Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 08NF0616, Carla Singer, Judge.
David McNeil Morse, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck, Meredith A. Strong and Lynne McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
INTRODUCTION
Defendant Luis Alberto Cresenciano was convicted of robbery, assault with a firearm, and street terrorism. On appeal, defendant challenges his conviction in two ways. We find no error, and therefore affirm.
First, defendant argues the trial court erred by instructing the jury with CALCRIM No. 376, regarding possession of recently stolen property as evidence that defendant had committed robbery. Defendant contends his due process rights were violated by the giving of this instruction because it lowered or shifted the prosecution’s burden of proof and misled the jury. We agree with the many cases holding that this instruction, as well as its predecessor, is constitutional, and reject defendant’s argument.
Defendant also argues the prosecutor committed misconduct during closing argument by commenting on defense counsel’s allegedly late transmission of witness statements to the prosecution. Having reviewed the complained of comments, we conclude the prosecutor did not commit misconduct and reject defendant’s argument.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Late in the evening of February 2, 2008, Raul Gonzalez (Raul), Josue Gonzalez, Victor Romero, and Andrew Onofre were driving home from a party. After parking, the four got out of a van to walk to their separate homes. Raul saw a group of four young men tagging a nearby wall, and got back in the van. As the taggers approached the van, one pulled a knife on Onofre. Defendant approached Raul, who was sitting in the front passenger seat. Defendant repeatedly asked Raul where he was from, while Raul repeated he was not a gangster. Defendant pulled out a revolver and pointed it at Raul. Defendant said, in Spanish, “take out the money.” Raul told defendant he had no money, but reached into his pocket and gave defendant his cell phone. Onofre also handed over his cell phone, and Romero gave the young men his wallet.
Raul heard defendant say “Lopers” during the robbery. The four young men, including defendant, got into two cars and drove off.
Using the phone numbers for calls made on Raul’s phone after the robbery, the police linked the numbers to various names, and showed several pictures to Raul. Raul immediately recognized defendant as the man who had pointed the gun at him during the robbery. Police officers then arrested defendant on February 13, 2008, and searched his apartment, where they found Raul’s cell phone.
Detective Andy Alvarez, the prosecution’s gang expert, testified “Lopers” is a criminal street gang. Detective Alvarez testified that the Santa Ana Police Department had had about 13 contacts with defendant over the years and served 11 California Street Terrorism Enforcement and Prevention Act (Pen. Code, § 186.20 et seq.) notices on defendant between December 2003 and December 2007, and that defendant had made multiple admissions to the police of his membership with the Lopers street gang.
Defendant, his live-in girlfriend, Nanci Felix, Felix’s aunt, and defendant’s sister, Nallely Cresenciano, all testified that on the night of the robbery, defendant had attended Mass at 7:00 p.m. to celebrate his youngest child’s 40 day birthday. They also testified: About 9:00 p.m., defendant, Felix, their children, and Nallely walked to a neighbor’s house to celebrate the first birthday of the neighbor’s daughter. After about an hour, defendant, Felix, and Nallely returned home, watched television, and eventually went to bed.
Jesus C. testified he saw defendant at the birthday party. Jesus admitted leaving the party with other Lopers gang members and committing the robbery. Jesus testified defendant was not present for the tagging or the robbery. Jesus testified he let Jason Diaz borrow the cell phone stolen from Raul.
Defendant, Felix, and Nallely all testified Diaz came to their apartment the next day and as follows: Nallely worked for a cell phone company, and Diaz asked her if the cell phone he had with him could be reregistered in his name. Diaz did not answer when Nallely asked where he got the phone. Diaz then asked if he could leave the cell phone in defendant’s apartment and pick it up later.
DNA testing determined both Diaz and defendant were potential contributors to the DNA found on the cell phone.
