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The People v. Ramon Guardado

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT


December 20, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
RAMON GUARDADO, DEFENDANT AND APPELLANT.

APPEAL from a judgment of the Superior Court of Stanislaus County. Scott T. Steffen, Judge. (Super. Ct. No. 1108890) Stanislaus County

The opinion of the court was delivered by: Franson, J.

P. v. Guardado

CA5

NOT TO 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Appellant Ramon Guardado appeals from his convictions of robbery and first degree felony murder committed during the commission of a robbery. Appellant claims he fatally stabbed Joseph Badal in the chest with a steak knife while high on methamphetamines and in fear for his life, without any prior intent of robbing the victim. On appeal, appellant claims (1) insufficient evidence of the taking and of intent supports the robbery-related findings and verdicts; (2) the trial court erroneously instructed the jury with several instructions that unfairly advantaged the prosecution; and (3) the prosecutor engaged in misconduct arising primarily during the prosecutor's rebuttal closing argument. For the reasons discussed below, we affirm the judgment in all respects.

FACTUAL AND PROCEDURAL BACKGROUND

Joseph Badal called Monica Arias on May 10, 2006, looking for Christina Coito, a woman he had previously bought a small dinner for, and expressed interest in, but who had rebuffed his advances. Coito and Arias were "close" friends and were involved in drugs as suppliers. Arias was not with Coito at that time but arranged to meet up with Badal, ostensibly to help him look for Coito.

After Badal called Arias, Arias and appellant exchanged several phone calls. Arias eventually asked appellant to accompany her to meet Badal in the parking lot of a bar. She told appellant she would "hook him up" with drugs if he did so, and he agreed. Appellant was carrying a knife in his front right pocket that he had taken from his home a day or two earlier. He testified he sometimes armed himself, after being jumped several months earlier, and would especially take precaution to arm himself when he was going to be doing drugs. Appellant testified he took methamphetamines the day of the incident to stay awake, as he had been up for three days at that point.

Arias had previously provided drugs to appellant, and also had a $200-a-day habit herself. Arias testified she thought she would get some money from Coito if she helped Badal find Coito.

Arias made arrangements to be dropped off, along with appellant, near the parking lot where she was going to meet Badal. Arias believed her phone was having technical difficulties and at one point she used appellant's phone to call Badal's cell phone as they approached the parking lot on foot. Arias saw Badal on his cell phone at this time.

Shortly thereafter, around 7:55 p.m., on May 10, appellant and Arias got into Badal's white SUV in the parking lot and the three began driving toward less populated areas. Arias was in the front passenger seat. Appellant was in the rear passenger seat, in the middle, but sitting closer to Arias's side.

Several minutes later, and while still driving, Badal handed Arias a $20 bill, which she interpreted as initiating a drug buy. She testified she took out a rock of crystal meth, wrapped it in plastic, and placed it in the console of the SUV. She placed the $20 bill in her bra. Perhaps due to a misunderstanding, Badal abruptly pulled over to the side of the road in a residential neighborhood they were then passing through. He pulled Arias closer to him in an attempt to kiss her. She rejected his advances and got out of the SUV.

Appellant then inflicted a number of knife wounds to Badal, including a fatal stab wound to Badal's chest. The pathologist testified that Badal also suffered a superficial slashing wound to the fleshy part of his neck that began or ended in a deeper cut inflicted on Badal's mandible, indicating that either the assailant or the victim moved as the knife was held to Badal's neck. The pathologist also testified that the fatal chest wound was at an angle that led him to believe the most plausible way to inflict both the neck wound and the stab wound within the short period of time required*fn1 was if the assailant had been holding the knife to the victim's neck from behind and then stabbed the victim fatally while the victim's back was still to him. The pathologist also testified that the depth of the wound could have been caused by the victim turning toward the assailant, thus driving the knife in deeper.

After stabbing Badal, appellant climbed into the driver's seat. Arias got back into the front passenger seat. Appellant drove off in a panic, and eventually struck a telephone pole, coming to a stop. A neighborhood resident saw a woman exit the passenger side of an SUV, let down the back gate, and saw a body roll out, hitting the ground. He described the driver as "Mexican, shaved head, skinny."*fn2 The woman returned to the passenger seat, and the vehicle hurried away. Badal was still alive at this point, but quickly succumbed to his injuries. No residents were observed taking anything from Badal's body. Badal's phone and wallet were never recovered.

