Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 0666
BLEASE, Acting P. J.
Defendant Aron Ezra Wessel shot his sister’s ex-boyfriend. A jury convicted him of attempted premeditated murder (Pen. Code, §§ 187, subd. (a), 189/664, subd. (a); count 1), assault with a firearm (§ 245, subd. (a)(2); count 2), child endangerment (§ 273a, subd. (a); count 3), criminal threats (§ 422; count 4), first degree burglary (§ 459; count 5), and possession of a firearm by a convicted felon (§ 12021, subd. (a)(1); count 6). As to count 1, the jury found that defendant personally and intentionally discharged a firearm causing great bodily injury. (§ 12022.53, subd. (d).) As to all counts, the jury found that he personally used a firearm (§ 12022.5, subd. (a)) and personally inflicted great bodily injury (§ 12022.7, subd. (a)). The jury acquitted defendant of four counts of shooting at an inhabited dwelling. (§ 246; counts 7 through 10).
Further statutory references are to the Penal Code unless otherwise indicated.
In a bifurcated proceeding, the trial court found that defendant had suffered a 2001 prior conviction of assault by force likely to produce great bodily injury (§ 245, subd. (a)(1)), and that this conviction was both a serious felony (§ 667, subd. (a)) and a strike (§§ 667, subds. (b)-(i), 1170.12). The court found that defendant had served a prison term for this conviction. (§ 667.5, subd. (b).)
Defendant was sentenced to state prison on count 1 for 30 years to life, consisting of 25 years to life for the intentional and personal discharge enhancement plus five years for the prior serious felony enhancement. A concurrent term of 17 years was imposed on count 3. Sentence on the remaining counts and enhancements was stayed pursuant to section 654.
On appeal, defendant contends: (1) using “DA Discovery” to prove that the prior conviction was a serious felony deprived him of his due process and confrontation rights, (2) his count 3 conviction is not supported by sufficient evidence of care or custody of the child, and (3) the prosecutor’s closing remarks on reasonable doubt were misconduct and his trial counsel’s failure to object to the misconduct constituted ineffective assistance. The Attorney General contends: (4) the 30-year minimum parole eligibility term on count 1 is unlawful in that it consists solely of terms for the enhancements and omits the doubled term for the second-strike offense. Finding merit in contentions (1), (2) and (4), we shall reverse count 3 and the serious felony and strike adjudications and modify defendant’s count 1 sentence to 32 years to life.
FACTS
Prosecution Case-in-Chief
On December 23, 2005, victim Michael Duckworth visited his ex-girlfriend, Jennifer T., at her residence in rural Siskiyou County. Jennifer’s then-eight-year-old daughter (Savanna), Jennifer’s sister and defendant were also present. At about 9:00 p.m., the group was sitting and talking. Duckworth and defendant had gotten along fine. At trial Duckworth opined that defendant was drunk, based upon: (1) his having seen defendant take a couple of drinks, (2) defendant having a loud argument with his girlfriend over the telephone, and (3) defendant shooting Duckworth early the next morning.
Because Jennifer and Savanna have the same surname, we shall refer to them by their first names.
Duckworth and Jennifer went to sleep in one of the bedrooms. At about 2:00 a.m., Duckworth was awakened by the sound of gunfire; he assumed that defendant was shooting at coyotes or something. Duckworth told Jennifer to see what defendant was doing; Jennifer went into the living room.
Defendant was angry and was yelling. Duckworth realized that defendant was angry at him. Defendant said something to Jennifer like, “I told you it was either him or me. Now I’m going to have to kill him, go to jail because of you.” Jennifer was crying; she tried to calm defendant by saying “I’ll get him out. I’ll never have him come back if you just calm down.” Defendant and Jennifer argued for one to five minutes. Duckworth testified that if he told an officer that defendant had said, “I’m going to shoot him in the head,” then most likely defendant had said that.
Defendant carried a rifle into the bedroom where Duckworth was sitting on the bed. Defendant walked up to Duckworth and pointed the rifle at him. Duckworth indicated that the barrel was pointed at his head; Savanna, who witnessed the shooting, testified that defendant pointed the rifle at Duckworth’s chest. Defendant made a motion as if to shoot the rifle; Duckworth swatted the end of the rifle, and the rifle discharged into Duckworth’s shoulder. Defendant used the gun to strike Duckworth in the face and throat. Defendant then left the bedroom.
