Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC451410
McAdams, J.
A jury convicted defendant David Pridmore of one count of attempted robbery and one count of robbery. (Pen. Code §§ 211, 212.5, subd. (c), 664.) Defendant admitted having suffered two prior serious felony convictions and served four prior prison terms. (§§ 667, subds. (a), (b)-(i), 1170.12, 667.5, subds. (a),(b).) The court sentenced defendant to 50 years to life, consecutive to 20 years.
Unless otherwise indicated, all statutory references are to the Penal Code.
On appeal, defendant contends that the trial court erroneously denied his severance motion, that the joinder of the two counts violated his federal due process rights, and that the prosecutor committed prejudicial misconduct during closing argument. We affirm.
STATEMENT OF FACTS
The Bank of America Robbery
On April 1, 2004, Cindy Dickstein was working as a teller at a Bank of America branch in San Jose. Her teller station was the one located closest to the doors leading to the parking lot. At about noon, Ms. Dickstein noticed a man she had never seen before walk into the branch with another customer whom she recognized. The man walked quickly to a counter in the center of the lobby and wrote something on a withdrawal or deposit slip. When she called to the next customer, the man jumped over to her window even though he was not next in line. He passed her the slip with handwriting on it. On the back it said, “Robbery. I’ll blow you up fast.” She read it and felt nervous and scared. The man told her to give him all her largest money, quick. She gave him hundreds and fifties. She did not push the alarm button or give him bait money or a dye-pack. The man grabbed the money and walked quickly to the door facing the parking lot. As soon as he walked away from her teller window, she told her supervisor, who was just behind her, that she had just been robbed. The manager pressed the alarm while the teller supervisor called 911. Ms. Dickstein spoke to the 911 operator.
After the robbery, Ms. Dickstein did not go outside to look at anyone to see if he was the robber. She told the investigating officer that she was too stressed out to do it, and she refused. She did point out to the police the places inside the bank where the robber might have touched and where he wrote the note. No useable latent prints were found on the demand note. A latent fingerprint was successfully lifted from the counter in the center of the lobby where the robber wrote his note.
About six months earlier, Ms. Dickstein had been the victim of a bank robbery, but she did not remember the details of that one. She thought it might have been a training scenario. She could not recall if the police had asked her to step outside to identify the robber after the first robbery or the second one, but she did recall that after one or the other she refused to do so, out of fear.
Yaqueline Sara Torres was Ms. Dickstein’s supervisor that day. When Ms. Dickstein said “Sara, I got robbed,” Ms. Torres looked up and saw the robber leaving, but she only saw him from the back and saw his face “at a flash.” She was about 12 to 15 feet away from the robber. He was wearing light blue jeans and a denim shirt with some plaid or stripes. He was Caucasian and had long, wavy, greasy brownish-blond hair and green, blue or brown eyes, but not black. He was not carrying anything. After he went outside, he headed towards a van in the parking lot that was located in an aisle between two rows of parked cars. The van sped out of the parking lot and the robber disappeared. She did not actually see the robber get into the van, but she assumed he did.
Deborah Martinez, an attorney who worked in the building that faces the Bank of America, was walking back from court towards her building when she noticed a “grungy-looking man walking quickly from the bank.” The two passed within 10 feet of each other and she looked at him for 10 seconds. She did not see where he went after they passed each other. About five minutes later, from the lobby for her building, she saw about seven police cars converge on the bank’s parking lot, and she walked over to the bank to tell the police what she had seen. She described the man she saw as wearing an orange-colored jacket and having an unkempt appearance, but said that she did not get a good look at him. The police drove her to a back alley and asked her to look at somebody. She did not think that the person in the alley was the same person she had passed on the street. The clothing was different; the man she had seen earlier was wearing a jacket and the man in the alley was not. The man in the alley also seemed taller than the man she had seen earlier.
Officer Gregory Morrill was already nearby when he received the call about the bank robbery and responded quickly. He had a description of the robber as an “unkept homeless type, dirty.” As he came around a corner, he saw defendant, who matched the robber’s description, walking away from the bank. At gunpoint, he ordered defendant to get down on the ground. Morrill explained to him that there had been a bank robbery. Defendant said that he hadn’t been in the bank; he was just cutting through. Officer Morrill filled out a field identification card on defendant that day. He wrote that defendant was wearing blue Levi’s jacket and pants. He identified himself and gave his birth date. He had a black nylon bag. He was cooperative the entire time. Morrill wrote in a later report that defendant was wearing a red shirt and a sweatshirt, and had a black jacket in his bag. Defendant consented to a search of his bag and his pockets; no large denomination bills were found on him. Officer Morrill detained defendant for 20 to 30 minutes and did not recall him having an accent of any kind. Since defendant was not identified in the field show up, Morrill unhand cuffed him and gave him a ride to Santa Clara Mental Health, where he said he wanted to go. At trial, Officer Merrill identified defendant as the person he detained after the bank robbery, noting that defendant was much heavier, had cut his hair and that he did not recall defendant having glasses on the day of the bank robbery. Shown People’s exhibit number 5, Morrill testified that it depicted defendant exactly as he looked on the day of the robbery.
