Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C158105
Jenkins, J.
A jury concluded defendant Kerry Nhep was the perpetrator in a shooting incident in Oakland that left one young man dead and another seriously injured, and found him guilty of murder and premeditated attempted murder. The jury also found true associated enhancements for use of a firearm and infliction of great bodily injury. Defendant appeals his conviction and the sentence imposed on the following grounds: (1) the trial court erred by refusing his request for jury instructions on accomplice testimony; (2) defense counsel rendered ineffective assistance by failing to request instructions on accomplice testimony under an aiding an abetting theory based on the natural and probable consequences doctrine; (3) the prosecutor committed misconduct in rebuttal argument by mischaracterizing the concept of reasonable doubt; (4) CALJIC No. 2.21.2 reduced the prosecution’s burden of proof; (5) the trial court imposed an unauthorized sentence. After carefully considering defendant’s contentions, we conclude that only number (5) has merit. Accordingly, for reasons set forth below, we affirm defendant’s convictions, modify the sentence imposed on the attempted murder conviction, and remand for resentencing.
Appellant’s Request for Judicial Notice, filed August 4, 2010 is granted.
Procedural Background
In April 2008, the Alameda County District Attorney (DA) filed an information alleging in count one that on or about September 16, 2007, defendant murdered Charles Brackins, in violation of Penal Code section 187, subdivision (a). The DA alleged in count 2 that defendant committed premeditated attempted murder against Malique Parrott, in violation of sections 187, subdivision (a) and 664, subdivision (a). In count 3, the DA alleged defendant committed an assault with a firearm against Malique Parrott, in violation of section 245, subdivision (a)(2). In relation to counts 1-3, the DA alleged defendant used a firearm in the commission of the offenses, pursuant to section 12022.5, subdivision (a). Further, in regard to counts 2 and 3, the DA also alleged defendant personally inflicted great bodily injury on Malique Parrott, pursuant to section 12022.7, subdivision (a).
Further references are to the Penal Code unless otherwise noted.
In the information, the DA also alleged in counts 4 and 5 that on or about September 28, 2007, defendant committed premeditated attempted murder and assault with a firearm against another victim. Pursuant to defendant’s motion, which the prosecution conceded, the court severed counts 1-3 from counts 4-5 for trial purposes.
The case was tried to a jury between July and August 2009. After carefully deliberating for almost three days, the jury returned its verdicts on August 12, 2009. The jury found defendant guilty of first degree murder, premeditated attempted murder, assault with a firearm, and also found true the allegations associated with those crimes. On October 28, 2009, the trial court sentenced defendant to a total term of 75 years to life in state prison. Defendant filed a timely notice of appeal on the same day.
Facts
The shooting followed an encounter between three young African-American men (Charles Brackins, his cousin Malique Parrott and Anthony Bartholomew) and three young Asian men (Chiem Saeteurn, Andrew Chao and Nai Saechao) at the Blue and Gold Liquor Store on 14th Avenue in Oakland. After the fight and shooting, Charles Brackins died, and his cousin Malique Parrott was badly injured.
The Fight and Shooing At The Liquor Store
Malique Parrott testified that in the early hours of September 16, 2007, he was at home with his cousin Charles Brackins, whom he referred to as Chauncey. They had been drinking wine and decided to go out for something to eat. After they got in Chauncey’s truck, they were approached by Anthony Bartholomew, an acquaintance who lived in their neighborhood, who asked if they could take him to the store.
Chauncey drove to the Blue and Gold liquor store. He parked, they all got out of the truck, and walked toward the store. There was a blue Toyota parked at the liquor store and three Asian men standing outside the store. Parrott recognized one of the Asian males from around the neighborhood, and identified this person at trial as Chiem Saeteurn. Parrott and Saeteurn engaged in conversation about the blue Toyota. Chauncey and the other two Asian males were behind Parrott. Parrott heard a commotion and when he turned around he saw that the two Asian males were hitting Chauncey with fists. Parrott stepped between Chauncey and the Asian males to break up the fight. Saeteurn told his friends to “be cool” and things calmed down.
During this fracas, Parrott saw a green truck drive by and turn on East 18th or East 19th Street. After the truck went around the corner, a second group of Asian males came back around the same corner and walked towards the scene of the altercation. Parrott heard someone in the newly-arrived group of Asians shout, “OTC, 11th Ave. Nigga, I’ll smoke you.” Parrott heard shots, fired by someone in the group in front him. Parrott could not see who fired the shots, but said it was not the same man who shouted “I’ll smoke you.”