Duckworth sat for a minute, stunned. He heard defendant state that he was going to get in trouble and go back to jail. Jennifer walked into the bedroom; Duckworth said, “I think your brother just shot me,” and blood began squirting from his wounds. Duckworth left the residence to go to the hospital. He encountered defendant and Jennifer outside the residence. Defendant said something to Jennifer about not going to jail. At one point, Duckworth was about a foot and a half away from defendant. Defendant pointed the rifle at Duckworth’s head; Duckworth grabbed it and fired off the remaining rounds. Defendant threatened to have his cousins attack Duckworth.
Duckworth got into his car and started driving to the hospital. He took a wrong turn; Jennifer and defendant pulled up in another car. Defendant got out of the car; Duckworth told him to get back in the car and get his sister. Duckworth did not want defendant to drive because he was afraid that defendant would kill him and bury him. Jennifer got into Duckworth’s car and helped him drive to the hospital.
Defense
Defense counsel asked a sheriff’s deputy about some alleged inconsistencies between Duckworth’s pretrial statement to the deputy and his trial testimony. The deputy did not recall, and his report did not reflect, any statement by Duckworth about his having grabbed or swiped at the gun barrel before the shot was fired. The deputy recalled Duckworth having claimed that, after taking possession of the rifle, he ejected the remaining shells as opposed to firing the gun repeatedly to empty the magazine.
The prosecutor asked the deputy about some of Duckworth’s prior consistent statements. Duckworth had told the deputy that defendant had said that he was going to: (1) kill Duckworth, and (2) shoot him in the head.
A defense investigator testified about an unsuccessful attempt to interview Jennifer.
DISCUSSION
I
Defendant contends the trial court violated his due process and confrontation rights when it relied on eight pages of “D.A. Discovery” (hereafter the Discovery) to support its rulings that his 2001 prior conviction was a serious felony and a strike. For reasons we shall explain, we conclude both rulings must be reversed.
Background -- 2001 Proceedings
In 2001, in Siskiyou County Superior Court case No. 01-716, defendant pleaded guilty to assault by means of force likely to produce great bodily injury. At the outset of the hearing, defense counsel stated that defendant would plead guilty to violation of section 245, subdivision (a)(1), and would be sentenced to the middle term of three years. He added that, “for sentencing purposes only,” the offense would not be treated as a violent felony, which would have required that great bodily injury be charged and proved. (§ 667.5, subd. (c)(8).) Counsel stated that, for purposes of determining whether the conviction would be treated as a strike in the future, the parties had modified the plea form to indicate that the plea could result in a conviction of one or more strikes.
The prosecutor stated that the Discovery pages “would be made a part of the record and could be considered by [a] future court in evaluating whether this [section 245, subdivision (a)(1), conviction] is a strike.” Defense counsel agreed.
The trial court noted that because the assault was not being treated as a violent felony, defendant would be eligible to earn half-time credits. (§ 2933.1, subd. (a).) The prosecutor reiterated that, in the future, the assault conviction may be treated as a strike. The court explained to defendant that the assault would not be treated as a strike or a violent felony for sentencing purposes on that date; however, if defendant were to commit any more felonies, the court presiding over the future case could determine that the assault was a strike and sentence defendant accordingly. Defendant indicated that he understood. Defense counsel stated that the future court’s determination would be “subject to defense motions and what is commonly known as a Romero motion . . . .” The prosecutor stated “it would also be agreed that district attorney discovery pages one through eight would be received in evidence to determine whether it’s a strike. I would ask the minute order state that for future reference.”
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
The trial court stated “the D.A. Discovery one through eight will be made part of the court file. . . . for the purposes of factual basis,” as well as for the purpose of allowing it to be “scrutinized in the event there are any future convictions to determine whether this is a strike offense or not.” Defense counsel agreed. Defendant indicated that he understood. He then pleaded guilty to assault by means of force likely to produce great bodily injury.
The trial court asked if the parties stipulated to a factual basis for the plea. Defense counsel replied, “[s]o stipulated.” The prosecutor replied, “[t]he People provide district attorney discovery pages one through eight.” The court found a factual basis based upon the stipulation and “upon the discovery that is intended to be produced.”
The plea form indicated that the plea defendant was entering “may result” in his conviction of one or more strikes. The form also indicated defendant’s agreement that there was a factual basis for his plea.
The Discovery consists of a Yreka Police Department crime report, a report by an Officer Gilman, a statement by the victim, the victim’s discharge instructions from Mercy Medical Center Mt. Shasta, and her aftercare instructions from Fairchild Medical Center. These documents indicate that defendant personally struck the victim with his hand and arm, which were in a cast, causing her great bodily injury (fractured ribs, internal bleeding, and a bruised kidney).