At some point after the robbery, the central identification unit notified the detective in charge of the robbery investigation that the latent fingerprint lifted from counter where people write out their deposit slips matched defendant’s left little finger print from a set of prints on file for him. The detective then put together a photo lineup with defendant’s photo in it. About two months after the robbery, the photographic lineup was shown to Sara Torres, the teller supervisor. She told the police officer who showed her the photos that the photo of defendant “could be him.” The man in the photo had longer hair than the robber’s. The investigating detective also called Ms. Martinez to discuss the in-field non-identification of defendant. She told him “it could be, could not be” the man she saw; she said she “wasn’t sure.”
The robber’s image was not captured by the bank’s surveillance cameras. Apparently, no handwriting analysis was performed on the demand note.
At trial, Ms. Torres, the teller supervisor, said she did not see the robber in court. Ms. Martinez, the attorney, did not recognize defendant as the man she had seen in the alley.
However, at trial, Ms. Dickstein positively identified defendant as the man who robbed her. She testified that she got a good look at defendant’s face from a distance of three to four feet. Her memory of the bank robber’s face after more than one year remained very good. Defendant’s appearance had changed since the robbery. At that time, he was slimmer, a little bit darker, with unclean hair and generally “just [a] mess.” At trial, he had gotten a hair cut and gained a lot of weight. Shown a picture of defendant taken at or near the time of the robbery (People’s Exhibit No. 5), Ms. Dickstein identified it as a picture of defendant the way he looked on the day of the robbery.
Ms. Dickstein was less certain about the clothes worn by the robber. On direct examination she testified that the robber was wearing a dark sweatshirt with a hood, blue jeans and tennis shoes. He did not wear glasses. His clothes looked dirty.
However, on cross-examination, Ms. Dickstein said she did “not really” get a good look at the sweatshirt and could not remember if it had a zipper or was a pull over. She acknowledged that she described it to the 911 operator as a jacket. Ms. Dickstein said she was sure the garment was black, but as between a sweatshirt or a jacket, or the type of material “I can’t just quite remember … exactly what he we ared [sic] that day.” As for the jeans, she testified: “I only noticed … the top of him. I not pay attention to his … shoes and pants or jeans.” She thought jeans were the most likely. Although she testified again that the robber did not wear glasses, she told the 911 operator and investigating police officer that he wore sunglasses, and described them to the police officer as having gold reflective lenses and thin frames.
The robber spoke clearly, without a speech impediment or an accent; Ms. Dickstein described his voice to the police as being of a native Californian.
The Church’s Fried Chicken Attempted Robbery
On April 30, 2004, Kavita Verma was working by herself at Church’s Chicken restaurant. A man came into the restaurant and said something to her; she thought he said “strawberry drink.” She replied, “What size?” With a lot of anger, the man said “robbery” and “I want money.” Ms. Verma told him she didn’t have any. Once she realized the man was there to rob her, Ms. Verma moved towards the phone and picked it up. The man said, “I’ll kill you if you call somebody.” The robber motioned with one hand as if he were going to slit his throat while he bunched his other hand under his clothing. Ms. Verma was worried that defendant might have something in his hand, but she did not see anything.
Ms. Verma looked out the drive-through window to her right and saw a man sitting on the grass next to it. Trying to get his attention, she said to him, “Excuse me.” At that point, the robber ran away. From the drive-through window she saw him cross the parking lot and go into the Chinese restaurant next to it. She called her boss, and then called 911. As she was talking to the 911 operator, she saw the robber jump into a dumpster near some construction that was going on. Two men said something to the robber, and he came out of the dumpster and went under a truck. While she was still on the phone, the police arrived. She saw the police go up to the man.
Defendant was apprehended next to a silver pickup truck located in the rear parking lot of the Chinese restaurant next door to Church’s. According to police, defendant “appeared unkempt, like he was homeless.” After defendant was taken into custody, a police officer came into the restaurant and asked her to come outside to see if she could identify the man they had caught. Ms. Verma positively identified defendant as the would-be robber. Ms. Verma identified defendant in court as the man who tried to rob her. His appearance had changed since the robbery attempt: “he is kind of chubby now.”
The Defense Evidence
Dr. David Echeandia interviewed defendant for 90 minutes and found it difficult to understand his speech because of his low, raspy voice and southern accent. Defendant also introduced the audiotape of a 911 call.
DISCUSSION
Severance
Defendant contends that the trial court erroneously denied his motion to sever the Church’s restaurant count from the Bank of America count because the evidence was not cross-admissible and the evidence that defendant attempted to rob the restaurant was much stronger than the evidence that he robbed the bank, thus creating the danger that the jury would impermissibly use the stronger case to fill in the evidentiary gaps of the weaker case. In a supplemental brief, he also argues that (1) the joinder of the two counts rendered his trial fundamentally unfair and deprived him of due process under federal law and (2) the denial of his severance motion was prejudicial under state law. We disagree.
Section 954 provides, in pertinent part, that “[a]n accusatory pleading may charge two or more … different offenses of the same class of crimes or offenses, under separate counts … provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately.” Section 954.1 provides, in pertinent part, that “[i]n cases in which two or more different offenses of the same class of crimes or offenses have been charged together in the same accusatory pleading …, evidence concerning one offense or offenses need not be admissible as to the other offense or offenses before the jointly charged offenses may be tried together before the same trier of fact.”
