Opinion
D057736
08-30-2011
THE PEOPLE, Plaintiff and Respondent, v. ALEJANDRO RAPHAEL AHUMADA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. FVA800207)
APPEAL from a judgment of the Superior Court of San Bernardino, Stephan G. Saleson, Judge. Affirmed.
I.
INTRODUCTION
A jury found Alejandro Raphael Ahumada guilty of first degree murder (Pen. Code, §§ 187, subd. (a), 189) (count 1) and possession of a firearm by a felon (§ 12021, subd. (a)(1)) (count 2). With respect to count 1, the jury found that Ahumada personally and intentionally discharged a firearm, which proximately caused great bodily injury and death within the meaning of section 12022.53, subdivision (d). The trial court sentenced Ahumada to 50 years to life on count 1 and stayed imposition of a three-year sentence on count 2.
Unless otherwise specified, all subsequent statutory references are to the Penal Code.
On appeal, Ahumada claims that the trial court erred in admitting evidence of his membership in a gang and in admitting testimony that Ahumada acknowledged having committed the murder for a prison gang. Ahumada also claims that the trial court erred in admitting a police officer's testimony concerning a witness's statements to the police that inculpated Ahumada. Specifically, Ahumada claims that the trial court erred in concluding that the witness's testimony was admissible as a prior consistent statement. Finally, Ahumada claims that the prosecutor committed misconduct during closing argument in discussing the reasonable doubt standard, and that defense counsel provided ineffective assistance in failing to object to the prosecutor's comments. We affirm the judgment.
II.
FACTUAL BACKGROUND
A. The prosecution's evidence
1. The events surrounding the murder
Veronica Sotello met the victim, Frederick Hoyle, in late 2004. Sotello assisted Hoyle in fixing up his house, with the understanding that Hoyle would pay her after the house sold. During this period, Sotello and Hoyle used methamphetamine together regularly. On March 10, 2005, Hoyle transferred title to the house to a new owner. However, Hoyle continued to live in the house while he completed some final repairs. On March 14, Hoyle withdrew $5,000 in cash from his bank and wired $67,000 to another bank.
On March 15, Louis Dominguez made arrangements with Kimberly Ferguson to borrow her car to drive Sotello and Ahumada to Hoyle's house. Ferguson and Sotello were close friends, and Dominguez and Ahumada would regularly visit Ferguson's residence. Dominguez, Sotello, and Ahumada left Hacienda Heights sometime between 10:00 p.m. and 11:00 p.m. that evening for the approximately 45-minute drive to Hoyle's home in Upland.
That same evening, James Bower and his girlfriend, Elizabeth Ricabal, were visiting Hoyle at his home. All three were using methamphetamine. The group had been at Hoyle's house since approximately 8:00 p.m. At around 10:00 p.m., Bower's friend, Steve Lemm, arrived at Hoyle's house to collect money that Hoyle owed Lemm for drugs that Hoyle had purchased.
A short time after that, Dominguez, Ahumada, and Sotello arrived at Hoyle's residence. Ahumada and Sotello went to the door, while Dominguez remained in the car. Ahumada rang the doorbell and told Sotello, "Just be quiet and do . . . what I say." When Hoyle answered the door, Ahumada told Hoyle that Sotello owed Ahumada $3,500 from a drug deal. Sotello then asked Hoyle if he could help her pay the debt. Lemm, who had been planning on leaving, overheard the conversation and asked Hoyle if he wanted Lemm to stay. Hoyle responded that he would be "okay."
Hoyle, Sotello, and Ahumada went upstairs, where they met with Ricabal and Bower. Ricabal noticed that Ahumada had an "S" tattooed on his head and, in the ensuing conversation, learned that Ahumada was a member of the San Gabriel Valley gang. Ahumada asked Hoyle if he would help Sotello pay the drug debt. Ricabal told Hoyle that he did not have to pay the money. After Ricabal made this comment, Ahumada gave Ricabal several "hard stares." When Ricabal continued to interject in the conversation that Hoyle did not have to pay Sotello's debt, Ahumada briefly brandished a small Uzi.