Arias later demanded appellant pull over so that she could take over driving. Appellant complied, and then wiped down the knife with his shirt and threw the knife out the window, toward a canal on the side of the road.

Badal's wife testified that Badal always carried a cell phone and a wallet, and "somewhat" routinely carried cash. She also testified that Badal was the kind of person who would defend himself if attacked or confronted.

Arias continued driving the SUV and picked her boyfriend up, then dropped appellant off in front of a trailer park, after Arias's boyfriend and appellant got into an argument. Appellant later tried calling Arias, but the call went to voicemail. Appellant received a call back from Badal's cell phone, shortly thereafter, which did not go to voicemail.

Arias was pulled over by police that evening, while still driving Badal's SUV. A $20 bill was found in her pocket, along with other items. Detective Jon McQueary testified that Arias gave a fabricated story initially when questioned. Arias's parole officer contacted Arias after she was arrested for the homicide. Arias became emotional when she found out she was going to be charged with murder. She testified she told the parole officer they intended only to "roll with the guy," meaning merely to go with Badal. Arias's parole officer testified that Arias told him, "I had nothing to do with the stabbing. I was outside the 4Runner," and that they had only intended to "roll the guy."

Appellant was picked up by police the following day. Detectives interviewed appellant. Parts of the interview were recorded, and played back for the jury. Appellant initially told police he was not involved in any way, that he had never ridden in a white SUV and that he had never seen Arias in a white SUV. After further questioning, appellant told a detective he was supposed to meet up with Arias and her boyfriend after they obtained a car, and they were going to just drive around in it for fun. Appellant stated he didn't know what Arias and her boyfriend's exact plan was, but that "subconsciously" he knew they intended to rob someone.

Appellant eventually admitted to another detective that he was in the SUV, that he had stabbed Badal, that he had gotten involved because Arias and Badal had begun arguing, and that he had driven the SUV away from the scene of the crime in a panic.

After the police interview, appellant led the detectives to where he had thrown the knife away, which the police recovered. The ride was audio-recorded, and was also played back for the jury. Detectives asked appellant again during the ride whether he intended to rob Badal, and appellant denied having any plans to rob Badal.

In the first amended complaint, the People charged appellant in count I with murder with two special circumstances alleged, that the murder was committed (1) during the commission of a carjacking within the meaning of Penal Code*fn3 section 190.2(a)(17)(L) and (2) during the commission of a robbery within the meaning of section 190.2(a)(17)(A). The People also charged appellant in count II with carjacking (section 215) and in count III with robbery (section 211), and special allegations that appellant personally used a knife in the commission of the crimes.

The prosecution's theory of the case revolved around the idea that Arias and appellant had planned from the beginning to take Badal's car, and that the events of the evening had not gone according to plan.

Appellant's case revolved around a theory of imperfect self-defense justifying only a manslaughter conviction. That is, appellant was just trying to defend Arias and himself from Badal, who was bigger than both of them,*fn4 without any prior intent to rob Badal.

During jury deliberations, the jury asked the court a series of questions relating to the timing of intent required for the carjacking charge, as well as a question on the robbery elements.*fn5 The jury also requested to review the DVD and CD.

After approximately two total days of deliberations, the jury returned its verdicts. They found appellant guilty of first degree felony murder, with a finding that the robbery special circumstances allegation was true, but that the carjacking special circumstance allegation was not true. The jury also found appellant guilty of robbery. The jury found appellant not guilty of carjacking, but guilty of the lesser included offense of misdemeanor theft by larceny. Finally, the jury found true the special allegations as to personal use of the knife true.

The trial court sentenced appellant to the statutorily prescribed sentence of life without possibility of parole, plus one year for the knife allegation.

DISCUSSION

I.

SUBSTANTIAL EVIDENCE SUPPORTS APPELLANT'S ROBBERY-RELATED CONVICTIONS AND FINDINGS

Appellant contends insufficient evidence supports the finding that a taking of Badal's personal property occurred,*fn6 and also contends that appellant never intended to rob Badal, either prior to or during the forceful act of using the knife. He thus contends his conviction for robbery and the true finding of the felony-murder robbery special circumstance cannot stand.

