Opinion
C042041.
7-29-2003
THE PEOPLE, Plaintiff and Respondent, v. TONY ADRIAN JEFFERSON, Defendant and Appellant.
A jury convicted defendant Tony Adrian Jefferson of first degree burglary (Pen. Code, §§ 459, 460) and receiving stolen property (§ 496, subd. (a)). He admitted two prior strikes under the three strikes law (§§ 667, subds. (b)-(i), 1170.12). The trial court sentenced him to state prison for 25 years to life.
Undesignated statutory references are to the Penal Code.
On appeal, defendant claims the trial court erred by overruling his objection to comments by the prosecutor that allegedly lessened the Peoples burden of proof. We disagree and affirm the judgment.
FACTUAL BACKGROUND
A. Underlying Facts
A brief summary of the facts will suffice for an understanding of the issue presented. At approximately 10:30 one evening, 12-year-old Breanna T. and her older sister were in the living room of their home. Their brother, Calvin, was at work, and his girlfriend, Lucy, was in her bedroom with their baby. The bedroom door was cracked open. Breannas other brother, Joshua, had left to pick up Calvin.
At one point, Breanna left the living room to answer her sisters phone. She saw defendant come out of Joshuas bedroom and put a towel over his face. Defendant then ran into the room Breanna shared with her mother, where there was an open window. Breanna later discovered that her backpack and gym bag had been disturbed and that her gym shirt was outside on the fence. Clothes and papers were strewn around Joshuas room, and a cell phone he had been using was missing.
Police found defendant a few blocks away at approximately 11:10 p.m. Breanna positively identified him, and police found the cell phone taken from Joshuas room in his possession. Defendant claimed he had been at his apartment since 4:30 p.m. and the phone must have been on the ground in the area where he was detained.
Defendant testified in his own defense and was impeached with several prior felony convictions. Defendant claimed he had procured marijuana for Lucy for $ 10, and she invited him to her house to roll it into joints and smoke it. They went there early in the evening, and Lucy told defendant he would have to sneak out through a window if her family or little sister came home. While they were at the house, Lucy and defendant talked and watched television. A baby was present in the room but was quiet. At one point, defendant commented on a commercial for a blue fluorescent cell phone, and Lucy brought one into the room. A short time later, she had him sneak out through the window because her "little sister" was there. Defendant still had the cell phone in his hand.
Lucy said she did not know defendant at all.
B.Prosecutors Argument
The issue on appeal concerns remarks by the prosecutor that occurred in the following context. First, the prosecutor reviewed the evidence against defendant and commented, "Okay. So thats what weve got going in this case. You know that that evidence is going to come before you if youre the defendant. So you have got no way of fooling a jury with entry. [P] He cant beat the identification. He also cant beat the possession." The prosecutor noted there were two elements "you," i.e. defendant, could focus on: "intent and knowledge; knowing that it was stolen and intending to steal something when you went in there." The prosecutor commented, "How can you beat that? How can you beat that? You have to come up with a story thats maybe got—a little sexy. You know, it is got some kind of little fringe elements that are involved. Something maybe thats illegal." The prosecutor proceeded to characterize defendants account as "ridiculous."
The prosecutor subsequently made the following remarks: "I guess he would have us believe that Lucy then, already having a 40-year-old man twice—pretty close to twice her age smoking marijuana in the room with her baby while her boyfriend is away in her mothers home, now is going to take her other brothers phone and give it to him? [P] Come on. I mean— [P] So again, understand. The reason that the defendant has to do that is because hes got to beat element number two. He has to come up with some type of an innocent explanation for why he has the phone." Defense counsel interjected: "Your Honor, this is the second time counsel has made that argument. My client has no duty to beat any element. It is the Peoples burden to prove the elements. Hes twice made that point, and Im objecting at this point." The court stated, "I understand. Im going to overrule the objection."
The prosecutor later commented that the presumption of innocence applied until the People met their burden of proving defendant was guilty. The prosecutor explained, "This is the objection [defense counsel] made a moment ago. And hes absolutely right. The burden of proof in all criminal cases is on the People. [P] The People have to prove every element of every offense." The prosecutor further emphasized that he had to prove the charges, but noted that the defendant could also adduce evidence and had in fact done so in this case. The prosecutor then commented, "And you cant say, Well, it is totally the Peoples burden, lets just disregard the evidence that you put on. But once the evidence is produced by the defense, its to be judged and evaluated with the same standards [as] with any other evidence."
