertinent here. The bulk of the evidence consisted of eyewitness observations; thus, it was direct, not circumstantial.
We turn, then, to whether the prosecutorial misconduct was prejudicial. Due to defense counsel's failure to object, we must view the misconduct through the lens of ineffective assistance of counsel. Accordingly, defendant must show prejudice.
We perceive none. Defense counsel discussed the reasonable doubt standard in detail:
"For you to find Mr. Iles guilty . . . you would have to be convinced of all the elements proved beyond a reasonable doubt . . . ."
"Beyond a reasonable doubt is the highest standard of the law.
"In civil cases, a preponderance of the evidence is the standard. Whether someone is liable, 51 or 49 percent. . . .
"In family preservation cases where . . . [the] Department of Children['s] Services has taken children out of the home for neglect, abuse, serious accusations, the standard in that is clear and convincing. You can imagine that's a high standard.
"Even higher than that is beyond a reasonable doubt. It's not highly likely. . . . It's not probably he did it. It's an abiding conviction in the truth of the charges before you because this is a serious decision. . . . [Y]ou cannot change your mind later, right? Abiding means long[-]lasting."
Significantly, the trial court instructed the jury after closing arguments. The instructions included the standard reasonable doubt instruction. (CALCRIM No. 220.) They also included the standard instruction (CALCRIM No. 200) that: "You must follow the law as I explain it to you . . . . If you believe that the attorneys' comments on the law conflict with my instructions, you must follow my instructions." (See People v. Dalton (2019) 7 Cal.5th 166, 260 [holding prosecutor's misstatement of reasonable doubt standard not prejudicial, in part because trial court gave instructions equivalent to CALCRIM Nos. 200 and 220].)
In addition, the case against defendant was extremely strong. Admittedly, regarding Count 1 (robbery), defendant had explanations for much of the prosecution's evidence that were not wholly incredible. According to him, he merely tapped Sanchez on the shoulder; Sanchez misperceived or misremembered the encounter, possibly due to low blood sugar or medications that he was taking; the chain that Steimle saw in defendant's hand was defendant's own; defendant ran because he was afraid of the police, not due to consciousness of guilt; and defendant's broken chain must have fallen off during the chase.
What defendant did not explain, however, was what happened to Sanchez's chain and Sanchez's $80. Before the encounter, Sanchez had them; after the encounter, he did not. Defendant also did not explain how Sanchez's wallet pocket got ripped.
The defense was bolstered somewhat by the fact that the police did not find the chain or the $80, either on defendant's person or anywhere along defendant's path of travel. However, many people were in the area and could have picked them up; also, the police did not search any of the backyards along the way. Indeed, this fact cuts both ways — according to defendant, his broken chain must have fallen off, yet the police did not find that, either.
Regarding Count 3 (resisting an executive officer), defense counsel essentially conceded guilt. Defendant admitted that Officer Perkins told him to stop, but he ran. In closing, defense counsel said, "[W]ell, it's clear as day, Mr. Iles ran. We're not contesting that it delayed or obstructed the investigation. Clearly it did, right? [¶] Mr. Iles is here contesting what he didn't do, not what he did do." "Was it right that he ran? No. No."
Of course, defendant testified that he ran because Officer Perkins had drawn her gun and he was afraid she would shoot him. While an officer's use of excessive force can be a defense to a charge of resisting the officer (Smith v. City of Hemet (9th Cir. 2005) 394 F.3d 689, 695-696), defense counsel never argued that drawing the gun was excessive force. And for good reason — as a general rule, it is not excessive force for a police officer to draw a gun when attempting to detain a person suspected of a violent felony. (Foster v. City of Indio (9th Cir. 2018) 908 F.3d 1204, 1217-1218; see also People v. Ghebretensae (2013) 222 Cal.App.4th 741, 761.) --------
Finally, the jury acquitted defendant on Count 2 (assault on a police dog), despite eyewitness testimony that he punched, kicked, and choked Claude, apparently because Claude had no visible injuries. This demonstrates that it conscientiously resolved any reasonable doubt about guilt in favor of defendant.
We therefore conclude that defense counsel did not render constitutionally ineffective assistance by failing to object when the prosecutor misstated the reasonable doubt standard.
V
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. RAPHAEL
J.