In considering appellant's claim of insufficiency of the evidence supporting a conviction, we review the whole record in the light most favorable to the judgment for substantial evidence - that is, evidence which is reasonable, credible, and of solid value - such that any rational trier of fact could find the appellant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) "[We] presume[] in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.]" (People v. Kraft (2000) 23 Cal.4th 978, 1053.) If the circumstances reasonably justify the jury's findings, a contrary finding reasonably reconciled with the circumstances does not warrant reversal of the judgment. (People v. Bean (1988) 46 Cal.3d 919, 933; In re George T. (2004) 33 Cal.4th 620, 631.) "[F]or it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.]" (People v. Maury (2003) 30 Cal.4th 342, 403.)

"Robbery is 'the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.' [Citation.] ... The intent to steal must be formed either before or during the commission of the act of force. [Citations.]" (People v. Tafoya (2007) 42 Cal.4th 147, 170 (Tafoya).)

"Under the felony-murder rule, a murder 'committed in the perpetration of, or attempt to perpetrate' one of several enumerated felonies, including robbery ... is first degree murder. [Citation.] The robbery-murder ... special circumstances apply to a murder 'committed while the defendant was engaged in ... the commission of, [or] attempted commission of' robbery .... [Citation.] '[T]o prove a felony-murder special-circumstance allegation, the prosecution must show that the defendant had an independent purpose for the commission of the felony, that is, the commission of the felony was not merely incidental to an intended murder.' [Citation.]" (Tafoya, supra, 42 Cal.4th at p. 171.) "[A] fundamental purpose of the felony-murder rule ... is '"to deter felons from killing negligently or accidentally by holding them strictly responsible for killings they commit."' [Citation.]" (People v. Cavitt (2004) 33 Cal.4th 187, 198.) "[W]e have never construed [the felony-murder rule] to require a killing to advance or facilitate the felony, so long as some logical nexus existed between the [homicidal act and the underlying felony]." (Ibid.)

It is a "settled rule that when the force used against the victim results in his death, the defendant's intent to rob will not support a conviction of felony murder [citation] if it arose after the infliction of the fatal wound. [Citations.] ... '[T]he evidence must establish that the defendant harbored the felonious intent either prior to or during the commission of the acts which resulted in the victim's death; evidence which establishes that the defendant formed the intent only after engaging in the fatal acts cannot support a verdict of first degree murder based on section 189.'" (People v. Green (1980) 27 Cal.3d 1, 54, fn. 44, abrogated on other grounds by People v. Martinez (1999) 20 Cal.4th 225; cf. Rodriguez v. Superior Court (1984) 159 Cal.App.3d 821, 827 ["the prosecutor could have argued for an inference that one of petitioner's intentions when he forced the victim from the car was to separate her from her [property].... However, with no evidence that the defendant became aware of the [property] before forcibly separating the victim from it, the inference is unavailable."].)

As to the taking of personal property, Detective McQueary testified that no cell phone or wallet was found on Badal's body, and neither was ever recovered. The citizen who saw Badal's body thrown from the SUV testified he saw no one take any belongings from Badal. Badal's wife testified he always carried his cell phone and wallet with him, and he routinely carried $20 or $70 in cash. She also testified he "always" carried a $100 bill hidden in his wallet for emergencies. Badal had given a $20 bill to Arias while in the SUV, verifying he was carrying cash. Arias testified that she saw Badal using his cell phone in the parking lot when she approached. Someone made a call from Badal's cell phone to appellant's phone after Badal had died. The jury could have reasonably inferred that appellant took at least constructive possession of Badal's wallet, cash, and cell phone before or after stabbing Badal, but left some or all of the items in the SUV when forced from the vehicle by Arias's boyfriend. The jury could have also inferred that Arias was returning appellant's phone call, after the stabbing, using Badal's cell phone.

As to the specific intent to rob Badal before the stabbing, appellant told a detective, albeit in the context of relaying a fabricated story about his lack of involvement, that he "subconsciously" knew there was a plan to rob someone. Arias testified she thought she could get money from Badal. Badal handed over cash to Arias in plain view of appellant. Appellant knew Badal had a cell phone on him. Arias told her parole officer that they had only intended to "roll the guy," which the jury could have inferred meant they intended to rob Badal. Appellant brought a knife with him, knew he had it in his front right pocket, and was prepared to use it. The pathologist testified that in his opinion the most plausible manner of inflicting the wounds was where the assailant held the knife to the victim's neck from behind, then stabbed the victim in the chest while the victim's back was still to him, or while the victim was turning toward the assailant.

