Opinion
F071855
01-11-2018
THE PEOPLE, Plaintiff and Respondent, v. SOLOMON NAVARETTE et al., Defendants and Appellants.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant, Solomon Navarette Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant, Roman Navarette. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Kern Super. Ct. Nos. BF155128B & BF155128C)
OPINION
APPEAL from judgments of the Superior Court of Kern County. Michael E. Dellostritto, Judge. Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant, Solomon Navarette Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant, Roman Navarette. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Appellants Solomon Navarrette (Solomon) and Roman Navarrette (Roman), and codefendant David Escobedo, were charged with multiple offenses arising from the carjacking of Corina Celedon and theft of her car. After a joint jury trial, Solomon and Roman were convicted of count I, carjacking (Pen. Code, § 215, subd. (a)); Solomon was separately convicted of count II, unlawfully taking or driving a vehicle (Veh. Code, § 10851); and Roman was separately convicted of count III, car theft with a prior vehicle theft conviction (Pen. Code, § 496d, subd. (a)).
We will refer to certain parties by their first names since several people share the same last name in this case.
Escobedo, the only defendant who testified, was charged with count I, carjacking and count II, unlawfully taking the car. In the same joint trial, Escobedo was found not guilty of all charges.
Solomon was sentenced to an aggregate second strike term of 17 years. Roman was sentenced to an aggregate term of 18 years.
Solomon and Roman have filed separate notices of appeal.
Solomon contends the prosecutor committed misconduct three different times during closing argument, when he said the jury could convict based on a "reasonable" view of the evidence in his initial argument; he said in rebuttal that the reasonable doubt standard "did not require an abiding conviction"; and, also in rebuttal, he equated the reasonable doubt standard to those used in other types of trials without clarifying that criminal trials have a higher burden of proof.
Solomon concedes that none of the defense attorneys objected to the prosecutor's closing argument. He raises the alternate claim that his defense attorney was prejudicially ineffective for failing to object, and there were no tactical reasons to explain his failure to object based on the California Supreme Court's recent analysis of misstating the burden of proof in People v. Centeno (2014) 60 Cal.4th 659 (Centeno).
In his separate appeal, Roman similarly relies on the same three portions of the prosecutor's closing argument asserting the prosecutor misstated the burden proof, and his defense counsel was prejudicially ineffective for failing to object. Roman also joined in any other arguments made by Solomon.
In response to defendants' joint contentions, the People concede the prosecutor improperly said that reasonable doubt "did not" require an abiding conviction, but argue it was a fleeting misstatement and the jury was otherwise properly instructed. The People dispute defendants' other claims of misconduct, argue the prosecutor did not misstate the burden in the other portions of closing argument, and defense counsel was not ineffective because objections would have been overruled.
FACTS
Around noon on May 21, 2014, Corina Celedon (Ms. Celedon) went to Rudy Hernandez's duplex in Bakersfield to help him move. She had previously cleaned Hernandez's (Hernandez) residence, and offered to help Hernandez pack and move to earn some money because she had no income at the time.
Ms. Celedon drove her 2012 white Kia four-door sedan to Hernandez's residence. The car was a birthday gift from Ms. Celedon's spouse, Alicia Celedon (Alicia). Ms. Celedon testified that Alicia was having trouble making payments on the car and had been unable to refinance it.
Escobedo and the Navarettes
While Ms. Celedon worked at Hernandez's residence, some of his friends arrived to help with the packing. Domingo Valdez (Valdez), Hernandez's employer, was there with some of his coworkers. They had a barbeque and Ms. Celedon drank some beer.
Around 2:30 p.m., Valdez invited Ms. Celedon to go with him to pick up another friend. She got into his car and he picked up David Escobedo at Escobedo's house on Victoria Street, and they returned to Hernandez's residence. Ms. Celedon had never met Escobedo.
As we have explained, Escobedo was tried for carjacking in the same jury trial as Solomon and Roman; Escobedo was acquitted of all charges.
Ms. Celedon testified there were seven to eight men at the barbeque and helping Hernandez pack. The group included two men later identified as codefendants (and brothers) Solomon Navarrette and Roman Navarette. Ms. Celedon had never met them before, didn't know their true names, and only knew them by nicknames at the time. She chatted with Valdez and Escobedo, ate some food, and continued to drink beer.
Ms. Celedon testified that she got along well with Escobedo, who teased and flirted with her. She felt Solomon did not like her and they did not get along. She talked with Valdez about her car. Solomon said he liked her car and asked to drive it, and she said no. She did not talk to Roman.
Ms. Celedon testified she drank about three to six beers, and did not feel under the influence because she was eating. She had "a background of a DUI, and I'm not supposed to drink and drive, so I ate some food to make sure that I had food in my system before I drove my car." Ms. Celedon agrees to give defendants a ride
Ms. Celedon voluntarily mentioned her prior DUI during her trial testimony.
Sometime after 6:30 p.m., Ms. Celedon was getting ready to leave, and Escobedo asked for a ride home. He also asked if she could drop off his two cousins, Solomon and Roman, at the house of Solomon's girlfriend. Ms. Celedon agreed. She had beer on her breath, but she did not feel drunk and believed she could drive.
Ms. Celedon testified that Escobedo sat in the front passenger seat of her Kia, and Solomon and Roman sat in the back seat.
Ms. Celedon testified Solomon and Roman told Escobedo where to go, and Escobedo repeated the directions to her. Everyone was talking at the same time, but the two brothers did most of the talking. She followed their directions and drove for about 15 minutes. The brothers told her to turn into a dark alley, claimed the girlfriend's backyard was adjacent to the alley, and said they wanted to see if the girlfriend was in the backyard. Ms. Celedon drove through the alley and did not see anyone. She became suspicious and quickly drove through the dark alley, even though the brothers said to slow down. Ms. Celedon's testimony about the carjacking
Ms. Celedon testified that she turned back to a main street. She was nervous and scared about the situation. Solomon kept saying that he liked her car, and asked her to "let me drive your car, and I said, no, you can't drive my car." Escobedo and the brothers continued to give her directions to the girlfriend's house, and she turned onto Crawford Street.
Ms. Celedon testified that the both brothers suddenly yelled for Escobedo to grab the car key out of the ignition. She believed all three men tried to grab the car key from the ignition, and she felt "all kinds of hands trying to ... grab the steering wheel and the keys."
Ms. Celedon testified that she yanked the key out of the ignition with her right hand, opened her driver's door, and jumped out while her car was still rolling. She had been driving about 10 miles per hour.
Ms. Celedon testified that she switched the car key to her left hand and tried to run away. She was screaming for someone to help her. Escobedo, Solomon and Roman got out of her car and ran after her. Ms. Celedon testified the three men caught her from behind, knocked her to the ground, and punched her head and body. She thought someone might have had a knife, but it was not used on her. She bit someone's hand. The three men held her down and ripped the car key from her left hand and inflicted cuts all over her hand. She did not know who pushed her down, or who took the key from her hand.
Escobedo and the brothers left in her car; she did not see who was driving.
Ms. Celedon screamed for help, and someone in the neighborhood called 911.
The initial investigation
At 9:00 p.m., Kern County Sheriff's Deputy Wong responded to the scene and contacted Ms. Celedon. She had a laceration on her left hand that was bleeding. He did not see any other injuries.
Deputy Wong testified Ms. Celedon's speech was slurred, her eyes were red and watery, and there was a strong odor of an alcoholic beverage on her breath and person, consistent with having consumed alcohol. She was crying and upset. She was also shouting and irate, and it was hard to understand her. She initially had trouble recalling what happened and gave a rambling statement.
Deputy Wong testified that Ms. Celedon said she had agreed to drive three male Hispanics to the area, she did not know them, and she did not give their names. She said one of the men forcibly removed her from the driver's seat by grabbing her and pulling her out of the car. She said the suspects punched her face and body. Wong did not see any injuries on her face.
Deputy Wong testified the ambulance arrived and Ms. Celedon's hand was bandaged. She refused to go to the hospital. Wong asked her to sign a medical release that would allow law enforcement to obtain her medical records if she was treated at a hospital. Ms. Celedon refused to sign the release. Wong believed she was unable to sign because of her intoxication level.
Deputy Wong testified that Alicia, Ms. Celedon's spouse, arrived at the scene. Wong released Ms. Celedon to Alicia's custody since she was not capable of taking care of herself, and he would not have allowed her to drive if she had tried, because of her intoxication level.
At trial, Ms. Celedon was asked to explain the discrepancies between her pretrial statement to Deputy Wong that she was pulled out of the car, and her testimony that she jumped out. Ms. Celedon testified she was very nervous and upset when she spoke to Wong. She was not thinking straight when she said that one of the men pulled her out of the car and did not remember saying that.
Ms. Celedon testified that about seven months after the incident, she repeated the same story to an investigator from the district attorney's office, that one of the men pulled her out of the car. Ms. Celedon explained that she started taking medication after the incident because she was so scared. She said that by the time of trial, she had stopped taking medication and thought about what happened; her memory was better, and she wanted to be honest. She repeatedly testified that one of the men did not pull her out of the car; that she pulled the key out of the ignition and jumped out of the driver's side before they grabbed her key.
Ms. Celedon conceded that she had given several conflicting pretrial versions of what happened. Ms. Celedon explained that she had not been asked about the incident in detail when she gave the prior statements, and the trial was the first time she testified under oath about the carjacking. She had time to think about the incident and remember what happened.
Ms. Celedon further testified she refused to go to the hospital because she wanted to look for her stolen car that night. Deputy Wong asked her to sign something, and she refused because she was scared and upset, and did not pay attention to what he said about the paper.
Identification of Escobedo and the Navarrettes
A few hours after the carjacking, Ms. Celedon contacted Valdez and Hernandez to find out Escobedo's address and the names of the other men. Around 2:30 a.m., she went to Escobedo's residence with her sister and Alicia.
Ms. Celedon testified that around 3:30 a.m. on May 22, 2014, they called 911 and reported that they were at Escobedo's residence and gave the address. Ms. Celedon could not remember who made the 911 call. Her sister and Alicia knocked on Escobedo's door, and spoke to Escobedo on the front porch. While they waited for the police, Ms. Celedon asked Escobedo why he did not help her.
