Opinion
E067008
06-15-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSE LOPEZ MONDRAGON, Defendant and Appellant.
Jason L. Jones, 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, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FVI1503016) OPINION APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge. Affirmed. Jason L. Jones, 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, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant, Jose Lopez Mondragon, appeals from the judgment entered following a jury conviction for forgery relating to a state warrant (check) exceeding $950. (Pen. Code, §§ 476, 473, subd. (a).) The jury also found true that defendant had a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and a prior prison term (§ 667.5, subd. (b)). The trial court sentenced defendant to seven years in state prison.
Unless otherwise noted, all statutory references are to the Penal Code.
Defendant contends there was insufficient evidence to support his forgery conviction; the trial court erred in instructing the jury on the valuation element of felony forgery; the trial court erred in instructing on defendant's mistake-of-fact defense; the court erred in excluding his out-of-court statements that he believed the check was valid and he was going to sue Walmart and the police; the prosecutor improperly shifted the burden of proof during closing argument; and as a result of cumulative error, defendant was deprived of a fair trial.
We conclude that although the trial court committed instructional error and the prosecutor made improper statements regarding the burden of proof, these errors were not prejudicial, individually or cumulatively. We reject the remainder of defendant's objections and affirm the judgment.
II
FACTS
On May 27, 2015, a Walmart customer service manager received a check that raised "some red flags." The customer service manager took the check to a Walmart loss prevention officer, along with defendant's valid identification. The loss prevention officer also observed the "red flags" or irregularities on the check. Walmart trains its employees to notice signs or characteristics indicating a check might be fraudulent.
The loss prevention officer testified that the irregularities on the check included font irregularities, erasures, and use of a bolder font for defendant's name, "Mondragon," and the word, "Trucking." The payee name on the check was "JL Mondragon Trucking." The loss prevention officer further testified that he saw the person who brought the check into the Walmart store. The customer service manager told the loss prevention officer who the individual was. The loss prevention officer identified defendant at trial as that person.
The loss prevention officer contacted law enforcement regarding the suspicious check. Defendant remained at the store until Deputy Bibeau arrived. The check was not cashed. Deputy Bibeau testified he received the check from the loss prevention officer, along with the identification collected with the check. Deputy Bibeau observed the mismatched printing in the payee area of the check, which Deputy Bibeau testified "stuck out like a sore thumb." Deputy Bibeau contacted an operational manager at the California State Controller's office (SCO employee), to verify whether the check was genuine or fraudulent. The SCO employee testified that she determined that the check, in the amount of $5,216.71, was a valid check, with the exception of the payee name, JL Mondragon Trucking, and address, which were in a different font. The SCO employee also determined that the payee written on the check was not the correct payee. Therefore, the check was not a valid check.
III
SUBSTANTIAL EVIDENCE OF FORGERY
Defendant contends there was insufficient evidence to support his forgery conviction because there was no evidence defendant actually attempted to pass the altered check at Walmart.
A. Substantial Evidence Standard of Review
"In reviewing a sufficiency of evidence challenge, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." (People v. Gonzalez (2012) 54 Cal.4th 643, 653.) "In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts." (People v. Young (2005) 34 Cal.4th 1149, 1181.) Even if a contrary finding can be reconciled with the evidence, this court is bound to accept the jury's finding if supported by the evidence. (People v. Escobar (1992) 3 Cal.4th 740, 750.) In applying the same standard to a conviction based primarily on circumstantial evidence, we uphold the jury's verdict if reasonably justified by the circumstances, even if a contrary finding might also reasonably be reconciled with the circumstances. (People v. Ceja (1993) 4 Cal.4th 1134, 1138; People v. Bean (1988) 46 Cal.3d 919, 932.)
B. Law Applicable to Forgery
Section 476 criminalizes the conduct of anyone "[1] who makes, passes, utters, or publishes, with intent to defraud any other person, or [2] who, with the like intent, attempts to pass, utter, or publish, or [3] who has in his or her possession, with like intent to utter, pass, or publish," any document the statute enumerates, which includes checks. Section 473 provides that under most circumstances forgery is a misdemeanor if the value of the check does not exceed $950. Otherwise, it is a felony. (§ 473.)