At some point in the conversation, Hoyle mentioned that he was looking to meet a "girl." Ahumada told Hoyle that he knew some "girls" and the two left the room to talk privately. Hoyle and Ahumada eventually decided to leave in Hoyle's Hummer. Ricabal heard Hoyle say, "Come on. Let go to the bar, let's go to the bar." Hoyle and Ahumada then went outside. Bower heard Hoyle yelling outside the house and saw Hoyle standing near Dominguez, who was holding a stick or club. Bower and Ricabal saw Ahumada intervene, calm Hoyle down, and diffuse the confrontation.
In the months prior to his death, Hoyle was frequently attempting to meet prostitutes.
After the skirmish, Ahumada and Hoyle got into Hoyle's yellow Hummer. Ahumada was driving. Sotello and Dominguez got into Ferguson's car and followed the Hummer onto the freeway. While they were driving, Sotello saw a spark or flash inside the Hummer. At the same moment, the Hummer swerved, and then quickly sped off. Sotello and Dominguez lost sight of the Hummer.
At approximately 2:15 a.m. that morning, Randy Johnson was sitting in a truck in a parking lot in nearby Fontana. Johnson saw a yellow Hummer pull into the lot. Later that day, at approximately 7:30 p.m., another truck driver looked inside the Hummer and discovered Hoyle, slumped over in the passenger seat. The driver notified a coworker, who called 911. Paramedics arrived and discovered that Hoyle was dead. Paramedics determined that Hoyle had suffered "obvious gunshot wounds."
2. Ahumada's admissions
Later that same day, March 16, Ahumada told Ferguson that he had killed Hoyle. Ahumada told Ferguson that he had killed Hoyle because Hoyle had "scratched his face," while Ahumada was driving the Hummer. According to Ferguson, Ahumada said, " 'We were driving and the fucking punk grabbed my fucking face.' " Ferguson noticed that Ahumada's face was scratched. A day or so later, Ahumada told Sotello, "nobody touches [my] face," and said that he had killed Hoyle. Ahumada then told Sotello to be "quiet" or he would hurt her or her family.
Thomas Murphy, who had been in prison with Ahumada prior to the trial, testified that Ahumada admitted that he had killed Hoyle for a prison gang.
3. Physical evidence
An autopsy revealed that Hoyle had been shot eight times at close range, and that he died from multiple gunshot wounds. Gunshot trajectories indicated that Hoyle was likely shot while seated in the passenger seat, by a person seated in the driver's seat. Ahumada's DNA was found on several of Hoyle's fingernails. B. The defense
Ahumada testified on his own behalf. Ahumada stated that on March 15, he and Dominguez agreed to go with Sotello to Hoyle's house. Ahumada claimed that he had "no idea" why they were going to Hoyle's house. Ahumada denied having asked Hoyle for money or having had a firearm in his possession while in Hoyle's house. Ahumada claimed that he agreed to accompany Hoyle in an attempt to find some "female companions" for Hoyle.
While they were leaving Hoyle's house, Ahumada diffused a confrontation between Hoyle and two unknown men who were in Hoyle's yard. Hoyle may have scratched Ahumada during the confrontation. Ahumada and Hoyle drove to the homes of several of Ahumada's female friends, but Ahumada was unable to find anyone for Hoyle to meet. Ahumada said that he eventually got out of the Hummer at a restaurant near his house, and that Hoyle drove away. Ahumada denied having shot Hoyle, and also denied having admitted to Ferguson, Sotello, or Murphy that he had shot Hoyle.
III.
DISCUSSION
A. Ahumada forfeited his claim that the trial court erred in admitting Ricabal's testimony pertaining to Ahumada's gang membership; the trial court did not abuse its discretion in admitting Murphy's testimony that Ahumada stated that he committed the murder for a prison gang
Ahumada claims that the trial court erred in admitting Ricabal's testimony pertaining to Ahumada's membership in the San Gabriel Valley gang. Ahumada also claims that the trial court erred in admitting Murphy's testimony that Ahumada told Murphy that he had committed the murder for a prison gang.