After shots were fired, Parrott felt his arm break and then his leg break. He tried to take cover behind a car and fell in the street. After he fell, he was shot in the back and other parts of his body. Parrott heard Chauncey cry for help but Parrott could not get up. After the police arrived, Parrott was taken to Highland Hospital, where he was treated for multiple gun shot wounds.
Anthony Bartholomew testified that when he came out of the liquor store Parrott was talking to one of the Asian males. The other two Asian males then hit Chauncey. When Chauncey was struck, Bartholomew said, “Let’s go, ” but “they didn’t want to listen so I crossed the street myself and left.” A couple of minutes later, Bartholomew heard gunshots. Prior to hearing the shots, he saw the defendant’s truck drive past the liquor store and turn the corner onto East 18th Street. Immediately, a group of Asians came around the corner from East 18th and ran towards the group outside the liquor store and gunfire erupted. Bartholomew ran when he heard the shots. Looking back, he saw people running and cars speeding off. One of the vehicles Bartholomew saw fleeing the scene was Chauncey’s truck.
The three young Asian males who initially encountered the victims at the liquor store were called by the prosecution and reluctantly gave testimony at the trial. Chiem Saeteurn (Saeteurn) testified he and defendant were friends but they were not members of a gang called OTC. Saeteurn was speaking with Parrott when the fighting started, but he did not know who or why he was fighting, he “was just fighting.” Saeteurn denied telling police that defendant and some of his friends rolled up in a green SUV, denied he was in defendant’s vehicle when he was arrested on October 1, 2007, and denied telling the police that defendant was the shooter on the evening in question.
Andrew Chao (Chao) testified that he goes by the name of Zuko. Chao was at the liquor store with his cousin Nai Saechao and Saeteurn on the evening in question. Nai drove them there in his Toyota Camry. When they came out of the liquor store, they met two African-American guys, one bigger than the other. One of the African-American guys uttered a racial slur and a fight ensued after Chao hit the big guy. Chao admitted that he told the police that he saw a green SUV drive by during the initial fight and that the driver was defendant, who he referred to as “K”. Chao also admitted he identified defendant as the driver of the green SUV by circling his photograph in a photo line up. After the green SUV drove by several other Asian men showed up. The fighting continued and Chao heard several gunshots. Chao testified that he could not see who was firing the gun. He was then impeached with his pre-trial statement to the police that “K” (defendant) was the person firing the gun and that “K” is the person seen on the surveillance tape wearing a black hoodie. After he heard gunshots, Chao ran back to Nai’s Toyota Camry and fled the scene in that vehicle. Nai was not in the car when Chao fled the scene.
Nai Saechao (Nai) testified that no one in the group at the liquor store had any weapons. He did not know why the fight broke out, other than that both sides were drunk. Nai hit the bigger of the two African-American guys. During the fight, Nai heard gunshots but did not see who was shooting. He denied telling police that defendant was the shooter. The prosecutor then introduced a photo line up, signed by Nai, on which he had circled defendant’s photograph and identified defendant as the shooter. Nai testified that after hearing shots, he jumped into the murder victim’s truck because it was the closest vehicle, and drove off. He admitted he is now on felony probation for stealing that truck.
The Police Investigation
Police responded to a report of multiple gunshots in front of 1835 14th Avenue. When they arrived on the scene, Charles Brackins was still alive, but he was unable to speak or respond to questions. Police found no weapons on Brackins. Brackins was transported to Highlands Hospital and later died. An autopsy revealed that Brackins was shot six times. Three bullets hit the victim in the right leg, one hit him in the left buttock, one hit him in the right thigh and one hit him in the left forearm. The cause of death was multiple gunshot wounds. Physical evidence collected at the scene included eleven shell casings, all bearing the same WIN Luger headstamp. All the shell casings found at the scene were fired from the same handgun.
Sergeant Louis Cruz, the primary investigator on the Brackins homicide, was called to testify regarding the circumstances that led to the identification of defendant as the person who shot Brackens. Cruz stated the morning after the shooting, he went to the scene and immediately noticed the surveillance camera above the door to the bait shop adjacent to the liquor store. Cruz arranged for a police technician to obtain a copy of the tape from the surveillance camera. Later that day, Cruz received information via Officer Barre about a traffic stop involving a green Honda Passport. Cruz incorporated this information in the daily bulletin circulated by email throughout the police department.