The trial court instructed the jury on forgery with modified CALCRIM No. 1935, as follows: "The defendant is charged with attempting to pass or use a false or altered check or other legal writing for the payment of money. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] "1. The defendant attempted to pass or use a false or altered check or other legal writing for the payment of money; [¶] 2. The defendant knew that the document was false or altered; [¶] AND [¶] 3. When the defendant attempted to pass or use the document, he intended to defraud." The court further instructed the jury on the element of intent as follows: "Someone intends to defraud if he or she intends to deceive another person either to cause a loss of money or to cause damage to a legal, financial or property right."
The attempt to pass or use an altered check occurs when the defendant puts it into circulation or offers to do so. (People v. Harris (1974) 39 Cal.App.3d 965, 970.) Possession of a forged instrument is evidence of forgery against the possessor. (People v. Ruiz (1951) 103 Cal.App.2d 146, 149 ["Merely presenting a forged check for payment constitutes an uttering."].)
C. Discussion
Defendant argues there was no evidence that he offered the check to anyone at Walmart. There was only testimony that a Walmart customer service manager brought the check to the attention of the loss prevention officer noting that the check raised some red flags. The customer service manager also stated who brought the check into the store. Defendant maintains there was no evidence as to how the customer service manager obtained the check or that defendant presented the check to a Walmart employee. Defendant also argues there was no evidence defendant attempted to cash the check at Walmart or attempted to purchase anything with the check. Defendant therefore concludes that it would have been improper for the jury to speculate that defendant presented the check to the customer service manager.
We conclude there was ample evidence to support the jury's findings that defendant brought the check into the Walmart store and handed it to the customer service manager with the intent of passing it. Such evidence included the loss prevention officer's testimony that when the customer service manager noticed irregularities in the check she showed the loss prevention officer the check along with defendant's identification collected with the check. The loss prevention officer also testified he was told defendant had brought the check into the store. The jury thus could reasonably infer from this evidence that defendant brought the altered check into the store and presented the check, along with his identification, to the customer service manager, with the intent to pass or use the altered check at Walmart.
As to the evidence the check was fraudulent, the loss prevention officer, the customer service manager, and the investigating officer all noticed obvious irregularities in the check, which they believed indicated the check was fraudulent. In addition, the SCO employee verified the check was invalid because the name of the payee had been altered.
Viewing the evidence in a manner most favorable to the judgment, we conclude the evidence was sufficient to support an inference that defendant took the check into the Walmart store and presented it to a Walmart employee, with the intent to pass or use the altered check for the payment of money. Such inference amounted to more than mere speculation. (People v. Raley (1992) 2 Cal.4th 870, 891.)
IV
FAILURE TO INSTRUCT ON THE VALUE OF THE CHECK
Defendant contends the trial court committed reversible error by not instructing the jury that a felony forgery conviction requires a finding that the check's fair market value exceeds $950. We agree there was error but conclude it was harmless.
The crime of forgery is defined in section 476. The punishment for forgery is stated in section 473, which differentiates between misdemeanor and felony forgery. Under subdivision (b) of section 473, forgery is a misdemeanor if the amount of the forged item does not exceed $950. Defendant was charged with felony forgery based on a check that was a state warrant in the amount of $5,216.71. The trial court did not instruct the jury that in order to find defendant guilty of felony forgery, the jury was required to find that the value of the altered check exceeded $950. But this omission was harmless. (Neder v. United States (1999) 527 U.S. 1, 17-18 (Neder).)
An instruction must be given only if it is supported by substantial evidence. Instructions on unsupported theories should not be given to the jury. (People v. Marshall (1997) 15 Cal.4th 1, 39-40; People v. Barker (2001) 91 Cal.App.4th 1166, 1172.) When a trial court fails to instruct the jury on an essential element of the charged offense, the Chapman harmless error test applies. (Neder, supra, 527 U.S. at p. 4; People v. Mil (2012) 53 Cal.4th 400, 409.) Under Chapman, the test is, "[i]s it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?" (Neder, supra, at p. 18.) "[W]here a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless." (Id. at p. 17.)
Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).
Here, any error in not instructing on the value of the forged check "did not contribute to the verdict obtained." (Chapman, supra, 386 U.S. at p. 24.) The face value of the check was undisputed. The check was written in an amount exceeding $950. The face value of the check is $5,216.71. Defendant acknowledges that it was undisputed that the face value of the check exceeded $950 but, citing People v. Lowery (2017) 8 Cal.App.5th 533, review granted April 19, 2017, S240615, he argues that the face value was not necessarily the actual value. Defendant notes that the issue of whether an uncashed forged check is worth more than the intrinsic value of the paper it is printed on is being considered by the California Supreme Court in People v. Franco (2016) 245 Cal.App.4th 679, review granted June 15, 2016, S233973.
Lowery is a Proposition 47 case, in which the court held that "the term 'value' in Penal Code section 473 refers to the actual monetary worth of the check, not the amount for which it was written. While the written value of a forged check may be substantial evidence of its monetary worth, a defendant may be able to show an uncashed check was worth less than its written value—e.g., by presenting evidence that the check was unlikely to be cashed." (People v. Lowery, supra, 8 Cal.App.5th at p. 536.) On April 19, 2017, the California Supreme Court granted review of Lowery and ordered that further action in the case was "deferred pending consideration and disposition of a related issue in People v. Franco, S233973 (see Cal. Rules of Court, rule 8.512(d)(2)), or pending further order of the court." (People v. Lowery (2017) Cal.Lexis 2696.) Our high court has not yet decided Franco.
"A person who has completed his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under this act had this been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors." (§ 1170.18, subd. (f).)
Lowery is distinguishable. The instant case does not involve Proposition 47. More importantly, the value of the check was not disputed. There was no evidence or argument presented that the check value was less than its face value. Defendant nevertheless argues the jury could have found the check value was less than its face value because it was obvious that it had been altered and therefore had little, if any, intrinsic value. However, defendant forfeited this argument by not raising it in the trial court, and there was no evidence presented showing what the value of the check was apart from the face value of $5,216.71. Furthermore, defendant did not request instruction on the lesser offense of misdemeanor forgery and it was not given sua sponte most likely because it was not supported by the evidence.
Also, the fact that defendant presented the check at Walmart with his identification demonstrates that he intended to cash it for the amount of the check and therefore believed it had a value exceeding $950, even if fraudulent. In addition, contrary to defendant's argument that the check had little, if any, value because it was obvious it had been forged, defendant argues in his appellant's opening brief that his primary defense was that he lacked the requisite intent to defraud because he believed the check was a genuine check.
The court instructed the jury that felony forgery required a finding that the check exceeded $950, a fact that was undisputed. The court told the jury during "The Statement of the Offense" that defendant was charged with the crime of forgery relating to a check exceeding $950 in value in violation of section 476 and section 473, subdivision (a). The court also told the jury it must either find defendant guilty of forgery involving a check exceeding $950 or find him not guilty of forgery. Misdemeanor forgery was not an option.
While the trial court omitted an instruction requiring the jury to make a finding on whether the value of the check exceeded $950, the jury implicitly made such a finding by finding defendant guilty of felony forgery. The verdict form stated the valuation element requiring the jury to find the check exceeded $950 in value. The verdict form reads: "We, the jury . . . find the defendant, GUILTY of the crime of Forgery Relating to a Bill, Note or Check Exceeding $950 in Value as charged in Count 1." The record reflects that any omission in instructing on the value of the check was cured by other instructions and statements the court made to the jury. "'"[T]he absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole."'" (People v. Delgado (2017) 2 Cal.5th 544, 574.)