Deputy Wong responded to Escobedo's residence and spoke to Ms. Celedon, who said that a person at the house was involved in the car theft. She did not mention that she had already talked to Escobedo before Wong arrived.
Deputy Wong contacted Escobedo and his sister in the house. After interviewing him, Wong concluded that Escobedo was involved in the carjacking and conducted an infield showup for Ms. Celedon. She identified Escobedo as one of the men who took her car.
Based on additional investigation, Deputy Wong prepared separate photographic lineups that contained pictures of Solomon and Roman. A few hours after Escobedo was arrested, Wong showed the separate lineups to Ms. Celedon. She identified both brothers as participants in the carjacking and theft.
Recovery of the car; arrest of the Navarrettes
On May 24, 2014, a few days after the carjacking, Ms. Celedon saw her car being driven on the street. A man was sitting in the driver's seat, but she did not recognize him. She called the police, and the car was recovered and towed to the dealer.
There was no evidence that Escobedo or the Navarettes were in the car when it was recovered. The prosecution did not introduce any evidence about the identity of the driver or the circumstances under which the car was recovered.
Ms. Celedon testified she never got the car back because Alicia took it away from her. Alicia traded it to the dealer for a new car "behind her back" as "punishment," and she was not allowed to drive the new car.
On August 19, 2014, Deputy Genaro and other officers served an arrest warrant for Solomon at a residence. Solomon was present and claimed he was "Moses," the name of another brother not involved in this case. Roman had already been arrested. Ms. Celedon's credibility
Ms. Celedon testified she had a prior conviction for first degree residential burglary in 1991, and Alicia was also convicted of the same offense in the same prior case.
At trial, the defense attorneys sought to undermine Ms. Celedon's credibility based on a false report she had previously filed against her spouse. Ms. Celedon testified she had been in a relationship with Alicia for 27 years and they had a child. They were having personal problems before the time of the carjacking. In February 2013, Ms. Celedon and Alicia argued, and Alicia threw a box at Ms. Celedon that bounced off her body. Ms. Celedon called 911, and falsely reported that Alicia hit and punched her during a domestic violence incident. Alicia was arrested and briefly held in jail. The district attorney's office filed domestic violence charges against Alicia, based on Ms. Celedon's claim that she had been assaulted. Ms. Celedon testified that she eventually contacted the district attorney and admitted she had lied and exaggerated the incident, and that Alicia had not assaulted her. She asked the district attorney not to press charges, and the case was dismissed.
Ms. Celedon testified she lied about the alleged domestic violence incident with Alicia because she was angry and upset and wanted to hurt Alicia at that time. Ms. Celedon testified she was still mad at Alicia when she called the district attorney's office to clear up the matter, but knew she had to be honest about what happened.
Ms. Celedon testified that shortly after the carjacking incident, Alicia kicked her out of their house, left her homeless, and threatened to take custody of their child.
DEFENSE EVIDENCE
Escobedo's trial testimony
Codefendant David Escobedo was the only defendant who testified. Escobedo testified that Solomon and Roman were his cousins and he had known them his entire life.
Escobedo testified that on the day of the incident, his friend Domingo Valdez called and asked for help to pack Hernandez's property. He agreed. Valdez arrived at his house and gave him a ride to Hernandez's residence. Ms. Celedon was in Valdez's car. Escobedo testified he had met her twice before at Hernandez's residence. They arrived at Hernandez's residence to help him pack. Solomon was there with his older brother, Moses. Everyone was eating at the barbeque and drinking beer, and there were no problems.
Escobedo testified that later in the evening, Solomon left by himself. About 20 minutes later, Solomon returned to Hernandez's home with his other brother, Roman.
Escobedo was supposed to leave Hernandez's residence with Valdez, but Valdez had already left earlier in the afternoon. Escobedo asked Moses for a ride, but Moses's girlfriend was late. Escobedo testified that he asked Ms. Celedon for a ride home and she agreed. As they were about to leave, Solomon asked Escobedo if he could get a ride to his girlfriend's house from Ms. Celedon. Escobedo told Solomon to ask for himself. Solomon asked her, and she again said yes and that she would give everyone a ride.
Escobedo sat in the front passenger seat, Solomon sat in the back seat behind the driver, and Roman sat on the passenger side of the back seat.
Escobedo testified that Solomon said his girlfriend lived nearby, and gave Ms. Celedon the directions to his girlfriend's house. Roman did not say anything. Escobedo did not know where the girlfriend lived. He did not give any directions, but he repeated Solomon's instructions because the radio was on and Ms. Celedon couldn't hear Solomon.
Escobedo testified Solomon told Ms. Celedon to turn into a certain alley that ran behind houses. Escobedo did not think that was odd, and thought the girlfriend was going to meet him in one of the backyards. Solomon noticed no one was around and told her to keep driving.
Escobedo's testimony about the carjacking
Escobedo testified that after they left the alley, Solomon asked Ms. Celedon to pull over because he had to relieve himself. Ms. Celedon parked on the side of Crawford Street, put the car in park, and turned it off. Solomon got out of the back seat, and then opened the front driver's door and yanked Ms. Celedon out of the car. Escobedo testified that Ms. Celedon did not jump out of the car. Escobedo asked Roman what they were trying to do. Roman did not respond, but he reached over from the back seat and tried to grab the car key from the ignition.
Escobedo testified that Ms. Celedon tried to get back into the car. Solomon yanked her away from the car. Roman got out of the car. Escobedo stayed in the car and did not see what happened to Ms. Celedon. A few seconds later, Solomon and Roman returned to the car without Ms. Celedon. Solomon got into the driver's seat. Roman returned to the back seat and handed the car key to Solomon, who started the car and drove away without her.
Escobedo testified he never chased or hurt Ms. Celedon, and he never tried to take the keys away from her. He did not hear her yell or scream.
Escobedo testified that he knew something bad had happened, but he did not get out of the car to help her or call the police. When defendants returned to the car, he did not argue with them because he was afraid. Solomon drove near Escobedo's house and dropped him off, and drove away with Roman. Escobedo walked home. He did not call the police because he was scared the Navarrettes would do something to him. He also figured the police would arrive at his house since Ms. Celedon knew where he lived.
Escobedo testified that the day after the incident, Ms. Celedon and Alicia arrived at his house with another woman. Alicia confronted Escobedo and said she wanted the car back. Escobedo said he did not know where it was, but he would let her talk to someone who might know. Escobedo testified he called Moses, the brother of Solomon and Roman, and let Alicia speak to him. He did not know how to contact Solomon and Roman. Escobedo also spoke to Ms. Celedon, and said he was sorry about what happened and asked if she was okay. Ms. Celedon yelled at him and asked why he did not help her.
Escobedo testified his sister asked Alicia not to call the police. However, Deputy Wong arrived at his house a short time later. Escobedo told Wong that he had been drinking beer at Hernandez's house, Ms. Celedon gave him a ride, and he was with Solomon and Roman. Escobedo told Wong what the Navarrettes did.
On cross-examination, Escobedo was asked about his pretrial statements to Deputy Wong, as reflected in Wong's report, where Escobedo reported that he was going with Ms. Celedon and the Navarrettes to the girlfriend's house to hang out together. Escobedo testified he could not remember making that statement.
Christine Briceno
Christine Briceno, Solomon's fiancée, testified on his behalf. Ms. Briceno testified Solomon lived with her before he was arrested in this case. Ms. Celedon's sister lived next to Ms. Briceno. Ms. Briceno knew Ms. Celedon from her frequent visits to her sister and was familiar with Ms. Celedon's white vehicle. Ms. Briceno also knew Escobedo and Roman.
Ms. Briceno testified that Solomon was the father of a child with a former girlfriend, "Mary," who lived on Crawford Street. Roman also was a father of a child with that same woman, who was his girlfriend at the time of the instant case.
Ms. Briceno's testimony about the incident
Ms. Briceno testified that on the night of the incident, Solomon called her for a ride. Solomon said he was with Roman, and they were by Mary's house on Crawford Street. Ms. Briceno knew that Solomon was supposed to his visit his daughter that day. Ms. Briceno drove to Crawford Street and picked up both Solomon and Roman. Escobedo and Ms. Celedon were not with them.
Ms. Briceno testified that when she picked up the Navarrettes on Crawford Street, she thought she saw Escobedo and Ms. Celedon drive away in Ms. Celedon's car. The two people in the car "looked like" Ms. Celedon and Escobedo. Ms. Briceno got mad and thought they could have picked up the Navarrettes instead of making her drive there. By the time of trial, however, Ms. Briceno was no longer sure if she saw them that night, but at the time "I could have sworn it was them."
About a month later, Ms. Briceno heard David Escobedo had been arrested for carjacking. She did not call the police or say anything about her observations of Escobedo and Ms. Celedon in her car because she did not know Escobedo's family very well.
Ms. Briceno testified that Solomon was not immediately arrested in this case, and he continued to live with her. Ms. Celedon frequently visited her sister, and would see Solomon next door. Ms. Celedon never acted afraid of Solomon, said anything about a carjacking, or accused Solomon of stealing her car.
Ms. Briceno testified that during one of Ms. Celedon's visits to her sister, Solomon saw her drive by and said, "[H]ey, I think that's the girl that we all took off with." Ms. Briceno testified she told Ms. Celedon, "[W]hat are you doing driving my man around? And we started laughing...."
Ms. Briceno testified Solomon was arrested at Mary's house on Crawford Street in August 2014. At his first court date, Ms. Briceno learned about the carjacking allegations and that Ms. Celedon was the victim. Ms. Briceno admitted she did not call the police and report that she picked up the Navarrettes that night, or that she thought she saw Ms. Celedon drive away in her car with Escobedo.
Ms. Briceno testified that she told someone from the district attorney's office about what she saw. Someone said that she would be contacted about it, but no one ever called her back. Ms. Briceno ultimately told Solomon's defense attorney about what she saw. Ms. Briceno testified she had regular telephone conversations with Solomon after he was in custody, but they never talked about the case.
