Opinion
F072054
01-10-2018
THE PEOPLE, Plaintiff and Respondent, v. JOEL SERRATO, Defendant and Appellant.
Hassan Gorguinpour, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. VCF294661B)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Gary L. Paden, Judge. Hassan Gorguinpour, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
This matter involves three defendants, appellant Joel Serrato, Gustavo Jesus Mendoza, and Miguel Angel Villegas (collectively the Codefendants). A jury found appellant not guilty of attempted robbery (Pen. Code, §§ 664/211; count 1), but convicted him of conspiracy to commit robbery (§§ 182/211; count 2) and prohibited possession of a firearm (§ 29800, subd. (a)(1); count 5). The jury found true a criminal street gang enhancement (§ 186.22, subd. (b)(1)(B)) in both convictions. Appellant received an aggregate prison sentence of 10 years, eight months.
All future statutory references are to the Penal Code unless otherwise noted.
This sentence also included time imposed in a companion case, Tulare County Superior Court case number VCF207200, which is not part of this appeal.
In companion appeals F071822 and F072155, we resolve issues raised by Mendoza and Villegas, respectively, for their involvement in this attempted robbery. In the present matter, appellant claims that the prosecutor committed misconduct during his closing argument. He further argues that the trial court abused its discretion in failing to bifurcate the gang enhancement allegations. We affirm.
BACKGROUND
I. The Undercover Drug Purchase.
In January 2014, law enforcement planned an undercover operation to purchase OxyContin illegally from a seller, Ronald Ditlevson, Jr. Shawn Riley, an agent from the Drug Enforcement Administration (DEA), had purchased OxyContin illegally from Ditlevson on three previous occasions starting in October 2013. Riley had paid Ditlevson in cash during the three prior transactions. In setting up a fourth purchase, Riley hoped to learn the identity of Ditlevson's supplier. Prior to this fourth purchase, nothing indicated that Ditlevson had any connection with a criminal street gang.
Ditlevson was charged with crimes under federal law for his actions. As of the time of appellant's trial, he had entered a plea agreement and was serving time in federal prison.
A. The negotiations for the fourth drug purchase.
Riley began negotiating with Ditlevson for a fourth purchase of OxyContin. In a series of communications, Ditlevson said he was having trouble obtaining the drug. They eventually agreed on a sale date of January 30, 2014. Riley agreed to pay $2,600 for the pills.
At around 3:15 p.m. on the day of the planned purchase, Ditlevson texted Riley, indicating he did not yet have the pills and he asked for the money up front. When Riley refused, Ditlevson asked for half of the money, noting he needed to meet his source to obtain the pills. After Riley again refused, Ditlevson agreed to go ahead with the sale that day. At about 3:19 p.m., Riley suggested that Ditlevson's supplier should meet them at the sale. Ditlevson agreed that would happen.
B. Ditlevson contacts codefendant Villegas.
Shortly after confirming the sale with Riley, Ditlevson called the cellular telephone of appellant's codefendant, Villegas. The call occurred at 3:28 p.m. and it lasted one minute and 56 seconds. At 3:38 p.m., Villegas texted Ditlevson, "Can you pick me N [sic] my boy up and well [sic] do [everything]. We just need a ride." Four additional outgoing calls were placed from Ditlevson's phone to Villegas's phone at 3:41 p.m., again at 3:41 p.m., 3:56 p.m., and finally at 4:02 p.m.
C. Police officers spot codefendants Villegas and Mendoza at the location of the planned drug sale.
Later that same day, at approximately 4:45 p.m., Riley and local officers from the Visalia Police Department took up positions at the prearranged sale location, a hotel parking lot. It was close to sundown. Two of the previous illegal drug purchases with Ditlevson had occurred in this same parking lot. Riley used the same vehicle that he had used in his three previous drug purchases with Ditlevson. While Riley waited in his vehicle in the parking lot, the police officers set up as surveillance and security teams. Riley notified Ditlevson that he was at the location.
While they waited for Ditlevson to show up, a police officer observed two males walking together in the parking lot; these males were later identified as appellant's codefendants, Villegas and Mendoza. They passed near an unmarked police vehicle that was providing surveillance of the anticipated drug purchase. Villegas and Mendoza made eye contact with one of the undercover officers. They walked away and then they returned about a minute or two later. The officer did not see either of them carrying a gun. Based on their body language, the officer believed that Villegas and Mendoza had realized that undercover officers were in the area.