Background -- 2007 Proceedings
In the present case, defense counsel filed a memorandum arguing that the 2001 assault was not a serious felony because the Discovery was not a part of the record of conviction and contained hearsay.
In June 2007, the trial court held a hearing on whether the 2001 prior conviction was a serious felony. The Discovery was received in evidence as People’s Exhibit 1; it had been subpoenaed from defense counsel’s file in case No. 01-716. The court took judicial notice of, inter alia, the plea form, minutes, reporter’s transcript, and abstract of judgment in case No. 01-716.
Defense counsel objected to the Discovery on hearsay grounds. He also objected that the Discovery was not part of the record of the prior conviction. Defense counsel argued that prior defense counsel (in the 2001 case) had said that the conviction would be subject to defense motions; further, he seemed to suggest that defendant had inadequate notice that the prior conviction might be treated as a strike.
The prosecutor countered that defendant had waived any hearsay objection to the Discovery when, as part of his 2001 plea bargain, the parties “agreed” that the Discovery “would be received in evidence to determine whether it’s a strike.” Defendant had agreed to the Discovery being considered by a future court (to determine whether the 2001 conviction was a strike) in exchange for the benefits of the 2001 plea bargain. The prosecutor argued that the bargain was made clear repeatedly throughout the change of plea transcript.
Defense counsel reiterated his argument that the future court’s determination would be subject to defense motions, which included his present hearsay objection.
The trial court found that “there was a stipulation that pages one through eight of D.A. discovery would constitute the factual basis for entry of that plea and, therefore, the conviction of the [section] 245(a)(1) back in 2001.” The court distinguished People v. Trujillo (2006) 40 Cal.4th 165 on the ground that it concerned a defendant’s post-conviction statement to a probation officer (not part of the record of conviction), whereas here “we are dealing with the stipulation that those particular discovery pages would constitute the factual basis of the entry of the plea.”
The trial court asked whether defendant had merely aided and abetted the 2001 offense. The prosecutor replied that defendant had personally hit the victim with a deadly or dangerous weapon (the cast) and personally inflicted great bodily injury. Defendant renewed his hearsay objection. He also argued that treating the 2001 prior conviction as a serious felony defied the 2001 plea agreement.
The trial court took the matter under submission. In its written ruling, the court reiterated that defendant’s hearsay objections were overruled. The court found that, as part of the 2001 plea, defendant “further acknowledged and counsel stipulated that the documents themselves, D.A. discovery pages 1-8 would constitute the factual basis for his guilty plea and that they would be received into evidence (at any future hearing) to determine whether [the 2001 assault] is a strike.” The court found that defendant personally inflicted great bodily injury on the victim in 2001. Accordingly, the court found that the 2001 assault conviction was a serious felony (§§ 667, subd. (a)(1), 1192.7, subd. (c)(8)), a strike (§ 667, subd. (e)), and the basis for a prior prison term (§ 667.5, subd. (b)).
Analysis
The determination of whether a prior conviction qualifies as a serious felony “is limited to an examination of the record of the prior criminal proceeding to determine the nature or basis of the crime of which the defendant was convicted.” (People v. McGee (2006) 38 Cal.4th 682, 691.) Allowing the trier of fact “‘to look to the record of the conviction -- but no further -- is [] fair: it effectively bars the prosecution from relitigating the circumstances of a crime committed years ago and thereby threatening the defendant with harm akin to double jeopardy and denial of speedy trial.’” (Id. at pp. 691-692, quoting People v. Guerrero (1988) 44 Cal.3d 343, 355; fn. omitted.)
Nothing in the 2001 plea agreement allowed the present trier of fact to look beyond the bounds of Guerrero. The prosecutor’s first comment, “it’s understood that the D.A. discovery pages in [case No.] 01-716 would be made a part of the record and could be considered by future court in evaluating whether this 245(a)(1) is a strike,” contemplated that the Discovery would be placed in the record where it would be cognizable per Guerrero. The prosecutor’s second comment, “it would also be agreed that District Attorney discovery pages one through eight would be received in evidence to determine whether it’s a strike,” must be read in light of his first comment that the discovery would be placed in the record. There is no indication that the second comment was intended to memorialize a waiver of Guerrero, which would allow the discovery to be “received in evidence” in subsequent cases even if, as it turned out, the discovery was not “made a part of the record” of the 2001 case. Had the parties intended to waive Guerrero, the prosecutor’s remarks about placing the discovery in the record would have been unnecessary. The trial court’s immediate response, “Okay. The D.A. discovery one through eight will be made part of the court file,” makes plain that the parties intended to comply with Guerrero and did not agree to waive it.