The jury could have reasonably inferred that after Arias left the car, appellant held the knife to Badal's neck, demanded money or his wallet from Badal, that Badal resisted appellant, and that appellant had stabbed Badal as a result. In this way, the killing occurred during the course of a robbery gone wrong, and the robbery was not merely incidental to the murder. (See People v. Turner (1990) 50 Cal.3d 668, 689, fn. 7 ["defendant need not have formed a robbery plan long in advance, nor planned the perfect crime, to be guilty as charged"].) Sufficient evidence supports both the robbery conviction and the robbery special circumstances finding for the felony murder conviction. (See id. at pp. 688-689.)

II.

THE JURY INSTRUCTIONS WERE PROPERLY GIVEN AS SUPPORTED

BY THE EVIDENCE

Appellant contends the trial court improperly instructed the jury on: (1) consciousness of guilt evidenced by appellant's prior false statements, suppression of evidence, and flight (CALCRIM Nos. 362, 371 & 372); (2) appellant's failure to explain or deny adverse evidence at trial (CALCRIM No. 361); and (3) the consideration of a witness's prior statements (CALCRIM No. 318). Appellant is not contending the instructions were legally incorrect. Rather, he is arguing they should not have been given in the first place, for various reasons. His overarching assertion is that these instructions gave the prosecution a prejudicially unfair advantage by directing the jury to make improper inferences and focusing the jury's attention on evidence that supported and benefited only the prosecution.

Respondent contends each instruction was properly given and supported by the evidence presented at trial. We conclude that when considered as a whole and when considered with the jury's findings, there is no reasonable probability the instructions as given misled the jury.

A. Standard of Review

"The trial court has the duty to instruct on general principles of law relevant to the issues raised by the evidence [citations] and has the correlative duty 'to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues.' [Citation.] 'It is an elementary principle of law that before a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference [citation].' [Citation.]" (People v. Saddler (1979) 24 Cal.3d 671, 681 (Saddler).)

"The court must ... refuse an argumentative instruction, that is, an instruction 'of such a character as to invite the jury to draw inferences favorable to one of the parties from specified items of evidence.' [Citations.]" (People v. Mincey (1992) 2 Cal.4th 408, 437.)

It is well established that, "the '"correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction."' [Citation.]" (People v. Hudson (2009) 175 Cal.App.4th 1025, 1028 (Hudson).) Moreover, we presume the jury understood and followed the court's instructions. (See People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 292.)

B. Consciousness of Guilt Instructions (CALCRIM Nos. 362, 371, and 372)*fn7

Appellant claims the consciousness of guilt instructions (as well as the failure to explain or deny adverse evidence instruction, discussed below) were "misleading, unsupported by the evidence, and constituted improper pinpoint instructions," that they "unfairly highlighted evidence favorable to the prosecution and invited the jury to draw critical but irrational inferences against appellant related directly to the question of guilt," were "duplicative" in some instances to the circumstantial evidence instructions, were "impermissibly argumentative," unfairly singling out isolated facts favorable to the prosecution only, and also unfairly singling out appellant's testimony as subject to heightened scrutiny compared to other witnesses, and embodied "an irrational permissive inference."

Underlying these claims, however, is the dominant assertion that the consciousness of guilt instructions permitted, if not outright misled, the jury to consider appellant's actions evidencing his consciousness of guilt as to the killing, as also evidencing his consciousness of guilt as to the robbery. That is, the instructions directed the jury to infer appellant had a consciousness of guilt for all the collective crimes he was charged with, when the evidence only supported his consciousness of guilt of the killing. As outlined above, however, there was sufficient evidence presented for the jury to infer appellant's intention to rob Badal, and the consciousness of guilt instruction was equally applicable to the robbery count and special circumstance.