D. Ditlevson moves the location of the planned drug sale.
At approximately 5:03 p.m. that same day, Ditlevson texted Riley that "his source of supply" had told him that police "train in that area[.]" Ditlevson wanted to move the sale location to a nearby park. Riley tried to get Ditlevson to come to his location, indicating no police were present, but Ditlevson remained adamant that he wanted to change locations. Riley, after consulting with his teams, agreed to switch the location for the drug purchase. Riley never saw Ditlevson at the hotel parking lot and nobody approached Riley while he was there.
At trial, the jury learned that no police were training in this area that day.
Riley and the police teams relocated to the nearby park. The other police officers took positions to provide security and surveillance. Everyone was ready at about 5:30 p.m. Riley parked his vehicle near the park's exit.
E. Villegas and Mendoza approach Riley at the new location.
Less than a minute after Riley parked at the new location, Villegas and Mendoza began walking together in tandem across a grassy area towards Riley. They were initially spotted about 30 yards from Riley's position. As they came closer, they both made eye contact with Riley. Villegas had a beanie or a bandanna on his head. Mendoza had his face covered up to the bridge of his nose with some type of white cloth. Mendoza wore a long-sleeved sweatshirt, or something similar, and he walked with his right hand tucked underneath his opposite armpit, making it appear that he carried a weapon.
Riley had never seen Villegas and Mendoza before. Although Riley did not see a gun, he became nervous and feared for his safety. Villegas and Mendoza came within about 10 to 15 yards of Riley. Riley believed they were armed and they were approaching to rob him. Riley drove away.
At trial, Riley agreed that he would have waited at the park had Villegas and Mendoza not approached him and made him feel uneasy.
Neither Villegas nor Mendoza said anything to Riley, and neither pointed a weapon at him. As Riley drove away, neither Villegas nor Mendoza yelled anything towards him, they did not run towards his vehicle, and they did not try to stop him. Neither Villegas nor Mendoza chased after Riley, but they did stop and watch him leave the park.
After Riley drove away, an officer providing surveillance saw that Mendoza had a shiny metal object in his hand underneath his left arm near his "armpit area." Upon closer inspection, the officer saw "no more than an inch" of a gun's barrel there. The officer determined that Mendoza had a firearm. Villegas and Mendoza walked to Ditlevson's parked vehicle, entered it and drove away.
At trial, Riley confirmed that he never spotted Ditlevson's vehicle after the proposed sale was relocated to the park.
F. Law enforcement detain four suspects.
Undercover officers followed Ditlevson's vehicle as it drove away from the park. It left the City of Visalia and entered the City of Exeter. Police took four occupants into custody: Ditlevson had been driving; appellant was the front passenger; Villegas and Mendoza were rear passengers. No illegal narcotics were located. Police located and seized a loaded .45-caliber handgun inside the vehicle. The gun had been lying behind the back seat on the floor under a towel or T-shirt. Officers recovered two rounds of .45-caliber ammunition in the vehicle's center console between the driver's seat and the passenger's seat.
At trial, one of the police officers testified that the barrel of the recovered handgun had a "consistent shape" with the barrel of the handgun seen on Mendoza after Riley fled.
G. Appellant and Mendoza make statements to the police.
Police interviewed appellant, who stated he had been at Mendoza's house. He also said he had been with Ditlevson in Visalia on January 30, 2014. He claimed to have been meeting a female, but he did not know her name. He indicated that he had gone near the hotel. Appellant admitted that he was an active gang member and he had observed a handgun in Ditlevson's vehicle.
Police interviewed Mendoza, who said Ditlevson picked him up sometime in the evening of January 30, 2014. Mendoza, however, denied that he went to the hotel. During his police interview, Riley walked into the room and Mendoza's shoulders dropped, and his head bowed. Mendoza denied that he had a gun.
II. The Relevant Gang Evidence.
The parties stipulated that the Norteños are a criminal street gang within the meaning of section 186.22. Additionally, appellant and Mendoza both stipulated that they are active Norteño gang members, and they both stipulated that they are prohibited from owning or possessing a firearm.