The parties agree that the Discovery was not, in fact, made a part of the record of conviction in case No. 01-716. The present trial court took judicial notice of case No. 01-716. Its summary of the file’s contents made no mention of the Discovery. The prosecutor orally acknowledged that the Discovery was not in the file. Moreover, his act of subpoenaing the Discovery from defense counsel’s file would be inexplicable had the pages been placed in the court file. We have augmented the present record to include the record in case No. 01-716. The Discovery is not included in our augmentation.
The prosecutor’s reported remark, “We are not in the court file,” is an apparent mistranscription. Referring to “pages one through eight of D.A. discovery,” the prosecutor evidently meant to say that “they” are not in the file.
As noted, the present trial court made an oral finding that “there was a stipulation that pages one through eight of D.A. discovery would constitute the factual basis for entry of that plea and, therefore, the conviction of the [section] 245(a)(1) back in 2001.” The court later made a written finding that, as part of the 2001 plea, defendant had acknowledged -- and his counsel had stipulated -- that the Discovery “would constitute the factual basis for his guilty plea . . . .”
The 2001 plea colloquy does not support these findings. Unlike cases relied upon by the Attorney General (People v. Otto (2001) 26 Cal.4th 200, 211 [stipulation that factual basis was contained in police reports]; People v. Sohal (1997) 53 Cal.App.4th 911, 916 [prosecutor stated factual basis, and defense counsel agreed]), defendant’s stipulation that there was a factual basis for his plea did not include his admission that the factual basis was contained in the Discovery. (Cf. People v. French (2008) 43 Cal.4th 36, 50-52.) Recognizing this state of affairs, the 2001 trial court found a factual basis based upon both defendant’s stipulation and the “discovery that is intended to be produced.” The parties’ discussion of factual basis did not include any stipulation that the Discovery could be considered regardless of whether the prosecutor complied with Guerrero.
The Attorney General claims the Discovery is part of the “record of conviction” because the record in case No. 01-716 could have been augmented to include the Discovery. He relies on People v. Abarca (1991) 233 Cal.App.3d 1347, which stated “‘the record of the prior conviction’ means all items that could have been used on appeal of that prior conviction, specifically, any items considered a normal part of the record under California Rules of Court, rule 33 [now rule 8.320] or by which it could be augmented pursuant to California Rules of Court, rule 12 [now rule 8.155].” (Abarca, supra, at p. 1350; further references to “rules” are to the California Rules of Court.) We disagree.
In People v. Reed (1996) 13 Cal.4th 217 the court cited Abarca’s definition of “the record of the prior conviction,” and also suggested a narrower definition, “referring only to those record documents reliably reflecting the facts of the offense for which the defendant was convicted.” (Id. at p. 223.) In this case, the Discovery is not within the narrow definition because it is not a “record document,” i.e., it was not made a part of the record in case No. 01-716. We need not consider whether the Discovery “reliably reflect[s] the facts of” the 2001 offense within the meaning of Reed. (Ibid.)
The Discovery would not have been a part of the normal record on appeal as defined in rule 8.320(b), which concerns the clerk’s transcript. Because the Discovery related to the present charge in case No. 01-716, it would not have been a document “admitted in evidence to prove a prior . . . criminal conviction” in that case. (Rule 8.320(b)(13)(C).) Nor was the Discovery an “[e]xhibit[] admitted in evidence, refused, or lodged” with the court. (Rule 8.320(e).)
The Discovery could not have been the proper subject of an application for addition to the normal record, because it had not been a part of any written motion by either party. (Rule 8.324(b)(1).) Because the Discovery could not have been the subject of an order under rule 8.324, the superior court clerk would not have been obligated to copy and certify the Discovery. (Rule 8.340(b)(1); see Advisory Com. com., 23 pt. 3 West’s Ann. Codes, Rules (2006 ed.) foll. rule 8.340, p. 266.)
We reject the Attorney General’s contention that the trial court’s order that the Discovery “will be made part of the court file” obligated the clerk to copy and certify the Discovery under rule 8.340(b)(1). Even if the court’s order obligated the clerk to do so, the clerk could not comply because the Discovery was not in the court file.
The Discovery is not subject to an augmentation order (rule 8.155(a)(1)(A)), because it was not “filed or lodged in the case in superior court.” The trial court’s reference to the “discovery that is intended to be produced” supports an inference that the discovery was not filed or lodged because it was not present in court at the time of defendant’s plea. (Italics added.)
Because the Discovery was not part of the record of conviction within the meaning of Guerrero, we need not consider the Attorney General’s contention that defendant has forfeited any hearsay or confrontation clause objections that might have been asserted had the Discovery been part of the record of conviction. The rulings that the 2001 offense was a serious felony and a strike must be reversed.