Here, the statutory requirements for joinder were met because robbery and attempted robbery belong to the same class of crimes; defendant does not argue otherwise. To establish error in the denial of the motion to sever, defendant must make a clear showing of potential prejudice. (People v. Carter (2005) 36 Cal.4th 1114, 1153 (Carter).) We review his claim of error for abuse of discretion. (Ibid.) An abuse of discretion may be found when the trial court’s ruling “ ‘falls outside the bounds of reason.’ ” (People v. Osband (1996) 13 Cal.4th 622, 666.)
“ ‘The burden is on the party seeking severance to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.’ [Citation.] [¶] ‘The determination of prejudice is necessarily dependent on the particular circumstances of each individual case, but certain criteria have emerged to provide guidance in ruling upon and reviewing a motion to sever trial.’ [Citation.] Refusal to sever may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a ‘weak’ case has been joined with a ‘strong’ case, or with another ‘weak’ case, so that the ‘spillover’ effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case.” (People v. Sandoval (1992) 4 Cal.4th 155, 172-173.)
Cross-Admissibility
“[T]he first step in assessing whether a combined trial [would have been] prejudicial is to determine whether evidence on each of the joined charges would have been admissible, under Evidence Code section 1101, in separate trials on the others. If so, any inference of prejudice is dispelled.” (People v. Balderas (1985) 41 Cal.3d 144, 171-172.)
In the present case, the prosecutor did not argue that the evidence of the Church’s Chicken case would be admissible in the trial of the bank robbery. He argued only that the bank robbery case would be admissible in the trial of the attempted restaurant robbery if the defendant elected to dispute the existence of the intent to steal in the Church’s Chicken case. The trial court did not find that evidence of each incident would have been cross-admissible in a separate trial of the charge relating to the other incident, finding only that “a joint trial in this matter would neither unduly nor unfairly prejudice the defendant.”
We similarly find that the two incidents did not disclose common marks or identifiers, that, considered singly or in combination, support a strong inference that the defendant committed both crimes. (People v. Miller (1990) 50 Cal.3d 954, 988-989.) However, all the criteria enumerated in Sandoval are not equally significant: As our Supreme Court has repeatedly explained: “While we have held that cross-admissibility ordinarily dispels any inference of prejudice, we have never held that the absence of cross-admissibility, by itself, sufficed to demonstrate prejudice.” (People v. Mason (1991) 52 Cal.3d 909, 934; People v. Sandoval, supra, 4 Cal.4th at p. 173; see also § 954.1.)
Inflammatory Nature of Case
As for the second criteria for severance, an unusual likelihood of inflaming the jury against the defendant, the evidence here does not demonstrate that one of the offenses was significantly more likely to inflame the jury against defendant than the other; neither offense involved violence against the victim or sexual or racial overtones or any other factor that might make one offense relatively more inflammatory than the other.
Weak Case Joined with Strong Case
Defendant’s strongest argument for severance rested in the relative strength of the evidence in the Church’s Chicken case as compared with the relative weakness of the evidence in the Bank of America case. However, we cannot say that the evidence of guilt in the Church’s Chicken case was significantly stronger than the evidence of guilt in the bank robbery case, such that joinder created the danger that the strong case would be used to bolster the weaker case. Viewed in the abstract, the prosecutor’s evidence was equal in strength as to both offenses. In both cases, the victims testified with great certainty that defendant was the robber. In the Church’s Chicken attempted robbery, the scenario drawn by the victim’s testimony, if believed, proved every necessary element of attempted robbery, and the evidence of her identification of defendant as the would-be robber was strong: she saw defendant run across the parking lot, jump into the dumpster and hide under the truck, and actually watched as defendant was apprehended at the truck by the police.
In the bank robbery case, the scenario drawn by the victim’s testimony, if believed, also proved all the necessary elements of robbery, and she was also sure of her identification of defendant. It is true that her description of defendant’s clothing was less certain, and that other witnesses – who did not see the robbery – could not positively identify defendant. However, other compelling circumstantial evidence supported the inference that Ms. Dickstein’s identification of defendant as the robber was correct, including: the discovery of defendant’s fingerprint on the counter where Ms. Dickstein said she saw the robber writing; defendant’s denial that he had been in the bank, when coupled with Ms. Dickstein’s testimony that she had never seen him in the bank before that day; the shared similarities in the witnesses’ description of the fleeing robber as unkempt or grungy; and defendant’s detention outside the bank within minutes of the robbery. “That the evidence against defendant on some of the counts consisted of eyewitness statements and on other counts was circumstantial does not establish improper consolidation of charges. Direct evidence is neither inherently stronger nor inherently weaker than circumstantial evidence.” (People v. Mendoza (2000) 24 Cal.4th 130, 162.)
The record does not support defendant’s view that Cindy Dickstein said defendant “might be the robber but acknowledged she was confusing the facts of this robbery with those of another.” (Italics added.) As noted in the statement of facts, Ms. Dickstein positively identified defendant in court as the robber. Her confusion of the two robberies did not relate to her identification of the defendant but to defense counsel’s questions about whether she refused to leave the bank to identify a suspect in this case, or in the prior robbery.