Our Supreme Court has repeatedly rejected these arguments relating to the consciousness of guilt instructions. In People v. Jurado (2006) 38 Cal.4th 72 (Jurado), a death penalty case where the defendant had strangled and beaten the victim to death, the defendant contended the trial court's consciousness of guilt instructions were "impermissibly argumentative, permitted the jury to draw irrational inferences, were potentially misleading, and were unsupported by the evidence." (Id. at p. 125.) The trial court there instructed the jury "that it could infer consciousness of guilt from efforts to suppress evidence (CALJIC No. 2.06), from flight after a crime (CALJIC No. 2.52), and from the telling of a falsehood (CALJIC No. 2.03)."*fn8 (Ibid.) Our Supreme Court concluded, "[w]e have repeatedly rejected contentions that these standard jury instructions on consciousness of guilt were impermissibly argumentative or permitted the jury to draw irrational inferences about a defendant's mental state during the commission of the charged offenses. [Citations.] We see no reason to reconsider these decisions. Because the instructions as given correctly stated the law and did not invite the jury to draw irrational inferences about defendant's mental state, the trial court did not abuse its discretion in declining the defense requests to modify them." (Ibid.; see also People v. Howard (2008) 42 Cal.4th 1000, 1020-1021 [reaffirming instructions on flight as proper where the jury could reasonably infer that the defendant's flight reflected consciousness of guilt, and that flight instruction is not argumentative, nor does it impermissibly direct the jury to make only one inference, and also rejecting the contention that consciousness of guilt instructions like CALCRIM No. 362 invite the jury to draw irrational and impermissible inferences with regard to a defendant's state of mind at the time the offense was committed]; People v. Kelly (1992) 1 Cal.4th 495, 531 ["Defendant's statements to the police originally denying the crimes provided evidentiary support for the instruction. We have repeatedly upheld the instruction when based upon evidence. [Citations.] ... [¶] CALJIC No. 2.03 ... does not merely pinpoint evidence the jury may consider. It tells the jury it may consider the evidence but it is not sufficient by itself to prove guilt. [Citation.]"]; People v. Stitely (2005) 35 Cal.4th 514, 555 ["the instruction [on consciousness of guilt - false statements] applied based on defendant's inconsistent and contradicted statements to police attempting to minimize involvement .... The instructional language sufficiently protects against conviction based on the defendant's false statements or consciousness of guilt alone. [Citation.] Nor is it argumentative or biased in the prosecution's favor. [Citation.] ... [I]nsofar as the jury believed defendant lied about the charged crimes, the instruction did not generate an irrational inference of consciousness of guilt. [Citation.]"]; People v. Beyah (2009) 170 Cal.App.4th 1241, 1250, fn. omitted ["[A]lthough it might be said that [CALCRIM No. 362] singles out a defendant's testimony as subject to heightened scrutiny compared to other witnesses, that is true only because the principle involved is uniquely applicable to the defendant. That is not, however, a legitimate ground for concluding that the instruction unconstitutionally burdened defendant's choice to testify or resulted in any improper inference of guilt based on the jury's evaluation of his testimony.])

Appellant invites us to reconsider these cases. We have neither the authority nor the inclination to do so, given our conclusion that the instructions were properly given. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

The jury had in front of them incontrovertible evidence that appellant made numerous false statements about his involvement with Badal when initially interviewed by the police, that he tried to suppress evidence by throwing the knife out the window, and that he fled the scene of the crime in a panic after he had stabbed the victim. Appellant testified to all these things himself. The instructions were properly given as being supported by the evidence in the record on the murder charge, as well as the robbery count and special circumstance and did not mislead the jury.

C. Failure to Explain or Deny Adverse Evidence Instruction (CALCRIM No. 361)*fn9

Appellant primarily asserts that the trial court improperly gave CALCRIM No. 361 because appellant did not fail to explain or deny adverse evidence when he testified at trial.

Respondent asserts appellant in several instances made statements that support giving the instruction. We agree in general with respondent.

As the Saddler court noted, "[o]ur duty ... is to ascertain if [appellant] failed to explain or deny any fact of evidence that was within the scope of relevant cross-examination." (Saddler, supra, 24 Cal.3d at p. 682, fn. omitted.) However, "a contradiction is not a failure to explain or deny." (Ibid.)

"The Saddler majority was careful to state that assessment of the evidence adduced during 'the scope of relevant cross-examination' determines the applicability of the instruction in a given case; its use is thus limited, to protect against automatic widespread use by prosecutors to bolster 'weak' cases.... [¶] If a defendant has not been asked an appropriate question calling for either an explanation or denial, the instruction cannot be given, as a matter of law." (People v. Roehler (1985) 167 Cal.App.3d 353, 392 (Roehler) [discussing CALJIC No. 2.62, which is substantively similar to CALCRIM No. 361].)