1. Factual and procedural background
a. Motion in limine proceedings
Prior to trial, Ahumada filed a motion in limine requesting that the court exclude as unduly prejudicial testimony and/or evidence that he was, or had been, in a gang, pursuant to Evidence Code section 352. At a hearing on Ahumada's motion, the prosecutor argued that several witnesses had identified Ahumada on the basis of his gang tattoos, and that this evidence was admissible for the purpose of establishing Ahumada's identity as the murderer. Defense counsel acknowledged that the fact that Ahumada had the letters "SGV" tattooed on his head was admissible. However, defense counsel argued that witnesses should not be permitted to testify, " 'Well, he's a gang member.' " Defense counsel argued that such testimony would be highly prejudicial and would have no probative value because the People had not filed any gang allegations against Ahumada.
The prosecutor responded by stating that the "SGV" tattoo on Ahumada's head would be plainly visible to the jury, and that it was likely that the jury would make assumptions as to the gang nature of the tattoo. The prosecutor suggested that a "limiting instruction may be necessary," stating, "I mean, it would be ignorant for us to sit in here and act like this elephant is not sitting in the room."
The court responded by stating, "I understand, that's kind of what I was getting at." The court proposed that it provide a limiting instruction to the jury to the effect that the jury not was not to consider evidence of Ahumada's membership in a gang in determining whether he was guilty of the charged offenses. Defense counsel indicated her agreement with the court's proposed resolution, stating that the court's proposed limiting instruction "sounded great." The court said that it would draft a limiting instruction and that the prosecutor and defense counsel could provide input concerning the wording of the instruction.
Specifically, the court stated:
"It sounds like, correct me if I'm wrong, rather than make it a mystery and have everybody wondering and thinking and going different directions and you don't know where they are going, to just simply [say] something along the lines of, '[Y]ou may hear mention in this case about gangs, or the word gangs, or that the defendant is a gang member, or he may not be a gang member, or he has tattoos or he doesn't. That is not your concern with regard to the evidence in this case. [¶] Mr. Ahumada can't be convicted because you hear that maybe he is a member of a gang or maybe he is not, or anything, or he may or may not have a tattoo that means something to do with gangs. That is not the basis of this charge. There is no gang allegation present. You are not to even consider guilt or innocence in the case based on the fact that you may or may not think that Mr. Ahumada is now, has been or has ever been related to a gang.' Something like that."
The prosecutor also argued that she should be permitted to present Murphy's testimony that Ahumada told him that Ahumada had committed the murder for Eme, a prison gang. The prosecutor argued that the evidence was admissible to prove the premeditation and deliberation element of first degree murder, and was also relevant in establishing a motive for the crime. Defense counsel argued that Murphy's testimony should be excluded in its entirety under Evidence Code section 352 as overly prejudicial. In the alternative, defense counsel requested that the trial court prohibit Murphy from referring to Eme. The court overruled defense counsel's objection in its entirety, and ruled that Murphy could testify that Ahumada told him that Ahumada committed the murder for Eme.
b. The limiting instruction
At the beginning of the second day of the jury trial, the trial court read the following limiting instruction to the jury:
"Throughout the course of the trial, you may hear information about the defendant's involvement in a criminal street gang. That information is being offered for the limited purpose of identification or explaining the actions of witnesses.
"The defendant, Alejandro Ahumada, is not charged in this case with any gang allegations. You are instructed that you are not to consider any information about criminal street gangs or affiliation as proof that the defendant committed the crimes charged in the Information."
Later during the trial, outside the presence of the jury, the court stated that it intended to "reread the limiting instruction that both parties agreed to." Defense counsel responded, "That sounds good." During its final jury instructions, the court reread the limiting instruction to the jury.
c. Ricabal's testimony
Ricabal testified concerning the events at Hoyle's house on the night of the murder. Ricabal stated that a woman named Veronica and a man had come to Hoyle's house and requested that Hoyle loan them money to help pay a debt that Veronica owed. Ricabal noticed that the man had a tattoo of the letter "S" on his head. Ricabal claimed that she had a private discussion with Veronica about other possible ways that Veronica could obtain the money to pay her debt, and that Veronica stated that she might be able to "hock" a ring that belonged to her mother. Ricabal stated that she raised this idea with the man with the tattoo, and that the man gave Ricabal "a very hard look."