The prosecution's gang expert provided background about the Norteño gang, its rivals, its structure, and how it pays taxes within its hierarchy. The expert reviewed photographs taken from Villegas's cellular telephone that showed Villegas in various poses and attire that the expert attributed to the Norteño gang. Villegas had a photograph of Mendoza, and he had different photographs of himself with Mendoza and appellant. The expert explained how law enforcement classifies someone as a gang member. The expert opined that Villegas was a Norteño gang member.
The gang expert confirmed that Ditlevson was not a "northern" gang member. The expert noted that Norteños do not usually commit crimes with people not associated with the gang. In such a situation, the gang members would leave a "watchdog" to ensure that the non-member did not leave while the crime was underway. The expert also believed a second gang member would accompany the primary robber to provide protection and to vouch for the crime. The gang members would all work together in different roles.
The gang expert opined that gang members who get money as a result of committing a crime owe a portion of the proceeds to the gang. The expert opined that the Norteño gang tries to control the sale of drugs in Visalia. The gang might allow a non-Norteño to sell drugs in Visalia if the gang was paid. The expert admitted, however, that there was no evidence that Ditlevson was paying anyone. He also admitted that there was no evidence that the Codefendants had orders from the gang to commit this crime.
DISCUSSION
I. The Prosecutor Did Not Commit Misconduct During Closing Arguments.
Appellant argues that the prosecutor committed prejudicial misconduct during closing arguments. He primarily questions the prosecutor's use a photograph of a baseball game (the photograph) to explain circumstantial evidence. He also raises concerns because the prosecutor had his investigator stand up and show a concealed handgun under his jacket. He seeks reversal of the judgment.
On September 8, 2016, this court granted appellant's motion to augment the record on appeal to include the photograph.
A. Background.
During rebuttal argument, the prosecutor noted that nobody saw either Villegas or Mendoza with a gun when they walked past officers in the hotel parking lot. The prosecutor asked his investigating detective to stand up, and he asked the jury if the detective had a gun. The prosecutor noted that "[j]ust 'cause you don't see it doesn't mean it's not there." The court noted for the record that "the detective stood up, pulled his jacket back, had a gun."
Later, the prosecutor responded to defense criticism that the circumstantial evidence did not establish attempted robbery. The prosecutor referenced the applicable jury instructions (CALCRIM Nos. 223, 224 & 225) and noted that neither direct nor circumstantial evidence "is necessarily more reliable than the other. Neither is entitled to any greater weight than the other. You must decide whether a fact in issue has been proved based on all the evidence, not part of the evidence, all of the evidence." The prosecutor then referenced the photograph.
The photograph is in color and it depicts a portion of a baseball stadium with players from both teams on the field and fans in the right field bleachers. Superimposed on the image is the heading "Circumstantial Evidence" with the following two statements: "• Look at all the facts, not piece by piece" and "• You must decide whether a fact in issue has been proved based on all the evidence."
After apparently displaying the photograph to the jury, the prosecutor stated the following:
"I like to look at it in this fashion: You can look at this photograph, and if you slice out the whole picture, you can come up with different reasonable—reasonable explanations for what you see there.
"You can look at that, and you take the players off the field, and you take out the score board, you could say that could be a concert 'cause I have seen concerts in baseball stadiums.
"You could say that might be the players aren't out there yet, but I've seen football games played in stadiums with baseball diamonds. So that's possible.
"Crowds. Obviously, if you're just focused on that, maybe some grass, that could be soccer. There's all kinds of explanations if you don't look at all the evidence, but the law is very clear you look at it all."
The prosecutor then argued why someone might be motivated to commit a crime in the open despite a risk of being seen. The prosecutor contended that Mendoza was using a gun when he and Villegas walked up to Riley. The prosecutor reviewed some of the relevant facts from the trial and argued that the Codefendants were guilty of the charged crimes, including the gang and firearm enhancements. At no time did the prosecutor again reference the photograph before concluding his arguments.
B. Standard of review.
To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the disputed comments in an improper or erroneous manner. (People v. Centeno (2014) 60 Cal.4th 659, 667 (Centeno).) We " ' "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements. [Citation.]' [Citations.]" (Ibid.)
C. Analysis.
Appellant relies on three opinions to establish prosecutorial misconduct: (1) People v. Katzenberger (2009) 178 Cal.App.4th 1260 (Katzenberger); (2) People v. Otero (2012) 210 Cal.App.4th 865 (Otero); and (3) Centeno, supra, 60 Cal.4th 659. We find these contentions and the cited authorities unpersuasive under the present facts.