Ms. Briceno's testimony about her recorded conversation with Ms. Celedon
Ms. Briceno testified that about a month before trial, she was not home but a neighbor called and said that Ms. Celedon had knocked on her door and tried to talk to her. Ms. Briceno spoke to Ms. Celedon by telephone and said she was on her way home. Ms. Celedon told Ms. Briceno that she had better hurry because Alicia might come looking for her.
Ms. Briceno testified that when she arrived home, she called out to the sister's house next door. Ms. Celedon came outside and they talked. Ms. Briceno videotaped the conversation on her cell phone because Ms. Celedon had accused Solomon of carjacking and beating her, even though she had regularly seen Solomon at Ms. Briceno's house and never said anything. Ms. Briceno had also heard from other people that Ms. Celedon said she was so drunk that she did not remember what happened, and Ms. Briceno believed the story might have been fabricated. Ms. Briceno was anxious to talk to her and hear what happened. Ms. Briceno testified she did not encourage Ms. Celedon to say anything, and Ms. Celedon did not appear afraid during the conversation.
Ms. Briceno believed Ms. Celedon knew she was taping the conversation. Ms. Celedon never told her not to record it. Ms. Briceno gave the recording to Solomon's lawyer, who advised the prosecutor about its existence.
The recorded conversation
The prosecution introduced a copy of the videotape as an exhibit and it was played for the jury. The conversation begins with Ms. Briceno asking Ms. Celedon, "What happened?"
At trial, the videotape was not transcribed by the court reporter and the parties did not prepare a transcript. At oral argument in this appeal, the parties agreed that this court could watch the videotape and quote from it as necessary.
Ms. Celedon: You know, I just want to tell you, you know what ... I have to ... appear in court.... I'm not saying anything....
Ms. Briceno: ... You really can't because ... you really don't know if it was them....
Ms. Celedon: What I'm trying to say, it was David and Alicia, it's not me. It's David .... David made a deal with the DA.
Ms. Briceno: Uh huh, I don't know about that....
Ms. Celedon: ... I'm just saying .... I want it away because she left me, she's divorcing me because of this. I don't want no part of it .... What I'm just trying to say ... I have a daughter .... I was just trying to tell you, you know, I have to go because they make me go. I told them when I went last week, I don't want to, I'm not doing anything....
Ms. Briceno: ... Well, so this is all going on cause of David, that David made a ...
Ms. Celedon: It was all David and Alicia. It was her car. She's the one that went over there. And I'm just telling you ... because, you know what, my sister doesn't have nothing to do with anything.
Briceno: I don't blame your sister....
Ms. Celedon: ...But what I'm trying to tell you right now ... I don't want no problems, I don't want anybody no problems.... She got the f**king new car, she f**king left me with shit, I'm f**king living in my f**king car.
Ms. Briceno: ... So she's dragging you all through this court to ... have guys who go to jail for innocence just because and then she's like oh says you can't see your daughter, that's f**ked up.... I would hate her.
Ms. Celedon: ... That's really f**ked up, what's going on with me. But don't worry, I have to deal with it....
Ms. Celedon is apparently referring to her spouse, Alicia, and codefendant Escobedo. As we will explain below, David Escobedo testified in rebuttal that he never talked to the district attorney about a deal in this case. He was tried along with the Navarrettes, and he was acquitted of all charges.
As we will also discuss below, Ms. Celedon testified at trial that she was afraid of Ms. Briceno and Solomon when this recorded conversation occurred, and she was trying to tell Ms. Briceno that Alicia was the person who confronted Escobedo and pushed her to pursue the case, and Escobedo was the person who told the police that the Navarrettes were the other two suspects.
As the conversation continues, Ms. Celedon brings up the domestic violence complaint that she filed against Alicia the prior year. Ms. Celedon tells Ms. Briceno that Alicia beat her, she lied when she told the district attorney that she was not assaulted, and she just did that to save Alicia's job.
Ms. Celedon: ... I have a cruel bitch who beats me up ... I go through a lot of shit ... she beat the shit out of me and I f**king had to go to her ... so she wouldn't lose her job... so I f**king had to lie to the DA.... You may think that I'm on her side but I'm not on her side. I'm just wanting it all to stop. And when they put me up there, they're forcing me. But when they force me, I'm going to say I don't know nothing, I don't know nothing.
Ms. Briceno: Uh huh. [Text message tone from Ms. Briceno's phone]
Ms. Celedon: That's what I told the DA. ... Why you guys all bothering me ... leave me alone, I'm just a poor person.
In her direct examination testimony, Ms. Celedon testified to a contrary account of the alleged domestic violence claim: she falsely called the police and claimed that Alicia assaulted her, Alicia was arrested and charges were filed against her, she lied about the incident, and she later called the district attorney and asked him to drop the charges because it never happened. In the recording, Ms. Celedon gives the opposite story: that Alicia beat her, and she lied and told the district attorney that it never happened so Alicia would not lose her job. There's no indication that Ms. Briceno knew anything about the domestic violence incident, and it's not clear why Ms. Celedon brought it up.
Ms. Celedon again talks about how she will never see her daughter again, and starts to cry. Ms. Briceno comforts her and assures her that she will see her daughter again. In response to hearing the cell phone tone, Ms. Briceno raises her cell phone up and apparently looks at it. Ms. Celedon gestures at the phone and says to "put that away." Ms. Briceno replies that "it's just a text" and keeps recording the conversation.
At trial, Ms. Briceno testified that her cell phone buzzed and Ms. Celedon gestured for her to put away the cell phone. Ms. Briceno believed that Ms. Celedon meant that she did not want to interrupt their conversation. Ms. Briceno testified that she told Ms. Celedon it was just text message and kept recording the conversation.
Ms. Celedon continues to complain about Alicia.
Ms. Celedon: She puts me through a lot.... I've gone through a lot with her. Rudy [Hernandez] knows I gone through a lot with her. And it's her that did all this. Cause she's the one that did all this stuff.
Ms. Briceno: Exactly. She wasn't even there, what a bitch.
Ms. Celedon: ...Her name is Alicia Celedon.... She's my wife, but she's f**king evil.... I'm just trying to tell you, she has a brand new car, ... a brown car, a Kia, she turned it in, she took it away from me, she took everything, she took me from everything .... What I trying to say is, I go because I have to go.... I want tell you, that I want nothing bad from nobody. I have a brother that's in there, and I know. I shouldn't have even been drinking. And I don't remember nothing, and when they get me up there.... I keep telling the DA, leave me alone, and all these people, leave me alone, I don't know nothing.
Ms. Briceno: Now you can be strong because [she] ain't there
Ms. Celedon: ... I have to be around her, you guys see me around her but it's not like what it is, it's not what you guys think it is.... She's going to get hers some day.... I'm not doing anything.... I'm tired of always living in my car, looking over my shoulder, living from house to house. And it's not right.... All this stuff that needs to be stopped. She's the one that created all this stuff.
Ms. Celedon continues: "I'm tired of them always bothering me and stuff, you know.... I just want you guys to know ... I don't have no part, I have to go because they said they would arrest me if I don't show up...." She adds: "They should be bothering David and Alicia, not me, those two are going to look like stupid, cause I'm the prime one and I'm not saying anything, you know what I mean...."
Rebuttal
Escobedo testified in rebuttal that the district attorney's office never met with him or offered him a "deal" in this case. He did not drive off with Ms. Celedon in her car that night, leave the Navarrettes on Crawford Street, or see Ms. Briceno pick them up. He did not have a scheme with Ms. Celedon and/or Alicia to claim the Navarrettes carjacked the vehicle.
In her trial testimony, Ms. Celedon testified that her sister lived next to Ms. Briceno, and she knew Ms. Briceno was the girlfriend of one of the Navarrette brothers. When Ms. Celedon was visiting her sister, Ms. Briceno came over to talk about the case and they talked in the front yard. Ms. Celedon testified that Ms. Briceno was holding her cell phone, and she asked her not to record her. Ms. Celedon did not know that Ms. Briceno recorded the conversation until the district attorney told her. She would not have talked to Ms. Briceno if she had known that Ms. Briceno was recording it.
Ms. Celedon testified that she made certain statements to Ms. Briceno because she was afraid. Solomon had beaten her brother-in-law when they were in custody together, and "he told me that I was next." Ms. Celedon testified she was also afraid because when she had previously visited her sister, Solomon "told me some things ... for me to be careful, and to always watch over me, and I said, I always watch over me."
In response to the prosecutor's questions, Ms. Celedon testified that when she told Ms. Briceno that it was "all Alicia and David," she meant Alicia took "the initiative" to go to Escobedo's house after the carjacking because Alicia wanted to get her car back. Alicia was "pushing" her to testify because she did not want to be there. Ms. Celedon also tried to explain to Ms. Briceno that Escobedo was the person who identified the Navarrettes to the police because she did not know their names. Ms. Celedon testified that Alicia was not involved in the carjacking and did not force her to identify anyone as a suspect.
"Q. And would it be fair to say that is what you mean when you said David, it's all Alicia and David?
"A. Yes.
"Q. Okay. When you say, you don't have to worry ... who they should be bothering, they should be bothering David and Alicia, in your mind, it is David and Alicia who got the ball rolling on this, would that be fair?
"A. Yes."
Ms. Celedon admitted that she told Ms. Briceno that Alicia beat her up, and she lied to the district attorney and asked him to drop the charges so Alicia would not lose her job. Ms. Celedon testified that statement was a lie and Alicia never beat her up.
Ms. Celedon testified she never gave permission to Ms. Briceno to record her. She confirmed that she told Ms. Briceno that she did not want to bother them, "this is all Alicia's doing," and "they should be bothering David and Alicia, not me." Ms. Celedon testified that she meant Escobedo and Alicia were pushing the prosecution of the case, and that she was afraid to testify.
Ms. Celedon testified that she had seen Ms. Briceno in the courtroom during trial and was afraid of her. Ms. Celedon was still afraid of the Navarrettes because she learned about their reputation.