Ricabal agreed with the prosecutor that Ricabal had told the man with the tattoo that she "kn[e]w all about San Gabriel Valley." The prosecutor asked Ricabal how she knew that the man was "from San Gabriel Valley." Ricabal responded that she "believe[d] it was mentioned," but that she "[didn't] know." The prosecutor asked Ricabal, "What happens after you talk about the gang?" Ricabal responded by clarifying when it was that she had learned that the man was from the San Gabriel Valley gang, stating, "I think it was in the bathroom."
d. Murphy's testimony
Murphy testified that Ahumada told him that Ahumada killed Hoyle for Eme. Murphy further testified that Eme is a Hispanic prison gang.
Specifically, Murphy testified as follows:
"[Prosecutor]: . . . Do you recall telling the police that [Ahumada] told you it was for Eme?
"[Murphy]: Something like that, uncle.
"[Prosecutor:] Okay. His uncle?
"[Murphy]: Right.
"[Prosecutor]: And just what is Eme, by the way?
"[Murphy]: It's the Hispanic Mafia.
"[Prosecutor]: Hispanic Mafia. And it's a prison gang?
"[Murphy]: Okay.
"[Prosecutor]: Is that 'yes'?
"[Murphy]: Yes, I guess."
2. Governing law
a. The admissibility of evidence of a defendant's gang membership
"Evidence of the defendant's gang affiliation . . . can help prove . . . motive, . . . specific intent, . . . or other issues pertinent to guilt of the charged crime." (People v. Hernandez (2004) 33 Cal.4th 1040, 1049 (Hernandez).) "Thus, as [a] general rule, evidence of gang membership and activity is admissible if it is logically relevant to some material issue in the case, other than character evidence, is not more prejudicial than probative and is not cumulative. [Citation.] Consequently, gang evidence may be relevant to establish the defendant's motive, intent or some fact concerning the charged offenses other than criminal propensity as long as the probative value of the evidence outweighs its prejudicial effect. ([Citation]; see generally Evid. Code, § 352.)" (People v. Albarran (2007) 149 Cal.App.4th 214, 223-224.)
Evidence Code section 352 provides, "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
"For this purpose, ' "prejudicial" means uniquely inflammatory without regard to relevance.' [Citation.] 'Evidence is substantially more prejudicial than probative [citation] if . . . it poses an intolerable "risk to the fairness of the proceedings or the reliability of the outcome" [citation].' [Citation.]" (People v. Lindberg (2008) 45 Cal.4th 1, 49.) An appellate court "review[s] a trial court's decision whether to exclude evidence pursuant to Evidence Code section 352 for abuse of discretion. [Citation.]" (People v. Lindberg, supra, at p. 49.)
b. The contemporaneous objection requirement
Evidence Code section 353, subdivision (a) provides that a judgment shall not be reversed due to improperly admitted evidence unless "[t]here appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion." Thus, a defendant forfeits any appellate claim that evidence was improperly admitted at trial unless he makes a proper contemporaneous objection to the admission of the evidence in the trial court. (E.g., People v. Moore (2011) 51 Cal.4th 1104, 1138 ["Defendant . . . forfeited this claim by failing to object to the evidence at trial"].)
"Generally when an in limine ruling that evidence is admissible has been made, the party seeking exclusion must object at such time as the evidence is actually offered to preserve the issue for appeal." (People v. Jennings (1988) 46 Cal.3d 963, 975, fn. 3; accord People v. Brown (2003) 31 Cal.4th 518, 547.) "The reason for this rule is that until the evidence is actually offered, and the court is aware of its relevance in context, its probative value, and its potential for prejudice, matters related to the state of the evidence at the time an objection is made, the court cannot intelligently rule on admissibility." (People v. Jennings, supra, at p. 975, fn. 3.)
3. Application
a. Ahumada forfeited his objection that the trial court erred in admitting testimony pertaining to his membership in the San Gabriel Valley gang
During the hearing on Ahumada's motion in limine, the trial court indicated that it would address the potential prejudice of the admission of evidence concerning Ahumada's gang tattoos and gang membership by way of a limiting instruction. Defense counsel stated that she agreed with the trial court's proposed manner of addressing the issue. During the trial, the court provided a limiting instruction to the jury. Defense counsel did not register an objection to either the content of the limiting instruction or to any of Ricabal's testimony concerning Ahumada's tattoos or their significance in identifying him as a gang member. Under these circumstances, Ahumada's motion in limine did not sufficiently preserve his appellate contention that the trial court erred in admitting testimony pertaining to his membership in the San Gabriel Valley gang. (See People v. Jennings, supra, 46 Cal.3d at p. 975, fn. 3.) Accordingly, we conclude that Ahumada has forfeited his claim that the trial court erred in admitting the evidence. (See e.g., People v. Moore, supra, 51 Cal.4th at p. 1138.)