Defendant was charged in an information with three counts of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)); one count of assault with a firearm (id., § 245, subd. (a)(2)); and one count of street terrorism (id., § 186.22, subd. (a)). The information alleged as sentencing enhancements that in committing the robbery counts, defendant personally used a firearm (id., § 12022.53, subd. (b)), and that the robberies and assault were committed for the benefit of, at the direction of, or in association with a criminal street gang (id., § 186.22, subd. (b)(1)). A jury convicted defendant of all counts, and found all enhancements to be true.
The trial court sentenced defendant to a total of 23 years in prison. Defendant timely appealed.
DISCUSSION
I.
CALCRIM No. 376
Defendant argues the trial court committed reversible error by instructing the jury with CALCRIM No. 376, regarding possession of recently stolen property as evidence of a crime. Defendant contends the instruction violated his due process rights by misleading the jury and impermissibly lowering or shifting the prosecution’s burden of proof. “An appellate court reviews the wording of a jury instruction de novo and assesses whether the instruction accurately states the law. [Citation.] The court reviews instructions in context of the entire charge of jury instructions rather than in artificial isolation. [Citation.]” (People v. O’Dell (2007) 153 Cal.App.4th 1569, 1574.)
CALCRIM No. 376 was read to the jury in this case, as follows: “If you conclude that the defendant knew he possessed property and you conclude that the property had, in fact, been recently stolen, you may not convict the defendant of robbery based on those facts alone. [¶] However, if you also find that supporting evidence tends to prove his guilt, then you may conclude that the evidence is sufficient to prove he committed robbery. [¶]... [¶] The supporting evidence need only be slight and need not be enough by itself to prove guilt. You may consider how, where, and when the defendant possessed the property along with any other relevant circumstances tending to prove his guilt of robbery. Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.”
CALJIC No. 2.15 was the precursor of CALCRIM No. 376. Several appellate courts comparing the language of the two instructions have concluded they are linguistically and constitutionally the same. “The difference between the two instructions [CALJIC No. 2.15 and CALCRIM No. 376] is that the CALCRIM instruction is easier to understand; it does not alter the underlying law in any way.” (People v. O’Dell, supra, 153 Cal.App.4th at p. 1575; see also People v. Solórzano (2007) 153 Cal.App.4th 1026, 1035.) Defendant argues that these cases were wrongly decided, because of the “critical difference... between an ‘inference of guilt, ’ which may contribute to an ultimate finding of guilt, and a ‘conclusion’ that the evidence is ‘sufficient to prove’ guilt, which carries an implication of finality that is lacking in the language of CALJIC No. 2.15.” We find defendant’s argument lacking in merit. “Conclude” is defined as “to reach (as an end) by reasoning: infer esp. from premises, ” and “conclusion” is defined as “a reasoned judgment or an expression of one: inference.” (Webster’s 3d New Internat. Dict. (2002) p. 471, italics added.)
CALJIC No. 2.15 read: “If you find that a defendant was in [conscious] possession of recently [stolen] [extorted] property, the fact of that possession is not by itself sufficient to permit an inference that the defendant is guilty of the crime of _____. Before guilt may be inferred, there must be corroborating evidence tending to prove defendant’s guilt. However, this corroborating evidence need only be slight, and need not by itself be sufficient to warrant an inference of guilt. [¶] As corroboration, you may consider [the attributes of possession-time, place and manner, ] [that the defendant had an opportunity to commit the crime charged, ] [the defendant’s conduct, ] [[his] [her] false or contradictory statements, if any, ] [and] [or] [other statements [he] [she] may have made with reference to the property] [a false account of how [he] [she] acquired possession of the stolen property] [any other evidence which tends to connect the defendant with the crime charged].”