In our review of the record, we have found that appellant failed to explain or deny at least two points of the prosecution's evidence raised at trial: the pathologist's opinion that the neck wound was caused by the assailant holding the knife from behind the victim, and appellant's ability to remember the route taken in a new neighborhood, despite testifying his thinking was "cloudy" that night from lack of sleep and methamphetamine use.

Appellant testified he did not realize he had a knife in his hand until he was driving away from the scene. The prosecution asked appellant on cross-examination about his reenactment of the stabbing with one of the detectives. Appellant described a still shot of the reenactment as: "I was telling [the detective] the general area where I hit [Badal]." Later, the prosecution asked appellant, "at some point you didn't feel the knife going into [Badal's] chest?" and then followed appellant's "no" response with another question: "You didn't feel the knife up against the neck?" Appellant again answered, "no." The jury could have decided appellant's testimony that he didn't realize he had the knife in his hand when he was hitting Badal was false, and then could rely on CALCRIM No. 361 to determine that appellant's failure to explain the neck wound or deny the pathologist's opinion that the injury was inflicted from behind the victim, could support the credibility of the pathologist's opinion. (See Roehler, supra, 167 Cal.App.3d at p. 394 ["This jury apparently did not find defendant's claim of lack of knowledge credible, in view of his presence on the scene. Having determined that his claim not to know was false, it was within their province to utilize CALJIC No. 2.62 if they chose to do so.... [t]he giving of CALJIC No. 2.62 was proper."])

In addition, on direct, appellant stated, "[w]e were in this secluded area. I didn't know where we were at. And some guy is hitting me, you know, so I have to defend myself. Where was I going to run to? I didn't know where I was at." !(2 RT 551)! On cross-examination, the prosecution asked, "[w]hy didn't you just get out and go somewhere and get away from [Badal]?" Appellant responded, "[t]here was nowhere to go to. There was nothing out there." The jury could have decided appellant's testimony that he didn't know his location was false, based on his ability to lead the detectives back to the area and locate the knife the day after the incident. The jury could then rely on CALCRIM No. 361 to evaluate appellant's credibility. The instruction was properly given.

Even if the instruction was improperly given and not supported by the evidence, the trial court instructed the jury that some of the instructions may not apply, depending on the jury's findings about the facts of the case and that the jury was to follow only the instructions that apply to the facts as the jury found them. (CALCRIM No. 200.) "While such an instruction does not render an otherwise improper instruction proper, it may be considered in assessing the prejudicial effect of an improper instruction." (Saddler, supra, 24 Cal.3d at p. 684.) As noted above, we presume the jury follows directions. Given the strength of the evidence, discussed in Part I, ante, it is not reasonably probable the result would have been different had the trial court omitted CALCRIM No. 361. (People v. Watson (1956) 46 Cal.2d 818, 836.)

D. Prior Statements By Witness Instruction (CALCRIM No. 318)*fn10

Appellant asserts the trial court erred in giving CALCRIM No. 318 because the instruction "unfairly, unconstitutionally, and prejudicially bolstered the prosecution's case against appellant by undermining the credibility of the key defense witness." (Full capitalization omitted.) Appellant asserts the instruction unfairly directed the jury's attention to the benefit of the prosecution, by only instructing the jury it could consider prior statements of witnesses as evidence that those prior statements were true, but failing to inform the jury it could also consider the prior statements as evidence that those statements were false.

Respondent contends the instruction was properly supported by evidence presented at trial, and case law also supports giving the instruction in the circumstances here. We agree.

The Third District recently addressed CALCRIM No. 318, noting it "informs the jury that it may reject in-court testimony if it determines inconsistent out-of-court statements to be true. By stating that the jury 'may' use out-of-court statements, the instruction does not require the jury to credit the earlier statements even while allowing it to do so. [Citation.]" (Hudson, supra, 175 Cal.App.4th at p. 1028.) The Hudson court rejected the defendant's argument, substantially similar to appellant's argument here, that the instruction disallowed the jury from using the evidence of a prior out-of-court statement as evidence the information in that statement is false. (Ibid.)