The trial court read the parties’ legal memoranda, heard argument and, we must presume, weighed all of the appropriate criteria before concluding that joinder “would neither unduly nor unfairly prejudice the defendant.” The evidence on each count was simple and distinct. Thus, this was not necessarily a situation in which “the jury would be unable to decide one case exclusively on the evidence relating to that crime.” (Williams v. Superior Court (1984) 36 Cal.3d 441, 453; People v. Grant (2003) 113 Cal.App.4th 579, 587 [no abuse of discretion to deny severance when “the counts ‘were all very different’ ”].) “The concept of discretion implies that, at least in some cases, a decision may properly go either way.” (In re Large (2007) 41 Cal.4th 538, 553.) This is such a case. Our review has not disclosed that the trial court abused “its discretion in deciding that the beneficial effects of consolidated trial outweighed the potential prejudice.” (People v. Balderas, supra, 41 Cal.3d at p. 173.)
Actual Prejudice/Due Process Violation
“Even if a trial court’s severance or joinder ruling is correct at the time it was made, a reviewing court must reverse the judgment if the ‘defendant shows that joinder actually resulted in “gross unfairness” amounting to a denial of due process.’ ” (People v. Mendoza, supra, 24 Cal.4th at p. 162, quoting People v. Arias (1996) 13 Cal.4th 92, 127.)
We are not convinced that the fairness of defendant’s trial was compromised by joinder as it was in Bean v. Calderon (9th Cir. 1998) 163 F.3d 1073 (Bean), the case on which defendant primarily relies, and which is not binding on us in any event. (People v. Crittenden (1994) 9 Cal.4th 83, 120, fn. 3) In Bean, two murders were joined for a capital trial. In allowing joinder, the trial court found “ ‘considerable similarity’ between the two sets of offenses” and thus no likelihood of prejudice. (Bean, at p. 1083.) Consequently, the prosecutor’s argument “encouraged the jury to consider the two sets of charges in concert, as reflecting the modus operandi characteristic of Bean’s criminal activities,” and the trial court’s instructions did not discourage such reasoning on the jury’s part, given its “conclusion that the offenses evinced ‘considerable similarity.’ ” (Id. at p. 1084.) Agreeing with the California Supreme Court that the evidence was, in fact, not cross-admissible, the Ninth Circuit also found that the evidence on one of the murders was significantly weaker than the evidence on the other. Given the disparity between the evidence presented on the two sets of offense, the prosecutor’s argument and the lack of ameliorative instructions to guide the jury, the Ninth Circuit concluded that the jury could not possibly have compartmentalized the evidence from the two offenses, keeping them separate. (Id. at pp. 1085-1086.)
In this case, it is true that the court gave no instruction to the jury that each of the offenses was a distinct crime, or that each count was to be determined individually, or even that the jury could find appellant guilty or not guilty of either or both counts. It is also true that the prosecutor, in response to defense counsel’s argument about the dissimilarities between the two cases, briefly argued that both cases shared certain similarities. However, the similarity between Bean and this case ends there.
In response to defense counsel’s argument that the two cases were so dissimilar that the same person could not have committed both, the prosecutor argued: “Well, there’s a lot of similarities. I’m sure a lot stood out to you. Unfortunately, this is the type of thing that criminals fall into patterns on. There are certain types of victims some criminals like. Both our victims here are females. There’s a conception among a lot of criminals that females are easier to victimize because they’re not as strong as men, they may not be as aggressive as men, they may be more compliant. Both our victims in this case, even though the defendant is Caucasian, are non-Caucasian. Both of them are inside of the business. These weren’t follow-a-woman-into-an-alley-and-mug-her type robberies. These were both instances where he walks into a business that’s open to the public to commit his crime. Both of them were working at counters at the time. He starts both robberies specifically with the word ‘robbery’ – not ‘give me the money,’ no ‘hand me everything in the register,’ but the first one he passes a note, first word on that note is ‘robbery.’ The first word he says to Kavita Verma is ‘robbery.’ She misconstrues it as ‘strawberry,’ but she realizes once she gets the whole context that he said ‘robbery.” … He only wants money – not ‘give me your purse,’ not ‘give me that food, I’m hungry’ – he only wants money. And he’s caught at the scene in both cases within at last 300 yards, if not closer, and within minutes of both robberies. To say there are no similarities between these two cases is inaccurate.”
Although defendant maintains that the bank robbery was significantly weaker than the restaurant robbery, for the reasons we have discussed above, we disagree. Furthermore, in our view, the jury was not likely to confuse the evidence of the two crimes. Given “the relative simplicity of the issues and the straightforward manner of presentation,” the offenses were distinct and easily separable. (United States v. Johnson (9th Cir. 1987) 820 F.2d 1065, 1071.) As the Bean court acknowledged, “prejudice generally does not arise from joinder when the evidence of each crime is simple and distinct, even in the absence of cross-admissibility.” (Bean, supra, 163 F.3d at p. 1085.) We conclude that no such prejudice arose here from joinder, and we reject defendant’s federal and state claims for reversal on the grounds of actual prejudice based on the joinder only.