CALJIC No. 2.15 was repeatedly upheld against constitutional challenges similar to the one defendant raises here. (See People v. Holt (1997) 15 Cal.4th 619, 677; People v. Johnson (1993) 6 Cal.4th 1, 36 38; People v. Williams (2000) 79 Cal.App.4th 1157, 1173 1174.) And in People v. Parson (2008) 44 Cal.4th 332, 355 356, the California Supreme Court held CALJIC No. 2.15 does not reduce or shift to the defense the prosecution’s burden of proof: “The instruction [CALJIC No. 2.15] does not create a mandatory presumption that operates to shift the People’s burden of proof to the defense, for the instruction merely permits, but clearly does not require, the jury to draw the inference described therein. [Citation.] Perhaps more to the point, there is nothing in the instruction that directly or indirectly addresses the burden of proof, and nothing in it relieves the prosecution of its burden to establish guilt beyond a reasonable doubt. [Citation.] In any event, given the court’s other instructions regarding the proper consideration and weighing of evidence and the burden of proof, there simply ‘is “no possibility” CALJIC No. 2.15 reduced the prosecution’s burden of proof in this case.’ [Citation.]”
We find nothing in the language of CALCRIM No. 376 that would cause us to believe it is not similarly constitutional. Indeed, in People v. Solórzano, supra, 153 Cal.App.4th at pages 1035 1036, the appellate court specifically held the permissive inference allowed by CALCRIM No. 376 does not violate due process: “[T]he inference that possession of stolen property creates is permissive, not mandatory. The case law is settled that requiring only slight corroborating evidence in support of a permissive inference, like the one that possession of stolen property creates, neither changes the prosecution’s burden of proving every element of the offense nor otherwise violates the right to due process if, as here, the conclusion suggested is one that common sense and reason can justify ‘in light of the proven facts before the jury.’ [Citation.] [¶] The permissive inference that CALCRIM No. 376 authorizes if the jury finds slight supporting evidence is linguistically synonymous with, and constitutionally indistinguishable from, the permissive inference that CALJIC No. 2.15 authorizes if the jury finds slight corroborating evidence. CALJIC No. 2.15 has withstood repeated constitutional attack. [Citations.] Like CALJIC No. 2.15, CALCRIM No. 376 neither undermines the presumption of innocence nor violates due process.” The trial court did not err in instructing the jury with CALCRIM No. 376.
Defendant argues that because the prosecutor referred repeatedly to CALCRIM No. 376 in closing argument, the jury was persuaded the prosecution did not need to prove its case beyond a reasonable doubt. Specifically, defendant contends the prosecutor told the jury it could completely discount the eyewitness testimony and convict defendant based solely on the slight evidence that defendant’s DNA was found on the cell phone. After oral argument, we again reviewed the appellate record, and conclude defendant’s contentions take the prosecutor’s argument out of context. The prosecutor argued to the jury it could convict defendant if it found he was in possession of stolen property and there was only slight evidence supporting the robbery charge; the prosecutor further argued that in this case, there was strong supporting evidence-through the eyewitness identification by Raul-that defendant had participated in the robbery.
The portion of the prosecutor’s rebuttal argument to which defendant’s counsel referred us in oral argument on appeal reads as follows: “Here, because he is possessing stolen property, you need only slight evidence to show that this robbery occurred. And as we talked about in my opening remarks to you, you’ve got an eyewitness I.D. That’s more than slight. Other slight evidence might be his DNA is on the phone. That is slight. Yeah. That is enough. Really. That is enough. [¶] But he wants you to believe Jason did it, but Jason’s DNA is on there too. Even if you take out the eyewitness I.D. you’ve got the DNA. That is enough right there. That’s slight supporting evidence of the robbery. Because we know a cell phone was taken in the robbery. We know his DNA is on it. You are finished. [¶] But you’ve got a lot more than that. You’ve got strong supporting evidence here. You shouldn’t have a doubt in your mind what happened here because you have strong supporting evidence. You’ve not only got the DNA. You’ve got the eyewitness I.D. [¶]... [¶] Here the phone number shows up all of these times, leads them right to the apartment. They go to the apartment and, oops, there is the phone. [¶] Also, the gang that committed this crime was Lopers. There is no contention about that. Defendant’s a Loper. There is all kinds of corroborating circumstantial evidence outside of the I.D. itself. And remember, you only need a tiny bit of corroborating evidence, slight evidence. [¶] And the gun, as I said before, it really isn’t that important. The gun here. The fact that the gun was used in the crime is material, that a gun was used. But the fact that a gun was found here at his home is simply circumstantial evidence. It might be the gun. It might not be the gun. It really-it is something for you to consider. [¶] And it is important as you consider his gang affiliation because he claims to be this newfound family man at home all of the time with his wife and kids. Yet, he is still hiding guns in his house. There was no explanation why he is still hiding guns in his house. [¶] That’s what gang members do, ladies and gentlemen. They keep track of guns. That’s how they terrorize the citizenry.” (Italics added.)