Similarly, our Supreme Court has also recently rejected a substantively identical argument in a case involving a first degree felony murder involving a robbery-murder special circumstance allegation and the personal use of a knife. (People v. Friend (2009) 47 Cal.4th 1 (Friend).) The court noted the defendant's argument: "Defendant contends that the court erred in instructing pursuant to CALJIC No. 2.13 on prior consistent or inconsistent statements as evidence.[*fn11 ] He complains that only telling the jurors that they could consider prior inconsistent statements for their 'truth,' but not telling them they could also consider them for their 'falsity,' unfairly skewed the jury's credibility determinations in the prosecutor's favor." (Id. at p. 41.) The court then easily dismissed this argument, noting, "we have previously rejected such claims by noting that 'the instruction in no way directs the jury to accept prior statements as the truth; it merely covers the hearsay exceptions provided in Evidence Code sections 1235 and 1236, in a neutral fashion.' [Citations.]" (Id. at pp. 41-42.) We see no reason to diverge from our Supreme Court's holding.

Detective McQueary testified Arias told him she saw the person in the back seat punch Badal in the chest four or five times while she was outside the vehicle. This was inconsistent with Arias's testimony at trial that she could not remember seeing appellant punching Badal and that she had made up what she had told the detective. Moreover, Arias testified she told her parole officer that the intent for the evening was just to "roll with [Badal]," which could be construed as inconsistent with her parole agent's testimony that Arias had stated their intent was to "roll the guy." The instruction was properly given.

III.

THE PROSECUTOR DID NOT ENGAGE IN MISCONDUCT

Appellant asserts the prosecutor engaged in prejudicial misconduct, primarily in his closing argument. Appellant contends the prosecutor (1) improperly argued that Arias was guilty of the crimes that appellant was charged with, thus unfairly taking advantage of the exclusion of any reference to Arias's trial on the same charges; and (2) that the prosecutor's repeated use of the phrase, "the guilty flee where no man pursueth,"*fn12 prejudiced the jury against appellant. Respondent contends appellant's arguments are waived for failure to object at trial, that there was no prosecutorial misconduct, and there was no prejudice resulting from the prosecutor's comments.

Prior to Arias's taking the stand, the parties had agreed to exclude any reference to Arias's trial or verdict of acquittal. The prosecutor in his initial closing argument commented as to Arias's involvement, and her actions after she was arrested, noting, "at the time when she had the ability to talk about self-defense and being scared or whatever, she doesn't even give her right name. Consciousness of guilt. Suppression of evidence." Defense counsel objected, and the trial court noted that Arias's guilt or innocence was not at issue. After defense counsel had put forth what appellant asserts was a compelling closing argument for an involuntary manslaughter conviction, the prosecutor responded in his rebuttal closing argument with several comments about Arias and appellant's combined intent to rob Badal of his car. Appellant asserts the prosecutor improperly led the jury to infer that Arias was guilty and had planned a carjacking, had enlisted appellant's help to carry out her plan, and therefore the prosecutor improperly led the jury to make the inference that appellant was guilty because Arias was guilty. Defense counsel failed to object to the Arias references at issue during the prosecutor's rebuttal closing argument. To the extent we find appellant's claims of misconduct waived for failure to object, appellant asserts an ineffective assistance of counsel claim for failing to object.

As to the prosecutor's use of the phrase, "the guilty flee where no man pursueth," as appellant points out, the prosecutor used that phrase in both his initial closing argument and his rebuttal closing argument, in the context of discussing appellant's actions as to consciousness of guilt. Defense counsel objected to this language after the jury had left for deliberations, indicating his belief it was a biblical reference. The prosecutor had not believed it to be a biblical reference. The trial court believed it to be Shakespearean in origin. In any case, the trial court gave no admonition to the jury regarding its use.

After a review of the whole record, we conclude those instances where defense counsel failed to object during the prosecutor's rebuttal closing argument are waived because admonition and a cure for the defect was available and would not have been futile. We conclude appellant's claims fail on their merits as well and defense counsel was not ineffective for failing to object since there was no misconduct.

"'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.'" (People v. Clair (1992) 2 Cal.4th 629, 661.) Thus, the proper inquiry is whether there is a "reasonable likelihood" that the jury misconstrued or misapplied the words of a prosecutor's remarks unconstitutionally. (Id. at p. 663.) "'A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such "'unfairness as to make the resulting conviction a denial of due process.'" [Citations.] Under state law, a prosecutor who uses such methods commits misconduct even when those actions do not result in a fundamentally unfair trial.' [Citation.]" (Friend, supra, 47 Cal.4th at p. 29.)