Shortly after the shooting, Oakland Police Officer Barre obtained information linking defendant’s vehicle to the homicide when he interviewed shooting victim Malique Parrott at Highland Hospital. Parrott was in pain but lucid. Based on Parrott’s statement, Barre believed the green colored SUV described by Parrott was the same vehicle Barre stopped for a traffic violation on September 1st, a few weeks earlier. Barre passed this information to Sergeant Basa in the homicide division the morning after he interviewed Parrott. At trial, Barre was shown a photograph of defendant’s SUV and identified it as the vehicle he stopped on September 1st. He also identified defendant in court as the driver on that day.
On September 26, Cruz interviewed Parrott at the police station. Parrott was unable to identify the person who shot him from the photos shown to him by Cruz. Cruz then showed Parrott a photograph of Chiem Saeteurn. Parrott identified Saeteurn as the person he was talking to outside the liquor store.
On September 28, Cruz reviewed the surveillance tape with Officer Sevilla. Officer Sevilla identified Chamreoun Suon (Chamreoun) as the person on the tape who walked with a limp. On October 1, about 7:10 p.m., Cruz authorized Officer Sevilla to stop defendant’s green Honda Passport. In the car were defendant, his girlfriend, Saeteurn and Chamreoun. Cruz directed Sevilla to bring Saeteurn and Chamreoun in for questioning because he knew both these individuals were present at the scene of the shooting. Defendant and his girlfriend were not detained because at that point neither had been identified as being at the scene of the shooting.
Officer Sevilla testified that when he reviewed the surveillance tape he immediately recognized a dark colored Honda Passport with 20-22 inch silver rims because two days before viewing the tape, he stopped the same vehicle on information that it might be linked to a homicide. Inside the vehicle at the time of the stop were passengers Chamreoun Suon and Chiem Saeteurn. Chamreoun Suon has a prosthetic right leg and walks with a limp. The driver told Sevilla he did not have any identification and gave his name as Ratha Duch. Sevilla identified defendant in court as the driver on that occasion.
Saeteurn and Chamreoun were transported to the police station and placed in separate interview rooms so that they could not communicate with each other. Cruz and Sergeant Basa interviewed Chiem and Chamreoun separately over the course of the next several hours. The officers made audio recordings of segments of the interviews with Chiem and Chamreoun and these recorded segments were played to the jury at trial. In the recordings, both Saeteurn and Chamreoun first deny any knowledge of the shooting. Then, after they are confronted with the surveillance tape showing they were present at the shooting, Saeteurn and Chamreoun each reveal more details about the shooting. Finally, Saeteurn and Chamreoun each independently identify defendant as the shooter. In Saeteurn’s case, he stated, “Man, I don’t know who the shooter is, ” while simultaneously pointing to a photograph of defendant. At the conclusion of the interrogation Cruz released Saeteurn and Chamreoun because he did not think they were implicated in the shooting.
At trial Chamreoun Suon testified that he has a prosthetic leg and goes by the name of Aran. On the night of the shooting, he accompanied defendant in a green Honda Passport to the liquor store, and defendant was driving. Suon admitted telling police he heard gunshots and he saw defendant firing a silver handgun. He also admitted that when police showed him the surveillance tape, he identified defendant as the individual running from the scene wearing a black hoodie.
Acting on information from their interviews with Saeteurn and Chamreoun, Sergeants Cruz and Basa next decided to interview Anthony Chao, who was in placement at a boy’s camp in Southern California. Cruz recorded segments of the interview, which were played to the jury at trial. Chao initially denied being in Oakland on the day of the murder. After Cruz confronted him with evidence he was at the scene, Chao identified photos of other individuals at the scene, including shooting victim Parrott and “K, ” the defendant. Chao also identified defendant as the shooter.
On October 11, the day after Cruz’s interview with Chao, Nai Saechao was arrested and brought to the police station for questioning. Segments of the audio-recording of the interview were played for the jury at trial. Nai initially denied he had ever seen defendant before. Later in the interview, Nai identified defendant as the shooter by circling defendant’s photograph in a photo line up.
On October 19, defendant was arrested and taken to the Oakland police department. Cruz and Basa questioned defendant after he waived his Miranda rights. Segments of the interview were recorded and played to the jury at trial. Defendant stated he drove by the scene of the fight en route to his girlfriend’s house but never stopped. At the conclusion of the interview, defendant was arrested and taken to county jail.
After defendant’s arrest, Cruz ordered officers to bring his girlfriend, Koyhin Saechao to the station for questioning. When Cruz and Basa questioned Koyhin, she initially told them, consistent with defendant’s statement, that they drove by the scene of the fight but never stopped.