As noted above, the instruction did not deprive defendant of his constitutional rights, and was properly given in this case. The prosecutor acted properly by referring to the instruction during closing argument.
Additionally, the jury was instructed that it must follow the law as explained by the trial court, and that the instructions provided by the court trumped the attorneys’ comments on the law. Therefore, even if the prosecutor somehow misstated the law or the applicable burden of proof, we presume the jury followed the trial court’s instructions. (People v. Boyette (2002) 29 Cal.4th 381, 436; People v. Vu (2006) 143 Cal.App.4th 1009, 1031.)
Defendant argues CALCRIM No. 376 was confusing and impermissibly intruded on the jury’s deliberative process. (The Attorney General fails to address this argument.) Defendant cites two federal appellate cases, U.S. v. Rubio Villareal (9th Cir. 1992) 967 F.2d 294 and U.S. v. Warren (9th Cir. 1994) 25 F.3d 890. We reject defendant’s request that we apply federal precedent in this case. State appellate courts are not bound by the decisions of lower federal courts on federal questions, even if they are in conflict with state decisions. (People v. Avena (1996) 13 Cal.4th 394, 431.) The California Supreme Court has held it is proper to instruct the jury it may draw a permissive inference from a defendant’s possession of recently stolen property that he or she is guilty of robbery (People v. Parson, supra, 44 Cal.4th at p. 356; People v. Holt, supra, 15 Cal.4th at p. 677; People v. Johnson, supra, 6 Cal.4th at pp. 37 38), and the cited federal courts’ conclusions to the contrary cannot change the outcome here.
In U.S. v. Rubio Villareal, the Ninth Circuit Court of Appeals held an instruction allowing the jury to make an evidentiary inference was improper because it told the jury the judge had determined there was sufficient evidence to convict the defendant, and because it focused the jury’s attention on two isolated facts, permitting the jury to make its decision without considering all the evidence presented at trial. The instruction given to the jury read as follows: “You are instructed that if you find that the defendant was the driver of a vehicle containing contraband in this case; and if you find that the cocaine was found inside that vehicle and concealed in its body, you may infer from these two facts, that the defendant knew that the cocaine was in the automobile; however, you are never required to make this inference. It is the exclusive province of the jury to determine whether the facts and circumstances shown by the evidence in this case warrants any inference which the law permits the jury to draw.” (U.S. v. Rubio Villareal, supra, 967 F.2d at p. 295.) It was undisputed that the two facts at issue in the instruction were true-the defendant was the driver, and cocaine was found in the vehicle-and the only issue to be decided in the case was whether the defendant knew the cocaine was there. (Id. at p. 299.) Therefore, although the instruction created only a permissive inference, it “was the equivalent of telling the jury that the judge had denied a defense motion for a directed verdict and explaining why.” (Ibid.)
II.
PROSECUTORIAL MISCONDUCT REGARDING REFERENCE TO LATE DISCOVERY
Defendant also argues the prosecutor committed misconduct during closing argument by improperly attacking defendant’s trial counsel’s integrity, by improperly vouching for the strength of the case, and by improperly implying that defendant was responsible for any malfeasance by defendant’s trial counsel.
A. Standard of Review
“‘The applicable federal and state standards regarding prosecutorial misconduct are well established. “‘A prosecutor’s... intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so “egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.”’” [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “‘“the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.”’”’ [Citation.]” (People v. Navarette (2003) 30 Cal.4th 458, 506.) “‘“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 [requested] an assignment of misconduct and [also] requested that the jury be admonished to disregard the impropriety. [Citation.] Additionally, 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.”’” (People v. Ayala (2000) 23 Cal.4th 225, 284.) “[I]n the absence of prejudice to the fairness of a trial, prosecutor misconduct will not trigger reversal.” (People v. Bolton (1979) 23 Cal.3d 208, 214.)