1. Appellant failed to preserve this issue for appellate review.
As a general rule, a claim of prosecutorial misconduct is preserved for appeal only if the defense makes a timely objection and requests an admonition to cure any harm. (Centeno, supra, 60 Cal.4th at p. 674.) Here, defense counsel did not object to any of the comments (including his claim that the concealed gun demonstration with the detective was error) that appellant now claims constitutes prejudicial misconduct. Further, the record fails to disclose grounds for applying any exception to the general rule—such as futility, or when an admonition would not have cured the harm, or when the court immediately overrules an objection so that the defendant had no opportunity to make a request for admonition. (People v. Hill (1998) 17 Cal.4th 800, 820-821.) As such, appellant's claim of prosecutorial misconduct is barred in its entirety. Moreover, even if we were to presume that this issue was preserved for appeal, it fails on its merits.
Appellant contends that his counsel was ineffective for failing to object to the alleged prosecutorial misconduct, which resulted in forfeiture of this claim. As discussed below, however, there was no prejudicial misconduct. As such, any failure to object did not constitute ineffective assistance of counsel. (See People v. Lucas (1995) 12 Cal.4th 415, 436 [defendant bears burden to establish both deficient performance and resulting prejudice in a claim of ineffective assistance of counsel].)
2. The prosecutor's use of the photograph was not misconduct.
A prosecutor's misconduct violates the federal Constitution and requires reversal when it infects the trial with such unfairness as to deny due process. (People v. Tully (2012) 54 Cal.4th 952, 1009.) Under state law, a prosecutor's conduct that does not render a criminal trial fundamentally unfair is still misconduct if it involves the use of deceptive or reprehensible methods in attempting to persuade the trier of fact. (Id. at pp. 1009-1010.)
A prosecutor commits misconduct if he or she misstates the applicable law or the facts. (People v. Boyette (2002) 29 Cal.4th 381, 435.) Of course, it is particularly improper for a prosecutor to make remarks meant to absolve the government " 'from its prima facie obligation to overcome reasonable doubt on all elements. [Citation.]' [Citation.]" (People v. Hill, supra, 17 Cal.4th at pp. 829-830.)
We summarize appellant's three cited opinions.
a. Katzenberger , supra , 178 Cal.App.4th 1260.
In Katzenberger, supra, 178 Cal.App.4th 1260, the prosecutor used a visual display in a PowerPoint presentation during closing arguments, showing a jigsaw puzzle of the Statue of Liberty coming together. (Id. at p. 1264.) The slide show moved six different puzzle pieces onto the screen sequentially, and the image was immediately and easily recognizable. The slide show finished when the sixth puzzle piece was in place, leaving two rectangular pieces missing from the image. (Ibid.) The prosecutor told the jurors that they could conclude beyond a reasonable doubt what the picture depicted even before all of the pieces were in place. (Id. at p. 1265.) The Court of Appeal determined that this presentation, with the prosecutor's accompanying argument, invited "the jury to guess or jump to a conclusion," and it left a "distinct impression that the reasonable doubt standard may be met by a few pieces of evidence." (Id. at p. 1267.) Katzenberger found misconduct, but ultimately determined that the error was harmless. (Id. at p. 1269.)
b. Otero , supra , 210 Cal.App.4th 865.
In Otero, supra, 210 Cal.App.4th 865, the prosecutor used a PowerPoint during closing arguments, saying she wanted to give the jurors "an example of reasonable doubt." (Id. at p. 869.) The diagram showed the outlines of California and Nevada. Some of the cities within California were mislabeled or misidentified. The prosecutor contended that, even though there was inaccurate information, there was no doubt that California was depicted. (Id. at p. 870.) The Court of Appeal found misconduct. (Id. at p. 873.) The prosecutor's argument and presentation left an impression that the reasonable doubt standard may be met by a few pieces of evidence, which invited the jury to jump to a conclusion. (Id. at pp. 872-873.) Otero, however, ultimately found the error harmless. (Id. at p. 873.)
c. Centeno , supra , 60 Cal.4th 659.