INSTRUCTIONS AND ARGUMENTS
On appeal, defendants argue that the prosecutor misstated and minimized the burden of proof in his initial and rebuttal closing arguments, their defense attorneys were ineffective for failing to object to those portions of the argument, and their failure to object was prejudicial because this was a close case given Ms. Celedon's credibility issues, the videotaped pretrial statement obtained by Ms. Briceno, and the not guilty verdict returned for codefendant Escobedo
We thus turn to the court's instructions and the parties' closing arguments
Instructions
Prior to the introduction of evidence, the court gave several instructions to the jury, but did not instruct on the burden of proof.
On March 18, 2015, all the parties rested. On March 19, 2015, the court instructed the jury.
The court began by advising the jury that it would display the instructions on the video screen as they were read, and the jury would receive copies of all the instructions in the jury room.
"[Y]ou must follow the law as I explain it to you even if you disagree with it. [¶] If you believe that the attorneys' comments on the law conflict with my instructions, you must follow my instructions."
The court correctly read CALCRIM No. 220 on reasonable doubt:
"The fact that a criminal charge has been filed against the defendants is not evidence that the charge is true. You must not be biased against the defendants just because they have been arrested, charged with a crime, or brought to trial.
"A 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. 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. Unless the evidence proves the defendants guilty beyond a reasonable doubt, they are entitled to an acquittal, and you must find them not guilty." (Italics added.)
Immediately after court read the entirety of the instructions, the parties began their closing arguments.
The prosecutor's initial closing argument
The prosecutor began closing argument by addressing reasonable doubt.
"The first thing we're going to talk about is reasonable doubt. Obviously, that's a standard of burden of proof that I have, and what reasonable doubt is that you have an abiding conviction that the facts are true and that the charge is true. There is no - you can't use imaginary doubt, and you can't use possible doubt and an alien is going to come down and take Ms. Celedon out of the car and taken off. Those kinds of doubts, you're not allowed to use, and they have to be reasonable and they have to be granted in the evidence and the testimony that you have heard." (Italics added.)
On appeal, defendants contend counsel was ineffective for failing to object to the prosecutor's italicized statements about imaginary, possible, and reasonable doubt. The People respond that counsel was not ineffective because the prosecutor did not misstate the burden and any objection would have been futile.
The prosecutor argued that Escobedo, Solomon, and Roman were involved in the carjacking "beyond a reasonable doubt" and "again, with reasonable doubt, it's the quality of the evidence, not the quantity."
The prosecutor argued Escobedo put the Navarrettes in the position to commit the carjacking, and he was guilty as an aider and abettor. The prosecutor further argued that Ms. Celedon's account was plausible and it "adds up" that all three men reached for her car key, chased her, and tackled her on the street. The prosecutor acknowledged that portions of Escobedo's testimony may have been credible, but he altered some of the facts to minimize his culpability as an aider and abettor when he claimed that he just sat in the passenger seat and watched what happened. The prosecutor also acknowledged that Ms. Celedon may not have been "the most likeable witness and most likeable victim," but the three defendants took the car by force.
"You've lived lives where you have to determine what happened with imperfect information, where there's been some inconsistencies. Of course, we always want more. When we go back to the sworn testimony, if you believe it, it's enough to establish the fact beyond a reasonable doubt. Use your common sense. Use those undisputed facts, and it becomes clear that the [Navarrette] brothers certainly were involved, and that they knew what was going on, and they knew that David Escobedo was there, and he knew what was going on, and he played his role...."
None of the defense attorneys objected to the prosecutor's argument. Closing argument of Escobedo's attorney
We are reviewing the closing arguments from the three defense attorneys because they might explain why the prosecutor made certain statements in rebuttal.
Ms. Singh, Escobedo's attorney, asserted that Escobedo's mere presence in the car did not make him guilty as an aider and abettor because he did not know what the Navarrettes were going to do. While Escobedo made a mistake and should have helped Ms. Celedon, his failure to do so did not mean he was guilty of carjacking. Escobedo's counsel argued his testimony was credible and consistent with the evidence. Escobedo's counsel focused on the "huge" inconsistencies in Ms. Celedon's testimony, as to whether all the defendants reached for the car key, she jumped out of the car, or Solomon pulled her out of the driver's seat.
Escobedo's attorney discounted the credibility of Ms. Briceno's testimony, that she picked up Solomon and Roman, Ms. Celedon and Escobedo drove away in the white car, or that Escobedo was part of some conspiracy. Counsel argued there was evidence that did not present Ms. Celedon in a good light and she had the tendency to exaggerate. Counsel argued her credibility was "worrisome" because of her prior false report against her spouse, and her videotaped statements to Ms. Briceno, where she falsely said the car theft was the fault of Escobedo and Alicia.
Escobedo's attorney concluded with a discussion about reasonable doubt:
"I never define [reasonable doubt] for jurors, because I don't know what an abiding conviction is in my life, but I don't know any of you, and I don't know what the conviction of something is in your life, whatever that abiding conviction is in your life, you have to have that abiding conviction to convict my client .... [¶] Based on the state of the evidence, I'm not sure how you have that abiding conviction...." (Italics added.)
Escobedo's attorney argued the circumstantial evidence instruction said that if there were two interpretations of the evidence, and "one points in favor of the defendant, and another one against the defendant, you must select the one you favor of the defendant," and that "gives you a sense of our laws. Our laws give every doubt to the defendant as they should."
In making this argument, Escobedo's attorney correctly paraphrased the following language from CALCRIM No. 225: "If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions supports a finding that the defendant did have the required intent and another reasonable conclusion supports a finding that the defendant did not, you must conclude that the required intent was not proved by the circumstantial evidence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable."
Counsel stated that if Ms. Celedon had not contacted the district attorney to admit that she lied about Alicia, then Alicia could have been sitting next to her at a trial, and "the law will recognize that an innocent person can be sitting there and has to be given every benefit of the doubt...."
Closing argument of Roman's attorney
Mr. Soria, Roman's attorney, argued that neither Escobedo nor Ms. Celedon was credible, they were both "incredible," and "[n]obody knows what happened." Ms. Celedon claimed three men beat her, but Deputy Wong did not see any injuries consistent with that claim, he determined she was under the influence, and Wong was a credible witness.
Roman's attorney argued Ms. Briceno was also credible and her videotape showed that Ms. Celedon really knew what happened. Counsel questioned the prosecution's failure to identify who was driving the car when it was recovered.
"[The prosecutor's] case rests on the testimony of Corina Celedon and David Escobedo, and they are not credible witnesses. I don't know what happened that night, and I don't think anybody does, and that's why I don't give a story. I'm not sure what happened and I don't think you can be sure what happened from what you heard. In any event, [Roman] is not guilty on a reasonable doubt...."
Closing argument of Solomon's attorney
Mr. Butkiewicz, Solomon's attorney, began with a discussion about reasonable doubt.
"[O]ne of the paramount instructions of our framework of justice is the burden of proof beyond a reasonable doubt. And, folks, this case screams reasonable doubt.
"At the beginning of the trial, Judge Dellostritto told you that the burden of proof beyond a reasonable doubt is the highest burden we have in any type of case. It's not an impossible burden, and we're not talking
about imaginary doubt. But in order to prove a defendant guilty as Judge Dellostritto told you, the purpose [sic] is with the prosecution, otherwise known as [sic] and it's very important to remember, because you've heard from a defense witness such as Ms. Briceno in this case, and you have to remember that the burden of proof is not on the defense to prove their client not guilty beyond a reasonable doubt, and the burden still remains with the prosecution to prove, for example, Solomon [sic] Navarrette guilty beyond a reasonable doubt, and that's an important concept to remember.
"[Y]ou can't go back and say well, I believe, Ms. Celedon, nor do I believe Ms. Briceno, because I'm not convinced beyond a reasonable doubt that Ms. Briceno['s] story is true. That's not your job. That's not the burden of proof in a criminal case. The burden of proof is for the prosecution and remains with the prosecution, and that's what Judge Dellostritto told you....
"Beyond a reasonable doubt, and as Judge Dellotstritto told you, he's [sic] not beyond any possible or imaginary doubt, but in order to find Solomon [sic] Navarrette guilty of the charges in this case, then, you will get the language, and they have to prove it beyond a reasonable doubt or stated in another way. If there is only a reasonable doubt, it doesn't have to be multiple reasons for doubt. If there is simply a reason to doubt, you must find the defendants Mr. Navarrette, Solomon [sic] Navarrette not guilty or state it in another way.
"They have to remove every single doubt that is reasonable, and it has to be beyond even a reasonable doubt...." (Italics added.)
Solomon's attorney attacked Ms. Celedon's credibility because she was a convicted felon, she admitted that she lied about the domestic violence incident with her spouse, and claimed she lied to Ms. Briceno during the videotaped conversation. "[L]ie after admitted lie after admitted lie, so what does that tell you about Corina Celedon. It basically tells you, I'm a liar, and I'm a person that shouldn't be trusted. [¶] According to, again, the law that the Court has given you, because those are factors that you should consider in determining whether or not a person is credible and more importantly whether or not the prosecution has removed every reasonable doubt." (Italics added.)
Solomon's attorney argued Escobedo's testimony was not credible because he was trying to minimize his culpability and blame the other defendants, and Ms. Celedon was the type of person who, "either on her own or scheming with ...other convicted felons" can falsely accuse others of committing crimes.
Solomon's attorney further argued that he did not have the burden to prove the truth of Ms. Briceno's testimony beyond a reasonable doubt, that she picked up the Navarrettes on the night of the incident, but the prosecution had "to prove that she lied beyond a reasonable doubt. All I have to do is raise a reasonable doubt in this case. Raise it through the inconsistencies of Mr. Escobedo's statements and the admitted lies of Corina Celedon, and the testimony of Ms. Briceno, and submit to you also the video." (Italics added.)
Counsel argued there were four different scenarios in this case:
"The first scenario is that all three of these guys car jacked that car. The second scenario is that Roman and Solomon [sic] Navarrette car jacked the car and Mr. Escobedo, as he said, had nothing to do with it. The third scenario is that Solomon [sic] and Roman Navarrette were picked up by Ms. Briceno and David Escobedo stole the car from Corina Celedon ... or the fourth scenario as she told Ms. Briceno during the video, and that this was basically created by her wife, her partner in crime, a person that she has accused of crimes in the past, and it was for insurance money to recoup any loss on the vehicle.