Prosecutorial Misconduct
Defendant argues that the prosecutor violated his federal due process right to a fair trial by repeatedly trivializing, diluting and misstating the reasonable doubt standard in his closing arguments over sustained objections. Defendant’s primary target is the prosecutor’s repeated arguments that only the elements of the offense, and not facts, needed to be proved beyond a reasonable doubt. He argues that the court’s admonitions and general instructions did not address this aspect of prosecutor’s misstatements, and that the resulting error either constituted “structural error” requiring automatic reversal, or was not harmless beyond a reasonable doubt.
Factual Background
The prosecutor argued to the jury: “Now, each crime is made up of what we call elements. And to find the defendant guilty of a crime, jury has to find each element proven beyond a reasonable doubt.” After briefly arguing that defendant’s conduct satisfied each of the elements, he concluded: “Those are the elements of robbery. That’s all the elements of robbery, all that has to be proven.”
Defendant does not assign this passage as misconduct on appeal, nor did he object to it at trial. We include it because it provides the context for the prosecutor’s remarks to which defendant did object.
Defense counsel objected to the following comments, and defendant cites them as misconduct on appeal.
“[PROSECUTOR]: It’s just reasonable explanations. The only thing that has to be proven beyond a reasonable doubt that’s applied to this standard, again, is just those elements. Nothing more. There may be other things you want to know, but just because you don’t know those other things beyond a reasonable doubt, if you just have those five elements, your job’s done. [¶] That means reasonable doubt is not I’m not sure exactly what happened. We’re never sure exactly what happened, because the 12 of you weren’t there. All right? And people see things from different vantage points. The expectation that you could possibly know exactly what happened in any case is wholly unreasonable. That’s not reasonable doubt.
“[DEFENSE COUNSEL]: Your Honor, I’m going to object. I think that misstates the law.
“THE COURT: Well, you’ll have the instructions with you. And you may proceed. So if there’s a doubt what the attorneys say as to the law conflicts with the Court’s instructions on the law, you must accept the Court’s instructions. You may proceed.”
Defense counsel did not object to the comments set out below, which followed the court’s admonition.
“[PROSECUTOR]: Just read the instructions. You’ll be able to read all five elements, you’ll be able to read the proof-beyond-a-reasonable-doubt instruction, tells you that’s what has to be proven beyond a reasonable doubt. [¶] … [¶] I don’t know what the defendant did with the money. That’s not an element. Whether he hid the money in the bushes, handed it off to somebody else, whether he had it stuck in the crotch of his underwear and Officer Merrill just didn’t find it, that’s not an element. Doesn’t have to be proven. It’s one of those things that, hey, yeah, we’d love to know it. … But it’s not an actual element and it doesn’t have to be proven beyond a reasonable doubt. [¶] I don’t know exactly what the defendant was wearing. Nothing in any of those five elements that says you have to know what he’s wearing. It would be great if everyone could come in and describe him to a T, what he was wearing head to toe. But it’s not required. And if you think about it, it’s not really reasonable to expect that. I mean, do you think it’s even possible for somebody to have that good a recollection of somebody that they see for a short period of time? They may try. And they’ll make an honest attempt. But as the Court will tell you, sometimes there is innocent misrecollection. Failure of recollection is common. Innocent misrecollection is not uncommon. Just because people can’t describe the defendant to a T doesn’t mean he didn’t do it. And if you have other evidence to corroborate, doesn’t mean they have the wrong guy. When you can’t describe his clothes but have something like a fingerprint at the scene, that helps corroborate his evidence. Well, gee, he’s right outside within minutes. His fingerprint is inside. Says he wasn’t inside, and the witness says it was him. Does the facts [sic] that maybe she didn’t describe him very well clothingwise, maybe she can’t remember if he had sunglasses or not, does that really mean he wasn’t there. Well, given all that as a whole probably not.” (Italics added.)
Defense counsel also did not object to the following comment: “I don’t know if the defendant got in the van or was helped by somebody else, was working alone. Those aren’t elements.” (Italics added.)
The very next comment, however, drew an objection.
“[PROSECUTOR]: The defendant wanted a trial. That’s not reasonable doubt. Just because the defendant wants to assert his constitutional right, it doesn’t mean he didn’t do it. And he’s presumed innocent up until then. But presumption of innocence is, essentially, it’s a legal fiction. He either did it or he didn’t. The law considers him innocent at this point. But the facts have already occurred. The acts have already happened. (Italics added.)
“[DEFENSE COUNSEL]: Your Honor, I’m going to object to the argument that presumption of innocence is a legal fiction. I think that misstates the law.
“[THE COURT]: Well, disregard the comments about being a legal fiction. That part of the objection is sustained. I’m not going to strike anything, because statements by the attorneys are not evidence and need not be stricken. … You may proceed.”
During his closing argument, defense counsel argued, with respect to the abiding nature of a belief held beyond a reasonable doubt: “ ‘Abiding’ … means that if the deputy right there had an envelope, a magic envelope that had the right answer that told you whether or not Mr. Pridmore’s factually innocent – ” The court overruled the prosecutor’s objection, and defense counsel continued: “ – or actually did it, it means that after you make your decision, months later when you’re thinking about that magic envelope in the deputy’s desk, you won’t have any real temptation to call the deputy and say, hey, can you tell me what the answer is in that envelope? Because if you really have an abiding conviction, you don’t need to know that. You already know.”