The jury's finding that defendant was guilty of forgery demonstrates that even if the court had instructed the jury on valuation of the check it would not have made any difference in the outcome. The value "element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error." (Neder, supra, 527 U.S. at pp. 4, 17.) Having reviewed the entire record, we conclude that any deficiency in instruction on valuation of the check was therefore harmless. (Id. at p. 4; Chapman, supra, 386 U.S. at p. 24.)
V
INSTRUCTION ON THE MISTAKE OF FACT DEFENSE
Defendant contends the trial court committed reversible error by instructing the jury on his mistake-of-fact defense. Defendant argues the court erred in telling the jury the mistake-of-fact defense required a finding that defendant's mistake was reasonable. We agree the instruction was incorrect but conclude it was not prejudicial error.
A. CALCRIM No. 3406
The standard jury instruction on the mistake-of-fact defense, CALCRIM No. 3406 provides: "The defendant is not guilty of ___ < insert crime[s] > if (he/she) did not have the intent or mental state required to commit the crime because (he/she) [reasonably] did not know a fact or [reasonably and] mistakenly believed a fact. [¶] If the defendant's conduct would have been lawful under the facts as (he/she) [reasonably] believed them to be, (he/she) did not commit ___ < insert crime[s] >. [¶] If you find that the defendant believed that ___ <insert alleged mistaken fact[s] > [and if you find that belief was reasonable], (he/she) did not have the specific intent or mental state required for ___ < insert crime[s] >. [¶] If you have a reasonable doubt about whether the defendant had the specific intent or mental state required for ___ < insert crime[s] >, you must find (him/her) not guilty of (that crime/those crimes)." (Some italics in original, some italics added.)
The bench notes for CALCRIM No. 3406 instruct: "If the defendant is charged with a general intent crime, the trial court must instruct with the bracketed language requiring that defendant's belief be both actual and reasonable. [¶] If the mental state element at issue is either specific criminal intent or knowledge, do not use the bracketed language requiring the belief to be reasonable." "For general intent crimes, the defendant's mistaken belief must be both actual and reasonable, but if the mental state of the crime is a specific intent or knowledge, then the mistaken belief must only be actual." (People v. Lawson (2013) 215 Cal.App.4th 108, 115.)
Here, the instruction given to the jury included the bracketed, reasonable mistake language. This bracketed language should not have been used because forgery is a specific intent crime. Mistake of fact need not be objectively reasonable for the defense to apply. (People v. Russell (2006) 144 Cal.App.4th 1415, 1425-1426.) This is because, regardless of whether the mistake is reasonable, the mistake negates the specific intent. (Id. at p. 1425.)
B. Invited Error
The People argue on appeal that any instructional error on the mistake-of-fact defense was invited error. During a discussion of the jury instructions, the trial court noted that defense counsel requested the mistake-of-fact instruction (CALCRIM No. 3406). The court further stated that the court modified the form instruction slightly, and asked if defense counsel had any comments on it. Defense counsel did not object to the instruction, and then commented that in accordance with the prosecutor's request, she had removed from her slide any mention of the degrees of forgery.
"The doctrine of invited error bars a defendant from challenging an instruction given by the trial court when the defendant has made a 'conscious and deliberate tactical choice' to 'request' the instruction. [Citation.] [Citations.]" (People v. Lucero (2000) 23 Cal.4th 692, 723.) Here, defendant requested CALCRIM No. 3406 but the trial court modified the requested instruction. The Lucero court noted that case law does not address "whether a defendant's approval of a court's instruction, as occurred here, is equivalent to a request." (Lucero, supra, at p. 724.) But we need not decide whether the doctrine of invited or forfeiture error bars defendant's challenge, because the error in the mistake-of-fact instruction was harmless error. (Neder, supra, 527 U.S. at p. 4; People v. Mil, supra, 53 Cal.4th 400, 409; People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
C. Harmless Error
Defendant argues the instructional error was prejudicial under the Chapman harmless error test, because the improper jury instruction lightened the burden of proof needed to convict defendant. The "reasonable" mistake requirement made proof of defendant's mistake-of-fact defense more onerous for defendant. Defendant also argues the error was prejudicial because there was substantial evidence supporting the defense, which included evidence he did not know the check was altered. His business's name appeared on the check, not a false name; he remained at Walmart, instead of leaving when told the police had been called; and he arranged with the police officer to pick up the check later on at the police station.