"... Do we know based on the evidence beyond every reasonable doubt which one of those four scenarios took place? No. As I said, this case ... cries out of reasonable doubt. I'm not saying that to find my client not guilty, because he's innocent. That's not your job. Your job is to say, has the prosecution proved their theory beyond every reasonable doubt? Again, that's your job, and I want you to do your job." (Italics added.)
Solomon's attorney told the jury that it would have verdict forms for guilty and not guilty.
"[Y]ou will not see a form on that jury verdict form for you to sign ... I find Solomon [sic] ... innocent, because if you were asked to find him innocent, that would mean that you would have to determine that he did not do anything beyond a reasonable doubt, and that's not what you're asked to find.
"Basically, what a verdict of not guilty is that the charge is that the prosecution has brought that. They have the burden of proving has, in fact, not been proven to that required standard. That's all the verdict of not guilty means. It doesn't mean that you're making a moral judgment, and it doesn't mean that you're saying, look, I think this scenario as opposed to that scenario, or I don't know what happened, or, look, he's possibly guilty or he's probably guilty. All you're basically saying is that the charge has not been proven beyond every reasonable doubt, and that's what I want you to do folks. Do your job and look at the evidence and look at people's credibility, and you will see that this case is a mess."
The prosecutor's rebuttal argument
The prosecutor began rebuttal by immediately addressing reasonable doubt.
"I want to start with where [Solomon's attorney] left off with reasonable doubt. What is reasonable doubt? It's not an abiding conviction, and it's the language that the Judge used, and all that really means is this, a year from now, and five years from now, ten years from now, you're convinced that you believe that the defendants did, in fact, do what we accused them of doing, then, they are guilty. That's all that means and it's the standard that's been used in this country since the founding of the constitution, and it's the standard that's been used in this state since we became a state, and that's what gets used in courtrooms every day." (Italics added.)
On appeal, defendants argue that the prosecutor misstated the burden of proof in the italicized statements of his rebuttal argument when he said (1) that reasonable doubt "was not" an abiding conviction, and (2) the People's burden was the same used in courtrooms every day, because it allegedly equated the criminal burden with lesser standards in other types of cases.
The People concede the prosecutor misstated the burden when he said that reasonable doubt was not an abiding conviction, but argue the misstatement was fleeting, inadvertent, and not prejudicial. The People dispute Solomon's claim that the prosecutor lowered the burden by referring to cases in other courtrooms.
The prosecutor rejected the claims by the defense attorneys that Ms. Celedon's account was not credible, but conceded that "if you find that there is a reasonable doubt, you do then have to come back with a verdict of not guilty, and I'm going to ask for a verdict of guilty."
The prosecutor conceded that Escobedo's testimony presented a "tough question" about what happened, but again argued that his attempt to distance himself from the other defendants showed that he knew what they were going to do, and he was as guilty as Solomon and Roman.
None of the defense attorneys objected to the prosecutor's rebuttal argument.
Concluding instructions and verdicts
After the attorneys finished their arguments, the court read concluding instructions but none of them addressed reasonable doubt. Thereafter, the jury began deliberations. The jury did not ask any questions during deliberations.
At the beginning of the instructional phase, the court stated it would give the printed instructions to the jury during deliberations. There is no indication in the record to refute the court's stated intention to give the printed instructions to the jury.
On March 20, 2015, the jury convicted Solomon and Roman as charged in count I of carjacking. Solomon was separately convicted as charged in count II with unlawfully taking or driving the vehicle; and Roman was separately convicted as charged in count III of car theft.
Escobedo had been charged with Solomon and Roman in count I with carjacking; and with Solomon in count II with unlawfully taking or driving the car. Escobedo was found not guilty of all counts.
DISCUSSION
Defendants rely on Centeno, supra, 60 Cal.4th 659, and assert the prosecutor misstated the reasonable doubt standard three times: (1) in his initial closing argument, when he compared imaginary, possible, and reasonable doubt; (2) in rebuttal, where he stated the reasonable doubt standard did not require an abiding conviction; and (3) again in rebuttal, when he said that the standard to convict was the same used in courtrooms throughout the country. Defendants argue their attorneys' failure to object was prejudicial given Ms. Celedon's credibility problems and the acquittal of Escobedo.
We will review the standards for prosecutorial misconduct and ineffective assistance, the definition of reasonable doubt, and the California Supreme Court's most recent opinions on the prosecutor's misstatement of the burden of proof.
I. Prosecutorial Misconduct
"A prosecutor's misconduct violates the Fourteenth Amendment to the federal Constitution when it 'infects the trial with such unfairness as to make the conviction a denial of due process.' [Citations.] In other words, the misconduct must be 'of sufficient significance to result in the denial of the defendant's right to a fair trial.' [Citation.] A prosecutor's misconduct 'that does not render a criminal trial fundamentally unfair' violates California law 'only if it involves " 'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.' " ' [Citations.]" (People v. Harrison (2005) 35 Cal.4th 208, 242.)
"When attacking the prosecutor's remarks to the jury, the defendant must show that, '[i]n the context of the whole argument and the instructions' [citation], there was 'a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] 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. [Citation.]' [Citations.]" (Centeno, supra, 60 Cal.4th at p. 667.) The court must considered the challenged statements in the context of the argument as a whole to make its determination. (People v. Cowan (2017) 8 Cal.App.5th 1152, 1159 (Cowan).)
"[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]." (People v. Marshall (1996) 13 Cal.4th 799, 831; Centeno, supra, 60 Cal.4ath at pp. 665-667.)
A determination of bad faith or wrongful intent by the prosecutor is not required to establish prosecutorial misconduct in argument to the jury. (People v. Hill (1998) 17 Cal.4th 800, 822-823 & fn. 1, overruled on other grounds by Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13; People v. Crew (2003) 31 Cal.4th 822, 839.) "[T]he term prosecutorial 'misconduct' is somewhat of a misnomer to the extent that it suggests a prosecutor must act with a culpable state of mind. A more apt description of the transgression is prosecutorial error." (People v. Hill, supra, 17 Cal.4th at p. 823, fn. 1.)
"Thus, the rubric of prosecutorial misconduct embraces a prosecutor's inadvertent and negligent objectionable statements to the jury as well as misstatements involving mental states more culpable than negligence." (People v. Jasso (2012) 211 Cal.App.4th 1354, 1362.) " 'What is crucial to a claim of prosecutorial misconduct is not the good faith vel non of the prosecutor, but the potential injury to the defendant.' [Citation.]" (People v. Clair (1992) 2 Cal.4th 629, 661; People v. Davis (1995) 10 Cal.4th 463, 516.)
II. Forfeiture
"A prosecutor's misstatements of law are generally curable by an admonition from the court. [Citation.]" (Centeno, supra, 60 Cal.4th at p. 674.)
"As a general rule, ' "[a] defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion, and on the same ground, the defendant objected to the action and also requested that the jury be admonished to disregard the perceived impropriety." ' [Citations.] The defendant's failure to object will be excused if an objection would have been futile or if an admonition would not have cured the harm caused by the misconduct. [Citation.]" (Centeno, supra, 60 Cal.4th at p. 674.)
In this case, defendants concede they have forfeited appellate review of their prosecutorial misconduct claims. None of the defense attorneys objected to the prosecutor's arguments that are now raised on appeal as misstating the reasonable doubt standard. There is nothing in the record to indicate that objections would have been futile or that the prosecutor's argument was "so extreme or pervasive that a prompt objection and admonition would not have cured the harm." (Centeno, supra, 60 Cal.4th at p. 674.)
III. Ineffective Assistance
In the alternative, defendants assert that their trial attorneys were prejudicially ineffective for failing to object.
" 'A defendant whose counsel did not object at trial to alleged prosecutorial misconduct can argue on appeal that counsel's inaction violated the defendant's constitutional right to the effective assistance of counsel.' [Citation.] ... [Defendants] bear[] the burden of showing by a preponderance of the evidence that (1) counsel's performance was deficient because it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficiencies resulted in prejudice. [Citations.]" (Centeno, supra, 60 Cal.4th at p. 674, quoting Strickland v. Washington (1984) 466 U.S. 668, 688, 694.)
" 'Unless a defendant establishes the contrary, we shall presume that "counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy." ' [Citations.] When the record on direct appeal sheds no light on why counsel failed to act in the manner challenged, defendant must show that there was ' " 'no conceivable tactical purpose' " for counsel's act or omission. [Citations.]' [Citation.] '[T]he decision facing counsel in the midst of trial over whether to object to comments made by the prosecutor in closing argument is a highly tactical one' .... [Citations], and 'a mere failure to object to evidence or argument seldom establishes counsel's incompetence' [citation]." (Centeno, supra, 60 Cal.4th at pp. 674-675.)
IV. Reasonable Doubt
We turn to the definition of reasonable doubt. Section 1096 states:
"A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his or her guilt is satisfactorily shown, he or she is entitled to an acquittal, but the effect of this presumption is only to place upon the state the burden of proving him or her guilty beyond a reasonable doubt. Reasonable doubt is
defined as follows: 'It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.' "
The prosecution's burden of proving the defendant's guilt beyond a reasonable doubt is stated in CALCRIM No. 220. (Centeno, supra, 60 Cal.4th at pp. 664-665.) As quoted above, the court properly instructed the jury in this case with CALCRIM No. 220 prior to the closing arguments. The court also stated that it was going to send the printed instructions into the jury room during deliberations, and there is nothing in the record to refute that intention.
In the context of the jury instruction, an " 'abiding conviction' " has been "found to adequately convey the requirement that the jurors' belief in the truth of the charge must be both long lasting and deeply felt." (People v. Light (1996) 44 Cal.App.4th 879, 885; People v. Haynes (1998) 61 Cal.App.4th 1282, 1299.) The word "abiding" connotes "[t]he lasting, permanent nature of the conviction" and indicates "how strongly and how deeply [the juror's] conviction must be held." (People v. Brigham (1979) 25 Cal.3d 283, 290-291.) It means that the belief is " 'settled and fixed, a conviction which may follow a careful examination and comparison of the whole evidence.' " (Victor v. Nebraska (1994) 511 U.S. 1, 14-15, quoting Hopt v. Utah (1887) 120 U.S. 430, 439.)