In Centeno, supra, 60 Cal.4th 659, the prosecutor focused on reasonable doubt during rebuttal arguments and she asked the jury to consider a hypothetical criminal trial. She displayed a diagram showing the geographical outline of California, and she characterized the issue in the hypothetical trial as determining which state was depicted. She laid out hypothetical "testimony" that had inconsistencies, omissions, and inaccuracies. She asserted that even if the jurors had heard such evidence, they would have no reasonable doubt that the state was California. She then turned to the facts of the case before the jury. (Id. at p. 664.)
On appeal, our Supreme Court cited and reviewed Katzenberger and Otero with approval. (Centeno, supra, 60 Cal.4th at pp. 667-669.) Centeno held that "[t]he use of an iconic image like the shape of California or the Statue of Liberty, unrelated to the facts of the case, is a flawed way to demonstrate the process of proving guilt beyond a reasonable doubt. These types of images necessarily draw on the jurors' own knowledge rather than evidence presented at trial. They are immediately recognizable and irrefutable. Additionally, such demonstrations trivialize the deliberative process, essentially turning it into a game that encourages the jurors to guess or jump to a conclusion." (Id. at p. 669.) The high court stated that "[f]acts supporting proof of each required element must be found in the evidence or the People's burden of proof is unmet. It is thus misleading to analogize a jury's task to solving a picture puzzle depicting an actual and familiar object unrelated to the evidence." (Id. at p. 670.) Centeno found the prosecutor's hypothetical misleading because it failed to accurately reflect the evidence in the case before the jury. (Ibid.) The prosecutor improperly left the jury with an impression that, "so long as her interpretation of the evidence was reasonable, the People had met their burden." (Id. at p. 672.) The high court determined that it was "reasonably likely that the prosecutor's hypothetical and accompanying argument misled the jury about the applicable standard of proof and how the jury should approach its task." (Id. at p. 674.)
Centeno noted that not all visual aids are suspect. (Centeno, supra, 60 Cal.4th at p. 671.) "The use of charts, diagrams, lists, and comparisons based on the evidence may be effectively and fairly used in argument to help the jury analyze the case." (Ibid.) "What occurred here was not the legitimate marshaling of evidence with charts outlining the facts or relating them to the legal concepts explained in the jury instructions. Instead the prosecutor offered a theoretical analogue, unrelated to the evidence, purporting to relate the exacting process of evaluating the case to answering a simple trivia question. As noted, judges and advocates have been repeatedly admonished that tinkering with the explanation of reasonable doubt is a voyage to be embarked upon with great care." (Ibid.)
Here, key distinctions exist that render the present situation distinguishable from appellant's cited authorities. Unlike in Katzenberger, Otero, and Centeno, the prosecutor did not use the photograph to discuss the burden of proof or to explain the definition of reasonable doubt. Instead, the prosecutor used the photograph to argue that circumstantial evidence was acceptable to prove the charges. Just before displaying the photograph, the prosecutor referenced the jury instructions dealing with circumstantial evidence and noted that neither direct nor circumstantial evidence "is necessarily more reliable than the other. Neither is entitled to any greater weight than the other. You must decide whether a fact in issue has been proved based on all the evidence, not part of the evidence, all of the evidence." The prosecutor's comments mirror the instruction appearing in CALCRIM No. 223.
Appellant is correct that the photograph called on the jurors to rely on information not developed from the trial, and the prosecutor did not link this image to any trial evidence. However, Katzenberger, Otero, and Centeno focused on prosecutorial misconduct from the use of "diagrams or visual aids to elucidate the concept of proof beyond a reasonable doubt ...." (Centeno, supra, 60 Cal.4th at p. 662.) That concern is lacking here. Unlike in Centeno, the prosecutor did not suggest that, so long as his interpretation of the evidence was reasonable, the People had met their burden of proof. The prosecutor did not ask the jurors to abandon the deliberative process. To the contrary, in using the photograph, the prosecutor urged the jury to review all of the evidence and avoid making a snap decision. The prosecutor cautioned the jury that focusing on something out of context could lead to an improper conclusion. Unlike in Katzenberger, Otero and Centeno, the prosecutor did not trivialize the deliberative process or leave an impression that the reasonable doubt standard may be met by a few pieces of evidence. We disagree with appellant's suggestion that the prosecutor "falsely equated the jury's job with solving a picture game," or that he misguided the jury's understanding of how it should evaluate the case as a whole.