Under Chapman, supra, 386 U.S. at page 24, the state must prove error harmless beyond a reasonable doubt. In cases involving instructions on affirmative defenses, however, courts have applied the Chapman standard only where "the failure to instruct deprived the defendant of his right to present a defense and so infected the entire trial that it violated due process and the right to a fair trial." (People v. Watt (2014) 229 Cal.App.4th 1215, 1219.)
Regardless of whether the Chapman test or less rigorous Watson test applies, we conclude the trial court's error in instructing that the mistake-of-fact defense required a finding of reasonable mistake was harmless. There was overwhelming circumstantial evidence demonstrating defendant knew the check had been altered, and thus the jury would not have found he had a belief, either reasonable or unreasonable, that the check was unaltered and valid. The check was a state warrant issued by the Treasurer of the State of California. The SCO employee testified warrant records showed the check was issued to a payee other than JL Mondragon Trucking, the name of the payee on the altered check. The SCO employee testified that the entire warrant was genuine and valid, with the exception of the payee name and address. The SCO employee explained that the California State Controller's office uses a unique proprietary font, which is only used on California State Controller's office warrants. The proprietary font print was not used for the payee name and address.
There were thus highly noticeable font irregularities, consisting of mismatched printing in the payee/address area of the check, and also eraser marks. Walmart employees noticed these irregularities and the investigating officer declared that the mismatched print "stuck out like a sore thumb." Based on the totality of this evidence, we conclude the erroneous mistake-of-fact instruction was harmless beyond a reasonable doubt, because the jury verdict would have been the same absent the error. (Neder, supra, 527 U.S. at p. 4; Chapman, supra, 386 U.S. at p. 24; Watson, supra, 46 Cal.2d at p. 836.)
VI
EXCLUSION OF DEFENDANT'S OUT-OF-COURT STATEMENTS
Defendant contends the trial court abused its discretion in excluding his out-of-court statements in which he claimed the check was valid and threatened to sue Walmart and the police. The statements were made during his interview with Deputy Bibeau. Deputy Bibeau reported that when he told defendant there were irregularities in the check, defendant "became upset, told [Deputy Bibeau] multiple times the check was valid and belonged to him, and at one point threatened to sue [Deputy Bibeau] and the Walmart employees present." Deputy Bibeau reported defendant told him "the check was valid, was issued to him, and was compensation for work he performed at his 'buddy's' trucking company (which did not match information on the check itself)."
During a pretrial hearing on the admissibility of these statements, defense counsel argued evidence of these statements was admissible to show defendant's state of mind and show he lacked the specific intent required for a forgery conviction. Defense counsel asserted that the statements supported defendant's mistake-of-fact defense that he believed the check was valid and therefore did not knowingly intend to cash an altered, fraudulent check. Defense counsel further argued the statements did not constitute inadmissible hearsay because the evidence was not offered for the truth of the statements. (Evid. Code, §§ 1250, 1252.) The prosecutor argued defendant's statements were irrelevant to the element of whether defendant intended to pass a fraudulent check. The trial court agreed and ruled the evidence was irrelevant and therefore inadmissible. The court ruled the hearsay exception did not apply and the statement was inadmissible because defendant's state of mind that he threatened to sue was not relevant to the forgery element of intent to pass a fraudulent check.
During Deputy Bibeau's cross-examination, defense counsel attempted to elicit testimony from Deputy Bibeau that defendant was upset during his interview and repeatedly stated that the check was valid. In response to the prosecutor's hearsay objection to defense counsel asking if defendant repeatedly said the check was valid, the trial court stated that defense counsel was violating the court's previous motion in limine ruling excluding such evidence. The court ordered Deputy Bibeau's testimony in response to the question stricken and admonished the jury not to consider Deputy Bibeau's response.