V. Centeno
Defendants extensively rely on Centeno in support of their argument that the prosecutor misstated the burden of proof, and their trial attorneys were prejudicially ineffective for failing to object.
In Centeno, supra, 60 Cal.4th 659, the California Supreme Court reversed the defendant's convictions after finding the prosecutor misstated the burden of proof in rebuttal argument, and held defense counsel was prejudicially ineffective for failing to object. The defendant was convicted of two counts of multiple offenses for sexually assaulting a seven-year-old child, who gave inconsistent testimony and refused to answer many questions at trial. (Id. at pp. 662-664.)
On appeal, the defendant argued the prosecutor committed prejudicial misconduct by misstating the burden of proof in closing rebuttal argument. The defendant conceded that his attorney failed to object, and raised ineffective assistance as an alternative argument. (Centeno, supra, 60 Cal.4th at p. 674.)
Centeno reviewed the prosecutor's rebuttal argument, determined she misstated the burden of proof in two separate instances, and concluded that the defense attorney was ineffective for failing to object and the error was prejudicial, relying on several reasons that are somewhat similar to the circumstances in this case.
The instant case did not involve any type of visual display, but we will address Centeno's discussion on this point because it is relevant to the court's ultimate conclusion that defense counsel's failure to object was prejudicial.
Centeno held the prosecutor first misstated the burden of proof when she used a visual display to show the outline of the state of California, then put forth hypothetical testimony from hypothetical witnesses in a "criminal" trial, who purportedly described various cities and landmarks. The prosecutor argued there was no reasonable doubt from the "incomplete information" in the diagram that the hypothetical witnesses were describing California. (Centeno, supra, 60 Cal.4th at pp. 665-667.)
Centeno held the use of the visual image constituted misconduct and misstated the burden of proof. "The use of an iconic image like the shape of California or the Statue of Liberty, unrelated to the facts of the case, is a flawed way to demonstrate the process of proving guilt beyond a reasonable doubt. These types of images necessarily draw on the jurors' own knowledge rather than evidence presented at trial. They are immediately recognizable and irrefutable. Additionally, such demonstrations trivialize the deliberative process, essentially turning it into a game that encourages the jurors to guess or jump to a conclusion." (Centeno, supra, 60 Cal.4th at p. 669.) It was misleading "to analogize a jury's task to solving a picture puzzle depicting an actual and familiar object unrelated to the evidence." (Id. at p. 670.) It was also misleading because it did not accurately depict the state of the evidence, which was "far from definitive" and "involve[d] starkly conflicting evidence and required assessments of witness credibility." (Ibid.)
B. Whether the Prosecution's Theory was "Reasonable"
Centeno separately held the prosecutor misstated the burden of proof in another section of rebuttal argument when she "strongly implied that the People's burden was met if its theory was 'reasonable' in light of the facts supporting it." (Centeno, supra, 60 Cal.4th at p. 671.)
"The prosecutor told the jury that in reaching its decision it must reject impossible and unreasonable inferences, and only consider reasonable possibilities. She stated that 'your decision has to be in the middle. It has to be based on reason. It has to be a reasonable account. [Y]ou need to look at the entire picture, not one piece of evidence, not one witness ... to determine if the case has been proven beyond a reasonable doubt.'
"[The prosecutor] then asked the jury to consider the following: 'Is it reasonable to believe that a shy, scared child who can't even name the body parts made up an embarrassing, humiliating sexual abuse, came and testified to this in a room full of strangers or the defendant abused Jane Doe. That is what is reasonable, that he abused her. [¶] Is it reasonable to believe that Jane Doe is lying to set-up the defendant for no reason or is the defendant guilty?' " (Id. at pp. 671-672, italics added in original.)
The prosecutor further argued that it was "not reasonable" to believe there was an innocent explanation for the defendant's sexual conduct toward the child. "Is it reasonable to believe that the defendant is being set-up in what is really a very unsophisticated conspiracy led by an officer who has never met the defendant or he['s] good for it? That is what is reasonable. He's good for it." (Centeno, supra, 60 Cal.4th at pp. 671-672, italics added in original.)
Centeno held that it was permissible for the prosecutor "to argue that the jury may reject impossible or unreasonable interpretations of the evidence and to so characterize a defense theory. [Citation.] It is permissible to urge that a jury may be convinced beyond a reasonable doubt even in the face of conflicting, incomplete, or partially inaccurate accounts. [Citation.] It is certainly proper to urge that the jury consider all the evidence before it. [Citations.]" (Centeno, supra, 60 Cal.4th at p. 672.)
However, Centeno held the prosecutor improperly argued about "what the jury could consider: reasonably possible interpretations to be drawn from the evidence." (Centeno, supra, 60 Cal.4th at p. 672, italics added.)
"While this is an acceptable explanation of the jury's starting point, it is only the beginning. Setting aside the incredible and unreasonable, the jury evaluates the evidence it deems worthy of consideration. It determines just what that evidence establishes and how much confidence it has in that determination. The standard of proof is a measure of the jury's level of confidence. It is not sufficient that the jury simply believe that a conclusion is reasonable. It must be convinced that all necessary facts have been proven beyond a reasonable doubt. (Victor v. Nebraska[, supra,] 511 U.S. [at p.] 5, 114 S.Ct. 1239, 127 L.Ed.2d 583 ['The government must prove beyond a reasonable doubt every element of a charged offense.'].) The prosecutor, however, left the jury with the impression that so long as her interpretation of the evidence was reasonable, the People had met their burden. The failure of the prosecutor's reasoning is manifest." (Id. at pp. 672-673, italics added.)
The court in Centeno noted that it previously held in People v. Romero (2008) 44 Cal.4th 386, that it was appropriate for the prosecutor to argue that the jury must " ' "decide what is reasonable to believe versus unreasonable to believe" and to "accept the reasonable and reject the unreasonable." ' [Citation.]" (Centeno, supra, 60 Cal.4th at p. 672, quoting Romero, supra, 44 Cal.4th at p. 416.) Centeno held that in contrast to Romero, it was error "for the prosecutor to suggest that a 'reasonable' account of the evidence satisfies the prosecutor's burden of proof." (Centeno, supra, at pp. 672-673, italics in original.)
"Here, the prosecutor did not simply urge the jury to ' "accept the reasonable and reject the unreasonable" ' in evaluating the evidence before it. [Citation.] Rather, she confounded the concept of rejecting unreasonable inferences, with the standard of proof beyond a reasonable doubt. She repeatedly suggested that the jury could find defendant guilty based on a 'reasonable' account of the evidence. These remarks clearly diluted the People's burden." (Id. at p. 673, italics in original.)
C. Prejudice
Centeno held the defense counsel was ineffective for failing to object to both the prosecutor's use of the diagram and her argument about a reasonable interpretation of the evidence. The court rejected the People's claim that there might have been tactical reasons not to object. Centeno acknowledged that deference is usually given to an attorney's decision whether to object, but "deference to counsel's performance is not the same as abdication. [Citation.] '[I]t must never be used to insulate counsel's performance from meaningful scrutiny and thereby automatically validate challenged acts or omissions.' [Citation.]" (Centeno, supra, 60 Cal.4th at p. 675.) "[T]he problems with the prosecutor's argument were not difficult to discern," and counsel required "no authority beyond section 1096 to conclude that the prosecutor's argument urging the jury to convict based on a reasonable account of the evidence misstated the burden of proof." (Id. at p. 675.)
Centeno held the defense counsel's failure to object was prejudicial because it was "reasonably likely" that the jury was misled by both the prosecutor's visual image and hypotheticals, and the argument about a reasonable interpretation of the evidence. (Centeno, supra, 60 Cal.4th at p. 674.)
Centeno held the defense counsel's failure to object was prejudicial because the prosecutor's misstatements occurred in rebuttal argument:
"[B]ecause the prosecutor's hypothetical came in rebuttal, defense counsel had no opportunity to counter it with argument of his own. His only hope of correcting the misimpression was through a timely objection and admonition from the court. Under these circumstances, we can conceive of
no reasonable tactical purpose for defense counsel's omission." (Centeno, supra, 60 Cal.4th at p. 676.)
Centeno found it significant that the court instructed the jury before the parties gave their closing arguments, and did not give any instructions after the arguments and the prosecutor's misstatements in rebuttal. (Centeno, supra, 60 Cal.4th at p. 676.)
"The day before closing argument, the trial court correctly instructed the jury on the presumption of innocence, reasonable doubt, and the prosecutor's burden of proof. It has often been emphasized that arguments 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.' [Citations.] '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.]' [Citation.]" (Ibid.)
Centeno held that other cases that involved the prosecutors' misstatements of reasonable doubt carried the "savings factors" of defense objections, the court's instructions following the misstatements, and the strength of the People's evidence. "Those savings factors are not present here." (Centeno, supra, 60 Cal.4th at p. 676.)
"There was no reason for the jury to reject the prosecutor's hypothetical. It did not directly contradict the trial court's instruction on proof beyond a reasonable doubt, but instead purported to illustrate that standard. The prosecutor introduced further confusion by suggesting that it was 'reasonable' to believe that defendant was guilty. Because there was no timely objection, the trial court did not admonish the jury to disregard the prosecutor's argument. Thereafter the court gave additional instructions focusing on lesser included offenses and explaining the verdict forms. It repeated, in that context, that any verdict of guilt required proof beyond a reasonable doubt. It did not, however, reinstruct on that concept. As a result, the prosecutor's argument was the last word on the subject. [Citations.]" (Id. at pp. 676-677, italics added.)
Centeno further noted that the People conceded the matter involved "a very close case." (Centeno, supra, 60 Cal.4th at p. 677.)