B. Background Information
On January 28, 2009, the day defendant and the prosecution answered ready for trial, defendant’s trial counsel provided statements of defense witnesses he planned to call at trial. The statements indicated the witness interviews were conducted between July and October 2008. In her opening statement, the prosecutor made the following statement regarding defendant’s alibi witnesses: “You will learn that the People and the police agency that could have done anything about checking out these alibis learned about these alibis the day we answered ready for trial. Hard to check out alibis when you find them out the day of trial.” Although defendant’s counsel did not object at the time, the next day he advised the court he would request a jury instruction on the issue, and requested copies of the reports by the prosecution’s investigator regarding his interviews with the alibi witnesses.
After the alibi witnesses had testified, the People offered investigator Joe Kim as a rebuttal witness to testify as to whether and when he received reports from defendant’s attorney regarding trial witnesses. The trial court sustained defendant’s relevance objection.
Based on a request by defendant’s counsel that the court instruct the jury that both the prosecution and the defense had disclosed evidence to each other “within the time limits set by law, ” the trial court reconsidered its previous ruling, and ruled that investigator Kim’s testimony would be permitted. Kim was recalled and testified, over defendant’s counsel’s objection. The court decided to modify the standard jury instruction on the issue-CALCRIM No. 306-to instruct the jury that defense counsel failed to disclose the witness statements within the legal time period.
However, after hearing from another member of the defense counsel’s office that the disclosure was, in fact, timely because the witness statements were provided as soon as counsel made the decision to call the witnesses, the court decided to take the issue of untimely discovery “away from the jury so they are not sidetracked on what the real issue is in this case. And the real issue is: Did this defendant commit these crimes?” The court then struck Kim’s rebuttal testimony, directed the jurors to disregard it, directed counsel not to argue late discovery, and deleted CALCRIM No. 306 from the jury instructions. In response to the prosecutor’s query about what she could argue regarding alleged fabrication of evidence by the defense witnesses, the court stated: “Well, you have the evidence you have, which is, during your cross examination of the witnesses you said, well, you didn’t go to the police and tell them about this any sooner. [¶]... [¶] But I want to get the focus away from the late discovery aspect. And by striking the testimony, deleting the instruction, and directing you not to argue what I’m striking, which is investigator Kim’s testimony, I am not precluding any argument based on the evidence you did g[et] from these witnesses.” When the prosecutor clarified by saying, “I think I understand. I’m just not to bring up late discovery, ” the court answered, “[a]bsolutely.”
During closing argument, the prosecutor argued:
“... The other thing to consider is why didn’t family and friends contact the police to let them know of their stories? [¶]... [¶]
“But why didn’t these people go to somebody who could help them with their stories? Why do they-why do they not enlist our help? Why do they come in here and want you to sort it all out when law enforcement and investigators and officers could have been working on it if it was true? It is not true is why. They knew we would have found out that it wasn’t true. [¶]... [¶]
“... If they were true and they wanted the truth out they would have come to us and asked us for our help and said, you’ve got the wrong guy. We need [you] to look into X, Y and Z, people. We’ll help you. You’ve got the wrong person. That didn’t happen, ladies and gentlemen.
“That shows that they’re statements meant to be given the credibility that they deserve, which is very, very little.”
During his closing argument, defendant’s counsel argued the gang expert’s opinion that defendant was an active gang member was not credible because the expert never spoke to defendant’s family members or employer. Defendant’s counsel also argued the expert never spoke to the people who actually knew defendant despite having reports from several of them saying defendant was no longer a gang member.
During rebuttal argument, the prosecutor responded to defendant’s counsel’s argument, as follows:
“Detective Alvarez-oh, defense want[s] you to have Detective Alvarez check out these reports that were sent to him. Remember the reports were sent to him February 13th? I think you guys were already here February 13th. How is it that the police are supposed to check out reports sent to them on February 13th of this year? Doesn’t that smell fishy to you all?