A. Applicable Law
"On appeal, 'an appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence. . . .'" (People v. Hovarter (2008) 44 Cal.4th 983, 1007-1008.) A trial court abuses its discretion when its ruling falls outside the bounds of reason. (People v. Benavides (2005) 35 Cal.4th 69, 88.) "The test of relevance is whether the evidence tends 'logically, naturally, and by reasonable inference' to establish material facts such as identity, intent, or motive. [Citation.]" (People v. Garceau (1993) 6 Cal.4th 140, 176-177; People v. Cowan (2010) 50 Cal.4th 401, 482.) Under this test, "'[s]peculative inferences that are derived from evidence cannot be deemed to be relevant to establish the speculatively inferred fact. . . .'" (People v. Babbitt (1988) 45 Cal.3d 660, 681.) "The trial court retains broad discretion in determining the relevance of evidence." (People v. Garceau, supra, at p. 177.)
In People v. Ortiz (1995) 38 Cal.App.4th 377, 389, the court explained the difference between admissibility of evidence under the [Evidence Code] section 1250 state of mind hearsay exception, and admissibility under the theory the evidence provides circumstantial, relevant evidence of state of mind. The Ortiz court stated: "The evidence admitted under [Evidence Code] section 1250 is hearsay; it describes a mental or physical condition, intent, plan, or motive and is received for the truth of the matter stated. [Citation.] If offered to prove the declarant's state of mind, the statement may be introduced without limitation, subject only to [Evidence Code] section 352. However, the declarant's state of mind must be at issue in the case. . . . [¶] In contrast, a statement which does not directly declare a mental state, but is merely circumstantial evidence of that state of mind, is not hearsay. It is not received for the truth of the matter stated, but rather whether the statement is true or not, the fact such statement was made is relevant to a determination of the declarant's state of mind. [Citation.] Again, such evidence must be relevant to be admissible—the declarant's state of mind must be in issue. (Evid. Code § 210.)" (Ortiz, supra, at p. 389, italics added.)
B. Discussion
In the instant appeal, defendant argues evidence of defendant's out-of-court statements was admissible as circumstantial evidence showing his state of mind, intent, and knowledge as to the check. Defendant did not dispute at trial that the check was forged. His defense was that he did not know the check was forged and therefore did not intend to pass a fraudulent check. Defendant maintains that his out-of-court statements to Deputy Bibeau were relevant to show his innocent state of mind and prove his mistake-of-fact defense.
We conclude there was no abuse of discretion in excluding the evidence. The court's determination that the statements were irrelevant to proving defendant's mistake-of-fact defense was well within the court's discretion. The court could reasonably find the statements had little, if any, relevance or persuasive value because they were self-serving, defensive statements, which merely showed defendant was not willing to concede guilt. The statements provided little, if any, credible evidence that defendant did not intend to pass a fraudulent check, other than that he denied committing the crime.
Even if the trial court erred in excluding defendant's statements, it was harmless error. (Watson, supra, 46 Cal.2d at p. 836.) It is not reasonably likely the outcome of the trial would have been any different, because defendant's statements were self-serving and lacked credibility, and there was overwhelming evidence of guilt. It is not likely the jury would have found defendant did not have the requisite intent to commit forgery based on his threat to sue and claim during his police interview that the check was valid.
VII
PROSECUTORIAL MISCONDUCT
Defendant contends the prosecutor committed misconduct on two occasions during closing argument by misstating the reasonable doubt standard of proof.
A. Forfeiture
The People argue defendant forfeited his prosecutorial misconduct objection by not raising his objection in the trial court. "'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 made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]' [Citation.] [¶] The foregoing, however, is only the general rule. A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile. [Citations.] In addition, failure to request the jury be admonished does not forfeit the issue for appeal if '"an admonition would not have cured the harm caused by the misconduct."' [Citations.] Finally, the absence of a request for a curative admonition does not forfeit the issue for appeal if 'the court immediately overrules an objection to alleged prosecutorial misconduct [and as a consequence] the defendant has no opportunity to make such a request.' [Citations.]" (People v. Hill (1998) 17 Cal.4th 800, 820.)