b. The trial court did not abuse its discretion in admitting Murphy's testimony that Ahumada stated that he had committed the murder for Eme
The trial court could have reasonably concluded that Murphy's testimony that Ahumada told Murphy that he committed the murder for Eme was highly probative with respect to both the premeditation and deliberation element of first degree murder, and also to establish a motive for the crime. In addition, the trial court could have reasonably concluded that the probative value of this evidence was not substantially outweighed by the potential of undue prejudice stemming from the admission of the testimony at issue.
Ahumada's contention that the testimony was not properly admitted because the prosecutor did not argue that the killing was committed for any of the "typical motives for a gang-related crime," is unpersuasive. The fact that the prosecutor did not argue that the crime was committed for a typical motive did not lessen the probative value of the testimony in proving a motive for Hoyle's murder. We also reject Ahumada's contention that the trial court erred in admitting the testimony because the prosecution was not required to offer evidence of his motive, since it is well established that the prosecution may offer such evidence if it so chooses. (E.g. Hernandez, supra, 33 Cal.4th at p. 1049; accord CALCRIM 370 [prosecution need not prove that the defendant had motive to commit charged crime, but the jury may consider whether defendant had a motive in reaching its verdict].) Finally, contrary to Ahumada's contention in his brief, the fact that the prosecution presented evidence of other possible motives for the killing did not render pretextual the prosecution's reasons for offering Murphy's testimony.
Accordingly, we conclude that the trial court did not abuse its discretion in admitting Murphy's testimony that Ahumada stated that he had committed the murder for Eme. B. The trial court did not abuse its discretion in admitting a police officer's testimony concerning Ferguson's statements to the police
Ahumada claims that the trial court erred in admitting a police officer's testimony concerning statements that Ferguson made to the police about the murder. Ahumada claims that the statements were inadmissible hearsay, and that the statements did not meet the requirements for admission as prior consistent statements pursuant to Evidence Code section 791, subdivision (b). We review a trial court's ruling admitting evidence pursuant to an exception to the hearsay rule for an abuse of discretion. (People v. Alexander (2010) 49 Cal.4th 846, 908.)
1. Factual and procedural background
During direct examination, Ferguson testified that on the day after she allowed Dominguez to use her car, Ahumada bragged to her about having murdered Hoyle. Ferguson also stated that she told police about Ahumada's statements approximately two weeks after the murder. Ferguson said that she informed police about Ahumada's statements because she had hoped to receive favorable treatment in a separate criminal case pending against her. However, Ferguson explained that she had not in fact received any favorable treatment in the other matter, and that she had been sentenced to prison in that case. Ferguson also agreed with the prosecutor that "even today" no promises had been made to her, and that she was not going to "get anything . . . for testifying to this." Ferguson also indicated that she was not facing any criminal charges as of the time of the trial in this case. Ferguson acknowledged that the People had "put [her] up at a hotel so [the People] would know where to find [her]."
On cross-examination, Ferguson agreed with defense counsel's suggestion that she had spoken to the police in the hope of receiving favorable treatment in her then pending criminal case. Ferguson also testified that the People had provided her with food and lodging around the time of the trial in this case:
"[Defense counsel]: Now, you said that the District Attorney's Office isn't doing anything to help you at this point; is that right?On redirect, the prosecutor asked, "Being placed in a hotel so we would know where you are for trial, has that changed your testimony at all?" Ferguson responded, "No."
"[¶] . . . . [¶]
"[Ferguson]: No. No one is doing anything.
"[Defense counsel]: They put you up in a hotel?
"[Ferguson]: And?
"[Defense counsel]: How long have you been there?
"[Ferguson]: One night.
"[Defense counsel]: Are they paying for it?
"[Ferguson]: Yes. Ain't like I have nowhere to stay. I live somewhere; they just don't know where.