Moreover, the prosecutors in Katzenberger, Otero, and Centeno relied on false, misleading, inaccurate, and/or incomplete "evidence" in making their analogies with the respective iconic images. (Centeno, supra, 60 Cal.4th at p. 664 ["hypothetical 'testimony' ... that contained inconsistencies, omissions, and inaccuracies ...."]; Otero, supra, 210 Cal.App.4th at pp. 869-870 [map of California had mislabeled and inaccurately placed locations]; Katzenberger, supra, 178 Cal.App.4th at p. 1264 [puzzle of Statue of Liberty omitted two pieces].) In addition, the prosecutor in both Katzenberger and Otero used diagrams that contained an improper quantitative component. The Katzenberger prosecutor used an eight-piece puzzle and argued that the puzzle was solved after only six pieces, which inappropriately suggested "a specific quantitative measure of reasonable doubt, i.e., 75 percent." (Katzenberger, supra, 178 Cal.App.4th at p. 1268.) The Otero prosecutor also used eight components in her diagram of the State of California, which included the outline of California with seven other geographical representations. (Otero, supra, 210 Cal.App.4th at pp. 872-873.) In determining that the State of California was established, the prosecutor implied that the jury could rely on only one-eighth of the information, the readily recognizable outline of California. (Id. at p. 873.)
Here, in contrast, the prosecutor did not rely on inaccurate or incomplete information in asking the jury to examine all of the circumstantial evidence. Further, the prosecutor never suggested a specific quantitative measure was necessary for a determination of circumstantial evidence, much less for reasonable doubt. Rather, the prosecutor emphasized that the jury must examine all of the evidence, both direct and circumstantial.
Finally, we cannot say that the prosecutor's use of the photograph and his accompanying arguments misstated the law regarding the distinctions between direct evidence and circumstantial evidence. Direct evidence applies to the fact to be proved, immediately and directly, without help from any intervening fact or process. (Ajaxo Inc. v. E*Trade Group Inc. (2005) 135 Cal.App.4th 21, 50.) In contrast, circumstantial evidence is defined as "that which is applied to the principal fact, indirectly, or through the medium of other facts, from which the principal fact is inferred." (Id. at pp. 50-51.) It is clear that "direct evidence and circumstantial evidence are different." (People v. Livingston (2012) 53 Cal.4th 1145, 1166.) Our Supreme Court has held that jury instructions that differ between these types of evidence do not undermine the reasonable doubt standard or presumption of innocence. (Ibid.)
Here, in using the photograph, the prosecutor merely asserted that this was a case based on circumstantial evidence. The prosecutor demonstrated how different conclusions could be reached depending on how a person viewed the photograph, especially if someone focused on one detail to the exclusion of everything else. The prosecutor concluded by reminding the jury that "[t]here's all kinds of explanations if you don't look at all the evidence, but the law is very clear you look at it all." We disagree with appellant's contention that the photograph "muddled the issues" or misstated the process of how the jury was to determine the facts beyond a reasonable doubt.
In reviewing the prosecutor's statements, we do not infer that the jury drew the most damaging rather than the least damaging meaning. This record does not establish a reasonable likelihood that the jury understood or applied the prosecutor's comments in an improper or erroneous manner. The prosecutor's comments did not infect the trial with such unfairness as to deny due process. The prosecutor did not use deceptive or reprehensible methods in attempting to persuade the trier of fact. As such, prosecutorial misconduct is not present under either federal or state law. Accordingly, this claim fails.
3. The prosecutor did not err when the detective showed his gun.
We also disagree with appellant's contention that the prosecutor's use of the photograph "enhanced other problematic statements" made during rebuttal argument. Appellant points to the prosecutor's request for the detective to show his concealed handgun to the jury. Appellant claims this negated the burden of proof, arguing no evidence established that any codefendant wore a holster, and this demonstration improperly suggested that a firearm was present at the hotel parking lot. In addition to finding this issue forfeited on appeal, we reject this claim on its merits.
"A criminal prosecutor has much latitude when making a closing argument. Her argument may be strongly worded and vigorous so long as it fairly comments on the evidence admitted at trial or asks the jury to draw reasonable inferences and deductions from that evidence. [Citation.]" (People v. Seumanu (2015) 61 Cal.4th 1293, 1330.) An attorney is permitted to argue about matters not in evidence if it is drawn from common knowledge or illustrations drawn from common experience, history or literature. (People v. Wharton (1991) 53 Cal.3d 522, 567.) The California Supreme Court has sanctioned the use of demonstrations in closing argument even when they do not involve objects that were actually introduced into evidence. (See People v. Barnett (1998) 17 Cal.4th 1044, 1135-1136 [upholding prosecutor's demonstration involving a knife that was similar to the one that was used in the charged offense].)