The Attorney General claims the serious felony and strike allegations can be retried. He relies on People v. Thoma (2007) 150 Cal.App.4th 1096, which held that, notwithstanding the insufficiency of the evidence, retrial of a strike allegation was not barred. (Id. at p. 1104.) Thoma reached that conclusion without identifying any items of evidence in the record of the prior conviction that were admissible per Guerrero and could produce a true finding upon retrial.
Thoma’s only cited authority is People v. Barragan (2004) 32 Cal.4th 236, which held that retrial of a strike allegation is permissible where proof of a prior juvenile adjudication was insufficient in that only a true finding at the jurisdiction hearing, and not a declaration of wardship at the disposition hearing, had been shown. (Id. at pp. 240, 259.) Because any wardship declaration would have been part of the record of the prior adjudication, evidence of such declaration could be admitted at a retrial without contravening Guerrero.
In this case, the entire record of case No. 01-716 -- everything that could possibly be admitted per Guerrero -- is before us. The Attorney General identifies nothing in that record that could yield true findings upon retrial of the serious felony and strike allegations. Thus, this is not a case in which “‘the defects in the proof of the prior conviction[] [are] capable of correction on a retrial . . . .’” (People v. Barragan, supra, 32 Cal.4th at p. 243, quoting People v. Morton (1953) 41 Cal.2d 536, 544.) Under these circumstances, remand for retrial would be futile.
II
Defendant contends his count 3 conviction of child endangerment (§ 273a, subd. (a)) is not supported by sufficient evidence that he had “care or custody” of his sister’s daughter, Savanna. This claim has merit.
“‘To determine sufficiency of the evidence, we must inquire whether a rational trier of fact could find defendant guilty beyond a reasonable doubt. In this process we must view the evidence in the light most favorable to the judgment and presume in favor of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. To be sufficient, evidence of each of the essential elements of the crime must be substantial and we must resolve the question of sufficiency in light of the record as a whole.’” (People v. Carpenter (1997) 15 Cal.4th 312, 387, quoting People v. Johnson (1993) 6 Cal.4th 1, 38; see Jackson v. Virginia (1979) 443 U.S. 307, 317-320 [61 L.Ed.2d 560, 572-574].)
“Section 273a [subdivision (a)] is an omnibus statute that proscribes essentially four branches of conduct. [It provides]: ‘Any person who, under circumstances or conditions likely to produce great bodily harm or death, [1] willfully causes or permits any child to suffer, or [2] inflicts thereon unjustifiable physical pain or mental suffering, or [3] having the care or custody of any child, willfully causes or permits the person or health of [that] child to be injured, or [4] willfully causes or permits [that] child to be placed in such situation that its person or health is endangered, is punishable by imprisonment in the county jail not exceeding one year, or in the state prison for [two, four, or six] years.’ [Citation.]” (People v. Sargent (1999) 19 Cal.4th 1206, 1215.)
The second amended information charged defendant with violation of all four branches. It provided: “CHILD ENDANGERMENT: The said ARON EZRA WESSEL on or about December 24, 2005, did willfully and unlawfully, under circumstances likely to produce great bodily harm and death, injure, cause, and permit a child S.T. (DOB: 7-25-97), to suffer and to be inflicted with unjustifiable physical pain and mental suffering, and, having the care and custody of said child, injure, cause, and permit the person and health of said child to be injured and did willfully cause and permit said child to be placed in such situation that his/person and health was/were endangered, violating Section 273a(a) of the California Penal Code, a felony.”
However, the jury was instructed only on branch four (while having custody, defendant caused or permitted the child to be placed in danger). The instruction provided, in relevant part: “The Defendant is charged in Count 3 with child abuse likely to produce great bodily harm or death. To prove that the defendant is guilty of this crime, the People must prove the defendant, while having the care, custody of the child, willfully caused or permitted the child to be placed in a situation where the child’s person or health might have been endangered and the defendant caused or permitted the child to be [endangered] under circumstances or conditions likely to produce great bodily harm or death and the defendant was criminally negligent when he caused or permitted the child to suffer or be endangered.”
“‘The terms “care or custody” do not imply a familial relationship but only a willingness to assume duties correspondent to the role of a caregiver.’ [Citation.]” (People v. Toney (1999) 76 Cal.App.4th 618, 621-622, quoting People v. Cochran (1998) 62 Cal.App.4th 826, 832.)