"The prosecution depended almost entirely on Jane's credibility, which was called into question in several respects. Jane did not voluntarily report the alleged touching. It came to light through an anonymous informant of unknown motive or veracity. Jane's initial statement to police was not introduced into evidence. In her forensic interview, although she claimed that defendant had lain on top of her four times, she provided very few corroborating details. At trial, she repeatedly and emphatically claimed no touching had occurred. After a series of leading questions from the prosecutor, she changed her testimony and affirmed that defendant had lain on top of her, but only twice. She refused to answer many of the prosecutor's questions and admitted that she found them confusing. She answered none of defense counsel's questions about the alleged touching on cross-examination. The trial court observed that 'this was an extraordinarily difficult examination of this witness, both with respect to direct and cross-examination.' Initially, Jane's father told deputies that he had seen defendant lying on top of Jane. At trial, however, he recanted his statement in material respects, testifying that defendant and the two children were reaching for a toy and that he was unalarmed by the conduct. Defendant also took the stand and denied that any inappropriate touching had occurred." (Id. at p. 677, italics in original, fn. omitted.)
Centeno thus concluded that these factors rendered defense counsel's failure to object as prejudicial:
"It was up to the jury to evaluate the various versions of events and to weigh witness credibility in making its decision. Given the closeness of the case and the lack of any corrective action, there is a reasonable probability that the prosecutor's argument caused one or more jurors to convict defendant based on a lesser standard than proof beyond a reasonable doubt. Accordingly, defendant's convictions cannot stand." (Centeno, supra, 60 Cal.4th at p. 677.)
VI. Cases After Centeno
In addition to Centeno, defendants rely on a series of cases after that opinion in support of their argument that the prosecutor misstated the burden of proof.
A. Cortez
In People v. Cortez (2016) 63 Cal.4th 101 (Cortez), the prosecutor said in closing argument: " 'The court told you that beyond a reasonable doubt is not proof beyond all doubt or imaginary doubt. Basically, I submit to you what it means is you look at the evidence and you say, "I believe I know what happened, and my belief is not imaginary. It's based in the evidence in front of me." ' " The defense counsel objected and, before the court responded, the prosecutor added, " 'That's proof beyond a reasonable doubt.' " The court then overruled the objection. (Id. at p. 130.)
In Cortez, a majority of the California Supreme Court rejected the defendant's argument that the prosecutor diluted the burden of proof, and held "the challenged remarks, viewed in isolation, were incomplete at best," and when the remarks were viewed in context, there was no reasonable likelihood the jury would misunderstand the burden of proof. (Cortez, supra, 63 Cal.4th at pp. 131-133.)
Justice Chin wrote the majority opinion, joined by Cantil-Sakauye, C.J., Corrigan, J., and Kruger, J.
Cortez held that since "the challenged comments were brief and constituted a tiny, isolated part of the prosecution's argument, that the prosecution was responding to defense counsel comments, that the prosecution expressly referred the jurors to the instruction they had on reasonable doubt, that both the court and defense counsel properly defined 'reasonable doubt' numerous times, and that the jury had written instructions during deliberations that properly defined the standard, we find no reasonable likelihood the jury construed or applied the prosecution's challenged remarks in an objectionable fashion." (Cortez, supra, 63 Cal.4th at pp. 133-134, italics added.) In reaching this conclusion, however, the majority did not address Centeno's discussion that it was improper to equate reasonable doubt based on a reasonable account of the evidence. (Centeno, supra, 60 Cal.4th at p. 672.)
A concurring opinion was filed in Cortez, wherein Justice Werdegar (joined by Justices Liu and Cuellar) relied on Centeno's discussion about what was reasonable, and wrote that the prosecutor similarly misstated the burden of proof by saying that reasonable doubt meant that " 'you look at the evidence and you say, "I believe I know what happened, and my belief is not imaginary. It's based in the evidence in front of me." ... That's proof beyond a reasonable doubt.' " (Cortez, supra, 63 Cal.4th at p. 134 (conc. opn. of Werdegar, J.), italics added in original.) Justice Werdegar compared the prosecutor's argument to that disapproved in Centeno about a reasonable account of evidence, because it "reversed the standard of proof beyond a reasonable doubt, telling the jury that their belief in guilt need only be nonimaginary, rather than that the evidence must exclude all reasonable doubts." (Cortez, at p. 134 (conc. opn. of Werdegar, J.), italics in original.)
"Contrary to the prosecutor's argument here, a belief that is 'not imaginary' and is 'based in the evidence' does not necessarily meet the beyond a reasonable doubt standard. By suggesting that the People's burden was satisfied if the evidence supported a reasonable, nonimaginary belief in guilt, the prosecutor erred." (Id. at p. 135.)
However, Justice Werdegar agreed with the majority's conclusion that any error was not prejudicial given the prosecutor's "isolated misstatement" and the strength of the evidence. (Cortez, supra, 63 Cal.4th at p. 136 (conc. opn. of Werdegar, J.).)
B. Cowan
In People v. Cowan, supra, 8 Cal.App.5th 1152, the defendant was convicted of multiple felonies based on the sexual molestation of several children from his girlfriend's family, identified as D. and A.J. (Id. at pp. 1155-1158.) The defendant argued the prosecutor misstated the burden of proof twice in closing argument, and the court improperly overruled his objections. Cowan agreed and reversed the convictions.
Cowan held the prosecutor improperly asserted in rebuttal: " 'Let me tell you that presumption [of innocence] is over. Because that presumption is in place only when the charges are read. But you have now heard all the evidence. That presumption is gone,' " and added "the jury's decision regarding defendant's guilt is just an ordinary decision people make 'a hundred times a day.' " (Cowan, supra, 8 Cal.App.5th at p. 1154.) The defendant objected on the grounds that the prosecutor misstated the law. The trial court did not sustain the objection, but instead told the jury that it was argument and to only consider the instructions. (Id. at pp. 1159-1160.)
Cowan held the prosecutor committed misconduct because she said the presumption of innocence "ends with the reading of charges. To put it another way, even before the evidence is received, the presumption of innocence disappears. This was an unfair attempt to lighten the prosecution's burden of proof and constitutes misconduct." (Cowan, supra, 8 Cal.App.5th at p. 1160.) "A prosecutor may not mislead jurors with false and misleading statements concerning the law. This disreputable tactic lightens the prosecutor's burden and threatens the integrity of our system of justice." (Id. at p. 1154.) "The prosecutor achieved a victory at trial, but it was a Pyrrhic victory. The gain of a conviction at trial led to a loss on appeal." (Ibid.)
Cowan also addressed the defendant's second claim of misconduct based on the following argument:
" 'Beyond a reasonable doubt simply means that ... after consideration of all the evidence in totality you're firmly convince[d] that guilt is the only reasonable interpretation of the evidence. [¶] What makes sense? Isn't it reasonable to conclude that Ronald Cowan who likes to surround himself with young boys; whom he pries away from working mothers who don't have a lot of time; whom he bribes with gifts, toys, money; whom he bribes their families with toys, and gifts and money and sporting events and sporting workout clothes, isn't [it] reasonable to believe that the defendant committed these crimes. It's not because he's creepy, it's because he did these things. [¶] Isn't it reasonable to base your decision to convict Ronald Cowan on the fact that he lavishes the boys with this affection[?] He was obsessed with [D.] as he told you. [D.] got too old to him, so he switched to A.J.... [¶] Isn't it a reasonable interpretation that A.J. came home with a sore bottom because the defendant had sodomized him? [A.J.] was crying because his trusted friend had betrayed him by molesting him? Isn't a reasonable interpretation of the evidence to believe that this man [had so much access to A.J.] and to convict this man because he had so much access ...; isn't it reasonable to convict him of these crimes? And isn't it reasonable after all, like I pointed out to believe that this man, who has this cavalier attitude about sex ... [i]s [the] same man who has the attitude towards A.J. and A.J. told you what he was thinking
... [?] Isn't it reasonable to believe that the same man who had that attitude from the stand is this man who didn't care what A.J. thought and who took from A.J. what he wanted[?]' " (Id. at pp. 1161-1162.)
Cowan held this portion of argument, considered by itself, did not constitute misconduct because it was not similar to the "reasonable account" language disapproved in Centeno:
"Unlike the prosecutor in Centeno, the prosecutor here prefaced her remarks with the statement that beyond a reasonable doubt means 'you're firmly convince[d] that guilt is the only reasonable interpretation of the evidence.' That is an accurate statement of the meaning of beyond a reasonable doubt. (See CALCRIM No. 224, stating in part: '[B]efore you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty.') The prosecutor made the statement immediately before discussing what is reasonable. The jury would understand the prosecutor's discussion of the reasonable interpretation of the evidence to be linked to her statement that the jury must be firmly convinced that guilt is the only reasonable interpretation of the evidence...." (Cowan, supra, 8 Cal.App.5th at p. 1162.)But Cowan held that while this isolated portion of closing argument may not have constituted misconduct, the prosecutor undermined her references to reasonable doubt with her improper statement that "reasonable doubt ends when the case begins." (Ibid.)
Cowan held the prosecutor's misconduct - that reasonable doubt ended when the case began - was prejudicial under the circumstances. Cowan acknowledged that the prosecution's evidence was stronger than in Centeno. Cowan also acknowledged that the "main thrust" in Centeno was the prosecutor's improper use of a diagram. (Cowan, supra, 8 Cal.App.5th at pp. 1162-1163.) However, Cowan concluded that the prosecutor's inaccurate definition of reasonable doubt "left in the minds of the jurors an image as graphic as a map." (Id. at p. 1163.)
Cowan held the case was similar to Centeno because the court properly instructed the jury prior to closing argument, and the court's earlier instruction about reasonable doubt "was insufficient to overcome the prejudice the prosecutor's grossly improper argument brought to the minds of the jurors. The prosecutor's definition was the last explanation of reasonable doubt the jury heard." (Cowan, supra, 8 Cal.App.5th at p. 1154.) Cowan held the prejudice was even more apparent than in Centeno since the prosecutor's use of the visual aid "did not directly contradict the trial court's instruction on proof beyond a reasonable doubt. [Citation.] But here the prosecutor's misconduct did." (Cowan, at p. 1164.)