The prosecutor offered the following rebuttal to defense counsel’s argument, to which defendant objected below and which he cites as misconduct on appeal:
“[PROSECUTOR]: The whole magic envelope thing. It used to be called God’s envelope. But I think there was enough objections to that that it’s become now the magic envelope. If you read instruction 2.90, the reasonable doubt instruction, read it over and over, read it backwards, there’s no mention of a magic envelope in there. When I talked to you about reasonable doubt, I explained to you it’s just – ‘reasonable’ is the key word. Pay attention to that word. I didn’t tell you there was stuff in it that’s not there. But defense counsel told you not only do you have to follow everything in that instruction but in addition to that, you have to be so certain that beyond reasonable doubt you have to go beyond your own human curiosity just to double-check and make sure you got it right. I doubt there’s anybody here who probably hasn’t left your house and about halfway to wherever you’re going thought, did I lock the door? Did I close the garage door? If you had the opportunity to open up an envelope and check every single time you left the house, not just when you doubt, but every single time, do you think you wouldn’t, just to be sure? Of course not. It’s human nature. If you’ve got that opportunity, everybody’s going to take it. That’s the defense trying to elevate the standard of reasonable doubt to something far beyond what it is.”
“[DEFENSE COUNSEL]: Your Honor, I think that misstates our argument. I also think it misstates the instruction of reasonable doubt. It waters it down to normal human interaction throughout the day.”
The court overruled the objection, stating: “[L]et’s not have speaking objections.”
The court day ended before the prosecutor could conclude his remarks. Before the prosecutor resumed his rebuttal argument the next morning, defense counsel memorialized his objections and asked the court to admonish the jury.
First, he objected to the prosecutor’s legal fiction comment and asked for a stronger admonition. Next, defense counsel took exception to the prosecutor’s argument that “the jury’s only required to find each of the elements of the offenses by proof beyond a reasonable doubt,” explaining that under CALJIC 2.01, each fact or inference on which circumstantial evidence of guilt rests must be proven beyond a reasonable doubt. “So my argument is that’s a misstatement of law, and I request the jury be admonished and it made clear that the beyond-a-reasonable-doubt standard applies also to circumstantial evidence.” Third, defense counsel objected the prosecutor’s argument “equating beyond a reasonable doubt to everyday life decisions.” He asked the court to admonish the jury that “you do not equate proof beyond a reasonable doubt to everyday life decisions, and you are to refer and be bound by 2.90.”
Defense counsel also objected to a PowerPoint chart titled “Reasonable Doubt” that was used by the prosecutor during his argument. Finally, defense counsel objected to the prosecutor’s comment on the defendant’s failure to call witnesses to explain his presence in the bank’s vicinity as a comment “on his failure to testify.” Defense counsel requested an admonition “reminding the jurors that the defense may rely on the state of the evidence and the defendant need not testify.”
Defending his chart, the prosecutor argued that the chart said “here’s a list of things that if you’re not certain of, that doesn’t necessarily mean you have a reasonable doubt. And it specifically listed ‘I’m not certain that the police did everything they could have done.’ That’s not an element of the offense. … ‘I’m not certain what clothes the defendant was wearing that day.’ That’s not an element of the offense. I did not tell the jury that they could still find the defendant guilty beyond a reasonable doubt if they weren’t sure of any elements. I simply pointed out there’s a lot of red herrings being thrown at them and they don’t have to find any of those things beyond a reasonable doubt.”
The court considered defense counsel’s points “well taken,” especially with regard to the “legal fiction” argument. It agreed to admonish with respect to that point, and also to “re-read the part of the jury instructions that says that if anything stated by an attorney during their arguments or regarding the law conflicts with the law presented by the Court, they must reject what the attorney’s saying and accept what the Court has said.”
The prosecutor resumed his rebuttal argument. Defense counsel objected to the following comments, and defendant cites them as misconduct on appeal.
“[PROSECUTOR]: The defense wants you to think everything has to be proven beyond a reasonable doubt. Like I said, it doesn’t. It’s the elements of the offense. You can’t know everything about a case. Just the elements. Not what he was wearing.
“[DEFENSE COUNSEL]: Your Honor, we’re going to object again. This misstates the standard of proof.
“[THE COURT]: And that objection is sustained. You need to focus on the instructions of the law that I’ve given you that you will have in writing. And if anything that the attorneys say in their arguments conflicts with my instructions, you need to adhere to my instructions. And we’ll talk about that a little more.
“[DEFENSE COUNSEL]: Your Honor, for the appellate record, I apologize, but the record should reflect that the screen says, ‘The defense wants you to think everything has to be proven beyond a reasonable doubt.’ And one of the itemized bullet points says, ‘Just the elements have to be proven.’
“[THE COURT]: All right. And that is correct. The screen also says some other things. Is there anything else that you would like to memorialize, [Mr. Prosecutor].
“[PROSECUTOR]: No.