Thus in People v. Malfavon (2002) 102 Cal.App.4th 727, the evidence was sufficient where the defendant admitted on cross-examination that he “had the responsibility for watching” the child while her mother went upstairs to an apartment. Moreover, the mother testified that she had left the child in the defendant’s care in the past. (Id. at p. 737.)
Similarly in People v. Culuko (2000) 78 Cal.App.4th 307 the evidence was sufficient where the defendant (the mother’s boyfriend) had babysat the child and had admittedly taken the responsibility for watching him the day of the death. (Id. at p. 335.)
In People v. Toney, supra, 76 Cal.App.4th 618 the evidence was sufficient where the defendant married the child’s mother, who moved into his home. He also invited the child into his home, gave him a room of his own, and allowed him to use an area in the living room where the child’s paperwork was found. (Id. at p. 622.)
In People v. Cochran, supra, 62 Cal.App.4th 826, the evidence was sufficient where the child lived in the house at the invitation of the defendant, who had assumed a parent-like role. The defendant was, as the mother described, a surrogate father for the child. (Id. at p. 833.)
In this case, Duckworth testified that: (1) defendant lived with his sister, Jennifer, the mother of Savanna. Jennifer testified that (2) Savanna was at the residence on the night of the shooting. Savanna testified that: (3) defendant is her uncle, (4) she saw defendant shoot Duckworth, and (5) defendant drove Savanna to an aunt’s house after the shooting.
The Attorney General argues it is reasonable to infer that, as an adult relative living in the home, defendant had provided some care giving to Savanna. “That [defendant] drove Savanna to her aunt’s house suggests this.” Defendant counters that his actions after the shooting, which had created an emergency situation, allow only a speculative inference as to the nature of his relationship with Savanna prior to the shooting. Defendant has the better argument.
The remaining points noted above do little to flesh out a relationship involving care and custody. The evidence on count 3 is far thinner than in any of the cases discussed above. Because Jennifer and Savanna both testified, the prosecutor’s failure to address the issue with either of them is inexplicable. Viewing the evidence in the light most favorable to the judgment and presuming the existence of every fact the trier of fact could reasonably deduce from the evidence, we cannot say the record contains substantial evidence that defendant had care or custody of Savanna. (People v. Carpenter, supra, 15 Cal.4th at p. 387.) Count 3 is reversed and retrial thereon is prohibited. (People v. Brock (1985) 38 Cal.3d 180, 198.)
III
Defendant contends the prosecutor committed misconduct during his closing summation by: (1) comparing the reasonable doubt standard to a jigsaw puzzle with some missing pieces, and (2) using the term “comfortably satisfied” during his argument about the jigsaw puzzle. He claims his trial counsel’s failure to object to the misconduct constituted ineffective assistance. We are not persuaded.
The jury was instructed with Judicial Council of California Criminal Jury Instructions (2007-2008), CALCRIM No. 220 on reasonable doubt. At the end of his closing summation, the prosecutor stated: “Now, when I was a kid on rainy days my mom used to have these boxes of puzzles anywheres from 500 to a thousand pieces. First thing you would do if you wanted to put the puzzle together is you would get the pieces on the edge and you started putting them together because they always had a straight edge. They were easy to identify. All the rest of them had squiggly things and you didn’t know where in the heck they went. Maybe if there was a major color contrast, you could tell where they would go and so forth. [¶] So we kids would sit around the table and start to put these puzzles together. And as the puzzle starts to come together, you can find that every once in a while you will find that there is a missing piece and when you get the puzzle, oh, 80 or 90 percent put together, sometimes you’ll have a whole section that you can’t see and there will be pieces here and there and -- but when you step back and you look at it, it’s kind of like, oh, god, I could tell what that is. That is a table with a vase on it and it’s got flowers in it. But there is a missing piece here, and there is a missing piece here and this is all missing here, this is missing here, but you could still tell it’s a table with a vase and flowers in it. [¶] That’s kind of like what beyond a reasonable doubt is. If you raise questions about, well, what about this and what about this and what about that, you say, oh, geez, you can’t tell what that is unless you have all those pieces. That’s not true. That is just like deciding the case, a criminal case. If questions are raised about what missing pieces are, what if this, what if that, what do you know, what’s that. You don’t need to know those if it’s proven beyond a reasonable doubt. [¶] Beyond a reasonable doubt just means that you have to be comfortably satisfied to know what is and if you can say, ‘yeah, there is missing pieces and we don’t know the answers to that, the cops could have done this or they could have done that, but they didn’t, but that’s okay because we can tell it’s a table with a vase and flowers.’ [¶] So I submit to you when you take count number 1, you look at the evidence in this case, and you look at the credible evidence in this case, the physical evidence compared to what the people say like Duckworth, for example, and Savanna had to say about the shooting, ‘I am going to shoot him, I’m going to kill him, I’m going to shoot him in the head, now I am going to have to go to jail because of you, because I am going to shoot him, that is why I’m going to have to go to jail because of you,’ that is the premeditation and the deliberation that is necessary for count 1. That is what he said he was going to do. That is what he did. [¶] I submit to you as to count 1 your verdict should be guilty of attempted murder with the use -- intentional use of a firearm causing great bodily injury. [¶] Thank you.”