"'In order to preserve a claim of misconduct, a defendant must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the claim of misconduct preserved for review.' [Citation.] When a claim of misconduct is based on the prosecutor's comments before the jury, '"the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion."' [Citation.]" (Friend, supra, 47 Cal.4th at p. 29.) "We have stated that an exception to the requirement that trial counsel must object to each instance of misconduct to preserve it on appeal when the 'misconduct [is] pervasive, defense counsel [has] repeatedly but vainly objected to try to curb the misconduct, and the courtroom atmosphere was so poisonous that future objections would have been futile.' [Citation.]" (Ibid.)

In Friend, the court concluded that the defendant forfeited several instances of the asserted misconduct he raised on appeal due to counsel's failure to object adequately at trial. The court noted defense counsel had objected frequently to the prosecutor's conduct, and the trial court had sustained several objections. Thus, it had not been futile to object to the asserted misconduct. (Friend, supra, 47 Cal.4th at pp. 29-30.)

Similarly here, defense counsel had previously objected to references to Arias's consciousness of guilt during the prosecutor's initial closing argument, and the trial court had admonished the jury accordingly. It was not futile for the defense counsel to object, and we conclude, like the Friend court, that appellant waived his right to appeal the now-asserted prosecutorial references.

As to appellant's claim of ineffective assistance of counsel, based on our review of the record, we conclude defense counsel provided effective representation, notwithstanding his decision to refrain from objecting to the prosecutor's remarks in his rebuttal closing.

"We apply settled standards: 'In assessing claims of ineffective assistance of trial counsel, we consider whether counsel's representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.] A reviewing court will indulge in a presumption 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. Defendant thus bears the burden of establishing constitutionally inadequate assistance of counsel. [Citations.] If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. [Citation.]' [Citation.] These standards apply with particular force at closing argument because, as we have recognized, '[t]he decision of how to argue to the jury after the presentation of evidence is inherently tactical....' [Citation.]" (People v. Gamache (2010) 48 Cal.4th 347, 391.)

"In measuring counsel's performance, the United States Supreme Court has cautioned that judicial scrutiny 'must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation.] ...' [Citation.]" (In re Andrews (2002) 28 Cal.4th 1234, 1253.) "'[I]n considering claims of ineffective assistance of counsel, "[w]e address not what is prudent or appropriate, but only what is constitutionally compelled." [Citation.]' [Citation.] 'The purpose [of the effective assistance guarantee of the Sixth Amendment] is simply to ensure that criminal defendants receive a fair trial.' [Citation.]" (Id. at p. 1255.)

As noted above, defense counsel had previously objected to a reference to Arias's consciousness of guilt and had addressed Arias's involvement in his own closing argument. The evidence presented at trial was that Arias had arranged the meeting with Badal, had asked appellant to accompany her, had been in the car, and had possibly called appellant from Badal's cell phone after Badal was killed. The prosecutor made one reference to Arias's "action" and consciousness of guilt, which counsel promptly objected to and for which the court commented that Arias's guilt or innocence was not at issue. The prosecutor's further remarks, in our view, warranted no objection, as they made no mention of Arias's trial or verdict, but only as to her involvement, which she testified to, and the reasonable inferences that could be drawn from her testimony. Moreover, the juries were instructed with CALCRIM No. 222, which informed them in part that, "[n]othing that the attorneys say is evidence. In their opening statements and closing arguments, the attorneys discuss the case, but their remarks are not evidence."

Even for those claims that were not waived, we find no error. As our Supreme Court has explained, "[a]t closing argument a party is entitled both to discuss the evidence and to comment on reasonable inferences that may be drawn therefrom. [Citations.]" (People v. Morales (2001) 25 Cal.4th 34, 44.) As discussed above, the prosecutor was merely commenting on the evidence presented at trial and did not engage in misconduct. We find no reasonable likelihood the prosecutor's comments on Arias's involvement misled the jury in an objectionable fashion affecting the outcome of the jury's deliberations. (See id. at p. 47.)

DISPOSITION

The judgment is affirmed.

WE CONCUR: Levy, Acting P.J. Cornell, J.


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