"[Defense counsel]: Are they paying for your food?
"[Ferguson]: Yes. I have money still.
"[Defense counsel]: Did you tell the District Attorney's Office that you were living on the streets?
"[Ferguson]: Yeah. They assumed that.
"[Defense counsel]: Is it true or not true?
"[Ferguson]: Well, no—yeah, it was at the time. But now I got my place back, so in Alhambra.
"[Defense counsel]: Are they paying for your hotel tonight?
"[Ferguson]: Yes."
Sergeant Gina Perez of the San Bernardino County Sheriff's Department testified concerning the statements that Ferguson made to the police approximately two weeks after the murder, in which she implicated Ahumada in the murder. Defense counsel raised a standing hearsay objection to Sergeant Perez's testimony. The trial court overruled the objection on the ground that Ferguson's statements were admissible as prior consistent statements.
2. Governing law
Evidence Code section 1236 provides, "Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement is consistent with his testimony at the hearing and is offered in compliance with Section 791."
Evidence Code section 791 provides in relevant part:
"Evidence of a statement previously made by a witness that is consistent with his testimony at the hearing is inadmissible to support his credibility unless it is offered after:
"[¶] . . . . [¶]
"(b) An express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen."
Where a party implies that a witness's testimony has been influenced by more than one source of improper motive, a prior consistent statement is admissible as an exception to the hearsay rule if the witness's statement was made before any one of the alleged grounds for bias arose. (People v. Jones (2003) 30 Cal.4th 1084, 1106-1107 [" 'a prior consistent statement is admissible if it was made before the existence of any one or more of the biases or motives that, according to the opposing party's express or implied charge, may have influenced the witness's testimony,' " quoting People v. Hayes (1990) 52 Cal.3d 577, 609].)
3. Application
It is undisputed that Ferguson's statements to the police were made well before the People agreed to provide Ferguson with lodging and money for food at the time of trial. Further, in light of defense counsel's questioning of Ferguson concerning her receipt of these benefits, the trial court could have reasonably exercised its discretion in determining that defense counsel had thereby made an implied charge that Ferguson's testimony was being influenced by her receipt of lodging and money for food from the People. While we acknowledge that Ferguson's desire to receive favorable treatment in her prior criminal matter may have constituted a stronger potential improper motive, the law is clear that a prior consistent statement is admissible if the witness's statement was made before any one of the alleged grounds for bias arose. (See, e.g., People v. Jones, supra, 30 Cal.4th at pp. 1106-1107.)
Accordingly, we conclude that the trial court did not abuse its discretion in admitting as prior consistent statements Sergeant Perez's testimony concerning Ferguson's statements, pursuant to Evidence Code sections 1236 and 791. C. Defense counsel's failure to object to the prosecutor's closing argument was not prejudicial
Ahumada claims that the prosecutor committed misconduct during closing argument by misstating the law concerning the "beyond a reasonable doubt" standard of proof, and that defense counsel provided ineffective assistance in failing to object to the prosecutor's comments.
1. Factual and procedural background
Ahumada claims that the italicized portion of the following comments that the prosecutor made during closing argument misstate the law concerning the beyond a reasonable doubt standard, and thus constitute misconduct:
"Now, just before I sit down, let me talk really briefly about reasonable doubt.
"The court read it to you and you heard about it. And reasonable doubt—and I talked a little bit about it back in jury selection. And I talked about the fact that reasonable doubt, it's a reasonable standard. I don't know if you can see that, but it says:
" 'Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is 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 the evidence that was received throughout the entire trial.'
"And that's what I really wanted you to focus on. Don't look at it in
pieces. This is big picture. We talked about this back in jury selection, big picture. Look at everything together.
"If you are sitting there and you are saying to yourself, 'I think he did it,' then it has been proven to you. Why? Because at the beginning of this trial, you knew nothing about this case. You developed that belief based on the evidence. So if you are sitting there and you are saying, 'I believe, I think he did this,' then it has been proven to you." (Italics added.)
Defense counsel did not object to the prosecutor's comments.