CALCRIM No. 220 told the jury:
“‘“The applicable federal and state standards regarding prosecutorial misconduct are well established. ‘“A prosecutor’s . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct ‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.’”’ [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ‘“‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’”’ [Citation.]” [Citation.]’ [Citation.]” (People v. Stanley (2006) 39 Cal.4th 913, 951.)
“Regarding the scope of permissible prosecutorial argument, ‘“‘a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] It is also clear that counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature.’ [Citation.] ‘A prosecutor may “vigorously argue his case and is not limited to ‘Chesterfieldian politeness’” [citation], and he may “use appropriate epithets . . . .”’” [Citation.]’ [Citation.] [¶] Finally, ‘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.]” (People v. Stanley, supra, 39 Cal.4th at pp. 951-952.)
Defendant concedes that his trial counsel neither made an assignment of misconduct nor requested that the jury be admonished. He claims there could be “no conceivable tactical purpose” for counsel’s omissions, because the prosecutor’s argument lessened the burden of proof and made it easier to convict defendant. (Citing e.g., People v. Hines (1997) 15 Cal.4th 997, 1064.) He claims there is a reasonable likelihood the jury applied the prosecutor’s remarks in an objectionable fashion and a reasonable probability that, but for his trial counsel’s failure to object, the result of the proceeding would have been different. We are not convinced.
“The standard for establishing ineffective assistance of counsel is well settled. A defendant must demonstrate that: (1) his attorney’s performance fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been more favorable to the defendant. [Citation.] A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.]” (People v. Stanley, supra, 39 Cal.4th at p. 954.)
In this case there is no reasonable probability that the result of the proceeding would have been more favorable absent the prosecutor’s argument. In People v. Wilds (N.Y.App.Div. 1988) 529 N.Y.S.2d 325, on which defendant relies, the trial court used the analogy of a jigsaw puzzle of Abraham Lincoln. The appellate court held this was error because “the average American juror would recognize a jigsaw puzzle of Abraham Lincoln long before all of the pieces are in place. Obviously, this is not the quantum of proof required in a criminal case.” (Id. at p. 327.)
Here it was the prosecutor, not the trial court, who used the puzzle analogy; he did so only after the court had properly instructed the jury on reasonable doubt and cautioned that its instructions prevailed over any contrary suggestion in the attorneys’ arguments. If any juror believed the prosecutor’s argument lessened his burden of proof, the juror was obligated to disregard it. Moreover, the prosecutor’s analogy -- a table with a vase and flowers -- carefully avoided the vice of the Wilds analogy by employing ordinary and ubiquitous objects instead of the distinctive image of Abraham Lincoln.
In United States v. Pungitore (3d Cir. 1990) 910 F.2d 1084 the prosecutor used his opening statement to analogize the unfolding of events to a jigsaw puzzle. In summation, one of the defendants’ counsels adopted the jigsaw puzzle analogy, arguing that many pieces of the puzzle were missing and that other pieces were not genuine. In rebuttal, the prosecutor conceded that some pieces were missing but argued that the puzzle as a whole was sufficiently completed to preclude any reasonable doubt as to the subject matter of the picture. The prosecutor then added that the prosecution’s case was analogous to a 500-piece puzzle with eight pieces missing. Defense counsel objected, and the trial court gave a curative instruction as requested by counsel. The appellate court found that the prosecutor’s argument improperly suggested a quantitative measure of reasonable doubt, but found that the defendants were not prejudiced, in that the prosecutor’s argument was a fair reply to defense counsel’s argument. (Id. at p. 1128.)
In this case, the prosecutor’s argument did not suggest any quantitative measure of reasonable doubt such as eight pieces out of 500. It is not reasonably probable that any juror understood the argument as lessening reasonable doubt, or that defendant could have fared any better had his trial counsel objected to the jigsaw puzzle analogy.