Here, the prosecutor demonstrated how easily a person could conceal a handgun, which was an issue in dispute. The trial evidence permitted the prosecutor to make such an inference. This demonstration did not negate the burden of proof and it did not violate due process. This demonstration was not a deceptive or reprehensible attempt to persuade the jury. Accordingly, misconduct is not present.
4. Any presumed prosecutorial misconduct was harmless.
Our Supreme Court has noted that arguments from counsel are generally considered to carry less weight with a jury than instructions from the trial court. (Centeno, supra, 60 Cal.4th at p. 676.) We are to presume that a jury will treat a prosecutor's comments as words spoken by an advocate in an attempt to persuade while the court's instructions are viewed as binding statements of law. (Ibid; accord People v. Seaton (2001) 26 Cal.4th 598, 646.)
In Centeno, however, these presumptions were inapplicable because the prosecutor's hypothetical "did not directly contradict the trial court's instruction on proof beyond a reasonable doubt, but instead purported to illustrate that standard." (Centeno, supra, 60 Cal.4th at p. 676.) Because its case was close, and without any corrective action taken to mitigate the prosecutor's misconduct, Centeno held that there was a reasonable probability the prosecutor's argument caused one or more jurors to convict the defendant based on a lesser standard than proof beyond a reasonable doubt. As such, the convictions were reversed. (Id. at p. 677.)
Here, in contrast to Centeno, the prosecutor's disputed actions were brief and they were not emphasized. It appears unlikely that the jury placed much, if any, importance on them. The prosecutor did not attempt to illustrate the burden of proof with the photograph but encouraged the jury to examine all of the evidence and not focus on one detail. Unlike Centeno, it is not reasonably probable that at least one juror convicted appellant based on a lesser standard of proof than beyond a reasonable doubt.
The trial court instructed the jury regarding the definition of reasonable doubt, the presumption of innocence, and the prosecution's obligation to prove that appellant was guilty beyond a reasonable doubt. The court instructed the jury regarding its obligation to follow the law as set forth in the instructions, and to disregard attorney comments that were inconsistent with the instructions. The jury was told that "[n]othing that the lawyers say is evidence." We presume the jury followed these instructions. (People v. Boyette, supra, 29 Cal.4th at p. 436; see also People v. Prince (2007) 40 Cal.4th 1179, 1295.) We also presume " 'the jury treated the court's instructions as statements of law, and the prosecutor's comments as words spoken by an advocate in an attempt to persuade.' " (People v. Seaton, supra, 26 Cal.4th at p. 646.) Thus, we conclude that any lingering danger the jury might have misinterpreted or been misled by the prosecutor's comments, however unlikely, was eliminated by the jury instructions the trial court gave in this case.
Based on this record, we cannot say that the prosecutor's use of the photograph and his demonstration with the detective rendered this trial fundamentally unfair. As such, any presumed misconduct did not rise to a due process violation. Because appellant's federal constitutional right to a fair trial was not violated, we apply the state standard for harmless error: whether it is reasonably probable that appellant would have obtained a more favorable result in the absence of the prosecutor's actions. (People v. Tully, supra, 54 Cal.4th at p. 1010.)
Under the state standard, even if we presume prosecutorial misconduct occurred, the prosecutor's actions were harmless. It is not reasonably probable that appellant would have obtained a more favorable result in the absence of the prosecutor's disputed conduct. Accordingly, any presumed error was not prejudicial and this claim fails.
II. The Trial Court Did Not Abuse Its Discretion In Failing To Bifurcate The Gang Enhancement Allegations.
Prior to trial, Mendoza filed a motion to bifurcate the gang enhancement allegations from the underlying charges. Appellant joined that motion, which the trial court denied. Appellant claims that the trial court abused its discretion.
A. Standard of review
An abuse of discretion standard is used to review a trial court's denial of a motion to bifurcate. (People v. Hernandez (2004) 33 Cal.4th 1040, 1048 (Hernandez).) Under this standard, we will not disturb the trial court's decision on appeal unless " 'the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]' [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; see People v. Williams (1998) 17 Cal.4th 148, 162 [abuse of discretion review asks whether ruling in question falls outside bounds of reason under applicable law and relevant facts].)