Here, defendant forfeited his objection to one of the two instances of alleged misconduct by failing to object to it in the trial court. "Nothing in this record indicates that an objection would have been futile. Nor was the prosecutor's argument so extreme or pervasive that a prompt objection and admonition would not have cured the harm." (People v. Centeno (2014) 60 Cal.4th 659, 674 (Centeno).) As to the second instance, defense counsel objected on the ground of "[b]urden shifting," and therefore preserved the objection on appeal.
B. Ineffective Assistance of Counsel
Recognizing defendant forfeited his prosecutorial misconduct objection, at least as to one occasion, defendant argues that his trial attorney provided ineffective representation by not objecting during closing argument to either of the two instances of alleged prosecutorial misconduct.
"A defendant whose counsel did not object at trial to alleged prosecutorial misconduct can argue on appeal that counsel's inaction violated the defendant's constitutional right to the effective assistance of counsel." (People v. Lopez (2008) 42 Cal.4th 960, 966.) Defendant advances such a claim here. He therefore bears the burden of "showing by a preponderance of the evidence that (1) counsel's performance was deficient because it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficiencies resulted in prejudice." (Centeno, supra, 60 Cal.4th at p. 674; see Strickland v. Washington (1984) 466 U.S. 668, 688, 694.) "'[A] mere failure to object to evidence or argument seldom establishes counsel's incompetence.'" (Centeno, supra, at p. 675, quoting People v. Ghent (1987) 43 Cal.3d 739, 772.) In the instant case, any error in the prosecutor misstating the burden of proof was not prejudicial error.
C. Procedural Background
After the trial court instructed the jury, the prosecutor discussed in closing argument the elements of the charged forgery offense and the supporting evidence. The prosecutor then discussed the difference between circumstantial and direct evidence, and told the jury that, "[i]f it's not proven beyond a reasonable doubt, then it's not proven." Defendant argues the prosecutor then misstated the burden of proof when stating the following: "However, when considering circumstantial evidence, you must only—you must accept only reasonable conclusions, because anybody can think of all kinds of reasons why something is true. Why did the defendant try to cash this check? What was in his mind? You can think of all kinds of wild explanations, but consider what's reasonable. He was hoping to get that money. [¶] You must reject any conclusions that are unreasonable. It's that simple. Don't let the term circumstantial evidence throw you off. It's reasonable to conclude the defendant knew the check was forged or altered. Again, it's very clearly different. It's not the way that a state controller would print it, and it has his name on it. Why would his own name appear on it if he didn't know that [it] wasn't legit? [¶] It is reasonable to conclude the defendant intended to defraud Walmart. He had plenty of reasons to defraud, about $5,216.71 to defraud. Why else would he try to cash the check? So let's go through the elements one more time." Defense counsel did not object to this argument.
The second instance during closing argument defendant objects to occurred during rebuttal, when the prosecutor stated: "It is also funny how defense asked you to not speculate, right? Not speculate about this. Not speculate about that. But that is precisely what she wants to speculate on as to what is inside Mr. Mondragon's head." Defense counsel objected, "[b]urden shifting." The court overruled the objection.
D. Discussion Regarding Misstatement of Reasonable Doubt Standard
Defendant argues the prosecutor improperly shifted the burden of proof during closing argument when he suggested the jury should reject any conclusions that were unreasonable and find that the prosecution had met its burden of proof if the prosecution's theory was reasonable. Under section 1096, the prosecutor's argument urging the jury to convict defendant based on evidence of a reasonable account of the evidence misstated the burden of proof.
"Advocates are given significant leeway in discussing the legal and factual merits of a case during argument. [Citation.] However, 'it is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its . . . obligation to overcome reasonable doubt on all elements [citation].' [Citations.] To establish such error, bad faith on the prosecutor's part is not required. [Citation.] '[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.' [Citation.]" (Centeno, supra, 60 Cal.4th at pp. 666-667.) When challenging the prosecutor's remarks to the jury, the defendant must show that, "'[i]n the context of the whole argument and the instructions' [citation], there was 'a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.]'" (Id. at p. 667.)