Cruz obtained Koyhin’s cell phone number and asked personnel at the county jail to record all outgoing calls to her number from defendant. At 3:07 p.m. on October 20, defendant’s first day in jail, he called Koyhin and talked to her and Chiem Saeteurn on a three-way call. In this call, Koyhin told defendant police had asked her if she had ever seen Capones before. Koyhin asked defendant, “Did you tell him that you showed me Capones before?” Defendant also asked Koyhin “where his Capone is at.” Another call from defendant to Koyhin was recorded the same day at 3:51 p.m. in the afternoon during which there was a further discussion of Capones.
Cruz explained that Capone refers to a gun. Cruz also stated during his interview with Koyhin earlier that day she told him she had never seen defendant with a gun.
At 7:50 p.m. another call was recorded in which defendant converses with Chamreoun in Cambodian. In this call, defendant told Chamreoun he knew the police had tapes on which “You, Lou, and Zuko said you saw me.” Defendant told Chamreoun to tell police, “You saw me but you didn’t know it was me. You thought it was me. That’s why you said what you said. I’ll tell them the other black people ran up and did it. I was wearing a white shirt and I got out going to the store.” Defendant instructs Chamreoun to make sure Lou, Corey and Zuko “tell them what I just told you.” Also, in this call defendant instructs a person by the name of Chavy or Chaya to get rid of the gun, “the silver one.”
Cruz enlisted the aid of Officer Sem, who is Cambodian, to listen to and translate the conversation into English. At trial, Officer Sem described the recorded conversation in English for the benefit of the jury.
The last phone call from defendant to Koyhin on October 20 was recorded at 10:37 p.m. In this call, defendant conversed in Cambodian with an individual named Chavy. Defendant told Koyhin and Chavy to say that they saw him wearing a white shirt, not black. When defendant is asked, “did they see you with the hoodie, ” defendant scolds the speaker, stating “Don’t say that.” Defendant also tells them to say he was standing at the corner.
At trial, Koyhin Saechao testified that she has known defendant for six years and he is the father of her child. Koyhin admitted she lied to police about seeing a gun, but denied she ever saw it in defendant’s possession. She found the gun in her car and “gave it back to Joe. That belongs to Joe.” Koyhin admitted writing to defendant in jail and was shown one of her letters which said, “I’m out here talking to everybody so don’t worry. Don’t talk about anything when you write to me or talk to me because they read and listen and it ain’t good.” Koyhin also denied that she or Nhep had ever been members of the Oaktown Cripps.
At trial, Officer Sem described the recorded conversation in English for the benefit of the jury.
Defense Case
Defendant, the sole witness for the defense, testified that around 1:45 a.m. on September 16, 2007, he drove by the Blue and Gold Liquor store in his green Honda Passport. He was accompanied by Chamreoun Suon and two other friends. Defendant stopped when he saw some other friends over by the liquor store. Defendant made a right turn on East 18th Street and parked. Everybody got out of the car and walked ahead of him to the front of the liquor store. Defendant said he was wearing a black hoodie sweater and blue jeans with a white stripe. Chamreoun was wearing a black shirt.
As soon as defendant reached the store, everyone started fighting with two black guys. Chamreoun was in front of everyone, and said, “OTC, I’ll smoke you.” Defendant was standing behind at least 10 other people at this point. The fight moved away from the liquor store and defendant followed the crowd, remaining in the rear. After Chamreoun said “ ‘OTC’ that’s when the gunshots started ringing.” Defendant heard Chamreoun say, “1100 Funk Town, I’ll smoke you.” According to defendant, “OTC” stands for Oakland Town Cripps, and 1100 Funk Town refers to the 11th Avenue neighborhood. None of the people present at the scene grew up in that neighborhood except Chamreoun. The shots were fired by someone in front of defendant but he was unable to see who was shooting. When he heard the shots, he just ran back to his car. Defendant initially lied to the police because he was scared of being considered a snitch. Defendant denied he had ever been a member of the Oaktown Cripps.
Discussion
A. Accomplice Testimony
The trial court refused defendant’s request for jury instructions on accomplice testimony, concluding that the evidence did not support giving the instructions. Defendant contends that the trial court’s failure to give the requested accomplice instructions violated his federal right to due process and requires reversal of his convictions. We disagree.