In his own argument, defense counsel also emphasized the Peoples "burden of proving each element beyond a reasonable doubt."
DISCUSSION
According to defendant, the prosecutors remarks indicated he "had to beat the elements of the crimes" in contravention of his due process right to have the People prove all elements beyond a reasonable doubt. Defendant analogizes to cases involving erroneous comments by the trial court and instructional error concerning the burden of proof, and he claims such error warrants automatic reversal. Defendants arguments are not persuasive.
Preliminarily, the People correctly observe that remarks by the prosecutor are not the same as jury instructions or related comments by the trial court. "The courts instructions are determinative in their statement of law, and we presume the jury treated the courts instructions as statements of law, and the prosecutors comments as words spoken by an advocate in an attempt to persuade." (People v. Sanchez (1995) 12 Cal.4th 1, 70, 906 P.2d 1129; accord Boyde v. California (1990) 494 U.S. 370, 384-385, 108 L. Ed. 2d 316, 110 S. Ct. 1190.) "This is not to say that prosecutorial misrepresentations may never have a decisive effect on the jury, but only that they are not to be judged as having the same force as an instruction from the court." (Boyde v. California, supra, 494 U.S. at pp. 384-385.)
In fact, here the trial court gave the jury the following instruction at the beginning of the trial: "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.) Defendant nevertheless argues that the jury could have been confused based on CALJIC No. 1.02, which applies in circumstances in which an objection is sustained. But overruling an objection does not implicate that instruction, and here the court did so in a summary fashion without comment on the law. Accordingly, defendants argument must be considered in the traditional context of prosecutorial misconduct.
As read to the jury, the instruction under CALJIC No. 1.02 provided: "Statements made by the attorneys during the trial are not evidence. However, if the attorneys stipulate or agree to a fact, you must regard that fact as proven. [P] If an objection to a question is sustained, do not guess what the answer might have been. Do not speculate as to the reasons for the objection. [P] Do not assume to be true any insinuation suggested by a question asked a witness. [P] A question is not evidence and [may be] considered only as it helps you to understand the answer. [P] Do not consider for any purpose any offer of evidence that was rejected or any evidence that is stricken by the Court. [P] Treat it as though you had never heard of it."
"The applicable federal and state standards regarding prosecutorial misconduct are well established. "A prosecutors . . . 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."" (People v. Samayoa (1997) 15 Cal.4th 795, 841, 938 P.2d 2.) "We review prosecutorial remarks to determine whether there is a reasonable likelihood that the jury misconstrued or misapplied the prosecutors remarks." (People v. Sanders (1995) 11 Cal.4th 475, 526, 905 P.2d 420.)
Here, the prosecutors remarks do not reasonably imply a lesser burden of proof. In context, the prosecutor was simply suggesting that defendant was constrained by the evidence showing his presence in the home and possession of the cell phone and arguing that defendant had contrived a story in an attempt to circumvent the weight of the evidence and to "beat" particular elements of the charges. It is not prejudicial misconduct for the prosecutor to argue he or she has proven the case and that, having done so, there was "no more presumption of innocence." (People v. Goldberg (1984) 161 Cal. App. 3d 170, 189-190, 207 Cal. Rptr. 431.) Further, "where the prosecution evidence points to guilt and is inconsistent with the defense it is not misconduct to argue that the witness lied." (People v. Reyes (1974) 12 Cal.3d 486, 505, 116 Cal. Rptr. 217, 526 P.2d 225.)
Moreover, the prosecutor clarified and explained that the People retained the burden of proof but that it did not preclude him from commenting on the evidence actually adduced by the defense. Defense counsel also reiterated that the prosecutor had the burden of proof. And the jury was subsequently instructed in the presumption of innocence and the Peoples burden of proof. (CALJIC No. 2.90.) Under these circumstances, the jury could not have been misled concerning the law. (Cf. People v. Anderson (1990) 52 Cal.3d 453, 472, 276 Cal. Rptr. 356, 801 P.2d 1107.)
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P.J., ROBIE, J.