2. Governing law
a. Claims of prosecutorial misconduct
" '[I]t is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements. [Citation.]' [Citation.]" (People v. Hill (1998) 17 Cal.4th 800, 829-830.) " 'When a claim of misconduct is based on the prosecutor's comments 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.' " [Citation.]' [Citation.]" (People v. Gonzales (2011) 51 Cal.4th 894, 920.) "'In order to preserve a claim of misconduct, a defendant must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the claim of misconduct preserved for review.' [Citation.]" (Ibid.)
b. Ineffective assistance of counsel
To establish a claim of ineffective assistance of counsel, the defendant must show that counsel's performance was deficient in that it "fell below an objective standard of reasonableness," evaluated "under prevailing professional norms." (Strickland v. Washington (1994) 466 U.S. 668, 688; accord, People v. Ledesma (1987) 43 Cal.3d 171, 216.) If counsel's performance has been shown to be deficient, the defendant is entitled to relief only if he can also establish that he was prejudiced by counsel's ineffectiveness. (Strickland v. Washington, supra, at pp. 691-692; accord, People v. Ledesma, supra, at p. 217.) In order to show prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington, supra, at p. 694.)
3. Application
a. Ahumada forfeited his claim that the prosecutor's comments constituted misconduct
Ahumada's counsel did not object at trial to the prosecutor's comments. If counsel had done so, an appropriate admonition clearly would have cured any potential harm. (See People v. Green (1980) 27 Cal.3d 1, 34, 35, abrogated on another ground by People v. Martinez (1999) 20 Cal.4th 225, 241 and disapproved on another ground in People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3 [concluding defendant forfeited claim that prosecutor's "partial misstatement of the law of reasonable doubt," constituted misconduct because "any harm . . . could have been cured by appropriate admonition"]; People v. Nguyen (1995) 40 Cal.App.4th 28, 36 (Nguyen) [concluding defendant forfeited claim that prosecutor "committed misconduct by misstating the standard of reasonable doubt," because an "admonition by the court would have cured the error"].) We reject as speculative Ahumada's contention that the trial court "likely" would have provided the jury with an insufficient admonition; we may not presume that the trial court would have failed to provide an appropriate curative admonition. Accordingly, we conclude that Ahumada forfeited his claim that the prosecutor committed misconduct by misstating the law concerning the beyond a reasonable doubt standard.
b. Ahumada cannot prevail on his claim of ineffective assistance of counsel because defense counsel's failure to object to the prosecutor's closing argument was not prejudicial
We assume for purposes of this opinion that there is a reasonable likelihood that the prosecutor's closing argument could be construed as misstating the law concerning the beyond a reasonable doubt standard, and that the prosecutor's comments constituted misconduct. We further assume that defense counsel had no valid tactical reason for failing to object and request an admonition. Nevertheless, we conclude that we must reject Ahumada's claim of ineffective assistance of counsel because he has failed to demonstrate a reasonable probability that the outcome of his trial would have been different absent his counsel's failure to object.
We again "caution prosecutors," that "courts, recognizing the difficulty and peril inherent in such a task, have discouraged 'experiments' . . . in defining the 'beyond a reasonable doubt' standard." (People v. Katzenberger (2009) 178 Cal.App.4th 1260, 1269 (Katzenberger).)
To begin with, Ahumada seeks reversal of the judgment based on a single brief portion of the prosecutor's closing argument. " '[A]rguments of counsel "generally carry less weight with a jury than do instructions from the court. The former are usually billed in advance to the jury as matters of argument, not evidence [citation], and are likely viewed as the statements of advocates; the latter, we have often recognized, are viewed as definitive and binding statements of the law." ' " (Katzenberger, supra, 178 Cal.App.4th at p. 1268, citations omitted; accord Nguyen, supra, 40 Cal.App.4th at p. 36-37 [concluding prosecutor's closing argument that misstated reasonable doubt standard constituted harmless error where trial court properly instructed the jury on reasonable doubt standard].)
In Nguyen, the court concluded both that the defendant had forfeited his claim of prosecutorial misconduct on appeal (see pt. III.C.3.a., ante.) and, alternatively, that the prosecutor's misconduct constituted harmless error. (Nguyen, supra, 40 Cal.App.4th, at pp. 36, 37, fn. 2.)