“[THE COURT]: All right. You just need to focus on the facts that the standard is beyond a reasonable doubt. You’ve heard a lot of analogies. You need to focus on the jury instruction 2.90, nothing else. [¶] Go ahead.
“[PROSECUTOR]: Let me make this very clear. Any fact that you rely upon to find any element proven beyond a reasonable doubt, you have to find beyond a reasonable doubt. All right? [¶] Identification is the issue for this robbery. Defense has told you that. Well, you spent a week with me now. What was I wearing last Thursday? We were in the courtroom a full day. I gave you an opening statement for approximately 10 minutes. [¶] If we picked two of you, do you think you could all agree on color of my suit, color of my shirt, what my tie looked like, what my shoes looked like? Color of my socks, did my belt match my tie? Was I wearing my silver glasses
“[DEFENSE COUNSEL]: Your Honor. I’m sorry.
“[THE COURT]: Sustained. Sustained. The objection is sustained.
“[DEFENSE COUNSEL]: Request that the jury be admonished they are not to engage in experiments or comparisons on their own.
“[PROSECUTOR]: “If I can have two more sentences, I think the point of my argument will be clear that it’s not an experiment.
“[THE COURT]: Well, that objection is sustained. Why don’t you conclude your argument shortly.
“[PROSECUTOR]: All right. Even if you couldn’t remember what I was wearing, does it change the fact that you know it was me?
“[DEFENSE COUNSEL]: Your Honor, objection. Same objection.
“[THE COURT]: Same ruling. The objection is sustained.
“[DEFENSE COUNSEL]: I request an admonishment that the jury disregard that comment.
“[THE COURT]: Please disregard the comments.”
At the conclusion of the prosecutor’s final summation, the court instructed the jury as follows: “So you’ve heard a lot of argument. And we are very fortunate to have very experienced, excellent attorneys who are both excellent advocates for their relative positions. There have been many objections, some of them sustained, some of them overruled. I want to remind you that if anything concerning the law said by the attorneys in their arguments or at any other time during it the trial [sic] conflicts with my instructions on the law, you must follow my instructions. [¶] Moreover, I’d like to underscore just a few things. I want to underscore the fact that the presumption of innocence is not a legal fiction. It is the law. You are bound by jury instruction 2.90 that deals with the presumption of innocence and with the definition of beyond a reasonable doubt. You also heard both attorneys make analogies when they were dealing with what constitutes an abiding conviction of the truth of the charge. You heard about magic envelopes. You heard about appliances being plugged or unplugged, garage doors being left open. Once again, they are making their arguments to you. You are bound by jury instruction 2.90. And I will spare you with having to re-read everything, but I do have some final instructions that I do need to read to you before you proceed with your deliberations. [¶] … [¶] The instructions which I am now giving to you will be made available in written form, if you so request, for your deliberations….”
General Principles
“The applicable federal and state standards regarding prosecutorial misconduct are well established. A prosecutor’s ... intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.” (People v. Smithey (1999) 20 Cal.4th 936, 960 (Smithey), internal quotation marks omitted.) “ ‘[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.’ ” (People v. Hill (1998) 17 Cal.4th 800, 829-830 (Hill).) “ ‘[W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.’ ” (Smithey, atp. 960.) “In conducting this inquiry, we ‘do not lightly infer’ that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements.” (People v. Frye (1998) 18 Cal.4th 894, 970.)
With these principles in mind, we now turn to defendant’s specific complaints.
Defendant takes issue with the prosecutor’s comment that the presumption of innocence is “a legal fiction” and his other remarks regarding the “magic envelope,” arguing that these comments trivialized the reasonable doubt standard. (People v. Johnson (2004) 115 Cal.App.4th 1169.) However, the “magic envelope” comment was, on one level, a fair response to defense counsel’s comment over-solemnizing the reasonable doubt standard. We cannot emphasize enough that both sides should avoid using fantasy to characterize the reasonable doubt standard. In any event, in this case we conclude that the court’s admonitions adequately dispelled any possible prejudice emanating from the prosecutor’s “legal fiction” and “magic envelope” remarks.
Defendant’s primary contention is that the prosecutor’s repeated argument that only the elements of the crime need be proven misstated the law. “[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” (In re Winship (1970) 397 U.S. 358, 364, italics added.) “The prosecution bears the burden of proving all elements of the offense charged [citations], and must persuade the factfinder ‘beyond a reasonable doubt’ of the facts necessary to establish each of those elements.” (Sullivan v. Louisiana (1993) 508 U.S. 275, 277-278 (Sullivan), italics added.)
Assuming arguendo that the comments to which defense counsel objected, and to which the court sustained objections, misstated the reasonable doubt standard, we first reject defendant’s argument that any error was structural error requiring reversal per se. (Sullivan, supra, 508 U.S. at p. 281.) In Sullivan, the United States Supreme Court held that a constitutionally deficient reasonable doubt instruction by the court is not amenable to harmless error analysis. (See also People v. Johnson, supra, 115 Cal.App.4th 1169 [trivialization of reasonable doubt standard by judge].) However, the arguments of counsel “should ‘not be judged as having the same force as an instruction from the court.’ ” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1224, fn. 21.) “[A]rguments of counsel generally carry less weight with a jury than do instructions from the court. … Arguments of counsel which misstate the law are subject to objection and to correction by the court. [Citation.] 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 (1990) 494 U.S. 370, 384-385.) Furthermore, the United States Supreme Court has decided which federal errors are “structural” ones that require automatic reversal, and prosecutorial misconduct is not one of them. (Arizona v. Fulminante (1991) 499 U.S. 279, 307-309.)