C. Reyes
In People v. Reyes (2016) 246 Cal.App.4th 62 (Reyes), the defendant relied on Centeno and asserted the prosecutor misstated the burden of proof in closing rebuttal argument when he said: " 'Reasonable doubt is proof that leaves you with an abiding conviction the charge is true. The evidence need not eliminate all possible doubt, because everything in life is open to some doubt. Reasonable doubt. Reasonable doubt comes into play only if you have a reasonable doubt.' " (Reyes, supra, at p. 75.) The defendant objected and the court advised the jury that CALCRIM No. 220 defined reasonable doubt. The prosecutor continued: " 'If you don't have a doubt that the defendant raped and forcefully orally copulated [the victim], touched ... [the victim] in a rude manner ... the concept of reasonable doubt is not a problem and you vote guilty. Only if you have a doubt then consider, is that doubt reasonable? Is it a possible doubt or a reasonable doubt?' " (Reyes, supra, at pp. 75-76, fn. omitted.)
Reyes held that even assuming the prosecutor's comments were erroneous, there was no prejudice because the court properly instructed the jury on reasonable doubt, the prosecutor had already told the jury to follow the law in the court's instructions, the jury was unable to reach verdicts on some of the charges against the defendant that showed it carefully applied the reasonable doubt standard in deliberations, and the defendant conceded that he committed some of the charged offenses. (Reyes, supra, 246 Cal.App.4th at pp. 77-78.)
VII. Analysis: Imaginary, Possible, and Reasonable Doubt
We now turn to defendants' arguments that the prosecutor misstated the burden of proof in closing argument. First, defendants point to the following section of the prosecutor's initial closing argument about reasonable doubt, as we have already quoted above, where he said that "you can't use imaginary doubt, and you can't use possible doubt and an alien is going to come down and take Ms. Celedon out of the car and taken off. Those kinds of doubts, you're not allowed to use, and they have to be reasonable and they have to be granted in the evidence and the testimony that you have heard." (Italics added.)
Defendants argue that in the italicized sentences, the prosecutor improperly explained reasonable doubt "in terms of imaginary, possible and reasonable doubt." Defendants argues these statements were similar to the prosecutor's erroneous discussion of what was "reasonable" in Centeno, that the jury could convict the defendant based on the belief of a "reasonable theory" of guilt. The People argue the defense attorneys were not ineffective for failing to object to this argument, and any objections would have been futile, because the prosecutor did not misstate the burden of proof.
The prosecutor's statements in this case about imaginary and possible doubt are appropriate based on Centeno's holding that it is permissible "to argue that the jury may reject impossible or unreasonable interpretations of the evidence .... [Citation.]" (Centeno, supra, 60 Cal.4th at p. 672.) The prosecutor's statements are also similar to those in Cortez, supra, 63 Cal.4th 101, where the prosecutor said that reasonable doubt was not 'proof beyond all doubt or imaginary doubt. Basically, I submit to you what it means is you look at the evidence and you say, "I believe I know what happened, and my belief is not imaginary. It's based in the evidence in front of me." ' " (Id. at p. 130.) Cortez held "the challenged remarks, viewed in isolation, were incomplete at best," and when the remarks were viewed in context, there was no reasonable likelihood the jury would misunderstand the burden of proof. (Id. at pp. 131-133.)
As applied to this case, the prosecutor's discussion of imaginary, possible, and reasonable doubts do not appear to run afoul of Centeno. The prosecutor never said that the jury could convict the defendants based on a reasonable interpretation of the evidence. The prosecutor did not ask the jury to determine whether the defendant's innocence was reasonable. (Cf. People v. Ellison (2011) 196 Cal.App.4th 1342, 1353 [prosecutor improperly argued the jury had to determine "whether defendant's innocence was reasonable"].) Instead, the prosecutor tied "reasonable" doubt not to whether the jury decided the facts were reasonable, but whether the jury's "doubts" were "reasonable" based on the evidence and testimony admitted at trial. In contrast to Centeno, the prosecutor did not suggest that "a 'reasonable' account of the evidence satisfies the prosecutor's burden of proof." (Centeno, supra, 60 Cal.4th at p. 673, italics in original.)
Defendants' first claim of error is meritless, and defense counsel was not ineffective for failing to object to this portion of argument.
VIII. Analysis - Abiding Conviction
Defendants' next two claims of error are based on the prosecutor's rebuttal argument, which immediately followed the conclusion of Solomon's closing argument.
"I want to start with where [Solomon's attorney] left off with reasonable doubt. What is reasonable doubt? It's not an abiding conviction, and it's the language that the Judge used, and all that really means is this, a year from now, and five years from now, ten years from now, you're convinced that you believe that the defendants did, in fact, do what we accused them of doing, then, they are guilty. That's all that means and it's the standard that's been used in this country since the founding of the constitution, and it's the standard that's been used in this state since we became a state, and that's what gets used in courtrooms every day." (Italics added.)
Defendants argue that the prosecutor misstated that reasonable doubt was "not an abiding conviction." The People concede the error, but argue the defense attorneys were not ineffective for failing to object because the prosecutor continued his sentence by specifically referring the jury to "the language that the Judge used."
Defendants' attorneys were ineffective for failing to object to the prosecutor's misstatement that the reasonable doubt standard did not require an abiding conviction. As in Centeno, counsel required "no authority beyond section 1096" to object to the prosecutor's obvious misstatement of the burden of proof. (Centeno, supra, 60 Cal.4th at p. 675.)
Prejudice
While the defense attorneys were ineffective for failing to object to this portion of prosecutor's rebuttal argument, that does not end our analysis. The next question is whether the attorneys' failure to object was prejudicial. "[P]rejudice must be affirmatively proved; the record must demonstrate '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.' [Citations.]" (People v. Bolin (1998) 18 Cal.4th 297, 333.)
Centeno held that defense counsel's failure to object to the prosecutor's numerous misstatements of the burden of proof was prejudicial for several reasons: the court instructed the jury before closing arguments, the prosecutor's misstatements occurred in rebuttal, defendant did not object, the court did not admonish or reinstruct the jury on reasonable doubt after the erroneous argument so that "the prosecutor's argument was the last word on the subject," and the People conceded the matter involved "a very close case." (Centeno, supra, 60 Cal.4th at pp. 676-677.)
This case has some similarities with the circumstances in Centeno: The court fully instructed the jury on reasonable doubt before closing arguments, the prosecutor's misstatement about an abiding conviction occurred in rebuttal, defendants did not object to the rebuttal argument, the court did not admonish the jurors when the prosecutor said that reasonable doubt did not require an abiding conviction, and the court's final instructions did not address reasonable doubt.
In this case, however, the circumstances of the prosecutor's misstatement are more consistent with Cortez. As in Cortez, the prosecutor's rebuttal misstatement - that the burden of proof did "not" require an abiding conviction - was "brief and constituted a tiny, isolated part of the prosecution's argument." (Cortez, supra, 63 Cal.4th at p. 133.) Also as in Cortez, "the prosecution expressly referred the jurors to the instruction they had on reasonable doubt" (ibid.), since he continued his statement about an abiding conviction by immediately saying that "it's the language that the Judge used...." Moreover, the words that immediately followed reference to the court's instruction offered an apt characterization that "a year from now, and five years from now, ten years from now, you're convinced that you believe the defendants did, in fact, do what we accused them of doing ...." Finally, the court and all the parties properly defined reasonable doubt numerous times, and the court stated its intent to give the printed instructions to the jury during deliberations, so that "the jury had written instructions during deliberations that properly defined the standard...." (Ibid.)
Based on the fleeting nature of the prosecutor's misstatement, and the fact that the jury received the printed instructions during deliberations, we find that the defense attorneys' failure to object to the prosecutor's rebuttal assertion that reasonable doubt did not require an abiding conviction was not prejudicial under the circumstances.
IX. Analysis - Standard Used in Courtrooms "Every Day"
Defendants' final claim of error is based on what the prosecutor said immediately after declaring that reasonable doubt was "not an abiding conviction."
"[I]t's the standard that's been used in this country since the founding of the constitution, and it's the standard that's been used in this state since we became a state, and that's what gets used in courtrooms every day." (Italics added.)
Defendants rely on People v. Nguyen (1995) 40 Cal.App.4th 28 (Nguyen), and argue it is reasonably likely the prosecutor's italicized phrase similarly minimized and reduced the burden of proof because he compared it to the standard used "in courtrooms every day," without clarifying the difference between criminal trials and lesser burdens in civil cases. The People respond that the prosecutor's italicized comments were legally correct and did not dilute the burden of proof, and counsel was not ineffective because an objection would have been futile.
Defendants' reliance on Nguyen is misplaced. In that case, the prosecutor said in closing argument that reasonable doubt was " 'a very reachable standard that you use every day in your lives when you make important decisions, decisions about whether you want to get married, decisions that take your life at stake when you change lanes as you're driving. If you have reasonable doubt that you're going to get in a car accident, you don't change lanes. [¶] So it's a standard that you apply in your life. It's a very high standard. And read that instruction, too. I won't paraphrase it because it's a very difficult instruction, but it's not an unattainable standard. It's the standard in every single criminal case.' " (Nguyen, supra, 40 Cal.App.4th at p. 35, italics added.)
Nguyen held the prosecutor trivialized the burden of proof and "strongly disapprove[d]" of the argument because it suggested "the reasonable doubt standard is used in daily life to decide such questions as whether to change lanes or marry." (Nguyen, supra, 40 Cal.App.4th at p. 36.) "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.]" (Ibid.) Nguyen held the prosecutor committed misconduct but concluded the error was harmless because the defendant failed to object, an admonition would have cured the error, the trial court read the correct pattern instruction on reasonable doubt, and the prosecutor also directed the jury to read the pattern instruction on reasonable doubt. (Id. at pp. 36-37.)
In contrast to Nguyen, the prosecutor in this case did not equate the reasonable doubt standard with decisions that jurors make in daily life. Instead, he stated that the reasonable doubt standard had been used "since the founding of the constitution" and "used in this state since we became a state." These are accurate statements about the use of the reasonable doubt standard in state and federal courts. As for his statement about the standard being used in courtrooms every day, the prosecutor prefaced this assertion by referring the jury to "the language the Judge used," thus placing his reference in context to the court's instruction on reasonable doubt.
We find the prosecutor did not commit misconduct and defense counsel was not ineffective for failing to object.
DISPOSITION
The judgments are affirmed.
/s/_________
POOCHIGIAN, Acting P.J. WE CONCUR: /s/_________
FRANSON, J. /s/_________
MEEHAN, J.