“Section 1111 defines an accomplice as ‘one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.’ In order to be chargeable with the identical offense, the witness must be considered a principal under section 31. That statute defines principals to include ‘[a]ll persons concerned in the commission of a crime... whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission.’ (Citations.)” (People v. Horton (1995) 11 Cal.4th 1068, 1113-1114 (Horton); see also People v. Tewksbury (1976) 15 Cal.3d 953, 960 [criminal liability as a principal attaches to those who aid in the commission of a crime only if they also share in the criminal intent or abet the crime, i.e., encourage it with knowledge of the wrongful purpose].) However, “[a] mere accessory... is not liable to prosecution for the identical offense, and therefore is not an accomplice. (Citations.)” (Horton, supra, 11 Cal.4th at p. 1114.) Moreover, “[i]f there is evidence from which the jury could find that a witness is an accomplice to the crime charged, the court must instruct the jury on accomplice testimony. (Citation.) But if the evidence is insufficient as a matter of law to support a finding that a witness is an accomplice, the trial court may make that determination and, in that situation, need not instruct the jury on accomplice testimony. (Citation.)” (Ibid.)
Defendant contends that Chamreoun Suon, Nai Saechao, Andrew Chao and Chiem Saeteurn, eyewitnesses who were present at the time of the shooting and testified at trial, were accomplices to the crimes charged against him. Defendant offers two theories of accomplice liability: The first is based on evidence that Chamreoun was in defendant’s car when it drove past the liquor store during the fight and, according to defendant’s testimony, Chamreoun was the person who shouted “OTC” and “I’ll smoke you.” This evidence, defendant contends, establishes that Chamreoun was an “either the shooter or... someone acting in concert with the shooter, ” and that under either scenario he is an accomplice. Defendant’s second theory of accomplice liability is that the murder was a natural and probable consequence of a gang fight. We discuss each theory in turn.
We reject defendant’s first theory of accomplice liability — that Chamreoun was the actual shooter or acted in concert with an unidentified shooter — on the basis of our Supreme Court’s decision in People v. Ward (2005) 36 Cal.4th 186 (Ward). In Ward, defendant contended a witness named Springer shot the victim and the trial court should have given accomplice liability instructions regarding Springer’s trial testimony. The Supreme Court held: “As to the first theory — that Springer was the direct perpetrator of [the] murder — defendant’s contention is legally unsound. Although section 1111 defines an accomplice as ‘one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given, ’ the law further requires a relationship between thedefendant and accomplice, either by virtue of a conspiracy or by acts aiding and abetting the crime. (Citation.)” (Ward, supra, 36 Cal.4th at p. 212 [italics added].) Here, evidence that Chamreoun was in defendant’s car on the evening in question and, according to defendant, shouted “OTC” and “I’ll smoke you, ” fails to establish that Chamreoun was acting in concert with defendant in the shooting. Thus, just as in Ward, the evidence does not establish “a relationship between defendant and the accomplice, ” such that the jury could believe Suon was an accomplice to the murder. (See Ward, supra, 36 Cal.4th at p. 212 [also noting that a witness cannot “be deemed defendant’s accomplice in the charged offense” where “the evidence of the witness’s possible involvement tends to show the witness committed the crime without the defendant’s participation”].)
Defendant’s claim of accomplice liability under the natural and probable consequences doctrine against Nai Saechao, Andrew Chao and Chiem Saeteurn (the three young men who first encountered the victims at the liquor store) is also without merit. Defendant contends these individuals are accomplices to the murder under the natural and probable consequences doctrine because they initiated a gang-related fist fight with the victims. (See People v. Medina (2009) 46 Cal.4th 913 (Medina).)
In Medina, three gang members engaged in a fist fight with the victim. After the victim bested them in the fist fight, one of the three gang members fatally shot the victim, and was convicted of murder as the perpetrator of the shooting. The other two gang members involved in the fist fight were convicted of murder as aiders and abettors. Our Supreme Court found their murder convictions were supported by substantial evidence, concluding, under the natural and probable consequences doctrine, “that a rational trier of fact could have found that the shooting of the victim was a reasonably foreseeable consequence of the gang assault in this case.” (Medina, supra, 46 Cal.4th at p. 922.) In so concluding, the court noted that “evidence revealed that one of the gang participants actually knew that at least one fellow gang member had a gun, ” and stated that “in the gang context, it was not necessary for there to have been a prior discussion of or agreement to a shooting....” (Medina, supra, 46 Cal.4th at p. 924.)