At oral argument, the Attorney General conceded that the reports were actually transmitted to Detective Alvarez on February 9, rather than February 13. The difference in the dates is immaterial for purposes of this argument.
“Why aren’t we allowed through Detective Alvarez before February 13th? That’s what he told you from the stand February 13th. He is an officer. Why isn’t he allowed the time to investigate this stuff? Why are you here? Why does he find out in trial about this? You know why? Because there is nothing we can do at that point. There is nothing he can do at that point.
“How do you poke holes in a story from family members and the defendant when the officers are just learning about it... contemporaneously? It is the surprise attack defense. Let’s just surprise them with all of this stuff and they are definitely not going to have time to look into it.
“If it were the truth, ladies and gentlemen, we would be the first looking into it. That’s their job. That’s our job. Our job is to get at the truth. It is not to sandbag and surprise.”
Defendant’s objection to the last portion of the rebuttal argument was overruled.
Later during the rebuttal argument, the following colloquy occurred:
“[The prosecutor:] And remember, if they really wanted-I mean, that is the key part of this. This is the whole key of this. If they really wanted us to check these things out why didn’t they give us the opportunity to check it out?
“[Defense counsel]: I’m going to object to that, Your Honor.
“The Court: Overruled. I had said overruled, but I just want to [re]iterate as long as you gave me a couple of minutes.
“Remember, ladies and gentlemen, I struck the entire testimony of investigator Kim. And his testimony the second day that he was called had only to do with late discovery. You are not to consider that testimony for any purpose.
“As to other evidence from the witnesses that suggested that there were not earlier reports, that testimony is still before you. Go ahead.
“[The prosecutor]: Thank you.
“Well, you know from the-notwithstanding these-the testimony that’s been stricken, each one of these witnesses that came in told you when they were interviewed by them and then you learned from Detective Alvarez when he got the information. And he is the guy who can do something about it.
“I’m a prosecutor. What am I going to do about it? He is a law enforcement officer. He could potentially do something about that. You learned he got it when you were already seated in the box. So you know that these statements were not made available to law enforcement, the only people who can help get them out of this if it is true.
“And that just-that’s just the biggest elephant in this room right now. If it were true they would have told the police. The police are there to try to help get the right people, not the wrong people.”
C. Analysis
We do not perceive an attack on defense counsel in the prosecutor’s argument. The prosecutor did challenge the integrity of defendant’s alibi witnesses, but not that of defense counsel. The prosecutor was permitted to argue the defense alibi witnesses were lacking in credibility because of their delay in coming forward with their stories to the police. (People v. Pinholster (1992) 1 Cal.4th 865, 948.) The prosecutor’s argument stayed within the bounds set by the trial court’s order. The prosecutor did not commit misconduct. There is no reasonable likelihood the jury construed or applied the complained-of comments in an objectionable way.
This case is not on par with People v. Herring (1993) 20 Cal.App.4th 1066, 1075, where the prosecutor made “uncalled for aspersions on defense counsel’s character and integrity [and] directed the jury’s attention to irrelevant matters [that] were not proper comments on the evidence or inferences to be drawn therefrom.”
DISPOSITION
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., ARONSON, J.
In U.S. v. Warren, the Ninth Circuit Court of Appeals generally criticized the use of permissive inference instructions, but found no error in the specific instruction at issue, which read: “Malice aforethought may be inferred from evidence that a deadly weapon was used. [¶] If it is shown that the defendant used a deadly weapon in the commission of a homicide, then you may find, from the use of such weapon, in the absence of explanatory or mitigating circumstances, the existence of the malice which is an essential element of the offense. You are not obliged so to find, however. You may not find the defendant guilty unless you are satisfied that the government has established every essential element of the offense, as explained in this charge, beyond a reasonable doubt. [¶] A knife, as a matter of law, is a deadly weapon.” (U.S. v. Warren, supra, 25 F.3d at pp. 896 897.)