B. Analysis.
Appellant argues that this was not a gang-related crime; the Codefendants did not wear gang clothing, they did not shout gang slogans, and they did not flash gang signs. This crime was committed with Ditlevson, a non-Norteño, and the prosecution's gang expert admitted that Norteños would not normally commit crimes with non-gang members. Appellant contends the gang evidence had no relevancy to the underlying charges, and its prejudicial effect required bifurcation. We disagree.
A trial court has discretion to bifurcate the trial in a case with gang enhancement allegations to avoid the danger of the jury being improperly influenced by the gang evidence when it decides defendant's guilt of the charged crime. (Hernandez, supra, 33 Cal.4th at pp. 1048-1049.) Predicate offenses and other gang evidence "may be so extraordinarily prejudicial, and of so little relevance to guilt, that [they threaten] to sway the jury to convict regardless of the defendant's actual guilt." (Id. at p. 1049.)
Despite these considerations, "less need for bifurcation generally exists with the gang enhancement than with a prior conviction allegation." (Hernandez, supra, 33 Cal.4th at p. 1048.) This is because "[a] prior conviction allegation relates to the defendant's status and may have no connection to the charged offense; by contrast, the criminal street gang enhancement is attached to the charged offense and is, by definition, inextricably intertwined with that offense." (Ibid.) Further, because there are efficiencies to be gained by conducting a single trial, some evidence that would be inadmissible (under Evid. Code, § 352, for instance) at a trial of the underlying crime alone can be admitted in a trial for an offense with a gang enhancement. (Hernandez, supra, at p. 1050.) The burden is on the defendant to show that the considerations favoring a single trial are substantially outweighed by a danger of undue prejudice. (Ibid.) The danger of undue prejudice must be clearly established by the defendant. (Id. at p. 1051.)
"While gang membership evidence does create a risk the jury will impermissibly infer a defendant has a criminal disposition and is therefore guilty of the offense charged [citation], 'nothing bars evidence of gang affiliation that is directly relevant to a material issue.' [Citation.]" (People v. Montes (2014) 58 Cal.4th 809, 859.) A trial court acts within its discretion when it denies a bifurcation motion if the gang evidence will be admissible to prove the charged offenses. "Evidence of the defendant's gang affiliation—including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.] To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary." (Hernandez, supra, 33 Cal.4th at pp. 1049-1050.)
Here, a criminal street gang enhancement was attached to the charged offenses and was, by definition, inextricably intertwined with those offenses. There were efficiencies to be gained by conducting a single trial. Moreover, the gang evidence tended to bolster guilt issues. The prosecution's gang expert explained why a Norteño gang member, such as appellant, might remain with Ditlevson, a non-Norteño gang member, while other gang members initiated the robbery attempt. The expert explained why someone such as Villegas would have a gang motive to accompany Mendoza when this crime was committed. The gang evidence tended to provide context regarding appellant's role (along with Villegas's and Mendoza's) in the charged crimes, and it tended to dispel any suggestion that appellant was a mere passenger who had no motive or intent to participate in the criminal enterprise. As such, the gang evidence had probative value and "[e]ven if some of the expert testimony would not have been admitted at a trial limited to guilt, the countervailing considerations that apply when the enhancement is charged permitted a unitary trial." (Hernandez, supra, 33 Cal.4th at p. 1051.)
Finally, the trial court properly instructed the jury that evidence of gang activity could be considered solely for the limited purpose of deciding whether appellant acted with the intent, purpose, and knowledge necessary to prove the gang-related crimes and gang allegations, or that appellant had a motive to commit the charged offenses. We presume that the jury followed these limiting instructions, and there is nothing in this record to rebut that presumption. (People v. Waidla (2000) 22 Cal.4th 690, 725.)
Based on this record, the trial court did not abuse its discretion in denying bifurcation of the gang enhancement allegations. Appellant has not met his burden to establish that a substantial danger of prejudice existed requiring the gang enhancements to be tried separately. Accordingly, this claim fails.
DISPOSITION
The judgment is affirmed.
/s/_________
LEVY, Acting P.J. WE CONCUR: /s/_________
GOMES, J. /s/_________
SMITH, J.