In both Katzenberger and Nguyen, the principal cases upon which Ahumada relies, the Courts of Appeal held that prosecutorial arguments that "convey[ed] an impression of a lesser standard of proof than the constitutionally required standard of proof beyond a reasonable doubt," constituted harmless error. (Katzenberger, supra, 178 Cal.App.4th at p. 1268; see also Nguyen, supra, 40 Cal.App.4th at p. 36 [prosecutor's closing argument that "trivialize[d] the reasonable doubt standard" constituted harmless error].) Further, unlike in Katzenberger and Nguyen, in which the prosecutors expressly purported to explicate the reasonable doubt standard, the prosecutor's comments in this case are far more ambiguous with respect to their meaning. While we assume for purposes of this decision that the prosecutor's comments could reasonably be interpreted as suggesting that the jury could find the defendant guilty beyond a reasonable doubt based on a mere thought or belief, the prosecutor did not directly tell the jury as much. In fact, just prior to making the comments at issue, the prosecutor read a proper reasonable doubt instruction to the jury. This instruction informed the jury that, " 'Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true.' " (CALCRIM 220, italics added.) (See Nguyen, supra, 40 Cal.App.4th at p. 36 [concluding prosecutor's closing argument that misstated reasonable doubt standard constituted harmless error where prosecutor directed jury to read reasonable doubt instruction].)
Even more importantly, the trial court properly instructed the jury pursuant to CALCRIM No. 220 that proof beyond a reasonable doubt "is proof that leaves you with an abiding conviction that the charge is true.' " "When argument runs counter to instructions given a jury, we will ordinarily conclude that the jury followed the latter and disregarded the former, for '[w]e presume that jurors treat the court's instructions as a statement of the law by a judge, and the prosecutor's comments as words spoken by an advocate in an attempt to persuade.' [Citation.]" (People v. Osband (1996) 13 Cal.4th 622, 717.) Thus, even assuming that the jury interpreted the prosecutor's remarks as arguing that the jury could find the defendant guilty based on a mere thought or belief, we presume that the jury followed the trial court's proper instruction. (See Katzenberger, supra, 178 Cal.App.4th at p. 1269 [presuming jury relied on trial court's jury instruction that correctly defined reasonable doubt]; Nguyen, supra, 40 Cal.App.4th at pp. 37 [same].)
Finally, the record contains considerable evidence of Ahumada's guilt. Numerous witnesses testified that Ahumada was attempting to get money from Hoyle at Hoyle's house on the night of the murder. Bower testified that Ahumada displayed a firearm in Hoyle's house before he and Hoyle got into Hoyle's Hummer and drove away. Ahumada admitted that he drove Hoyle's Hummer with Hoyle as a passenger on the night of the murder. Sotello testified that while she was driving behind Ahumada and Hoyle, she saw a flash appear inside the Hummer and that the Hummer simultaneously swerved on the highway. Sotello stated that the Hummer then sped off. Physical evidence recovered from the Hummer and from Hoyle's body was consistent with Hoyle having been shot while he was seated in the passenger seat by someone sitting in the driver's seat. Ahumada's DNA was found on Hoyle's fingernails. Ferguson, Sotello, and Murphy all testified that Ahumada admitted killing Hoyle. Ferguson and Sotello testified that Ahumada stated that he killed Hoyle because Hoyle had scratched his face.
Ahumada admitted that he was driving the Hummer with Hoyle as a passenger at approximately 12:30 a.m. on the morning of March 16. Johnson testified that he saw the Hummer in the truck parking lot in which Hoyle's body was subsequently discovered at approximately 2:15 a.m. that morning.
Under theses circumstances, we conclude that Ahumada has failed to demonstrate a reasonable probability that the outcome of his trial would have been different absent his counsel's failure to object to the prosecutor's closing argument. D. There is no cumulative error
Ahumada claims that to the extent this court concludes that no individual error related to his claims merits reversal, the cumulative error doctrine requires reversal of the judgment.
"Under the 'cumulative error' doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial." (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) We concluded that defense counsel's failure to object to the prosecutor's closing argument was not prejudicial and we have rejected the remainder of Ahumada's claims. There is thus no cumulative error on which to base a reversal of the judgment.
IV.
DISPOSITION
The judgment is affirmed.
AARON, J. WE CONCUR: BENKE, Acting P. J. IRION, J.