In this case, and unlike Medina, there is no evidence that the fist fight was triggered by, or escalated into a shooting on basis of, a gang rivalry. Malique Parrott, the victim of attempted murder, and Nai Saechao testified they had no idea why the fight started. Chiem Saeteurn testified that he was “just fighting” and did not know why he was fighting. Andrew Chao said the fight started because one of the African-American men made a racial comment. Significantly, Saechao, Saeteurn, Chao and defendant all denied being members of a gang. Another distinction between this case and Medina is that there is no evidence here that any of the participants knew another participant had a gun. (Cf. Medina, supra, 46 Cal.4th at p. 924 [“evidence revealed that one of the gang participants actually knew that at least one fellow gang member had a gun”].) In sum, there is no substantial evidence that the fist fight was triggered by a gang rivalry and escalated into a shooting on that basis. (Cf. Medina, supra, 46 Cal.4th at pp. 922, 927-928 [noting “jury could reasonably have found that defendants would have or should have known that retaliation was likely to occur and that escalation of the confrontation to a deadly level was reasonably foreseeable as [their opponent] was retreating from the scene”].) Accordingly, we reject defendant’s theory of accomplice liability under the natural and probable consequences doctrine as applied in Medina, supra.
Furthermore, even assuming the trial court should have instructed on accomplice liability under section 1111, any error is deemed “harmless if there is ‘sufficient corroborating evidence in the record.’ (Citation.) To corroborate the testimony of an accomplice, the prosecution must present ‘independent evidence, ’ that is, evidence that ‘tends to connect the defendant with the crime charged’ without aid or assistance from the accomplice’s testimony. (Citation.) Corroborating evidence is sufficient if it tends to implicate the defendant and thus relates to some act or fact that is an element of the crime. (Citation.) ‘ “[T]he corroborative evidence may be slight and entitled to little consideration when standing alone.” [Citation.]’ (Citation.)” (People v. Avila (2006) 38 Cal.4th 491, 562-563.) Here, the prosecution presented evidence that defendant admitted being present at the scene of the shooting. In addition, defendant’s vehicle is shown driving past the murder scene on the surveillance tape from the bait shop and defendant’s image was also captured on the tape. The prosecution also presented evidence of defendant’s telephone conversations from the jailhouse, showing that defendant directed others to dispose of his handgun and asked his friends to lie to the police about circumstances surrounding the murder. This evidence independently connects defendant to the crime and corroborates any accomplice testimony. Thus, any error by the trial court in failing to give accomplice instructions was harmless. (See People v. Avila, supra, 38 Cal.4th at pp. 562-563.)
Defendant acknowledges People v. Avila, supra, 38 Cal.4th at p. 491 and like cases are binding on this court, but in order to preserve his right to federal habeas review, contends such cases are inconsistent with high court precedent.
Having concluded that the trial court did not err in failing to give accomplice instructions, and in all events that any such alleged error was harmless, we also reject defendant’s contention that trial counsel provided ineffective assistance by failing to request accomplice instructions under the natural and probable consequences doctrine, discussed ante.
B. Prosecutorial Misconduct
Defendant contends the prosecutor committed prejudicial misconduct in his rebuttal argument by mischaracterizing the standard for reasonable doubt. While we do not condone the prosecutor’s comments, we ultimately conclude they do not rise to the level of misconduct.
We have set forth here, in some detail, the prosecutor’s argument — identifying in italics the portion of the argument which allegedly constitutes misconduct. After defense counsel delivered his closing argument, the prosecutor launched his rebuttal as follows, “Perhaps the most useful aspect of this particular portion of the trial which is known as the rebuttal is that it affords us an opportunity for a reality check.... [¶] You see, in many ways, the argument that was put forward to you reflects some very common tactics... that you may see in a case like this. One of those had to do with the burden of proof in this case. [¶] The burden of proof, as the judge will instruct you on, is that this has to be proven to you beyond a reasonable doubt. She’ll tell you what that means. But that standard is not the impossible standard that the defense would have you believe.... [¶] If reasonable doubt was as impossible a standard as the defense would infer, nobody would ever be convicted of anything. Reasonable doubt is the appropriate standard... and it’s the one that is appropriate in this case.... [¶] And when we talk about reasonable doubt, there’s another thing to keep in mind. Reasonable doubt acts as a shield to protect the innocent. It is not some sort of loophole for the guilty. And in this case, there has been an effort to create some of these loopholes so that this Defendant can escape liability in this case. And that has been done primarily by putting other people on trial.” Thereafter, the prosecutor developed his argument that defendant was attempting to escape liability by putting Sergeant Cruz, the investigating officer, on trial for his interrogation methods, and suggesting to the jury that the actual shooter was Chamreoun Suon.