Again assuming the error complained of constituted federal constitutional error, in our view, the assumed error was harmless beyond a reasonable doubt in this case. (Chapman v. California (1967) 386 U.S. 18.) First, we are not convinced that the jury was misled into believing that defendant’s identity as the robber did not need to be proven beyond a reasonable doubt. The court’s instructions, especially those given before argument commenced, more than adequately dispelled any inference to be drawn from the prosecutor’s argument that identity did not have to be proven by the prosecution beyond a reasonable doubt. By the time the prosecutor began his argument, the trial court had already correctly instructed the jury in no uncertain terms that even though “[t]he identity of the person who is alleged to have committed a crime is not an element of the crime,” identity is a fact that must be proven beyond a reasonable doubt. (Italics added.) Thus, before it heard the prosecutor’s remarks, the jury knew from the court’s instructions that defendant’s identity as the robber had to be proven beyond a reasonable doubt and if it was not, the jury must acquit him of the bank robbery. The court reinforced the primacy of its instructions by informing the jury more than once during the arguments that if anything concerning the law said by the attorneys in their arguments or at any other time during the trial conflicted with the court’s instruction on the law, the jury must follow the court’s instructions. Finally, in its post argument instructions, the court repeatedly advised the jury to hew to CALJIC 2.90, the reasonable doubt instruction. Although the court did not mention CALJIC 2.91 by name, we think the reference to CALJIC 2.90 incorporated the idea that reasonable doubt applies to proof of identity.
Prior to argument, the court instructed the jury and gave CALJIC 2.91 and 2.92, as well as an instruction on third party culpability. The court instructed the jury: “You may find evidence that a person other than the defendant committed the crime alleged in Count 2. If such evidence of third party culpability raises a reasonable doubt of defendant’s guilty [sic] as to that offense, you must find the defendant not guilty. The weight and significance of third party culpability, if any, are matters for your determination. If, after the consideration of this evidence you have a reasonable doubt that the defendant committed this offense, you must give the defendant the benefit of the doubt and find him not guilty.
Nor do we find prejudice. The evidence that defendant was, in fact, the bank robber was compelling, as we have previously noted in regard to defendant’s severance claim. The teller positively identified defendant in court as the person who robbed her. She had never seen him before that day, and defendant denied that he had been in the bank, yet his fingerprint was found inside the bank at the counter where the teller saw him write the demand note. He was, in fact, detained just outside the bank minutes after the robbery. The two other witnesses uniformly described the person they saw fleeing as unkempt or grungy. To be sure, there were also discrepancies between the witnesses’ descriptions of the robber. These discrepancies, however, did not explain or undermine the evidence of the fingerprint and defendant’s presence near the bank shortly after the robbery. Moreover, the discrepancies were extensively argued by defense counsel as the basis for acquittal. In our view, the jury’s rejection of the defendant’s misidentification defense is not attributable to the prosecutor’s remarks. We find “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” (Chapman v. California, supra, 386 U.S. at p. 24; Neder v. United States (1999) 527 U.S. 1, 15.)
CONCLUSION
The trial court did not abuse its discretion in denying defendant’s severance motion. Defendant was not prejudiced by the joinder. Assuming the prosecutor committed misconduct, the error was harmless beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Duffy, J.
“The burden is on the People to provide beyond a reasonable doubt that the defendant is the person who committed the crime with which he is charged. If after considering the circumstances of the identification and any other evidence in this case you have a reasonable doubt whether defendant was the person who committed the crime, you must give the defendant the benefit of the doubt and find him not guilty. “Eyewitness testimony has been received in this trial for the purpose of identifying the defendant as the perpetrator of the crimes charged. In determining the weight to be given eyewitness identification testimony, you should consider the believability of the eyewitness as well as any other factors which bear upon the accuracy of the witness’s identification of the defendant, including but not limited to any of the following: the opportunity of the witness to observe the alleged criminal act and the perpetrator of the act; the stress, if any, to which the witness was subjected at the time of the observation; the witness’s ability following the observation to provide a description of the perpetrator of the act; the extent to which the defendant either fits or does not fit the description of the perpetrator previously given by the witness; the cross-racial or ethnic nature of the identification; the witness’s capacity to make an identification; evidence relating to the witness’s ability to identify other alleged perpetrators of the criminal act; whether the witness was able to identify the alleged perpetrator in a photographic or physical lineup; the period of time between the alleged criminal act and the witness’s identification; whether the witness had prior contacts with the alleged perpetrator; the extent to which the witness is either certain or uncertain of the identification; whether the witness’s identification is, in fact, the product of her own recollection; and any other evidence relating to the witness’s ability to make an identification.”
Earlier, the court had instructed the jury that “the identity of the person who is alleged to have committed a crime is not an element of the crime. The identity may be established by an admission.”