This leaves the prosecutor’s statement, “Beyond a reasonable doubt just means that you have to be comfortably satisfied to know what is . . . .” Defendant claims “comfortably satisfied” is “a far less rigorous standard” than beyond a reasonable doubt. He relies on People v. Nguyen (1995) 40 Cal.App.4th 28, in which the prosecutor told the jury that people use the reasonable doubt standard “every day” when making “important decisions” such as “whether you want to get married” or whether to “change lanes as you’re driving.” (Id. at p. 35.) The appellate court disapproved the argument, explaining, “The prosecutor’s argument that people apply a reasonable doubt standard ‘every day’ and that it is the same standard people customarily use in deciding whether to change lanes trivializes the reasonable doubt standard. It is clear the almost reflexive decision to change lanes while driving is quite different from the reasonable doubt standard in a criminal case. The marriage example is also misleading since the decision to marry is often based on a standard far less than reasonable doubt, as reflected in statistics indicating 33 to 60 percent of all marriages end in divorce. [Citations.]” (Id. at p. 36.)
Nguyen is distinguishable because the present jurors were not told that people apply a reasonable doubt standard every day, such as when changing lanes or deciding to get married. The prosecutor did not state or imply that being “comfortably satisfied” with respect to everyday decisions requires the same degree of proof as being comfortably satisfied that guilt has been shown beyond a reasonable doubt. Any reasonable juror instructed with CALCRIM No. 220 would know that being comfortably satisfied as to the latter requires an abiding conviction. We presume that the jury followed the instruction and that the error was thereby rendered harmless. (People v. Nguyen, supra, 40 Cal.App.4th at p. 37.) Trial counsel’s failure to object to the argument could not have been prejudicial. (Id. at p. 37, fn. 2.)
Although we conclude the argument was not prejudicial, we nevertheless disapprove its use in future cases.
IV
The Attorney General contends defendant’s state prison sentence erroneously omitted the minimum parole eligibility term for count 1. We agree.
As noted, defendant was sentenced to state prison on count 1 for 30 years to life, consisting of 25 years to life for the intentional and personal discharge enhancement plus five years for the prior serious felony enhancement. The trial court was aware that attempted premeditated murder with one prior strike is punishable by an indeterminate term of 14 years to life. (§§ 187, subd. (a), 664, subd. (a), 667, subd. (e)(1), 3046, subd. (a)(1).) But the court believed that “the court actually saying something about the parole is really not part of the sentence. That’s something that the parole board, the Department of Corrections does.”
In People v. Jefferson (1999) 21 Cal.4th 86 the Court of Appeal reached the same conclusion that the trial court reached here. The Court of Appeal held that the trial court’s oral pronouncement of sentence should not have included the minimum term established by sections 186.22 and 3046, because the question of when defendants should be released on parole is “‘a matter addressed by the Board of Prison Terms in determining the prisoner’s parole eligibility.’” (Id. at p. 101, fn. 3.)
On the defendants’ appeal to the Supreme Court, the Attorney General contended it was “not improper” for the trial court to include, as part of a defendant’s sentence, the minimum term of confinement the defendant must serve before becoming eligible for parole. The Supreme Court agreed with the Attorney General, explaining, “[b]y including the minimum term of imprisonment in its sentence, a trial court gives guidance to the Board of Prison Terms regarding the appropriate minimum term to apply, and it informs victims attending the sentencing hearing of the minimum period the defendant will have to serve before becoming eligible for parole.” (People v. Jefferson, supra, 21 Cal.4th at p. 101, fn. 3.) The Court of Appeal’s judgment, ordering the trial court to strike the minimum terms, was reversed. (Id. at p. 102.)
Defendant reads the words, “not improper . . . to include . . . the minimum term,” as being “permissive, not mandatory.” In his view, “[t]he high court did not state it is error to fail to include the minimum term.” We disagree. By reversing the Court of Appeal’s order to strike the minimum term, the Supreme Court effectively held that omission of the minimum term, as that order had directed, would have been error.
Because the true findings on the serious felony and strike allegations have been reversed (part I, ante), defendant’s minimum parole eligibility period is 7 years for the count 1 offense (§ 3046, subd. (a)(1)), plus 25 years for the firearm enhancement, for a total of 32 years.
DISPOSITION
The judgment is modified as follows: defendant’s count 3 conviction is reversed and retrial thereon is barred. The true findings on the serious felony and strike allegations are reversed. The sentence on count 1 is 32 years to life. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation.
We concur: NICHOLSON, J., BUTZ, J.
The fact that a criminal charge has been filed against the defendant is not evidence that the charge or charges are true. You must not be biased against the defendant just because he has been arrested or charged with a crime or brought to trial. “The defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. “Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt unless I specifically tell you otherwise. “Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charges is [sic] true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. “In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all of the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.”