In the first instance, we note first defendant did not object at trial to the prosecutor’s comments he now challenges on appeal. Generally, a defendant may not complain on appeal of prosecutorial misconduct unless he objected to the misconduct in the court below and asked that the jury be admonished to disregard the impropriety. (People v. Cunningham (2001) 25 Cal.4th 926, 1000.) If no objection was made, the point is reviewable on appeal only if an admonition would not have cured the harm caused by the misconduct. (Id. at pp. 1000-1001.) Here, any harm caused by the misconduct alleged could have been cured by an appropriate admonition. Therefore, appellant’s failure to object bars his claim on appeal. In all events, defendant’s claim of prosecutorial conduct fails on the merits.
“A prosecutor’s conduct 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. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury. Furthermore, and particularly pertinent here, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.]” (People v. Morales (2001) 25 Cal.4th 34, 44.)
Defendant contends the prosecutor’s comments amounted to misconduct because they misstate the reasonable doubt standard in a way that lowered the prosecution’s burden of proof. In particular, defendant asserts that the prosecutor’s comments suggested to the jury that “the reasonable doubt standard only applied to people who could affirmatively prove their innocence.” We disagree.
First, the critical aspect of the prosecutor’s argument in contention here is ambiguous. Defendant argues the jury could have construed the prosecutor’s comment as a bald assertion that reasonable doubt only applies to those who establish their innocence. However, the jury could just as easily have understood the comment to mean that the burden of proof beyond a reasonable doubt is onerous to ensure that someone who is innocent is not convicted, but is not meant to be a loophole for the guilty. However, we need not resolve this debate because when the objectionable statement is viewed in the context of the entire rebuttal argument, the prosecutor’s comment cannot reasonably be construed as urging the jury to convict on a lower standard of proof than beyond a reasonable doubt. The prosecutor’s inapt analogy to the reasonable doubt standard as a shield for the innocent was a single comment subsumed within a two-prong argument to the jury that the prosecution’s burden of proof was not, as portrayed by defense counsel, an insurmountable barrier to the jury’s ability to return a guilty verdict, and that defendant was attempting to escape liability by blaming others for his predicament. As importantly, the prosecutor in the course of his rebuttal argument told the jury the trial judge “will instruct you on” reasonable doubt and “tell you what that means, ” and the trial court did so pursuant to CALJIC 2.90. Accordingly, we conclude there is no “reasonable likelihood that the jury construed or applied... the complained-of remarks” in the manner urged by defendant. (People v. Morales, supra, 25 Cal.4th at p. 44.)
Nevertheless, we do not endorse the prosecutor’s explanation of reasonable doubt. The presumption of innocence is inherent in the standard of proof beyond a reasonable doubt (see Taylor v. Kentucky (1978) 436 U.S. 478, 483 & fn. 12), and these two constitutional principles form the core protections available to a defendant in a criminal trial. Any prosecutor who explains these principles to a jury in a way that blurs either one, is courting reversible error.
Nor do the cases cited by defendant compel a different result. In People v. Johnson (2004) 115 Cal.App.4th 1169, 1172 the appellate court reversed the judgment because the trial court incorrectly instructed the jury that reasonable doubt was akin to the deliberation involved in “planning vacations or scheduling flights.” Here, by contrast, no error is alleged in the instruction given on reasonable doubt pursuant to CALJIC 2.90. In Floyd v. Meachum (2d Cir. 1990) 907 F.2d 347, the federal appellate court granted habeas relief in part because the prosecutor misstated the law by arguing that “the Fifth Amendment was ‘a protection for the innocent’ and not ‘a shield’ for ‘the guilty.’ ” (Id. at p. 354.) Significantly, the court stressed that it granted relief because “this case does not involve one, or a few isolated, brief episodes; rather, it involves repeated and escalating prosecutorial misconduct from initial to closing summation.” (Ibid.) By contrast, no such pattern of misconduct is apparent here. Similarly, under equally egregious circumstances, the federal appellate court in Mahorney v. Wallman (10th Cir. 1990) 917 F.2d 469, granted habeas relief where the state prosecutor’s comment that the presumption of innocence had been removed by the evidence presented at trial amounted to a “misstatement of law that affirmatively negates a constitutional right or principle.” (Id. at p. 473.) Here, the prosecutor’s comments did not constitute a misstatement of law that affirmatively negates a constitutional right or principle. Finally, we reject defendant’s assertion that the prosecutor’s comments here were more egregious than those in People v. Nguyen (1995) 40 Cal.App.4th 28. There, the prosecutor described the reasonable doubt standard as an “every day” standard that people customarily use in deciding whether to change lanes while driving. (Id. at p. 36.) The court stated the prosecutor’s argument was improper because it “trivializes the reasonable doubt standard.” (Ibid.) Here, as we explained above, the prosecutor did not trivialize the reasonable doubt standard. Furthermore, having denied defendant’s prosecutorial misconduct claim on the merits, defendant’s related ineffective assistance of counsel claim also fails.