In Centeno, our high court stated that "[i]t is not sufficient that the jury simply believe that a conclusion is reasonable. It must be convinced that all necessary facts have been proven beyond a reasonable doubt. [Citation.]" (Centeno, supra, 60 Cal.4th at p. 672.) In Centeno the court concluded that "[t]he prosecutor, however, left the jury with the impression that so long as her interpretation of the evidence was reasonable, the People had met their burden. The failure of the prosecutor's reasoning is manifest." (Ibid.)
The Centeno court explained that "it is error for the prosecutor to suggest that a 'reasonable' account of the evidence satisfies the prosecutor's burden of proof." (Centeno, supra, 60 Cal.4th at p. 672.) This is because such a misstatement dilutes the state's burden because a jury could convict due to its reasonable belief that a defendant committed a crime while still having a reasonable doubt as to guilt. (Id. at p. 673.) As in Centeno, in the instant case, the prosecutor's closing argument suggested the prosecution met its burden of proof based on facts supporting a reasonable theory of guilt. This suggested that "the jury could find defendant guilty based on a 'reasonable' account of the evidence," which diluted the People's burden of proof. (Ibid.)
As to the second instance of alleged prosecutorial misconduct, defendant argues that the prosecutor improperly told the jury that defense counsel had improperly asked the jury to speculate. While it is error to tell the jury "a defendant has a duty or burden to produce evidence," it is permissible for the prosecution to point out that interpretations of evidence proffered by the defense are neither reasonable nor credible. (Centeno, supra, 60 Cal.4th at p. 673.) We conclude there was no error as to the second instance of alleged prosecutorial misconduct. The prosecutor merely reminded the jury not to speculate.
E. Harmless Error
Even assuming the prosecutor misrepresented the standard of proof in one or both instances of the alleged prosecutorial misconduct, there was no prejudicial error because the jury was properly instructed on the standard of proof and evidence of defendant's guilt was strong.
The court properly instructed the jury on interpreting the evidence. It gave CALCRIM No. 200 on following the law as explained by the court: "You must follow the law as I explain it to you, even if you disagree with it. If you believe that the attorneys' comments on the law conflict with my instructions, you must follow my instructions." The court also gave CALCRIM No. 220, on presuming the defendant innocent unless the prosecution proves guilt beyond a reasonable doubt; CALCRIM No. 222, which instructed the jury that nothing the attorneys say is evidence; and CALCRIM Nos. 223 and 224, on circumstantial evidence.
Given that the trial court gave these instructions and properly instructed the jury on the reasonable doubt burden of proof, it is not reasonably likely that the jury would have misapplied the reasonable doubt burden of proof. We do not presume the jury blindly followed the prosecutor's incorrect statements which were inconsistent with the instructions on the burden of proof. (People v. Mills (2012) 55 Cal.4th 663, 680; Centeno, supra, 60 Cal.4th at p. 676.) Instead, we presume the jury understood and followed the instructions given, and the court's further admonition to follow the jury instructions clarified any possible confusion and ensured the jury considered the correct standard. (People v. Alfaro (2007) 41 Cal.4th 1277, 1326; People v. Ortiz (2012) 208 Cal.App.4th 1354, 1370.)
Viewing the record as a whole, we conclude it is not reasonably probable the jury disregarded instruction on the burden of proof, or that the outcome would have been more favorable to defendant, had the prosecutor not misstated the burden of proof during closing argument. In turn, because the challenged statements made by the prosecutor during closing argument do not constitute prejudicial error, defendant has not established ineffective assistance of counsel based on a failure to object to the challenged portions of the prosecutor's argument. (Strickland v. Washington, supra, 466 U.S. at p. 697.)
VIII
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: McKINSTER
Acting P. J. FIELDS
J.