C. Instructional Error
Defendant argues that CALJIC No. 2.21.2 lowers the standard of proof for conviction because it impermissibly allowed the jury to convict him under a “probability of truth” standard. As defendant acknowledges, however, the same contention has been rejected by our Supreme Court.
The trial court instructed the jury pursuant to CALJIC No. 2.21.2, which provides: “A witness, who is willfully false in one material part of his or her testimony, is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars.”
In People v. Maury (2003) 30 Cal.4th 342 (Maury), the court addressed the defendant’s claim that, as applied to the testimony of prosecution witnesses, CALJIC 2.21.2 lowered the prosecution’s burden from beyond a reasonable doubt to “meeting a ‘probability of truth.’ ” (Id. at p. 428.) The court noted that in the earlier case of People v. Beardslee (1991) 53 Cal.3d 68, it had “rejected a similar claim that the instruction, as applied to the defendant’s testimony, increases the burden of proof from raising a reasonable doubt to meeting a ‘probability of truth.’ ” (Ibid. [italics added].) The Beardslee court reasoned: “The qualification attacked by defendant as shifting the burden of proof (‘unless from all the evidence you shall believe the probability of truth favors his testimony in other particulars’) is merely a statement of the obvious — that the jury should refrain from rejecting the whole of a witness’s testimony if it believes that the probability of truth favors any part of it. [¶] ‘Thus CALJIC No. 2.21 does nothing more than explain to a jury one of the tests they may use in resolving a credibility dispute.’ ” (Beardslee, supra, 53 Cal.3d at p. 95.) The Maury court stated that “[a]lthough defendant here attacks the instruction as applied to prosecution witnesses, the same rationale applies. (Citations.) When CALJIC No. 2.21.2 is considered in context with CALJIC Nos. 1.01 (consider instructions as a whole) and 2.90 (burden of proof), ‘the jury was adequately told to apply CALJIC No. 2.21.2 “only as part of the process of determining whether the prosecution had met its fundamental burden of proving [defendant’s] guilt beyond a reasonable doubt.” [Citation.]’ (Citation.)” (Maury, supra, 30 Cal.4th at p. 429.) Accordingly, consistent with the opinions of our Supreme Court, we reject defendant’s contention that CALJIC 2.21.2 lowers the prosecution’s burden of proof.
We also reject defendant’s assertion that his interpretation of CALJIC 2.21.2 is given added validity by prejudice arising from the court’s alleged error in failing to give accomplice instructions and alleged prosecutorial misconduct because we found no error on those points, see ante. Furthermore, having rejected this contention on the merits, defendant’s related ineffective assistance of counsel claim also fails.
D. Sentencing Error
Defendant asserts two sentencing errors in connection with his conviction in count two on the charge of premeditated attempted murder. First, defendant contends the trial court erred by sentencing him on count two to a concurrent term of 15 years-to-life, when the proper sentence was life. Second, he contends the trial court erred by running the 25-years-to-life term for the gun enhancement related to count two consecutive to his principal term, despite imposing a concurrent term for count two. Respondent concedes error on both points. We also concur with defendant. Regarding the first assertion of error, section 664, subdivision (a), provides that the punishment for attempted premeditated murder is life with the possibility of parole. Accordingly, we strike the unauthorized sentence of 15-years-to-life imposed by the trial court, and remand with instructions that the trial court modify the sentence to reflect a sentence of life. (See People v. Smith (2001) 24 Cal.4th 849, 852 [unauthorized sentence may be corrected even if defendant fails to object in trial court].)
Regarding the second assertion of error, the personal gun-use enhancement imposed on count two was not a “separate crime[] and cannot stand alone.... [It] is dependent upon and necessarily attached to its underlying felony.” (People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1311.) A court imposes an unauthorized sentence where, as here, it “separate[s] the felony and its attendant enhancement by imposing a concurrent term for the felony conviction and a consecutive term for the enhancement....” (Ibid.) Accordingly, we must therefore remand for resentencing.
Disposition
Defendant’s convictions are affirmed. The sentence imposed on the gun use enhancement related to count 2 is reversed and the matter is remanded for resentencing. Upon remand, the trial court is instructed to modify the sentence imposed on count two to a term of life imprisonment.
We concur: McGuiness, P. J., Siggins, J.